Seaward & MacDuff
[2013] FamCA 485
FAMILY COURT OF AUSTRALIA
| SEAWARD & MACDUFF | [2013] FamCA 485 |
| FAMILY LAW - CHILDREN - Where parties have three children - Where highly conflicted relationship between parents - Where allegations of family violence - Numerous applications for apprehended violence orders - Where father failed to return the children and recovery order made – Children’s views - Where one child refuses to communicate or spend time with the father - Relocation - Whether children able to have meaningful relationship with both parents - Held: no unacceptable risk to children of exposure to family violence - Where terrible parental relationship poses a potent risk of harm to the children - Mother to have sole parental responsibility - Father to have limited supervised time with the children. |
| Crimes Act 1900 (NSW): s 314 Family Law Act 1975 (Cth): ss 64B, 61, 60, 65, 60CC |
| Goode & Goode (2006) FLC 93-286 Johnson and Page (2007) FLC 93-344 M v M (1988) 166 CLR 69 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Seaward & MacDuff [2011] FamCA 1041 Seaward & MacDuff [2012] FamCA 128 Seaward & MacDuff (No 3) [2012] FamCA 731 Seaward & MacDuff (No 4) [2012] FamCA 1147 Seaward and MacDuff [2012] FAMCAFC 166 |
| APPLICANT: | Mr Seaward |
| RESPONDENT: | Ms MacDuff |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
| FILE NUMBER: | SYC | 2177 | of | 2011 |
| DATE DELIVERED: | 19 June 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 21-24 May 2012, 26 October 2012 and 14 June 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Ladopolous and from 24 May 2012 the father appeared in person |
| COUNSEL FOR THE RESPONDENT: | Ms Messner |
| SOLICITOR FOR THE RESPONDENT: | Abrams Turner Whelan |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Reynolds |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
Orders
That all previous parenting and other orders in respect to B Seaward born … 1998, J Seaward born … 2004 and Z Seaward born … 2005 (“the children) be discharged.
That the mother have sole parental responsibility for the children.
That the children live with the mother.
That the children J and Z spend supervised time with the father as follows:-
(a)For a period of 3 hours each calendar month, on a day and time chosen by the mother as far as reasonably possible from the dates suggested by the father provided the nominated supervising agency is available at that time.
(b)That the mother give the father and nominated supervising agency no less than 14 days written notice of the time appointed pursuant to Order 4(a).
(c)Such time to be supervised by whichever of the following agencies that supervise children’s time with a parent the father nominates:
(i)P Contact Agency or
(ii)another private agency, or
(iii)Sydney Contact Centre or
(iv)G Contact Centre
(d)If the father’s time is supervised by P Contact Agency or another private agency it is to take place at a venue acceptable to that agency, nominated by the father, and being in the Sydney metropolitan area or central coast area.
(e)All costs of supervision are to be paid by the father.
(f)The children are to be delivered to and collected from the place where they are to spend time with the father by the mother or her nominee.
That each quarter the father shall give the mother a list of the non school days and times that he is able to spend time with the children.
The parties are to forthwith do all things necessary to complete any intake procedures required by the nominated agency or agencies.
In the event that B wants to spend time and communicate with the father, the mother shall facilitate her participation in her brothers’ time with the father which is provided for in these orders.
That the father’s time with the children pursuant to Order 4 above is subject to the following restraints:
(a)That he does not denigrate the mother or permit any third party to do so within the presence or hearing of the children.
(b)That he does not physically discipline the children or permit any third party to do so.
(c)That he does not discuss the proceedings or any issues arising out of the proceedings with the children or permit any third party to do so.
(d)That he does not show the children copies of any court documents filed or prepared in respect of these proceedings or any related proceedings.
That the mother is restrained from the following:
(a)denigrating the father or permitting any third party to do so within the presence or hearing of the children;
(b)physically disciplining the children or permitting any third party to do so;
(c)discussing the proceedings or any issues arising out of the proceedings with the children or permitting any third party to do so; and
(d)showing the children copies of any court documents filed or prepared in respect of these proceedings or any related proceedings.
Both parties are restrained from having any of the children interviewed by the NSW Police, JIRT, or the Department of Family and Community Services (or as that agency is named from time to time), unless directed to do so in writing by that agency or by court order.
That in the event that the children express a wish to the mother to speak with the father, the mother shall facilitate that telephone contact by either herself or the child telephoning the father’s mobile telephone.
The mother is permitted to monitor the children’s telephone calls and in the event that the father attempts to discuss with the children any issues relating to the parenting proceedings, (including the allegations of violence made against the mother’s husband), the mother may terminate the call.
That twice a year, the mother will forward the father copies of the children’s school reports and recent photographs.
That the father is at liberty to send letters and gifts to the children.
Other than to spend time with or communicate with the children as provided for in these orders, the father is restrained from contacting or approaching them, where they live, play sport or attend school.
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.
The father’s application filed 11 April 2011 (as amended) and the mother’s response filed 16 May 2011 (as amended) are otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Seaward & MacDuff 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 SYDNEY |
FILE NUMBER: SYC 2177 of 2011
| Mr Seaward |
Applicant
And
| Ms MacDuff |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings in relation to the parties’ three children, Ba who is 14, J who is nine and Z who is seven. The children live with Ms MacDuff who is their mother (“the mother”) and the boys spend time with their father, Mr Seaward (“the father”) supervised by an agency known as P Contact Agency.
The parties separated in November 2006, following which the children who were nearly eight, two and 14 months remained with the mother. Although it is the father’s evidence that they almost immediately reconciled and resided together in various places until his incarceration on 16 December 2009, the more likely scenario is that they cooperated as parents and in that context, regularly spent time together. That said there were periods when their personal relationship resumed and the father stayed with the mother. What is not in dispute is that between November 2006 and the father’s incarceration, the children spent a lot of time with him and he was an important part of their lives.
While the father was in gaol the mother married and with the three children moved from Sydney to the Central Coast where they are settled and happy. Following his release the father made good on the promise he made from gaol that he would commence proceedings to have the children returned to Sydney. It is his contention that the children are at risk with the mother which includes physical harm from her husband. Since the father’s release there has been significant police involvement and numerous applications for apprehended violence orders. Pursuant to a recovery order, after the father failed to return the children to the mother, they were retrieved by police. Since then the father’s time with the children, by order, has been supervised.
Although the interim orders which define the time and circumstances under which the children can spend time with the father enable this to occur three hours each week, the fees involved are significant. This has stood in the way of him being able to afford to spend time with the children to the extent facilitated by the interim orders. The child B chooses not to have contact with the father and stopped going with her brothers to see him in August 2011. Although the boys continue to speak with the father by telephone and if she wanted to, B could as well, she does not.
The parties disagree about where and with whom the children should live, whether they should have more than “recognition” contact with the father and parental responsibility. There is a raft of other orders sought by them and the Independent Children’s Lawyer (“ICL”) most of which are designed to address risk and facilitate the passage of information between two parents who cannot deal with each other. Unfortunately, what was once a cooperative parental relationship is now riven with mistrust and antipathy such that there is not a scintilla of hope of them establishing effective communication or being able to cooperate in relation to their children. It is the terrible parental relationship which now poses a potent risk of harm to the children.
The parties agree on little and put an astonishing range of factual matters in issue. Some are irrelevant and others are difficult to determine. The focus of these reasons will be upon matters that are relevant. It is hoped that the parties will appreciate that, notwithstanding some of the matters explored during the hearing were of interest to one or other of them, unless these matters impinge on how the children’s best interests should be determined, they will not be discussed.
Key Issues
As the introductory remarks indicate, a wide range of issues were raised, not all of which are germane to a decision concerning the children’s best interests. The significant issues are:
(1)The nature of the children’s relationships with each other, their parents and the mother’s husband. It is common ground that it is in the children’s interests that the sibling group remains intact.
(2)The children’s views and the weight their views should carry.
(3)The risk of family violence or exposure to family violence. This includes consideration of whether the mother’s husband punched the child Z and poses an unacceptable risk to the children.
(4)Whether the mother has or is likely to undermine the children’s relationship with the father.
(5)Whether the father has or is likely to undermine the children’s relationship with the mother and their lives with her.
(6)The effect on the children of changing or not changing their circumstances.
(7)Whether the parties are able to cooperate as parents and the effect on the children if they cannot.
Background
Unless stated differently, findings of fact will be determined on the balance of probabilities.
The parties first lived together from mid 1995 until March 1997. They then separated following which the mother returned to live with her parents at Suburb A. They resumed their relationship in about December 1997 and resumed cohabitation.
B was born in late 1998. Until then, both parties worked fulltime till the mother stopped work shortly before B was born. She then took time off work and cared for B fulltime. The father continued fulltime work.
In February 2000, the mother returned to work fulltime as a child care administrator. The maternal grandmother cared for B three days per week and B attended family day care two days per week organised through the mother’s workplace.
The parties separated in April 2000, following which the mother and B moved in with her parents.
On 26 May 2000, parenting orders were made by consent which provided that the child B live with the mother and spend time with the father from 9.00 am Tuesday until 9.00 am Wednesday, as well as on special occasions. B spent time with the father as ordered.
In August 2000, the mother took up a fulltime position with the Department of Community Services. B’s care arrangements did not change.
The parties reconciled in late 2001/early 2002 and lived together until November 2006.
In 2002, B started preschool two days a week which increased to three days a week in 2003. On the other weekdays the maternal grandmother continued to care for the child, as she did during school holidays. The mother delivered the child to her parents and preschool and collected her.
The mother stopped work in December 2003, which was shortly prior to J’s birth in early 2004. She then remained at home caring for the children until August 2006.
The parties’ third child, Z was born in September 2005. He was approximately 11 months old when the mother returned to work as the General Manager of a small group of childcare centres.
By then the father’s business had failed as a consequence of which their home was sold. Although settlement was completed in May 2007, the parties moved out of their Suburb W property in November 2006. There is also little doubt that in the period after November 2006 the parties suffered reduced circumstances. His company went into liquidation during the course of which the father says he discovered extensive fraudulent and other criminal activities amongst insolvency practitioners and others. Concerned for his safety and the safety of the mother and children, he obtained rented premises; thus diverting the risk that if he was attacked (because of his discovery) the mother and children would be out of harm’s way. That evidence sits uncomfortably with his evidence, which is disputed by the mother, that the parties lived together more or less continually until he was incarcerated and that the children were with him for most of the time during 2009.
That said there is no doubt that the parties had an on and off relationship and, as was mentioned earlier, the children continued to regularly spend time with the father.
In the months after November 2006, it is the father’s evidence the parties lived together in a rented townhouse at Suburb L. There is no doubt that the mother and children moved into a property at Suburb L and that on occasion the father stayed over. Although the father’s sister supports his evidence, it is necessary to record that her evidence in relation to the parties’ living arrangements is internally inconsistent and argumentative. She demonstrated a degree of animus towards the mother, for example, saying that the mother facilitated contact between the children and the father initially as some sort of convenience to her. When questioned about whether it was thereafter facilitated as a matter of convenience to the mother, the witness said “I don’t know.” In relation to the parties’ post November 2006 living arrangements, the father’s sister purports to adopt evidence that the mother gave in February 2010 which she summarises as being “where [the mother] stated that her, [the father] and the children were living together”. In fact, the mother adopted the proposition that she and the children lived in the house and he visited from time to time. She explained “[w]e’ve been living like that for nearly three years now since we moved from a home - our home yeah”.
So that the point is not overlooked, there was considerable focus upon the mother’s evidence to the District Court in February 2010 that “[w]e’ve been together since the first night we met, so for 15 years”. (exhibit “D” p 129). The suggestion being that this corroborated the father’s evidence about cohabitation and the ongoing nature of their relationship. However, when the mother’s answer is considered in the context of the question (which is set out later in these reasons) and the totality of the evidence she gave, it is also consistent with her evidence that she intended to convey no more than that they formed a relationship the day they met and thus have known each other for 15 years.
According to the father’s sister the parties moved to Brisbane, by implication, together, where they stayed for about six months while the mother project managed the building of a new childcare centre. The father’s evidence is consistent with that given by his sister. The mother says she and the children moved to Brisbane in the June/July 2007 school holidays where B attended a local primary school and the boys attended childcare two days per week. The mother’s work conditions were flexible and she was able to carry out some of her role from home. According to the mother, the father spent time with the children during school holidays and occasionally after work during the week or on the weekend when he travelled to see them. She does not agree that he lived in Brisbane and suggests that as far as she knew he continued to live in Sydney and spent time in Brisbane.
That the mother and children moved to Brisbane without the father is supported by an email from B as follows:
Daddy,
We went out today in Brisbane to have a look at a School for me and the boys to go to next year.
It called [C School]. It has everything and I love it!
I’ve put in some photos of us on our holiday. I hope you like them! (as per original) (father’s affidavit filed 16 May 2012, annexure “L”)
Attached to the father’s affidavit is an email he wrote to the mother on
17 July 2007. In it, he says:
… I came to Brisbane for a fresh start … Seems you were trying to stop this happening from the minute I got there so I don’t know why you wanted me to come in the end? Was so hanging to spend time with you separate to the kids so we could get back to what we once had. I really miss that and have for a couple of years now. (father’s affidavit filed 16 May 2012, annexure “K”)
The father comments that in response to his remark that he was leaving, all the mother was “worried about was who was going to babysit why (sic) you had your meeting”. This lends support to the notion of the on-off nature of the parties’ relationship and the father’s role in it after November 2006. He wrote, “[d]on’t want to be a babysitter which is what you appear to want”. (father’s affidavit filed 16 May 2012, annexure “K”).
He further wrote:
You came to Sydney the other week and we were desperate to get hold of each other?
….
Let me know quickly what you want. I will stay here until Saturday. If I don’t see you and the boys then I will take that as a ‘don’t want you’ and I will move on. If I go to Melbourne though that’s it…no return and I will start a new life. (father’s affidavit filed 16 May 2012, annexure “K”)
The father’s reference to the mother having visited Sydney supports her evidence that she and the children moved to Brisbane without him. His reference to remaining in Brisbane until Saturday but questioning whether he would see her and the boys, suggests he had his own accommodation.
On the other hand, there is no doubt the father obtained employment as the Regional Manager of a company that had business premises in Brisbane. Exhibit “H” is his business card and exhibit “P” is a series of emails between the father and the Sydney based Finance Manager. His email, dated 3 September 2007, indicates that he started with the company one week earlier and was travelling a lot. This evidence suggests that the father spent time in Brisbane but does not establish that for the period the mother and children lived there, he was with them throughout.
As to what happened after he arrived and took the job as Regional Manager, it is not possible to determine who is telling the truth. Nothing turns on this factual conundrum.
The mother and children returned to Sydney in January 2008. The father continued to work with the company but it is common ground that he too lived in Sydney from the beginning of 2008. It does not appear to be disputed that in January 2008 the father’s employer provided him with subsidised rental accommodation in Suburb H. The mother rented a home for her and the children at Suburb F not far from her parents. The father then obtained another property at Suburb H following which he rented another property at Suburb V. There is no doubt that from early 2008 the father maintained his own rented premises.
From January 2008 to December 2010, the mother was employed as a senior Manager for a corporate childcare group based in Sydney. She worked fulltime and was able to take the children to and from childcare. It is her evidence that the children spent time with the father on the weekend and he would “occasionally assist with before or after school care” whilst she was at work. There is also no doubt that his involvement with the children increased after he lost his job in May 2009.
Although it is not entirely clear when the father first obtained the services of an accountant to attend to his personal matters, there is no doubt that at some stage he paid the accountant he retained with a cheque that bounced. According to the father, in the following months he paid the accountant the amount due and was outraged when some 11 months after his cheque bounced, she presented it again and it was honoured. In early 2009, the father went to his pregnant accountant’s office where he assaulted her. As a consequence, he was charged with assault, larceny and robbery. He was shocked to be convicted and both he and the mother were staggered when he was sentenced to a term of imprisonment. So strong was their view that he would escape imprisonment that the child B was present when the verdict was announced and he was taken into custody. The father received an overall sentence of fifteen months which was served in full.
According to the father, the mother’s support during his trial is further evidence that their relationship continued at that point, indeed only ended while he was incarcerated. His evidence is inconsistent with the information he gave Probation and Parole for a pre-sentence report in which the mother is described as being his supportive ex-partner (exhibit “G”). It is also inconsistent with the evidence the mother gave to the District Court upon which the father relies in his case. As will be discussed later, the father misled the District Court about his address. When this was discovered, an issue arose about whether his bail would be continued. Police took a statement from the mother and, on 11 December 2009, she gave further oral evidence. The effect of her evidence was that for the preceding six months the father had lived with her and the children “off and on” and “still currently resides with me at … [Suburb L].” (exhibit “D” p 216). The mother confirmed her earlier evidence that for the preceding five days he stayed with her and that if he was granted bail, he could stay with her.
This is consistent with the evidence the mother gave in this hearing. Of course this evidence must be evaluated in the context of evidence called in the father’s case from Ms S. She is a real estate agent and managed the father’s tenancy for the flat he rented from September 2009 until his incarceration. Ms S said:
I am aware that [the father] would spend some nights at the [Suburb L] property with his family during the period of his Tenancy Agreement …. During the period [the father] advised me that there was some reconciliation happening with [the mother] his partner.
I know this because I had offered [the father] night work during that period and we had discussed his availability at nights. This was restricted to 2-3 nights as he had the children on a number of other nights including every Saturday. I believe he also had them on Wednesday evenings each week. (Ms S’s affidavit filed 23 May 2012, pars 6 & 7)
She gave evidence that the children were “always being around on Saturday mornings” and that during the period July to December 2009 she saw the child Z with the father “close to every week day in the school term”. However, in her oral evidence, Ms S said that in addition to Saturdays, she recalled seeing the children one or two days a week and that she did not know whether or not they stayed overnight. In apparent contradiction to her affidavit evidence, Ms S said that the father did not tell her that he stayed overnight at the mother’s home. She said that she knew they were separated and that he hoped to reconcile. The inconsistencies between Ms S’s written and oral evidence demonstrate that some caution in relation to her evidence is appropriate.
During this period the mother had fulltime employment and the elder two children were at school. Ms S’s evidence provides support for the father’s position that in the months leading up to his incarceration he was involved in the child Z’s care and that all three children regularly spent time during the day with him. It also supports the mother’s case that the parties did not cohabit, the children were significantly in her care and that in the lead up to the father’s trial she provided him with the comfort of being able to spend time “off and on” in her and the children’s home at Suburb L.
As mentioned earlier, the father was convicted and sentenced to a period of imprisonment. He appealed against both. That appeal was heard prior to the May 2012 hearing and, according to the father the judges on appeal made it plain that he would succeed and his conviction would be quashed. The Court of Criminal Appeal judgment is in evidence. In short, the father’s appeal against his conviction was dismissed and his appeal against his sentence was successful. His sentence was quashed following which he was resentenced. In lieu of the original sentence, on all three counts he was sentenced to shorter periods of imprisonment than originally imposed with the longest term being six months.
The parties agreed to keep the father’s incarceration secret from the boys. It would appear that they adopted this course because B was anxious that her school friends not discuss what had happened. Because she and J attended the same school, given his age, if he knew, the risk that news would spread was objectively high. Thus the boys were told that the father was away working. With the mother’s full cooperation the boys maintained telephone contact with the father for the 15 months he was in gaol. B, of course, knew the truth and was taken regularly by the mother and the father’s sister to see him in gaol.
While the father was incarcerated, the mother met Mr MacDuff (“the mother’s husband”) who she dated years before. Almost immediately they rekindled their relationship and quite quickly decided to marry. The father reacted to news of the mother’s relationship with anger, abuse and threats. As a consequence, the mother stopped taking B to see him in gaol and from mid September 2010, the father’s sister took her. Although the father disputes that he has ever threatened the mother or her husband, the letters he wrote from gaol are in evidence and speak for themselves. Aspects are undoubtedly threatening and his language about the mother’s husband is vile. The father had not met or spoken with the mother’s husband. Although the father said he spoke with the mother’s husband by telephone from gaol, in light of the mother’s husband’s denial this evidence is not accepted. Even if they did speak, this would not make the father’s actions reasonable or appropriate. Regrettably, the difficult situation between the father and the mother’s husband evident in those letters deteriorated even further after the father was released from gaol. Their relationship is beyond repair.
In January 2011, the mother and children moved with the mother’s husband to U. U is on the Central Coast of New South Wales just north of Sydney. The mother and the mother’s husband bought a large family home which is where the children live. When she relocated the children, the mother did so against the father’s strongly communicated opposition. For example, in his letter dated 29 November 2010 which the father wrote from gaol (father’s affidavit filed 16 May 2012, annexure “A”) he wrote:
… I will not consent to them being relocated. On that basis I will put you on notice again that you will not remove them from Sydney metro and from enrolment at [L] school unless we have an order in place. You have no moral right to do this and within 2 weeks no legal right.. I have put you on notice that I will injunct you prior to Xmas and the courts (sic) closing if you force my hand. Is this what you want over Xmas? You are not to relocate my children without consultation knowing that I am to be released within weeks. If you deliberately do this I reserve the right to use that in court proceedings
…
I will agree to have the kids alternating weeks on the basis they are schooled at their existing schools. That you stupidly bought a house to suit [your husband’s] kids is your problem not the kids. Why you would do that is beyond comprehension. Schooling them at [L] ensures their weekly activities can continue and that we can both be involved. I have no intention of trying to get kids from the Central coast when we have been in the [Suburb L] area since [B] was born 12 years ago. I have no intention of forcing the kids to spend half of those days in the car stuck on the F3. Should you not like this arrangement then I am more than happy to have all my children full time and you can go with your naïve choice of putting [your husband] before our kids. I hope he was worth it. It should be a great marriage based on lies to start with. You and he can live happily ever after together at [U] with his kids. My kids are staying in Sydney with me. You have only a few days left to discuss this amicably with me
…
… They must remain in Sydney to ensure they have a dad. Do not drag everyone through this. (original emphasis)
What the father’s correspondence fails to consider is that for a period the children lived in Brisbane and, with modest means, how the mother and her husband might be able to afford to buy a family home on the lower-mid North Shore of Sydney. Notwithstanding his arguments against relocation, nowhere does the father explain in the correspondence or, to my satisfaction in this hearing, why, upon his release, he was unable to settle closer to the children.
Having moved from Sydney to the Central Coast, J changed schools from L Public School for U Public School. The child Z had not previously attended school, and started kindergarten at U Public School. Having completed primary school in 2010, B commenced secondary school at X High School. Although the children are settled and doing well at school, the father’s application would have the boys attend L Public School. Although J would return to the school he attended before the children moved to the Central Coast (where he was a victim of bullying), for Z this would be a new school.
The notion that the boys would change schools is connected to what the father says should be the children’s living arrangements. Although his evidence tended to suggest a range of possible applications, his primary and most consistently held stance is that the children’s time should be divided week about. Because his supports, primarily his sister and girlfriend, live in Sydney, and he says he needs to live in Sydney to work, he will not contemplate moving to Town U or in that vicinity. Thus, the father says the mother should be ordered to return the children to Sydney to live or, if that does not occur, the week about arrangement implemented, but with the boys changing schools closer to where the father lives. B would be able to continue to attend X High School from where the father lives in Sydney.
Having failed in applications to the Supreme Court for bail pending sentence and bail pending appeal the father appealed the latter. That appeal was heard early in 2011 and dismissed. The judgment given by the NSW Court of Appeal … is in evidence (exhibit “E”) and includes a précis of the facts on which the father was convicted.
The father was released on parole on 13 March 2011. Without being ordered to do so, the mother facilitated unsupervised overnight time for the children with the father. From 18 March 2011 until August 2011 the children spent each alternate weekend plus one week of the April and July school holidays with him. The father was understandably distressed that the mother did not make the children available for his first weekend out of gaol, which could and should have happened, this was a lapse of judgment on her part. However, it is far more significant that without being ordered to do so, from the following weekend the children started to spend time with the father.
Within a month the father commenced proceedings in the Federal Magistrates Court (now the Federal Circuit Court). He applied for orders that the children live with him and, provided they were not left in the sole care of her husband, spend time with the mother each alternate weekend, half school holidays and Mothers Day. It is a major plank of the father’s case that the mother’s husband poses an unacceptable risk to the children which she refuses to acknowledge.
In her Response, the mother sought orders for equal shared parental responsibility, that the children live with her and spend time with the father each alternate weekend and half school holidays.
After an order was made for the appointment of an ICL, the parties attended a Child Dispute Conference with a family consultant.
The family consultant issued a memorandum in relation to the Child Dispute Conference. The memorandum forms part of the father’s case (father’s affidavit filed 16 May 2012, annexure “N”) and is in evidence.
The issues raised by the parties with the family consultant are set out below:
·There are disputed allegations of serious family violence, including:
·The mother alleges a history of coercive/controlling psychological abuse of herself by the father. She expressed fear of his potential actions. While not physically violent towards herself, she reports a history of violence to others and significant personality difficulties for the father.
·The father alleges that the mother has a history of violence towards himself.
·Allegations by the father that the boys have told him of physical abuse by their mother (kicking them) and by [the mother’s husband] (belting and smacking).
·Dispute about whether or not the mother currently suffers from mental health concerns and whether or not this has impacted on her parenting capacity.
·The children’s history of care is disputed. The mother states that children have always lived with her and she has consistently provided their care. The father sates (sic) that up until his time in imprisonment, he spent “6 to 7 days per week” with the children.
·The father alleges that the children have been “torn apart” by the mother’s move to the Central Coast.
In relation to the children, the family consultant reported:
The mother says that the youngest children, [J] (aged 7 years) and [Z] (aged 5 years) essentially do not have a significant relationship with their father. She says that [B] (aged 12years) is attached to both parents and is the child most psychologically damaged by the parental dynamics.
Despite not seeing the boys while in prison, the father says that all three children are attached to him.
Both parents allege psychological abuse of the children by the other.
From either parents’ (sic) account, substantial concerns would appear to exist for the children’s emotional wellbeing. Therefore, further assessment is required to determine what parenting orders would best serve to protect the children.
With the history described, equal shared parental responsibility might not be viable. Also, in order to protect the children, they might need to live predominantly with one parent with limited time with the other.
The family consultant recommended against further dispute resolution and that a child and family psychiatrist be appointed to assess:
(1)mental health and /or personality difficulties in each of the parents
(2)the impact of the above on parenting capacity
(3)the impact of the above on the children’s psychological well being and physical safety.
Dr R was appointed.
At the end of the July school holidays, having spent nine days with the father, on Sunday 10 July 2011 J telephoned the ICL. The call went through to message bank but when received by the ICL, he could not understand what was said albeit he thought the child sounded distressed.
The next day the ICL wrote to the mother’s solicitor and the father, who he informed of the message and enquired who was present. The mother responded that the children had been with the father. The father’s account of what occurred is summarised in his email to the ICL dated 15 July 2011 (mother’s affidavit filed 26 April 2012, annexure “J”). The father wrote:
Hi [ICL],
I opened your letter today. I am aware that the children phoned you on that day. For 9 days straight my children cried and complained that they would have to leave and go back to the central coast. This is not want they want. They want their parents in the same location … Sydney. [Z] cried himself to sleep every night and during the 9 days approached me more than 30 times distressed that he had to go back home at some point. It is disgraceful that these children have been forced into this position by both your inaction and that of the court. Neither you or the court are serving the interests of the children. It was quite clear to me that you did not take an independent nor common sense approach, firstly lying to me about when you were interviewing the children, allowing [the mother] to prep the children with what not to tell you. What person could possibly think that giving a 5 year old a business card and saying ‘ring me’ is going to help the situation the children have been forced into by their mother relocating without a relocation order. Their lives are being destroyed. That you believe my daughter goes to school on the central coast clearly indicates you did not thoroughly interview my children and you should have rectified that. I will address that in a new application that you have told me I need to lodge. Did you do anything to redress your clear error as you told the court this was your reason for not recommending [B] spend alternate weeks with me as she has repeatedly requested? I’m fairly certain you haven’t so I guess that’s rhetorical.
On Sunday 10th July [2011] after more than 30 approaches to me the boys told [B] to call you. They were massively distressed. She did not want to be involved. I was not present when they made the call as they went into a closed door room. I had repeatedly told them I could not contact you on their behalf which is what they wanted. How on earth you or the court think it is possible for a parent not to be involved in this with the children is astonishing to myself and those trained in early childhood (that I have approached with this scenario). Five and 7 year olds don’t have phones nor the capacity to call a stranger and discuss matters involving parents they love. They can not defend themselves without a parent. Clearly this situation does not help the children. What do you propose to do about it?
During the 9 days I was repeatedly told about the smacking they had received from [the mother’s husband]. Both boys confirming when the other had been smacked. How this has not been raised shows that neither you or the court give a crap about these children. That they are now with their mentally ill mother most of the time is outrageous when this is verified by asking [the mother] or her lawyer if it is true. The fact that Ms [Y] is not and was not overseas when [the mother] told the court last time that the mental health records could not be obtained because the psychologist was overseas for several months shows what lengths she is prepared to go to to mislead you and the court. I’m happy that you get paid regardless [ICL] so well done.
In accordance with the court orders I allowed the children to contact you for urgent help. Emailing me a letter 5 days after you emailed it to [the mother’s solicitor] just confirms further to me where you are at with the welfare of these children.
I believe you should resign from this appointment and allow an Independent lawyer to take carriage.
If I’m missing something and wrong about you please tell me that [ICL]. My kids are worth far more than the crap treatment they are now getting from those in positions of trust.
Is it any wonder people protest on the harbour bridge to make lawyers and courts accountable? Is it any wonder so many children get killed by their mentally ill parents becaus, so far, no one in this court matter has even asked the question.
[The mother’s solicitor] must know she has a client with mental illness and she put her head in the sand as well. You should all be ashamed. You have an obligation to raise this regardless of whether someome psychologist has replied to my subpoena. You have all been told it is real.
If you have something urgent with my children ring me [number deleted]. I hope nothing happens to my children while you all play “let’s raise some more legal fees”.
Thanks[the father] (as per original)
It is appropriate to record that in his letter in reply the ICL informed the father he wrote to him at the same time that he wrote to the mother’s solicitor. It is apparent from this letter that the father was (and remains) angry that his equal time proposal has not been supported by the ICL. It is timely to observe that Dr R adopts the same approach on this issue as the ICL.
If the children were distressed with the father, they were happy once back with the mother.
The competing interim applications were heard on 19 August 2011 following which judgment was reserved. Interim orders were made for the children to spend that weekend (19 – 21 August 2011) with the father. During that weekend, the father says that the boys told him that the mother’s husband had punched Z in the stomach. According to the father, B heard what her brothers said, albeit she did not witness the alleged assault. Exactly what passed between the father and children then and on a number of other occasions requires consideration of the reliability of the father’s evidence. As will be discussed, he proved to be an unreliable witness.
It is common ground that in response to the father’s concern about the mother’s husband which he expressed to the federal magistrate on 19 August 2011, the federal magistrate intimated that if the children were in danger the father might take the issue up with police. According to the father, when on that weekend (20 August 2011) he took the boys to the local Police Station, he only did what the federal magistrate said he should. The circumstances of the boys’ discussion with the police are set out in the Police records (exhibit “T”) and are such that it would be wrong to describe this as an interview. Simply put, a police officer spoke to the father about what the boys said and then while that police officer was on the telephone waiting to speak to an officer from the Department of Community Services, in the presence of that police officer the father had the boys recount what they had told him.
In breach of the interim orders, the father kept the children. He sent a text to the mother that in effect informed her that they would remain with him indefinitely. He told her that the boys were distressed and that she could not contact B until the courts said she could. Voicemail messages about what was happening were also left for the ICL. When the father failed to return the children to the changeover point, the mother sought police assistance in having the children returned to her. In the meantime, she and B were in contact by text message during which B said she and the boys were “okay”. B said to the mother, “He [the father] can’t know I spoke to you. Please delete this message and please do not tell the Police” (mother’s affidavit filed 26 April 2012, par 69).
In response to the mother’s request that police retrieve the children and/or conduct a welfare check, that evening police visited the father. To police, the father repeated his concerns for the children and said he would not return them. Had police been concerned about the children’s well being, it is inferred, they would have been removed. Police informed the mother that the allegation that the mother’s husband assaulted Z was under investigation and that, in effect, they could not remove the children from the father.
The following day all three children attended the Police Station with the father. There they were spoken to by Constable E, in what police describe as “very informal chats”. Police summarise these interviews as follows:
… [B] did not disclose witnessing any assault, only hearing about it when [Z] told their father. [J] said that he saw [the mother’s husband] smack and punch [Z] while he was in the kitchen. During the chat with [Z], he said that [the mother’s husband] hit him by smacking him and punching him in the abdomen while he was in his bed. There were discrepancies between (sic) the 2 versions, however, Police did not want to go too far and jeopardise any future investigations. (exhibit “T”)
In the consequential application for an ex parte application for an apprehended domestic violence (provisional) order that police sought against the mother’s husband for the protection of the children, they also reported that the incidents were said to have occurred on 8 and 10 August 2011 and did not result in Z being injured. Police record that the boys said that this was not the first occasion on which the mother’s husband had used a closed fist or open hand to discipline them.
On Monday 22 August 2011, the mother instructed her solicitors to contact the father with her demand that he return the children by noon, which they did. Shortly after noon, he sent the mother a text message in which he informed her that the children were “very happy and safe” and that she would be notified the following day about “the orders in place to protect the children”.
Without further notice to the father, the mother filed an application for an ex parte recovery order which came before a federal magistrate that afternoon. The ICL participated in the hearing and supported the mother’s application. The manner in which he did this prompted a second unsuccessful application by the father that the ICL be removed. The transcript of that hearing is in evidence (exhibit “O”). Notwithstanding the father’s criticism about the manner in which the ICL addressed the difficult issues which he and the
federal magistrate faced, a balanced reading of the transcript reveals that the ICL undertook his role with what he, not unreasonably, considered to be the children’s interests at the forefront. Again, the transcript does not support the father’s contention that the recovery order was made only because the ICL submitted that orders should be made as sought by the mother.
A recovery order was made and police returned the children to the mother at about 8.00 pm that evening. Other interim orders were also made, the effect of which was that the children’s time with the father was suspended and he was restrained from attending their home and schools. The mother was also restrained from leaving the children in her husband’s care unless another responsible adult was present. Since then B has refused to see her father. Other than on an occasion when the father twice entered a room set aside for victims of domestic violence at the Local Court on 30 August 2011, where the mother and children waited, the boys did not see him again until February 2012.
The child B sent an email to Constable E on 25 August 2011. In the email she correctly tells Constable E that she tried to telephone her several times on Tuesday (23 August 2011) and Thursday (25 August 2011). B wrote:
…
I wanted to let you know my brothers lied and I know this because they told me as soon as we got in the car Monday night. When I furthered (sic) asked them why they said it was because they wanted to spend more time with my dad and thought they would be taken away if they didn’t.
I think it is important you speak to my brothers again while my dad is not present. So that they are able to tell you the truth without the pressure.
I think it is really unfair that [the mother’s husband] has been accused of something I now know he didn’t do.
… (mother’s affidavit filed 26 April 2012, annexure “M”)
That evening the children made two car journeys. First, with police from the father’s home to the local Police Station and then with the mother when she collected them. A question arose about whether the conversation B recounts with her brothers occurred in the first or second car trip. It is the mother’s evidence that she did not hear this conversation during her trip with the children, and it is inferred that the trip to which B refers probably occurred in the police car. Although there is no record of this in the police file, the police who implemented the recovery order did not report on conversations.
When the mother collected the children, all three grabbed and hugged her. They were pleased to see her and the boys were troubled by what they believed was her failure to collect them. B was particularly distressed and, that evening, for about 20 minutes cried in the mother’s arms. She also said that she wanted to contact Constable E which she tried to do the next day. The mother’s evidence is that the day after the children were recovered, both boys told her that they lied to police about the mother’s husband. The child J said:
On Saturday, when [B] went out, Daddy took us downstairs and told us we had to say that [the mother’s husband] punched [Z] in the belly, otherwise Daddy would get in big trouble. I watched Daddy tell [Z] what to say. (mother’s affidavit filed 26 April 2012, par 95)
B said to the mother:
Daddy took the boys to the Police Station when I went out with my friends. The first I knew about it was when I got home and the boys told me. (mother’s affidavit filed 26 April 2012, par 96)
There is no doubt that B was not present at the police station when the father took the boys for the first meeting. In cross-examination the mother demonstrated some uncertainty about whether these discussions occurred the day that the children were recovered or the day after. B’s message makes it clear it was no later than the day after.
In the meantime, on 23 August 2011, police caused an ex parte provisional apprehended violence order to issue against the mother’s husband for the children’s protection. The orders sought and provisional orders made restrained the mother’s husband from assaulting, intimidating and stalking the children and the like. They did not stop him from living with them. Following the father’s release, this is the first of a series of applications for apprehended violence orders sought in relation to the children or for the protection of the adults from each other. After a large number of appearances in a variety of Local Courts, the last application was dismissed on 17 April 2013. It is remarkable that some of the complaints relate to conduct that occurred at Local Courts when the parties were there because of apprehended violence applications. The point being that even when under close scrutiny and in a protected environment, there are allegations of threats being made.
There are now no apprehended violence orders or applications in relation to the parties or children.
At the father’s request, police visited the mother’s home on 25 August 2011 to conduct a welfare check on the children. As no action was taken to retrieve the children, it is inferred that police were satisfied that there was no reason to seek to interfere with the federal magistrate’s order to return them to the mother.
The proceedings were again before a federal magistrate on 31 August 2011. A specific order (Order 6) was made to the effect that the father could only communicate with the children by telephone “(and not by text message, email, or otherwise in writing or by any other electronic means)”. The father has breached this order on a number of occasions: in relation to B on three occasions in an egregious manner.
A few days after it was written, the mother sent a copy of the email B wrote to Constable E on 25 August 2011, to the solicitor (Mr Riviere) retained by the mother’s husband in relation to the apprehended violence application. Tendered in the father’s case is a copy of a letter that the solicitor wrote to the Police on 2 September 2011. Relevantly, the solicitor requested that the children be interviewed by “appropriately trained police (such as staff from JIRT)” (original emphasis). The solicitor referred to “death threats” which the father had made to the mother and commented “[th]ese threats were reported to the police and we enquire as to whether the police have taken any action in respect of those threats”. Although the father accuses the mother and the solicitor of making false allegations, one only has to read the letters he wrote from gaol and consider Z’s statement to the mother on 23 August 2011 that “Daddy’s going to kill you”, to appreciate that the mother had direct and indirect evidence of threats made by the father, one of which included reference to a threat to kill. It would seem that the solicitor’s reference to threats being reported to police is to the mother’s attendance at a Police Station on 24 November 2010. On that occasion, the mother sought advice about an apprehended violence order, which police gave but declined to take action. It is not accepted that the solicitor acted inappropriately in raising this matter in the manner he did. That said, as will be discussed later, having the father returned to prison would not have been in the children’s interests.
The father complained to the Legal Services Commissioner about Mr Riviere’s correspondence and conduct. His complaint and later request that the complaint be re-opened were dismissed. Correspondence which passed between the father and the Legal Services Commissioner forms part of his case. In these proceedings, the father focused on the propriety of the solicitor having entered into a retainer with the mother when he was instructed by her husband, claiming legal professional privilege in AVO proceedings and whether steps he took had her imprimatur or indeed were taken at her direction. As to the first matter, the Legal Services Commissioner explains the two are not inconsistent or suggestive of impropriety. That said, it is accepted that there is a discrepancy between the mother’s evidence that she did not enter into a retainer with the solicitor and the solicitor’s letter to the Legal Services Commissioner. Without hearing from the solicitor, that discrepancy cannot be resolved. In relation to the claim of legal professional privilege in AVO proceedings, the transcript of those proceedings (father’s affidavit filed 16 May 2012, annexure “F”) shows this notion was raised by the federal magistrate and then taken up by the solicitor. The father has not established that in relation to these matters in these proceedings the mother’s evidence is unreliable. As to his request that the Legal Services Commissioner investigate the mother, her husband and the solicitor for contravening s 314 of the Crimes Act 1900 (NSW), there is no doubt that the Legal Services Commissioner was correct when he declined to do so.
The mother also asked police to reinterview the children. JIRT officers interviewed the boys on 28 September 2011. B was interviewed the following day albeit her statement is written but, unlike her brothers, not filmed. The DVDs are in evidence and were reviewed by Dr R. The mother took the children but was not present during the interviews. In their separate interviews, both boys deny that the mother’s husband punched Z or hit them. Both say that when they said to police that he had, they lied. Both say they lied because the father told them to. Both say they understood this would help their father with J explaining this would help his father get back with his mother. When these interviews took place the children had not seen the father since they were recovered by police. The father’s submission that the mother and her husband had ample opportunity to pressure the children to retract their earlier remarks and make false allegations against him is accepted. Whether the evidence indicates that this may have occurred will be addressed later. Following the JIRT interviews, police withdrew the application for an apprehended violence order against the mother’s husband. No criticism of this decision is warranted. To the extent that the father asserts that this decision was taken because the mother flirted with the Police Prosecutor, the imputation is rejected.
Whether the mother’s husband punched Z, or there was a reasonable basis upon which to be concerned he may have, is an important issue. Closely allied to this is how the parties and the mother’s husband have dealt with the children and each other about it. For his part, the father says the boys’ statements to the effect that they lied and felt pressured by him to make that statement about the mother’s husband results from the mother’s pressure that they retract. For her part, the mother believes that any statement by the boys to the effect that her husband punched Z or that he has behaved poorly towards them reflects their father’s antipathy for him and pressure he has placed on them to make false allegations.
It was to support his account of the boys’ statements that the father sought permission for a subpoena to issue to B to give evidence in this hearing. Although his application failed, that it was pursued at all and the context in which it was reflects poorly on the father’s judgment as a parent and reveals the extent to which he is willing to sacrifice at least that child’s emotional wellbeing in pursuit of his case against the mother and her husband. My reasons for refusing permission to the father to issue a subpoena for B to give evidence are published as Seaward & MacDuff (No 2) [2012] FamCA 730.
The interim orders whereby the father was not permitted to spend time with the children were continued by the federal magistrate who, on 14 October 2011, transferred the proceedings to this Court. Transferred with the application for final orders were two outstanding contravention applications filed by the father.
All outstanding applications came before me on 20 December 2011. In addition to the transferred applications, these included the father’s application for interim orders to spend time with the children which was filed on 29 November 2011 and another (third) contravention application. Essentially these related to allegations concerning non compliance with orders for telephone contact. Notwithstanding my indication that time constraints were likely to impede my ability to determine the contravention applications as well as the application for interim orders, and it was common ground that if pressed the contravention applications would have to be determined first, the father pressed the contravention applications. As anticipated, this consumed the time that was otherwise available to consider the interim application. My inability to hear the interim application was compounded by the mother (not unreasonably) electing to not file evidence in the interim application until the contravention proceedings were finalised. Needless to say, the submission made by the father’s solicitor that the Court should refuse the mother permission to rely on any affidavit evidence in the interim hearing did not find favour.
For reasons reported as Seaward & MacDuff [2011] FamCA 1041 the contravention applications were dismissed. The father’s interim application was adjourned for hearing on 2 February 2012. As one possible outcome was that an order for supervised time might be made and to minimise waiting time, the parties were ordered to complete intake procedures with contact centres.
The orders made on 20 December 2011 are set out below:
(1)That the applications in a case filed by [the father] on 10 April 2011, 22 July 2011 and 24 August 2011 are withdrawn and dismissed.
(2)The contravention application filed by [the father] on 29 August 2011 is dismissed.
(3)In relation to the contravention application filed by [the father] on 12 October 2011 to the extent that it is alleged [the mother] failed to comply with Order 7 dated 31 August 2011 on 14 September 2011, 21 September 2011, 25 September 2011, 28 September 2011, 2 October 2011, 5 October 2011 and 9 October 2011 the application is withdrawn and dismissed.
(4)I give leave to [the father] to orally amend his contravention application filed 12 October 2011 to include particulars of two alleged breaches of Order 7 dated 31 August 2011 on 11 September 2011 and 18 September 2011 as set out below.
a.[The mother] it is alleged that in contravention of Order 7 dated 31 August 2011 you failed to facilitate telephone communication between the children [B] and [J] and the father on 4 September 2011 without reasonable excuse.
b.[The mother] it is alleged that in contravention of Order 7 dated 31 August 2011 you failed to facilitate telephone communication between the children [B] and [Z] and the father on 11 September 2011 without reasonable excuse.
c.[The mother] it is alleged that in contravention of Order 7 dated 31 August 2011 you failed to facilitate telephone communication between the children [B] and [J] and the father on 18 September 2011 without reasonable excuse.
(5)That the contravention application filed by [the father] on 12 October 2011 is dismissed.
(6)That the mother’s costs of the abovementioned contravention applications are reserved.
(7)These proceedings are docketed to Justice Ryan.
(8)On the applicant father’s application the final proceedings are expedited.
(9)The final application is listed before me at 10.00 am on 21 May 2012 for four days.
(10)I DIRECT that the applicant pays the hearing fee or obtains a waiver of it by 3 February 2012.
(11)I DIRECT that both parties file and serve all affidavits upon which they rely by 6 April 2012.
(12)The Court Notes the parties may rely upon one affidavit per witness.
(13)Within seven days if reasonably practicable the Independent Children’s Lawyer shall apply to Legal Aid NSW for funding for a single expert child and adult psychiatrist to be appointed to investigate and report on matters in relation to the parties and the children.
(14)That the father’s application for interim orders filed 29 November 2011 is listed for interim hearing before Dawe J on 2 February 2012 for half a day.
(15)That the respondent file and serve a Response to the application in a case referred to above within 21 days.
(16)That the father file and serve any updating affidavit and/or other affidavits relied upon in the interim hearing by 20 January 2012.
(17)The final applications are listed for further directions at 9.30am on 2 February 2012.
(18)Liberty to the parties and their lawyers to apply for further directions on seven days notice. (original emphasis)
Further interim orders were made by Rees J on 2 February 2012 to the effect that the children would continue to live with the mother and the boys spend time with the father, supervised by P Contact Agency, three hours per week. Provision was made for B to attend if she wanted which she has not. The orders made on 2 February 2012 are set out below. Her Honour’s reasons for decision are published as Seaward & MacDuff [2012] FamCA 128.
1.I make orders in accordance with the document entitled Minute of Orders Sought by the Independent Children’s Lawyer, marked with the letter X and placed by me with the Court papers and set out hereunder:
MINUTE OF ORDER SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER
1.That all previous parenting orders in respect to [the children] be discharged.
2.That pending further order the said children live with the mother.
3.That pending further order the children [J] and [K] spend supervised time with the father as follows:-
a. Such time to be supervised by [P Contact Agency].
b. For a period of three (3) hours alternating as follows:-
i.On a school day to be agreed to by the parties from the conclusion of school until 6.15 pm at a venue close to the children’s residence at [U] and in the absence of agreement the father can nominate a day other than Friday or on which there is no sports training.
ii.Each other week on Saturday at times to be agreed at a venue in Sydney.
c. The parties to forthwith do all things necessary and complete all documents required to complete any intake procedures required by [P Contact Agency] with a view to the father’s time with the children commencing as soon as is reasonably practicable.
d. The father’s time with the children to take place at a venue deemed appropriate by [P Contact Agency] taking into account any risk assessment conducted by that organisation.
e. All costs of [P Contact Agency] to be paid by the father.
f. Telephone communications twice per week and in the absence of agreement between the parties each Wednesday and Sunday between 6.00 pm and 7.00 pm and further the mother facilitate the children communicating by telephone with the father and she may monitor, but not participate in such communication.
g. For the purpose of implementing paragraph 3(b)(i) herein the children are to be collected from their school and returned to the mother outside their school at 6.15 pm.
h. For the purpose of implementing paragraph 3(b)(ii) herein the children shall be delivered to and collected from a venue nominated by [P Contact Agency] by the mother or her nominee.
4.That the child [B] spend time and communicate with the father in accordance with her wishes NOTING THAT [B] may spend time and communicate with the father as per the terms of paragraph 3 of the orders contained herein if she chooses to do so.
5.That the father’s time with the children pursuant to paragraphs 3 and 4 of the Orders contained herein be subject to the following conditions:-
a. That the father not denigrate the mother or permit any third party to do so within the presence or hearing of the children.
b. That the father not physically discipline the children or permit any third party to do so.
c. That the father not discuss the proceedings or any issues arising out of the proceedings with the children or permit any third party to do so.
d. That the father not show the children copies of any court documents filed or prepared in respect to these proceedings or in any related proceedings.
e. That the father not attend on the children’s place of residence or school except for the purpose of compliance with Order 3.
f. That the father not communicate with any of the children by any means other than as provided for in the orders contained herein and this includes any electronic means such as SMS, text or email.
g. That the father comply with the terms of Order 8 contained herein.
h. That the father not contact by any means the mother’s employer or place of employment.
6.In the event that the father breach’s any of the conditions contained in paragraphs 5 or 8 of the orders contained herein the father’s time with the children to be suspended.
7.That the mother be restrained from the following:-
a. Denigrating the father or permitting any third party to do so within the presence or hearing of the children.
b. Physically disciplining the children or permitting any third party to do so.
c. Discussing the proceedings or any issues arising out of the proceedings with the children or permitting any third party to do so.
d. That the mother not show the children copies of any court documents filed or prepared in respect to these proceedings or in any related proceedings.
e. Leaving the children or any of them in the care of [her husband] without herself or another responsible adult being present.
8.That both parties be restrained from having any of the children interviewed by the NSW Police, JIRT, the Department of Family and Community Services, any psychologist or psychiatrist, any counsellor or any other health professional or medical practitioner except as follows:-
a. Order of the court.
b. Attendance on a General Practitioner for normal and routine medical appointments and examinations.
c. In the case of a medical emergency on a Hospital or relevant medical practitioner or health professional.
9.The parties to only communicate by way of mobile telephone or text message in the case of an emergency and that both parties otherwise be restrained from communicating with the other by any other means.
10.That the mother make each of the children available to the Independent Children’s Lawyer forthwith for the purpose of explaining the orders contained herein.
11.Pursuant to Section 68Q, the extent to which this Order is inconsistent with an existing family violence order, the family violence order is invalid.
12.That leave be granted to the parties and to the Independent Children’s lawyer to re-list the proceedings on seven (7) days notice in respect to the implementation of these orders and or any issue relating to the suspension of the father’s time with the children pursuant to the Orders contained herein.
2.I note that paragraphs 1, 2, 3(a), (c), (d), (e), and (g), 5, 6, 7 (a),(b),(c) and (d), 8, 9, 10, 11, 12 and 13 are made by consent.
3.I note that paragraphs 3(b), 3(f), 4, 5(e) and 7(e) are orders made pursuant to my determination.
4.The matter is otherwise adjourned for hearing before the Honourable Justice Ryan. (original emphasis)
Supervised contact between the father and boys commenced on
25 February 2012. This is the first time following the recovery order that they spent time with him. The supervisor’s report reveals that it went well and that the boys were delighted to see him and enjoyed their time with the father. Had they been under pressure from the mother, her husband or B to reject him, there might have been some sign of discomfort or something from the boys which hinted at this. There is nothing on that happy occasion, or indeed in the latter reports from supervisors, that suggests pressure was placed on the children to reject the father.
The next time the boys saw the father was on 1 March 2012, again supervised by P Contact Agency. Unfortunately, when the supervisor’s report issued on 7 March 2012, it revealed that in breach of Order 5(c) dated 2 February 2012, the father questioned the boys about their possible mistreatment by the mother’s husband. There can be no doubt that this was an issue in the proceedings and is exactly the type of conversation that the order was designed to avoid. The father was represented when the order was made; indeed until 24 May 2012 for the majority (if not the entirety) of the proceedings. He can have been in no doubt about the nature of the restraints imposed on that and other occasions. His breaches of orders revealed in this hearing were deliberate and demonstrate that he cannot be relied upon to abide orders with which he does not agree. Notwithstanding that the orders were suspended, the father threatened to bring another contravention application against the mother.
In relation to the father questioning the children, the supervisor reported:
I noticed [Z] and his father talking as [the father] went to attend to him. I was situated in close proximity, but struggled to hear the conversation as there were lots of children playing nearby. As I observed the pair talking, [the father] appeared to be talking with [Z] about a serious matter. [J] struggled on the rope apparatus and asked for assistance, but before I could help, he went to another nearby area of the park to play. [The father], being aware of the contact guidelines concerning supervision, seemed to realise I could not hear the conversation, and after speaking briefly with [Z], climbed down from the rope apparatus. [Z] followed his father and seemed happy as he ran off to play with his brother.
At this time, [the father] approached me and informed me [Z] had told him he was “scared” and had been “punched” by his step father. [The father] explained he did not know how to approach this and explained allegations of this nature had been made in the past. [The father] informed me [Z] and [J] had informed him of this in the past and he explained this had contributed to their current custodial issues. [Z] did not appear to be distressed and continued to play with some of his school friends that were at the park. I informed [the father] I would make a note in the report, but without [Z] making the disclosure to me, I could not pursue it. The boys seemed to be in a positive space and happy as they played with peers from their school.
Shortly after playing, the boys returned to the table to have something to eat and drink. As they were seated, [the father] questioned the boys about the statement [Z] had made. [Z] denied the statement and went off to play. [J] told his dad the statement [Z] had made about their step father hitting him was a “lie”. [J] also admitted he had made up the statement, as he thought it would help his father.
I advised [the father] it was not appropriate to question the boys and any questioning could be leading and manipulated. [The father] did not pursue it any further. Both [J] and [Z] did not appear stressed by the conversation and remained in good spirits. The boys returned to play on the equipment. [The father] seemed frustrated and took a moment to himself, watching the boys as they played. (mother’s affidavit filed 26 April 2012, annexure “R”, p 63)
The effect of the father’s breach of Order 5(c) was that the interim orders which enabled the children to spend time with him were automatically suspended. Although the mother could have agreed that the father’s time with the children would nonetheless continue, she chose not to. As will be shortly discussed, the ICL intervened and appropriately relisted the matter.
In the meantime, Dr R, who is a consultant child adolescent psychiatrist, interviewed the parties (March 2012), the children and the mother’s husband and spoke to the father’s sister, Ms T, a few days later. B refused to join the session with her father and brothers. Dr R issued a report on 17 April 2012 in which he made the following recommendations:
(1)I recommend that the children continue to reside with [the mother] and [the mother’s husband]. I don’t believe there is enough reason to continue any restrictions on [the mother’s husband’s] time with the children. I believe that they are providing well enough for the children. I also believe that they do want to support a relationship between the children and the father should this be possible.
(2)I recommend the supervised contact continue for another 6 months and if the father is able to enjoy the children without attempting to influence them against the mother or [the mother’s husband]. After 6 months I would suggest that the contact no longer be supervised should contact be going well. I would suggest weekly contact with day-time contact one day of a week alternating between [the Central Coast] and Sydney.
(3)If [the father] is able to accept that [the mother’s husband] is in [the mother’s] life after another six months then it may be possible for [the father] to be able to have substantial time with the children such as full weekend contact. However, he would need to demonstrate that he was no longer opposing [the mother’s husband] and [the mother]. He would also need to demonstrate that he trusted [the mother] and her judgement with regard to the children. He would also need to support them living and the current school placements.
(4)I recommend that both [the mother’s husband] and [the father] undertake some separate anger management classes. Although I am not aware of any habitual issues with regard to violence or physical conflict with others but there is a risk of conflict with each other.
(5)I recommend that neither parent denigrate the other adults in front of the children.
(6)I recommend neither parent use any physical punishment with the children.
(7)I recommend both parents have some separate individual counselling to help them with their respective situations.
(8)In particular, I believe that the father needs some grief counselling in order to come to terms with his feelings of loss and abandonment.
(9)Should there be further allegations by [the father] of abuse against the mother or [the mother’s husband] then this would be a worrying development. The father appears to be consumed with anguish about his losses. To date I don’t believe he has much insight into the fact that he could be damaging the children by the way his pressuring the children to make allegations. [B] is also being damaged I believed by the father’s actions. She is old enough to decide if she would like to see the father. This would only be possible if the father and she can reconcile with the support of the mother. [B] needs an apology from the father because she felt rejected by him. Should the father continue to pursue allegations against [the mother’s husband] or the mother I believe that this would be extremely detrimental to the children. In this context it would be very sad for the children who would then need to have very restricted or recognition-style contact with the father perhaps a few hours every few months. (expert’s report, pp 28-29)
Dr R was troubled that notwithstanding his recommendations, particularly recommendation 9, the father sought that 13 year old B gives evidence in these proceedings. The evidence of Dr R proceeded as follows:
HER HONOUR: Dr [R], I have a couple of questions. You said in your report, at page 25 – I’m in the paragraph, in the middle of the page where you discuss [B] – you point out that, “In order to cope with the situation” – like, two-thirds of the way down – “[B] has found it necessary to withdraw from the father.” You also say, in the final sentence following the text, “She felt extremely rejected, and this has contributed to her decision to not see him for fear of further rejection and recrimination.” And then we have you continuing on to the end of that sentence. Do you have a view about whether [the father] has the intellect and emotional capacity to understand the gravamen of what you were saying there, about [B’s] situation?‑‑‑Well, from reading his last affidavit I didn’t see any indication of that, your Honour.
And that wouldn’t be a matter of intellect, do you agree?‑‑‑No, it’s not intellect I don’t believe. I believe he has the intellect but I think it’s an emotional capacity. It’s ability to let down some of his defences to be able to perceive that he does have a role to play in [B’s] response.
Because it would be inconsistent with him being able to view the difficulties of her situation from her perspective, having read that, for him to issue a subpoena for her to come to court, wouldn’t it?‑‑‑It would, your Honour, yes.
And would you agree or disagree with the notion that it’s rather difficult to perceive a more extreme rejection by him of the matters referred to in that paragraph in taking the step that he did, that is, seek the court issue a subpoena to have her brought here?‑‑‑Well, it confirms, in my view, that he is more concerned with proving his case and trying to win a legal battle, rather than be concerned about the welfare, or what might be happening emotionally, to the children.
Has [the father] lost connection with the subject matter of the proceedings, namely, the children, and become consumed by the proceedings and the desire to win?‑‑‑Well, I think there’s a theme across his whole life over the past few years, and it would seem that the battle that he’s fighting in the family court seems to be running parallel to other legal battles, and other battles that he’s having in his life. And the family court and children, I think, should be seen quite differently from other battles, and, I don’t know – it would appear to me that the father hasn’t been able to make that quantum leap and distinguish that they’re totally different territories.
Because it’s one thing to have a battle with the liquidator, and quite another thing to – bringing an early teen daughter to court?‑‑‑It is, yes. (transcript, 23 May 2012, pp 289-290, errors as in the original)
The matter came before me on 22 March 2012. In the course of hearing whether the father’s time with the children should be reinstated, an issue arose about whether it should be on a Thursday and Saturday. Essentially, a problem had arisen in relation to the boys’ football. Not unreasonably, if the father’s time was reinstated, the mother sought to alter the dates so that the boys could attend training and their Saturday rugby league games. Her point being that if the earlier orders were reinstated and the children could not be alone with the mother’s husband, it would be very difficult for the boys to play their matches, come to Sydney and for [B] to play her sport. Continuing Thursday afternoon contact would conflict with the boys’ training sessions.
It would have been easy for the father to agree to alter the arrangements along the lines suggested by the mother. However, he resisted and for reasons unrelated to the children’s welfare and, it would now appear simply to make the situation difficult for her, the father refused. In the event, the following orders were made:
1.That the Contravention Application filed by [the father] on 16 March 2012 is withdrawn and dismissed.
2.That [the father’s] address is to be placed in an envelope and sealed, which is not to be opened other than by an order of the Court.
3.That upon the noting of the father’s undertaking on oath that he will comply with order 5(c) dated 2 February 2012 the orders made that day continue pending further order.
4.That order 3(b)(ii) dated 2 February 2012 is varied by adding the words “between 4:00 pm and 7:00 pm provided [P Contact Agency] are able to supervise. In the event [P Contact Agency] are unable to supervise after 6:00 pm the times shall be as agreed between the parties.”.
…
As it turned out, the father was unable to afford to spend time with the children to the full extent provided for in the orders and the difficulties which might have arisen did not. The father did not spend time with the boys on the Thursdays and saw them more or less fortnightly.
At the commencement of the final hearing, counsel for the ICL indicated that the ICL would seek orders consistent with the Court expert’s recommendations. It was submitted that at least initially the children’s time with the father would need to be supervised. However, because the recommendations were presented in the alternative and it was necessary for the facts to be tested before a decision could be made as to which of the alternate recommendations for the long term would be adopted, the ICL understandably elected not to provide a minute of order. In closing addresses, it was submitted that the recommendation in favour of “very restricted or recognition-style contact” between the boys and the father was the approach which should be adopted. The orders sought by the ICL were tendered (exhibit “U”) and are set out below:
(1)That all previous parenting orders in respect to [the children and dates of birth] be discharged.
(2)That the mother have sole parental responsibility for the children.
(3)That the children live with the mother.
(4)That the children [J] and [Z] spend supervised time with the father as follows:-
a.for a period of 3 hours each month, on a day and time to be nominated by the mother provided the nominated supervising agency is available at that time.
b.such time to be supervised by whichever of the following agencies the father nominates:
(i) [P Contact Agency] or
(ii) another private agency, or
(iii) Sydney Contact Centre or
(iv) [G] Contact Centre
c.If the father’s time is supervised by [P Contact Agency] or another private agency it is to take place at a venue acceptable to that agency, nominated by the father, and being in the Sydney metropolitan area or central coast area.
d.All costs of supervision are to be paid by the father.
e.Telephone communication is to occur once per week on a day and time nominated by the mother, and the mother is to facilitate the phone calls and is entitled to monitor but not to participate in the phone calls.
f.The children are to be delivered to and collected from the spend time venue by the mother or her nominee.
(5)The parties are to forthwith do all things necessary to complete any intake procedures required by the nominated agency or agencies.
(6)That the child [B] is to spend time and communicate with the father in accordance with her wishes, and such time and communication may occur at the same time as her brothers’ time and communication provided for in order 4. above if she so chooses.
(7)That the father’s time with the children pursuant to order 4 above shall be subject to the following restraints:
a.That the father not denigrate the mother or permit any third party to do so within the presence or hearing of the children.
b.That the father not physically discipline the children or permit any third party to do so.
c.That the father not discuss the proceedings or any issues arising out of the proceedings with the children or permit any third party to do so.
d.That the father not show the children copies of any court documents filed or prepared in respect of these proceedings or any related proceedings.
e.That the father not attend on the children’s place of residence or school.
f.The father is not to communicate with any of the children by any means other than as provided for in the orders, including SMS, text or email.
g.That the father comply with order 9. below.
h.That the father not contact by any means the mother’s employer or place of employment.
i.That the father do all things within his power to provide the mother with reports by the supervisors of his time with the children.
(8)That the mother be restrained from the following:
a.denigrating the father or permitting any third party to do so within the presence or hearing of the children.
b.physically disciplining the children or permitting any third party to do so.
c.discussing the proceedings or any issues arising out of the proceedings with the children or permitting any third party to do so.
d.showing the children copies of any court documents filed or prepared in respect of these proceedings or any related proceedings.
(9)Both parties are restrained from having any of the children interviewed by the NSW police, JIRT, or the Department of Family and Community Services, unless directed to do so in writing by the Department of Family and Community Services or by court order.
(10)The parties are to only communicate by way of mobile telephone or text message in the case of an emergency and both parties are otherwise restrained from communicating with the other by any other means.
(11)Pursuant to s.68Q, to the extent to which this order is inconsistent with an existing family violence order, the family violence order is invalid.
(12)The mother is to authorise the children’s schools and treating medical practitioners to release information to the father, and is to advise the father of details of all treating doctors.
This evidence is accepted. For the father to then communicate with B in the manner he has since he received Dr R’s report (particularly on Christmas Day and after the incident at X Railway Station) and issue a subpoena for her to give evidence, is not only very troubling qua his capacity to respect the children’s feelings, but will only have increased her need to withdraw from him.
Although the father suggested that the mother could be much more proactive in securing B’s participation in telephone contact and with her brothers spending time with him, pressure from the mother would place B in an even more invidious position. She is invited and reminded by the mother to contact the father but appropriately, not coerced. Coercion would be counterproductive and may result in B being in open conflict with her primary carer and her withdrawal from both parents.
Dr R explained that “[B] appears to be developing well”. I agree with him and observe that her school reports are excellent and she appears to have good relationships with her mother and stepfather.
In short, it is accepted that B has a strong desire to live with the mother and to not spend time or communicate with the father. She has a reasonably mature understanding of the family’s situation and her views warrant significant weight. For the foreseeable future her views are unlikely to soften and it follows weigh heavily in favour of the orders proposed for her by the mother.
It is clear that none of the children contemplated their future might involve a diminution in the strength of their relationship with the mother; albeit a diminution of time so that the boys can spend time with their father is their preferred view. Put differently, I am strongly satisfied that the children want their relationship with the mother to continue and from the boys’ perspective this involves living with her most of the time. For all children, these views reflect their genuine affection for her and warrant significant weight. Although there is evidence of her being angry and frustrated in their presence (particularly in 2009) and they are aware of her distrust and anxiety about the father, I am not persuaded that this has unduly influenced their views in favour of living with her or made them concerned to express views contrary to hers. Self-evidently, the boys expressed views contrary to hers. This is illustrative of the point that she has handled the difficult family situation, on the whole, with reasonable sensitivity.
A question which thus arises is whether establishing an equal time, week about arrangement along the lines proposed by the father, would be likely to jeopardise the children’s relationship with the mother. In this regard, it has been established that the father has undermined the children’s relationship with the mother and her husband and there is a real risk he might destroy what is and should continue to be their meaningful relationship with her. Such an outcome would be strongly contrary to the children’s best interests, because, amongst other matters, she has been overwhelmingly responsible for their day to day care and has provided them with a measure of security and stability which the father has not and has failed to establish that, in the future, he is likely to. These factors weigh heavily against the father’s proposals.
Although B has withdrawn from the father, as was mentioned earlier, she loves him. She has withdrawn from him because she cannot cope with his behaviour. In so doing, she has clearly demonstrated that the type of healthy and meaningful relationship she wants with the father is not available. Although it is accepted that after the father kept the children in August 2011, the mother could have been more proactive and pushed B to maintain contact with him, the mother’s protective stance was not unreasonable and does not raise questions about her obvious prior commitment to the children’s relationship with the father. In relation to B, the mother’s stance against pushing B into a relationship with the father with which the child cannot cope is appropriately responsive to the child’s situation. It demonstrates emotional awareness and, in the circumstances of this family, responsible parenting.
It follows that the mother has established that she is able to meet the children’s emotional and psychological needs satisfactorily and in a manner which the father cannot. Regrettably, it necessary to conclude that the father has demonstrated a very troubling lack of understanding of the children’s emotional and psychological needs and too often has shown that where his and the children’s needs are in conflict, he cannot be relied upon to appropriately prioritise theirs.
That said, it should not go without critical comment that the mother told the boys their father assaulted a pregnant woman. Although it is accepted that their having somehow discerned the father had been in gaol it was appropriate that she tell them the essential truth, it was unnecessary and wrong for her to go as far as she did. That she went further and gave them the details was a serious lapse of judgment. In so doing, she placed a heavy and unnecessary burden on the boys and it is testimony to their affection for the father that they do not dwell on it. It is also accepted that the children are now aware that the mother and her husband do not like the father and view him unkindly. They should have been protected from these views and it is a matter which detracts the Court being able to conclude that she remains willing and able to support the children’s relationship with him.
So that it is clear, although it is accepted that after the father was released from gaol she was willing and able to support the children’s relationship with him, the situation now is that she can be relied on to do no more than comply with orders and to not distress the children by openly and actively undermining their affection for the father.
Dr R explained that for the father to be able to have substantial time with the children and repair his relationship with B, he would need to accept the mother’s husband as an important part of the mother and children’s lives. In other words, before steps were taken to increase the father’s time with the children, the Court would need to be satisfied that he would not attempt to undermine the children’s relationship with him. Although it involves repeating matters referred to earlier, it is necessary and appropriate to again record that Dr R’s evidence is that:
… Should the father continue to pursue allegations against [the mother’s husband] or the mother I believe this would be extremely detrimental to the children. In this context it would be very sad for the children who would then need to have very restricted or recognition-style contact with the father perhaps a few hours every few months. (expert’s report, p 29)
Notwithstanding the father being afforded every opportunity to embrace Dr R’s recommendation, he has not done so. It demonstrates his selective approach to his responsibilities as a parent. Regrettably, it is necessary to record that this evidence warrants significant weight and weighs heavily against the orders sought by the father and heavily in favour of those sought by the mother and along the lines proposed by the ICL.
As must be apparent, the greatest risk to these children is the “internecine conflict”. In the language of battles, the father threw down the gauntlet which the mother has ultimately picked up. In so doing he destroyed these parents’ capacity to communicate civilly or at all about their children. Lest it be thought that the catalyst for this lies in the notion that she did not give him the amount of time with the children he wanted, his accusatory approach to her while he was in gaol and the angry criticisms which followed her decision (on medical advice) that J commence medication, establish the point that even before this he was not going to co-operate with her. His criticisms overlook that he was in gaol and had not seen the boys for the better part of a year and she did no more than implement medical advice. Put simply, the mother was acting responsibly and yet again demonstrated that she has an appropriate attitude to her parental responsibilities which she does her best to fulfil.
In any event, the father maintains his vehement opposition to the mother’s husband and the children’s lives with her on the Central Coast. It is accepted that unless the mother abandons her relationship with her husband and moves the children back to Sydney, the father is highly likely to continue to seek to undermine the children’s lives with her and be uncooperative and antagonistic towards her, even in relation to necessary parenting decisions.
Dr R said the parties’ relationship lacks a high enough degree of co-operation to support a shared parenting arrangement, even if they lived in the same location. It is his evidence that an equal time arrangement requires a degree of sophistication and cooperation between separated parents if it is to work smoothly for the children. Here, the parental relationship is so poor, even if the parties lived in the same location, the children’s lives would be fraught with angst, miscommunication and overt parental hostility.
The father made it as clear as one possibly could that anything other than an equal time arrangement, or the children being returned to Sydney so that they lived primarily with him, and anything less than equal shared parental responsibility is anathema. As has already been mentioned, he complained about the mother’s unwillingness to communicate and compromise. When it was suggested that he too might contemplate compromising his position, this was rejected out of hand.
In short, there is little doubt that orders along the lines proposed by the father involve an unacceptably high degree of risk to the children’s emotional wellbeing and happiness. This finding weighs against orders along the lines proposed by the father.
It is thus necessary to consider whether orders along the lines proposed by the mother and ICL can preserve at least the boys’ relationship with the father and possibly provide a platform for healthier relationships with him in the long term.
Dr R is concerned that restricted supervised visits for the boys with the father may ultimately see their relationship fail. It is accepted that if all the future holds is monthly or quarterly visits this is a real possibility. It is a possibility that weighs heavily and as a consequence, is a style of order that is not often made. But as the facts outlined above demonstrate, unless the children’s (but given B’s views relevantly the boys) time with the father is carefully controlled their relationships with their mother, the mother’s husband and the pleasure the boys gain in their settled and happy lives on the Central Coast, are at grave risk. From the perspective of the children’s best interests, preservation of those relationships and the indicia of their day to day lives outweigh the high degree of risk to their relationships with the father.
To a degree, the future of the father’s relationship with his sons during their minority, and in all probability B when she is no longer a child, lies with him. He has much work to do before he could be accepted as holding a sufficiently benign view and/or the capacity to protect the children from exposure to his unpleasant views about the mother and her husband and recriminations to B for what he says is her letting him down, before the framework exists for the children to have a meaningful relationship with him that is beneficial.
The mother is weary of litigation and the parties’ dispute has clearly taken a heavy toll on them and the children. Further litigation is likely to exacerbate the tension between the parties which, in turn, is likely to result in further pressure on the children. Irrespective of what orders are made there is a risk of future litigation. Indeed, the father all but promises it. Any order that involves direct cooperation between the parents or creates even the remote prospect of ambiguity, makes future litigation all but certain. The father’s contravention applications which have involved numerous counts alleging non-compliance with telephone contact orders, makes orders for telephone contact contraindicated. He has been unsuccessful yet this did not cause him to reflect on whether his applications should have been brought at all. That he threatened a further contravention application following the release of the 7 March 2012 supervisor’s report, is illustrative of the point that the father is likely to threaten litigation which cannot succeed and which in lay terms at least, is vexatious. The approach that will be adopted is to make orders as precise as possible on the basis that they are designed with the aim they might endure and to moderate the risk of future litigation.
There is considerable overlap between s 60CC(4) and s 60CC(4A) with s 60CC(3). There are no further matters which require consideration.
Conclusion and structure of the orders
When making a parenting order, the Court must apply a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility. The presumption does not apply in the circumstances specified in s 61DA(2) and may be rebutted if the Court is satisfied its application would not be in the children’s best interests.
There is no doubt that an order for equal shared parental responsibility would provide fertile grounds for parental dispute which would see the children’s needs held hostage to this terrible parental relationship. Although many issues will be resolved by this hearing, the magnitude of the issues and litigation in this and other courts strongly indicates that the parties will continue to disagree on parenting matters. Central to their incapacity to resolve disagreements is their lack of capacity to communicate and problem solve.
If one thing is certain, it is that an order for equal shared parental responsibility will increase the risk of ongoing parental conflict which would be stressful for the parties and the children. Even in the long term their capacity to communicate is unlikely to improve. Almost certainly, decisions which would need to be taken in a timely way would languish unresolved. Such a situation is untenable for the children and their best interests require that one parent has sole parental responsibility.
Having determined that there will be sole parental responsibility, the children’s living arrangements are “at large” as those words are used in Goode & Goode, and to be determined in accordance with their best interests. This necessarily involves the application of the Court’s findings discussed in the context of s 60CC.
There is ample evidence that the children are settled and happy in the mother’s care. They are content with their lives on the Central Coast and it is there that she is best equipped to continue to attend to their needs. It is not accepted that in Sydney she could readily recreate the comfortable and secure lives which she has established for them on the Central Coast. Relocation would be expensive and as was mentioned earlier, it cannot be assumed that the flexibility she has with her current employer would be replicated.
The mother, to a far greater degree than the father can, is able to meet the children’s emotional and psychological needs. Changing the children’s circumstances so that they spend a significant amount of time in the father’s care, or live with him, cannot be achieved without jeopardising their emotional and psychological wellbeing. The children would not welcome it and it would be a terrible burden to place on B. Simply put, the evidence against the children being removed from the mother’s primary care is very strong.
The impossibly conflicted relationship between the parties and the effect this has and is likely to continue to have on the children stands in the way of anything other than limited supervised time for the boys with the father and B should she wish to accompany them. Only supervised time provides the children with the necessary level of protection from pressure from the father to align with him and ongoing antagonism towards the mother, her husband and the children’s lives with them. Supervision also moderates the risk that the father might speak to the boys in the accusatory manner he used in his communications with B. It weighs heavily that this puts their relationships with their father and paternal relatives at risk in the long term and deprives the father and paternal relatives of the opportunity for a meaningful involvement in his children’s lives. However, for this family the sad reality is that the weight of the evidence demonstrates that any other outcome jeopardises not only the children’s relationship with the mother but their stability and emotional and psychological wellbeing.
Although the boys would like to spend more time with the father, they are used to spending time with him in a supervised setting.
As to the amount of time, the ICL’s proposal is more generous. As the P Contact Agency reports demonstrate, the boys are able to enjoy this time with the father and the approach adopted by the ICL is more consistent with maintaining the children’s relationship with the father to the fullest extent possible than the frequency proposed by the mother. It is slightly more than recommended by Dr R but at this stage it is soon to take steps which provide virtually no incentive to the father to work to improve his capacity to be involved in the children’s lives. Although the mother was understandably perturbed when the P Contact Agency supervisor failed on one occasion to attend, this was an isolated occurrence. Time at a contact centre is more constrained and would deprive the children and father of the opportunity for the types of relaxed activities that P Contact Agency facilitates. Of course this is the more expensive option. As was mentioned supervision of this type is expensive, with costs being a factor that might limit the boys being able to spend as much time with the father as will be provided for in these orders. Hence the variety of options proposed by the ICL is sensible, with other less expensive options. The costs of supervision will fall on the father. The mother is unable to contribute towards those costs.
In short, the arrangements proposed by the ICL provide the best balance between relationship and risk issues.
That said, an order for regular telephone contact is contraindicated. It is fertile ground for dispute and a fixed time lacks the flexibility needed to accommodate busy children with busy lives. In this respect, the orders proposed by the mother strike the better balance albeit, the father will be troubled by the lack of certainty. Although it is accepted that this may result in the children not having regular telephone contact with him, it has not been possible to formulate orders that would achieve certainty without creating certain conflict.
Otherwise the orders provide for the provision of information, facilitate supervised time and impose restraints in relation to certain aspects of how the children are to be treated. These are designed to protect them as best the Court can from the types of risks explored during these hearings. So that it is clear, the injunction in relation to the children being taken to authorities does not purport to limit those agencies’ capacity to fulfil their statutory obligations and responsibilities.
Finally, so as to ensure there is not another incident of the type when the father approached B and followed her to the railway station, he will be restrained from communicating or approaching the children other than in accordance with these orders. The order will ensure that this includes places where the children are likely to be.
Although the mother and ICL sought more extensive restraints they did not establish a proper basis for those orders.
For these reasons I am satisfied that the orders identified at the beginning of this judgment are in the children’s best interests.
I certify that the preceding three hundred and thirty seven (337) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 19 June 2013.
Associate:
Date: 19 June 2013
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