Sellen & Treadway (No 2)
[2022] FedCFamC2F 1379
Federal Circuit and Family Court of Australia
(DIVISION 2)
Sellen & Treadway (No 2) [2022] FedCFamC2F 1379
File number: HBC 58 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 27 January 2022 Catchwords: FAMILY LAW – sentence on contravention – bond – parenting application – mother in Australia with children – father in New Zealand – weight to children’s wishes – frequency and mode of communication time with father disputed – evidence inadvertently led contrary to section 102NA(1)(iii) (order for personal protection of a party) – evidence admitted pursuant to section 138 of the Evidence Act. Legislation: Evidence Act 1995 (Cth) ss 138, 140
Family Law Act 1975 (Cth) ss 60CC, 102NA, 102NB.
Division: Division 2 Family Law Number of paragraphs: 55 Date of hearing: 22 January 2021, 23-25 June 2021, 10 August 2021 and 27 January 2022 Place: Melbourne Counsel for the Applicant: Ms M A Ryan Solicitor for the Applicant: PWB Lawyers Solicitor for the Respondent: In person ORDERS
HBC 58 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SELLEN
Applicant
AND: MR TREADWAY
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
27 JANUARY 2022
THE COURT ORDERS THAT:
Final Parenting Orders:
1.All extant parenting orders are discharged.
2.Ms Sellen (‘the Mother’) have sole parental responsibility for X born in 2005 (‘X’) and Y born in 2006 (‘Y’) (collectively ‘the children’).
3.The children live with the Mother.
4.The children spend time with Mr Treadway (‘the Father’) as agreed in writing, email or text message, between the parties and taking into account the views expressed by X and Y, and in the event of a dispute as to what was agreed, the last communication from the Mother (in writing, email or text message) stands as the agreement.
5.Both parties not be under the influence of any illicit substance or alcohol to the extent of intoxication when the children are in their care.
6.The parties must not:
(a)Harass, abuse or threaten each other nor permit third parties to do so;
(b)Denigrate each other to or in the presence of the children nor permit third parties to do so.
7.Within 14 days of the date of these Orders the Mother will provide the Father with the mobile telephone numbers for X and Y.
8.The Father may communicate with X and Y by text, videocall, phone call or other electronic means at reasonable hours and with reasonable frequency.
9.The Mother do all acts and things to encourage X and Y to communicate with the Father, including their initiating communication on the Father’s birthday and on Father’s Day or if the Father has initiated communication on either child’s birthday.
10.The Father be and is restrained from and is ordered to not criticise, abuse or belittle X or Y, particularly, but not limited to occasions either child declines to communicate with the Father at all or at the time he proposes.
11.The Mother provide electronic copies of photographs of the children to the Father each quarter (each quarter being defined as on or before 31 March, 30 June, 30 September and 31 December) and provide further photos as the children may agree to from time to time.
12.The Mother provide electronic copies to the Father of the children’s school reports mid-year and at the end of the school year and not later than two weeks from the Mother’s receipt of such documents from the children’s school/s.
13.The Mother take all steps necessary to cause a copy of these parenting Orders to be registered as an overseas parenting order with the District Court of New Zealand pursuant to section 81 of the Care of Children Act 2004 (NZ) and she provide the Father with evidence that these Orders have been so registered.
14.All extant applications are dismissed.
Procedural:
15.The Father’s contravention application against the Mother filed 6 April 2020 be and is dismissed.
16.Counts 12, 10, 9, 8, 4, 7, 6, 5, 3, and 1 (chronological order) of Mother’s contravention application against the Father filed 5 November 2020 are proven and the Father is ordered to enter into a bond pursuant to section 70NEC of the Family Law Act 1975 (Cth) within seven (7) days.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Sellen & Treadway (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
introduction
These are the settled reasons of the second judgment in this matter. These reasons should be read with the first judgment which was delivered earlier today, dealing with findings in the contravention applications. These reasons address the sentencing and the final parenting orders after findings about contraventions were made (first judgment) and the parties addressed me as to penalty and as to the variation of parenting orders each seeks on their applications for final orders.
I am going to order that Mr Treadway (‘the Father’) enter into a bond to:
(a)strictly comply with order 5 of the 2015 final orders or any like provision; and
(b)be of good behaviour in regard to any communication with the mother and/or the children X, Y and/or Ms B.
A bond was pressed as appropriate by the Mother and I accept those submissions, notwithstanding how seriously I regard the proven contraventions.
An unusual procedure had been adopted where the three different proceedings have been heard together. These hearings are normally conducted entirely separately from start to finish and, if necessary, before different judges over different times. This procedure was appropriate in this case because the evidence that the parents relied upon in regard to the variation of the final orders that each sought overlapped with and coincided with the evidence that related to the contravention applications.
The parenting application
The Mother’s Case
The Mother's initiating application in substance sought that the existing orders be reproduced but with the significant change that the children subject to these proceedings, X and Y (‘the children’), have the option or choice whether or not they communicate by telephone with their father each Sunday at 4:00pm. At the end of the case, Ms Ryan counsel on behalf of the Mother tendered exhibit M7 which set out different orders that she sought, which are as follows:
•Orders in terms of Orders 1-5 of the orders dated 26 August 2015, except that [Ms B] will be removed as a subject child.
•That within seven (7) days of the date of these Orders the mother will provide the father with the mobile telephone numbers for [X] and [Y].
•That the father may communicate with [X] and [Y] by text, videocall, phone call or other electronic means at reasonable hours and with reasonable frequency.
•That the mother will encourage [X] and [Y] to communicate with the father, including their initiating communication on the father’s birthday and on Fathers Day or if the father he has initiated communication on either child’s birthday.
•That the father will not criticise, abuse, belittle or speak negatively to [X] or [Y], particularly, but not limited to occasions either child declines to communicate with the father at all or at the time he proposes.
•Orders in terms of Orders 2-3 of the Orders dated 28 November 2018.
•All other parenting orders are hereby discharged.
•That all extant applications are hereby dismissed.
The Mother's case was that the children had a poor relationship with the Father and were troubled, and at times traumatised, by the circumstance of being compelled by their mother to communicate with the Father in the context of the Father's communications being conflictual with the children.
The Mother's case before me relies upon the great bulk of communications between the parents and snippets of the communication between the children and the Father. The Mother's case is that the Father, whilst being highly critical of her in her provision of communication between the Father and the children, has himself been either inconsistent, or not entirely consistent, in his communication with the children pursuant to the existing Court orders. Her case had been that the children should decide themselves whether or not to accept or participate in the telephone call on her phone at 4:00pm on each Sunday or each second Sunday but by closing was varied as provided in M7 (above).
I note that when I was unable to proceed with the case (for the reasons that I have set out in the reasons for judgment on the contravention applications, the first judgment), on an interim basis I ordered that the telephone communication on the Mother's phone be fortnightly instead of weekly. I note that order was made against the strong opposition of the Father and his then counsel.
The Father’s case
The orders that the Father sought were set out in Exhibit F1 at the start of the case which are as follows:
1.2x skype call per week Wed 5pm and Sunday 5pm.
2.Minimum 20 mins per child per skype call.
3.Calls to be private ie: mother not to listen in.
4.Call preferably to be on [X] and [Y]’s private phones not the mothers.
5.Extra skype calls xmas day, Father’s day. Birthdays. New Year’s Day. Graduations.
6.Skype grandmother in NZ 1st sunday of every month.
7.Make up time within 36 hours regardless of who cancels.
8.Photo and video share app. Children to use once per week.
9.Pick up any money I send the children within seven days.
10.Shared parental responsibility.
11.Access to schools and sports.
12.Children can contact me whenever they want to.
13.The children’s phone numbers.
14.Children to skype their cousins in NZ on their birthdays.
15.Children to attend grandmother’s funeral in NZ when she dies.
16.Order relating to alcohol be removed.
17.Children to attend fathers wedding in NZ when it happens.
18.The children live with the father if the mother dies.
19.If the father returns to Hobart all orders are to stay current plus the father have contact with the children 2 x four hour sessions per week, handover at [[H] beach].
20.Children holiday in NZ for a minimum of one month every summer.
21.Plus two weeks in mid term holidays. Father provides flight, accommodation, food etc.
The Father's case varied from time to time depending upon how emotionally affected he was from the circumstances that he perceives himself to be in. The Father genuinely feels (and I regard his feelings as genuine) that he has been prevented from having an appropriate relationship with his children in large part by the Mother. The Father's case was at times that the Mother had effectively double-crossed him on their agreement that he would transfer a property to her in return for the children not being used as pawns in the matter.
He regards the Mother's family as influencing her adversely and he has highly negative feelings in regard to the Mother's parents. The Father's case is that he did not and does not have a problem with alcohol and that Dr J’s observations are not accurate. His case was that the communications (that I have dealt with by way of finding that he has breached paragraph 5 of the orders) were driven by his frustration at the Mother's unreasonable attitude to supporting his relationship with the children. Fundamentally, the Father saw the relationship between himself and his children as being entirely the responsibility of the Mother.
When the proceedings resumed in June 2021, there was a significant shift in the Father's attitude, at least at times. In June 2021, the Father apologised for the volume and nature of the communication and said that he took responsibility for that. However, when pressed to explain something in the witness box, the Father demonstrated his inclination to anger quickly and to become frustrated quickly. When frustrated, he did on many occasions ramp up or exaggerate his case and at those times he exaggerated his criticisms of the Mother before calming down and returning to a more balanced approach. Hence, when I go to describe the Father's case, I really need to say that it was highly blaming of the Mother at times, and at other time he was seeking to take responsibility. Those two different positions could be mixed in together, and in the one answer to any proposition the Father could both attempt to take some responsibility for his behaviour for his relationship with the children, and yet blame the mother for almost everything at the same time or in the same breath.
The Court was not assisted with any current psychiatric or psychological material in regard to either parent, save for the section 11F analysis and the 2015 report of Dr J, which is by way of a truncated family report; not a psychological or psychiatric examination. However, there is no doubt the Father's feeling that the Mother is responsible for the position in which he finds himself is genuine and, to him, compelling.
It is now common ground that in the lull between the August 2021 sitting of this Court and this day, of the day after Australia Day in 2022, the parents have had, for the first time for many years, two reasonable telephone conversations. There remains a dispute about who initiated one of the calls and how long it was, but it is common ground that there was a lengthy discussion where the Mother shared with the Father the practical difficulties of raising teenage children in 2020 (during a pandemic). That is one tiny glimmer of hope in this otherwise tragic case.
The Father's case is that he has much to offer his children and that they would benefit from his parental involvement by reason of his intellect, worldly experience and the reality of who he is. The Father has had a genuinely interesting series of occupations and occupations that require skill and intellect. I am satisfied that the Father is highly intelligent and when things are going well, highly capable in the day-to-day world. He has worked as a professional, a builder and currently has some expertise and qualifications in building management prior to the settlement in a conveyancing transaction in accordance with New Zealand law. This is a responsible position and requires a degree of expertise and responsibility. Hence, I accept the Father's case that he has much to offer.
The difficulty for the Father's case is that I do not accept the proposition that the Mother is entirely responsible for the state of the parental relationship and the state of the relationship between the Father and the children. I do accept the Father's position that the current state of those relationships, as they were described in the evidence and the text and emails, is indeed tragic and very sad. At times, the Father was driven to tears when trying to deal with that. At times, I felt like crying myself, it was so sad. If the parental relationship was better and if the Father was able to control his frustration and his tendency to revert to blaming and anger, that relationship with the children may be much better.
The Mother’s counsel, in final address, has suggested that the Father would be assisted by some professional assistance and by that, I take it she is meaning to some psychological therapy or counselling that would assist the Father have insight as to how to deal with his children and their mother. There are courses available in certainly Victoria and equivalents in Tasmania, such as Tuning Into Teens. Many parents find that they need (or at least are assisted by) expert therapy or assistance. Many parents find obtaining the assistance from such courses to be of great assistance to them. However, I do not propose to order that the Father undertake any such course. I do accept counsel for the Mother's submission that the Father would be assisted by some therapy or assistance in how he communicates with his children.
By the end of submission, the Father's case was that he agreed in substance with the new orders put forward by the Mother, but wanted them to be supervised for three months so that the Mother could use her authority as a parent to compel the children to communicate with him. Otherwise he feared the end of that relationship and communication until at least the children were 18 years old. I accept that what he has told me he regards as genuine. However, I do not have any evidence that since Ms B has turned 18 and he has been able to communicate with her directly via her own mobile phone, that relationship between he and Ms B has improved greatly. But that relationship now gives him some joy and satisfaction with him being able to participate in her life.
The Section 11F Report
The parties and the children attended a section 11F conference in May 2020 with a family consultant, some key observations are as follows:
•The family consultant gained the impression that [the father] is well meaning in his desire to be more actively involved in the lives of his children. The stress for the children associated with being required to talk to their father needs to be considered alongside the possible outcomes for the children if they have no communication with him, as seems likely if they call him in accordance with their wishes. There are many factors that contribute to the future positive mental health and other outcomes for children; however it is broadly considered to be emotionally beneficial for children to grow up knowing each parent and having each parent involved in their lives to the fullest extent that is possible and appropriate.
•It is therefore suggested that Court ordered communication once a week continues, albeit this is contrary to the children's wishes. Ideally each child would be given as much choice as possible about the timing of any weekly call. However in light of the conflict between the parents and the alleged contraventions of orders a specified time that could be changed by agreement between each child and their father might be more pragmatic.
•It seems preferable that the children use some other communication device instead of the phone of their mother… If the children have a means to communicate directly with their father; it may reduce the extent that the children are exposed to the parental conflict and [the father] may have more opportunity to build his relationship with them.
[Emphasis added]
Applicable Legal Principles
The standard of proof in this case is the balance of probabilities and I will apply section 140 of the Evidence Act1995 (Cth), which is as follows:
Section 140 Civil proceedings: Standard of Proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
I must take into account, when making parental orders, the best interests of the children. In determining how to make orders that are in the best interests of the children, I must take into account the two primary considerations under section 60CC Family Law Act 1975 (Cth) (‘the Act’) and the additional considerations under section 60CC(3) of the Act. The primary considerations are that I must take into account the benefit of the children having a meaningful relationship with both parents and the need to protect the children from abuse. Section 60CC(2A) of the Act says that I must give greater weight to the second or protective primary consideration than to the first; a meaningful relationship. I must then take into account all of the matters under section 60CC(3) of the Act which are as follows:
Section 60CC How a court determines what is in a child’s best interests
…
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
…
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In this case, the existing order is that the Mother has sole parental responsibility for long-term decisions relating to the children and the Father does not quarrel with that.
I consider that there is benefit to the children of having a meaningful relationship with their father, however there is the need to protect the children from physical or psychological harm. For the children to be exposed to the vitriolic opinions of the Father about their mother would be harmful to them and they must be protected from that. The issue for me is the extent to which the Father will be able to contain himself when things do not go well in his communications with the children.
I pointed out to the Father the practical reality that for almost the entire teenage years of the children they have been in another country and his only communication with them has been via telephone. The reality is that children of X and Y's age do not always cooperate with and get on with the parent in whose household they are living. The parent who is separated from the children and only has telephone communication sometimes only sees the joy and the satisfaction that the other parent has from their relationship with the children. In this case, the Father only sees the joy the Mother gets from the time and care and interaction she has with the children. That is all he sees. He does not see, because he has not experienced it, the other side of the coin of raising children of that age. Some children are really what is described as "good" children and will cooperate with parents. Some children are difficult. Some children are both; one day they are difficult, the next they are good. They may be difficult for months, then good for months. The Father has not experienced that reality and conundrum of parenting teenagers.
The other conundrum of parenting that the Mother has had to deal with is the issue of the extent of discipline that she applies in her household and to the children's activities, including their behaviour at school. The careful graduation with the parent constantly wondering: “do I apply a little bit more pressure or discipline here because I get pushback, or should I apply less and then the behaviour may get worse? What if the behaviour is worse anyway and I get more pushback and grief in the home?”. The Father has not experienced that. He has only experienced telephone communication which has at times, I accept, been good and at times been poor and very poor. Notwithstanding that, I conclude that there is a benefit to the children of a meaningful relationship with their father.
I must consider any views expressed by the children. The views of X and Y are that they resent being forced by their mother to have communication with their father and they have been stressed and troubled by the communication with their father and the conflict that that engenders between them. I find that that conflict is partly related to the Father's tendency to become frustrated and to speak out very quickly but also partly by his desire to have what he sees as proper parental discipline over the children.
To be able to have a parental relationship capable of having parental authority and discipline by telephone only, over the Tasman Sea, is extraordinarily difficult. In one sense, the Father can be admired for attempting to maintain a position of parental authority and discipline, rather than merely seeking to become the children's laissez faire best friend or at least just one more friend that they speak to. Hence, he must be given credit for not abandoning that position of attempting to have discipline and authority with the children. However, I find that has partly contributed to the poor relationship that he has with the children or the poor relationship that he has had at times.
The other matter that has contributed to that poor relationship is the parental relationship between the parents. Which comes first is a chicken and egg question. The Mother's communication to the Father has on occasions, as described in the exhibit M4, been supercilious and sarcastic. The inevitable feelings of the Mother towards the Father when she has been at the wrong end of abuse and denigration is obvious. Anybody that gets abused thinks poorly of the abuser, whatever the starting point of that abuse was. Hence, the tragic dynamic in this case was that the worse the children's relationship with the Father was, the more the Father regarded the Mother as being responsible for that and the less he was able to contain himself from abusing her over and over in text messages. Hence, the worse the parental relationship became, the children inevitably (because they are not two and three years old) became aware of the dynamic of blame and abuse to the parent that they regarded as dear to them, and hence things got even worse, not better.
I am unable to find the exact proportions of responsibility for all of those matters. But I can and do find that the poor parental relationship is not the entire fault of the Mother's, but relates very much to:
·the Father's interaction with the Mother;
·the Father's interactions with the children; and
·the Father's steadfast and ironclad view that wrong has been done to him in the past by the interaction with the maternal grandparents.
Those difficulties are escalated by Dr J's description of the events of what I will call “the great inter-generational punch-up” that occurred in the presence of the children and the effects of which are still being felt this day. Dr J (the 2015 family report writer) described that event as follows:
5.[The Father] described in detail the incident that ensued at his home after the party while he was cooking dinner for the children. He reported that he had been provoked into a verbal and physical altercation with the children’s maternal grandparents, and that [the Mother], her boyfriend and [Ms B] were “stationed” up the road filming everything on video.
6.[The Father] provided an account of the incident which was consistent with that reported in Police records, however his self-report initially minimised his level of intoxication. He described that the children witnessed their maternal grandmother hitting him to the face, and saw him “lose the plot”. He described that the children saw their maternal grandfather punch him, and “then I knocked him out”. …
…
47.An incident report [(police)] was also included in the FVMS relating to the [same] family dispute on the 25th of March 2015 at [the Father’s] home, involving a physical altercation between him, his mother-in-law and father-in-law in the presence of the children. The Police tested [the Father’s] blood alcohol level after the altercation and it was found to be extremely high (BAC=0.328). …
The children have strong views. I must take those views into account in two ways: what their views are and the effect of compelling the Mother to compel the children to do things that they do not want to do.
I need to take into account the nature of the children's relationship with their parents and that relationship is largely as described in the 11F report.
I need to take into account the extent to which the parents have taken into account, fulfilled or failed to fulfil their obligations to maintain the child. The Father has told me today that he could have done more when he moved to New Zealand to obtain employment and assist the Mother supporting the children financially. The Father has on occasions not called the children or called at times other than Court ordered, however by and large to the extent that it is within his ability, the Father has fulfilled his obligations to maintain the children. The Mother has fulfilled her duties of providing for the children in an exemplary manner in difficult circumstances.
I find that at times the Father has suffered from alcohol abuse and that is likely to have impacted on his ability to have obtained and kept paid employment. The recent path that he is on may last, it is to be hoped it does, but given the findings of Dr J as to the Father's alcohol problems in the past, the Father's current optimism about his financial future may be optimistic. The Father has maintained by and large most weeks, week in, week out, attempts to communicate with the children on a weekly basis in accordance with the Court orders. He has done so at times when that communication and attempts to communicate with the children has caused him great personal pain and difficulty. In those circumstances, he has stuck at it. Unfortunately, he has also stuck at maintaining a position of blame towards the Mother.
I am also required to take into account the likely effect of any changes in the children's circumstances and the practical difficulty and expense of the children spending time and communicating with the other parent. There is a real practical difficulty in the children travelling to New Zealand to spend time with the Father and the Father travelling to Tasmania to spend time with the children. The major practical difficulty about that is the state of the relationship.
The Father has, not surprisingly, expressed real difficulties about the trouble and expense of travelling from New Zealand, only to find that he spends very little time with the children. He blames that on the Mother. Of course, that is partly influenced by the Mother but that is mainly influenced by the Father's relationship with the children. Just like when the Father is communicating with the children by telephone, there is a poor and troubled relationship. That same relationship exists when the Father turns up in Tasmania hoping to spend days on end, including overnights and holidays with the children. It is the same poor relationship. It is unrealistic to expect that relationship to improve and become better just because the Father is present.
Of course, on a human level, I can understand his frustration and difficulty that when he goes to that expense, looking at it from a glass half empty perspective, all he gets to have is a pizza with the children. That is one hell of an expensive pizza. The difficulty is that he puts the blame solely at the feet of the Mother.
The real issue is that the effect of the change of the orders now proposed whereby the Father will have access to the children's personal phones and be at liberty to communicate with them at all reasonable times, with the Mother having the obligation to promote that contact where it is at reasonable times. The Father fears that that change will mean that the children will simply switch off their phones and will not talk to him at all. There is a risk that that may occur.
The alternative that the Father proposes for the telephone time is that the Mother be compelled to supervise that time and to use her parental authority to make the children speak to him in a respectful and ordinary child-parent relationship, to the extent there is such a thing. The difficulty I find with that position is that the children are 14 and 15 years old and have been through a bit. These are not cosseted, naïve, over-protected children. For better or worse, they have been exposed to their parents' poor relationship. They have been exposed to conflict and disharmony with their father when he has been attempting to communicate with them.
I note at this point of these reasons that the Father is doing his best not to cry but is unable to contain himself and I have some sympathy for him. His situation is truly sad.
Nonetheless, I have to assess that and this criterion under section 60CC(3)(b)(i) of the Act (nature of the relationship) is the key criterion that will determine my decision in this case. In this case the question was whether to remove the line of communication where the Father can only communicate with the children on the Mother's telephone, in uncertain circumstances. That communication has brought trouble, including the children looking at the text messages that their Father has sent while talking to him on the Mother's phone and putting the burden and responsibility on the Mother to ensure that that communication occurs. That is compared to the Father having the responsibility to make that call and the children managing that communication.
On balance, I find that it is in the children's best interests that they have that responsibility to accept the calls or not. I find and I accept that the Mother will do what she can to encourage and support the re-building of that relationship. The Father does not trust that at this point in time. I do not yet know whether the Mother will be successful in supporting that. It may be that that process will take some time. The Mother has proposed an order that she encourage the children to do that. I find that she will. I find that she will largely, but not entirely, be able to put aside her own understandable personal feelings in regard to Mr Treadway, having been at the wrong end of abuse, as a victim, over many years. In some ways, these proceedings have assisted the parties to communicate in that at least the Father has had the opportunity to reflect on circumstances from the Mother's point of view, and I find that he hitherto has not been able to do that.
The section 60CC(3)(f) of the Act criterion of the capacity of the children's parents to provide for the needs, including the emotional and intellectual needs of the children is significant. The Mother has, I find, an appropriate capacity to care for the children's emotional and intellectual needs. The Father's capacity to care for the children's emotional needs, as they are at this point in time as teenagers, is limited. It is limited because I find that he is stuck in the time when the children had a relationship with him last. He sorely misses the children as they were at that time and his relationship with them as it was. They were then very little and they are now teenagers.
The tragedy of this case is that the Father and the children have missed out on each other’s company, growth and having the rough edges of each other's personalities smoothed off over many years. That simply cannot be undone by any order that I make. However, I find that the Father has sufficient emotional capacity to care for the children's needs in the circumstances where they will now have the ability to communicate with him or not, according to their wishes. In those circumstances he will be able to moderate his emotional outbursts and promote that relationship rather than further damage it. Nonetheless, I find that that will be challenging for the Father at times.
I am to take into account the children's maturity, lifestyle and background. The major issue is that these are 14 and 15 year old children. The evidence demonstrates that matters as important as when they go to school and how they behave at school cannot be controlled by either of their parents. The manner in which they communicate with each of their parents cannot be controlled by either parent, given their ages. The maturity of the children at their ages compels me to give very significant weight to their views. Their views were that the compulsory 4:00pm time (with the Father being inflexible) was burdensome. The time and inflexibility of it was burdensome, as was the children's exposure to the atmosphere of conflict between the parents every time they called.
I sincerely hope that we will not meet these children in therapy in years to come where they have a difficulty with those experiences of 4:00pm every Sunday, not just about speaking to their father and the memories of it but the whole issue of every time the call was made and they were compelled to listen by their mother. They were compelled to be exposed to the terrible fact of the terrible conflict between their parents. Hopefully that conflict, that has been coming about 4:00pm most Sundays, will not always traumatise them and the children will be able to deal with that, get on with life and have responsible relationships with employers, their siblings, neighbours, partners, spouses and their own children.
I am to take into account whether it would be preferable to make an order that is least likely to lead to the institution of further proceedings. Both parents have asked me to make orders that finalise this matter and both parents are emotionally exhausted by the trauma of turning up to Court, putting their case, contradicting the other and having to listen to a judge set out in reasons what the judge finds.
I am also to take into account any other fact or circumstance that I think is relevant. A further matter that I think is relevant is that the Father's apologies to the Mother in June 2021 were significant. Nonetheless, they are followed by the evidence that is in the text messages of exhibit M1 which shows the Father continued up until 13 June 2021 to send abusive text messages to the Mother. However, the Father has now made statements via his final address and in his addressing of penalty in regard to his current view of those communications to the Mother that hitherto he had never made. Hitherto, not only did he not apologise, but at the same time he was repeating abuse of the Mother whilst bringing contravention applications against her and threatening to bring more of them. Both parties have been stressed by the issue of contravention applications and the likely range of penalty. I find that the Mother has been more stressed as to that than the Father. The Father unfortunately proceeded on the basis that the parental sins of the Mother (in his view, alienating the children and refusing to facilitate their time) far exceeded his parental sins (of abusing the Mother contrary to a Court order). He was unable to contemplate and keep all of those things in an appropriate balance.
I do take into account that the Father has, this day and during the proceedings at least in June and August 2021, attempted to see things from the Mother's point of view and has shown some insight at the potential consequences of his own behaviour.
Coming then to the orders that I will make, I have determined that it is not appropriate to make the orders as set out in the Mother's original application (which was going to continue the 4:00pm phone calls on the Mother's phone). I take into account the significant change in the Mother's case with the assistance of her counsel in the orders that are now sought. I will make those orders as set out. I do intend to continue to compel the Mother to provide electronic copies of the school reports.
I must address another key part of the Father's case and that was whether he can have access to schools and teachers himself. The Mother's response was that this should be limited because of the Father's entrenched view of the Mother being the source of problems between him and the children and the source of all of the children's behavioural problems. She argues that so entrenched is that view that he simply causes trouble for the children and the Mother at the school when he communicates with them. The Father asked the hypothetical question: isn’t it a perfectly reasonable thing for a parent to communicate with the school and the children's teachers? The Father is entirely correct, it is a perfectly reasonable thing and in the children's best interests because ordinarily a parent having some input and response from a child’s teachers is of assistance to a child and promotes their welfare. However, I am not persuaded that the Father yet has sufficient control of his emotions, when he is upset at the lack of his relationship with the children, that he can actually be involved in the children's sphere and space without interfering. His interference would not be intentional but it would be when he is unable to help himself. The substantial risk is that his frustration at his circumstance will lead to him emotionally and verbally lashing out. For those reasons I am not prepared to make the order that the Father seeks. Hence, the Father needs to continue to have the school reports provided by the Mother and the orders will be made with all of the detail that were contained in the previous orders which provides set times for those to be provided.
Father’s application – illegally obtained evidence
On 23 June 2021 the matter returned to me part-heard. The Father argued that the cross-examination that occurred on the first day of the hearing (in January 2021 when the Mother personally cross-examined the Father) was illegally obtained evidence as it was evidence obtained in breach of section 102NA of the Act. I relied on section 138 of the Evidence Act 1995 (Cth) which allows me to use my discretion to admit illegally obtained evidence, as follows:
Section 138 Discretion to exclude improperly or illegally obtained evidence
(1)Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Neither party was aware of the provisions of section 102NA(1)(c)(iii) (injunction for personal protection), but only contemplated whether a family violence intervention order was in place. There wasn’t one. The purpose of Division III of Part XI of the Act is to protect the Mother from the trauma of personally cross examining the perpetrator of family violence, the Father. The Father was represented. The Father was appearing via video link from New Zealand and within the conditions contemplated by section 102NB. The Mother was not traumatised by her cross examination of the Father and was doing a splendid job. The evidence obtained by the Mother cross examining the Father was inadvertently obtained contrary to section 102NA (those circumstances are set out in the first judgment).
Because of those circumstances and because the desirability of admitting the evidence outweighs the undesirability of it, I dismissed the Father’s oral application for the evidence to be inadmissible. On 23 June 2021, I made orders to that effect and reserved my reasons as to why I had dismissed the Father’s application.
Those are my reasons for so doing.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associates:
Dated: 13 October 2022
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