SENDAK & SENDAK
[2012] FMCAfam 1320
•29 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SENDAK & SENDAK | [2012] FMCAfam 1320 |
| FAMILY LAW – Parenting orders – father failed to prosecute his application – application of father dismissed – mother’s application undefended – family violence perpetrated by father against mother – father’s significant mental health issues – sole parental responsibility to mother. |
| Family Law Act 1975 (Cth), ss.61DA(1), 61DA(4) Federal Magistrates Court Rules 2001(Cth), rr.13.03A(1), 13.03B |
| Applicant: | MR SENDAK |
| Respondent: | MS SENDAK |
| File Number: | MLC 2076 of 2011 |
| Judgment of: | Hartnett FM |
| Hearing date: | 29 October 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 29 October 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Ms Devine |
| Solicitors for the Respondent: | Altavilla Vessali |
| Counsel for the Independent children’s lawyer: | Mr Marchetti |
| Solicitors for the Independent children’s lawyer: | Cathleen Corridon & Associates |
THE COURT ORDERS THAT:
The application of the father filed 11 March 2011 is dismissed.
There is leave to the mother to proceed with her application contained in her amended response dated 19 October 2012 on an undefended basis.
All previous parenting orders are discharged.
The mother have sole parental responsibility for the children [X] born [in] 2006 and [Y] born [in] 2008 (“the children”).
The children live with the mother.
Otherwise all extant applications are dismissed and the matter removed from the List of active cases.
IT IS NOTED that publication of this judgment under the pseudonym Sendak & Sendak is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 2076 of 2011
| MR SENDAK |
Applicant
And
| MS SENDAK |
Respondent
REASONS FOR JUDGMENT
These proceedings commenced with the applicant father initiating an application on 11 March 2011. That application sought parenting orders such that the parties’ children, [X] born [in] 2006 and [Y] born [in] 2008, reside with the applicant father and spend time with the respondent mother as the Court deems appropriate. That application was supported by an affidavit sworn by the father on 4 March 2011. In the intervening period, between that date and this day, 29 October 2012, the father has filed no further affidavit material. There have been orders that he do so, namely orders made on 31 August 2011 and being order number 9, and orders made on 13 March 2012 and being order number 2. The applicant father has failed to comply with each of these orders. He has failed to prosecute his application.
The father had (acting for him) solicitors at the time of the filing of the initiating application, being Austin Vincent Hoban. Those solicitors subsequently filing a notice of withdrawal as lawyer on 17 June 2011. Subsequently, the father had acting for him a further firm of solicitors, being Cinque Oakley Senior, with those solicitors filing a notice of withdrawal as lawyer on 6 March 2012. When the matter proceeded before the Court on 13 March 2012, the father completed a notice of address for service, and since that time all communication emanating from the respondent mother and the independent children’s lawyer has been addressed to the notice of address for service provided by the father.
The matter was listed for final hearing on 13 March 2012 by orders made on 31 August 2011. At the hearing on 13 March 2012, the matter was stood down at the father’s request and not ready to proceed for some time during that day. It subsequently was not able to be heard on that day, and given the lack of evidence-in-chief affidavit material filed by the father, further orders were made for the father to file and serve:-
a)an affidavit of evidence-in-chief; and
b)any other affidavit on which he sought to rely, including an affidavit from any and/or all treating psychiatrists at least 21 days prior to the final hearing.
No material has ever subsequently been filed and served by the father despite the ample opportunity that he has had to do so.
At the commencement of the hearing this morning, the father again sought the matter be stood down so that he could confer with a duty solicitor. The matter was listed as a special fixture hearing this day, and procedural fairness must be accorded to all. It is prejudicial to the mother, who is supported by the independent children’s lawyer in her application that the father’s application be dismissed, to further stand down this matter and cause perhaps its further adjournment. The father has been on notice since March this year that he is required to prosecute his application and that no further delays should occur. The father, who previously [occupation omitted], acknowledges that himself in submissions made this morning by him. Counsel for the mother referred the Court to division 13.1A of the Federal Magistrates Court Rules 2001(Cth) (‘the Rules’). The applicant is clearly in default pursuant to r.13.03A(1) in his failure to file and serve documents as required by order of the Court and in his failure to prosecute the proceedings with due diligence. The father has also failed to attend for supervised time spent with the children (as earlier ordered by the Court on 31 August 2011) and he has failed to take advantage of telephone communication between himself and the children. These matters were referred to in the family report of Dr R dated 13 February 2012 which is before me in evidence, where she says in paragraph 53(c) and (d), therein the following:
“(c) The father to date has not participated in Court orders that would have enabled him to maintain a relationship with the children. He has acknowledged neither telephoning the children, nor has he embraced the CCC’s service whereby he has both cancelled his interview with them when a vacancy arose, and subsequently sent an email to the CCC Coordinator in early February 2012 suggesting their rules were not ones he would follow and would therefore not be attending. Mr Sendak’s actions have therefore prevented the writer, and ultimately the Court, from fully assessing his parenting capacity. As such, further comment cannot be made at this time until Mr Sendak participates in the Court orders that have been made.
(d) The mother has reportedly turned on the mobile phone twice each week to enable the father to speak with the children, and the father has acknowledged he has neither taken up this opportunity to maintain a relationship with the children, nor seen fit to advise the Court he would not be doing so. As such, the writer considers it inappropriate for the mother at this time to be asked to continue to do this until such a time as the father demonstrates his preparedness to participate in Court orders and the issue of the use of a telephone to be assessed at a future time.”
The Court is asked by Counsel for the mother and Counsel for the independent children’s lawyer to dismiss the whole of the application of the father. This order is sought pursuant to r.13.03B of the Rules. The Court proposes in the circumstances outlined above to make that order and dismissal the application of the father. That leaves before the Court the mother’s application as contained initially in her response filed 21 April 2011, which was subsequently amended by amended response filed 19 October 2012. The mother, in the face of the failure to prosecute his application by the father will now be granted leave to proceed with her application, as contained in her amended response dated 19 October 2012, on an undefended basis. Statements of fact in these reasons are findings of fact, unchallenged as the evidence was, on the balance of probabilities. I note the independent children’s lawyer joins with the mother in making application for those orders as sought.
These proceedings were commenced in March 2011 by the father filing an initiating application in which he sought that the children of the marriage, [X] born [in] 2006 and [Y] born [in] 2008, live with him. At the time he filed an affidavit in support.
The mother filed a response to the father’s application on 21 April 2011. The mother sought, in that response, final orders such that she have sole parental responsibility for the children, that they live with her and that the father spend time and communicate with the children as deemed appropriate by this Court. This day, the mother relies upon an amended response filed by her on 19 October 2012. That document, the Court is satisfied, has been served upon the father and the independent children’s lawyer. The mother again seeks orders that she have sole parental responsibility for the children and that they live with her, but seeks that there be no time spent with between the father and the children. The orders sought in the mother’s amended response are supported by the independent children’s lawyer. When the mother filed her initial response document, she also filed with the Court a notice of child abuse or family violence alleging the following:
“1. That the Father has physically abused the Mother.
2. That the Father rhas (sic) verbally abused the Mother.
3. That the Father has emotionally and psychologically abused the mother.
4. That the Father has behaved in a controlling manner toward the Mother and isolated her from her family.
5. [That the] Father threatened to commit suicide on several occasions and attempted suicide on one occasion.
6. [That the] Father’s abusive behaviour towards the Mother and threats to commit suicide occurred in the presence of the children.
7. [That the] Father has been physically and verbally abusive toward the children.”
The mother relies upon affidavits sworn by her on 20 April 2011 and 19 October 2012. Further, the mother relies upon affidavits sworn by her father, Mr H, on 20 April 2011 and 17 October 2012, together with an affidavit sworn by her mother, Ms H on 20 April 2011. The independent children’s lawyer relies upon the affidavit of Dr K sworn 10 November 2011 and the family report prepared by Dr R dated 13 February 2012. Each of the mother and Independent children’s lawyer have also filed an outline of case document and they rely upon those documents.
History
The father was born [in] 1975 and is now aged 37 years. The mother was born [in] 1980 and she is now aged 32 years. The parties met in early 1999, whilst they were both studying at the [omitted]. They married [in] 2002 and separated on 3 November 2010 after a marriage approaching nine years. In that time, their children, [X] and [Y], were born; [X] [in] 2006, such that he is now 6 years of age, and [Y] [in] 2008, such that she is now 4 years of age.
When the parties separated, the mother sought refuge with her parents, and the following day, the mother collected the children from the former matrimonial home. Since that time, they have remained living with her. The mother had earlier left the home on two occasions; the first in October 2009, and the second in March 2010, but on each occasion she did not take the children with her and returned a short time later. The mother has lived with the children, [X] and [Y], in the maternal grandparents' four bedroom home in [suburb omitted] since the separation in November 2010. Each of the children has their own bedroom in this home.
The mother works full-time as a [omitted], between the hours of 10am and 5pm, and she is assisted by her parents in the care of the children, where necessary, including their transportation to and collection from school and kindergarten/child care each day. Since separation, the father has been in receipt of Centrelink payments and not in employment. He was homeless for a time, following his eviction from the marital home in [S], as he had not kept up with the rental payments. He now lives in [omitted], in a standard of accommodation unknown to the Court.
Following the separation, and on 8 November 2010, the mother applied for an intervention order against the father, with the children also named as protected persons on the interim intervention order gained.
The father claimed at the commencement of the proceedings that he was involved in the day to day care of the children after he ceased work as a [omitted] in early 2004. The father has not been gainfully employed since that time, although he did begin a master's degree in [omitted] in 2005. He did not complete the thesis component of this post graduate degree and failed to obtain the qualification. In the following year, [X] was born, and he was involved in the care of [X] until the birth of [Y].
The mother took maternity leave directly after [Y]'s birth (in August 2008) and became the primary carer to both children. She remained on maternity leave until March 2009 and then returned to work in the face of the father's ongoing unemployment and lack of receipt of income. The parties moved to [S] in 2009 as they had been experiencing difficulties in their relationship and thought that [S] afforded the family a better place to live. Their difficulties however continued after their move to [S] and in 2009 they were provided with support from Anglicare which continued into 2010. Both parties cared for the children as they were able with the father being home and the mother in employment.
The father was suffering from mental health issues, and the mother had health difficulties of her own, being in the main, chronic diabetes and arthritis. From February to May 2010, the mother was suffering from a broken arm. She nevertheless did most of the housework and cared for both children.
In the 12 month period prior to the parties separation, both say the relationship had been under great stress. The mother alleges the father’s behaviour toward her was aggressive and controlling. She said in paragraph 9 of her affidavit sworn 20 April 2011, the following:
“The father’s behaviour towards me during that period was aggressive and controlling. He would punish me in different ways if I did not behave as he wanted. For example, he would not allow me to use the furniture but force me to sit on the floor; he would not allow me to sit at the table to eat but force (sic) me to eat while sitting on the floor; he would not allow me to have any food at all at night; he would only allow me to eat dry bread and drink water for periods of several days at a time; he would force me to do physical exercises such as 100 situps; he would not allow me to wear clothes in the house for days at a time.”
The mother deposes to the father, on 28 October 2010, beating her in a rage and punching her repeatedly. She claims a few days thereafter and on 3 November 2010, the father called her at her workplace and demanded that she leave work, come home and clean the stove. She told the father that she would not. The father then told her that if she did not come home straight away, she should not bother to come home at all. The mother was deeply stressed and afraid and called her parents to ask if she could stay the night with them. At this time, the children remained in the care of their father. The mother was very worried about them.
On 5 November 2010, the father threatened to commit suicide. He telephoned the mother’s mother and told her. The maternal grandmother then called the [S] police who attended at the former matrimonial home. The [S] police took the father to the psychiatric unit of the [omitted] Hospital. They then called the mother, requesting that she collect the children from the home. The mother took also some of the children’s personal belongings from the home, and thereafter took the children to her parents’ home in [omitted] to reside.
The father has not spent time or communicated with the children since 18 December 2010, save for one visit by the children to him on 27 December 2010 when he was in hospital, and one telephone call initiated by him to [X] in February 2012 when [X] was about to start school. In addition, during an approximate two week period from the end of April 2011, the mother was causing the children to telephone their father and speak to him in order to facilitate his telephone time with the children, pursuant to an order made in this Court on 27 April 2011. Thereafter, the mother stopped arranging for the children to telephone the father, and the father has made no attempt to have any further telephone contact with them, save the single call made to [X] in February 2012.
The father’s mental health
The father does suffer from serious mental health issues. He was assessed by Dr K, and that assessment is as reported in the correspondence of 25 August 2011 from Dr K, which is annexed to his affidavit sworn 10 November 2011 and in evidence before the Court. Dr K set out the father’s psychiatric history in paragraphs 11 to 19 of that report. The father first saw a psychiatrist some 15 years ago. Prior to the separation, he had been seen by a psychiatrist at [omitted] Hospital and was diagnosed with depression. He was put on Aurorix for a brief period of time but ceased seeing the psychiatrist.
On 5 November 2010, the police took the father to the Crisis Assessment Treatment Team. They confirmed that he was depressed, and his general practitioner later diagnosed him as suffering from depression and anxiety. He was prescribed Zoloft and told to take 200 milligrams a day. On 18 December 2010, and following a meeting with his general practitioner and the mother, the father went to the local railway bridge. He was sitting on the parapet when a police officer arrived. He jumped and suffered a fractured heel.
The father insisted to Dr K that he was the primary carer of the children whilst the parties were together. The mother agrees, on her return to full-time employment following the birth of [X], the father did become the primary carer to him and later and for a time, to both children. However, there were many instances during that time when the children were not adequately cared for. The mother’s evidence is that the father was regularly abusive to the children. For instance, he would not make lunch for them if she had not pre-prepared it; would not change the child [Y]’s nappy for hours and would send the children to bed without dinner. Due to the father’s depression, he would often stay in bed all day and leave the children unsupervised. The mother said in her evidence that, throughout the relationship, the father was abusive to her, with such abuse being physical, verbal, psychological and emotional. She said that the father had regularly hit her, punched her, pushed her and, on one occasion, twisted her arm with such force that he broke her arm. When asked by Dr K about the incident where the mother’s arm was fractured, the father said:-
“My memory is very vague.”
He could not give an account of the incident, but he did not deny to
Dr K that he might have done it. He admitted that toward the end of the relationship he got really angry.
Opinion of Dr K
Dr K observed that he had some concerns about the father, by the way he presented in interview and the information that he provided. Dr K saw the father as being a highly obsessive and controlling man, not truly introspective. He noted the father seemed to have an undue preoccupation about matters of hygiene; that he was extremely critical of the mother; and that he was very controlling of her, demanding that she kept the house spotless, even though he was the one who was staying home to look after the children. Dr K did not get a sense of a man who had any sensitivity or flexibility. He said at paragraph 69: -
“Certainly he may have had periods of depression and that wouldn’t be surprising because his personality structure and style would make it very difficult for him to have satisfactory relationships with people and to get satisfaction out of life.”
As to his diagnosis, Dr K said at paragraph 73 of his assessment:-
“So I would prefer to say that he demonstrates significant personality dysfunction with a great degree of obsessionality, a great degree of control and a great degree of aggression and self-centredness. And I accept that he has periods of depression and one might have to say he has a mild depressive state at this stage, partially controlled with medication.”
Dr K was of the opinion that the father was not sensitive to nor capable of looking after the children in an emotionally satisfactory way and said at paragraph 79:-
“I’m afraid I simply do not see him as capable of looking after the children, unless there was somebody else there to support him and to soften his approach to those children.”
Dr K did not believe that the father would be amenable to long term psychological or psychiatric treatment or counselling, at least in terms of helping modify his way of relating and his behaviour, and could well imagine that the mother was somewhat afraid of him because the father presented with a very marked overbearing, controlling and aggressive element in his presentation and behaviour.
Finally, Dr K noted that he had seen each of the mother and father and had read fairly extensive documentation and had prepared reports in respect of both of them. He had nothing to say from a psychiatric perspective that would be of concern to him about the mother. He noted that certainly she may have stayed in an unsatisfactory relationship too long, but he did not see her as having a psychiatric problem. The father, on the other hand, presented to him as having significant behavioural disturbance, and statements made by the mother in her affidavit he found to be very concerning about the father’s behaviour and attitudes. He could not see the father as capable of looking after the children on his own but saw no problem for the children being in the mother’s care. Dr K had:-
“Serious concerns about this man [the father] in terms of his potential parenting.”
Family Report 13 February 2012
Dr R recommended that the children live with their mother and that she have sole parental responsibility for their long term health and welfare, pending a further review of the father, should he participate in court orders in the future.
Dr R noted the father’s expressed opinion of Dr K as a:-
“Knave and a fool”
and as being:-
“Incompetent and dishonest”
as well as the father’s dismissal of the psychiatric assessment report as a whole, saying that response may have limited the father’s consideration of the content that might have assisted him in his understanding of his parenting and general functioning. She noted that while such reports can often be confronting, the father appeared not to have used the time he spends with various mental health professionals to go through the report, and seek to clarify or better understand what was being said.
Dr R observed the mother to be a somewhat quiet and reserved woman who took on board Dr K’s comments that she had stayed too long in the relationship. Dr R noted (like many women who had been subject to alleged family violence) that the mother’s ongoing counselling now allowed her to see the children’s needs more clearly.
Dr R noted [X], in particular observed, impressing as having some memories of the alleged family violence, acting out with his swinging arms and fists when recalling what his father had done to his mother.
The mother, in her affidavit material, detailed a history of appalling domestic violence, which included making her walk around the home naked as a form of punishment, isolating her from her family and friends, causing her arm to be in plaster for a three month period as a result of the father grabbing and twisting it, being grabbed by the throat and punched hard in the jaw. In October 2010, she was hit by the father in the stomach and around her arms with a closed fist, with the child [X] witnessing such beating. On 28 October 2010, the father hit the mother several times around the head, causing her to fall off the bed and onto the floor, and whilst on the floor, he kicked her in the face, bending the arm of her glasses. He then demanded that she go and do some housework. When the mother got up to leave the room and told him that she was afraid of him, the father then asked her a question which she did not answer immediately. As a consequence, he proceeded to beat her, holding her down on the bed with one hand, while “punching me hard with the other. He punched me on the arms, legs, stomach, hips and head. I screamed until I was hoarse and begged him to stop, but he wouldn’t. I was afraid that he was going to kill me”.
The mother has, since separation, gained a five year intervention order against the father, for both herself and the children. The father acknowledged this. He, however told Dr R there was no basis for the making of such an order as he said he had never committed any violence toward the mother. Dr R noted as to one episode that:-
“Whilst being able to describe in great detail his memory of the mother lying on the ground and screaming, he claimed that he had no recall as to how she came to be lying on the ground. She said I kicked her in the face. I don’t remember that because it didn’t happen. At least her arm did get broken. He stated that he had no recall if the children were in the house at the time.”
In interview, the father noted that he had not been ringing the children twice a week, as a court order had provided for, and that he had not spent time with the children at a community centre, as he claimed to not be able to afford to travel to spend time with the children. He was unable to comment on the impact on the children of them having neither seen nor heard from him for such a very long time.
Dr R said at paragraph 23 of her report:-
“Mr Sendak proposed seeing [Ms Sendak] in a prison cell where she belongs and I want the children back home where they are safe and cared for and looked after and loved, at the next Court hearing. He believed his proposal was realistic as he was telling the truth, and there was documentary evidence that the mother had committed perjury. He believed the Court had access to records maintained by Anglicare of involvement with him in the past, and this would provide the demonstrated proof he believed the Court needed, to have the children immediately returned to his care. He expressed concern about his current lawyer and worried I don’t think he gets it, stating his lawyer had advised him that a shared parenting arrangement was not an option and he hoped for him being able to secure some contact with the children instead. Mr Sendak stated he had rejected this advice believing it was not about securing contact with the children but having them immediately returned to his care where they would be safe.”
Dr R noted that Dr K had considered the only possibility of the father establishing any relationship with the children would be supervised contact on a very structured basis in a child contact centre and that he would need to conform precisely to the requirements of such contact if he were to move beyond that level of contact.
The mother presented as a quiet though friendly woman, who was observed by Dr R to be very calm and reassuring with the children, [X] and [Y], whilst in the waiting area, advising them that she would see them soon. The mother remained open and child focused throughout the interview. She described the current living situation for herself and the children with the maternal grandparents as being a happy and harmonious one. She noted the mother’s statement that she continued to work at [omitted] and that she gained immense satisfaction from her work there. She also felt highly supported by her parents.
Dr R noted Dr K’s observations of the mother and her impressing him as functioning well and receiving good support from the maternal grandparents and others around her. He considered her description of the relationship with the father as not inconsistent with the way the father presented to him during his interview. Dr K felt Ms Sendak had been:
“…a long suffering mother in a disastrous relationship with an obsessional, bullying man who has been totally self-centred”
and perhaps demonstrated poor judgment for staying so long in the relationship with the father. Dr K considered it perfectly reasonable for the mother to not want to have any involvement with the father and:
“I can certainly understand her concerns about the father having contact with the children.”
Finally with reference to Dr K’s assessment of the mother, Dr R noted that the mother was assessed as having no mental health or substance issues and that her reaction to the circumstances and situation with the father seemed to Dr K to be perfectly normal, reasonable and understandable.
[X] impressed Dr R as a friendly five year old boy who was happy to accompany her to the interview room and separated easily from his mother who provided him with appropriate reassurance. The report writer noted that [X] stated his father did not live with them because:
“He kept hitting mummy.”
When asked how he knew that, he stated:
“because I saw him do it and mummy was crying, I wish mummy wasn't so sad.”
[X] said that he had not seen his father for a:
“… really long time. I can't remember what he really looks like it’s been so long since I have seen him, I don't want to see us (sic) again because he doesn't ring us, he has my phone number and he never rings. I think daddy is sad now he doesn't live here anymore, but he yelled at us and yelled when mummy was gone.”
The father was interviewed on a separate day to the mother due to concerns that the mother was fearful at the prospect of face to face contact after a five year intervention order had been ordered against the father for herself and the children. Dr R made the decision to defer the question of the children being observed with their father until after his interview. On the basis of his interview, where he was largely uncontained and acknowledged he had declined to have contact with the children for a considerable period of time, Dr R determined an observation would be best done in a child contact centre which would offer close and supportive supervision by child contact centre staff to the children, and helpful instruction to the father. Ultimately that has not come about, and the father has declined to avail himself of the orders made by the Court earlier for any form of phone and/or face to face contact with the children.
In her evaluation, Dr R noted that interview and observations of the father suggested he was a difficult man to assess. This was primarily due to his presentation whereby he made little eye contact and sobbed uncontrollably at times without tears being observed. This behaviour would then be interspersed with other behaviour whereby he would immediately stop sobbing to aggressively demonstrate his point. He impressed as being self-absorbed with his own needs with little focus being demonstrated on the children's needs. He frequently denigrated the mother and maternal grandparents as child abusers who ultimately provided an unsafe placement for the children. However, Dr R’s review of subpoenaed Department of Human Services files show the mother is a parent who is providing a safe and appropriate home for the children and had taken steps to protect the children by moving away from the father and seeking and obtaining a lengthy intervention against him. Similarly, the maternal grandparents were also reported as appropriate carers and no evidence was found by the Department of Human Services that substantiated the notification suggesting they had in the past, or were currently, abusing the children.
The father was afforded numerous opportunities to maintain a relationship with the children including telephoning them twice a week, but he has not done so. He was also afforded the opportunity to spend supervised time with the children at the [omitted] child contact centre, but cancelled that appointment in late December 2011 after being informed a vacancy had arisen to commence time there. He did not reschedule his appointment nor respond to the child contact centre’s attempts to discuss this with him. He informed the child contact centre that he did not believe their rules applied to either himself or his children and he would not be attending. Dr R saw that behaviour as a major concern, as the child contact centre was already questioning whether the father had capacity to be a suitable user of the service. He lacked the capacity to contain himself and time spent at the centre would therefore not be in the children's best interests.
Other evidence
The evidence of Mr H, the maternal grandfather, provides support for the mother's allegations that she had been the subject of domestic violence at the hands of the father, and also put before the Court evidence as to the progress of the children whilst in his home and since November 2010. His evidence is that both of the children enjoy interacting with his wife and himself, that they play games and enjoy educational activities together and that since living in their home the children appear to be more relaxed. Both children have healthy appetites and are calm and happy. The maternal grandfather has witnessed the physical, verbal and psychological abuse endured by his daughter at the hands of the father. On several occasions he has observed bruising on the mother's body and face with the mother informing him that this bruising was the result of the father beating her. He described having to sneak into a café near the mother's work to see her during lunch hours in an attempt to maintain contact with her. In his affidavit of 17 October 2012, the maternal grandfather gave evidence that:-
“the children [have] continued to grow in confidence and enjoy the family, religious, social and educational activities we do together.”
The evidence before the Court of Ms H corroborates that of her daughter and husband. She said in her affidavit sworn 20 April 2011 the following at paragraph 7:-
“I have overheard the father yelling at the mother, in the presence of the children, using words like ‘fuck’ and ‘fucking bitch’. On one occasion in May 2010 I heard the child [[X]] repeating these words, ‘fuck’ and ‘fucking’, to me over the telephone while the father ranted them in the background at the mother.”
and at paragraph 8:-
“The child [[X]] has told me that, ‘Daddy is a bad man because he hits Mummy’, and that he tried to ‘Save Mummy’ by getting in between Mummy and Daddy. The child [[X]] has bad dreams about the father hitting and hurting the mother.”
and at paragraph 9:-
“On [date omitted] 2010 my father and I visited the mother to drop off the child [Y]’s birthday present. We knocked at the door and the child [X] opened the door. Soon after the mother came to the door. The mother had an extensive dark coloured bruise on her chin and appeared shaken.”
and at paragraph 10:-
“I asked the mother about the bruise on her chin and the mother told me that the child [[X]] had slammed a door in her face. The mother has since told me that the father had punched her on the chin.”
and at paragraph 11:-
“I have witnessed bruising on the mother’s person on several occasions. For example on 9 October 2009 the mother came to me, asking if she could stay the night because the father had told her to leave the matrimonial home. I saw bruising on her right eye and her hand. The mother told me that the father had caused the bruising.”
Conclusion
The facts of this case establish that the father has engaged in significant and prolonged family violence during the relationship and that such family violence has been directed at the mother and occurred in the presence of the children. The father has been controlling of and aggressive toward the mother and the children have been exposed to his unstable and erratic behaviour.
Section 61DA(1) of the Family Law Act 1975 (Cth)(‘the Act’) provides for a presumption of equal shared parental responsibility. Pursuant to s.61DA(4) of the Act that presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the children’s parents to have equal shared parental responsibility for them. In this case, the presumption is rebutted. The perpetration of family violence upon the mother and children by the father, the father’s mental health issues, and the mother’s extreme fear of the father, which severely impacts upon her ability to properly parent the children, if she is required to do so in any way in consultation and involvement with the father, make a rebuttal necessary. These factors also go to the Court’s consideration of the children spending equal time or substantial and significant time with their father. This is a case where no such order should be made.
The children currently live with the mother and maternal grandparents. They have not spent any significant time with their father since 18 December 2010 for the reasons which are set out above. The father continues to not avail himself of the opportunities he has had to maintain a relationship with the children and nor does the evidence demonstrate that he has a capacity to engage in a meaningful way with the children. He is unable to contain himself and it is not in the children’s best interests to spend any time with him. The children need to be protected from physical, emotional and psychological harm. The evidence of Dr K and Dr R is overwhelming and the children need to be protected from the psychological harm and family violence that the father represents.
Whilst the mother would be reluctant about the children spending time with the father, her evidence is, which I accept, that she would comply with any orders of the Court to that end. She however seeks that no orders be made in light of the evidence which is detailed in the material before the Court being the family report, Dr K’s report and the various affidavits earlier referred to. Neither child has any current relationship with their father as a result of his failure to maintain any relationship or contact with them since separation; his ongoing mental health difficulties; and his hostile attitude toward the mother and her parents.
The father’s allegations against the mother and her parents are unsupported by any of the evidence and are vexatious. His reporting of them to the Department of Human Services has been inappropriate. The father has no insight into the care of the children, the impact of his behaviour upon them, and their positive relationship with their mother and grandparents. He has no capacity to provide for their emotional and intellectual needs, a capacity which their mother has. The father’s mental health issues, as identified by Dr K, show he has little insight into the responsibilities of parenthood. He is entirely self-obsessed.
The mother, by contrast, has a responsible attitude toward parenthood in her current care of the children, in her seeking out further counselling sessions to help her to respond to their needs more clearly, and in her obtaining the assistance of the maternal grandparents in her care of them.
I find that there is a risk of family violence and a likelihood of the children being exposed to it if they have any unsupervised time with their father. The avenue of supervised time spent with has already been explored but not produced an outcome beneficial to the children.
The children’s best interests are served by the orders which shall be made this day. Such orders are sought by both the mother and the independent children’s lawyer.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate:
Date: 5 December 2012
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