Shergold & Clark

[2012] FamCA 1072

FAMILY COURT OF AUSTRALIA

SHERGOLD & CLARK [2012] FamCA 1072

FAMILY LAW – CHILDREN – With whom the children spend time - where the children have no physical contact with the father – where contact with the father is limited to monthly letters and letters on birthdays – where the children reside with the mother – where the benefit of the children having contact with the father was outweighed by the damage that contact would have on the mother and her capacity to parent - where the father had exposed the children to extreme family violence against the mother and third parties throughout their lives – where the father’s lack of insight into the impact of his long term drug abuse and family violence on the children meant he did not have the capacity to meet their needs – where the father actively tried to damage the meaningful relationship between the mother and children – where the location of the mother and children remains undisclosed to the father for their safety – where the father had made repeated threats against the mother and the maternal family –where there are family violence orders in place for the protection of the mother and children -where the father had threatened to kill himself in front of the mother and children – where the father had allegedly sexually assaulted the mother post separation

FAMILY LAW – PRACTICE AND PROCEDURE – Undefended hearing – where the father withdrew from proceedings – where the Court was unable to make a finding as to the state of the father’s mental health or the extent of his substance abuse due to the lack of expert medical evidence and the complete absence of the father’s evidence

Family Law Act 1975 (Cth) s 60CC

Shergold & Clark [2011] FamCA 767
B and B: Family Law Reform Act 1995 (1997) FLC 92-755

APPLICANT: Ms Shergold

RESPONDENT: Mr Clark

FILE NUMBER: NCC 2765 of 2008

DATE DELIVERED: 20 December 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 5 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davies

SOLICITOR FOR THE APPLICANT:

Rice More & Gibson

Mr Falcomatta

RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Legal Aid NSW

Mr Scally

Orders

1. That all prior parenting orders are discharged.

2. That the mother have the sole parental responsibility for the children of the marriage J born … July 2002 and M born … October 2003.

3. That the children live with the mother.

4. That the father spend no time with the children.

5. That the mother shall within 28 days of the date of these orders inform the father of a postal address to which he may send letters, cards and gifts to the children.

6. The father must not communicate with the children except by the following means:

   (a)posting a letter to the children each calendar month; and

   (b)sending cards and gifts to the children by post at July and October for their birthdays and in December each year, to the postal address nominated by the mother;

   NOTING that the mother may inspect the father’s letters, cards and gifts and may withhold them from the children, but only if she reasonably believes that:

   (c)they contain material which denigrates the mother or her family or friends;  or

   (d)they contain material which will cause the children to be fearful.

7. In the event that the children wish to respond to the father’s letters, cards and gifts, or to initiate written correspondence, the mother shall assist the children to do so.

8. That the mother be restrained from changing for all purposes the children’s surname from Clark.

9. That the mother will cause the father to be notified of the following events relating to the children:

   (a)any hospitalisation;

   (b)the development of any serious medical condition or serious injury.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shergold v Clark 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 NEWCASTLE

FILE NUMBER: (P)NCC2675 of 2008

Ms Shergold

Applicant

And

Mr Clark

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an application by the mother of two children aged 10 and nine for parenting orders.  The parties entered into final orders by consent in March 2011.  Subsequent events led the mother to make a fresh application for parenting orders on 19 August 2011 and it is that application which came before me.  The children are presently living with their mother at an undisclosed address in Sydney.  They do not presently spend face to face time with their father and it is the mother’s application for that arrangement to continue.

2. The father filed a response on 18 November 2011 seeking to uphold the March 2011 orders with a variation to provide for equal time for the children between their parents. 

3. The matter became undefended in October 2012 when the father filed a Notice of Discontinuance and advised the Court, the mother and the Independent Children’s Lawyer that he would no longer be participating.  Accordingly there is no affidavit or other material by the father before the Court.

Background

1. The applicant mother is aged 45, the respondent father 44.  The parties have known each other all their lives, initially as a result of friendship and regular visiting between their respective parents.  The father grew up on a rural property, the mother in Sydney.

2. In 1992 the father purchased a property near to his parent’s property and when the parties married in 1995, the mother moved onto that property to live.  In 1997 she ceased fulltime employment in the health industry and began to assist the father to run the farm.

3. Both parties smoked marijuana as young people. To the mother’s knowledge the father suffered from bouts of depression from his mid teens onward. During the marriage the father’s depression became more severe and his use of marijuana more frequent. The mother became increasingly concerned about the father’s drug dependence and extreme rage directed at third parties.

4. The mother felt shut out by the father during her first pregnancy in 2002. She was hopeful that the birth of their child would cause the father to decrease his use of marijuana.  She says that it did, but that he used ecstasy and amphetamines instead. He slept very little. 

5. The mother was somewhat desperate by the time of the birth of the second child in 2003.The relationship between the parties further deteriorated.

6. In January 2005 the mother moved with the children into town, staying with her mother.

7. After nearly eight months of separation the father attended several consultations with doctors about his drug use and mental health, the parties reconciled. Only a month later the father started to become suspicious about the mother’s motivation and became aggressive and verbally abusive toward her.

8. In December 2005 the mother stated her intention to leave the marriage again. The father pushed her away. She wasn’t injured, but it was a turning point. Her husband had never reacted physically toward her before. He had previously directed physical abuse at farm animals and the dogs, but never towards her. She became frightened of him. My impression is that he was no longer the man she had known all her life

9. In January 2006 the mother left, taking the children with her and returned to live with her mother. The separation was final. Soon after she bought a house in town. 

10. From October 2006 the mother regularly took the children to the farm to visit the father. 

11. By April 2007 the mother had entered a new relationship.  The father entered the mother’s home uninvited at 5.00 am one morning, came into the mother’s bedroom and threw a terracotta pot across the bedroom directly at the mother’s companion.  Subsequently the father threatened this man and told him in no uncertain terms to stay away.  The father also directed the mother’s companion to set to music some poetry he had written, which the mother’s friend instead returned.  The father continued making quite serious threats towards this man, who moved away and that relationship came to an abrupt end.  Thereafter the father made constant contact with the mother by telephone and came to her home without notice.  The mother asserts that the father effectively blackmailed her into resuming a sexual relationship with him on the basis of threats directed to her former companion.  There was a further episode which left the mother feeling degraded and traumatised[1]. 

    [1]  Affidavit of Mother filed 01/03/2011, paras 108-113

12. In November 2007 the father threatened suicide because he had not been invited to his former brother-in-law’s wedding.  On another occasion the father injured himself with a steak knife and the mother drove him to hospital for the wound to be stitched.  The father asserted at the hospital that the injury had been accidental and denied any previous self harm or suicidal thoughts.  The mother continued to make the children available for visits, the father visiting them in her home or she taking them to the farm for a couple of hours.

13. On 1 March 2008 the father came to the mother’s home during the night, banged on the door and demanded to be let in.  The mother would not let the father into the home.  She had formed the impression that he was drunk and dangerous.  The children had woken and J was in the mother’s bed when the father said words to the effect[2]:

    I’m better off dead, that’s what you all want, you want me to kill myself well I’m going to do it this time, you’ll see, you will never see me again.

    [2]Affidavit of Mother filed 01/03/2011, paras 147

14. J became worried.  The father then apparently left, got into his car, reversed out of the driveway and crashed.  The parties’ daughter woke up; both children were screaming and became hysterical.  The mother went out to find that the car was upside down on the opposite side of the road.  The father was able to get out of the car through the window.  She rang the police. Apprehended Violence Orders (AVO) were made in the Local Court on 10 June 2008 and subsequently extended to 11 May 2011.  The children had nightmares and J became withdrawn and wet his bed every night for about a week after this incident. 

15. The father began to leave messages not only on the mother’s phone, but on the maternal grandmother’s phone, causing her to be frightened for her own safety. 

16. By mid 2008 the mother had made an arrangement with the father’s parents for the father to spend time with the children in their home rather than on the father’s property.  After a couple of months of those arrangements, the children returned home quite distressed making statements about the father being sent to jail “because [the mother] hate[s] him so much”[3].

    [3] Affidavit of Mother filed 01/03/2011, paras 167

17. In  February 2009 there was an incident at the local show between the father and a policeman. The father allegedly told the children that he was going to kill that policeman by “chopping off his head with an axe.”[4]  J was reported by a friend of the mother to be hysterical.  The children later confirmed that their father had said those words.  J became withdrawn and began to wet the bed.  M had nightmares and both children took some weeks to recover.  The father denied that he had behaved in that way and apparently suggested that it was M’s suggestion to chop the policemen’s head off with an axe.  The father appeared to become increasingly focused in his anger on the mother. 

    [4] Affidavit of Mother filed 01/03/2011, para 183

18. On 23 September 2009 when the mother answered the telephone, the first words she heard were, “Put the kids on you filthy slut” and recognised the father’s voice[5].

    [5] Affidavit of Mother filed 01/03/2011, para 265

19. Reports were made to the mother by third parties of the father telling them that she, the mother, had lived as a prostitute when she was travelling in Germany.  He continued to use foul abusive language on the telephone, when arrangements for the children had to be discussed.  The mother began to consider moving away from the area and moving back to Sydney.

20. There were orders in place, AVOs for the protection of the mother and Family Court orders for the children to see their father.  On any version of events, the conflict continued to be intense and destructive for the children.

21. On 29 March 2011 the parties entered into final orders by consent.  Those orders provided for the mother to have sole parental responsibility for the children and for them to live with her.  Further she was given permission to relocate in the following year to the Sydney area.  Detailed orders followed for how the children would spend time with their father until the mother’s departure.

22. Events in July 2011 provoked a further application by the mother in very different terms.  The mother sought to relocate immediately to an undisclosed location and for there to be no time between the children and their father.  The incident is set out in short reasons for judgment delivered by me on 15  September 2011[6] as follows:

    [6]  Shergold & Clark [2011] FamCA 767 at [3]-[11]

    3.The mother attended with friends an event in [in the New England Area].  After 30 minutes the mother recognised the voice of her husband which was raised and aggressive.  She moved away from the area.

    4.The father walked within a metre of the mother and said to her loudly and aggressively:  “One hundred fucking metres you cunt”.  The mother was shocked and began to shake and cry.  She formed the opinion that the father may have been under the influence of drugs.

    5.She reported the matter to the police.  The father was arrested and his conduct with police led to charges, which I shall refer to later.  Bail was withheld and the father has been in prison since.

    6.The mother says she was strongly affected by the incident.  She was shocked, had trouble sleeping and holding conversations.  Initially a friend looked after her and the children.

    7.The children had been seeing the father after the consent orders were made on 29 March 2011.  The mother reports that the children were in a good frame of mind after those visits.

    8.The mother gives an account of explaining to the children that their father was in prison.  It was sensitively done before the children heard it from others.  She was protective of their relationship with the father.

    9.On 12 July 2011 an existing Apprehended Domestic Violence Order (ADVO) for the protection of the mother was extended for a further period of two years.  The order was extended to include the children.  The order was first made on 10 June 2008 at Glen Innes Local Court and has been extended more than once.

    10.The father was convicted of the breach of the ADVO and for the following offences:

    ·Offensive language;

    ·Malicious Damage – for smearing his own faeces in the police cells;

    ·Act of Indecency – for exposing his penis to a female constable of police.

    11.He was sentenced to three months in prison and fined $150.  The father lodged a severity appeal which was dismissed in August 2011 by the District Court in Armidale.

23. Having found that there was a change of circumstances sufficient to justify a fresh application, these proceedings were commenced. On an interim basis the consent orders were suspended leaving the mother free to relocate, which she did. 

24. During the course of that interim hearing on 15 September 2011, the mother appeared to be visibly shaken and fearful and at times her whole body shook.  The father had telephoned the mother from the correctional facility he was in and had also left a number of telephone messages on the voicemail of the maternal grandmother.  Ms G Shergold, the maternal grandmother, in her unchallenged evidence says that the father left messages for her that[7]:

    [He was] going to catch up with [her]

    and

    They are moving me into [Northern New South Wales] so I won’t be able to talk to you for awhile but don’t worry I’ll catch up with you when I get out. 

    Ms G Shergold has had the benefit of an AVO for her own protection in the past as a result of harassing telephone calls made to her home telephone number by the father. 

    [7]  Affidavit of Ms G Shergold filed 18/10/2010 , para 60-61

25. The mother has now been living in Sydney with the children for about 12 months.  She has a fulltime teaching position and the children have settled in well at school. 

26. I accept the oral evidence of the mother that during that time she has continued to promote relationships between the children and their paternal grandparents and paternal aunts, uncles and cousins.  There have also been meetings between the father’s current partner and V the almost three year old child of that relationship.  The children know V to be their brother and have photos and videos of him supplied by the paternal extended family.

27. During the course of the hearing, rude and disrespectful emails from the father to the Court, to the mother’s solicitor and to the Independent Children’s Lawyer were tendered into evidence.  I noted that the mother’s right arm shook, that she put her head in her hands and closed her eyes in apparent distress during this process. 

28. I accept the evidence of the mother that she has been adversely affected by the father’s conduct over the years and most recently by the events of July 2011, when the father spoke so abusively to the mother in a public place in a social setting. I consider that the mother became intensely fearful after this abusive confrontation at least in part because it came so soon after the final consensual resolution of the arrangements for the children.

29. Whatever the cause of the father’s aggressive conduct, it has the capacity to undermine the mother’s confidence and ability to care for the children.  I am satisfied she has made a determined effort to create circumstances to remedy the impact on her and further, that she has done everything that she can to preserve and protect the children’s relationships, not only with her extended family, but also the father’s extended family.

parenting Orders

1. Each of the parents of a child who is not 18 has parental responsibility for the child.  In this case, the parties agreed in March 2011 that the mother should have sole parental responsibility for the children.  The mother seeks a continuation of that position and of the children’s continued residence with her.  The real and very significant change is that the mother proposes that there be no contact between the children and their father.

Time and communication

1. There is no doubt that the father wants to spend time with his children, whom he loves. He feels strongly entitled to do so. However, those rights are subject to what is in the best interests of the children pursuant to s 60CC of the Family Law Act 1975 (Cth) (“the Act”).

2. The anti-social conduct of the father in July 2011 when he was first arrested, is reflected in the tone and language of the emails forwarded to the Court, to the lawyers for the parties and in the submissions made by the father from time to time in interim proceedings.  The father is an educated man. I consider he does understand the role of civil courts in private disputes between citizens. In this case to make parenting decisions about his children when their parents cannot agree.  He has chosen to reject the authority of the Court

3. The children have in the past enjoyed their time with their father.  His new partner had been an affectionate and helpful presence in the lives of the children for the short time she had regular contact with them.  The recommendation of Mr C, Family Consultant, captures the difficulty in this matter[8]:

   It is recommended that a judicial decision be made regarding whether or not [the father] can be trusted to behave appropriately in the future towards [the mother].  If the Court is confident that he will, then [the father’s] proposal appears reasonable.  If the Court is not confident that he will, then [the mother’s] proposal appears reasonable.

   [8]  Updated Family Report dated 12/03/2012 , para 36

1. The evidence supports the proposition that the father will not behave reasonably towards the mother.  This has two consequences:

   (i)One that the mother will be further traumatised by the father’s conduct.

   (ii)That the children are potentially exposed to the father’s hateful and derogatory attitude towards the mother.

2. I am satisfied that the mother would do her best to comply with orders for face to face contact if they were restored.

3. However, I consider it likely that the father would take the opportunity to continue to vilify, denigrate and constantly abuse the mother for what he sees as her responsibility for his having been deprived of contact with the children and perhaps for the breakdown of the relationship almost seven years ago.

4. Given the history of the matter there is also a risk to the physical safety of the mother.

5. The parents are intelligent, successful people each in their own fields.  The mother is a teacher.  The father is a successful innovative farmer.  It is impossible to determine on the state of the evidence, what is the cause of the father’s conduct.  There is certainly evidence that the father has been a heavy user of marijuana, but without medical evidence, I can come to no conclusion about that. 

6. I can conclude that the capacity of the father to meet the children’s needs is reduced.  He is unable to contain his language and behaviour directed at the mother and her family and friends, whether or not the children are present.  He is contemptuous of the process and is unable to contain his anger at the fresh proceedings commenced after the events of July 2011.  He refers to the mother as “Shergold.”  Until he ceased participating in the proceedings, the father made uncontained critical statements about the mother and her allegedly low standing in the town, at every opportunity.  There is no basis for believing that the father would appropriately contain himself in the presence of the children were they to spend any face to face time with him. 

7. The children understand that they are not to reveal to the paternal family where they are currently living.  The extended family appears to have been respectful of the situation and have not sought to ask.  The father either has no insight into his impact on the children through his conduct, or does have insight into it and is so intent on punishing the mother, that he is indifferent to that impact.  Either way, it is not in the best interests of the children for them to be exposed to that type of conduct (see B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at p 84,181). For that reason, orders have been made that there be no contact between the children and the father.

8. The mother and children are currently protected by an AVO, but it needs to be clear on the face of the Orders there is no reason for the father to be approaching the mother and children under any circumstances.

9. Provision has been made for communication to an established postal address, so that the relationship between the children and their father is kept alive, this will allow each child to make their own decision about re-establishing contact.

10. As a means of further preserving the children’s connection with the father I make an order that the mother ensure the children retain the father’s surname.

11. The mother said that she had given considerable thought to the time when the children might ask in a determined way to see their father and I accept the following evidence which she gave:  “I will do everything in my power to allow them to do so safely”.

12. I am satisfied on the evidence that the mother will do everything she can to preserve the children’s relationship with their father and will not be critical or derogatory of him in their presence.  It is for that reason that I am content for the mother to explain the orders to the children in a sensitive way, which will leave them knowing that whilst their father loves them, they will not be seeing him face to face for quite some time.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 20 December 2012.

Associate: 

Date:  20 December 2012