Sherry & Eaton
[2022] FedCFamC1F 356
•20 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sherry & Eaton [2022] FedCFamC1F 356
File number(s): ADC 21 of 2018 Judgment of: BERMAN J Date of judgment: 20 May 2022 Catchwords: FAMILY LAW – CHILDREN – Parental responsibility – Where the mother sought sole parental responsibility and the father originally sought equal shared parental responsibility but then did not press it – Discussion of the presumption of equal shared parental responsibility – Where in any event, the evidence of family violence would rebut the presumption in this case – Order for sole parental responsibility.
FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Family Violence – Best interests of child – Where the children have not spent any significant time with the father for over 7 years – Where the father seeks significant and substantial time – Where the mother opposes any time – Where there are allegations of family violence – Where the family consultant considered that introducing time spending now would be difficult – Where there is potential for emotional distress if the children were forced to resume time with their father - Where there still remains a high degree of animosity between the parties – Consideration of the best interests of the children – Where orders are made for no time spending unless agreed – Where the father can forward letters, gifts and photographs if he wishes to do so.
Legislation: Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 61DA, 65DAA, 69ZN, 69ZT
Cases cited: Amador & Amador (2009) 43 Fam LR 268
Baglio & Baglio [2013] FamCA 105
Champness & Hanson (2009) FLC 93-407
Cotton & Cotton (1983) FLC 91-330
Loddington & Derringford(No. 2) [2008] FamCA 925
MRR v GR (2010) 240 CLR 461
Sawant & Karanth [2014] FamCAFC 235
Sigley & Evor (2011) 44 Fam LR 439
Wang & Dennison (No. 2) [2009] FamCA 1251
Division: Division 1 First Instance Number of paragraphs: 116 Date of hearing: 21 – 23 March 2022 Place: Adelaide Counsel for the Applicant: Mr Praolini Solicitor for the Applicant: Legal Services Commission of South Australia Counsel for the Respondent: Ms Read Solicitor for the Respondent: SE Lawyers ORDERS
ADC 21 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SHERRY
Applicant
AND: MS EATON
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
20 MAY 2022
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for X born 2009 and Y born 2012 (collectively “the children”).
2.The children shall live with the mother.
3.The children shall spend no time with the father save as may be agreed between the parties.
4.The father be at liberty to receive copies of the children’s school reports and to facilitate same, the mother shall authorise the school at which the children attend from time to time to forward copies of school reports and other academic performance indicators to the father.
5.The mother shall inform the father if a child or children suffer a serious medical emergency or illness.
6.If he should choose to do so, the father be permitted to forward letters, cards and gifts to the children via the mother at her address.
7.Each party keep the other informed of their residential address.
8.The parties are restrained and an injunction hereby granted restraining each of them from:
(a)Attending at or remaining in the vicinity of any place of residence of either of the parties or their place of employment; and
(b)Abusing, criticising or denigrating the other parent, their partner or family members in the presence or hearing of the children or allowing any other person to do so.
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 the pseudonym Sherry & Eaton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Sherry (“the father”) and Ms Eaton (“the mother”) are the parents of X born in 2009 (“X”) and Y born in 2012 (“Y”) (collectively “the children”).
Since separation in either late 2014 or July 2015, the children have spent no time with the father and have not come into his physical contact other than by chance or unintended encounter.
By Amended Initiating Application filed 25 November 2021, the father seeks orders summarised as follows:
(1)That the parties have equal shared parental responsibility for the children (although in closing submissions this was not pressed).
(2)That the children live with the mother.
(3)That the father spend time with the children during school term time as follows:
(a)Each alternate weekend from the conclusion of school on Friday or 4.00 pm if a non-school day until the commencement of school on Monday or 9.00 am if a non-school day;
(b)In the intervening week from the conclusion of school on Thursday until the commencement of school or 4.00 pm if a non-school day on Friday; and
(c)Such further or other times as the parties may agree.
(4)That the father spend time with the children during school holidays as follows:
(a)For the first week of all short school holiday periods with the father’s time to conclude at 4.00 pm on the middle Saturday of the short school holiday period; and
(b)For half of the Christmas/summer school holiday period with the father’s time to commence at the conclusion of school on the last day of term until 4.00 pm seven nights later and on a week about basis thereafter with all handovers to occur at 4.00 pm.
(5)That the parties spend time with the children on special occasions being Mother’s Day, Father’s Day, the Christmas period and the birthdays of the children and the parties.
(6)That the father be at liberty to telephone the children when in the mother’s care on Tuesday between 5.00 pm and 6.00 pm.
(7)That the father be at liberty to attend the children’s school for school events and receive copies of the children’s school reports.
(8)That each party keep the other informed of any serious medical emergency or illness affecting the children.
(9)That the parties keep the other informed of their residential address and telephone number.
(10)That the parties are restrained by injunction from abusing, criticising, denigrating, harassing or threatening the other parent, their partner or family members and from discussing the proceedings with the children.
By her Response filed 1 March 2018 and as confirmed in her Case Outline document filed 17 March 2022, the mother seeks the following orders:
1. That the father’s application be dismissed.
2. That the mother have sole parental responsibility for the children…
3. That the said children live with the mother.
4.That the father be restrained and an injunction be granted restraining him from approaching any premises, residence, medical facility or school or being within 100 metres of the same which the said children are attending or residing at or present in.
…
The orders sought by the mother seek to sever and prevent any relationship between the father and the children and further extends to the father receiving no information as to the children’s welfare and development.
As will be discussed, the gravamen of the mother’s case is that during the course of their relationship the father was the perpetrator of ongoing family violence and were he to come into contact with the children would present as an unacceptable risk. Moreover, the children are fearful of the father and the mother is pessimistic of her ability to reconcile the relationship.
DOCUMENTS RELIED UPON
The father relies upon the following documents:
(1)Amended Initiating Application filed 25 November 2021;
(2)Affidavit of the father filed 25 November 2021;
(3)Affidavit of Ms F filed 25 November 2021; and
(4)Affidavit of Ms B filed 25 November 2021.
The mother relies upon the following documents:
(1)Response filed 1 March 2018;
(2)Affidavit of the mother filed 15 December 2021; and
(3)Affidavit of Ms C filed 15 December 2021.
CHRONOLOGY
1982 Mother born in Country M 1989 Father born in Country M 2008 The parties meet in Country L 12/11/2008 Father emigrates to Australia 2009 Date of birth of X 2009 Date of birth of D, the father’s child from a relationship with Ms G April 2011 Father sponsors mother, X and mother’s daughter Ms C to emigrate to Australia 2011 Date of marriage 2012 Date of birth of Y December 2013 On the father’s case, the parties separated under the same roof Late 2014 On the mother’s case, the parties separated July 2015 On the father’s case, physical separation occurred when he left the former matrimonial home 05/01/2018 Father files Initiating Application THE EVIDENCE
Each of the parties relied upon their trial affidavits.
Counsel did not elect to file notices of objection to each of the party’s trial affidavits.
At the commencement of the trial, the Court highlighted the provisions of Div 12A of the Family Law Act 1975 (Cth) (“the Act”), in particular whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Neither party spoke against the application of the provisions of s 69ZT of the Act.
I considered that the principles of s 69ZN of the Act would be better served by receiving the evidence of the each of the parties relied upon but exercising my discretion under s 69ZT(3) of the Act as to the weight which would be given to the evidence, particularly if it is contentious.
Neither party considered it necessary to raise objections to affidavits sought to be relied upon.
Notwithstanding that s 69ZN(7) provides as follows:
The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form as possible.
Section 69ZT of the Act does not exclude s 135 of the Evidence Act which deals with the general discretion of the Court to exclude evidence as follows:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) also enable a court to refuse to admit evidence if objectionable.
It is apparent from the construct of the affidavits relied upon by the parties that they were not the subject of critical consideration or settling as to the evidence sought to be relied upon, whether it was more probative than prejudicial or whether it was so inherently unreliable that it was likely to result in an undue waste of time.
Section 69ZT of the Act is not intended to provide a free pass for affidavits that are replete with grossly inadmissible evidence. It must be remembered that if evidence is not relevant, it is not a matter of weight but rather it is inadmissible.
In this case where the focus of each of the parties is to assert a level of family violence that existed such that each of the parties, but in this case the father in particular, presents as an unacceptable risk to the children, such a contention could not be supported by relying upon anonymous police reports and lack any evidence of provenance as to the content.
The mischief that is caused by the inclusion of grossly inadmissible information is that if considered more prejudicial than probative it may result in a court not being able to make a finding concerning family violence to the detriment of either the children or the parties.
The father
The father states that he was in employment from 2013 to 2018 when he issued proceedings.
The father was challenged as to whether he commenced paying child support upon separation. It was put to the father that he did not pay child support prior to initiating these proceedings. The father denied that assertion and went on to reinforce his position, namely that he made adequate and proper financial support for the family.
The issue of whether the father had or had not paid child support was to be considered by the solicitors for each of the parties. It was anticipated that an enquiry would be made to the Child Support Agency. Apparently no enquiry was made and the issue remains uncertain and unresolved.
The parties were concerned to establish the date of separation. The mother contends that the parties separated in 2014 when the father was told to leave the house. The father denies that the parties physically separated earlier than July 2015 which was the date upon which he said he paid the last rent.
The father denied that he was abusive or that he had used derogatory language when addressing the mother. Specifically, he denied that he had ever called the mother a “useless woman”.
The father denied any allegation of family violence but conceded that the relationship between the parties was volatile. The father intended to convey an overview of his relationship with the mother that was marred by frequent argument and aggressive language.
The father denied that he had taken or brandished a kitchen knife in threatening the mother nor did he say that he would kill the mother, the children and then himself.
The father says he moved out of the house in mid-2015 and he acknowledges that from time to time leading up to his departure, the police had been called to the home.
After he left, the father does not agree that he had a key to the house and says he did not return and did not harass the mother.
The father attempted to convey a different slant on the relationship with the mother in that she wanted to effect a reconciliation.
A notable aspect of the father’s evidence is that whilst he was prepared to acknowledge the relationship was volatile, at no stage did he accept any responsibility for his conduct. The father sought to deflect and or temper the allegation of family violence by his constant reference to the aggressive conduct of the mother.
He denied that his presence at the home was uninvited and referred to an occasion when he attended at the wife’s house to deliver a television.
The issue of the father’s uninvited contact with the family was highlighted by the father’s evidence that he met the mother and the children at a wedding, a chance meeting at the Suburb H Shopping Centre and at a local restaurant. The mother’s contention is that the father’s attendance was unexpected and most certainly uninvited and that the children did not engage with him. The father’s evidence is that on the chance occasions that he came in contact with the children, they appeared happy to see him.
I did not find the father to be an impressive witness. Whilst I place some reliance on his evidence as to the chronology of events as between the parties and in particular the date of separation, his trenchant refusal to accept any responsibility for the high level of dysfunction and aggressive interaction with the mother during the course of the parties’ relationship was not credible.
Ms B
Ms B’s evidence was of little assistance although she was able to speak of her time living in the home of the parties for about two months in late 2011.
But for the cross-examination of Ms B, her evidence would have been of little assistance. Under cross-examination, Ms B was able to expand upon her observations of the interaction between the parties providing some reinforcement for the father’s position that if there was volatility and aggression in the relationship, it was exhibited by the parties equally.
Ms F
Ms F is the wife of the applicant father. She commenced a relationship with him in early 2017. The gravamen of her evidence is her observations of the father meeting the mother and the children at a shopping centre on 3 December 2017.
The meeting was by chance and she observed that not only was the father excited to see the children but they appeared to reciprocate.
She then observed that the mother became abusive to the father and called him a “useless father”.[1]
[1] Affidavit of Ms F filed 25 November 2021, paragraph 12.
The evidence of Ms F was unshaken under cross-examination.
The mother
The mother relied upon her trial affidavit.
The evidence of family violence is sought to be corroborated by relying upon police incident reports. No attempt was made to call the police officers nor was there effective cross-examination in respect of the content of the police incident reports.
Similar to the father’s presentation, the mother denied that she behaved aggressively towards the father and in particular that she would start fights, that she burnt his clothes and damaged his mobile phone and laptop.
The mother asserted that Ms B is not the father’s aunt but in fact his sister. At paragraph 40 of her trial affidavit filed 15 December 2021, the following appears:
40.… It is my understanding that [Ms B] lied to Australian Immigration in order to sponsor her ex-husband [Mr E] to come to Australia and for some reason the family thought it advantageous for her to state that she was the aunt of the father.
It is difficult to understand why the mother considered it necessary to provide her view as to the basis upon which Ms B had undertaken to sponsor the father. The remarks were unnecessary and in circumstances where the issue was not pursued when counsel was given an opportunity to do so, it is open for the Court to find that the mother was malicious in her intent in the inclusion of the allegation in her affidavit.
The mother did not take any responsibility for the dysfunctional relationship with the father during the period of cohabitation.
The mother presented as an unreliable witness, not assisted by her trial affidavit.
There is little doubt that there remains a high degree of animosity between the parties and whilst not explored, much of the parties’ presentation could well be explained by their separate concern as to how they may be viewed in their community. I suspect that cultural mores and interfamily relationships provide the frame for the warp and weft of the dispute.
The mother’s evidence did reinforce the reality that family represents a much broader concept for the parties based upon cultural issues than is immediately apparent. The dispute between the parties is not limited to the impact that it has on each of them and by necessity, the children.
Ms C
Ms C is the mother’s eldest daughter. She is 22 years of age and is studying at university.
She summarises her observations during the course of the parties’ relationship as follows:
6.I say that my mother has never been violent towards myself or my sisters or the father in my presence. As children, there were a few occasions when my mother would smack me on the bum but she did not cause any pain or injury. When my sisters and I misbehaved, my mother would ordinarily tell us to go to our room for “time out”. Conversely, I say that the father was physically violent towards myself, his 2 children and our mother. I recall an occasion when I was in either year 8 or year 9 when the father had left the house and asked me to wash the dishes. By the time he returned home I had not washed the dishes because my mother was sick and I was assisting her to care for [Y]. The father started yelling at me that I was useless and disobedient and he kicked my back and slapped me across the face with such force that I fell to the kitchen floor. The father then kicked me around my body when I was on the ground.[2]
[2] Affidavit of Ms C filed 15 December 2021.
Ms C remembers occasions when the father slapped X, was verbally and physically abusive towards the mother and referred to her as a prostitute and that her family were dirt.
Ms C’s recollections were predominantly prior to separation in 2014/2015. Her evidence must be tempered by her age at the time and the possibility that her observations lack detail and particularity.
I find Ms C to be a credible witness.
Ms J
Ms J was first introduced to the family on 15 June 2018 when she conducted a child inclusive conference. A memorandum was prepared.
At the time, Ms J noted that there had not been contact between the father and the children for three years and that together with the allegations of family violence, a cautious and structured approach would be required to facilitate reintroduction of the father.
In interview, the children were spontaneous in their refusal to see the father. Ms J records X as saying “I don’t want to because he hits us…he takes us to other people’s houses to sleep…he likes to shout at me…to hit me…in the car we were all screaming because he was shaking the car…he was trying to get into the car”.[3] The children were not able to relay any positive memories of their father and confirmed that they were frightened to see him.
[3] Child Inclusive Conference Memorandum to Court dated 15 June 2018, page 3.
Ms C was also interviewed by Ms J. She was 18 years of age at the time.
Consistent with her evidence, she reported to Ms J that the father was aggressive and she gave an account of witnessing the father choke her mother. She made observation of the father hitting X.
The conflict between the parties is apparent from Ms C’s recollection of the mother and the children meeting the father by chance in December 2017:
Asked whether she recalled bumping into him in December 2017, [Ms C] described having just come out [from] a movie with her mother and sisters, “we were all happy…we said [h]i to him…it was all so normal”. She added, “[w]e used to be so close when we [moved to Australia] … then he changed so bad I don’t think I can trust him anymore”.[4]
[4] Ibid.
Ms J was asked to prepare a family report by order dated 7 June 2019. Following interviews with the parties and the children in October 2019, Ms J published her family report dated 15 November 2019.
Ms J identified the issues in dispute and those identified during the assessment as follows:
23.The primary issue in dispute is whether [X] and [Y] would benefit from resuming a relationship with their father after not having had any meaningful contact with him for 3-4 years, in the context of allegations by the mother of significant family violence on his part.[5]
[5] Family Report dated 15 November 2019, page 6.
Consistent with his evidence, Ms J records the father as acknowledging the volatility of the relationship with the mother. The father denied that he had threatened to kill her or the children or hold a knife in a threatening manner.
Ms J interviewed the children and Ms C. It is apparent from the report that she was impressed with Ms C.
Ms J considered that she was able to place significant weight on the evidence of Ms C and her description of the father’s aggressive conduct.
Not dissimilar to the presentation of each of the parties in evidence, Ms J considered that their relationship was conflicted and dysfunctional. Each of them blamed the other as being the perpetrator of family violence.
Ms J did not consider that the children had been coached. At the time of interview, X was aged 10 and Y was aged 7. It must be remembered that the recollections of the children were in respect of events that had occurred more than four years prior to the interviews with Ms J. X would have been less than 6 years of age and Y 3 years of age.
Ms J was alive to the potential adverse impact upon the reliability of the history given by the parties, Ms C and the children by the considerable efflux of time.
Ms J brought to account what she considered to be the primary issue, namely the weight that could be attached to the mother’s evidence alleging family violence by the father and the effect on the children should they resume a relationship with the father.
The following summary appears at paragraph 80 of the report:
Whilst the father’s expressed intention in applying to resume a relationship with [X] and [Y] might seem commendable (and credible) namely to enable his daughters to know each other as siblings, and furthermore, even though a psychological report by [Ms K] has assessed the father as currently being “at low risk of family violence or harm”, information obtained for this assessment would seem to suggest that the children, especially [X], would not benefit from resuming a relationship with him at this point in time, for any reason, commendable or not. The father’s unequivocal and categorical denial of ever having been violent or ever having threatened to kill the mother, himself and the children ‘so there will be no case’ in circumstances that would seem to suggest otherwise, is of concern. It is difficult not to share the mother’s expressed view that “If he still lying then I’m scared more…he can do anything and still lie…none of us are safe”.[6]
[6] Ibid, page 21.
In evidence, it was apparent that the parties and by implication their solicitors had placed Ms J in a difficult position in that she had not seen the parties or the children since her assessment in 2019.
Ms J was asked to consider whether the evaluation summary would still be applicable.
The issue of whether there should have been an update family report was raised during case management hearings and for reasons best understood by the parties, no order was sought for a further family assessment or an addendum report.
Whilst Ms J was confident that the matters she considered relevant in 2019 remained so to the present, there is little doubt the lack of a further assessment and update report provides for an unfortunate lacuna in the evidence.
On a broader consideration of the issues, Ms J did feel confident in expressing her opinion that after seven years of no relationship between the father and the children, to do so now would be a difficult process. A better way forward for the children is to be made aware of the father’s existence and his ongoing interest in them by the provision of communication, gifts and an obligation on the mother to exchange information with the father concerning the children’s education and other aspects of their lives. Photographs would also be appropriate.
The mother remains opposed to the father having any contact, communication or information with or about the children. However, Ms J was satisfied that the father presented as a low risk of perpetrating future family violence. The interests of the children also requires a consideration of what will happen as they become older, are more independent and are likely to come into contact with the father, members of the father’s family and other community members in the local Country L community.
PRINCIPLES RELEVANT TO PARENTING ORDERS
I propose to adopt the following approach:
(1)Give consideration of the proposals put forward by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to the additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.
Section 61DA of the Act requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having regard to whether the matters as set out in s 61DA (if relevant) would rebut the presumption.
If the presumption is rebutted, the Court can proceed to make parenting orders having regard to the provisions of the Act. Based on findings pursuant to s 60CC, if the presumption applies (and in any event if the parties seek an order of equal shared parental responsibility and it is not rebutted) then s 65DAA of the Act requires a court to consider whether there should be an order for equal time. If not, then substantial and significant time. The test is whether the orders would be in the best interests of the child and reasonably practicable. As was said in MRR v GR (2010) 240 CLR 461 at [15] “Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”
In evidence, the father conceded that the orders sought by him would be at first instance difficult to implement given that he has not had any relationship with the children for more than seven years.
The focus is upon the extent to which the best interests of the children are served by a resumption of their relationship with the father.
PARENTING CONSIDERATIONS
Meaningful relationship
In Sigley & Evor (2011) 44 Fam LR 439, the Full Court undertook a review of the authorities with a view to defining “meaningful relationship” and in doing so considered at [136] the following observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at 83,502:
103.The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make orders most likely to promote the child’s best interest. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. …
(Emphasis in original)
A further consideration arises from the opinion of Ms J that the children remain fearful of seeing their father and whether their opposition potentially places them at risk of psychological harm if an order is made that they see the father against their will.
In Loddington & Derringford(No. 2) [2008] FamCA 925 Cronin J said:
169.There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
In Cotton & Cotton (1983) FLC 91-330 at 78,252, Nygh J considered that whilst it was generally desirable for a child to maintain a meaningful relationship with both parents:
… that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. …
In Wang & Dennison (No. 2) [2009] FamCA 1251 Bennett J made final orders that the children live with the mother, but declined to make any orders for the children to spend time with the father. This was based on the reluctance of both children aged 10 and 12 to re-establish a relationship with their father and his inability to see the children’s “needs for peace”.[7] There had already been an attempt at structured therapeutic counselling which was deemed to be unsuccessful.
[7] Wang & Dennison (No. 2) [2009] FamCA 1251 at [76].
Her Honour considered that the continuation of the reunification therapy would place the children at an unacceptable risk of emotional and physical risk:
76.… [the father] has pursued with grim unrelenting determination the opportunity to have a meaningful relationship with [the children] but has not done so out of any bitterness or vindictiveness towards the mother. Nor has his campaign been based on selfishness. I find that he is solely motivated by a desire to provide his daughters with a warm and loving home environment which he believes, with some justification, it is beyond the capacity of the mother to provide.
77.It is a sad fact in the family law jurisdiction that a determination which is most consistent with the best interests of the children can appear to reward bad behaviour on the part of one parent and work in apparent injustice for the well motivated and best performing parent. The Court has regard to what is fair as between the parents but, ultimately, parental interests must be subordinated to what is in the best interests of the children, or at least to the extent of any conflict. …
In Baglio & Baglio [2013] FamCA 105 Murphy J was confronted with a father that had neither seen nor spoken to the child for three years. The child did not harbor any positive memory of the father and the mother remained implacably opposed to the child spending time with the father. His Honour found that the mother would not encourage a meaningful relationship. At [105], his Honour noted that the mother gave evidence that there was no mention of the father in her home and that “the child ‘basically knows of [the father’s] existence and violence”.
His Honour said at [121] that “if there is no unacceptable risk of harm to her, the child should have the opportunity to know, and have an image of, a father who did not hit her.”
I have carefully considered the evidence and whilst not impressed with the presentation of either of the parties, weight can be given to the evidence of Ms C. She impressed Ms J and I found her evidence to be reliable.
Whilst it is inexplicable that the father did not call evidence from his psychologist as to the extent to which he may have gained insight as to the damaging consequences of family violence or whether the father presented as a present risk to the children, Ms J did not consider that the father presented as an unacceptable risk for the purposes of her assessment in 2019. She did consider that the father lacked empathy and insight and the problem presented to Ms J was that the children had not seen their father for four years. The relationship between the children and the father was distorted by their recollection of previous interaction with the father and the conduct of the mother in not promoting any knowledge of the father.
I am able to find that the volatility of the relationship between the parties and the more aggressive presentation by the father is consistent with a finding of family violence.
It is however a relevant consideration that the father’s conduct occurred in the years leading up to the separation in 2015.
I am not able to find that as a result of his conduct it is likely on the balance of probabilities that the children would be at physical risk.
The issue now is that as a result of the father’s conduct and the events that followed separation, the father has little or no relationship with the children. Whilst he holds a belief that if the children were to see him they would immediately be reconciled to resuming a relationship with him, I consider that his proposal is naive in that it ignores the very real risk of emotional harm and distress being occasioned to the children by the very process that would be required to explore and if appropriate to re-establish a relationship.
Whilst I consider that the mother’s evidence was exaggerated and unnecessarily florid, it is clear that both she and her adult daughter are unlikely to promote the children having a relationship with the father.
Children’s wishes
As discussed, no effort was made to assist the Court in understanding the children’s current view of their father and resuming a relationship with him. The only evidence is that of Ms J which is to the effect that where there has been family violence established, it is unlikely that a child’s view of the extent of the relationship that they would wish to have with the father has changed.
Even so, I consider that little weight can be placed upon the wishes of the children in circumstances where the last evidence available is in the family assessment report prepared in 2019, some four years after the last occasion that the father saw the children.
The parties’ ability to communicate with the each other
The parties are not able to communicate at any level. There is no good will as between the parties and face to face civil communication if a forlorn of hope.
Whilst the parties are high functioning adults, given the volatility that was present during the course of the relationship, it is unlikely that they will reconcile their differences.
The nature of the relationship with parents and their partners
The father has re-partnered and now has a child from that relationship. The mother has not re-partnered. The father considered it important for the subject children to have a relationship with their half sibling.
The evidence of Ms J is that however admirable and desirable that might be, it is outweighed by the potential for emotional distress to be occasioned to the children by forcing them to resume time with the father.
The Court heard evidence from the father’s partner Ms F and in all respects there is no suggestion that Ms F would not provide a supportive and safe environment for the children. However appropriate the father’s partner may be and even if there is a paucity of evidence to support a contention that the father continues to present as a risk to the children, the overarching consideration is that seven years has now passed since the father last had any form of relationship with the children and that it was likely to have been unhappy and conflicted.
The effect of any change to the children’s circumstances
The orders sought by the mother would see little change to the children’s current circumstances. The orders sought by the father would represent a dramatic change. There is no evidence that the children would be able to navigate what might be a significant, emotional adjustment in seeing their father. It is uncertain whether it would be successful nor was any evidence presented as to how it might be undertaken given the evidence of Ms J that if there is to be a resumption of time then it would need to occur in a slow and graduated fashion.
It is not a matter for the Court to impose its will in terms of how an order for resumption of time could be implemented.
The parties did not present evidence and it would not be appropriate to guess how it should take place.
In closing submissions the father did not propose that he be able to provide communication and gifts to the children.
The ability of the father to resume communication with the children and send gifts and presents such that they are aware of his existence was considered to be of advantage to the children, even though the opportunity to do so is rejected.
FAMILY VIOLENCE
I do not overlook the very real issue of family violence. The issue of family violence was considered by the Full Court in Sawant & Karanth [2014] FamCAFC 235 where the Court said:
37.In Amador itself this Court referred to the fact that the trial Federal Magistrate had held that she was “…unable to make a finding that the father perpetrated the specific acts of violence alleged by the mother upon her…”. Their Honours considered at some length what was said by the High Court in M v M (1988) 166 CLR 69 (a case involving serious allegations of a different type – child sexual abuse) and, having done so, said:
87.The above passage from the High Court is sometimes quoted to support an argument that it is unnecessary for a trial judge to make positive findings in relation to allegations, inter partes, of assault and other serious matters of domestic violence. Consequently the Court is urged not to allow any exploration of any such allegation. A close reading of the decision makes it apparent that it is not what fell from the High Court.
88.It is clear from the decision of the Full Court in A v A (1998) FLC 92-800 that, in appropriate cases, it may be important to make findings of this nature if they are available and necessary to determine what is in the best interests of the child. It is important to note that A v A was not a case where allegations of abuse of children was made. The allegation was that the father had attempted to murder the mother. …
(Emphasis in Original)
As the Full Court said in Amador & Amador (2009) 43 Fam LR 268:
79.… Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. …
PARENTAL RESPONSIBILITY
The father has had no input into the children’s lives for more than seven years. The mother has made all of the major and day to day decisions in respect of the children and to the extent that in 2019 the children impressed Ms J, it seems that she has been able to appropriately parent them.
The parties are unable to communicate with each other and according to the mother both she, her adult daughter and the children remain fearful of the father. Whilst that fear may now no longer have a focus given the father’s presentation, it appears that it is genuinely held. In circumstances where the father has not seen the children for an extended period, that he has had little or no input into their lives since separation and the parties remain unable to communicate with each other, it would be in the children’s interests for there to be an order of sole parental responsibility as sought by the mother.
CONCLUSION
It may well be that many years after separation, the father now has much to offer the children. Even so, it is from the children’s perspective that I must consider the extent and nature of any relationship between the father and the children going forward.
I do not consider that at this stage the children will be advantaged by them spending time with the father however the evidence of Ms J is persuasive in terms of her recommendation that the father should be permitted to communicate and send gifts to the children if he should decide to do so.
I also consider that the father should be permitted to know of matters affecting the welfare and development of the children and as such he should receive school reports that enable him to be apprised of their progress.
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 20 May 2022
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