Smallwood and Smallwood
[2016] FamCA 506
•22 June 2016
FAMILY COURT OF AUSTRALIA
| SMALLWOOD & SMALLWOOD | [2016] FamCA 506 |
| FAMILY LAW – CHILDREN – final orders – where the mother seeks orders for sole parental responsibility and only spend time with the father following his engagement in a psychiatric assessment – where the father opposes the orders and seeks gradually increasing time with the children – where the children are unwilling to engage with the father – where the family consultant supports a termination of the father’s relationship with the children – where it is found that the mother is incapable of supporting a relationship between the children and the father – where consideration is given to the best interests of the children – where the fear experience by the children of their father is not founded – where an order is made for shared parental responsibility but the mother retains sole parental responsibility for health and education. |
| Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN, 69ZT, 69ZQ, 69ZR, 69ZV, 69ZX |
Family Law Rules 2004 (Cth) r 15.13
| Baglio & Baglio [2013] FamCA 105 |
| APPLICANT: | Ms Smallwood |
| RESPONDENT: | Mr Smallwood |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
| FILE NUMBER: | ADC | 202 | of | 2011 |
| DATE DELIVERED: | 22 June 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 27 & 29 January 2016, 26, 27 & 28 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dillon |
| SOLICITOR FOR THE APPLICANT: | Daniel John Lawyers |
| COUNSEL FOR THE RESPONDENT: | Litigant in Person |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs Tinning |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
Orders
That the parties have shared parental responsibility for B born … 2003 and C born … 2006 (“the children”).
That the mother have sole parental responsibility in respect of matters relating to education and health issues affecting the children.
That in respect of education and health issues affecting the children the mother will advise the father in writing (electronically or otherwise) and provide her views about any major issues affecting the children’s education and health and shall consult with the father about such issues in a genuine effort to come to a joint decision, but if no agreement is reached between the parties then the mother shall make the final decision and advise the father in writing (electronically or otherwise) of that decision.
That the father be at liberty to send cards, letters and gifts to the children on no more than one (1) occasion each month and at a postal address provided by the mother and that the mother do ensure that the same are read to and provided to the children.
That the father be authorised to receive direct from the children’s school (at his expense) information regarding the children’s attendance and progress, including but not limited to school reports, school photos and parent newsletters.
That the mother do provide to the father on at least one (1) occasion each six month period a current photograph of each of the children.
That the mother keep the father advised of the name and address of the children’s treating medical practitioners and any changes thereto and shall advise the father in writing of any hospital admission in relation to either of the children and shall provide such authority to enable the father to contact such treating medical practitioner and obtain information in respect of the children’s health, ongoing medical treatment or other health related matters affecting the children or each of them.
That the mother is restrained and an injunction granted restraining her from denigrating the father in the presence or hearing of the children or either of them and from preventing any other person to do so in the presence or hearing of the children or either of them.
That the father be restrained and an injunction granted restraining him from posting, publishing or in any way utilising social media that refers to, includes or comments on either of the parties or the children either by way of word or image and from discussing the litigation, the orders made or reasons for judgment.
That at her sole expense the mother do cause and facilitate the attendance of the children upon an appropriately qualified health professional as may be nominated by the Independent Children’s Lawyer, with the focus of such attendance to be as follows:-
(a) To explain the orders to the children;
(b)To reinforce with the children that the father does not present as a risk to either of them;
(c)That they have a right to have a meaningful relationship with their father and that it would be to their advantage for that to occur at some time into the future.
That to better facilitate the counselling process, leave is given for a copy of the reasons for judgment to be provided to the nominated health professional.
Other than assisting with the implementation of order 10 herein, the appointment of the Independent Children’s Lawyer shall be discharged.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Smallwood & Smallwood 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 ADELAIDE |
FILE NUMBER: ADC 202 of 2011
| Ms Smallwood |
Applicant
And
| Mr Smallwood |
Respondent
REASONS FOR JUDGMENT
Introduction
By Second Further Amended Initiating Application filed 11 September 2015 Ms Smallwood (“the mother”) seeks parenting orders in respect of B born in 2003 (“B”) and C born in 2006 (“C”) (collectively “the children”).
A summary of the orders sought are as follows:-
1)That all previous parenting orders be discharged.
2)That the mother have sole parental responsibility for the children and that the children live with her.
3)That the father’s time with the children is conditional upon him providing a psychiatric report that indicates stability of the father’s mental health for a period of 12 months and that recommends time with the children.
4)On the basis that the above paragraph has been met, the father spends time with the children initially at a children’s contact service progressing to unsupervised time dependent on the children’s wishes.
5)That the mother be at liberty to engage with a child psychologist for the purpose of assisting the children.
6)That the father be restrained from attending the Suburb D or E School.
7)That the mother facilitate correspondence between the father and the children and provide photographs of the children on a 6 monthly basis.
8)That the parties shall keep each other informed of any medical related issues concerning the children while in their respective care.
9)That the parties be restrained from denigrating the other in the presence of the children.
10)That the father pay the mother’s costs.
The father did not file a formal response but he seeks orders that his time with the children be reinstated on a gradually increasing basis leading to a final position whereby the children would spend 40 per cent of their time with him.
The mother was represented by counsel and the Court was assisted by the involvement of an Independent Children’s Lawyer (“ICL”). The father remained self-represented as he had done so for a majority of the proceedings.
The ICL is effectively in agreement with the mother in that he seeks orders that the mother have sole parental responsibility for the children and that the children live with her. In relation to time spent with the father the ICL seeks an order that it be in accordance with the children’s wishes. Further ancillary orders are sought relating to communication between the children and their father, correspondence, receipt of photographs and school reports and additionally that the father is restrained from attending the children’s school.
The mother relied upon the following documents:-
1)Second Further Amended Initiating Application filed 11 September 2015
2)Affidavit of the mother filed 11 September 2015
In addition, the mother relied upon a Case Outline document prepared by counsel filed 27 January 2016.
The father relied upon the following documents:-
1)Application in a Case filed 12 November 2015
2)Affidavit of the father filed 12 November 2015
3)Application in a Case filed 18 January 2016
4)Affidavit filed 18 January 2016
The ICL relied upon the following documents:-
1) Affidavit of Mr F filed 30 November 2014
2) Affidavit of Mr F filed 27 April 2015
In addition the ICL relied upon a Case Outline document prepared by counsel filed 27 January 2016.
Procedural background
The mother first initiated proceedings in the Federal Magistrates Court (as it then was) on 20 February 2011. Final orders were made by Federal Magistrate Mead (as she then was) with respect to the children’s issues on 14 December 2011. The final orders provided that the parties have equal shared parental responsibility for the children and that the children live with the mother but spend gradually increasing time with the father over subsequent years. Specific orders were made relating to holiday time and special occasions. Both parties were directed to continue treatment with their respective psychiatrists as well as engagement with the family consultant until the conclusion of the first term of the 2012 school year.
On 31 July 2014 Judge Mead suspended the children’s time with the father. Subsequently the parties enrolled in a children’s contact service and an ICL was appointed. The father was required to obtain a report from a psychiatrist.
On 28 January 2015 orders were made that the ICL facilitate the preparation of a family report. The report was to include at the discretion of the expert observed interaction between the father and the children. The matter was then adjourned to the 15 June 2015. In any event the matter was listed for trial on 1 February 2016 with 5 days allowed.
The parties were further assisted on 28 April 2015 when Judge Mead made orders requiring the ICL to provide to Ms G (“the family consultant”) reports of Dr H, Dr I and Ms J. The import was not the effect of the order but the fact that the parties were well aware of what documents were being prepared and for what purpose.
On 19 June 2015 the matter was transferred to the Family Court of Australia.
By order of the Registrar on 7 July 2015 the matter was listed for a first day hearing before me on 31 July 2015. On that date trial directions were made and the matter was listed for final hearing commencing 23 November 2015 as a 5 day matter.
It is not controversial, although the father may have a different version, that the father did not comply with the trial direction orders of 31 July 2015. Some leeway was given to the father because it was considered that he had obtained legal representation and in all the circumstances the father being represented would likely be conducive to the matter being better prepared for trial. A difficulty subsequently arose in relation to the father’s representation and an application was made on 4 November 2015 by his solicitor that he be given leave to withdraw. From then on the father was self-represented.
On 12 November 2015 I vacated the trial listed for 23 November 2015 and listed the matter for hearing on 21 December 2015 as a 3 - 4 day matter. The father again failed to comply with trial directions. The matter was adjourned to 18 December 2015. On that date the husband did not appear. The order noted that the trial was now listed for the 27 January 2016 and that because the father had not complied with trial directions the matter was to proceed on an undefended basis subject to any application that may be filed by the father.
The trial commenced on 27 January 2016. On that occasion it was anticipated that the mother’s application would proceed on an undefended basis. However, the father appeared unrepresented. It was his position that it was due to an administrative error that he did not attend on the 18 December 2015.
The issue that then confronted the Court was whether the matter should proceed given that it was listed on an undefended basis notwithstanding the attendance of the father, or whether the matter should proceed but with the father given leave to cross examine the witnesses proposed to be called on behalf of the mother and the ICL but not to adduce his own evidence. A third option was whether leave should be given to the father to rely on affidavit material and participate fully in the proceedings. The application for leave was opposed by the mother.
I did not consider that further adjournment of the matter would be in the interests of the children. I was prepared to discharge the order that the matter proceed on an undefended basis and in doing so I accepted that the Court may be assisted by hearing from the father and allowing him to participate. I granted leave for the father to rely upon his affidavit filed 18 January 2016.
I proceeded to hear and determine objections made by counsel for the mother in respect of the father’s affidavit material. Generally speaking, whilst there was no objection to the case proceedings pursuant to s 69ZT of the Family Law Act 1975 (Cth) (“the Act”) nonetheless there were some matters which counsel for the mother considered were so lacking in relevance and/or were considered too scandalous or offensive or without merit in terms of expertise to give opinion evidence and therefore should be struck out pursuant to r 15.13 of the Family Law Rules 2004 (Cth) (“the Rules”).
The proceedings were conducted pursuant to the provisions of s 69ZN of the Act and in determining and giving effect to the principles as set out therein, I advised the parties of the general duties and powers as set out in s 69ZQ and the ability that I have to make determinations, findings and an order at any stage of the proceedings if it will assist in the better management of the trial pursuant to s 69ZR.
I considered that I should not deviate from the provisions of s 69ZT and accordingly the parts of the Evidence Act 1995 (Cth) (“the Evidence Act”) as set out in s 69ZT were not the subject of further application.
In making that determination I considered the following matters:-
i.The importance of the evidence in the proceedings;
ii.The nature of the subject matter of the proceedings;
iii.The probative value of the evidence;
iv.The power of the court (if any) to adjourn the hearing to make another order or give directions in relation to the evidence.
I reminded the parties of s 69ZV which relates to my ability to hear the evidence of children in matters which would ordinarily contravene the rules of hearsay and importantly s 69ZX which relates to my ability to truncate, limit and manage what might be described as the routine aspects of the trial.
The father was provided with the decision of Re F: Litigants in Person Guidelines (2001) FLC 93-072 which I considered would be of assistance to him in understanding in what capacity the Court could assist throughout the proceedings.
The matter proceeded and was heard over 5 days eventually concluding on 28 April 2016.
Background
The mother was born in 1973 and was 42 years of age at the time of trial. The mother is a student at TAFE. She anticipates she will complete her studies at the conclusion of 2016. She is otherwise unemployed.
The father was born in 1968 and was 47 years of age at the time of trial. The father is currently unemployed but previously operated his own business.
The parties met in 1995 and were married in 1997. The parties separated in January 2011 and were divorced April 2012.
There are two children of the relationship.
The mother and the children live with the mother’s younger sister.
The mother has various concerns relating to the conduct of the father, in particular the mother claims the father is suicidal and delusional and she has expressed serious concern for the children’s safety in the father’s care. She has raised further allegations that the father perpetrated emotional and psychological abuse and physical violence including sexual abuse of the children. She says he was manipulative and aggressive throughout their relationship and has continued to publish inappropriate and offensive material on social media throughout the proceedings.
The father trenchantly denies the allegations. He says that the mother has alienating the children from him and raises concerns that this has significantly affected his relationship with them. He says the mother suffers depression, anxiety and anorexia nervosa.
The father has spent no time with the children since 10 June 2014.
Chronology
| 1995 | Parties commence relationship. |
| 1996 | Parties are engaged. |
| 1997 | Parties are married. |
| 2003 | B born. |
| 2006 | C born. |
| 01.01.11 | Parties separate. |
| 20.06.11 | Intervention order finalised against the father naming the mother as protected person. |
| 12.07.11 | Dr I, psychiatrist report of the father. |
| 13.07.11 | Dr I, psychiatrist report of the mother. |
| 15.08.11 | Dr H, family assessment report (“first family report”). |
| 11.11 | Ms J, family assessment report (“second family report”). |
| 14.12.11 | Children’s matters resolved in the Federal Magistrates Court (as it then was) with the parties sharing parental responsibility and the children residing with the mother and spending time with the father. |
| 21.04.12 | Parties divorce. |
| 12.05.14 | Father becomes bankrupt by order of the Federal Court of Australia. |
| 10.06.14 | Former matrimonial home repossessed. |
| 10.06.14 | Father admitted at K Medical Centre. |
| 12.06.14 | Father attempts suicide. |
| 24.06.14 | Father admitted at L Care Centre. |
| 22.07.14 | Mother initiates proceedings. |
| 26.07.14 | Father attempts suicide. |
| 31.07.14 | By order of the Court the father’s time with the children is suspended. |
| 11.08.14 | Father publically named by South Australian Office of Consumer and Business Services for operating a business without a licence. |
| 11.08.14 | Father admitted at K Medical Centre. |
| 24.12.14 | Dr I, psychiatrist report of the father. |
| 28.01.15 | Property matters resolved in the Federal Circuit Court. |
| Early 2015 | The children are removed from M School and enrolled at E School. |
| 24.04.15 | Ms G, family assessment report (“third family report”). |
EVIDENCE
The mother
The mother relies upon her trial affidavit filed 11 September 2015 supplemented by further evidence given with leave.
The mother provides a brief history of the marriage and generally alleges that the relationship between the parties has been unhappy soon after their marriage in 1997. Relevant to the proceedings, the mother alleges that on 25 December 2010 there was an altercation between the parties which resulted in the father pushing the mother over the back of a lounge and then placing his hands around her neck and applying pressure.
The incident was allegedly witnessed by the children who expressed distress at the altercation.
A second incident occurred on 31 December 2010 where the mother alleges that the father hit her across her left arm causing pain and ultimately a bruise. B witnessed the incident and was distressed.
The parties separated on 1 January 2011.
The mother obtained an intervention order on 20 June 2011 in which she is named as the protected person.
To a significant degree the conflict between the parties is exacerbated by mistrust arising from the father’s financial mismanagement of the family’s financial position.
The mother alleges that between 2007 and 2011 the father withdrew a total sum in excess of $800,000 from the mortgage account. To date she alleges that the father has not provided any explanation, nor has he accounted for the funds.
She asserts that post-separation the father lived an extravagant lifestyle and accumulated substantial liability to a range of organisations, in particular the Australian Taxation Office and M School.
Ultimately the father was made bankrupt on 12 May 2014 and by order made 10 June 2014, the former matrimonial home was repossessed and the father evicted.
Following the eviction, the father had a mental health episode which resulted in an inpatient treatment order being made.
Whilst admitted to a hospital as an involuntary patient, the father attempted suicide on 12 June 2014.
The mother is concerned as to the father’s mental health, his stability and in particular his history of taking an overdose of Benzodiazepine medication together with alcohol, with the possible intention of suicide.
The father was a licensed professional. Unfortunately there was publicity in August 2014 from the Office of Consumer and Business Services warning the public in respect of any dealings with the respondent. The reports in respect of the father were both in print and electronic media.
It is significant that the mother highlights that the children were embarrassed and distressed by the adverse reports in the media and she alleges that they were the subject of taunt and verbal abuse by their peers at school.
In September 2013, the mother alleges that the children reported to her that their father had taken them to various clothing stores and had encouraged them to steal items of clothing. B apparently set out the items that she had observed the father to steal in a letter annexed to the mother’s trial affidavit at “US17”. The mother ceased the children’s time with their father following his hospitalisation on 10 June 2014. All existing orders that enabled the children to spend time with him were suspended on 31 July 2014.
The mother considers that since the cessation of time, the children’s behaviour has improved, they are more emotionally stable and have developed confidence.
A number of physical sequelae have also improved. The children no longer suffer from headaches, angry outbursts and in relation to C, she stopped bedwetting.
On 19 May 2011, C is reported to have made a disclosure to the mother and in the presence of the maternal grandmother to the effect of:-
When I was at [the father’s] house he was touching my bottom and vagina with his hand and finger and was touching my vagina for a very long time.
The child allegedly told the father to stop but he would not do so.
The incident was reported to the Child Abuse Hotline and investigated by Families SA and SAPOL but no action was taken. It appears that the allegations were raised by C during her interview with the family consultant in March 2015.
Following separation, the mother became aware of the father’s use of social media to ventilate the personal circumstances of the family and the marriage breakdown. Of particular concern to the mother was the manipulation of a photograph of C posted by the father onto his “Facebook” page which was then altered by an unrelated person who responded to the page with a picture of naked children’s bodies holding each other with adult faces superimposed over the original face.
It also appears that the father utilised social media to comment upon the Family Court and the manner in which cases are conducted. It would seem that he was also disparaging of the mother and such was the online interaction that a person not well known to the parties made comment as to how he viewed the mother and was disparaging of the manner in which the Court’s allow the manipulation of the children in favour of the mother to take place.
By order of 11 December 2014 the children were permitted to enrol in E School in the 2015 academic year. The mother considers that the children have settled in well and that their results appear indicative of favourable process.
Under cross examination, the mother considered that the children were within the normal weight range and were not anorexic as alleged by the father.
The mother denied that the father took on a significant parenting role prior to separation, but did concede that the father worked long hours which left little time for family interaction. Generally he spent time with the children on the weekend.
The father challenged the mother as to an incident at Adelaide Airport when the father and the children were about to travel to Melbourne during the school holidays.
The mother agreed that she and her sister were at the airport at the same time. The father alleges that the mother attempted to create a scene and to stop the children travelling with the father. The Federal Police were involved and the father’s solicitor was also contacted.
The father alleges that the mother was escorted out of the terminal building by the police and once the children settled and stopped crying, they proceeded on their holiday.
The mother disagreed with the father’s assertion that her intention was to disrupt the holiday and said that it was a coincidence that she and her sister were at the airport at the same time as the husband and the children. Her explanation is that they were seeing a friend depart and she then saw the father with the children.
The order of 14 December 2011 gave the father the opportunity to spend time with the children for half of all school holiday periods commencing September/October 2012.
I do not accept the mother’s explanation for her attendance at the airport. I consider that she attended with her sister with the intention to disrupt the children’s time with their father.
A consideration of the orders made of 14 December 2011 are clear in their terms. The father was to enjoy significant and substantial time with the children which included regular time each fortnight and one half of the school holidays.
The father did not deny the mother’s allegation that he had been apprehended for shop stealing. He did deny that he attempted to involve the children.
Following the suspension of time with the father, the mother was obliged to send photographs of the children to the father. She determined that she would comply with the obligation by sending a photocopy of pictures of the children. She could offer no credible explanation for her actions and ultimately conceded that she intended to restrict the father’s knowledge of the children.
The mother confirmed that the father had provided small gifts and presents to the children and she did not press the children to read the letters or receive the gifts. Rather, she determined that the letters and gifts would be stored in the shed and at some time if the children ever expressed an interest they would be available to them.
The mother was concerned that any photographs of the children might be used by the husband inappropriately via Facebook or indeed something more sinister.
The mother explained the cessation of time with the father upon his admission to hospital by telling the children that the father was not well. The mother conceded that she may have told the children that he had been self-harming.
It seems at its highest that B knew that the father was sick, was getting help and was trying to help himself. The father wrote to the children frequently and as at the date of giving her evidence, the mother conceded that correspondence is forwarded each fortnight.
She admitted with some reluctance that the majority of the communication was benign and when pressed she could not recall any inappropriate remarks in respect of any correspondence forwarded. Certainly no adverse correspondence was tendered into evidence.
The mother says that following the cessation of time, the children but in particular B’s behaviour normalised and she became a happy and well-adjusted child.
The mother attempted to draw a distinction and comparison between the children’s behaviour prior to their cessation of time and the period thereafter.
The mother considered that C had also improved. When she was seeing her father she had frequent headaches, stomach problems and usually expressed opposition to spending time with the father.
The medical advice received by the mother was that the child’s behaviour was likely to be psychosomatic.
The mother’s evidence was unimpressive. Irrespective of the nature of communication and gifts that the father had forwarded for provision to the children, the mother’s attitude was reflective of her view that the children’s interests would be best served by a severing of all connection and relationship between the children and their father.
In this endeavour the mother’s conduct has met with singular success.
The mother was not able to explain the extreme reaction of the children towards their father in circumstances where it is difficult on the evidence to find a reason.
I formed the view that whilst the mother was clearly able to adequately parent the children and attend to their needs, the household is not in any way conducive to presenting a positive view of the father. Any opportunity that might present itself to alienate the children from their father has been adopted by the mother.
On the mother’s evidence, there is no satisfactory explanation for the oppositional behaviour and conduct of the children towards their father although it is a matter for consideration that the impact upon the children of the family’s financial demise may well have had a lasting adverse effect on them.
The father
The father relied upon his affidavit filed 18 January 2016.
Much of the father’s focus was what he considered to be abuse directed towards him by the mother.
The father sets out the extent to which he was involved in the day to day lives of the children. Far from accepting the contention of the mother that she was the primary carer, he asserts that he was very much involved in their lives both in the home but also in terms of extra-curricular and outdoor activities.
He was also engaged in domestic duties and considered that the wife suffered from obsessive compulsive disorder which required the house to be spotless.
The father denied any allegation of family violence and remains angry about what he considers were the false allegations of the mother which led to a SAPOL investigation and ultimately the father being arrested and imprisoned on bail. Following five months of litigation, the domestic violence allegations were withdrawn following the mother’s inability to produce evidence to substantiate her claim.
Shortly thereafter the father alleges that the mother then made allegations in respect of sexual abuse involving C and was dismayed at the mother’s behaviour in taking C to a medical practitioner, local hospital and the rape clinic which required the child to be involved with interviews and investigations by child protection services. At this time C was four years of age.
Specifically the father denied any allegation that in providing B with an Ipad he also assisted her in downloading pornographic material. The father counters the mother’s allegation by that information received from SAPOL suggesting that any pornographic material downloaded on B’s Ipad was as a result of the involvement of her school friend N and that there was no evidence of any connection involving the father.
The father admits that in June and July 2014 he attempted suicide. He says that he lost all hope and that he “suffered a tremendous grief with the culmination of losing the family home, becoming homeless, becoming bankrupt, losing my business, and especially and most importantly losing custody of the children”.
He considers that as a result of counselling and intensive therapeutic intervention he has gained significant insight and currently presents no risk either to himself or the children.
The father remains dismayed at the assertion that the children are frightened of him. Prior to the cessation of time and pursuant to the orders, the children spent five days per fortnight and one half of school holidays in his care. It was a theme of the father’s case that he had a “forty percent shared custody arrangement”.
The father denies that any behaviour on his part could explain the children’s reluctance to spend time with him and he opines that it is the mother’s toxic reaction towards him and the manner in which he is demonised to the children that more likely explains their unwillingness to engage with him.
The father does admit that on 26 December 2013 he stole some girls clothes and garments. He explains that he felt “inadequate” as a father and that he has no explanation for his conduct.
He denies that the children were in any way engaged in his conduct.
The father gave evidence that B did engage in shoplifting, but that it was with a friend of hers and without the involvement of the father. B and the friend were apparently apprehended.
The father denies the alleged assault of the mother on 25 December 2010. He says that the mother was attempting to obtain his mobile phone because she had accused him of communicating with “homosexuals”.
He agrees that there was a tussle but that the mother was the perpetrator and he was simply defending himself. He denies that he attempted to strangle the mother and contrary to the assertion that he is quick to anger, he says that he is able to control his behaviour.
Annexure “US21” to the mother’s trial affidavit is a sample of communication sent to 50 of the father’s clients.
The communication is odd in its combination of highly personal and private matters between the parties and a reassurance to the business clients of the father that his business will continue to operate.
He complains that “Sadly, [the mother] has created a bitter smear campaign against me, claiming outrageous allegations of assault and violence, in her bid to minimise and/or restrict my ability to care for and have access to my daughters”. A further social media post as evidence by “US25” contains the following plea:-
CAN YOU PLEASE HELP ME? Can you please explain, in lay-mans terms, WHY a DAD has to fight and argue and prove and justify to a Federal Family Court Justice (Judge) at a 5 day TRIAL…why I should be “allowed” and “permitted” to have a relationship with my own 9 & 12 year old daughters.
There was no attempt to impose anonymity and given that the post had a picture of the father, his name, email and postal address, he could not have been concerned that ultimately the mother and/or the children may have been aware of his attitude.
There is focus on the response to a posting by the father on 21 February under his name and including a picture of one of the children. The caption is as follows:-
[The father] was so EXCITED to spend yesterday with his adorable and totally gorgeous daughter…we had the BEST DAY EVER!! See you soon darling xxxX
The post suggests that nine people “like this”. Unfortunately, one of them appears to be a stranger by the name of Mr O who responded:-
oh, ….what a cute is she….,
There then appeared pictures by Mr O of naked children with adult heads superimposed on their bodies. Somewhat distressingly, there is a picture of a sow with babies having been superimposed over the piglets.
By further post of 20 December 2014, the father says:-
The Courts & evil manipulating mothers are simply creating another “Stolen Generation”. Children being removed from loving, caring & dotting (sic) dads is incomprehensible!!!
Not surprisingly, the father’s post drew supportive remarks from a range of strangers and like minded combatants.
These posts had come to the attention of the mother. She was rightly distressed at their content and it was put to the father that he lacked total insight in disclosing his name and therefore the surname of the children, the litigation and his view of same, and one of the children’s pictures being included.
It was put to the father that his conduct in respect to the use of social media was outrageous. It was only after the father understood that I may have formed an adverse view in respect of his conduct that he conceded that it would have been better not to publicise his dispute with the mother via social media.
The father was asked whether he was still angry with the mother in respect of his belief that she had complained to the Officer of Consumer Affairs which had then led to an investigation of the husband’s practice and conduct as a businessman.
Notwithstanding the father’s answer that he now was not worried about her actions, nonetheless it was apparent that he still believed she was behind the complaint and that he blames her for losing his house, removing the children from their private school and for retaining the property settlement sum of $435,000.
The father freely admitted that he considered that the mother was evil and he was disparaging of her.
To some extent the father’s attitude was founded upon his distress at not having seen the children for 23 months and in circumstances where he had little or no knowledge of how they were progressing.
The father considers that the mother has engaged in “parental alienation”. He does not consider that there was any basis for the cessation of time with him and whilst he does concede that there were episodes of suicidal ideation, they were episodic and not necessary demonstrative of a psychiatric condition which would in any way place the children at harm in his care.
He specifically denied the mother’s allegation of an assault on 26 December 2010. He noted that C was about four years of age and that it was difficult to imagine that she would have made the observations and now be able to accurately reflect upon the event. In particular, that she considers the father was the perpetrator.
It is not that the children are lying but rather, they are simply mistaken by sheer dint of their age at the time.
Counsel for the ICL put to the father the proposition that the mother is clearly not motivated to support the relationship between the children and the father and that when that is considered against the children’s current presentation namely, that they hold a very negative view of the father, it was unlikely that the father and the children could be easily reconciled.
The father’s response was that a re-introduction should occur in a graduated fashion and over an extended period of time. It could start with one hour per week and take place in “neutral territory” to enable the children to reconnect with him. The use of Skype and Facetime could also be of assistance.
The father’s response was reasonable in his recognition that however it has come to pass, the children have adopted a highly oppositional approach to resuming a relationship with him.
The presentation of the children in respect of their father is clearly not assisted by the mother’s determination to sever all relationship with him. The mother conceded that she does not read the father’s correspondence to the children and any presents or gifts are not given to them but rather left in the shed.
The father has ongoing counselling and therapy and sees his doctor and a psychologist regularly engaging in “cognitive behaviour therapy”.
Counsel for the mother sought leave to reopen the cross examination of the father. The basis was that the father had written on school reports that had been provided to him in Court.
The father had made much of the lack of information that he had been provided in respect of the children’s education. A copy of C’s school report for semester 2 of 2015 was given to him to peruse.
The father had apparently defaced the original report by highlighting the days absent and the number of late arrivals or early departure for the child with the word “why” underneath each item. As a result of the father’s actions, I considered it appropriate to reopen and the father was cross examined as to his motivation for defacing the child’s school reports.
His explanation was that he was concerned at the level of absenteeism, that he had had no involvement with the children since June 2014 and his concern was such that he marked the reports without really thinking about the consequences.
At the conclusion of his evidence I did not consider that the father was attempting to be untruthful, but that there existed an almost total lack of insight into his behaviour and the impact that it had on the children resonating with their preparedness to spend time with him.
Ms G (family consultant)
The family consultant was appointed to undertake a family assessment and then produce a report by letter forwarded from the ICL dated 18 February 2015.
The interviews took place on 22 April 2015 and involved interviews with each of the parties and the children.
The family consultant appears to have appropriately considered the important features of the background to the dispute. She had the advantage of considering the Court documents up to and including the order of 20 April 2015 together with further documents provided by the ICL.
In particular, she considered the following:-
·Subpoenaed material from K Medical Centre and SAPOL
·Psychiatric report prepared by Dr I dated 24 December 2014
·Historical documents including a report from Dr I dated 13 July 2011 in relation to the mother
·Report from Dr I dated 12 July 2011 in respect of the father
·The family assessment report from Dr H dated 15 August 2011
·The report from Ms J dated November 2011
The family consultant summarised the concern in relation to the children as follows:-
·Conflict and violence
·Mental health
·Parental alienation
·Children’s attachment needs
At the time of the assessment, the father had not seen the children for about 10 months and complained that the mother had not provided him with any information.
The mother’s response was that the father was unrelenting in his approach to seeking information and would press until he achieved what he wanted. The mother presented as a person under siege by the father and she blamed him for everything that had happened to the family.
The mother continued to believe that the father had inappropriately touched C. The mother’s strategy in dealing with the child is to not raise the issue again hoping that the child’s memory of the incident would ultimately dissipate. It was therefore allegedly distressing to the mother that C asked the mother in preparation for the attendance on the family consultant whether she could say something about “what happened with me and [the father]”.
The father denied any inappropriate sexual engagement with C, or that he was ever violent to the mother or the children. He denied that he was quick to anger and considered that the mother had lied in her allegation that he had tried to ram a police car in 2014.
He could not understand how he found himself in a current position of spending no time with the children when leading up to June 2014 they spent 40 per cent of their time in his care.
He considered that the violence was perpetrated by the mother during the relationship and that she was in denial at her own mental health issues which most obviously manifested themselves in obsessive compulsive behaviour and anorexia.
He did not consider that the mother’s home was a happy environment for the children.
The mother considered that the father lived in a “fantasy world”.
She did not consider that he had his mental health issues under control and she now considers that a diagnosis of personality order and traits of narcissistic personality are consistent with her observations of his behaviour.
He was irrational in his conduct, violent and abusive to her and the children.
She viewed his business dealings as illegal and immoral and he would readily resort to fraud if it served his purpose.
The public shaming of the family arising from the father’s business dealings had “a huge impact” on the children. When his conduct was made public, the children were embarrassed and humiliated.
She was clearly concerned at the use of social media and what she considered was the father’s delusional thinking. If left unsupervised, the children would be at risk in his care.
The father denied the mother’s allegations, but emphasised that all that happened to him including his stress, homelessness, bankruptcy, loss of business, career, possessions and relationship with the children had taken a significant emotional toll on his wellbeing. He admitted his attempted suicide and recognised that his mental health during that period was poor. He now considers his mental health to have significantly improved and whilst no longer in need of psychiatric assistance, he nonetheless engages in regular counselling and therapy with his general practitioner and a psychologist.
At paragraph 46 of the report the following appears:-
[The mother] stated that she always offered the children to view the father’s mail, which she mostly read first, to ensure it was appropriate. She stated that often the children refused to view the mail, and on occasion they had destroyed it, which she did not support and reprimanded the children for.
In terms of the current presentation of the children, the mother stated that:-
…the only time the children presented with anxiety, such as nail biting, hair eating and pulling and nightmares, was when [the father] was mentioned. She added that at this time, the children also started to become more violent and talk about ways to sabotage their time with him, if forced upon them, as a form of self-preservation.
The father’s presentation to the family consultant was relatively straightforward. He rationalised the reason for the children not wishing to spend any time with him, nor indeed to engage with him for the purposes of the assessment, was as a result of the mother’s manipulation. He did not consider that any actions on his part could possibly explain the reluctance of the children to see him and he highlighted that he had done nothing, nor had been involved with the children for more than 10 months (at that time) and accordingly it was difficult to explain why the children would have such a strong reaction to seeing him.
Both of the parties referred to the children in complimentary terms.
B was asked about her parents. She spoke highly of her mother and felt “very safe and happy in her mother’s care”. She was not as complimentary of her father. Of him she said as follows:-
…there were “lots of things” she recalled, implying that none of these were positive. She stated, “I always felt unsafe with him” and that at times “he tried to give me alcohol”. She added that he “started to get aggressive, especially towards the end of the time we were seeing him”, and that he would “always swear at people”. She added that on one occasion when her father was parking at Coles …, someone took his spot so he “tried to bash their car with a trolley”. Further, “at any shop he’d take a bag and steel (sic) books, clothes, toys, objects…and blame me if he was caught”. She added that she was aware that at [the shopping centre] two security guards would follow them around the Centre, making her feel “very uncomfortable”.
She considered that her mother never denigrated the father, but on occasion that she and the father were together he would complain that it was the mother who had “made everything bad”.
B was not interested in reading any letters or cards from her father because “I don’t want anything to do with him”. She also allegedly remembered the incident on Boxing Day 2010 when the mother alleges that the father attempted to strangle the mother and throw her over the couches.
When asked about her school, she said that she enjoyed it and “asked that the “rule” be kept long-term that her father be restrained from attending the school grounds, as this prevented her from having to watch for him”.
In a similar vein, C described her mother as a “really nice person”, but in respect of her father “I don’t want to see him again, he touched me inappropriately in the vagina”. In addition, she did not consider that the father was a good person and that he had taught her and her sister to steal. She also considered that the father had told lies about their financial position and presented that “he had enough money for our other school, [M School]…and he always came to school and gave us donuts when he wasn’t supposed to”.
She felt “uncomfortable and scared because of all the bad things he has done”.
C did not want to spend any time with the father.
Not surprisingly, the children were observed to have an easy relationship with their mother, but were steadfast in their refusal to see their father. The family consultant recorded that:-
[C] cowered into her mother at the mention of her father’s pending arrival, and later when he attended (behind a locked door) she again cowered and cried to her mother. [B] showed less overt signs of distress, but was verbally articulate in her request not to come into contact with him.
The family consultant considered that there should be no direct contact between the children and their father and that the mother should be granted sole parental responsibility. It was difficult to assess from her report whether the recommendation was based upon the conduct of the father, or a recognition that the children’s opposition to spending time with him was so trenchant that it may well be damaging to their mental health if they were forced to see him.
The recommendation of the family consultant that the children should only re-engage with their father subject to their wishes which is considered unlikely to occur.
Accordingly, the report of the family consultant must be seen as supporting a termination of the father’s relationship with the children, other than any obligation on the mother to keep the father informed as to the children’s educational development and progress, photographs sent to him on a six monthly basis and his ability to send small gifts, letters and cards.
Under cross examination by counsel for the ICL, the family consultant conceded that no weight could be placed on the allegation that C was the subject of sexual abuse by the father.
She was asked to consider how the children’s attitude towards their father had changed so materially from a period 10 months earlier when they were spending five nights a fortnight and half school holidays with him. It was a difficult question for the family consultant, but obviously she considered that it was not so much the father’s behaviour but rather, loyalty to their mother that has principally motivated them.
The family consultant did not think that the children will ever get to the first stage in seeing their father and given that two years has now passed since the father has spent time with the children, she did not think that the process could be reversed.
The difficulty is that there was little or no evidence as to the children’s current functioning other than they were excelling at school and the children were not subjected to any standardised tests which might have elicited the basis for their opposition and therefore a possible management plan.
The family consultant considered that the focus should be upon the mother and her behaviour. While she continues to undermine the father’s relationship with the children, there is little or no possibility that they will independently seek a relationship with the father.
The children have clearly experienced dramatic changes in their life and lifestyle and are unlikely to receive any support for any re-engagement with their father.
The family consultant agreed that if the father has not engaged in abusive, irrational and aggressive conduct as alleged by the mother, then the mother’s lack of support for a relationship could be considered abusive.
The family consultant considered that the children might be assisted by therapy, but only if the mother supported the process. Unless that occurs there is little or no hope of a relationship being re-established.
The family consultant was reminded of the report of Ms J dated November 2011 where much of the issues were under consideration
Dr I
By letter of instruction dated 17 December 2014, Dr I (“the psychiatrist”) was asked to provide a report in respect of the history of any previous psychiatric treatment, the current state of the father’s mental health and details of any current or advised medication and the purpose for same and if relevant and possible, any progress. The psychiatrist provided a preliminary report on 13 July 2011. He had not seen the father between July 2011 and December 2014.
The psychiatrist was provided with a raft of Court documents up to and including the Court order of 11 December 2014.
On examination, the father updated the psychiatrist as to the history since the 2011 assessment.
The report records that the father complained of not seeing the children, considered that he was “a lot better and stronger” and in respect of his mood said:-
·He denied anxiety.
·He feels “mildly depressed a little bit of the time”.
·He has not recently been tearful.
·He denied irritability and said he was always very mild.
·He denied interpersonal withdrawal.
He considered that he was coping and functioning well and had not experienced any recent psychiatric symptoms. There were no stressors in his life other than the litigation and his upset at not seeing the children and in respect of his current level of functioning, he considered that he was able to attend to his personal needs, engage in sensible social activity, attend church and obtain enjoyment from common recreational activities such as reading, exercise, television, radio and music.
His medication regime consists of Duloxetine twice daily, Sodium Valporate and anti-hypertensive and a cholesterol lowering agent.
Alcohol is not a problem and he does not smoke, consume illicit drugs or ingest caffeine beverages.
On examination the father did not appear to exhibit psychotic symptoms and appeared to have good memory and concentration facility. He did not present as being depressed or anxious and his interaction with the psychiatrist was generally appropriate.
It was of interest to the psychiatrist the more recent history of the father’s attempted suicide and suicidal ideation on 12 June 2014, 26 July 2014 and 11 August 2014.
The psychiatrist considered the father’s current mental health to be as follows:-
When taking into account the factors I have discussed, it is my clinical opinion, based upon a reasonable degree of medical probability that [the father] has been suffering from a chronic adjustment disorder with depressed mood but he probably wouldn’t currently meet the diagnostic criteria for any psychiatric disorder. He does however have, at the very least, maladaptive personality traits which can be characterised as being narcissistic. It is possible that he would meet the diagnostic criteria for a narcissistic personality disorder but it is difficult to say this given I have only seen him twice and given the high level of stress that he has experienced in recent times. I note the ancillary information including the risk assessment at FMC dated 27/6//2014 refer to [the father’s] personality structure.
The prognosis is necessarily guarded but if the father was motivated to change then there is reason for optimism in respect of further and future improvement.
In December 2014 the psychiatrist considered that the father would benefit from some ongoing therapy to address his personality issues and any time spent with his daughters should be the subject of supervision “given the amount of pressure that he continues to be under and given the acrimonious conflict between he and his wife and given his vulnerable personality structure whereby he has acted out impulsively when very distressed…”.
It is noted that 18 months has now elapsed since the assessment.
Under cross examination, the psychiatrist explained that an adjustment disorder comes about where a person’s ability to cope is exceeded by their inability to deal with the stressors that present themselves.
An adjustment disorder usually resolves with time and the better management plan is to undergo cognitive therapy, consider lifestyle issues and engage in meditation or mindfulness.
It is noted that the father’s evidence is of ongoing cognitive therapy with his psychologist.
The concern of counsel for the mother and the ICL was to consider the overlay of narcissistic personality traits in a person found to be presenting with symptoms of adjustment disorder.
The psychiatrist noted that there was a more likely risk of relapse if the stressors continue, but he had not seen the husband since 2014.
A person with narcissistic personality traits will feel insecure and have a fragile sense of self, at times exhibit grandiose presentation, exaggerate their wealth and might perceive themselves to be attractive and desirable.
There was always a risk of a person with a narcissistic personality trait slipping into depression, particularly if the façade is in any way destroyed or dismantled. It is best described as a “sense of entitlement”.
Despite what might appear to be confident presentation, a person with narcissistic personality traits may well be very susceptible to insult and upset.
The psychiatrist considered that some of the factors present in the father’s history and the affidavit material suggests that he has a tendency to blame others rather than to take responsibility for his own actions.
As at 24 December 2014, the psychiatrist did not consider that there was any reason why the father could not spend time with his children subject to the question of supervision being both strongly advised and properly considered.
That was notwithstanding that as recently as June to August 2014 the father had both attempted suicide and also evidenced suicidal ideation.
Overall the psychiatrist’s evidence was one of caution, but also he was prepared to concede that he did not have any current evidence of the father’s current functioning and circumstance. It may well be the case that the father has benefited from the ongoing counselling and that the initial diagnosis of an adjustment disorder with the potential for narcissistic personality traits may not be borne out.
Obviously as time passes and there is no adverse conduct by the father in terms of behaviour consistent with adjustment disorder or narcissism, that in and of itself can be of assistance in determining the risk that the father may pose, not just to the children, but also to himself.
Notwithstanding that it was the clear thrust of the cross examination of counsel for both the ICL and the mother to establish that when taken together the father’s likely current mental state was uncertain at best and may present a risk to the children, the psychiatrist was not prepared to go that far.
I am entitled to consider that there appears to be a lack of allegation or assertion in respect of aggressive, ill-considered or impulsive behaviour by the father in the last 18 months.
I accept the evidence of this witness that there is nothing about the presentation of the father which would in and of itself present as a barrier to the children spending time with him. It may speak to the need for terms and conditions such as supervision, but if taken in isolation, this witness could see no reason why the father would present a risk to the children if the time that he spends with him is appropriately managed.
I do not ignore the father’s inappropriate use of social media and the proximity of his postings to the assessment with the psychiatrist in December 2014.
I am also mindful of the father’s ill-considered conduct in defacing the school reports of the children.
The witness conceded that the very conduct of the proceedings given that they go to the heart of the husband’s distress and anxiety should be considered as a powerful stressor. If it appeared that the father was able to cope with the pressure of litigation, then this was a reasonable litmus test for his ability to deal with other life stressors.
PROPOSALS OF THE PARTIES
The mother proposes that she have sole parental responsibility and that the children spend no time with the father other than in accordance with their wishes.
With some reluctance, the mother was prepared to agree to the father forwarding cards, letters and gifts to the children at a frequency of no more than once per month with the mother to read to ensure the appropriateness of the gift or correspondence.
The father was to be restrained from attending at the children’s place of schooling.
The reality of the mother’s proposal is that it is unlikely that the children would request to see their father and accordingly, the effect of the orders that she seeks is that there would be almost no relationship that would exist between the father and the children.
The father’s proposal seeks orders that he spend time with the children supervised at a children’s contact centre and that there be a graduated re-introduction of time to the point where the children spend 40 percent of their time with him. In reality he seeks a return to the orders that existed prior to June 2014 namely, five days per fortnight and one half of the school holidays.
The difficulty with the orders the father seeks arises from the assessment of the family consultant that she does not consider the children could be induced to embark upon the first stage namely, to spend time with the father in a strictly supervised setting. She does not consider that the children will ever want to spend time with the father other than in circumstances where the mother promotes it and the children literally have no choice where their parents adopt a unified approach. The difficulty with the mother’s proposal is my finding that the mother either has no intention, or is incapable of supporting the children’s relationship with their father.
I am uncertain as to the mother’s state of mind in respect of the allegations of sexual abuse and family violence directed to the father as the perpetrator, but I am at least satisfied that the father does not present an unacceptable risk to the children, certainly in respect of sexual abuse or family violence.
The proposal of the ICL is to effectively support the orders sought by the mother, but continuing with the fiction that an order providing for the children to spend time with their father subject to their wishes has no reasonable expectation of coming to fruition.
PRINCIPLES RELEVANT TO PARENTING ORDERS
The children reside with the mother and have not spent time with the father, nor have they communicated with him since June 2014. The mother does not consider that there is any value to the relationship between the children and their father. Notwithstanding that she may object to the assessment of the family consultant that her refusal to support a relationship is the principal stumbling block preventing the children spending time with their father, I am left in little doubt as to the accuracy of the assessment of the family consultant.
The mother considers that the father has been a perpetrator of family violence for the period leading up to separation and thereafter, until his time was suspended following his admission for psychiatric assessment and treatment and then the loss of the family home.
The mother is unlikely to be easily dissuaded that the father did not engage in inappropriate sexual touching of C.
The father perhaps out of hope rather than good judgment, considers that if the Court puts in place a graduated approach, that upon the children seeing him their expressed concerns and reluctance will evaporate.
It is not unreasonable that the father should be distressed at spending no time with the children since June 2014. It may even be considered by him that the mother’s actions in terminating his time was opportunistic. It could not be said that the mother considered that there should be a re-introduction of time once she was satisfied that the father’s mental health had stabilised and that he no longer presented a risk to the children.
The parties are not agreed as to parental responsibility. The father seeks equal shared parental responsibility, whereas the mother considers that there should be sole parental responsibility. That order is also supported by the ICL. The mother would argue that she does not hold the father in high regard, is fearful of him and that it would be completely unworkable were there to be any obligation on the mother to communicate with the father as to major issues affecting the children.
Moreover, the mother argues that the children would react with heightened fear and distress if they understood that their father had any involvement, even peripheral, with their lives.
The evidence of the family consultant at paragraph 65 of her report would suggest that the mother has not been able to satisfy the children that they do not need to be hypervigilant in respect of his attendance at school.
It is a worrying aspect of the proceedings that the children, but in particular B, should hold such an irrational fear of her father in circumstances where there has been no good reason for that level of concern to be experienced.
Section 60CA of the Act requires that I have the best interests of the children as the paramount consideration. The best interests of the children are met by the application of the objects of s 60B(1).
I am cognisant of the primary considerations and the additional considerations in respect of the matters as set out in s 60CC(2) and (3).
I am mindful of the directions contained in s 60CC(2A) and have regard to the allegations of the mother that whilst together the father was the perpetrator of family violence both towards her and the children, with a particular focus on an allegation of sexual abuse in respect of the child C.
I do not consider that the mother’s evidence in terms of the allegation that the father had engaged in inappropriate touching of C is supported by the evidence. None was presented, the family consultant did not consider that in all the circumstances either in terms of the history provided by the mother, the affidavit material read by her or on the presentation of the children, there was any evidence upon which the Court could rely to support the contention of even the mere spectre of sexual abuse or assault.
The false spontaneity of the disclosure by C to the family consultant in circumstances where the mother alleges that she was surprised that the child would raise this after a number of years does not lend support to the veracity of the allegation.
It is not to suggest that the relationship between the parties was not volatile. Nor can it be overlooked that the father’s conduct following separation was bizarre, demeaning and highly damaging to the children, the mother and in particular their self-esteem.
The father’s behaviour was not likely to engender family support, but even at its most florid, it is unlikely to support the mother’s case that in some way the father presents as an unacceptable risk.
It seems that the mother relies upon the unwavering opposition of the children to see their father and highlights her inability to change their minds even were she so minded.
The mother appears to lack substantial insight into the needs of the children and the importance of a child’s relationship with both of his or her parents. The further concern is that the children appear to hold the irrational belief or view of their father that he is a liar, perpetrator of family violence and has engaged in sexually inappropriate conduct with C.
If there is a risk, the mother opines that the risk is to the children if they are forced to spend time with the father given the strength of their opposition to that prospect.
Section 65DAA(1) provides:-
Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:-
(a)consider whether the child spending equal time with each of the parents would be in the interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) provides:
Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
I am required to bring to account the provisions of s 65DAA(3) in my consideration of the appropriate orders to be made.
I am obliged to consider circumstances where I make an order for equal shared parental responsibility, whether the proposals of each of the parties are reasonably practicable for the purposes of s 65DAA(2)(d). The Act provides assistance in the determination of “reasonable practicality”. In terms of the provisions of s 65DAA(5) namely, that the Court must have regard to “reasonable practicability” as has been set out in s. 65DAA(5) as follows:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that may arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
I propose to adopt the following approach:-
(1)Give consideration to 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) and underlying principles in s 60B(2);
(3)Have regard to the provisions of s 60CC 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) namely, the benefit of the child having a meaningful relationship with both the child’s parents and the need to protect the child or children from physical or psychological harm;
(5)Have regard to additional considerations under s 60CC(3);
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters then this must be the subject of delineation and comment.
Section 61DA requires the Court to consider whether to apply the presumptions 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 but based on findings pursuant to s 60CC. If the presumption applies (and in any event the parties seek an order of equal shared parental responsibility) and it is not rebutted, then s 65DAA 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, the consideration of whether equal time is feasible “requires a practical assessment”.
Section 60CC is to be utilised in order to determine the question about best interests and whether the issue of an order for equal time and/or substantial and significant time would be reasonably practicable is to be determined by reference to the provisions of s 65DAA(5).
I have regard to the remarks of Finn J in Blanding & Blanding [2016] FamCAFC 21 where her Honour considered that following the Full Court decision in Beckham & Desprez [2015] FamCAFC 247, there is now no requirement to consider s 65DAA(1)(a) and s 65DAA(1) (b) in any particular order.
The importance of her Honour’s remarks is to focus judicial attention upon the practical reality of each of the parties proposals and the consideration of the primary and additional considerations as are appropriately applicable.
Unacceptable risk
Section 60CC(2)(b) requires the Court to consider as a primary consideration:
(a)the need to protect the child from physical or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence.
There is considerable uncertainty as to whether the mother is alleging that the father presents as an unacceptable risk to the children.
Obviously if the Court makes such a finding, then it is unlikely that the father would be successful in his application for a graduated reintroduction of time spent with the children, ultimately returning his relationship with them to something that approximates the pre-June 2014 arrangements.
The mother provides a confused history alleging domestic violence culminating in the incident on 26 December 2010, a vague allegation of sexual abuse involving C and a concern as to the father’s irresponsible and irrational behaviour. The Court is required to assess the risk presented by the father and whether, if found to be unacceptable, measures can be put in place that would ameliorate the risk if it was considered advantageous to pursue a resumption of the relationship of the children with their father.
A further consideration arises from the opinion of the family consultant that the children remain implacably opposed to seeing their father and consideration must be given to whether they are at risk of psychological harm if made to see their father against their will.
In Loddington & Derringford (No 2) [2008] FamCA 925 Cronin J said:-
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 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. If it is not, in other words, a question of contact for contact’s 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 if 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 Sigley & Evor [2011] FamCAFC 22 the Full Court undertook a review of the authorities with a view to defining “meaningful relationship” and in doing so favourably considered the decision of Champness & Hanson (2009) FLC 93-407 at [136]:-
[103]The submissions of counsel for the father also appeared timed 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 the orders most likely to promote the child’s best interests. In seeking to achieve that objective, section 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)
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 girls aged 10 and 12 to re-establish a relationship with their father and his inability to see “the children’s need for peace”. There had already been an attempt at structured therapeutic counselling which was deemed to be unsuccessful.
Her Honour considered that the continuation of the reunification therapy would place the children at an unacceptable level of emotional and physical risk:
[76]…[the father] 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, 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 only positive memory the child had of her father is that she once “received fruit juice from him”. The father had a history of criminality and substance abuse, but had successfully remained drug free in recent years. The mother alleged the father was the perpetrator of domestic violence in the presence of, and directed towards, the child. The ICL and father contended that there should be no finding of unacceptable risk to the child.
The mother remained “implacably opposed” to the child spending time with the father and would not encourage a meaningful relationship. The mother gave evidence that there is no mention of the father in her home and that the child “basically knows of [the father’s] existence and violence”.
She said that she lived in constant fear of the father and acknowledged that the child would have been exposed to her state of fear and conversation revolving around this topic. The mother had intentionally alienated the child from the father.
Murphy J found there to be a “chance of a meaningful relationship…which is beneficial to the child” and the corollary was also true in that the absence of such relationship had “the potential to cause [the child] harm in the long term”.
Following a finding of no unacceptable risk, his Honour held at [121]:-
…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”.
At paragraph[148]:-
…I am concerned by the mother’s actions in intentionally alienating the child from her father and removing from her life all references to him, other than references to violence. The child’s rights, enshrined in Part VII Objects and Principles pertain. I am also concerned by the mother’s repeated assertion that she will not encourage a relationship between the child and her father, even if the Court were to find that the father does not pose an unacceptable risk of harm to the child. I consider such statements and conduct to be completely antithetical to the child’s best interests and demonstrative of an inability on the part of the mother to place the child’s needs, and in particular the benefit she may obtain from a relationship with her father, over her own issues with the father.
I have carefully distilled the evidence provided by the mother and by the children via the family consultant given as part of her assessment.
Whilst I suspect that there was physical interaction between the parties during the course of the relationship, I am not able to find on the balance of probabilities that the father was the perpetrator of family violence. That does not mean that there was not unfortunate volatility as between the parties which at times may well have been witnessed by the children. I suspect that the father was likely to be the more volatile of the parties and his level of frustration and therefore his inability to control his temper became more acute as the financial fortunes of the family evaporated.
If not physically violent, I am left in little doubt that the father was verbally abusive and aggressive towards the mother. Even the most generous view of the father’s use of social media displays an almost total lack of insight and self-control on his part.
I have little doubt that as the father’s financial house of cards began to tumble and the family was the subject of public odium, the father’s ability to regulate his emotions fell away.
There is no doubt that he suffered a number of distressing and debilitating psychiatric episodes. There were occasions of attempted suicide and ongoing suicidal ideation.
The father’s behaviour was unpredictable. The embarrassment of the mother and the children at the adverse publicity directed towards the father was challenging. The family had fallen from grace and the mother and children’s embarrassment when considered the potential risk posed by the father when in the throes of psychiatric episode led to the opportunistic cessation of time that the children spent with him.
The mother however was not much interested in any possible rehabilitation of the father. She held him in the lowest possible regard and did not consider that he had any place in the children’s lives nor would a relationship with him have any benefit.
The father has undergone ongoing and regular therapeutic counselling consistent with the recommendations of the psychiatrist.
I accept the father’s evidence, but he has been assisted by the professional help that he has received and now is more insightful.
No serious attempt was made to adduce evidence that the father had engaged in inappropriate sexual touching of C. It was not part of the mother’s case, nor did counsel argue that the father’s conduct presented an unacceptable risk.
It should be noted that the thrust of the mother’s case was to rely upon the children’s strong resistance to spending time with the father irrespective of the reason.
I do not consider that the father presents an unacceptable risk to the children in respect of matters of family violence, neglect or sexual abuse. The focus is upon the children and what evidence exists, if any, that would assist the Court in determining the extent to which the children would be affected if required to see their father.
Meaningful relationship
The children have no relationship with their father. He desperately seeks to resume a relationship and he agrees that any resumption of a relationship must be achieved by way of a graduated approach starting out with supervised time at a children’s contact centre. The father however somewhat naively believes that once a process of reintroduction is put in place, the children will readily come around. He does not consider that there will be strong resistance to the children resuming time with him initially supervised. Graduating to significant and substantial time would not be problematic.
The children and the mother should be seen as a unit inseparable from each other. The children know that their interests lie with the mother in her environment. Part of that environment is the mother’s ongoing hostility directed towards the father. In her eyes he is capable of no good and is likely to bring trouble to the family at a time when the children appear now to be settled in their new school and some of their bitter memories of the dramatic changes in their life are now diminishing.
There is no circumstance where the mother’s attitude to the father will ever change. Whilst it is not to her credit that she continues to promote a toxic environment in the home, nonetheless, she is unlikely to be malleable to counselling or therapeutic intervention.
The family consultant was clear in her evidence that the barrier to the children getting to “first base” with the father is the mother and that without her support it is unlikely that the children could be made to spend time with their father.
I have little doubt that the father has something to offer the children if a relationship were resumed. He is an intelligent man who has had significant time to reflect on all that has befallen the family. It is reasonable to assume that he has gained the benefit of counselling involving cognitive behaviour therapy and I do not consider that the father’s presentation could in any way be suggestive of a propensity towards violence or a possibility that he would harm the children if given the opportunity to see them.
The children’s wishes
The wishes and views of the children as expressed to the family consultant and as reported by the mother were unimpressive.
They lack insight and any mature reflection of what benefits might be experienced by them by having a relationship with their father even if initially it occurred with a high level of supervision.
The children did not impress the family consultant and she did not consider that the Court should be significantly swayed by the children’s wishes other than that they are held strongly, if not irrationally. The children remain opposed to seeing their father for little good reason.
They are clearly too young to understand what has occurred and are obviously not able to look critically at the mother’s presentation and her distorted view of the father.
In general, children will usually benefit from having a relationship with both of their parents. Each bring substantial advantage to the children by way of love, affection, family relationship and connection with extended family.
The concern in respect of these children is that they will grow up believing that their father is a liar, has perpetrated sexual abuse on one of them and is a person to be feared. They are irrational observations of the children, but nonetheless deeply held.
The very fact that the children are vigilant each day for fear of their father attending school in circumstances where he has not been the perpetrator of any incident which would warrant such hypervigilance should be a matter for alarm and concern to those who hold the children’s interests most deeply.
The mother seemed unconcerned at the children’s fear. Her evidence was unimpressive. She took no steps to satisfy the children that their father did not present a risk or that he was likely to attend at the school and remove them. Again, I am reminded of the evidence of the family consultant that without the mother’s support the children would continue to be completely estranged from their father reinforced by her in their belief that he was a liar, violent, sexually abusive and poses an ongoing threat.
Unfortunately it seems that the children’s current irrational presentation is a product of the mother’s incubation of her dislike for the father. The effect on the children is so dramatic that the children’s psychological health must be called into question.
They were not able to bring themselves to participate in observed interaction with their father and their language and perceived basis for their adverse and oppositional conduct was without sensible basis.
Relationship of the children with their parents
The children have no relationship with their father, nor do they seem to have any interest in doing so.
They are clearly strongly attached to the mother and are either fearful of their father or prepared to manipulate their presentation to achieve the outcome that they consider will best please their mother namely, to resist any relationship with their father.
It must be recognised that there is no circumstance which would see the children’s primary care change from their mother.
The focus is whether it is in the interests of the children that they resume a relationship with their father and whether it can be achieved.
The effect of any change in the child’s circumstance
The family consultant was unequivocal in her view that the children are determined to resist any overture by their father or any resumption of a relationship.
The father considers that the children would readily re-engage with him once they came into each other’s presence. The family consultant did not agree. Even the most benign resumption of time with the father in a supervised setting was not considered achievable.
Unfortunately the assessment is now more than a year old. The children have settled into their new school and appear to be unaffected scholastically by the trauma of the family breakdown.
It was not explained to the Court why an update assessment had not been prepared, nor indeed was there any evidence from the family consultant as to the likely effect on the children if they saw their father.
I have already determined that their fear of him is irrational and unfounded. Spending time with their father may not be to their liking, but there is nothing in the evidence which would suggest that the mother and the children are entitled to adopt the profoundly oppositional attitude towards him.
The children’s refusal to countenance any contact with the father even in the limited environment of the assessment is demonstrably irrational, but strongly maintained. The mother has no intention of supporting the children and it is to her discredit that the Court should hear evidence from the family consultant that suggests the barrier to the children recommencing a relationship with their father in circumstances where there is clear benefit rests with her.
Practical reality of the parties proposals
Without the mother’s assistance, the family consultant considers that the children would remain steadfast in their opposition to spending time with him. The mother has alienated the children whether by direct influence or by deliberate omission to in any way promote a relationship.
Consideration has been given as to whether therapeutic intervention may provide some assistance. The evidence would not support such a process and whilst a matter of significant concern to the Court, in the absence of the mother’s cooperation, it is difficult to consider that the reaction of the children to any forced process would be anything other than highly damaging.
The difficulty for the children is that they will have a distorted view of their father not ameliorated by the mother.
Nonetheless, to force the children may have the effect of further fragmenting the family and making the possibility of the children re-establishing a relationship with their father in the future more remote.
Family violence
The mother has alleged that the father has a history of violent and aggressive conduct. Significant weight is placed upon the incident being the catalyst for separation in December 2010.
It is also inherent in the mother’s allegations that the father was engaged in coercive conduct.
I am not able to determine that the father was the perpetrator of family violence, although I have considered that the evidence supports a finding that whilst together, the father was clearly a controlling influence and is likely to have been coercive in respect of the conduct of the mother and the children.
The father however has had the advantage of ongoing counselling and it is not suggested that there has been overtly aggressive or controlling behaviour.
The evidence would not support a finding of unacceptable risk arising from family violence. It was certainly not argued on behalf of the mother and that in and of itself is not a barrier to the father spending time with the children.
The likelihood of further litigation
The evidence of the family consultant is of clear concern. In summary, she considers that whatever orders the Court may be inclined to make directed to the children spending time with their father, they will refuse with the likely outcome that the orders if made, will not be the subject of compliance.
Inherent in the opinion of the family consultant is the view that even if the mother were to decide to support the relationship between the children and their father, it is likely that the damage has been done.
I am prepared to accept the evidence that the mother is not in any way supportive of the children spending time with their father. The mother did not impress as having any insight as to the advantage that would inure to the children if for no other reason than it would dispel a falsity namely, that their father had engaged in appropriate sexual touching and that he was a liar.
It is likely that the children have recognised that their steadfast refusal to engage with him meets with the approval of their mother and fulfils their objectives in resisting any relationship with their father.
Whilst the children appear to have settled in well at their school, I do not consider that can be equated to resilience or that they would be psychologically robust. The children fervently believe in a falsity in relation to their father. By its very nature that suggests that they lack any maturity or understanding.
The level of hostility between the parties is such that if orders are made which have no real likelihood of being complied with, the only outcome is the probability of renewed litigation.
Parental responsibility
The mother has indicated that she has no intention of easily communicating with the father. She is mistrustful of him and holds him in low regard.
An indication of her opposition is demonstrated in her compliance with previous orders to forward photographs of the children to the father by sending him photocopies. Her explanation was a concern that if the original photographs were sent then these might be more easily uploaded onto social media.
There has also been difficulty in respect of the children’s education. The father, for reasons that are difficult to comprehend and certainly not explained on the evidence, was intent on the children remaining at their private school notwithstanding that financially such an outcome was impossible.
Litigation then followed in respect of the children’s education and ultimately their attendance at their current school was only able to be achieved by Court order.
Ultimately, the determination of the extent to which each party exercises parental responsibility is to be determined by what is in the best interests of the children.
The position is unfortunately confused by the inexplicable presentation of the children that they are vigilant should their father attend school. The mother chooses not to dispel the children’s misconception and whilst her stance is without credible explanation, nonetheless it is important that the children now experience stability of education and health.
I propose to order that the mother have sole responsibility for the children’s education and health. In doing so, that does not absolve the mother from any obligation to provide information to the father and to seek his input, but ultimately the decision will rest with the mother.
In respect of other aspects that relate to the children, there is no good reason the parental responsibility should not be shared.
I have found that the fear experienced by the children of their father is not properly founded and the evidence of the family consultant is that the mother is an alienating influence. It may well be the children’s experience in the future that they will recognise and understand that the father is not the perpetrator of sexual abuse and violence at the level maintained by their mother and it may help their understanding of their circumstance to know that the father was at least kept informed of their progress and development and had a continuing involvement albeit necessarily remote.
Accordingly, the parties should retain shared parental responsibility but the mother should have sole parental responsibility for matters affecting the health and education of the children.
CONCLUSION
I make orders as appear at the commencement of these reasons.
I certify that the preceding three hundred and twenty (320) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 22 June 2016.
Associate:
Date: 22 June 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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