Sombilon & Elorza
[2022] FedCFamC2F 498
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sombilon & Elorza [2022] FedCFamC2F 498
File number(s): DGC 4378 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 26 April 2022 Catchwords: FAMILY LAW – Parenting dispute about best interests of 12 and 7 year old children – children always living in primary care of the mother – father seeking additional time – elder child not presently wishing to see father save in accordance with her wishes – Independent Children’s Lawyer supporting elder child’s position and contending that the younger child spend time with the father each alternate weekend – father’s complete lack of insight – orders made as sought by the Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) Cases cited: Goode v Goode [2006] FamCA 1346 Division: Division 2 Family Law Number of paragraphs: 122 Date of hearing: 4 & 5 April 2022 Place: Dandenong The Applicant: The Applicant representing himself Counsel for the Respondent: Mr Byrne Solicitor for the Respondent: Marcou And Associates Pty Ltd Counsel for the Independent Children's Lawyer: Mr O’Connell Solicitor for the Independent Children's Lawyer: Cathleen Corridon And Associates ORDERS
DGC 4378 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SOMBILON
Applicant
AND: MS ELORZA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
26 APRIL 2022
THE COURT ORDERS THAT:
1.The Mother shall have sole parental responsibility for the children, X born in 2010 and Y born in 2015, and shall keep the Father informed about any decisions made pursuant to this responsibility.
2.The child X born in 2010 spend time with the Father in accordance with her wishes.
3.The child Y born in 2015 spend time with the Father as follows
(a)each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday commencing 30 April 2022;
(b)from 2.00 pm Christmas Day until 2.00 pm Boxing Day;
(c)on the Father’s and Y’s birthday by telephone or FaceTime;
(d)such other or further times as the Mother and Father agree upon;
4.The Father’s time with X and Y shall be in the substantial presence of the Paternal Grandmother.
5.If the children wish to contact the Mother during time with the Father, he shall facilitate same.
6.The mother is authorised and permitted to apply for and receive an Australian passport for the children X born in 2010 and Y born in 2015 without first obtaining the written consent of the other parent.
7.The children X born in 2010 and Y born in 2015 be permitted to depart the Commonwealth of Australia.
8.The order appointing the Independent Children’s Lawyer be discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Sombilon & Elorza has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
This is a parenting dispute about the best interests of two children, X born in 2010 and Y born in 2015. The case has a number of unusual aspects to it. The applicant father seeks that the children live with the mother and spend time with him each alternate weekend. The mother's position is that X should spend time with the father in accordance with her wishes and Y should spend supervised time at a contact centre, as recommended by the family report. The Independent Children's Lawyer's position is that the children should live with the mother and X should spend time with her father in accordance with her wishes. The Independent Children's Lawyer supports Y spending time with the father each alternate weekend with the father's mother to be in substantial attendance.
For the reasons that follow, I propose to make the orders sought by the Independent Children's Lawyer.
It should be noted that there was some confusion at the start of the proceeding (I refused an adjournment application by the father for reasons I gave at the time) as to whether or not section 102NA prohibited cross-examination, bearing in mind the father's self-representation. It has emerged that there was no final intervention order in place. But it has also emerged that Mr Sombilon did not desire to cross-examine the mother himself. So the issue did not arise.
AGREED OR UNCONTROVERSIAL MATTERS
The father was born in 1980. He lives in Suburb B in premises owned by his parents to whom he pays some rent. He is in receipt of a disability pension and has not worked for many years. The mother was born in 1981 in the Country C. She came to Australia in 1998 to join her mother who had already, herself, come to Australia. Her father remains living in the Country C and she visits her family there every few years. The mother lives in Suburb D together with her own mother and one of her sisters. She was previously married to a Mr E (the name has been spelt in a variety of ways in the materials before the court) in 2001 by whom she has a son, Mr F born in 2002. Mr F lives with her in the Suburb D property.
It should be noted that the parents' two premises are about 70 kilometres apart and the driving time is an hour or more each way.
The relationship between the mother and the father appears to have commenced in about 2006. The mother was still, of course, married to Mr E at that time and they did not divorce until 2011. There is a measure of dispute as to the extent to which the mother was either still in a relationship with Mr E and/or concealed the same from the father, but on any view of the matter, at or about the time of X's birth the mother briefly reconciled with Mr E before returning to the relationship with the father. It does not appear that the father and mother ever really lived together on an ongoing basis, although plainly she spent a lot of time, it would appear mainly on weekends, with him. It appears that there were periods of relationship breakdown followed by reconciliation (during one of the latter of which Y was conceived). On any view of the matter, the relationship seems to have ended in 2017 or 2018.
The children spent, it would seem, reasonably regular weekend time with their father, but, in October 2020, he indicated to the mother that he was going to seek one extra night. The mother's response was to cease all time for a period of six months. Her explanation is that she was seeking legal advice.
Matters progressed through the court to a point where the father was ordered to have alternate weekend time with both of the children with his own mother to be in substantial attendance.
THE PARTIES' AFFIDAVIT MATERIAL
The parties have each filed a number of affidavits. Much of what they have to say is set out in the section above. The affidavits of both of them are replete with mutual criticisms. Because of the way the case actually played out in court, it is, in fact, more profitable to concentrate on what they said during the trial. It is, however, appropriate to comment briefly on the independent materials that the court has before it.
It should be noted that the report of Dr G, dated 19 October 2021, is appended to the father's affidavit filed on 20 October 2021. This report relevantly says:
The main reason initially for prescribing medicinal cannabis was to reduce and eventually stop Mr Sombilon's consumption of cannabis in an illicit manner through smoking. However, the other benefit of prescribed medicinal cannabis is that it is easier to monitor dosage and effect and that it is done in conjunction with a health professional. Medicinal cannabis (both the THC and CBD components) is being used in this case to help with Mr Sombilon's high levels of anxiety as well as assist with his sleep.
Report of Dr H.
Dr H's report is filed with his affidavit sworn 8 October 2021. Obviously, I have regard to the entirety of that report but would note in particular the following. The report noted that the father began using marijuana daily with his friends from the age of 20 (i.e. 2000) until 2021 when his doctor transferred him to medicinal cannabis. It was noted that the father has worked only occasionally since 2005 and is now in receipt of a disability support pension on the basis of a diagnosis of anxiety. At page 8 of 10, Dr H noted:
He sees his primary function as being a father. And that is the only function that gives him value. He reports at times temper tantrums which he feels are understandable given the behaviour of the children's mother.
At page 9 of 10, Dr H diagnosed cannabis use disorder, social and generalised anxiety disorder and borderline and obsessive-compulsive personality traits.
Dr H went on to opine that the father presented as someone affected by cannabis and expressed reservations about medicinal cannabis. Dr H noted:
Mr Sombilon concedes that he is black and white in the way that he thinks and that his temper has at times been very bad. He also expressed regret at leaving feces when returning presents to his children's mother that she had offered him in lieu of spending extra time with their children. He denies having conspiracy theories in relation to COVID but then explains that he has for many years been concerned that the government is over-legislating, for example "the omnibus law". He insists he has a mask exemption but also thinks that masks are "ridiculous, nothing to do with safety", when asked to expand on his ideas he believes that it is simply an attempt to restrict freedoms within the community. He also reports that he is scared of Bill Gates' plans for the future.
The 11F Report and the Family Report
The 11F interviews in 2021 are noteworthy only because at that time both children said that they missed their father and wanted to spend time with him. It is not necessary to extrapolate more than that for these purposes.
The report of Ms J dated 21 February 2022 requires somewhat more attention (noting that the father was strongly critical of Ms J in his submissions, a matter to which I shall return).
The report commenced with the current arrangements of the parties as to their households and the children's schooling and other arrangements.
The report noted that the mother had been previously married to Mr E, Mr F’s father. The mother told Ms J she separated from him when she met and started her relationship with Mr Sombilon, but reconciled with her husband while pregnant with X, notwithstanding which her marriage ended when X was four weeks old (paragraph 10).
The report noted that the father said that the mother was not truthful to him and she was still married when the relationship with him started. He was devastated when she left him a few weeks before X was born. And he was uncertain initially whether he was X's biological father (something established by the parenting testing) (paragraph 11).
The report noted that in 2019 the mother made a trip to the Country C and left the children in the father's care while she was away. (The father put this as five or five and a-half weeks) (paragraph 16).
The report noted that Y broke his arm while the mother was in the Country C and the mother's concern at inconsistent routine in the father's household (paragraph 17).
The report noted the father's application for an extra night each alternate weekend and the mother's cessation of all kinds of communication "until she obtained legal advice" (paragraph 18).
Having traversed the history of the litigation, and the proposals of the parties, Ms J noted the mother's elaboration of a recent incident where the father had a disagreement with X and became abusive to her (paragraph 34).
The report noted the father's use of medicinal cannabis and Dr H's report (paragraphs 36 and 37). At paragraphs 44-45, the report observed:
Whilst equal shared parental responsibility appears to be agreed on paper, the parties have an extremely acrimonious and mistrustful relationship and are unlikely to agree on parenting issues. There is also the potential for communication between them to lead to conflict.
The parties barely communicate with each other. Communication about the children's arrangements is facilitated by the paternal grandmother.
The report noted the mother's concerns that the father did not have consistent routines and their bedtime was often very late in the father's home (paragraph 52).
At paragraph 55, the report observed:
Her concerns for the children’s safety in their father’s care has increased because X is beginning to resist spending time with her father in the last couple of months. Before one visit, X informed her that she was feeling unwell and wished to stay home rather than spend time with her father. However, X expressed concern that her father would be angry if she did not visit him. For this reason, X accompanied Y on the trip to the changeover location. Once they arrived at the changeover venue, X informed her paternal grandmother that she was feeling unwell and unable to spend time with her father. Instead of supporting X, her paternal grandmother began pressuring her to go along because her father would be extremely disappointed if she did not attend, and X began crying. Ms Elorza expressed concern that the paternal grandmother tends to prioritise her son’s feelings and needs rather than consider the feelings and needs of her grandchildren.
Paragraph 56, Ms J traversed the mother's version of a recent incident when the father is alleged to have insulted X, but I will return to that when I deal with the evidence more generally.
The description of the interview with Mr Sombilon runs from paragraph 59 of the report onwards. It is entirely plain that Mr Sombilon did not get off to a good start with Ms J, and she recorded his irritability at various points. I note the father was strongly critical of the mother describing her as "not a nice person" (paragraph 64). He did admit that he had defecated on a gift given by the mother before returning it to her (paragraph 65), albeit that he now feels disgusted by his behaviour.
At paragraphs 67-70 the report noted:
Mr. Sombilon stated that his children are very important to him and, “my whole existence is dependent on being a father to them”. He reported that he used to have a “great relationship with X” and expressed disappointment that she seems to have changed in the last two months. He reported that she looks unhappy and uncommunicative as soon she walks into his house and does not even say “hello” to his parents. He attributed her changed demeanour to the influence of her older brother, Mr F. He alleged that Mr F is not a good role model for his children and that he teaches them to be disrespectful to their elders.
Mr. Sombilon was asked to talk about the disagreement he had with X during a visit more than a month ago. He admitted he had a disagreement with X and yelled loudly at her. He tried to change the subject and said he has smoothed things over with X after an honest talk with her and “our relationship is beautiful now”. The writer informed him that the writer had an interview with X and that she is scared of him when he is angry.
He was questioned whether he filmed X on his mobile after she went into her room to escape him. He denied filming her and said, “I wasn’t filming her, I was filming her blanket”. He was questioned whether while filming he spoke into the phone saying, “this is my mentally unwell daughter”. He denied these comments and said it was X who said, “I have problems Dad”.
Mr. Sombilon denied being abusive to his children but at the same time he said, “If they get yelled at by me it is because they have done something wrong”. He said he cannot accept it when X is glum and uncommunicative because she used to be a cheerful and talkative girl.
The report of the interview with the father's mother, Ms N, runs from paragraph 75 onwards. It is fair to say that Ms J found some of the answers given as being endeavours to protect the father or explain away his conduct.
The interview with X is at paragraph 87 and following. At paragraphs 90-91, the report noted:
X stated that she used to have a close relationship with her father. She said their relationship has changed and she would prefer not to have regular visits or phone calls with him. She would prefer to visit him or phone him if she wishes to see him or speak to him. She reported that her father forces her to communicate with him by phone and if she does not communicate with him, he tells her she is “giving attitude”.
When asked about her face-to-face time with her father, X said she is not enjoying being forced to spend regular time with her father because she prefers the company of her friends and brothers.
Paragraph 93:
When probed what had led to her changed views about spending time with her father, X stated that she has begun having disagreements with her father. She described her Dad as someone who is inflexible and she is finding it increasingly difficult to have honest communication with him. For example, on one occasion she did not like something that he put into the food he prepared. When she informed him that she did not like what was in the food he told her, “no you do like it, eat it”. She stated that time spent with her Dad is conflict free and harmonious if she agrees with his thinking and expectations. A characteristic of her Dad that has become prominent to her since she began having disagreements with him is that he gets angry very quickly if she disagrees with him and she fears he may hurt her when angry.
At paragraph 95, the report continued:
X reported that one day she was upset about missing out on an activity with her friends and she told her Dad, “I don’t really want to be here right now”. He became upset and yelled at her and referred to her by the “c “ word and the “b….” word and stormed off angrily. She went inside her room as she was not feeling safe around him. Later he went to her room and began recording her on his mobile while saying, “this is my mentally ill daughter”.
I note that it is said that she and Y were usually up until around about 12 am when at their father's (paragraph 96).
I further note that X was concerned about the father's negative attitude to Mr F because she does not wish to hear mean things being said about her maternal family (paragraph 98). At paragraph 99:
X’s preference is to visit her Dad periodically when she is ready to see him. She definitely does not wish to increase her time with him or spend half of school holidays with him.
The interview with Y was more straightforward. He enjoys school and has a loving relationship with both parents. At his father's home he has an Xbox and a lot of video games and enjoys riding his electric bike in the park. It is clear that Y told Ms J that he enjoyed his activities at his father's home.
Ms J opined that the parental grandmother would not promote the children's wellbeing as much as her son's (paragraph 110).
The report continued at paragraphs 111-113:
Mr. Sombilon presented as a very reactive person, who is quick to anger if he perceives he is being disrespected. The writer is concerned that his abusive behaviour towards X has the potential to escalate. Mr. Sombilon did not impress as an emotionally attuned parent and does not have sufficiently refined parenting skills to redress the dynamic between him and X. Another concern is that he is likely to say whatever comes into his head about the children’s mother and other members of the maternal family. X disclosed that he makes disparaging comments about her mother which is upsetting for her. Mr. Sombilon can seriously harm the children’s emotional and psychological wellbeing without intending to harm them.
It is acknowledged that Y enjoys spending time with his father because his father is a good playmate who spoils him with expensive toys and engages in activities the child enjoys. However, the writer is concerned that Mr. Sombilon does not implement consistent routines for the children similar to their routines at their mother’s home. As Y gets older, he is also likely to experience his father’s aggression and abuse if he begins to question his father’s expectations.
Whilst it is acknowledged that Mr. Sombilon loves his children, the writer is unable to support unsupervised time between the children and father due to the concerns identified. However, the writer is prepared to support supervised time between Y and his father under the supervision of a professional contact supervisor
The report recommended that the children live with their mother and that she have sole parental responsibility, that Y spend supervised time with his father, and X in accordance with her wishes.
THE SUBMISSIONS MADE AND EVIDENCE GIVEN AT COURT
The Opening and Evidence of the Father
What follows is taken from my notes.
Mr Sombilon said he used to see his children every weekend and one day each week. He lives about an hour's drive from the mother. He wanted to swap the additional day for a longer weekend. He wants from Friday till Sunday. He was sworn and adopted his affidavits as true and correct.
Under cross-examination by Counsel for the mother, the father conceded that the mother was the primary carer of the children. He then said that he looks after the children and it's a shared thing. On paperwork it said 50-50 but it did not work out that way. Counsel asked if he could nominate any single positive quality that the mother possessed, but the father said “no”. It was put that that was what he had told the family reporter but he had said he had not read it. He has not read her affidavits either. Counsel put it that he had a serious problem with anger, but he said it has not been a problem. During the relationship he would get very irritated with her responses. He conceded having broken his phone. He went through a few phones in the period 2015 to 2017, but he has had his present phone for four years. He has decided not to speak to the mother any more. He was asked if there were holes punched in the walls of his home. He said he had not punched walls. He had just thrown phones. One went through. This always occurred when he was by himself, but he told the mother what he had done. He denied that this was a threat. Counsel put it that he screamed at the mother when he was angry, and spat at her. He conceded that he had burnt a Christmas present she gave to him. He told her he did not want a Christmas present. Looking back at it, at the time it seemed the right thing to do. Counsel put it that he had screamed abuse, but he said there was argument both ways and he denied spitting at her. Counsel put it that he called her names such as bitch, slut and whore, but he said not recently. This was in 2012. When it was put that there were other phrases he used, he said, "Not that I can recall." He has not seen the mother since 2018.
Counsel put that he had smeared a present with excrement upon returning it to the mother. He said it was the next year's Christmas present after the burnt one. He returned the present covered with excrement. He was disgusted at the time. There was no other way to make her understand how he felt.
He knows that family violence can be verbal. And that is why he has stayed away from her for years. He is paying child support and always has. It was put that he pays $8 a week and he agreed. He said he gives her things as well. He had the children for five weeks while she was overseas and said he gave her money. Counsel put it that since 2018 he had not given her anything. He said he had given her child support of $8 a week plus food.
When asked about the children at his home, he said, "They have bikes, they have electric bikes and like being outside. It is more appropriate to give the children six bikes than to give the mother money." He had given his parents his own property, and he pays his parents $200 a week to live in the house that they own. Travel to the mother takes one hour. Since 2012 change has been at the Q Petrol Station. It is 40 to 50 minutes from him and 10 to 15 minutes from the mother. His driving licence was suspended for 12 months in 2018. He has not elected to get a new one. His mother drives for him. He has not considered seeking a licence. He does not want to drive because this would mean he would see the mother. He has given his car to his sister. The mother causes a lot of things - for it to happen very quickly - so he prefers to stay away. All violence he has effected was because of the mother. He dislikes her. Especially since he asked for more time with the kids and she would not let them talk on the phone. His answers at this point became even more critical of the mother and he appeared to me to vent.
The father agreed that he has a prescription of medicinal cannabis. He has had no other medicine since 2010. When asked if he considered himself depressed, he said, "Everyone gets a bit sad." He spends a lot of time by himself. He sees a psychologist and is getting better. Cannabis is for depression. He was smoking cannabis before his prescription. He smokes before sleep. He changed after he saw the Independent Children's Lawyer. He did not get along well with Dr H who had accused him of lying. He got upset. Dr H yelled at him for the first five minutes about his use of cannabis. His usage in 2018 to 2020 was very low. His doctor would like him to take the cannabis during the day but he does not because of this Court case. He still smokes when the children are with him but his mother is there too.
His daughter had been very different since 2020. Up until then they were very close. He is not sure why she has been very different to him. If he questions her, he gets into trouble. Counsel asked about paragraph 87 of the family report, in which X expressed concern that any information she shared with Ms J might anger her father. He agreed that this was a concern. When asked if he conceded that his behaviour had caused X's concern, he said, "Not at all." He denied calling X the names cunt and bitch referred to in paragraph 95 of the family report. His daughter has lied to the family report writer. He confirmed that the routine of late nights till 12 am was correct. It is always a movie night on Saturdays and sometimes there is time for two.
He was questioned about a recent incident involving X. X came into the house. She had not spoken to his parents in the car and said she did not want to speak with her brother and did not want to play stupid games. He sent her to her room. She closed the door but he does not allow this. He went to her room about half an hour later. She was hiding under two doonas on the floor. She yelled and told him to go away. He pretended to record her on his phone. He told her she was acting like his nephew with a medical condition whereas she was normal. He agreed he had yelled lightly at her. He was not yelling out of context. He is her father. He was angry about the way she treated her brother, his mother and not giving him a hug for the first time. He said, "I don't understand why I can't yell at my children if they've done something wrong. It is very rare."
Counsel traversed paragraph 84 of the family report where his mother was reported as saying, "He would fall apart if he did not get what he wants because he lives for them." The father burst out laughing and then said that his mother had not said that. He was asked how he would arrange transport if his parents were not available. He said he would get his neighbour. He would go with his neighbour to get the children but would not get out of the car. He was aware of the recommendations in the family report but did not agree with them. Counsel put it that X should have input as to the amount of time she spent with him. The father said that as a child she has a right to see both parents. X has been guilted into this. It does not stem from him. It comes from the process of being separated from him. It is difficult because he cannot explain what is going on. He does not speak to her about adult stuff. He would like to tell them why they did not see him for six months for no reason. The mother has made up so many lies here, why should she not lie to the children?
He is not vaccinated. He referred to a family member who became ill when injected when younger. When it was put that contact centres would require two vaccinations and he was asked if he would obtain them, he said he would never agree with it. Y wants to play computers. He was asked if he had discussed alternative medication with his doctors. He said this was his first choice. He has depression because of a WorkCover incident in 2000 and has taken lots of medicine. When asked about passport issues, he said he had thought that the mother would leave X overseas. The last time she went by herself and left the children with him for five weeks, Y had broken his arm. He said the time with him was the best five weeks of his life. He denied coercing the mother to have sex with him to sign a passport application. She has taken them twice. She never asked for a passport.
When asked about using an app for communication, he said he had never used an app. He does not plan on using an app. Counsel traversed an incident in early 2021 where he went to the mother's residence on her birthday. He put a large sign on her fence. He was not concerned that the mother might feel threatened. She can apply for an intervention order. She has not got one yet. He had not been going there to annoy her.
Under cross-examination by Counsel for the Independent Children's Lawyer, the father confirmed he has 10 nieces and nephews. He sees seven of them but not the other three because he is estranged from his sister. There's seven around the corner from him. It's a 15 minute drive from his home in Suburb B to his parents. They are moving to Town M and building a house. That is about one and a half hours away. This will take place in a couple of months. When asked how often his children see their seven cousins, he said, "Not often." He wants the children with him. They see them on birthdays and at Christmas and Easter so they see them about once a month. This will continue if his parents are at Town M. Their boy, O, is six months younger than X. There is a girl who is about a year older.
When asked about his own father, he said he is 60-ish and has blood pressure problems. He has had a few cancer scares in the last few years. His father does not play with the children but they do play dominoes with him. His father is a quiet reserved person. He drives with his wife to collect the children. When asked about his panicking during the family report, he said he panicked when his father panicked. He was trying to be calm for something he did not like doing. He felt the family report writer has been very rude to him. He was close to his mother since she has been helping with the kids. They are loving grandparents. He only relies upon them for pick up and drop off.
When asked to describe X, he said she was a lovely child. Very compassionate. In general, she is very loving towards her brother and very helpful. She feels a little bit left out because Y loves attention. Counsel put it that X described herself as more of an indoor person but the father said she loves bikes and the trampoline. She has become quieter and is a sensitive girl. When asked if X would be nervous if he yelled at her, the father could not say how she would feel. He said she would yell back and he would send her to her room. X is very upset when she arrives but by Saturday night she has recovered. She shuts off when it's time to go back. He was surprised that X had said he had sworn at her. Counsel traversed the incident where X said she did not really want to be here right now to him. He agreed. He sat her down. It made him feel horrible, not angry. He felt extreme disappointment and confusion. Her excuse was, "I am becoming a teenager." The incident with the dinner was a different day. He had not said anything. She had not said anything. She was hiding under a blanket. She says she does not want to come to him. Counsel traversed the day on which he had filmed the child. X walked in and sat on the couch. Then she spat out stuff. She didn't want to be there. She did not like her brother. He thought he was filming her. He had his phone up but he cannot find the footage. He intended to show this to her to show how stupid she was being. When asked why he had referred to his disabled nephew, the father said the nephew cannot do anything. She has everything. She was choosing not to do anything when she can. He said, "Are you like your cousin or are you a normal person being rude?" He said he had not lost it and he had not yelled. X cried and was emotional.
Counsel traversed paragraph 70 of the family report in which he had relevantly said that if they get yelled at it's because they have done something wrong. He denies yelling at the children. He then said, however, "What is the point in being a father if I can't discipline my children?" When he yells at his children, half an hour later he explains it. Counsel referred to the disagreements described by X at paragraph 93 of the family report. The father says this takes place in the first two hours and then there are no disagreements. Counsel put it that X had described him as inflexible. The father said, "What does she mean by that? It is not a word she knows." Counsel put it that he gets angry very quickly. He says he does not accept excuses but he does accept reasons. When Counsel traversed the fact that X fears he may hurt her when he is angry, he said he would have to talk to her about that. He asked rhetorically, "Why would I hurt her now?" He has never hurt her before. He has done nothing wrong. He does not understand.
Asked to describe Y, he father said he had done far more activities with X. Y is a lovely little kid who loves playing games. He is very loving. He has tantrums when it is time to go home. He has pets at his home. They feed them.
Counsel asked about marijuana use and asked if he wanted to take marijuana during the day. He said he would not do this during the court proceeding. He has higher anxiety because he is not taking it in the day time. He will get more irritable during the day. When asked if he would take cannabis during the day once the Court proceeding was finished, he said not unless the Court agrees with it. He then went on to say remarks to the effect, "When you're dealing with a narcissistic delusional person and facing a brick wall,” which I understood to be both an excuse for his marijuana use and a criticism of the mother.
The father confirmed that he is still seeing a psychologist quite often. He is semi-retired and closing his books. Time in 2018 to 2020 was pretty sparse. He wants this to go and get back to normal. He denied speaking disrespectfully about Mr F. He tries not to say anything about the mother. If he has vented about the mother, it is unintentional. He had told X about her brother not being outside. He had told her that if Mr F was his son, he could not sit on the computer all day. When it was put that he was negative about the mother, he said, "It's a fact." When asked about the mother having sole parental responsibility, he said he had never had any say so it would be no change. She has made it impossible. He pays $200 a week rent to his parents and receives around about $500 a week in benefits. They live in Suburb R. He saves. He does not trust banks. (I inferred that he keeps cash in his house.) And sometimes saves $70 a week.
The Evidence of the Paternal Grandmother, Ms N
Ms N was sworn and adopted her affidavit as true and correct. Under cross-examination by Counsel for the mother, she said that the father does what he can for the kids and assists them. She has concerns that the mother does not do all the driving herself. She used to drop off the children, but since court a lot of the time she is not there for drop offs. Her son or a family member comes instead. She has snubbed her. She was offended because she had done nothing to the mother. She asked for time at Christmas. She was punishing her. She sought a psychologist because she had trouble coping. Now, the mother very rarely answers her messages. Ms N went on to criticize the mother because she did not allow Mr Sombilon to spend time with the children.
She had been spoken to by the report writer. It was not an official interview. She had read the family report and told the father about it. There were a lot of lies in there. What she said and what the children say to us is different. When asked what time the children go to bed at the father's, she said usually at 10.30. She does not get to his house until 11 am. They watch a movie before bed. It depends when the movie finishes. Usually, it is two movies. She is independent to observe this conduct. She has 12 grandchildren that all are a big part of her life. Since the last lockdown, the first visit was just hugging and crying. Within a couple of weeks X became very standoffish with no hellos. There was nothing about their home lives. She was tired and Ms N presumed it was medication. X was unwashed and her hair was unbrushed.
She agreed that the father has raised his voice to the kids. She has seen him throw phones about five or six years ago. When asked about the filming incident, she said X said some nasty words. She surmised she might have been sexually abused. She wants the children to be happy and to be part of her family.
Under cross-examination by Counsel for the Independent Children's Lawyer, Ms N traversed her work history. She had been employed for 24 years in a factory. She is 61 now and in good health. She saw a psychologist once a month. She stopped after four to five months as they had reached the end of the road. She sees all three of her children. The father is estranged from one sister. She sees her grandchildren all the time. She was asked about her grandchild with a medical condition. There is a room set up for him, but his time with them is now less regular. He has just turned 12. She goes to appointments with him and his mother. Her husband is involved also. She only saw one broken phone. She could not remember why this happened. It made a hole in the wall.
She had never seen him hit anyone. She has heard him yell. She heard him yell at X recently when she was rude. He would always sit down and explain. He asked X, but she shrugs and does not answer, and he gets frustrated. He has not gone too far with his yelling. When asked to describe X, she said at the moment she is depressed. Usually she is happy. They went to Town M this year and it took her a while. When she asks her lately, she just shrugs her shoulders. She did not believe X could be scared of her father when he was angry. When asked if he yells at her, Ms N said not really. She cannot remember the names he calls her. At one stage he said she was not a good mother, but this was years ago. When asked if she was able to continue supervision, she said she did not mind. It is not necessary, but she can do it.
The Evidence of the Mother
Counsel indicated that he relied upon his case outline. The mother was called and adopted her affidavits as true and correct.
The father confirmed he did not wish to put any questions to the mother. His physical response during this part of the proceeding was very marked. He moved himself to be at an angle of 90 degrees away from the mother staring at the wall of the Court, to which he was close. At a point in the evidence where it was convenient to do so, I asked him if he would prefer to sit at the other end of the bar table further away from the mother, and he did so. Even there however, he stared rigidly in front of himself and did not so much as glance at the mother.
Under cross-examination by Counsel's Independent Children's Lawyer the mother confirmed that she works in hospitality. She lives with her mother who is 67 and in good health. She has recently retired from being a tradesperson. She helps with the children if the mother is working. When asked about her relationship with the paternal grandmother she said she did not say anything about her. She has never spoken about her. The father did not want his parents there when the children are with him. She has spoken about the cousin with a medical condition. X said that her father had spoken about the cousin. He is mentally disabled. There was no other mention. They know the grandmother cares for him. The grandmother is not allowed to speak about him because the father gets angry.
The children told her about Town M. She thought they enjoyed it. They saw their cousins and they were swimming there about a month ago. X was not telling her more about it. She just likes playing with the cousins. The mother has one cousin here and with her who has a lot of children, but they are older than X. Mr F is 19 and spends time with his father when he wants to. This has been since he turned 18. Before that, he saw his father every weekend, who is five minutes away in Suburb P. She always encourages the children to have a good relationship with their father.
X is in S School and is going well. She is in a special class in English. She does not play sports. She likes to watch tv shows. She does bikes when at the father's. When asked if X enjoyed this, the mother said she did not know. She does not ask questions. It is one month since X last saw her father and they spoke last Wednesday. She does not want to visit him anymore. There was one occasion when he was upset and screaming at her in her room. She was crying the next day. He was saying bad words about the mother.
Y told her he nearly cried. When it was put to her that Y misses his father, Ms Elorza said that Y was saying at the last visit that the father told him it would be the last time they were going there. X said that dad had told her that he did not like her (the mother) also because she is not letting them go over there more. X said she did not want to go there anymore. Y does not want to go and see the father. They spoke last Wednesday, and Y said it would be the last time. When asked what she had said to this, the mother said she just wants it to be over with. She tried to explain that the next time it will just be Y in a play centre. When asked how Y would be if he did not see the father, she said that Y would be okay if he does not see him. The mother was aware of delays at contact centres and thought that private supervision cost about $100-$120.
When asked about the paternal grandmother, she said that she would never protect the kids even if she was there. When the incident happened, she was there. She just told him not to scream. The first occasion when X was not feeling well because of having her period that weekend, she told him that she did not want to be there right now. Mr Sombilon was angry and sent her to her room. She was saying dad was saying that her house is not a family and that there was not a good role model. The grandmother told the father to stop the yelling. They were in the car. They were not coming back to her. She has no other issues with the paternal grandmother. X did not feel good that day.
The grandmother makes her feel bad if she does not take the children. X told the grandmother she did not want to go. All she said was, "Dad will be disappointed," and X was crying. They always blame her if the kids do not go. They came back in the car and were crying. She does not speak to the grandmother at changeover. It all started with this case. There was intimidation. If she did not drop the kids, she is breaching a court order. The grandmother leaves messages on her phone. There were at least five on Friday to Saturday when the children were due under the orders.
When asked about her trip to the Country C in 2019, she said that it was a reunion. She went back to see her father and family. Cousins were coming from Country K and Country L. She left the children with the father for four weeks. She was not aware of home schooling and had not arranged any. Y broke his arm after two days and the father told her. She had not called him back and not returned from the Country C. He called her back after two days and at that time the child was in hospital. When asked what was the last time that X spent time in the holidays with the father when she was at high school, the mother said it was before lockdown. She is waiting for the Court's decision.
In re-examination the mother said she does not discourage the children spending time with the father. She had read the family report and amended her response after reading it.
The Evidence of Ms J
(It should be noted that Dr H was not required for cross-examination by anyone.)
Ms J adopted her family report as exhibit D1. Under cross-examination by Counsel for the mother, she confirmed that she sought supervised time because of the concerns she had identified. When Counsel put it the ICL might query the prospect of indefinite supervision, Ms J said the father needs to change his entire demeanour. That is a big call. He is not malicious but has his limitations. The issues relate to X. She had no impression X was worded up by the mother. She was speaking on her own behalf. Counsel put it that the father had no positives for the mother. Ms J said that fitted with how he presented. He places a lot of blame on the mother. He has little capacity to self-reflect. Everything is somebody else's fault.
Y enjoyed time with the father and the mother agrees. That is not the issue. It is a question of safety. The father is like a firecracker and can go off at any moment if he thinks he is being disrespected. He loves the children but is very reactive. It is unrealistic to expect children to walk on egg shells around him. When asked about the paternal grandmother, Ms J said that when she put X's concerns to her, she did not empathise and tried to justify the father's conduct. She had no confidence that she could look after the children. The children are not pressured by the mother but were speaking from their experiences. Y was positive with the mother. The routine at the father's is a concern. There are not consistent routines, at least in relation to bedtime.
Under cross-examination by Counsel for the Independent Children's Lawyer, Ms J agreed that the parents have no regard for each other. When asked about X being quiet and stressed at changeovers, Ms J said if she was miserable about going to the father's, then she will not be happy. She sometimes goes because she feels she has no choice. X is aware the parents have no communications and is caught in their tensions. X's situation is partly developmental. She was 12 the previous day. The peer group becomes more important. Her peer group is where the mother is.
Counsel traversed the fact that at the 11F interviews both children had been positive but now X is not. Ms J agreed. X talked about recent incidents. She had started to feel scared and said, "I don't feel safe when he's angry." He was filming her. He could not behave himself during his family report interview. She thinks the father has serious mental health issues which are not being raised here. She queried borderline personality disorder. He is very reactive. X is starting to see things. Things have changed because X is getting older and challenging the father. She agreed the father was stressed by the litigation. Lots of parents are stressed by court, but it is not an excuse for behaving badly. The father spends a lot of time sleeping. Y will have to look after himself. She agreed that contact at a contact centre was not viable. They could not afford private supervision. It is up to the father to find something. He should get someone respectable and run it past the department. She had only spoken to the parental grandmother on the phone. This left her questioning her as a supervisor. She had a tendency to be protective of her son.
Cross-examination by the father commenced with a series of propositions. He put it that Ms J was upset and angry with him, upset at the next day, and yelled at him throughout and did not accept his answers. Ms J rejected this. He had been rude and hung up on her. She gave him another appointment. She would not have done so if she was upset, and she had not yelled at him. She had stopped him when he was off topic.
Final Submissions by the Independent Children's Lawyer
Counsel referred to the orders sought. Time with Y should be with the paternal grandmother in substantial attendance. X's time should be in accordance with her wishes. X is just 12. She is in puberty. She is very alive to the cold war between her parents which was particularly apparent in court. Counsel referred to the father's body language in court. The ICL is not confident the father would not express negative views about the mother and Mr F and X's older brother. X does not like it. She is developing views and some attitude. The father is not emotionally equipped to deal with it. He is anxious and possibly distressed and very reactive. He admits he is more irritable during the day. He takes medicinal marijuana at night only. He has been under litigation stress for the last few months. X is fearful what the anger will lead to. It is a genuine fear of the possibility. She is not enjoying time at present. The father does not accept any responsibility for this. Parents do yell, but it becomes unsatisfactory. X is only 12 but is on the cusp of teenagehood. 11F reports seemed to suggest she enjoyed time with her father.
The ICL is not hopeful the mother would foment a relationship with the father. Therapy will not assist because they have very limited incomes. Y is only seven and loves his time with his father. The mother's household appears more quiescent. Y loves getting out there. He sees his cousins. He went to Town M with the grandmother and grandfather. As Y gets older, conflict may be possible or not. X's experience suggests the father's yelling may become an issue. Movies till midnight were not a major issue for the Independent Children's Lawyer. The parental grandmother was present. The issue will be the denigration of the mother and her family.
The main concerns about the father are recent. The Independent Children's Lawyer has confidence in the parental grandmother. Ms J's report was based on a telephone call. The parental grandmother was an impressive witness. She was honest. She has cared for a special needs grandchild and has a lengthy work history. The Independent Children's Lawyer had no problems at all with the grandmother saying that the father would be disappointed to X. The grandmother should be in substantial attendance. There was not a requirement for supervision.
Final Submissions by Counsel for the Mother
Counsel referred to the parties' attitude to each other. This was something upon which the Court had commented. The mother's attitude to the father is not in a vacuum. There is the father's conduct during the relationship. He was yelling at her. He returned her possessions with excrement on them. He had thrown telephones and told the mother. The father's attitude was summed up in his response. He could not concede a single positive aspect of the mother. The mother has had the full financial burden of the children. The father takes no responsibility. He disputes the report of Dr H but only in respect of the doctor's observations about his cannabis use. He did not dispute the diagnosis of obsessive compulsive disorder and the like.
The family report is adopted by the mother, and the father had not read it. The child has been told of the report's recommendations, so the father knew of these conclusions. But he still did not read it. The father said he would get neighbours to help with travel. He does not cater to the needs of the children, and, particularly, their emotional needs. Y is young and his wishes should be approached accordingly. The father only pays $4 per child per week child support. He nonetheless buys expensive toys and has not considered giving the mother any financial assistance. The father says the children's comments come from the mother, but the report writer did not think this was the case. The children's views were not the same which was to be expected if they had been.
The father's denials of abuse and offensive language are untruthful. The father stated after a verbal altercation he will go to the child half an hour later. This is very concerning as he is blaming the child. He said he only yells when they deserve it. He blames the mother also. The mother's position is that she does not wish to separate the children. The family reporter was clear. Y is not failing to obey the father, but he is a firecracker who could go off at any moment. There was an unacceptable risk to both children. There were concerns about the grandmother adopting the father's narrative. When the grandmother gave evidence, she said "us" and "we".
Counsel addressed the question of sole parental responsibility. It was submitted the parties cannot cooperate. The father will not even get a driving licence so that he avoids seeing the mother. The mother should have sole parental responsibility. The mother also seeks passport orders.
The father's use of drugs was of concern. He has them on prescription now but used for many years before that. There are problems because he cannot take cannabis during the day. He is not trying to diminish his use but wants to use more.
Final Submissions of the Father
The father said he had attended an anger management course. He had learned about reactions to buttons being pushed. He had applied those methods. Straightaway he had been kicked out of the house. It was her way or the highway. He would not know if she was a good mother. He queried why the mother had met him on Father's Day. She should have been with her own father. He had not realised she had a double life and only found out after X was born. He had made her pee in his front yard because he did not want her in her house. He had put up with things to see X more. He has been reactful at times. He only takes a very small amount of marijuana. The doctor has wanted him to medicate more. His psychologist and doctor have been looking after him for 10 years. He said they had read the reports (of Dr H and Ms J) and were disgusted. I note that they were not called.
He said he had been staying away from the mother. It was his decision to go to court to get more time. Only one person had met face to face (the 11F reporter). That person recommended both children spend weekends with him. He is unemployed. His number one job is to be a father. Unfortunately, his relationship with the mother, her cheating on him, left him in disgust. He does not want to see her again. The children are so great. He avoids conflict for the kids. He has been trying to get X to play sports for years. He is prepared to pay but the mother does not agree. He has paid for sports in the past, but the mother would not take her. He wants a team player. There has been no answer to why he did not see the kids for six months.
He does not pay that much. He had offered her a loan of $1000 to swap time but then she said no. Y and X are always at his house. Why is X fearful when Y is not? He wants a family oriented house. He likes to do things as a team. It is not like this at the mother's. Now it is daddy's house and daddy's rules. There are two sides to every story. Ms J had spoken to Ms Elorza (the mother) before him. She yelled at him about his mother. She was loud and very disrespectful and very biased.
He had done the Court ordered courses, although one course has not got back to him yet. This is a course about teenagers. He is doing his best. He only does things out of love. He loves his children. The mother has conflicts with many people (this then descended into a vent about the mother and her family). He is concerned there will be concerns if only one child rocks up. There will be excuses and orders will be broken. He had spoken to X the previous night because it was her birthday. X tried to get Y alone, but the mother prevented this.
Some Brief Observations about the Witnesses
It is always unfortunate and regrettable to make remarks in a judgment that may be hurtful to those who have appeared in court. Given the nature of the controversy between the parties in this case however, it is not possible to avoid some measure of criticism, and perhaps trenchant criticisms at that.
The father's demeanour in court was strange. Counsel drew the court's attention to the father's response when the mother was giving evidence. This was something the court had already observed. He seemed strange and disengaged. He had not read the family report or her affidavits. A number of his answers were rambling and non-responsive. Others of his answers were self-serving and also non-responsive to the questions put. His final submissions were made under considerable pressure of speech and had almost what one might describe as a stream of consciousness quality. His detestation of the mother was clear at all points.
The mother was not, in my opinion, that much better. A number of her answers struck me as being self-serving, non-responsive, and rambling also. I note that in his final submissions the father complained of not being able to have the mother cross-examined by a lawyer, but I do not think it would have added anything. The mother's detestation of the father, while I accept understandable given some of his disgusting behaviour to her, could not disguise the fact that she feels nothing but contempt for him.
The paternal grandmother, Mrs Sombilon, was a better witness than the two parents. I did not form quite so beneficent a view of her evidence perhaps as the Independent Children's Lawyer's submissions suggested. I felt that she was more closely aligned to her son than she wished to admit. She is plainly very critical of the mother. Nonetheless, and I think this should be stated clearly, a woman who has done so much for a severely disabled child must surely be taken to have a very serious capacity to protect and care for children, let alone the fact that she is heavily involved in the lives of so many other grandchildren.
Ordinarily it is not appropriate to comment on professional witnesses. Since Ms J's role has been subject to direct attack by the father, it is appropriate to say that I formed the very clear view that Ms J had formed a very negative view of the father, of whom she was roundly critical when giving her evidence. Nonetheless, I have no doubt that the father was indeed rude to her and hung up and I accept Ms J's evidence that she did not in any way misconduct herself during the interview, notwithstanding that interviewing the father might well be an exasperating process.
Against these findings I come to the statutory pathway.
THE STATUTORY PATHWAY
The statutory pathway is described by the Full Court in Goode v Goode [2006] FamCA 1346 at [65].
In summary, the amendments to Part VII have the following effect:
1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7.The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.The child’s best interests remain the overriding consideration.
PARENTAL RESPONSIBILITY
There is no doubt that the father has yelled and screamed at the mother during the relationship and has damaged houses in which he lived by throwing phones. This is plainly family violence within the extended definition within section 4AB of the Family Law Act. Plainly, therefore, the presumption is rebutted.
More to the point, and this can be dealt with briefly in the circumstances, these two parents detest each other to a degree I have never seen exceeded by any other litigants in my time in the court. There is less than no prospect that they could ever agree about anything. The father will not even get a driving licence because to do so might bring him into contact with the mother. He despises her to the utmost. She returns his emotions. Plainly an order for shared parental responsibility would be utterly unworkable. Since on any view of the matter the children are going to live in the primary care of the mother, it immediately and inexorably follows that she must have an order for sole parental responsibility.
The Spend Time and Communicate Regime - The Primary Considerations
Obviously the father wants to have a meaningful relationship with each of his children and in principle of course it is in their best interests to do so. Nonetheless, there is a clear need to protect the children from harm and pursuant to section 60CC(2A) that factor must be given greater weight. There are a number of things that operate upon this general proposition but in my opinion they are best dealt with in this instance by reference to the additional considerations in section 60CC(3).
Section 60CC(3)(a)
X has expressed clear views at the present time. She does not want to be forced to see her father and wants to go when she feels she wishes to do so. Her position about telephone or other contact is the same. She is 12 years old and her views must carry weight. Y I accept loves going to see his father. It is what he told both the 11F report writer and to Ms J. He is seven but his views are not irrelevant.
Section 60CC(3)(b)
Both the children have a secure and well-grounded relationship with their mother. She has always been their primary carer. The relationship with the other members of the mother's household is less clear but I note that X does not like criticism of her mother's family and in particular of her brother Mr F. There is nothing to suggest that both children do not have a warm and affectionate relationship with these family members.
As already indicated X's relationship with her father is now somewhat fractured. This is not because her mother has put her up to it. It is a measure of the father's surprising immaturity (given he is 41) and lack of insight that he is quite unable to see that his quite appalling behaviour might have engendered this result. I will return to this when I deal with family violence. X has a more difficult relationship with the paternal grandmother. It appears because she perceives her to be aligned with the father. I agree with the Independent Children's Lawyer that the grandmother's comment that the father would be disappointed if X did not go to see the father was unexceptional. It is clear however that X did not like this and has responded in a more negative way to her grandmother (and it would appear her grandfather). Although they have a lot of cousins on the father's side they do not appear to see them much because the father seeks to, understandably perhaps in the circumstances, concentrate the children's time with him when he can. Y has a good relationship with this father and I have no reason to doubt also with his paternal grandparents.
Section 60CC(3)(c)
As a matter of practical politics, and as the father himself said, the mother has taken all decisions about the children thus far. He has been shut out. Given the order I am going to make in respect to parental responsibility that is likely to continue. The father has however at all times sought to spend time and communicate with the children. The mother's decision to cease all time for six months merely because he made an application to the court was spiteful and inappropriate. It cannot have taken her six months to get legal representation and legal advice. She was just paying out on the father. He has pursued his case to judgment which in my view speaks for itself.
Section 60CC(3)(ca)
The mother has been the person who has had the sole financial burden of bringing up the children. The father pays the most niggardly amounts in child support and sees no reason to offer anything more. This is despite the fact that, even on his limited income, he is able to save what must be significant amounts of money to buy expensive bikes and toys for the children to use when they are in his care. Of course however it will never occur to him to offer the mother any assistance. He despises her in every way.
Section 60CC(3)(d)
There is no doubt that if I make orders sought by either the mother of the Independent Children's Lawyer the net effect is going to be that, at least for the vast bulk of the time, Y goes to his father's on his own. He may well find this somewhat difficult although equally there is no evidence, self-evidently, to say that this will necessarily be the case. Accepting as I do that Y loves his time with his father, it is most unlikely that an order for him to spend time with the father on his own will be difficult for him. X and Y each have described the other as their closest friend or person, and it is of course possible that X will decide she wishes to see her father when Y is absent from her every second weekend should that be ordered.
The mother quite plainly would wish neither child to be with the father at all and offered the absurd answer that Y would not miss his father and would be okay if he never saw him. Obviously she will continue to dislike the child, and also X, spending time with him.
Section 60CC(3)(e)
There is a certain measure of practical difficulty in any of the spend time regimes envisaged. The parents live a long way apart and the driving must be a pest. Nonetheless, they have been doing it for quite some time and I note that the paternal grandparents appear both willing and able to continue into the foreseeable future. The practical difficulties associated with communication between the children and their father is of course X at the present time simply does not wish to do so.
Section 60CC(3)(f)
In the context of this case this is a particularly important subsection. The capacity of the mother to provide for the needs of the children is in one sense undoubted. She has always been their primary carer. The children are doing at least sufficiently well at school and in their general development and this redounds entirely to her credit. Her attitude towards the father is one that is as I have said that is readily understandable. He has behaved in the most disgraceful and offensive way to her. Nonetheless, he is still the children's father and the mother's failure to foment a relationship between the children and their father is a concern.
She struck me, as indeed the father did, as being surprisingly immature for her years.
Any criticisms of the mother of course must be set against the father's deficiencies. He utterly lacks insight. He is very self-absorbed. It is a matter of concern that he only regards himself as being of value insofar as he is a parent. This is a concerningly myopic world view. Important as being a parent is, it is not the only aspect of a functioning adult life. His capacity to care for the needs of his children is completely affected by his detestation of the children's mother and his determination to blame any difficulties that he may encounter on third parties. Not only does he loathe the mother, but he managed to form an extremely negative view of Dr H (something not the slightest bit supported by his report) and he managed to get offside with Ms J in record time. His interpersonal skills seem to be markedly lacking. This lack of insight and self-reflection means that he may well struggle to cope with his children's development and more particularly the oppositional characteristics that so often attend teenage children. It has already come to fruition with X. Nonetheless, I agree with Counsel for the Independent Children's Lawyer that it is yet to be ascertained self-evidently whether this will be the case with Y or otherwise.
Section 60CC(3)(g)
As I have said both parents struck me as being immature and self-oriented. The father lives a strange and rather bleak sort of life. He has not worked for many years. It appears that although he is on a disability pension his financial circumstances are in fact relatively sound. He said he saves up to $70 a week. He does not trust banks and presumably keeps the money in cash in his home. He does not trust the government. He is estranged from one of his two sisters. He appears to spend a lot of the time simply moping around in his own premises. He does love his children of that there can be no doubt, but his love for them is tinged with this need on his part to find fulfilment in being a parent, something that really is all about him and not the children.
The mother lives in a somewhat more grounded set or arrangements. She has her mother and sister and Mr F living with her. A picture that emerged to me was one of a generally harmonious household. She does work in hospitality on some days. She is of course a devoted mother.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
I have commented above about the father's attitude towards being a parent. It is a matter of concern. Nonetheless, and I repeat here he loves his children very dearly. The mother also loves the children very dearly.
Section 60CC(3)(j)
This is important. The father has been violent in the past during the relationship. I have no doubt he has screamed at the mother and called her the offensive phrases she has described. Nonetheless, and as he has said on more than one occasion, this was a long time ago. What is not a long time ago however is his quite appalling behaviour towards X. X says to him, "I don't want to be here right now" and he immediately calls her a cunt and a bitch. He says he only yelled at her but I do not believe him. A child of this age would simply not make such a phrase up, and she repeated it voluntarily and uncoached to Ms J. He certainly said it. She runs away to her room and hides under two doonas. She is obviously deeply distressed. The father comes in and makes belittling comments about her while filming her (or trying to) on his phone. This sort of conduct for a girl at that age of particular sensitivity as she comes through menarche and into puberty was always going to have exactly the sort of effect that it has now had. Even if I was to reject all the other matters alleged against the father in and of itself this would be a decisive consideration. It's only fortunate that this disgraceful behaviour has not caused Y to become alienated also.
Section 60CC(3)(k)
The mother has applied for an intervention order but court delays related to COVID mean that it has not been determined.
Section 60CC(3)(l)
Everyone agrees it is appropriate to make final orders now.
Section 60CC(3)(m)
There are no other relevant matters save that as Ms J herself conceded, for people with the financial resources of these parties there is no prospect of professionally supervised time and a contact centre will not work because the father will refuse to be vaccinated.
CONCLUSION
Taking all the above matters into consideration it is immediately apparent that the orders that are in the children's best interests are those proposed by the Independent Children's Lawyer. Any endeavour to force X to see her father at this time is utterly contraindicated. It is to be hoped, although I confess I doubt it very much, that upon reading this judgment the father may reflect upon his behaviour and over time seek to change the way in which he responds. That he has a filthy temper and at the age of 41 the chances of his being able to change it are as Ms J suggested very limited. X should spend time with him in accordance with her wishes.
I agree in the ultimate with the Independent Children's Lawyer that Y's best interests will be met by the time with the father suggested by the Independent Children's Lawyer with the paternal grandmother to be in substantial attendance. I agree that the father's late nights on Saturdays are not perhaps very desirable but they are not a major red flag in the scheme of things. True it is that the father does not get up until quite late in the day on the Sundays but the grandmother is there by 11 o'clock and it appears that is when Y wakes up anyway. It is imperative that the maternal grandmother be in substantial attendance. She is prepared to do it. The father does have this hair-trigger temper and while the grandmother's capacity to calm him down must be open to some measure of question, the reality is that if he misconducts himself with Y the same result will rapidly repeat itself as has occurred with X. What the presence of the grandmother does do though is to provide a safety valve, which the father's temper makes necessary. There will be orders in terms of the minute prepared by the Independent Children's Lawyer.
Finally, I note that the mother sought passport orders. Given that she has already taken the children to the Country C and bought them back, and given her strong ties in Australia, there is no risk the mother will abscond with the children. It is self-evidently desirable that the children connect with family and culture in the country of origin of their mother, and I do not understand the father to cavil greatly, or indeed at all, with this. In circumstances, where communication between the parties is non-existent and they detest one another, the passport orders the mother seeks are clearly in the childrens’ best interests. These will be made accordingly.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 26 April 2022
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