St Claire & St Clair and Ors
[2013] FamCA 108
•27 February 2013
FAMILY COURT OF AUSTRALIA
| ST CLAIRE & ST CLAIRE AND ORS | [2013] FamCA 108 |
| FAMILY LAW – CHILDREN – introduction to father after long absence – violence and intimidatory behaviour considered – Orders for therapeutic intervention followed by contact centre supervision. |
| Family Law Act 1975 (Cth) |
| Champness & Hanson (2009) FLC 93-407 Cotton & Cotton (1983) FLC 91-330 Loddington & Derringford (No 2) [2008] FamCA 925 M & M (1988) 166 CLR 69 Pishke & Rupp; Bannon & Rupp [2010] FamCA 632 Sigley & Evor [2011] FamCAFC 22 |
| APPLICANT: | Ms St Claire |
| RESPONDENT: | Mr St Claire |
| 2ND RESPONDENT: | E Pty Ltd |
| 3RD RESPONDENT: | Mr G |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 9777 | of | 2010 |
| DATE DELIVERED: | 27 February 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 3, 4, 5, 6, 9, 10, 11 July 2012; 29, 30, 31 January 2013; 1, 4 February 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr P Davis |
| SOLICITOR FOR THE APPLICANT: | Barbayannis Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Sweeney |
| SOLICITOR FOR THE RESPONDENT: | Tisher Liner FC Law |
| COUNSEL FOR THE 3RD RESPONDENT: | Mr Searle |
| SOLICITOR FOR THE 3RD RESPONDENT: | G & I Sanicki Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dowler |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Cathleen M Corridon |
Orders
That the wife have sole parental responsibility for the children D born … December 1999 and K born … August 2005.
That all extant parenting orders are otherwise discharged.
That the children live with the wife.
That the wife, with the assistance of the Independent Children’s Lawyer, organize for K to attend upon a therapist for the purposes of endeavouring to create a healthy parent and child relationship with the husband.
That the husband indicate whether he is willing to attend upon such therapist and participate in such therapy, at his expense, as the therapist considers necessary to fulfil paragraph 4 hereof.
If by 4.00pm on 15 March 2013, the husband has not indicated in writing to both the solicitor for the wife and also the Independent Children’s Lawyer, an unequivocal acceptance of the said therapy and that he will pay for it, then paragraph 4 is automatically discharged and there shall be no contact thereafter between the husband and K without further order.
That any contact between the husband and D shall be by arrangement between them.
If the husband agrees to the therapy in paragraphs 4 and 5, the therapy begin as soon as practicable.
Other than for the purposes of assisting the implementation of the therapy, the Independent Children’s Lawyer is discharged as and from 1 May 2013.
The therapist referred to in these orders shall be given a copy of the reasons published this day and a copy of these orders.
Upon the therapist deciding that the therapy shall commence, the wife do all things necessary to bring K to that person and thereafter facilitate all sessions.
Upon the therapist deciding that it is appropriate to begin contact between the husband and K outside of the therapy sessions, he or she shall advise both the husband and the wife to enrol in a contact centre for supervised contact to begin as soon as practicable thereafter and the contact centre shall be the one most quickly able to assist providing the distance is reasonably practicable from the wife.
The supervised contact shall be on the usual terms and conditions of that centre but for a minimum period of 12 months.
After 12 months, the husband shall spend unsupervised time with K on each alternate weekend from 10.00am on Saturday to 5.00pm on Sunday but:
(a) the handovers shall continue to be at the contact centres; and
(b)the husband shall advise the wife the address at which K is to stay.
That any further contact time, including holidays and special occasions, shall be by agreement and failing agreement, upon application to the Court.
That save as to the times provided by these orders, the husband be restrained from contacting K other than that the husband may send cards, letters and presents to K care of the wife who shall give them to the child.
If the therapist determines that it would not be beneficial for K to have any contact with the husband, that determination shall be in writing to the husband with an explanation as to why. Thereafter, the husband shall be limited to cards, letters and presents as described in paragraph (16) hereof.
That all applications are otherwise dismissed.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym St Claire & St Claire and Ors 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 MELBOURNE |
FILE NUMBER: MLC 9777 of 2010
| Ms St Claire |
Applicant
And
| Mr St Claire |
Respondent
And
E Pty Ltd
2nd Respondent
And
Mr G
3rd Respondent
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The facts of this parenting dispute are complex which compounds the problem of finding a solution. There were financial issues involving a third party and a child support dispute but they were resolved after four days of hearing.
Apart from the fact that the versions of what happened over the 10 years of the parents’ relationship were disputed, some of the incidents bordered on the bizarre. Indeed, there were numerous issues to which each party pointed as evidence of why parenting orders should or should not be made for the future welfare of their children. The credit of each party was very much in issue.
There are two children of the marriage of Mr St Claire (“the husband”) now aged 67 years and Ms St Claire (“the wife”) now aged 37 years. They are D who was born in December 1999 and K who was born in August 2005.
Before the birth of K, the husband and wife were conducting a hospitality business in Country H and a series of incidents occurred which led to them both returning to Australia where they soon after separated. Litigation over property and the parenting of D occurred in this Court in 2004. Despite that, the parties reached agreement about all matters and the Court made final orders. A reconciliation of the relationship followed only months later. The circumstances of the reconciliation were controversial even in these proceedings. It was the wife’s position that she was pressured, if not threatened, to reconcile yet the relationship continued not only for a number of years but K was also born during it.
When the parties finally separated in September 2010, it was again under dramatic circumstances. Prior to that final separation, the husband was very (if not terminally) ill with cancer but has since apparently completely recovered.
Since the separation, the husband has not had any contact with either of the children. The duration since separation has meant that K does not know her father but that same duration has entrenched D’s antipathy towards his father. Thus, the prospect of undoing any of that is extremely perplexing.
Throughout the relationship, the parties have been involved in businesses which included running a hospitality business in Country H, conducting personal services businesses in Sydney and Melbourne and running a health industry business in Melbourne. Some of this was through E Pty Ltd which was joined as a party in its own right during the property proceedings. The conclusion of the property proceedings brought an end to the company’s involvement.
The final hearing began in July 2012 but because of the complexity of the factual matrix and various arguments relating to financial issues, time did not permit the completion of everything in one sitting. Indeed, when the hearing resumed in January 2013, there was argument as to whether the parenting proceedings had concluded in July.
In July, and over opposition from the husband and the then third party, I ruled that the parenting issue should proceed first and it did. Upon its conclusion (as I understood it in July) the parties were reluctant to see any determination then made which might have prejudiced the hearing of the financial issues. Those issues ultimately resolved but the delay of several months in the resumption further prejudiced the possibility of any parenting relationship with the husband being attempted and entrenched the parties’ bitterness towards one another.
Background
The husband was born in Country F and migrated to Australia in 1984. He described himself as a businessman although his financial statement showed him as unemployed. His income was nominal yet in the property orders I was asked to make, he will pay the wife a large sum of money which will simply go towards her costs. His life remains something of a mystery to me.
The wife was born in Country A and migrated to Australia in 1977. She is currently occupied in home duties but recently undertook a course to obtain a security industry licence and there is some prospect of contracted employment. Throughout the relationship, she acted in a clerical role for the parties’ businesses. She has otherwise largely concentrated on caring for the children and in that role, has been a Centrelink benefits recipient.
Because of the property orders, the wife will be leaving the former home and it was not clear where that will leave her and the two children. She will have some money but whether that will be enough to acquire another property is unclear and unstated.
The parties married in 1998 and separated for the first time in October 2003. After they reconciled, K was born. When she was not quite two years old, the husband developed lung cancer and the wife became his carer. It was thought his condition was fatal but he recovered completely subsequent to the separation. A dramatic separation occurred in September 2010 involving the physical removal of the husband by the police from the home. Litigation then again commenced culminating in this hearing.
The dramatic departure from the home meant that the husband was excluded from the life of the children too.
The litigation that followed was extensive. There have been numerous appearances before the Court many of which involved financial issues. Child support was a vexed question but ultimately resolved between the parties. Despite his lack of income, the husband paid regular sums in the later part of the period just before the resumed hearing. The source of those funds seems to have been borrowed.
In February 2011, the Senior Registrar noted in an order that the husband intended to pursue a contact application when the case returned in April 2011. That did not eventuate. The time went by and the husband’s involvement in the lives of the children ceased.
Even when the psychologist Mr M undertook his family evaluation task, he chose not to put the children in the same room as the husband.
D is clearly resistant to any approach of his father and I am satisfied K does not know him.
Outcome
In respect of the parenting proposals, I propose to order that there be no contact between the husband and D. D at least knows who his father is and has a very strong view about any relationship. I intend to respect that view. K is different and should have the opportunity to learn that she has a father who has an interest in her. The difficulty in my view is that this is not a reintroduction case but one involving introduction. I am satisfied that despite the husband’s optimism and his counsel’s submission, K has little, if any, memory of her father and the wife has done nothing to promote even his existence to K. It is in K’s best interests for there to be face to face contact but only if a relationship can be created. The first step, an introduction, could only be undertaken by some therapeutic approach and the evidence is lacking to enable me to find how that could be commenced. For that reason, I must leave it to the parties to some degree.
I am conscious however that forcing the reintroduction of a contact regime now will be distressing for the wife and D and may be detrimental to K’s welfare.
The parties’ proposals
The ultimate final submissions of the parties were very different from when the case began. Clearly, the evidence about the children impacted on the parties’ own views about their parenting roles.
The husband had sought that he have sole parental responsibility for both children and that they live with him. In final address, his counsel submitted that the appropriate orders were that:
· the wife have sole parental responsibility for the children;
· that the children live with the wife;
· that in respect of D, any contact arrangement be made between he and the child;
· with respect to K, there be supervised time on each alternate Saturday at a contact centre;
· subject to a report indicating that K had coped at the contact centre, then during each alternate Sunday from 9 am until 5 pm until the end of 2013; and
· beyond 2013, during each alternate weekend and a week of the school term holidays.
In the hearing, the husband had strongly opposed a restricted environment such as a contact centre. His view was that such an arrangement was unnecessary and prison-like. Whilst that may be his perception, supervision is for the physical and emotional protection of children not the parents. K needs that protection. It was a significant concession by his counsel to suggest that final proposal but counsel for the wife said his client was cynical about it because the husband had said he would not attend such a centre.
The wife’s position did not shift much. She initially sought that the husband’s time with the children be “reserved” and that he be restrained from contacting them.
In final address, counsel for the wife referred to the same document of her position at the beginning but made it clear that there should be no contact at all. The initial “reserved” position tended to suggest some reconsideration of the matter in the future but that is not what the wife intended.
The Independent Children’s Lawyer initially very much wanted to test the evidence because the Court-appointed expert, Mr M, said that if the wife’s version of the facts was right, there should be no contact with the husband because it would mean he was sadistic yet if the husband’s version was right, the wife had to be found to be a pathological liar and the children should be removed from her.
In final submission, the Independent Children’s Lawyer proposed orders that:
· the wife have sole parental responsibility for both children;
· the children live with the wife;
· the husband have time with K at a contact centre for at least 12 months; and
· after 12 months of supervised time, the parties consult with Mr M and discuss future arrangements.
I find that none of those propositions satisfies the “best interests” principles.
The first point to note is that there was agreement about parental responsibility and the residence of the children. Those issues therefore become unnecessary for me to decide.
The husband’s proposal presumed that the arrangement would go well and that K will successfully settle with the husband. It presumes that a report by the contact centre will favour a move to unsupervised time. That places the child’s future relationship in the hands of an unknown and unnamed professional. I am not at all comfortable about that prospect.
The Independent Children’s Lawyer’s proposal presumes that 12 months is the minimum time necessary for a secure attachment to occur. It presumes that thereafter, Mr M would have an attempt at relationship development between the husband and K. I was informed by counsel that Mr M had been approached and had reluctantly agreed to this course. His reticence is understandable having regard to his difficult involvement to date. Again, however, my concern is that the Court is being asked to presume this will all work and that the future of K can be delegated even to such an experienced professional regardless of what the parties may say. I am not comfortable about that prospect nor do I accept it is appropriate in law.
The mother’s position presumes that there will be a traumatic effect on both children and that their rights as set out in the law should simply be ignored. I am not comfortable with that having regard to the evidence about K’s understanding of her father.
The solution that satisfies the best interests principles is that the wife facilitate and the husband participate in, a therapeutic program organised by the Independent Children’s Lawyer but at the husband’s expense, to see whether any relationship can be created between the husband and K. If it can be, the Court would have to trust the therapist to act as the supervisor of K to protect her against any psychological harm and only introduce her to the husband at a time when K is ready for the experience.
On balance, K’s rights to know her father outweigh the psychological trauma for the wife. There is insufficient evidence to enable me to find that such trauma would adversely affect the parenting of the wife. I do have the expert opinion of Mr M that the wife would be distressed by any orders but I note that despite all that has happened before separation and the long period of this litigation, the wife has parented these children well save for her entrenched views about the husband. She is a strong woman and I have no acceptable evidence to show that her parenting skills will be adversely affected by a contact order involving the husband seeing K nor that her parenting will suffer with the involvement of a therapist with K to explore her capacity to interact with her father. I propose to have the post-therapy contact supervised for some time to enable K to have a chance to come to know her father. Supervision will provide the necessary psychological protection for her. The dilemma arises if the reintroduction therapy is successful and is followed by a supervised period, what happens then? Having regard to the findings I have made below, I consider that it is in K’s best interests for there to then ultimately be some unrestricted time with her father.
If it be that the therapy does not create a relationship between the husband and K, as determined by the appointed therapist, the husband should simply be restricted to being at liberty to write to K and send her presents and cards. I would not give the wife a right of veto in respect of the presents and cards because I do not have the confidence that she would be proactive about at least keeping the concept of K having a father alive.
If it be that the husband does not want to participate in this restrictive and difficult program, his actions will speak for him. If he fails to abide by the conditions of the therapist, the orders I propose will be deemed suspended indefinitely.
I have mentioned that the prospect of any relationship between the husband and K has been prejudiced by the delay in the finalisation of the proceedings. To some extent, that was because of the parties’ focus on property issues. Another significant problem was the starkly different positions as presented by the parties themselves. The parties attended upon psychologist Mr M who had to grapple with the evidence of the parties to see how it impacted upon D and K. I have set out what Mr M said. The difficulty in accepting that the person believed should “take all” is that I do not believe the accuracy of either party’s version.
For the reasons set out hereafter, I find the wife has embellished and exaggerated some events and the husband has behaved badly and unnecessarily painted the wife in a very poor light. What follows therefore are my findings in relation to a number of incidents which indicate the parties’ respective parenting skills and capacity doing the best I can with the evidence available.
Credit
The wife was the first of the parties to give evidence. She was tested under cross-examination but having regard to the gestation of this litigation, there was little new in her evidence. She responded in cross-examination consistently with the stories she had given to experts and the police. The most controversial issues associated with violence and threats were not corroborated by objective facts. At times she was distressed in the witness box when challenged about matters despite having been asked about these matters a number of times before. She did not change her position but some of the matters about which she gave evidence were implausible. I shall turn to them below.
It is also important to mention that the wife made allegations of sexual abuse against the husband. The High Court of Australia in M & M (1988) 166 CLR 69 addressed the approach in parenting cases to such allegations and that has been my focus in assessing the evidence of the parties. The Court said:
[T]he ultimate and paramount issue to be decided in proceedings for [parenting orders] is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks [a parenting order] does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
The High Court went on to observe that there would be cases where a court could come to a positive finding that the allegation of sexual abuse is well founded and conversely in some cases, it has no hesitation in rejecting those allegations. The following was then said:
And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
On the evidence, I find this is not a case where I could make positive findings against the husband concerning sexual abuse. Indeed, it is a case where I am comfortable in finding that the allegations of sexual abuse should be rejected.
The husband gave evidence in a very calm and measured way but his evidence too had been trawled over during the gestation period of this hearing. His evidence was that the wife was a practised and pathological liar. I reject that having regard to some of the findings I shall make. I find that the husband is dogged in his approach to getting what he wants and that he did make threats not only to the safety of the wife but also in respect of his own life. Whether or not he meant them is hard to say but as I will set out below, I accept he did make those statements.
In summary therefore, each of the incidents which formed the basis of the parties’ respective cases has to be looked at individually to get a picture of really what did happen in the lives of these children. Those findings explain why the children’s relationship with the husband has been shattered.
The husband’s name and age
The wife said that the husband was born in 1945 and that he used different names to his birthname. The husband said that he was born in 1945 and that was clear from his Country F and Australian passports both of which were in the possession of the wife.
I am satisfied that the wife wanted the Court to draw an adverse and sinister inference against the husband in respect of his age and name.
The husband’s explanation in relation to his age was plausible. He said that the original birth certificate had been noted as 1954 not 1945 and a variety of records thereafter including his taxation records and hospital records continued in that vein.
The wife conceded that in respect of the name, there was really nothing deceptive about the change. She saw the age as a different issue. First, she said that it would have been important for her to know his correct age because, as he was seriously ill and being treated with drugs, she would have told the doctors. She said she had not looked at the passport and she had not known of the 1945 date at all. This was despite the fact that she had possession of the passports. There was always an understanding by the wife that the husband was considerably older than her and I find it inconceivable that she had not contemplated his true age.
The husband shrugged off the issue as simply an error. It was pointed out to him however that a solicitor by the name of … had drawn an affidavit in 2004 in which he swore to the fact that he was 49 years of age and born in 1954. The husband said that that was simply a clerical error. If it was, he took the swearing of an affidavit rather flippantly. He saw no reason to correct his driving licence notwithstanding the fact that it had been reissued at least once with the incorrect date. His divorce documents from a previous marriage showed a similar incorrect date as did his birth certificate but consequently, so did that of D. A transfer of company directorship seemed to show 1954 and his accountant continued to lodge documents using that date. His explanation in relation to the accountancy documents was that they were not lodged by him and that this clerical error just continued along. The records of his medical practitioner, Dr Y, showed 1954 but he could not remember where that came from. He thought the documents of the hospital he attended were correct but did not know for sure.
His explanation for the incorrect date in the formal records was that he had given the relevant note taker his driver’s licence. A psychologist whom he saw had a record of 1954 and his explanation for that was that he gave his driver’s licence to the psychologist’s receptionist. When asked why that was necessary, he said that he wanted to partly claim the costs on Medicare.
In 1997, the husband had a conversation with police from the Vice Squad in which he gave his date of birth as 1954. His explanation was that they must have extracted it from his driver’s licence. He had no recollection of the incident.
The wife attacked the husband’s credit because of this date issue. The difficulty I have is that although very unusual, the husband’s explanations were plausible. A clerical error had occurred and as he said, when he grew older, he felt better about having an age younger than he was and he saw no reason to correct the errors. The wife did not point to any act involving the police or business in which the husband might have obtained some benefit by way of a fraud.
Ironically, bearing in mind this was a significant issue for the case of the wife, a document, Exhibit H2 tendered by the husband, showed that the wife completed a claim for a carer’s allowance from Centrelink with the husband’s birth date as 1954. It was not suggested that she was endeavouring to mislead Centrelink in relation to that issue and therefore I conclude that that is in fact what she thought.
Accordingly, I do not find that this issue affects the husband’s credit or has anything to do with the case generally.
Country H 2003 and the husband’s threat of suicide
Towards the end of 2003, the parties separated in Country H. They were conducting a hospitality business and the wife had the care of D. The husband returned to Australia but the wife remained in Country H.
A DVD film was played in evidence which the husband acknowledged he had recorded in 2003. His views about the wife were not complimentary and he made strong and unpleasant statements about the local people. Counsel for the Independent Children’s Lawyer observed in final address that this disparagement by the husband of the local people was of some importance because of the cultural heritage of the children. I doubt whether that would be of significance to either parent but the more concerning aspect of it was the husband’s suicide threat. This evidence was led to prove the husband’s manipulative behaviour. It is a distressing, if not cold and calculating, video and, despite the husband’s denials, it does indicate that he wanted the wife to believe he was intending to suicide. In the middle of the filming, the husband was interrupted by a mobile telephone call at the conclusion of which, he simply continued on the recorded conversation directed at the wife. It was manipulative and threatening and despite his claim that he did not mean it that way, I am satisfied that the wife was frightened.
Proceedings in Country H
The wife commenced legal proceedings in Country H about family violence which were listed for hearing in late 2003 but by then, she had already returned to Australia. Her explanation for that was that they “never got before the court”. I do not find anything to criticise the wife about these proceedings and I accept her explanation. The significance of those proceedings lies in what happened after the husband had left to return to Australia. The proceedings in Country H although not pursued, indicated that the wife was fearful of the husband and his behaviour was threatening.
Shortly after the husband returned to Australia, the wife received a fax from him threatening that if she did not return to Australia, he would send people to Country H to be violent towards her and to kidnap D. She was cross-examined about those threats because the husband denied any misconduct. In a letter dated 2 September 2003, the husband wrote about wanting the wife to change “the greed and hate” and his desire that they not hurt each other any longer. He wrote that D had been living in a war zone. The wife replied the following day acknowledging she did not want to talk to him because she was frightened by him. She referred to being “mentally tormented” by his words about her family, D and Country H.
The wife’s letter complained the husband had been abusive and said that she had lived in fear of him taking his life.
I bear in mind that all of this violent and threatening behaviour was denied by the husband. After the husband went back to Australia, he returned to Country H but this time, with two men. The wife alleged that threats were made towards her and the police were called and these two men were deported. One was deported to Australia and the other to Country J. That is when the proceedings in Country H were commenced.
The husband simply and absolutely denied the claims. He maintained that he pleaded with the wife to return to Australia but she refused. He acknowledged she called the Country H police but they told her they would not interfere in matters between a husband and wife. In cross-examination however, the husband confirmed that the incident involving the two men did occur but one of them was not connected with him. He said that he knew the named man but he was also known to the wife. He maintained that he asked this man to attend because he spoke the local language. The husband’s attendance at the hospitality business premises was for the purposes of ensuring the wife did not keep the business and premises and he claimed that he needed someone with the local language skills as he needed to use solicitors in Country H about the business and premises. He claimed his approach was to try and make peace and to convince the wife to come back to Australia because otherwise, she was going to “pinch” the business and premises.
In the context of the DVD, the husband’s correspondence, the Country H proceedings and the wife’s complaints, I am satisfied that the husband was both intimidating and manipulative.
One might wonder then why the wife would return to Australia. The wife claimed that the husband had threatened her at the time using words to the effect that she would not be able to attend her parents’ funeral and would never be able to return to Australia. The explanation for her return was that she wanted everything done in a legal way without abusive words and threats and did not wish to live in fear any longer. On the evidence, I find that plausible.
Despite the subsequent reconciliation, the wife maintained that she was subject to manipulative and threatening behaviour in the second period of the relationship. The behaviour in Country H leaves me with a strong impression of the way the husband generally behaved towards the wife. It also gives me some insight as to his language and behaviour towards D during the latter stages of the relationship before the final separation. Thus, the acceptance of the wife’s evidence about that first period and the husband’s absolute denials, satisfies me that at least in respect of manipulative and controlling behaviour, I should accept the wife’s version of the evidence.
The husband begins Australian proceedings
In 2003, the husband instituted proceedings in Australia seeking the return of D. The exact timing is unclear.
The wife returned to Australia to find that proceedings had already been issued but she participated in them and was represented by legal practitioners.
Final orders were made by Joske J in July 2004. In her evidence, the wife stated that she had not agreed to these orders but there can be little doubt that they were made. The court record shows the husband was represented by senior counsel and the wife by her then solicitor. I do not accept the wife’s version of how those orders came about.
The July 2004 orders provided for D to live with the wife and the husband to have contact. Nothing in the orders appears controversial particularly in the light of what had happened in Country H.
Property proceedings were also finalised and the husband was to pay $300,000 on or before 23 September 2004. The wife was to transfer to him the real property in Country H and any interest in and control of, a variety of corporate entities. A default provision provided that if the husband did not make the payment, the Country H property was to be sold by auction. Terms and conditions including valuation and reserve price to be sorted out by the President of the Real Estate Institute of Victoria can be seen in the orders. Bearing in mind the international connotation, just how that would have worked, remains a mystery.
July 2004 onwards
Despite the final orders and the wife’s fear of the husband, she did not comply with her obligations relating to the Country H property and the husband began enforcement action. Those proceedings were resisted. The wife would not sign the document for the sale of the Country H property. The wife conceded it was an odd thing to do where she had been ordered to transfer the property upon the payment of the sum of money. More importantly, she was in a period of her life where she had concluded a violent relationship and expressed a desire to keep away from the husband. There was no suggestion that her entitlements under the final orders were not going to be met; it was her obligation that she was resisting. The wife made no mention to anyone that she was being pressured by the husband. Throughout that period, the wife was represented by lawyers. No-one was called from those firms nor was any file note tendered to show her concerns being expressed at that time. No medical practitioner, relative or friend was similarly called as a witness. The enforcement proceedings too culminated in consent orders in November 2004 and again, the order was one to which the wife consented when represented by a solicitor.
I find the orders were properly made. Because of the wife’s allegations of threats by the husband in their subsequent relationship, one would wonder why the wife would antagonise the husband from whom she wished to be distant.
After the enforcement proceedings were finished and as she was leaving the court, the wife said she was handed a note by the husband which read that if she knew what was good for her, she would reconcile with him. According to the wife, the note has long disappeared.
The wife conceded that she had not told her lawyers about the note and it was not mentioned again until the parties separated in 2010. Because of the wife’s conduct at that time which was inconsistent with fear, I doubt very much her evidence about the note but even presupposing there was such a note, I could not find it was sinister as portrayed by her.
The wife then began living in a property with the assistance of the husband and he was spending time with D without restriction or supervision. In the final parenting orders, the parties had agreed to joint responsibility about decisions for D. There was a semblance of normality about everything.
Duress (as the wife uses the term) must mean that her will was overborne and she returned to a violent and manipulative man. Despite my finding about what happened in Country H and the consequential return to Australia, I could not find on the balance of probabilities that the reconciliation occurred in the way she described. I reject her evidence that she reconciled under duress or that it began with a note.
In the period of time thereafter, the wife became involved in the running of the party’s entity E Pty Ltd which at that time, was conducting licensed personal services businesses. She acted in a clerical role and there was also a period from K’s birth until separation where she was a director of the company. All of that strongly suggests to me that the wife knew what she was returning to and indeed, became a significant part of the financial structure within the family. The wife maintained that her will was overborne by the husband and she just did what he told her. During that time, she was in control of significant amounts of business cash and made the entries in the business cash books. I reject that because all of the indicia point to the opposite.
The Centrelink applications
Another issue said to affect the credit of the parties was who and how a variety of Centrelink documents were completed and lodged after the husband became ill in 2007. At various stages, both husband and wife have been recipients of government benefits.
From 2005 until September 2010, the husband operated his business and also share traded from home. He said the wife assisted in the operations of the businesses and he paid her cash in hand. I have already noted that it was the wife’s evidence that she was a director of the family company. All of this evidence does not sit comfortably with the fact that the husband knew that the wife was receiving benefits. It was his document (H2) tendered in evidence to show that the wife was making a claim for a carer’s allowance in respect of him. It was his evidence that the wife had made an application as a “single mother” in 2006 whilst still living with him. He maintained that he was not aware of that until these proceedings. The wife was challenged about this in cross-examination and confirmed that she lodged an application but then withdrew it. She said the husband had asked her to do so. Because I have doubts about the truthfulness of both parties, I am not prepared to make a finding about what each party was doing with Centrelink. In respect of that evidence, whilst it would be simple for me to pass the information on to the relevant agency, I do not intend to do so because it may very well be a waste of everyone’s time. I do not find that any of those particular events assists me to work out who is telling the truth on the bigger problem of the parenting of the children.
In December 2009, the wife applied for Centrelink benefits seeking a carer’s allowance using both her birth and married names and she nominated the family accountants to give details of trusts and companies. This application was to enable the wife to have financial support whilst she cared for the husband who at that stage was very ill. In December 2009, the husband wrote to the family accountant referring to “a living will” but he also wanted the accountant to support the wife’s Centrelink entitlements . In a document signed in July 2010, the wife acknowledged that she was obtaining a parenting payment.
In the correspondence with his accountant, the husband referred to the transfer of E Pty Ltd to the wife as part of this “living will” so that she could look after the family home as a trustee for the two children. The accountant contacted Centrelink. The purpose seems to have been to enable the wife to obtain the Centrelink pension despite still having the interest in E Pty Ltd but she was also a beneficiary of the family trust of which E was the trustee. That may have been a proper entitlement of the wife but the business activities seem to have been going on regardless of the husband’s state of health. The accountant was not called to give evidence to explain all of this and in any event, presumably Centrelink accepted the situation. This evidence was given to show (and refute) the wife acted under the husband’s dominance. Whilst I suspect there was more involved that that, I would not find the wife’s will was so dominated.
Both parties thought the husband was dying and indeed, the husband wrote on his own Centrelink form that he wanted the wife to be his carer and to be paid appropriately whilst he awaited palliative care.
It was the husband’s evidence that right up until September 2010 he shared a bed with the wife yet in the document which he provided to Centrelink under his hand and signed by him, he said they were not sharing the same bedroom.
There is little doubt from all of the Centrelink documents that by the middle of 2010, the parties were separated under the one roof notwithstanding the wife was seeking the carer’s allowance. The Centrelink forms referred to people living under the one roof.
The husband alleged that the wife was not truthful and that she had orchestrated the separation at a time when the husband was dying and seeking palliative care. I reject that. At its highest, the documents only confuse the picture. Both parties seem to have acknowledged that the separation was imminent and that their relationship had come to an end. Later in these reasons, I shall deal with the evidence of Dr Y. His evidence confirms that the relationship between the parties from 2007 onwards was poor and he was in regular contact with the family home.
Thus, the accuracy of the Centrelink documents and the use to which each party put them in evidence was made more confusing because of the wife’s evidence, denied by the husband, that he had made her fill them in despite their inaccuracy. I do not find that the husband orchestrated the documents that way. The parties were not communicating and as Dr Y said, the household was dysfunctional. Indeed, it was the wife who stood to gain by the Centrelink applications so it is hard for me to see just how the husband controlled their content.
The wife’s preoccupation with the husband’s death
The husband stated that the wife seemed “very buoyed” that he was going to die. It was put to the wife that she was “preoccupied” with his death and that the husband’s death was a way out of the relationship for her. She denied all of that. The inference I suspect that the husband would have me draw was that the wife wanted out of the marriage but was willing to wait because she anticipated the husband was going to die. However, the husband went further and maintained that the actions of the wife indicated that she endeavoured to hasten his death. There were questions about attendances by the wife on funeral directors and a cemetery. There is no doubt the wife did those things but when challenged as to that being part of her plan, the wife observed that it was the husband who gave her the cheque for the cemetery because he was too ill to attend.
Nothing in the wife’s evidence suggested to me that she was doing anything more than being realistic about the possibility that the husband was going to die relatively soon. The husband’s own Centrelink document indicated that he was seeking palliative care and the medical evidence at that time supported the conclusion that he was terminally ill.
The husband’s allegation of the wife hastening his death was not put to the wife but in his evidence, he accused her of poisoning him. As evidence, the husband claimed the wife had inquired of the cemetery about a very quick cremation at a higher than normal cost so that pathological tests would not establish the poisoning. Because it was not put to the wife, I do not propose to give it any further weight or consideration but it does show the depth of the parties’ suspicion and mistrust and it sheds light on the nature of the relationship of the parties at the time of separation.
Violence
Much of the evidence in this case was about threats and controlling behaviour but the wife did allege that the husband had been extremely cruel and violent towards the family dog to such an extent that she asked a friend to care for it. That was to avoid the dog being further hurt or indeed killed. The wife alleged, and the husband denied, the acts of violence were observed by the children.
The woman who took the dog gave evidence and she saw no maltreatment. There was no veterinary record of maltreatment. The woman who took the dog later returned it to the family.
Whilst I could accept that the husband might have taken his anger out on the dog, I find this evidence of the wife unsupported by any objective fact and that she has exaggerated the situation.
Abuse
The wife alleged abuse of herself and children by the husband. He denied it. It is an important issue because it explains why D has no relationship with his father and why the wife might thwart K from getting to know her father.
The wife said the abuse of D began when he was three years of age and became progressively worse as he grew. The husband denied any such abuse. The wife and indeed D, described language such as “fucking moron” and “fucking idiot”. D confirmed all of this abuse when he spoke to Mr M well after the parties had separated. The husband maintained the child had been “poisoned” by his mother to make those comments.
Curiously, in cross-examination, the husband conceded that he had problems in communicating with D. He was asked why he spoke to his son the way he conceded he had. The husband’s answer was enlightening. He said it was a “complex answer”. He said that D changed constantly and that one moment they were best friends but the next he would swear and say some awful things using words in the Country H language such as “fuck your mother”. The husband said that this language was normal for D who, he said, did not take authority well. He acknowledged that D ignored him even when he was speaking to him. He explained that his way of dealing with this was to drop the subject and resume it at a later stage. Having regard to the strength of D’s comments and the evidence of Mr M, I find that the husband was abusive towards D. All of this led to an incident involving what the wife alleged was indecent exposure by the husband.
Indecent exposure allegations
The wife said that on two occasions, the husband exposed his genitals to D.
The first incident occurred in the lounge room when D and the husband were sitting on the couch. The second was when both D and K were in the kitchen. The husband denied the latter completely. In respect of the former, the wife said that whilst abusing D, the husband took his penis out of his trousers and was pointing it at D. In his trial affidavit, the husband did not deal with this allegation. In a subsequent document prepared and used as his evidence because he had not responded to the wife’s serious allegations about these events, he initially denied ever exposing himself but then he went on to say that he had been trying unsuccessfully to talk to D. Because D ignored him, he pulled his track suit trousers forward from his waist and said “I might as well be talking to (my) dick”. In a conversation between D and Mr M, D complained about this. Thus, there is truth in the incident but each party has a different version of what happened and more importantly, its meaning.
Whilst this incident could be embellished or exaggerated, of this particular time Dr Y said that the household was dysfunctional. The husband’s reference to what happened was what I consider to be a very late concession. The difference between the evidence of the parties is modestly small but I accept the wife’s version that the husband’s penis was indeed exposed and held by him but the question arises as to what it all means. Because of the evidence of the doctor and the husband’s concessions about his relationship with D, I find on the balance of probabilities that this was not a sexual gesture but rather just poor parenting. I am sure most parents become frustrated by their children but the husband’s view about how that frustration should be addressed indicates to me that he has a limited insight as a parent. That becomes evident again later when I deal with the incident of aggression at D’s school. It also indicates the very different styles of parenting of the parties and how that would cause trouble if the husband had significant time with K.
In the second incident said to have occurred in the kitchen, the wife said the husband made reference to killing her and hiding her body under the stairs. She said he took out his penis and pointed it at the children saying “my dick understands more than you”. She said the children were upset and D said that he would get a hand grenade and kill the husband. The husband denied this conversation ever occurred. There are too many coincidences in this case and I am satisfied that it is more probable than not that the husband did say the things that he did and I accept he did expose himself as described.
I do not find that these incidents were exaggerated or embellished nor do I accept that the wife had influenced D to such an extent that the child lied to Mr M. D made clear what occurred and I now have the husband’s concession that at least one of these exposure incidents occurred even though he does not agree with its extent. In addition, nothing in the evidence of Mr M convinces me that the child was doing anything other than relaying what had actually happened.
Like the D incident, whilst there are sexual connotations in the acts of the asserted exposure, I am again satisfied that the incident now mentioned was another example of inappropriate parenting.
It is important to record however that these were not acts of sexual abuse as it is defined.
K and sexual abuse allegations
The wife acknowledged that K had never been sexually abused by the husband. I understood that concession to mean that he had never inappropriately touched or hurt K. However, her evidence alleged sexual impropriety against the husband.
It was the wife’s evidence that the husband had “groomed” K and she clarified that word to mean that K was at risk of being sexually abused by the husband. She conceded that she had told the Department of Human Services that he had been “affectionate” with K giving them examples of him “stroking” her and calling her his “girlfriend”. When asked whether this meant the husband was doing something wrong, the wife’s response was that it was to “a certain degree” when it was all put together. Whilst she had told the Department about it, she did not tell the police.
There was also evidence that K had injured her vagina in a fall from a bicycle and with the wife’s insinuation of sexual impropriety, this incident had a sinister overtone. However, it is clear on the evidence that the injury to K had nothing to do with the husband or for that matter, the wife. The Department had been involved and when questioned about it, the wife was quite indignant that the Department thought there was a welfare issue. The Department’s concern arose from questions raised by an examining doctor including whether the injury arose from deliberate trauma. Ultimately, the wife said in evidence that she had no suspicions about what had happened. Despite that, she still felt that K was at risk in the care of the husband.
On the evidence, there is nothing that would lead me to find that K is at risk of physical harm in the care of the husband.
Suicide ideation
The wife maintained that the husband had made consistent statements about suicide. She told Dr Y that the husband was suicidal but he saw no signs of depression. He specifically went looking for suicide ideation and found none particularly when he was visiting the husband and treating him at the home.
The wife said the husband talked about his experiences in the Country F armed forces and how he was quite accustomed to killing. All of this was denied by the husband.
There is no objective evidence to support one version or the other but on the balance of probabilities, having regard to what occurred in 2003, I am satisfied that the husband did make such statements and in the context of an unhappy and dysfunctional household, they could be taken as suicide threats. I find that to be the case because:
· I have seen the tape recording in 2003 which contains a suicide threat;
· I have heard the evidence of Dr Y referred to below in which there is an indication of a dysfunctional household;
· I have the evidence of Mr M of what D told him was going on in the house; and
· I have the 2003 correspondence between the parties indicating that they were living in a war zone.
It matters not whether the suicide ideation was real. Dr Y was convinced that it was not. The more important issue is the question of the fact of the statements being made. I am satisfied that they were.
Urns
Whilst the husband alleged that the wife’s conduct towards his death was sinister, so too, the wife alleged that the husband’s behaviour was sinister and threatening.
The wife said the husband portrayed urns for children’s ashes and various poisons on his computer screen. This was when he was terminally ill. The husband’s position was that the wife was talking about adult urns not those for children. She was emphatic in her denial. She believed that the urns were to scare her. She said she discussed the issue with the husband and this was at the time when she maintained that the husband had threatened to take two lives with him when he died.
I accept that the husband was a manipulative person and did make a variety of statements including threats and these were another example.
The wife asserts that the husband dominated her
One of the curious features of this case is that the parties were able to conduct a business whilst the husband was very ill. Much of that seemed to have been as a result of the efforts of the wife. Her evidence was that she was forced out of the house by the husband after she had taken the children to school or crèche and that she was not permitted to return. She said she did not know what the husband did during that time. There is no evidence of any illicit activity by the husband that would explain the wife’s exclusion even if I accept her version. Counsel for the husband pointed to the wife’s own phone records to show that she made numerous calls to the husband during the day. Her explanation for that was that she was required by the husband to report in regularly but again, I have no indication of what might have happened had she not done so.
One might question whether the conduct of the wife supported any reasonable conclusion that she was dominated by the husband in such a way that she could not return to the home and had to regularly “report in”. As expected, the husband simply denied any such domination but he then went further and alleged that the wife was conducting some sort of personal services chat line in this same period. Telephone records were examined and an internet expert was brought in to show who owned what sites. Nothing supports the conclusion that the wife was running a business of her own at this same time.
The wife’s evidence about the fact that she just did what she was told does not ring true and nothing corroborates it. Neither party’s credibility assisted me on these issues.
The respective parenting roles
The parties disagreed about who had cared for the children whilst they were together. The wife said that the husband had never been really interested particularly in D and that she had undertaken all of the parenting tasks. The husband said that he had been an integral part of D’s development and had spent many hours caring for him. He pointed to the fact that after D’s birth, the wife was unwell and he had to assist her. The wife agreed. However, in 2003, the correspondence between the parties to which I have already referred, indicated to me that the husband was not the focussed parent that he portrayed. The subsequent 2004 orders about D saw the husband as simply a contact parent. Nothing in the evidence suggested the parties reconciled for any family reunification purpose.
It was the wife’s evidence that subsequent to the reconciliation and the birth of K, she had little assistance from the husband. According to Mr M, K had little recollection of her father at all other than the main point which was that she had understood that her father had been hospitalised and had a big cut on his back.
The husband had been seriously ill and Dr Y saw K when he visited and I again repeat my earlier observation about how the doctor saw the family as dysfunctional. I have found the husband was abusive towards D and that the husband himself acknowledged that he had difficulty in dealing with and communicating with D.
All of that evidence satisfies me that the husband’s role with K was limited. I am satisfied that the wife was the person most responsible for the daily activities of the children up until separation.
The wife’s view about the husband’s mental health
The wife claimed that not long before separation, Dr Y told her that the husband needed urgent psychiatric assessment and inpatient care. Dr Y emphatically denied that he thought that or, had ever said it.
The wife asserted that Dr Y told the husband that he thought he was severely depressed. Again, Dr Y denied ever having said that and maintained that in his visits, had not seen any signs of such depression.
I found this evidence of the wife difficult to accept. Her response to the evidence of Dr Y was to say that he was partisan. I do not find that to be the case. Dr Y thought the household was dysfunctional but he had also seen the wife in his surgery in the absence of the husband in which she complained about his behaviour. Nothing turns on those complaints and Dr Y did not seem troubled about them. I could not see any reason for him to lie. Thus, I am satisfied the wife exaggerated the assertion that the husband was psychiatrically unwell.
Dr Y
Dr Y is a medical practitioner who was called as a witness by the husband. He was required for cross examination. I carefully listened to him and watched his demeanour. Throughout a testing cross examination he answered questions calmly, objectively and with clarity. I found his evidence objective on the subject of what was going on in the household around separation. It was certainly not calm as the husband seemed to portray it.
Dr Y had been the husband’s general medical practitioner from April 2009, that is, 17 months prior to the separation of the parties and during the husband’s illness with cancer. He visited the home from June 2010 to September 2010 and described the husband’s symptoms. He recalled the wife was usually present and he had discussions with both parties as well about the husband’s illness.
In the first half of 2010, he diagnosed the husband as not significantly depressed and his pain problems were managed by medication. I contrast that with the wife’s evidence that the husband was suicidal and threatening to her.
Importantly, Dr Y described the family as dysfunctional and each party was abusive of the other. In his affidavit, the husband said he never harassed the wife. He described the wife’s behaviour towards him as “nagging” and that at the end of June 2010, she “started the orchestration” of his “demise”. Nothing in Dr Y’s evidence supported the latter but the former is consistent with a relationship in trouble and a dysfunctional family . Despite that, the husband shared the queen-sized bed until his removal from the house by the police in September.
Dr Y had listened to the wife’s complaints about the husband’s behaviour and specifically his conduct towards D. On one incident relevant to the husband’s relationship with D, Dr Y did not take the wife’s complaint seriously enough.
On 29 June 2010 the wife attended the doctor with D and gave Dr Y a litany of complaints about the husband’s behaviour particularly towards D. It included verbal abuse and the exposure of the husband’s penis. Dr Y said that D was right beside his mother when this consultation occurred but he noted body language in D which was quite the opposite to what she was describing.
Having heard the wife’s version, Dr Y took D aside and said he explained to the child about what his relations should be with his father. Dr Y thought the behaviour complained about and indeed the allegation, were quite benign. He said he thought the wife’s version was a gross exaggeration.
This evidence was troubling because Dr Y did not know of the husband’s evidentiary version of the problems of the relationship with D and the exposure incident I have described above. Dr Y’s view was that he needed to counsel D about respecting his parent rather than questioning whether there was a problem being caused by the husband.
Dr Y was tested in cross examination about mandatory reporting and specifically whether he would have reported the matter had he known what I have now heard in this hearing. He was equivocal in saying that he would have taken advice but he was quick to point out that he did not believe any sexual abuse had occurred. His view was that the wife was trying to put a wedge between D and the husband whilst he, in a counselling type of role, was trying to repair the damage.
Dr Y’s starting point was that this was an exaggerated situation brought up by the wife. I am satisfied that he was wrong as to its extent. Dr Y began with a rejection of the wife’s allegations but things along those lines did occur even if the wife exaggerated them. Dr Y did not inquire further about the exposure incident and had he done so, or started from the position that he was not the arbiter of the facts, this may have been investigated by the Human Services Department. Dr Y acknowledged that D was exhibiting symptoms of Asperger Syndrome. Indeed, where the problem lay was in Dr Y subsequently speaking to the Department of Human Services and also a psychologist named Dr I in which he clearly conveyed his view that the wife was embellishing the story. Had he investigated further and spoken to the husband it may have caused him to watch the husband’s reactions more closely. I accept that none of this affects his medical diagnosis. To the extent that the husband relied on Dr Y to discredit the wife, his evidence did not do so.
Having said that, Dr Y’s evidence is only helpful to the extent that it corroborates the wife’s version and not that of the husband, that all was not well in the household in the months prior to separation and more importantly, that the children witnessed it. Dr Y described D as “zoning out” and K as being distressed and not knowing what to do. In many ways therefore, it is understandable that the children’s relationship with the husband was distant at separation. To the extent that the husband sought some finding that the wife had orchestrated the cessation of his relationship with D and K, I could not make that finding on this evidence.
Dr Y’s evidence does not give a comprehensive picture of what was happening just before separation.
Separation
At the time of the ultimate separation, the wife was anticipating the husband’s death, running a business and looking after two children. The separation was therefore hardly unexpected.
The circumstances of the separation were controversial. On the evening of the separation, the wife alleged an argument occurred and the husband was heading towards the front door. K asked where he was going and he said he did not know but was going to “sleep”. Despite the nature of this dysfunctional relationship, the wife pleaded with him not to leave. She noted that he had left his medication and mobile telephone at home when he went to the car so she telephoned Dr Y and informed him that she thought the husband was going to suicide.
The husband said he was in great pain and simply went off to hospital.
Dr Y suggested to the wife that she contact the CAT team. Rather than do that, the wife called the police because she was worried about potential suicide. The police called the CAT team.
In dealing above with Dr Y’s evidence, I observed that he felt that the husband was not depressed and hence he had rejected the possibility of suicide. In respect of the wife’s call on the separation night however, he conceded that she expressed concerned about suicide.
The husband was away apparently some hours and when he returned, he criticised the wife for not having the children in bed. The police telephoned and were informed of the husband’s return. Even on that issue, the parties disagreed about what happened.
The husband had described his return to a house swarming with police. I do not accept that was the case. It was at least some time after the husband returned that the police arrived. The husband was then removed from the home presumably by an intervention order. What is curious is that the police intervention was because of a potential suicide yet the husband was removed from the home by an intervention order because of potential violence. A large number of police attended and they must have been sufficiently satisfied that there was a problem to seek and obtain that intervention order.
The intervention order
The parties attended the Magistrates’ Court where an intervention order was made for ten years. Even the circumstances of that were controversial. It was the husband’s evidence that he attended the court never having been charged with anything before in his life and was advised by a duty lawyer that an interim order would be made and he would be required to attend the court to contest the final orders some two weeks later. He said he then left the court relying upon that advice only then to be subsequently served with the final orders that had been obtained in his absence. He then began proceedings through a lawyer to revoke the intervention order but subsequently withdrew that application ostensibly because there were proceedings in the Federal Magistrates Court. It was the wife’s evidence that the husband had unsuccessfully appealed in the County Court but I have no evidence about that.
I find there is an intervention order and having regard to its stated duration, I must treat it as a serious family violence order. Whether or not the husband was ignorant of the process and therefore walked away at a critical time before its making, he has had ample time to take necessary steps to appeal against it or have it removed but has chosen not to. Accordingly I must take into account that a magistrate was sufficiently concerned about the evidence even if uncontested, to make the order for that long.
The evidence of other witnesses
A number of witnesses filed affidavits and some were required for cross-examination. They largely fell into two categories. The first concerned the emotional health and progress of D. The second concerned the behaviour of either or both of the parties. All of this evidence now follows.
Ms O
Ms O worked at the health industry business conducted by the husband and wife from 2005 to 2010. She described both husband and wife as hard workers. She described the husband as an intimidating man who when enraged, would insult the wife and staff. She thought him controlling and possessive of the wife.
In the context of that evidence, Ms O talked about the dog AA. She said in August-September 2009, the wife spoke to her about the husband’s treatment of the dog and about not wanting him in the house. She described what the wife had told her but she also saw the dog in her household walking backwards and urinating. The dog appeared frightened of her husband. In cross-examination, she confirmed that she was not able to say that the dog had been maltreated. She cared for the dog for about a month and then returned him to the wife. No other plausible explanation was given by any party as to why that happened.
A little later after the dog was returned, Ms O said that the wife again complained about the husband’s cruelty so she took him again for a month. Again, she returned him to the family.
The only purpose of this evidence called on behalf of the wife was to corroborate the wife’s version, denied by the husband of violence towards the dog as part of its general demeanour. Ms O made appropriate concessions in cross-examination and confirmed that she had only repeated what the wife had told her about the husband’s behaviour. Whilst all of that is a matter of weight, there was no reason for Ms O to lie about her observations. There is no basis for me to find that she concocted her evidence or was a partisan witness of the wife.
This witness assisted in the parenting proceedings both because she observed the husband’s behaviour towards the wife but also because of the wife’s complaints about the husband. This was important evidence and I have no reason to reject it. It is important because it related to the particular period prior to the conclusion of the relationship.
Mr Q, Ms R and Ms S
Each of the above-named swore an affidavit that was filed by the husband. The first and third of those were not required for cross-examination. The relevance of each was to show that this family was happy and normal.
Ms S knew both parties and did accounting reports for them for 4½ years but I am unsure when that ended. This witness went to the home and never saw any problems. On the contrary, she described the family as happy and content.
Mr R attended the house as well as the husband’s business. He became aware of the husband’s health problems in 2007-2008. He saw the children and thought the relationship “and love was beautiful”. In limited cross-examination, Mr R conceded that during much of his visits, the wife was at work and the children were at school.
Mr Q said in 2008 he did gardening and maintenance work for the husband including alteration to the carpet in the home. He observed the family but there were no arguments, pressures or unhappiness.
If I contrast the evidence of those three witnesses for the same period of time referred to by Ms O, Dr Y and indeed the husband about his version of what occurred to the dog, the only conclusions I can draw are that the family was either on its best behaviour when these people visited or the witnesses failed to observe the simmering unhappiness. Because of the evidence of Dr Y, I find on the balance of probabilities that the evidence given by these last three witnesses was implausible.
Ms T
Ms T is a psychologist to whom D had been referred by a doctor arising from his school behaviour. In late 2009, Ms T observed D to have problems with his peers, boundaries and his social development. Ms T had been led to believe that the husband and wife had separated but D was having contact with his father.
The assessment by Ms T suggested Aspergers disorder. Two years later, things had improved significantly. D had good social interaction. To the extent that he still had Aspergers disorder, Ms T thought it was mild. She was unable to give a particular reason for the improvement that included things such as good school environment and support. She thought maturity might have also assisted.
All of Ms T’s historical information had been provided by the wife and D but there was no suggestion of rancour although she described her understanding of D’s home life as difficult. She had spoken to school staff and knew the husband had been ill but she was not told of the problems in the family.
To the extent that Ms T was called to give evidence along the lines that the husband’s absence from D’s life had improved his outlook and development, I do not make any such finding. D’s improvement was attributable to a number of matters including maturity, changes of school and social interaction.
Ms T’s evidence however does assist me as to the weight that should be given to D’s views because although he did not express any such views about the husband to her, she found him older than his years, organised and having flexibility and good social adjustment. That suggests that I should consider his views as having been thoughtfully considered and articulated.
Ms U
Ms U is the head of a private school whose earlier professional role had been as a teacher of D in his primary school. She knew the parents whom she described as having a high level of interest in D’s schooling.
In 2008, the husband attended the school and confronted a student arising from some bullying of D. The husband’s evidence was that D came to him in a bloodied condition after having been bullied.
The sequence of events does not matter but it appears that a number of discussions took place between Ms U and various students and parents.
The inquiry by Ms U elicited that a threat had been made by the husband and when she confronted him, he refused to accept that his behaviour towards the child was unacceptable. The bullying of D had been the subject of a letter of complaint from the husband to the school to which no response had been received. The husband’s counsel did not challenge Ms U about the fact that the incident occurred and in my view, the finer details were irrelevant because the husband acknowledged that there had been a confrontation with the bullying student. The worrying aspect about the incident at the school concerned the child’s age. The husband said that he told the child that if it happened again, he would do to him whatever the child had done to D. The husband’s philosophical view was that every parent had a right to defend his child and particularly after three or four letters had not been responded to.
It was never suggested to Ms U that the school had received three or four such letters. The husband denied that his threat to the child was that he would slit his throat. I accept that that is the perception that Ms U had of what the child perceived had occurred. The finer details again do not matter. These children were all around the age of 10 years. The husband acknowledged that he was upset when it happened and that he had reacted to D’s distress. When asked whether his reaction was inappropriate, he said that was hard to answer because it was a natural instinct to do what he did. Ultimately, he conceded under pressure that it was inappropriate.
Ms U gave measured answers and appeared to me to be concerned about protecting all of the children in the school. Her reaction was the same as mine which was that bullying the bully aged 10 years by an adult was not appropriate behaviour. However, and of importance, along with the evidence of Ms O, Ms U’s evidence corroborates the propensity that the husband has towards threatening behaviour.
Mr V
Mr V is a support person at D’s school. He has no formal qualifications but simply acts as a person that the children can talk to and obtain guidance from. His responsibilities lay in the area of early teenagers. He had some time with the wife but knew nothing of the husband’s household. He expressed an opinion about D’s mental and physical wellbeing from what he saw and what he considered were the consequences if the Court was minded to alter the child’s residence. As that was not ultimately an issue in the case, leaving aside Mr V’s ability to make the statement, his views were not relevant and of no assistance to me.
Ms W
Ms W is a teacher at D’s school. Inappropriately, she was asked loaded questions by the wife’s lawyers about D’s behaviour for the purpose of the preparation of an affidavit. They were loaded because they started from certain assumptions that were very much in contention.
Ms W has had limited teaching experience but she did see D over the period of the year during which separation occurred. She knew nothing about the husband other than what she had been told. She had an understanding about the husband’s personal circumstances and D’s home life but she did not check the accuracy of any of that information with the husband himself.
The only matters of relevance from the evidence of this witness were that when last observed, D was secure, safe and happy. When Ms W first saw him, separation was in the throes of occurring and he was upset, anxious and timid.
D had written a speech in school about child abuse but to the extent to which that was born out of his intellectual understanding of the philosophical issue or his own personal experience, I am unable to say. At best, Ms W saw it was a personal speech. She said he did tell her that he had been a victim of abuse and she did not ask him the details.
I find this evidence is plausible and helpful because despite the fact that it may have been coloured by what the witness thought was happening in D’s life, she observed things that corroborate what others saw. That is, in September 2010, D was embroiled in conflict and was unhappy but a year later for whatever reason, he was much more stable.
Ms X
Ms X was a practising psychologist whose affidavits were filed by the wife on 3 February 2011 and 20 December 2011. In July, the Court was advised that Ms X was unavailable for cross-examination. Indeed, my understanding was that she had vanished. The evidence therefore could not be tested. That changed when the hearing resumed in January.
Ms X said she saw D for counselling in November 2010. She noted that in 2011, D was settled and reported being happy at home and school and that he expressed feelings of not wanting to have any contact with his father or to have an interview with psychologist Mr M. It will thus be seen that Ms X was interviewing D around the time that a family report was to be prepared. Ms X’s conclusion was that D was mature and had the capacity to express a view about his wishes. That evidence does no more than confirm the view of Mr M.
Ms X also saw K. Her relevant opinion was that counselling might be required to explore the relationship between K and her father in future years. That opinion too was nothing more than what Mr M said.
The accuracy of Ms X really relates to the question of what she observed bearing in mind that much of the historical data came to her from the wife. Her evidence along side that of Ms T and Ms U, assists. Ms T and Ms X spoke to one another but Ms T maintained the conversation was limited to a telephone call in which they discussed the history and the symptoms of Aspergers disorder.
Thus, the evidence of Ms X showed D to have been a mature child who was clear about his views of his father and that K was not cognizant of what the problem was with her father. This was much the same as what Mr M observed.
Mr CC
Mr CC swore an affidavit in April 2012 which the wife filed on 11 April 2012 and she relied upon it. Mr CC was not required for cross-examination largely because of the evidence of the husband. I referred to this earlier about the husband’s allegation that the wife was conducting some type of personal services business. It seems that the husband had set up a website to trap the wife into admitting, or for the purposes of obtaining evidence from other people along the same lines, that the wife was working in the personal services industry. The husband went so far as to publish on the website a mobile telephone number belonging to the wife. There was nothing really secretive about all of this because he included his own email address on the website. The evidence did little more than indicate that behind the business-like façade of the husband, lay a crafty thinker. It did not assist me to determine the parenting issue.
Dr LL
Dr LL was a witness for the husband who was not required for cross-examination. He said that in 1998, he was the doctor of choice of the husband who was then conducting a personal services business in an inner suburb of Melbourne for the purposes of undertaking the mandatory health checks for the workers. He said that he examined the wife who was then using her pre-marriage name and he explained the various tests that he undertook.
The evidence of Dr LL is so vague that I find it has no weight even if it was relevant to some parenting issue in dispute or even on the issue of credit. The husband said that he met the wife whilst she was employed in one of his own personal service businesses. He did not state when that occurred. It has no relevance to any parenting issue in dispute particularly as the husband resiled from his residence application.
It was the wife’s evidence that she met the husband in about 1998 and cohabitation commenced in June 1998. I do not know whether Dr LL was referring to the period before June 1998. I do not know whether Dr LL was introduced to the wife as a personal services business employee or whether he assumed she was. I do not know whether the wife was introduced to Dr LL as a companion, partner or wife of the husband. 1998 is the only reference in Dr LL’s evidence so I am unsure whether the “mandatory” health checks occurred more than once. Insofar as the evidence went to the wife’s credit, when specifically challenged by counsel for the husband about having worked as a personal services business employee, the wife denied it and the issue went no further. Dr LL’s evidence is therefore of no assistance.
Mr M
Mr M is a consultant/psychologist whose expertise was not challenged.
Mr M was instructed to prepare a report mostly about the family dynamics arising out of an order made on 23 February 2011.
I have earlier mentioned the outcomes Mr M thought were open. One serious problem with the Mr M dichotomy was that if I found against the wife, removal of the children would be traumatic. He acknowledged the problem.
As Mr M observed, many of the allegations were bizarre.
For the report, Mr M interviewed the husband, the wife and both children but also read various materials that were in evidence. He also spoke to Ms X whose evidence I have previously mentioned. He spoke to Mr GG who is the school psychologist where D attends but he was not called as a witness.
Each of the parties indicated to Mr M most (but not all) of the facts that were in evidence. The husband told Mr M that he had “immutable proof” that the wife’s claims were false and for example, “unequivocal proof that he and she met in a personal services business and that she worked in the business”. The immutable proof did not materialise.
I have earlier mentioned the assertion of the husband that the wife was trying to poison him and organise his cremation immediately to destroy the evidence. It was unusual because the husband produced to Mr M a referral by Dr Y in December 2010 to a pathologist for investigation about poisoning. None of that material was canvassed with Dr Y, nor was it taken any further by either party.
Of D, Mr M observed that there was a conspicuous level of anxiety on any discussion about the husband and D did not hold back in telling Mr M what he thought about his father. The allegations were consistent with the evidence of the wife.
Mr M observed that D was anxious, apprehensive, fearful and concerned for his safety. As he said, D’s portrayal of his father was unequivocally negative.
K presented a different picture and her recollections of family life were less detailed. K was five years old when the parties separated and during the two preceding years, she had no doubt observed her father’s cancer illness. Mr M opined that the clarity of recollection was compromised because she acknowledged most of the things had been told to her by her mother. Despite that, Mr M thought that the persistent themes were those associated with anxiety and apprehension.
In his written evidence, Mr M said that each of the parties was plausible and their evidence needed to be tested and he was unable to detect the truth one way or the other. In his oral evidence, Mr M said that D was extremely resistant to any suggestion of contact with his father and that related to his experience of how he perceived he was treated by his father. He thought that forcing contact was not appropriate. He said that his overriding view was that D’s views should be respected and acknowledged because to ignore them would cause anxiety. All of that is now recognized as a sad fact of reality in the husband’s altered position in his counsel’s final address. Of some concern was the fact that Mr M thought that D may be affected if his mother was anxious. The manifestation of problems for D would be in poor academic results and social difficulties. This affects the K orders as well.
In relation to K, Mr M thought that she had not been infected by the views of either her mother or brother but if contact was to occur, it may cause her to approach it with trepidation and hesitation because she would take her cues from her mother. If the relationship in the household was not supported, it would be hard to expect a level of enthusiasm in K. That was not a reason not to try. It is because of that, I propose to try the introductive therapy first so that K is in a controlled, protected and comfortable environment. K has had experience with professionals talking about her family so this will not necessarily be a new or confusing experience.
Mr M was of the view that a supervised predictable schedule was needed but it had to be acknowledged that having regard to the matters earlier mentioned, K did not know who her father was. Thus the sort of concept envisaged by the husband was unrealistic. A contact centre reintroduction or a supervised arrangement was equally problematic.
Mr M was asked about the effect on the wife of a reintroduction of K to her father. He said that it was impossible to ignore the fact that the relationship between the wife and D was intertwined and that had to be factored into the interests of K. He thought D may experience apprehension but on the other hand, if it worked, D might gain something. He had little doubt that reintroduction would cause the wife considerable distress.
Thus, there are many unknowns. I do not accept that it would be appropriate to test out the impact. Time has run against the relationship between K and her father. She is vulnerable and I am concerned about the risk of creating a problem between K and her mother who has been her predominant carer. I have already indicated how the husband’s proposition on reintroduction lacked insight. He does not seem concerned that K does not know him. Only time can fix that problem and there may come a point in time in the foreseeable future where if the husband explains sufficiently carefully who he is, K will show enough interest. I could not accept that she is at that point at the moment on the basis of the evidence of Mr M.
Dr BB
Dr BB is a psychiatrist. His evidence was in written form and he was not required for cross-examination. He too dealt with the dichotomy of factual disputes and said that if the wife was correct, there were real concerns about the father’s psychopathology notwithstanding there was no obvious major psychiatric disorder. He found that the wife displayed symptoms of post-traumatic stress disorder and he attributed those to the relationship between husband and wife. In relation to the husband, there were no signs of a major psychiatric disorder but rather, the issue revolved around the truthfulness of each parent’s account.
Dr BB was therefore unable to assist.
Mr JJ
Mr JJ was not called as a witness and is a forensic handwriting expert. He had been given documents which were the subject of some controversy and examined them. These were the documents that the wife asserted had been forged by the husband. The opinion of Mr JJ was that they were signed by the wife.
There is no reason for me to doubt that Mr JJ was correct.
At the commencement of the hearing, counsel for the wife agreed to the evidence of Mr JJ being admitted notwithstanding it was obtained by the husband in circumstances where a single expert witness had been ordered. Mr JJ was not that single expert witness.
In her evidence, the wife twice maintained that the husband had forged her signature despite her counsel’s concession. She had been to the police and made allegations against the husband. She had been aware of the Mr JJ report and said she did not say that he was wrong. She acknowledged after reading the Mr JJ report that she had done nothing about another expert. She acknowledged she had not qualified in any way what she had said about the husband forging her signature and she understood the police were still investigating the matters. Her view was that the police needed to get to the bottom of matters notwithstanding the evidence of Mr JJ. She had the opportunity to say that this was a case in which she could have forgotten but refused that opportunity. I must accept that she considered her position. This creates significant doubts about her credibility.
The law relating to parenting
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. That mandatory presumption is rebutted if a court is satisfied that there are reasonable grounds to believe that a parent has engaged in abuse or family violence.
The presumption is rebutted because of the intervention orders and more importantly, the evidence of the wife’s fear of the husband, which I find was reasonable. In my view, there has been family violence in this relationship and the wife does reasonably fear for her personal safety and that of the children. On any view, the presumption of equal shared parental responsibility must be rebutted. In any event, the husband did not seek a decision-making role.
Section 60B of the Act sets out the objects and principles underlying Part VII. These are the aspirations of the community for children which guide any decision to be made by the courts.
The legislative objects require consideration of how the Court can meet the best interests of the children by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests.
The legislative intention is also clear that the objects are to protect children from physical or psychological harm. It is also intended that children receive adequate and proper parenting.
Section 60B sets out the various principles underlying the legislative objects. They are that children have the right to know and be cared for by both parents as well as the right to spend time on a regular basis with and communicate with both parents. Having regard to the matters set out above, the children’s rights are not being fulfilled. The husband must take responsibility for that but it is the responsibility of the Court to try to ensure, if possible, that those rights are met in respect of K.
The principles include parents jointly sharing duties and responsibilities concerning children as well as agreeing about the future parenting of their children. There is no prospect of that happening here. The husband has no respect for the views of the wife and she fears him.
Section 60CA requires that when a court is deciding whether to make a parenting order, it must regard the best interests of the children as the paramount consideration. To determine how to assess those best interests, the Court is obliged to turn to the provisions of s 60CC.
Consideration of s 60CC enables a picture to emerge of what orders should be made that might best advance the interests and development of the children.
It is a primary consideration in s 60CC that the children have the benefit of having a meaningful relationship with both parents. In Pishke & Rupp; Bannon & Rupp [2010] FamCA 632 Murphy J noted with approval the comments of Nygh J in Cotton & Cotton (1983) FLC 91-330 at 78,252, where the question was asked whether there was a chance of a meaningful relationship which was beneficial to the children but also whether both parents had ‘something to offer’ the children.
To the effect that s 60CC factors
Having regard to the provisions of s 60B and s 60CC(2), there is a chance that K may benefit from a meaningful relationship with her father. I have given serious thought to the impact of an order on the meaningful relationship between the wife and K. I am satisfied it will not affect the wife’s continued love, care and attention even if she is disappointed by these reasons.
Just what benefit K will receive in a limited and controlled environment is hard to know. The husband strongly resisted what he described as the prison-like environment of a contact centre. His view about K just treating him as a normal father was unrealistic. Having said that, properly prepared, he could explain to K just who he is and how important it is for her to know that if she needed a father, he could be available to her.
In Sigley & Evor [2011] FamCAFC 22, the Full Court examined a number of judicial approaches to the meaning of meaningful relationship and said:
131.As to the definition of “meaningful”, which appears in s 60B(1)(a) of the Act, being the first object of Pt VII, and s 60CC(2)(a), being the first primary consideration, in McCall & Clark (2009) FLC 93-405 the Full Court (Bryant CJ, Faulks DCJ & Boland J) observed at 83,475: “The Act does not contain a definition of ‘meaningful’, nor does it provide any specific criteria to assess how parents either have, or should have, a ‘meaningful involvement’ in a child’s life. It does not give guidance to the interpretation of the phrase ‘meaningful relationship’ ”.
132.In Mazorski v Albright (2007) 37 Fam LR 518 Brown J considered ordinary definitions of the term “meaningful” and observed:
[26].What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
133.In McCall & Clark the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”. The Full Court observed at 83,476:
117.Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child.
118.It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
119.We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120.We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
…
136.We also observe that in Champness & Hanson (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at 83,502:
103.The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original)
The Full Court also observed at 83,513: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’ ”.
Thus, I should look prospectively particularly at whether a significant relationship could be established. I specifically note the observation of the Full Court in Champness (op cit).
As I said in Loddington & Derringford (No 2) [2008] FamCA 925:
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.
The husband must therefore carefully consider his approach to his parenting role. If he dismisses K as he did D and then behaves as he did or threatens K or D as he did the child at school, it would not be surprising to find K develop no relationship. To the extent that the therapist considers it may be beneficial for K to see whether her father has some healthy and advantageous role to play, no doubt the therapist will invite the husband to participate.
In respect of other factors in s 60CC, I find the following:
· The views of K are limited by age and experience and therefore of little weight;
· There is no relationship between K and her father but a close one with the wife and D. That closeness needs to be protected;
· I doubt the willingness of either parent to facilitate any role for the other. Each has limited insight;
· I do not consider there will be any detrimental effect on K from her separation from her mother;
· There are practical problems with any orders here but in many ways, that is a symptom of the dysfunctional family;
· The capacity of the husband is limited as a parent to that sort of relationship which may eventuate from what I propose;
· My reasons set out my view about the attitudes of the parents to their roles;
· Family violence has been a problem and there is a significant order in place which requires the separation of the parents;
· Despite the uncertainties, an order can be made here to stop the prospect of on-going litigation.
I have also set out my views to satisfy ss 60CC(4) and (4A) as it was before the recent amendments.
As the parties did not seek equal shared parenting orders, that is not an issue.
I certify that the preceding Two Hundred and Eighteen (218) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 February 2013.
Associate:
Date: 27 February 2013
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