Streeton and Richards

[2007] FamCA 25

FAMILY COURT OF AUSTRALIA

STREETON & RICHARDS [2007] FamCA 25

FAMILY LAW – CHILDREN - Child Abuse - Emotional Abuse

APPLICANT: MR STREETON

RESPONDENT: MS RICHARDS

INDEPENDENT CHILDREN’S LAWYER: Ms Moran

FILE NUMBER: NCF 62 of 2005

DATE DELIVERED: 30 January 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: MULLANE J

HEARING DATE: 30 January 2007

REPRESENTATION

THE APPLICANT: The father in person

SOLICITOR FOR THE RESPONDENT:

Ms Gillard of Thomas Mitchel Partners, Solicitors,

DX 7902, Newcastle

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Ms Moran of  Coast Law
Solicitors, P.O. Box 583,

Wyong, NSW, 2259

Orders

1. Pending further order the children, M born in September 1994, C born in November 1997 and D born in April 1999, are to live with the mother;

2. The father has permission to file and serve by 4 pm on Wednesday, 31 January 2007, an application for interim orders as to where the children live and supporting affidavits and to request the list clerk to arrange listing of that application and the mother's application urgently.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 62  of 2005

MR STREETON

Applicant

And

MS RICHARDS

Respondent

REASONS FOR JUDGMENT

1. These are proceedings about three boys who have a curse in their lives which is their parents' conflict.  They live not in a vacuum by any means.  They live in the context of ongoing warfare between their parents and it has had serious consequences for them.

2. It is the norm that children love both their parents and these boys are probably no exception to that.  There is no evidence that I have heard that suggests they do not love their parents.  The difficulty about that is that they are now in a situation where maintaining that love and those relationships comes at a cost because their parents have displayed dislike and hostility for each other in a conflict that has been going on for some considerable period.

3. There is no doubt that these children are aware, for example, that their parents do not show the respect and politeness for each other that they show to strangers that they have never met before.  It may be that this relationship is the worst relationship these children have seen in their lives.  They probably do not know anybody who has been in such a conflict and who has experienced the sort of pain, unhappiness, expense and indignity that their parents have experienced in this conflict.

4. Neither of the parents, so far as I am aware, have had professional help but this application today is particularly about the father because the mother is alleging that the father has breached an order which was made on 22 January, a little over a week ago, eight days ago, for the protection of the children.   That order was made when the Court became aware of a very serious problem of the father, not only of involving the children in the conflict by discussing all sorts of details with them but also in the Court room demonstrating that he had no insight at all into the danger and damage that would cause his children.  It was made very clear to the father what the Court's view was about that, despite the fact that he disagreed.  And he did disagree quite vocally to say that he had been a teacher for many years and he had long experience in leadership of children and he knew better than the view that the Court adopted. 

5. However, even if the Court were wrong about this, the order was made and was binding on the father. The evidence produced today of subsequent conduct of the father, particularly emails that the father has sent to Dr F, the Court expert, and to the Independent Lawyer for the children, reinforces the finding previously that the father's behaviour constitutes emotional abuse of these children.  It also appears to constitute gross breaches of the order made. 

6. The order was made on Monday, 22 January.  Each of the parents was restrained from discussing any proceedings between the parties with any of the children or denigrating the other parent in the presence or hearing of any of the children.

7. It is often said that the process of children surviving these sorts of parental conflicts are children “walking on egg shells”.  One of the things it does is inhibit their freedom.  It inhibits their freedom to be themselves, be open, express their views and concerns, and say what they want to say.  That is one of the great joys of childhood; the lack of responsibility and the freedom that children are supposed to enjoy.  These children do not have that. 

8. M, I think it is common ground, is riddled with problems about a sense of responsibility for his siblings and for his mother and feelings of concern about the happiness of his parents.  It is not appropriate for children to be given toxic responsibilities like that; to be responsible for adults’ happiness or adults’ worries.  There is no doubt that the children have been so exposed now that their expressed wishes are probably a reflection of the innocence of childhood in terms of their concept of what is fair between their parents.  So, for example, the children may well be expressing views about where they should live not based on what they really want for themselves, but on what they think is fair for their parents.  

9. In this case the children, it seems, are in a situation where parenting has been reversed and the children are worrying about their parents, about their parents' happiness, about their parents’ welfare, about how their parents are going to get on, about how their father is going to behave and about his distress that they are witnessing and aware of, and what he wants.

10. The order was made.  It appears from the evidence from the mother, the father breached the order extensively, there was turmoil in his home with the boys and they were emotionally abused by his behaviour. 

11. The application is an urgent application and the usual procedure is that it is heard on the return date; that is today.  The application was served on Saturday.  The father had all of Monday, the only working day between then and now, to arrange for a lawyer to appear for him, but he did not manage to do that.  He came along to seek an adjournment. The difficulty about that is that I do not know when he is going to have his material ready and what he is going to dispute.  Today he had difficulty focusing on the issue that is before the Court.  He was much more inclined to be talking about false allegations that have been made against him of violence and various other things by the mother, but they are not matters which are raised in this application.

12. At this stage the boys are living with the mother and would return to the father's care on Friday of this week. 

13. It is a very sad case in the sense that the father will go away, if he receives a bad outcome today, feeling that the Court has made a pre-emptive decision against him.  He will possibly believe that the Court is biased because he did not have any evidence on.  In addition to all that, from his presentation today, his inability to address the very issue that is at stake today and his insistence on the last occasion that he was right and that it was good for the children to be exposed to the parental issues and the conflict, it is clear that he will not go away today understanding why the Court is taking the action that it is to protect these children.

14. This behaviour of the father may be unintentional.  It may be without malice to the boys.  But it seems on the present evidence it is probably done out of complete ignorance of the sensitivities of the boys, of their perspective and of the effect on them of his behaviour.  But the standards that the Court and the children are entitled to expect from parents has to be an objective standard, not a subjective one.  It is not acceptable for parents to emotionally abuse their children.  According to this evidence that is before me at this stage, such behaviour is obviously a very entrenched way of the father behaving.

15. In the circumstances, the Court cannot ignore the children's needs to be protected from further abuse and there should be an order that they not be returned to the father pending further order.

I certify that the preceding fifteen (15) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mullane

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Streeton & Richards