TOLLBRIDGE & TOLLBRIDGE

[2015] FamCA 418

FAMILY COURT OF AUSTRALIA

TOLLBRIDGE & TOLLBRIDGE [2015] FamCA 418

FAMILY LAW – PRACTICE & PROCEDURE – Procedural Fairness – Where the father informed the Court he intended to withdraw from the proceedings – Where the procedural orders listing the matter for hearing were sent to the father – Where the father has not been denied procedural fairness

FAMILY LAW – CHILDREN – Best Interests – Parental Responsibility – Where the children's relationships with the father have completely broken down – Children’s views – Where the father has engaged in family violence and child abuse – Where the father lacks insight into his behaviour – Where the evidence militates against restoration of the children's relationships with the father – Children to live with the mother – Mother to have sole parental responsibility – Where whether the children spend time or communicate with the father shall be determined by the mother as an incident of her sole parental responsibility

FAMILY LAW – PRACTICE & PROCEDURE – Costs – Father to contribute to the costs of the Independent Children’s Lawyer

Crimes Act 1900 (NSW), ss 61AA
Family Law Act 1975 (Cth), ss 60CC, 62B, 65DA

APPLICANT: Ms Tollbridge

RESPONDENT: Mr Tollbridge

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 586 of 2008

DATE DELIVERED: 12 May 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 12 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Peter Hamilton & Associates

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: N/A

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. All former orders relating to the following children (“the children”) are discharged:

   a.B, born … 1999; and

   b.C, born … 2002.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

5. Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

6. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

7. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

8. Leave is granted to the parties and Independent Children’s Lawyer to provide a sealed copy of these orders to:

   a.The principal of any school at which either child is enrolled; and

   b.Any therapist engaged to provide therapy to either of the children.

9. Within 14 days hereof the mother shall cause the children to be delivered to the Independent Children’s Lawyer to have explained to them the effect of these orders, and if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

1. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

2. The respondent father shall pay costs assessed in the sum of $1,650 inclusive of GST to Legal Aid NSW within 28 days of the date of these orders.

1. Any and all other outstanding applications are dismissed.

NOTATION

A)These orders intentionally make no provision for the children to spend time or communicate with the father. Whether and, if so, how the children spend time or communicate with the father shall be determined by the mother as an incident of her sole parental responsibility for the children.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tollbridge & Tollbridge 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 NEWCASTLE

FILE NUMBER: NCC 586 of 2008

Ms Tollbridge

Applicant

And

Mr Tollbridge

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE

REASONS FOR JUDGMENT

1. These proceedings concern parenting orders for the two daughters of the applicant mother and the respondent father. The children are now aged 15 and 13 years respectively. 

2. The father has withdrawn from the proceedings and, since the mother and the Independent Children's Lawyer now agree upon the orders that should be made, the outcome must inevitably be generally correlative with their joint proposal.

Procedural fairness

1. The father filed a Response on 20 November 2014 and appeared with his solicitor before the Court on 21 November 2014, at which time orders were made for the procurement of a Family Report. The father attended his interview with the Family Consultant on 23 March 2015 and told the Family Consultant he intended to withdraw from the proceedings.

2. The father's solicitor filed a Notice of Ceasing to Act on 15 April 2015 and there was no appearance by or on behalf of the father before the Court on

   
   

   20 April 2015 when the case was fixed for hearing today. 

3. The procedural orders made on that date were sent to the father's last known address. He has not since sought to relist the matter before the Court, in full knowledge the orders and notations foreshadowed the determination of the proceedings in his absence today. The father has not been denied procedural fairness.

Proposed orders 

1. The Independent Children's Lawyer and the mother mutually propose the orders set out in the minute of orders, which minute was tendered and marked Exhibit B. 

2. Generally speaking, those orders provide for the discharge of all former parenting orders, the allocation to the mother of sole parental responsibility for the children, for the children to live with the mother, and for the parties to take all reasonable steps to ensure the children spend time and communicate with the father in accordance with the children's wishes.

The evidence

1. In support of their joint proposal, the mother relies upon the affidavit she filed on 5 May 2015. The mother was not required for cross-examination by the Independent Children's Lawyer. 

2. The mother and the Independent Children's Lawyer also relied upon the Family Report dated 27 March 2015. The Family Consultant was not required for cross-examination by either the mother or the Independent Children's Lawyer. 

3. I therefore accept the evidence of the mother and the Family Consultant.

History 

1. The parties began cohabitation in 1998, married in 2000, and separated in 2005. 

2. The children were born in 1999 and 2002 and were quite young at the time of the parties' separation. 

3. The father originally commenced proceedings within weeks of their separation.  Those parenting proceedings were resolved by final consent orders made by the Federal Magistrates Court (as the Federal Circuit Court was then known) in August 2008. Those orders generally provided for the parties to have equal shared parental responsibility for the children, for the children to live with the mother, and for the children to spend substantial and significant time with the father. 

4. These proceedings were commenced by the mother in December 2011, following upon the father's conviction for an assault perpetrated upon the eldest child.

5. The Federal Circuit Court made a series of interim orders in 2012 designed to reintroduce the children to the father on a professionally supervised basis.  Those orders were implemented, but it is not suggested the arrangement was a happy one. 

6. The Federal Circuit Court made further interim orders in 2014 dispensing with the need for the children to be supervised when with the father, but that arrangement failed. The children were returned to the mother under a recovery order made in July 2014.

7. The proceedings were finally transferred to this Court in September 2014 and ultimately heard in May 2015.

Legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects in determining the nature of parenting orders which ought properly be made. When making parenting orders, the Court is mandated to regard the child's best interests as the paramount consideration. The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child.

2. The Court is required to apply a rebuttable presumption that a child's best interests are served by an order allocating equal shared parental responsibility for the child to the parents.  However, the presumption of equal shared parental responsibility may either not apply or be rebutted in the particular circumstances of a case. 

3. In the event an order is made allocating equal shared parental responsibility to the child's parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and the practicability of the child living for equal time with both parents or, alternatively, living primarily with one and spending substantial and significant time with the other.

4. If parental responsibility for the child is allocated in some other way, then the Court's discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child's best interests being the paramount consideration.

Children’s best interests

1. With those legal principles in mind, I turn to s 60CC of the Act to consider the criteria which guide the Court's determination about the children's best interests.

2. First, dealing with s 60CC(2)(a) of the Act, it is clear that the children both enjoy meaningful relationships with the mother, which should not be disturbed.

3. Unfortunately, the children's relationships with the father have completely broken down. The Family Consultant met with the children in March 2015 and offered insights into their perceptions about their relationships with the father. 

4. The eldest child told the Family Consultant that once she had cut off communication with the father and found an anti-depressant that was effective she started to cope much better and her participation at school improved. She identified to the Family Consultant that it was because of the current proceedings and the father's recurrent abuse and denigration of the mother that she could not cope with attending school in the past. The eldest child also reported to the Family Consultant:

   … dad has never apologised for what he did to me [the assault].  He blames me like it's all my fault. All I want is for dad out of my life; I want him gone.

5. According to the Family Consultant, the eldest child does not trust the father, nor does she have any respect for him, and she cannot see herself having a relationship with the father in the future. 

6. In respect of the youngest child, she reported to the Family Consultant about the father:

   … he has no respect for anyone, no respect for mum and so I have no respect for him.

7. The Family Consultant inquired of the youngest child whether she would like to spend time with the father and was told she "might think about it", but the reality was she wanted to spend "absolutely no time with him". The youngest child refused to be in the same room as the father and repeated to the Family Consultant that she wanted nothing to do with him. 

8. Those sentiments were expressed by the children as recently as only six weeks ago. As the Family Consultant pointed out in the Family Report, "the children have been resistant to spending time with [the father]” and, accordingly, the time they have spent with him in the past has been quite inconsistent. 

9. The Family Consultant observed that, despite past orders made for the children to spend time with the father each alternative Saturday, that only occurred on one occasion in late November 2014, after which those arrangements were suspended. The mother additionally reported to the Family Consultant that the children are:

   ...very reluctant to have any phone contact with the father due to him continually abusing them and denigrating her to them.

10. In such circumstances, a question arises as to whether the children will derive benefit through being forced to recover their relationships with the father. The answer to that question lies in the evidence which is pertinent to both

    
    

    ss 60CC(2)(b) and 60CC(3) of the Act.

11. I therefore turn to consider 60CC(2)(b) of the Act. The mother contends the children need protection from harm that may be caused by the father through his violent disposition, which is expressed both physically and verbally.

12. There is no doubt the father assaulted the eldest child in 2010. He was convicted of the offence and an apprehended violence order was imposed upon him to protect the child from him for a period of 12 months. 

13. The father also has a past conviction for assaulting the mother.

14. Those episodes of family violence were not, however, isolated incidents of violence, but are merely demonstrative of the father's tendencies. The Family Consultant reported upon the father's criminal record which stretches back many decades. He has been convicted for wilful and obscene exposure; use of offensive language near a public place or school; resisting a police officer in the execution of his duty; using a carriage service to menace or harass a person; possessing an unregistered firearm; failing to keep a firearm safe; various assault offences; and the breach of an apprehended domestic violence order.

15. The father has also demonstrated his querulous behaviour more recently with the mother and the Family Consultant.

16. I mentioned a moment ago that there was only one occasion in late

    
    

    November 2014 on which interim orders were successfully implemented for the children to spend time with the father. At the next attempt to implement those orders in mid-December 2014 the arrangement completely broke down. The mother's version of that incident is that she and the children attended a public venue for changeover and the children refused to get out of the car. The father approached the car and she formed a view that he was "highly intoxicated" because she perceived “He could hardly walk. He was staggering all over the place”. When the youngest child informed the father she did not intend going with him, the mother alleges the father "went into a rage". In her view, the hostility escalated and the father yelled abuse and obscenities at her and the children. The scene enlarged to involve the father's partner, whose input comprised a threat to obtain a recovery order in respect of the children. The father then ordered his current partner and her son to "get back to the fucking car" and the mother then telephoned the police to report the incident.

17. Quite clearly, such elevated hostility at an event in December 2014, in circumstances where it is uncontentious the parties separated in 2005, leaves little room for confidence about seemly interaction amongst the family members in the future. It is hard to believe that some nine years have elapsed since the parties' separation and their personal communication still degenerates in such an appalling way, particularly in the presence of the children.

18. The Family Consultant reported that during her conversation with the father he became increasingly agitated and stood over her. When the father was asked to resume his seat and discuss the issues germane to the proceedings he became abusive and told the Family Consultant he had had enough of "this shit" and then departed the Family Consultant's office "ranting as he entered the waiting area". The Family Consultant was motivated to describe the father as "an angry man who has very poor self control". On the evidence presented to the Court, her description was a reasonable one.

19. The Family Consultant reported her view that the father poses a risk of harm to the children, due to his volatile and abusive behaviour, and she cautioned the Court about making orders providing for the children to spend significant time or to communicate with him. I accept her opinion that I should act cautiously in that regard. 

20. Turning then to the additional considerations prescribed by s 60CC(3) of the Act, I note that the father purports to explain his aggravation by pointing to his belief that the mother aligns the children against him. The Family Consultant reported that the father said to her:

    … the children are incredibly anxious around the mother, and that she is restricting phone calls and is sabotaging the orders intentionally in order to align the children.

21. The father was of the view that the mother "controls everyone, including the Family Court system". Suffice to say, the Family Consultant disagreed with the objective accuracy of the father's perception, honestly held though it may be. 

22. The Family Consultant reported her view that the children have suffered "significant trauma as a result of the father's violent behaviour" and, in her view, they continue to be exposed to his aggressive and abusive behaviour.  The Family Consultant reported as follows:

    It is unrealistic to expect that [the children] should feel safe and comfortable in spending time with the father, particularly when his attitude and behaviour have not changed.

23. The Family Consultant considered the children's views should be given sufficient weight, having regard to their age and their past experiences with the father. The opinions of the Family Consultant appear to have a solid basis. The eldest child reported to the Family Consultant during her interview that she had been previously told by the mother "You have to make an effort, he's your father." The context of that discussion clearly indicates the mother tried to impress upon the eldest child the importance of her filial relationship with the father and encouraged her to make an effort to retain and promote that relationship with him. It is hardly likely the mother would have said something of that ilk to the eldest child if, as the father apparently believes, she is intent on destroying the children's relationship with him.

24. In addition, the Family Consultant spoke with the children's school teachers and she reported the teachers had identified the children were struggling emotionally, with their predicament getting worse. Given the children's behaviour at school is influenced by their emotional disturbance, the father is unable to assert such disturbance is wholly attributable to their inter-personal relationships with the mother.

25. The father clearly lacks insight. Such a conclusion is inevitable from both his behaviour and his representations. The father, according to the Family Consultant, told the children the mother is a thief, a shoplifter, and an embezzler, and further, that the maternal grandfather was incarcerated for embezzling money. The Family Consultant, unsurprisingly, considered the father lacked insight into the effects of his behaviour if he was willing to say such things about the mother and maternal family members to the children. In discussions with the Family Consultant, the father could not accept that in denigrating the mother and members of her family his behaviour was damaging his own relationship with the children. He lacked the insight to appreciate that repercussion. 

1. The Family Consultant opined that it remains a concern the father accepts no responsibility for his behaviour, he has never apologised to the children, and he minimises the assault he perpetrated upon the eldest child by passing it off as simply a disciplinary incident in response to the eldest child’s poor behaviour. His failure to grasp the implications of the assault is bewildering. He could not have been successfully prosecuted for an assault of the eldest child if his behaviour was legitimate punishment, because he would have been afforded a defence under s 61AA of the Crimes Act 1900 (NSW). The fact that he was unable to invoke that defence necessarily means his behaviour transcended discipline and became unadulterated abuse.

2. The father’s lack of insight is also demonstrated by his apparent wilful failure to avail himself of the existing orders enabling the children to spend time with him. I have already described the breakdown of that arrangement at the intended changeover venue in mid-December 2014. A fortnight later, on

   
   

   27 December 2014, the mother again took the children to the changeover venue to implement the existing orders. According to the information provided by the Family Consultant, the father simply failed to arrive at the changeover venue without explanation. Thereafter, the eldest child contacted the father a couple of times and, on one occasion, invited him to attend a show to meet with her in February 2015, but the father apparently said to the eldest child "It was not worth the drive". The father clearly fails to appreciate the importance of stable relationships between him and the children. 

3. I accept on the evidence that the mother can do no more than she has so far done. The mother told the Family Consultant at a meeting in March 2015 that she believes:

   … she can no longer force the children to spend time with the father as it is creating an extraordinary amount of conflict between her and the children. 

4. The mother and Independent Children's Lawyer both made submissions about the father's lamentable attitude to the payment of child support. It is a matter that should not escape mention. According to the evidence, the father is currently approximately $15,000 in arrears with his child support payments.  Those arrears are the subject of enforcement action by the Child Support Agency. The Agency has apparently taken steps to issue a garnishee order that operates upon the father's wages. The father's unwillingness to pay assessed child support reflects adversely upon him. 

5. Finally, in respect of the considerations prescribed by s 60CC(3) of the Act, even if there was a case for re-instatement of the children's relationships with the father, there are two impediments. The first is the father's unreliability, as demonstrated by his failure to attend, without explanation, the changeover venue to collect the children in late December 2014 or thereafter and his unwillingness to travel to meet with the eldest child at a show on the mid-north coast of NSW. Secondly, the distance between the households is a practicable impediment. The mother and the children live on the mid-north coast of NSW and the father currently lives in Sydney. The distance between the two households is approximately 380 kilometres and takes about four and a half hours to drive each way.

Conclusion

1. Having regard to those considerations, the conclusion is inevitable that the presumption of equal shared parental responsibility does not apply. The father's proven past commission of family violence renders the presumption inapplicable. 

2. Because the father has voluntarily decided to abandon these proceedings there is no option but for the children to live with the mother and for her to have exclusive parental responsibility for them. 

3. It is likely the father does pose some form of risk of harm to the children and his interest in them has undoubtedly waned. In aggregation, those features militate against restoration of the children's relationships with him. 

4. The mother and Independent Children's Lawyer sought an order that the children spend time with the father in accordance with the children's wishes.  As was discussed during the course of submissions, I decline to make an order in those terms. The children would likely feel they remain under pressure by the father’s expectation that they should want to spend time with him. They may also feel as though they are under pressure from the mother to resist restoration of their relationships with the father. It is preferable, in my view, to make no order and to leave the decision to the mother about if, when, and how the children see or communicate with the father in the future. She will make those decisions as an incident of her sole parental responsibility for them. Following discussion with the solicitor for the mother and the Independent Children's Lawyer, both accepted the absence of any prescriptive order and a notation in those terms would be a viable alternative to the order they initially mutually proposed. 

5. Order 5 proposed by the mother and Independent Children's Lawyer required the imposition of an injunction restraining the father from consuming alcohol to an amount in excess of the NSW legal drink-driving limit during any period the children are in his care. I decline to make any such order because it is impossible to make such an order enforceable and prescriptive. How could it be measured and how could it be enforced? 

6. Orders 8 to 11 inclusive proposed by the Independent Children's Lawyer and the mother comprised a raft of orders designed to ensure that both children either engage or re-engage with counsellors for counselling for as long as is deemed reasonably necessary by their appointed counsellors. The orders also envisaged that the mother would provide the Independent Children's Lawyer with an authority entitling her to communicate with the children's counsellors for the purpose of obtaining information about the children's appointment dates and attendances. It is not manifest from the orders what the Independent Children's Lawyer would do with such information once afforded to her. I decline to make orders in those terms. It is not for the Court to exercise parental responsibility for the children. The mother and the Independent Children's Lawyer both want the mother to have sole parental responsibility and I accede to their mutual proposal. It is, consequently, up to the mother to exercise the parental responsibility for the children wisely. There is no remit for the Court to usurp her role as the sole repository of parental responsibility for them. 

7. The other orders that I intend to make are self-explanatory and could not be the subject of reasonable resistance. 

8. Lastly, I turn to the issue of costs. The mother and Independent Children's Lawyer proposed an order that the father pay $1,650 by way of costs to the Independent Children's Lawyer within 28 days of the date of these orders.  Over many months, the Independent Children's Lawyer has put the father on notice about the costs order that would be sought against him. That correspondence started as far back as July 2014 and was as recent as

   
   

   4 May 2015. Copies of the correspondence were tendered in evidence and comprise Exhibit C. 

9. As I have already indicated, the father did participate in these proceedings for a period and resisted the orders sought by the mother. He filed his Response in November 2014, appeared before the Court in November 2014, and attended his interview with the Family Consultant on 23 March 2015. Although he did tell the Family Consultant during that interview of his intention to withdraw from the proceedings, he has not offered his consent to the orders proposed by the Independent Children's Lawyer and the mother and it has therefore been necessary for them to proceed to a hearing to establish the orders they seek are appropriate and would serve the children's best interests. The father has done nothing to disabuse the Court of the conclusion that his payment of $1,650 by way of contribution to the Independent Children’s Lawyers’ fees would be anything other than reasonable in the circumstances of the case and I therefore accede to that application. 

10. For those reasons, I make the following orders.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on

12 May 2015.

Associate: 

Date:  21 May 2015