Vadisanis & Vadisanis (No 3)
[2009] FamCA 1385
•23 December 2009
FAMILY COURT OF AUSTRALIA
| VADISANIS & VADISANIS (NO. 3) | [2009] FamCA 1385 |
| FAMILY LAW – CHILDREN – Best interests of the Child – Final orders – Where father is said to have alienated the mother from the children – Where the father demonstrated a lack of insight into the way his attitude, language and actions towards the mother has affected the children’s relationship with her – Allegations of family violence – Where the children have expressed conflicting wishes – Where the children have expressed too sophisticated wishes with respect to the benefits of living in the country versus the city – HELD – Children to reside principally with the mother – Father to spend time with the children on a gradually increasing basis subject to preconditions being met for his consultation upon an appropriately qualified professional |
| Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 60CC(4), 60CC(4A), 61DA(1), 61DA(2), 61DA(4), 65DAA |
| Browne v Dunn (1893) 6 R 67 (HL) |
| APPLICANT: | Ms Vadisanis |
| RESPONDENT: | Mr Vadisanis |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission NSW |
| FILE NUMBER: | SYC | 6377 | of | 2008 |
| DATE DELIVERED: | 23 December 2009 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Justice Le Poer Trench |
| HEARING DATE: | 11 - 13 November 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kenny |
| SOLICITOR FOR THE APPLICANT: | Campbell Paton & Taylor |
| SOLICITOR FOR THE RESPONDENT: | Mr Twigg |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Ms Cleary |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Legal Aid Commission NSW |
Orders
Ms Vadisanis (‘the mother’) is to have sole parental responsibility for the children, M born … March 1998 and R born … June 1999 (‘the children.’)
The mother is to inform the father in writing (including by e-mail if it be available) of important decisions she has made for the children. In the event of the mother considering the father’s attitude towards her has changed and in the event of her observing the level of communication has improved between them, she is to use her best endeavours to consult with the father about important decisions which need to be made in relation to the children’s long term welfare.
The children are to live with the mother.
The children are to spend time with Mr Vadisanis (‘the father’) as follows:
(a)Until such time as the father has complied with the conditions described in Order 16 hereof, the father is to have supervised time with the children for up to two hours once per fortnight at the Interrelate Contact Service.
(b)Upon the father complying with the preconditions set out in Order 16 hereof, then he is to spend time with the children once per fortnight on a Saturday in the event of the children having no school sport commitment, or on a Sunday in the event of the children having a school sport commitment on the Saturday, from 10.00 am to 4.00 pm at a place or in an area not closer to Sydney than the Blue Mountains of New South Wales and otherwise no further West or North of E (in the NSW Central Tablelands) than approximately 90 minutes drive. The father is to nominate where the meeting place for the changeover of the children is to take place by giving the mother three days written notice. Such a changeover place is to be a site where the children and/or the mother can be reasonably predicted to be comfortable for the purpose of such changeover.
(c)In accordance with Order 16, upon the father’s therapist providing to the mother and to the Independent Children’s Lawyer a letter in which is stated that the father is undertaking a course of therapy and has shown some real understanding of why Dr B was concerned that the father had started the children on a pathway to being alienated from their mother and that he has undertaken to the therapist to desist from the behaviours that may have contributed to the children’s circumstances, then the father’s time with the children is to be expanded to include one weekend per month where the father may exercise time with the children in Sydney and another weekend per month where the father may exercise an option to spend time with the children in the E district.
(d)In the event of the father having complied with the precondition to Order 4(c) hereof by the commencement of the school holidays at the conclusion of the second term in 2010, then the father may exercise time with the children in the first half of those school holidays in Sydney and the first half of the school holidays at the end of term three in 2010 in Sydney. Thereafter, the father is to spend one half of the children’s school holidays being the first half in years ending in an even number and the second half in years ending in an odd number.
(e)For the purposes of interpreting these orders, school holiday time will commence with a handover of the children by the mother to the father at the service station at V at 10.00 am and conclude at the service station at V at 4.00 pm on the last day of the holiday period with the father. The mother is to determine when the last day of the school holiday period is and advise the father by email prior to the commencement of the school holiday period.
(f)For the purposes of calculating the school holidays, they will be deemed to commence on the first day after the last school day of the preceding term and shall conclude on the day immediately before the first day of school in the new school term.
(g)The father is to have telephone time with the children each Thursday and Monday at 8.00 pm for a period of up to 30 minutes. Those telephone calls are to be monitored by the mother unless and until she considers that is no longer necessary.
(h)After the father’s psychologist has provided the letter as required by Order 4(c) hereof, where Greek Orthodox Easter does not coincide with the school holiday period, the father is to spend time with the children from 10.00 am on Holy Thursday until 3.00 pm on Easter Monday. The mother is to ensure that where Greek Orthodox Easter does fall within the school holidays at the conclusion of term one then she is to adjust the times that the children are to spend with their father (half of school holiday period) so as to include the Greek Orthodox Easter and sufficient days to make up one half of the holiday period which the children have available to them. The mother is to notify the father by email prior to the Easter school holidays of the days which the children will be able to spend with him.
Whenever the mother is required to make any decision in relation to the long term welfare of the children including decisions relating to changing schools, authorising a medical procedure in relation to a child, approving a holiday for the child outside of Australia, consenting to the child participating in a potentially hazardous event she is to advise the father of her proposal in relation to that particular matter and invite his input in relation to same. The correspondence between the parents in relation to those matters is to be by email. The mother is to take into account the father’s response before making a decision.
The mother is to instruct the children’s school or schools from time to time to provide to the father any details sought by him in relation to the children’s progress at school and provide to the father copies of the children’s school reports.
The mother is to advise the father of the name of the medical practitioner or medical practice to which she will take the children should they require medical attention and further, she will instruct the medical practitioner who attends upon the child or children and/ or the practice that they are to provide any information sought by the father in relation to the health of either of the children.
Each party is to promptly notify the other in the event of any accident or significant illness affecting the children and keep the other party advised of all relevant particulars regarding the whereabouts of the children at that time and the name of any person treating or attending the children in relation to such accident or illness.
In the event of either parent taking the children outside of the Sydney Regional area or the E regional area for the purposes of a holiday they are to notify the other parent of their proposal to do so and where the children will be housed during that holiday.
The mother shall within seven days of the making of these orders arrange for the child M to attend upon K Organisation for the purposes of undergoing the necessary therapy to be determined by the psychologist at K Organisation and the mother shall ensure R continues with his therapy at K Organisation.
The mother is to provide to the children’s therapist a copy of the reports of Dr B and a report of Dr H together with a copy of these orders and the Reasons for Judgment.
Each parent will ensure the other parent at all times has a contact telephone number so that the children and the other parent may make contact when appropriate.
Each party shall keep the other party informed of his or her current address, and shall give the other party at least 14 days notice of any intention to relocate. Upon relocating, the party so relocating shall provide the other party with his or her new address.
The mother is to have telephone time with the children when they are on school holiday periods with the father and for that purpose, the father is to ensure that the children are available to speak to their mother at 8.00 pm on each Wednesday for up to 30 minutes during that holiday period.
Each of the parents is to facilitate reasonable telephone contact between the children and the other parent at any time the children may request the same.
The father’s time with the children pursuant to Order 4 hereof is conditional upon the following:
(a)The father notifying the mother’s solicitor and the Independent Children’s Lawyer in writing of the name and professional qualifications of the therapist he has engaged;
(b)Confirmation from the therapist that therapy has commenced for the father; and
(c)Confirmation from the therapist that he/she has received a copy of each report of Dr B, a copy of the report of Dr H, a copy of these orders and a copy of the Reasons for Judgment.
Each of the parties is hereby restrained from physically chastising the children or either of them.
Neither party is to denigrate the other or members of the other’s family in the presence or hearing of the children, nor are they to permit another person to so denigrate the other parent or a member of the other parent’s family in the presence or hearing of the children.
The mother is restrained from swearing at or using profane language when addressing the children or either of them.
The mother is to forthwith attend upon a psychologist of her choice to assist her to gain skills to contain her anger and/or frustration with the children which might emerge from time to time and to assist her in refraining from swearing at the children or using profane language directed to them.
The appointment of the Independent Children’s Lawyer is extended for a period of 12 months from the date hereof.
The Independent Children’s Lawyer is to arrange for either a lawyer in the E Legal Aid office, or the children’s counsellor or some other appropriate person to explain to the children the orders of the Court and in language they may understand to the extent that it is possible the reasons for the Court determining that they should live with their mother. The orders of the Court and the Reasons for Judgment may be provided to such a person for the purpose of this order.
In relation to the proceedings regarding the children, the matter is removed from the pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Vadisanis & Vadisanis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6377 of 2008
| MS VADISANIS |
Applicant
And
| MR VADISANIS |
Respondent
REASONS FOR JUDGMENT
Introduction
This case involves the future of two children now aged 11 and 10. Their parents come from different cultural backgrounds and potentially have a great deal to offer their children through their parenting and shared family experiences. Although the parents were able to agree on the arrangements for the care of the children at the time of separation in October 2008, that agreement was not implemented. As a result the children lost the society of, the nurturing of and a physical relationship with their mother for three months at an important and troubling time for them.
The children were in the care of their father between 4 October 2008 and 4 August 2009. On that later date the court made orders requiring the children to live with the mother as and from 7August 2009. However, because of events which transpired after those orders were made, the court made further orders on the 5th August 2009 requiring the children be placed in the mother’s care immediately and that there be no contact with the father. The father thereafter had no time with the children until after I made orders for phone and supervised time on 12 October 2009. Those orders permitted the father one phone call with the children per week and weekly supervised face to face time with them at the Interrelate Contact service. The change of residence for the children in August followed upon the release of a report of Dr B stating the children had been exposed to and influenced by the alienating behaviour and actions of the father so that their relationship with their mother was in jeopardy.
The Parties’ Proposals
The mother proposed that the children should live with her in E in the New South Wales Central Tablelands. She proposed they spend time with their father. The precise details of the mother’s proposal were set out in a Minute of Orders Sought which became Exhibit ‘W1’ in the proceedings. I do not repeat that document here as the mother ultimately supported the orders recommended by the Independent Children's Lawyer subject to some minor adjustments.
The Independent Children's Lawyer recommended that orders be made as set out in Exhibit ‘ICL1.’ That document provided as follows:
PARENTAL RESPONSIBILITY
1.That the Mother have sole parental responsibility for the children:
a)[M] born […].3.1998
b)[R] born […].6.1999
LIVE WITH
2.That the Children live with the Mother.
TIME WITH AND COMMUNICATE WITH
3.That the Children spend time with the Father as follows:
a)Until the conclusion of Term 4, 2009, each week on either a Saturday or a Sunday from 10am to 4pm and such time is to occur in [E] or the Blue Mountains, with the Father to nominate the venue and advise the Mother by email and giving her three (3) days notice of the venue which he has nominated and the day on which he will be spending time with the children.
i)If the Father’s time with the Children in Order 3(a) occurs in [E], changeover shall occur at McDonald’s Family Restaurants in [E];
ii)If the Father’s time with the children in Order 3(a) occurs in the Blue Mountains, changeover shall occur at [V].
b)During the December 2009/January 2010 school holiday periods, and until the commencement of Term 1, 2010, the Father spend time with the Children in [E] or on the Central West the first weekend of every calendar month unless otherwise agreed between the parties, from 9am Saturday to 5pm Sunday.
c)From the commencement of Term 2, 2010 and thereafter, each alternate weekend from 6.30pm Friday to 3pm Sunday, with changeover to occur at [A], unless otherwise agreed between the parties.
d)For a period of four (4) consecutive days and three (3) nights in [E] during the Term 1, 2010 school holiday periods as agreed between the parties, and failing agreement from 10am the second Saturday to 5pm the following Tuesday.
e)For a period of seven (7) consecutive nights and eight (8) days in the Term 2, 2010 school holiday periods as agreed between the parties and failing agreement from 10am the first Saturday of the school holiday periods to 3pm on the eighth day with changeover to occur at [A].
f)For a period of fourteen (14) nights and fifteen (15) days in Term 4, 2010 as agreed between the parties, and failing agreement from 10am on 27 December to 3pm on the fifteenth day with changeover to occur at [A].
g)Thereafter, the Father shall spend time with the children all the periods of the Terms 1 and 3 of the school holidays and for one half of the Term 4 school holiday periods as agreed between the parties, and failing agreement from 10am on 27 December.
h)At other times as agreed in writing.
i)By telephone, each Monday and Friday between 8pm and 8.30pm.
4.In the event the Greek Orthodox Easter does not coincide with the Term 1 school holiday periods, the Father spend time with the children from 10am on Holy Thursday to 3pm on Easter Monday, Commencing 2011.
5.The Father’s time with the children in accordance with 3 above is conditional upon the following:
a)The Father notifying the Mother’s solicitor in writing of the name and professional qualifications of the therapist he has engaged;
b)That a course of therapy with a registered psychologist or psychiatrist has been commenced by the Father with expertise in area of Family Relationships;
c)That the therapist provides the Mother’s solicitors with written confirmation detailing that he/she has received a copy of the Reports of Dr [B], Report of Dr [H] and a copy of these Orders and reasons for Judgement. The Father’s time with the children in accordance with 3(a) above shall occur within the first seven (7) days of such written confirmation being received by the Mother’s solicitors.
6.That the Mother shall, within seven (7) days of the making of these Orders, arrange for the children [M] to attend upon [K Organisation] for the purpose of undergoing the necessary therapy to be determined by the psychologist at [K Organisation] and the Mother shall ensure [R] continue with his therapy at [K Organisation].
7.That the Mother shall be entitled to provide to the children’s therapist a copy of the Reports of Dr [B], the Report of Dr [H] and a copy of these Orders and reasons for Judgement.
SPECIFIC ISSUES
8.That in relation to the residence of each of the parties:-
a)That each party will provide to the other party a contact number and address for the Child when the Child is in that party’s care.
b)Each party shall keep the other party informed of his or her current address, and shall give the other party at least 14 days notice of any intention to relocate.
c)Upon relocating, the party so relocating shall provide the other party with his or her new address.
9.That, in relation to the schooling and health of the Children:-
(a)Each party shall do all things necessary to allow the other party to communicate with the Children’s schools and medical practitioners.
(b)Each party shall promptly notify the other party in the event of any accident or significant illness affecting the Children, and shall keep the other party advised of all relevant particulars regarding the whereabouts of the Children and the name of any person treating or attending to the Children.
10.That neither party shall denigrate the other or a member of the other’s family in the presence or hearing of the children of either of them or permit another person from so doing.
11.That the Mother is hereby restrained from physically chastising the children or either of them.
The father’s proposals provided that the children live with him in Sydney and spend time with their mother. The proposal was contained in a Minute of Orders Sought which was marked as Exhibit ‘H1.’
The Issues
There were a number of issues which required determination. The principal issue was whether the father by his actions, words, and behaviour had set the children on a pathway of being alienated from their mother.
A further issue related to the future care of the children (in particular who they should live with) and required a determination of the parties’ parental capacity, attitudes to parenting and the ability of each to create an emotional environment for the children which allows them to have a good and meaningful relationship with the other parent.
Another issue was whether the mother attempt to smother R in about March 2008 in the presence of the paternal Grandmother. A further issue was whether the mother had harmed R or attempted to do so.
Finally, the question of what time the father might spend with the children if the children reside with the mother principally needs to be resolved.
Background Facts
The mother was born in 1968 and is 41 years of age. The father was born in 1971 and is 38 years of age.
Towards the end of 1996, the parties commenced cohabitation and were married in February 1997.
M was born in March 1998 and R was born in June 1999.
In March 2000, the father assaulted the mother and was charged with assault. The charge was later withdrawn at the request of the mother.
In 2003, the parties moved to reside in D. In 2006, they moved to reside in E. Between 2003 and 2006 the father worked in E for a period of 12 months.
About 5 September 2008, the parties separated and the mother moved to the nurses’ quarters in the E hospital.
On 7 September 2008, the father told the mother he was able to obtain employment in Sydney. He had been unemployed for some months prior to that time.
In mid September 2008, the mother agreed to the father taking the children with him to live in Sydney subject to the children spending part of their school holiday periods with their mother and alternate weekends during the school terms.
On 17 September 2008, terms of settlement were provided to the mother as drawn up by the father’s solicitor. The terms did not reflect the agreement the mother understood she had with the father and amendments were made to the terms before being signed by the mother.
On 4 October 2008, the father moved to Sydney to reside with his mother taking the children with him.
Between 4 October 2008 and 9 December 2008, the mother did not see the children. With the exception of one weekend when the mother was unavailable to spend time with the children because of her work commitments, the reason for the children not seeing their mother was the father’s failure to comply with the written agreement between the parties.
On 9 December 2008, the father attended at the former matrimonial home with family members, the children and a truck. The police were present during the father’s attendance at the home.
On 12 December 2008, the mother filed an urgent application at the Local Court seeking to spend time with the children.
On 16 December 2008, interim orders were made by consent in the E Local Court providing for the children to spend time with their mother over the Christmas period and the proceedings were transferred to the Family Court of Australia at Sydney.
On 5 February 2009, orders were made following a defended hearing. These orders provided for the mother to spend time with the children during February 2009.
On 23 February 2009, orders were made by Judicial Registrar Johnston following a defended hearing. The orders provided for the children to live with the father and the mother was to spend time with the children on the first and third weekends of each month. The children were to spend half school holidays with their mother and have telephone time with her. The mother filed a review of that application.
During the weekend of 3 April 2009, the children spent time with their mother. On 11 April 2009, the children were to be delivered to their mother for half of the school holiday period pursuant to the orders of the Court. The father failed to comply with that order.
During the weekend of 2 May 2009, whilst the children were spending time with their mother in E she was visited by police to check on the welfare of the children.
On 4 August 2009, orders were made by Justice Cohen following the hearing of the review of the orders made by Judicial Registrar Johnston on 23 February 2009. Justice Cohen ordered that the children live with the mother and spend two weekends per month with the father. Changeovers were to be at V and there was to be telephone time for the children to speak with their father each week.
On 5 August 2009, the matter was relisted before Justice Cohen. Orders were made for the children to be forthwith placed in the care of their mother. The operation of orders 5, 6 and 7 made on 4 August 2009 were suspended until further order and until a psychiatrist report was received in relation to the safety of the children whilst in the care of the father and also the relevant psychological condition of the father.
Between 5 August 2009 and 12 October 2009, the children spent no time with their father.
On 12 October 2009, I made orders which provided for the father to have telephone time with the children on one occasion per week monitored by the mother. The orders further provided for the father to have face-to-face time with the children for up to three hours on one occasion per week supervised at the Interrelate supervision centre.
On 26 October 2009 at the Sydney Downing Centre, an Apprehended Domestic Violence Order (ADVO) was made for the protection of the mother. The defendant was the father. This order came to light after the conclusion of the hearing and a copy of the order was tendered by consent. To that end the hearing was re-opened on 8 December 2009. I have marked the document as Exhibit ‘H4.’
The Evidence
The Father’s Affidavit Evidence
The father recites that the children have been living with their mother since 5 August 2009 following the orders of Justice Cohen. Thereafter, he had no contact with the children until orders were made by me on 12 October 2009.
Under the heading “Violence by the mother towards me”, I note the following matters in particular.
Some of the form of the affidavit is in the nature of submission and therefore not evidence. As such, it is not capable of being given any weight in the determination of the case. At the commencement of the hearing I pointed out to each of the parties’ legal representatives that the affidavits filed by each of them suffered this deficiency. I requested that their legal representatives consider carefully the affidavit material and should it be necessary for further oral evidence to be given in relation to an important matter referred to in the affidavit material but which clearly could not be given any weight, then that was to be brought to my attention.
The father in his evidence cited the first incident of alleged violence having occurred in September or October 1996 shortly after the parties commenced dating.
The father gives evidence that in March 2000 an argument occurred between him and the mother. He cannot recall exactly what occurred. He does recall that the mother called the police. He recalls that an ADVO was taken out against him.
In 2003, whilst living in D the father alleges the mother punched him in the nose and gave him a black eye. He fell back. He hit his head on a sharp corner. He bled profusely. The children were in the premises at the time. The mother removed the children and stayed the night at the sister’s house. The father told the children that he had slipped.
The father describes an incident on the 26 September 2008, which occurred at 6.00 am. The father told the mother that he would be taking the children to Sydney when they finished school. The context of his affidavit makes it clear that he understood at the time that she would be distressed by that statement. He says the mother replied, “No fucking way, you bastard.” He alleged that the mother pushed him very hard with both hands on his chest. He said the mother sat with the children on the lounge, covering their ears and saying, “Don’t listen to your father, darling. Cover your ears. He is fucking mad.” The police were called. In the presence of the police and the children the father states the mother said, “This bloody arrogant Greek bastard wants to do everything his way.”
The father denies he has ever abused the mother physically or verbally in the presence of or hearing of the children.
Under the heading “Violence and inappropriate discipline by the mother towards the children”, the father says as follows.
The father complains that on an occasion about a year ago R had soiled his underwear. The mother held his underwear in one hand and “squashed his face with the other” and said to him, “You fucking do this again, you little bastard and I will rub it in your fucking face like they do to the dogs to stop shitting everywhere.”
On 19 February 2009, R said to the father, “Last year, my mum told me she would take me to a doctor who will give me a very large injection in my arm to stop me from shitting my pants.”
Last year, prior to separation, on two occasions the mother reacted to R spilling crumbs and rice bubbles whilst having breakfast.
Last year the mother became angry in R’s room and removed clothing from three or four drawers. Although not stated, there is an inference that R was present.
The father alleges that the mother has used rude and profane language when addressing the children. Some of that language included, “Hurry up you bastards. Get bloody dressed.”
The father states that on 1 July 2008, whilst on a road trip to Queensland, he was present in the car and as the car approached Brisbane, the mother unbuckled her seat belt while the car was in motion, turned around towards the backseat and punched both children to their upper limbs saying to them, “Shut up, you fucking bastards. Watch the TV. I don’t want to hear another word. If I don’t scream and bash the shit out of you fuckwits you won’t listen to me.” The father said nothing in response to that behaviour. He stopped the vehicle and said to the children, “Kids, that’s enough. Please don’t make it difficult. Daddy has to drive and we still have a long way to go.”
On 23 November 2008, M told the father, “Mummy got very angry and mummy locked me in a cupboard and left the unit and went for a walk.”
In September 2008, the father heard the mother speaking to R in a loud voice saying, “Get out. Get out you fucking mongrel dog.” The father said to the mother, “What’s going on?” She replied, “This fucking dog bit the leather on the window sill in the back of my car and put holes in it like a fucking animal.”
Before the father finally left E to move to Sydney, the mother said to him in the presence of the children, “Hurry up and get these bastards out of here and go to Sydney. The sooner the better. I can’t handle this anymore.”
Following the children spending 7, 8 and 9 March 2009 on a holiday in Melbourne the father recalls a conversation he said took place with R. This conversation took place in a motor vehicle while the father was driving. R made a complaint about interaction with his mother in relation to his soiling his pants. The father said to R, “I am driving. Write it down in my diary.” R then wrote in the diary, “May f**** Jesus help you if you shit your pants.” A copy of a page of the diary for 9 March 2009 is annexed to the father’s affidavit.
I note the diary entry contains a reference to a “unit in Melbourne.” The father explains this in his affidavit by saying that M had said to him on 9 March 2009, “Oh dad, mum also said when we are at the unit in Melbourne that there was so much space in the unit in Melbourne and how she could easily have another two kids sleeping at that unit.” The father said he wrote that entry in the diary after he had arrived home from that trip.
On 18 October 2009 during supervised face-to-face contact at Interrelate Family Centre, the father records that M said to him, “I didn’t want to go back to school after the holidays, and mum dragged me out of it and screamed at me.” I note at this stage, having heard the mother giving her evidence, although she was not challenged on this particular allegation, I do not accept that she screamed at M at that time. The mother had just obtained an order for the children to live with her and there had been a very traumatic experience for the children (especially M) to move from their fathers’ care to the mother’s care.
There are many other paragraphs set out in the affidavit under the heading “Violence and inappropriate discipline by the mother towards the children.” The affidavit does not specify in many of those paragraphs whether the father was present at the time of the occurrences complained of. Further, it is evident from some of those paragraphs that he was not present and the information has been provided to him by other persons. I have noted the words alleged to have been said by the children to the father as recorded in the paragraphs under the subject heading.
Under the heading “Alcohol misuse”, the father says that from about March 2000 until 2001 he began to consume larger amounts of alcohol (usually a six pack of stubbies in one sitting). He said he turned to alcohol as the marriage deteriorated. He was convicted of a drink-driving offence in 2001 and his license was suspended for three months. In 2001, he attended “AA” classes. His alcohol consumption decreased thereafter. He states that he never drinks when he has the children with him.
Under the heading “Proposals for children”, the father says that from 26 September 2008 until 4 August 2009, he and the children had resided at his mother’s residence in Sydney. If the children live with the father, he proposes to return to live at U in inner Sydney.
On 15 September 2009, the father obtained temporary employment in Sydney. He resigned after six weeks. He found it difficult to get to the employment or to park there. He felt he did not fit into the unit he was working in. He is presently looking for similar work. He would take employment that would enable him to drop off the children to school and collect them afterwards. If he was unavailable, he proposes to use after school care or have his mother collect them.
The work the father had in September 2009 appears to be part of a small period of employment which the father has been able to find since moving to Sydney on 4 October 2008. I note that part of the reason for the mother agreeing to the father taking the children to Sydney was that he had a “job offer” or the prospect of employment in Sydney.
The father claims that his mother was the primary caregiver for both children from their birth until they each reached five years of age.
The father proposes that the children attend U Primary School. He proposes the children attend piano lessons. He proposes that M have dancing lessons and drama lessons and that she would also learn the flute. R would play soccer and during the season the team plays every Saturday. He would also have R playing cricket during the summer season.
The children have a family doctor in Sydney who would be available to attend to their medical needs.
The father proposes that the children would spend time with their mother once a month where she would travel to Sydney and on another occasion each month where there would be a changeover at A. He proposes that she would have at least half of the school holidays.
Under the heading “Allegation of manipulation or attempted alienation, or psychological/ emotional abuse by the mother towards the children”, the father says the following.
He believes the children are in danger of being alienated from himself and his family and their friends in Sydney. He specified events which he says the children have missed out on since the orders of 5 August 2009. I have read those events. The father incorporates some hearsay evidence upon which I cannot give weight. He complains generally that the mother was not sufficiently active in encouraging the children to contact him on Father’s Day this year.
Since 18 October 2009, the children have telephoned the father on one occasion only notwithstanding orders permitting this. The father believes that the mother has not insisted on the children phoning him nor encouraged the children to contact him by telephone or email him.
The father has scheduled telephone contact with the children.
In October 2008, the father said he was present and heard the mother say to R, “Before you go to Sydney at [U] School you will have to get your ears pinned back so that no one teases you at your new school.”
On 21 November 2008 at about 3.30 pm the father says the mother called the children whilst he was driving the children in his car. Although not specifically stated I understand the father to say that he heard the mother use the following words directed to M, “If your dad does not want to send you up to [E], I will find another boyfriend and have a new baby girl to look after and she will be all mine.”
The father records that on 26 November 2008 at 7.10 am the mother called M and said to her, “Darling, mummy won’t find another boyfriend. If mummy will have another baby, I will go to a sperm bank.” The father reports that M then asked him what a sperm bank was. I have assumed in favour of the father that he heard this conversation and it was not something which was simply repeated by his daughter.
The father reports conversations from R who stated his mother had told him things which were derogatory about the father and his family. I have read the details of those conversations.
Notwithstanding orders made on 23 February 2009 that neither party was to denigrate the other or the other’s family in front of the children, the father reports that on 14 March 2009 M reported that her mother had told her, “Your dad is telling lies.”
The father denies that he has “not moved on from the marriage.” This is the opinion of Dr B.
Under the heading “Wishes of the children”, the father states as follows.
The father attributes statements to the children which indicate they prefer to live in Sydney and with him. He says that in between February 2009 and March 2009, the children expressed concerns regarding alternate weekend travel to E and the fact that it was tiring. They also complained that it was disruptive to their weekend sporting and social activities.
At changeover on 9 January 2009 when at A the children were placed in their mother’s care for a two week holiday R said, “I don’t want to go, I don’t want to go.”
Following the orders of 12 October 2009, the father has seen the children at a supervised contact centre and has been able to speak to them on the phone. He reports that R has told him, “We hate our school and want to be back in Sydney.” M has expressed similar sentiments. M told him, “We miss all our friends in Sydney.” M had said, “We miss you very much and I wish I could be with you.”
The father reports that on more than one occasion he has reminded the children that they are allowed to call him any time they wish. R told him, “We know that, our week has been so busy and we didn’t have time to call you.”
On 25 October 2009, the father reports R told him he had been crying for nearly two hours on Friday night because he missed going to church with his father and listening to the Pastor.
On 25 October 2009, the father reports M as saying, “I cry nearly every night in bed because I miss you daddy and want to be with you.” She told her father she had spoken to the principal at E School and told him she enjoyed Sydney better because it is more multicultural.
Under the heading “Proposals to address parental conflict”, the father says he is aware of the impact of conflict between the parents on the children and consequently he does not wish to have face-to-face contact with the mother. He proposes that communication be by email or text.
The father annexes as annexure ‘E’ to his affidavit a printed email from the mother to M dated 11 December 2008. He annexed the email to establish that the mother was talking to the children about court orders. The email appears to me to be a desperate cry from the mother to the children in circumstances where she appeared to understand she was being prevented from spending time with the children by the father and that the father was providing misinformation to the children.
The father repeated conversations between he and the children in October 2008 and November 2008 which he says indicate that the mother was speaking to the children about financial issues between the parties. I accept that she could have been speaking to them about such matters.
Under the heading, “Mother’s capacity to provide for the needs of the children, including emotional and intellectual needs”, the father is critical of the mother’s care. He complained that she did not clean the floors properly in the home where they had lived when the children were very young. He complained that she had left food on the stove for three days and then proposed to “feed my daughter.”
He said that when offered the opportunity to stay home and not work the mother had said, “The children are doing my head in; going to work keeps me sane.”
The father provides evidence which can only lead to the conclusion that he considered the mother was not capable of caring for the children on a full‑time basis on her own and had used various members of his family to care for them whilst the parties lived in Sydney.
The father says that in December 2000 he resigned from his job (which he said was a 110 hour per week job) so he could spend more time with the children.
On 18 and 19 October 2008, the father says although the children were to spend a weekend with their mother they spent the weekend with the mother’s family and she worked.
The father gives examples of conversations which took place, he said, in 2008 where the mother used profane and offensive language. He describes examples of short temper and profane language being used by the mother towards the children.
Once again under this heading there is much in the nature of submission which is not evidence and cannot be given any weight.
The father describes an incident in July 2008 where there had been an argument between the parties about their families. The mother left the house. She said, “I’m fucked, I’m mad, I’m fucking walking to Bloomfield hospital now to go and fix myself up.” The father followed her and convinced her to return. She told him at a later time, “I saw my GP. He said to me if I was not happy in my marriage, then to leave.”
The father says that the mother put other priorities such as completing her degree in nursing, studying for that degree and working as a nurse ahead of her obligations to the father and the children and to care for them. He apparently holds the opinion that, whilst studying for four years for her nursing she did not have time or the desire to assist the father in caring for the children or on the general day to day work with running of the household.
Whilst the parties lived in D the father obtained work in E. He lived in E during the week. He complains about the standard of food and cleanliness in the house during that time.
The father in his affidavit speaks of another period in about mid 2008 when he was working for a company in Queensland and lived in Queensland. The children complained to him about the care arrangements in the morning during that period.
The father says in May 2008 R informed him that the mother had left him for three days in a row at home by himself when she left for work at 7.00 am and returned at 4.00 pm. The father was in Queensland at the time and said he returned home immediately. He did not say whether he had ascertained R’s complaint was correct. The inference is that he believed what R had told him.
On 17 October 2009, the father says that in his telephone call with R, R told him he was suspended from school. He told his father the next day he had written on a boy’s T-shirt “and something happened.” It seemed accepted by all that this had not in fact happened and R was fabricating.
On 18 October 2009, the father says that whilst in a supervised contact session he asked the children “tell me about your babysitter.”
The father appears critical of the mother’s arrangements for the supervision of the children before and after school.
He alleges that when the children stayed with their mother during school holidays at the end of 2008 and the beginning of 2009 the mother worked. The mother in her oral evidence has denied this.
On 20 January 2009, the father records he spoke to M. She told him about a bike ride the mother and the children had engaged in on a Highway. The conversation contained complaints about the mother. Amongst other things M is reported to have said, “Mum was in front of [R] on her bicycle and she was about 20 kilometres away from me.” This conversation assumed importance during the trial because the father believed M was reporting accurately what had occurred.
The father was critical of the mother for engaging the bike riding activity on the Highway due to the traffic use on that road.
In a conversation between the father and R on 1 November 2009, R said, “I’m just getting ready to go outside and ride my scooter down the B-hill. At night I put the sparks on my scooter, and go down the hill.” The father said, “That’s very dangerous, [R].” The father says that the mother’s parents do not supervise the children properly and quotes a conversation with R where he told his father he had been climbing on his grandfather’s roof.
The father raises concern about the mother’s ability to financially provide for the children should they be in her care. I note the advice from the father’s solicitor that he has not paid any child support to the mother since the children have been residing with her after 5 August 2009.
The Affidavit Evidence of the Paternal Grandmother
The father filed in his case an affidavit by his mother, the paternal grandmother, sworn on 8 October 2009. She sets out details of telephone conversations which she had with M on 20 August 2009. She said that M was upset and crying. The paternal grandmother said to M, “Daddy upset to miss you too much. Miss you and [R] very much.” She told R, “[R], daddy is home at [U]. How is school?”
She spoke to the children again on 26 August 2009 by phone. During the conversation she asked M, “Miss you too, Darling. How is school?” M replied, “It’s terrible stuff, I don’t like it. Please, yia yia, I’d like to go to school at [U].” The paternal grandmother replied, “Darling, I can’t help you.” In her conversation with R the same day, he said, “I hate school, yia yia.” R said to her, “Yia yia, tell daddy to live with you, not to live alone.”
On 7 September 2009, the paternal grandmother spoke to the children. During the course of that conversation she said to M, “Daddy said that you rang him when he was at church. You forgot daddy go to church. Daddy was very upset, he didn’t talk to you.” M replied, “Oh I forgot” and then started crying.
The paternal grandmother said that when she speaks to the children it appears that they speak on a loudspeaker and she feels that the children would like to say more but feel constrained.
The paternal grandmother gave evidence about an event on 23 March 2008. She said the mother became angry with R. She observed the mother pushed R by placing her hand on his head pushing him down. R went to the ground. She said, “[the mother] then put one hand around his throat, and the other across his mouth. [R] could not breathe and began turning blue. I screamed, “[to the mother], leave my grandchild alone. You’re killing him.” She screamed, “It’s my children. I’ll do what I want.” M observed the incident and was crying.
The paternal grandmother says that she and her husband cared for M six days a week from morning until 5.30 pm when M was young. She also cared for R during the time that the mother was at work and often after work as well. In July 2000, the paternal grandmother and her husband took M to Greece for eight weeks. She said that was at the urging of the mother and with the agreement of the father. The evidence that the mother had urged the paternal grandparents to take M to Greece with them is contested by the mother. I have referred to her version later in these Reasons and I here note I do prefer the evidence of the mother on this issue.
The Affidavit Evidence of the Mother
The mother swore an affidavit on 4 November 2009. Contrary to the directions made by me, she elected to dedicate the first 53 paragraphs of the affidavit to history and allegation apparently not capable of fitting any of the headings ordered by me to be the subject of the affidavit.
That part of the affidavit which addresses the headings specified in the orders of the Court suffers considerably from the fact that it does not contain only evidence. It contains submission, conclusion, hearsay and other material (which is not evidence) all of which cannot be given any weight. At the commencement of the hearing I brought these matters to the attention of each of the parties and in particular the mother’s counsel. I requested that each of the parties’ legal representative consider carefully their clients’ affidavits and if there was any material in the affidavits which is said to be relevant and important but not in a form which could be given weight then I requested that matter be brought to my attention and that there be consideration given to calling oral evidence on that subject.
Under the heading “Violence and Abuse by [the father] towards me”, the mother stated the following matters which I have noted.
Between paragraphs 55 and 58 inclusive of her affidavit the mother provides conclusion and submission about aspects of the father’s personality which, if established, would be an important consideration in the case.
After the parties were engaged, but before marriage, they were in D visiting the mother’s parents. The mother had a haircut. The father took the mother back to the hairdresser after he saw the haircut. He spoke to the hairdresser about the haircut. A security guard arrived at the shop, the mother and father left the shopping centre. On the way to the mother’s parents’ house the father, who was not driving, left the motor vehicle without telling the mother where he was going. He arrived home to the mother’s parents’ property later that night with torn trousers. He said to the mother, “I was so angry, I kicked a bolder/rock.”
Following the Christening of M, the father slapped the mother on the face in the presence of two family members and the mother’s grandmother. At the time of the assault the mother was holding M.
Annexed to the mother’s affidavit and marked Exhibit ‘G’ is a copy of the signed police statement made by the mother on 17 March 2000. It is common ground that as a consequence of this statement an ADVO was made against the father. The mother recites that on 16 March 2000 she arrived home from work. The father did not talk to the mother and they ate dinner in silence. The mother made a phone call. The father said, “Why don’t you tell me who you are calling?” The father grabbed the mother by the bra strap at the front with his right hand and twisted it causing the wire to bend. He said to the mother, “You make me crazy.” He then broke the bra strap and took hold of the upper arms of the mother and pushed her with force against the fridge and wall of the kitchen. At that time he said to her, “You’re shit, you’re useless. You had nothing until you married me, you’re from the gutter. I turned you into a princess. You’re hopeless, this basket of ironing has been sitting in the family room for a week. You do nothing around the house to help me. All I asked is for you to look after the children and you can’t even do that.” The mother attempted to leave, the father prevented her from doing so taking hold of her left arm from behind and slapped her with his right open hand across her right shoulder blade three or four times. He continued to push her. He then undid his trouser zipper and grabbed his penis holding it, shaking it and said, “This shows I’m a man.” The father then sat on a lounge chair and while seated punched a hole in the wall with his closed fist. He said to the mother, “I’ll break everything in this house including you.” He then made another hole in the wall with his hand. He threw various furniture items around. As the mother left the room the father took hold of her again and grabbed her around the throat with both his hands applying pressure and pushed her against the kitchen wall. The mother moved to the bathroom, the father came in. He pushed her into the shower and turned on the cold water. He said at that time, “I will make 32 holes in the wall and 52 in your head.” He then picked up a curtain rod and stabbed the tiles with it and threw the rod on the floor at the mother’s feet.
The mother moved to the bedroom, the father came into the bedroom, he pushed the bed aside and picked up the mattress and wedged the mother between the mirror wardrobe and bed with considerable force.
The mother described “on one occasion” following dinner at a friend’s place returning home in the car which she was driving. R woke up and started to cry. The father “kept turning around in the car whacking R on the head and arms saying ‘Stop it. Stop crying. Be quiet.” Thereafter he opened the car door whilst the car was moving and alighted from the vehicle.
On another occasion whilst the mother was driving, the father punched the windscreen of the vehicle causing it to crack.
On an occasion when M was four months old, the parties attended a wedding and M was cared for by the father’s mother for the first time. The father consumed alcohol at the wedding. Returning from the wedding, the mother’s parents were present, the father became concerned because the mother when referring to M used the phrase “my baby girl.” The mother thereafter describes controlling, aggressive and frightening behaviour on the part of the father for approximately one hour in the kitchen upon the parties arriving at their destination.
On the occasion of R’s Christening, the mother describes the father’s behaviour upon return from the Christening event. The father was in the backyard of the property being occupied by the parties shouting, consuming alcohol and could not be distracted by any of the mother, her parents, another female and finally the father’s mother.
The mother says that on one occasion whilst living in D the father put his two fists together through the wall in the kitchen at a time when he was angry.
Annexed to the mother’s affidavit and dated 11 October 2003 is a letter addressed to the parties from the Department of Community Services. It refers to a complaint dated 9 October 2003 in relation to domestic violence incidents which occurred between the parents and another person. It alleged that the children may have been present and witnessed the incident. It alleged that domestic violence was ongoing.
On 5 October 2008, the father and children moved to live in Sydney.
On 28 February 2009 (a Saturday), the mother rang the father to speak to the children. The father would not allow her to speak to the children, he said, “No, you can’t speak to the children, read the court order, only Monday, Wednesday and Friday between 6 pm and 7 pm.” Following that call there were 84 calls and text messages from the father to the mother between 6.50 pm Saturday, 28 February 2009 until 11.24 am (Monday) 2 March 2009. The mother annexed to her affidavit a transcript of the calls and text messages. I find the phone calls and text messages by the father to the mother to be very worrying.
While the children were living with the father in Sydney, the mother attempted to telephone to speak with the children. It was mostly the father who answered the phone. She said he would then engage her in conversation. The mother was concerned that the content of that conversation was within the hearing of the children. When she was able to speak to the children she said she detected that the children were tense and not at ease in speaking with her.
The mother says that it has been a common occurrence since the separation for the father to telephone her many times a day ranging from the early hours in the morning until late at night. Some days the calls were more frequent than others. On 16 March 2009, the father telephoned the mother 16 times between 5.55 am and 7.57 pm. Again, on 16 March 2009, there were nine telephone calls from the father to the mother between 9.30 am and 11.03 am. The mother attached as Annexure ‘J’ a transcript of text messages from the father between 1 March 2009 and 16 March 2009. The content of some of these text messages and certainly the frequency of them are very concerning.
The mother sets out a transcript of a conversation between the father and herself on 19 April 2009. This conversation is interspersed with profanities, threats and allegations. The construction of the conversation indicates aggression. The mother said she found the phone call very threatening and abusive. I accept that she would have.
The mother says that on Monday, 4 May 2009 she drove to Sydney to return the children to U Public School. The father telephoned to speak to the children at 7.56 am and then again at 8.28 am. The father asked to meet with the mother; she declined by saying, “I need to return to [E] as I’m working this afternoon.”
The mother arrived at U Public School with the children at 8.50 am.
Whilst in the school grounds with M, the father approached the mother. She said he spoke to her in an angry manner saying, “Who is answering your mobile phone? Someone is answering and not talking. Where is your phone?” The mother replied, “It is in the car.” The father said, “Who is in the car?” The mother responded, “No one.”
The mother kissed M goodbye and then proceeded to her car followed by the father. The mother then sets out in paragraph 96 of her affidavit the conversation which took place between she and the father. The father’s words are most troubling.
The mother sat in her car and put the keys in the ignition, however, the father snatched the keys from the ignition. He said to the mother, “I want to talk to you.” The mother said, “you don’t talk, you constantly berate me and talk down to me. Please give me back the key, I have to drive back to [E] now, I have to work this afternoon.” The mother asked the father to return the keys. He did not. A person associated with the school approached the car. The father in the presence of that person returned the keys. The father left the mother and walked with the person from the school to the school gate. The mother reports she was shaking with fear. She locked her car door. She locked three of the four car doors as she could not reach the fourth door. She reversed the car from the car park. The father then came towards the car and attempted to open the front passenger door. He then opened the rear passenger door and got into the vehicle. The mother reports she was terrified. The mother asked the father to get out of the car. He said to her, “Drive me over to the [U] shops.” The mother said “no” as she was not going that way. The father refused to get out of the car. The mother manoeuvred her car next to another vehicle where the driver could observe what was happening in the mother’s car. The driver of the other vehicle asked whether everything was alright. The mother said to the father, “Hop out of the car, please, now.” The father replied, “To hell with you f…. g…” The father walked off leaving the car door open. The mother reported the incident to the E police. The E police took out an ADVO against the father on 15 May 2009.
On 21 May 2009, interim ADVOs were made against the father for the protection of the mother. When the matter was before the Local Court in E, the father sought a transfer to the Sydney Downing Centre to consolidate with ADVO proceedings by Sydney police against the mother for the protection of the two children.
The mother annexed to her affidavit as Annexure ‘M’ a letter from New South Wales police dated 8 October 2009 advising that the action on behalf of the children was withdrawn.
In his oral evidence, I asked the father what had happened with the proceedings in the Sydney Downing Centre in respect of the ADVO sought to protect the children. He was unable to tell me.
The mother acted on the advice of E police who told her that it was not necessary to attend court on 26 October 2009 and that the proceedings would be transferred from the Downing Centre to E. The mother said on the afternoon of the 26 October 2009 she received a phone call from the police. The mother understood following this call that the interim ADVO made on 21 May 2009 had been dismissed as she had not been present at court that day.
Following the conclusion of the hearing the parties agreed to re-open the case to allow the father to tender a copy of an ADVO made on 26 October 2009 by the Local Court at the Sydney Downing Centre. This order was made against the father for the protection of the mother.
Under the heading “Violence and inappropriate discipline by [the father] on the children”, the mother says as follows.
The mother complains that the father failed to discipline R. She also says this was an aspect of the paternal grandmother’s dealing with the child as well. She said the discipline of the children was left to her. She said that she would raise her voice at times but denied that she swore at the children. In her oral evidence, she did admit swearing at the children. She denied she has ever abused or harmed the children. She denied the incident alleged by the paternal grandmother that she had held R by the throat, or in any way, where he could not breathe and began turning blue.
The mother acknowledged that the father would at times discipline the children.
The mother said her method of discipline with R was to take him by the hand to a quiet place and talk through the issue. At other times she allowed him to vent his anger until he was able to calm himself. The mother has raised her voice to R, however, she claims to have learnt that this does not work and only elevates R’s anger. On the occasions when the father did discipline R, the mother says that he hit the child on the face or around the head and arms. She protested against that style of discipline. She said there were occasions where she had to intervene in the discipline by putting herself in front of R to try and stop the father from hitting him anymore. She would say, “Enough [father], enough. Stop it.” On occasions if R was screaming and throwing a tantrum the mother says the father would pin him down on the floor and try to calm him.
Under the heading “Misuse of alcohol”, the mother says as follows.
In 2001, the police visited the mother in the early hours of the morning to tell her that the father had been arrested for drink driving. His license was suspended for six months. He continued to consume alcohol after that time. A short while after attending “AA” meetings the mother says the father’s drinking habit changed. Whilst living in D the mother says the father would have a minimum of a six pack of stubbies every day. On weekends he would regularly consume a whole carton of beer which is twenty four stubbies of beer in one sitting.
Under the heading “Proposals for children”, the mother claims to have been the primary caregiver of the children whilst the parties were together. In 2006 the parties moved from D to E. The children attended E School. The mother has re-enrolled the children at E School and intends that they continue at that school. She is meeting the school fees.
Since return to the mother’s care on 5 August 2009, the children have returned to school and the mother says they are settled. The mother has successfully applied to E School for a 50 per cent scholarship towards the children’s school fees. The children have re-acquainted themselves with friends they had at an earlier time. R is playing indoor soccer and also plays cricket. The children have participated in athletics in the past. M plays touch football.
The mother proposes that the children continue to live with her in E, attend E School and involve themselves in extracurricular activities available in that area. Both children have recommenced their piano lessons in E and M has started to learn ballet. The mother has also explored other possible activities for the children. The mother is seeking to change her work hours so that she will be predominantly able to care for the children before and after school. She otherwise has a range of plans to supervise the children all which she gave evidence about orally. All of those arrangements appeared to me to be satisfactory and the arrangements included her parents, a neighbour and the possibility of before or after school care.
The mother’s proposal for the children’s time with their father is set out in the orders that she seeks.
Under the heading “Manipulation and attempted alienation or emotional abuse exhibited by the husband towards the children”, the mother says relevantly as follows.
The mother says that there was a period of two months where the father did not facilitate time for her with the children. This is specified earlier in her affidavit material and has been the subject of oral evidence. The father removed the children from E on 4 October 2008. The mother was able to see the children in the principal’s office at U Public School on Friday 31 October 2008 for 15 to 20 minutes.
About 30 October 2008, the father filed in the Family Court of Australia at Sydney an application seeking property settlement. The Terms of Settlement which had been signed by the parties prior to the father leaving E with the children had been retained by the father’s solicitor. In early November 2008, the father’s solicitor advised the mother’s solicitor that the father had instructed not to lodge the Terms of Settlement pertaining to the parenting orders which had been agreed.
On 12 December 2008, the mother filed an urgent application in the E Local Court seeking interim parenting orders. On 16 December 2008, an agreement was entered into for interim consent orders for the children to spend time with the mother in the Christmas holidays between 19 December and 24 December and again from 9 January to 26 January. All proceedings were then transferred to Sydney to be consolidated with the Family Court proceedings. Orders were made on 5 February 2009, and on 23 February 2009 an interim application was heard by Judicial Registrar Johnston. Those orders were the subject of a review which was heard by Justice Cohen and orders were made on 4 August 2009 for the children to reside with the mother. Again on 5 August 2009 orders were made for the children to be handed over forthwith.
On 1 and 2 December 2008, the mother sent text messages to the father, which were a plea to spend time with the children. The father’s response was, “The children are busy that weekend. They have to go to a birthday party.”
The mother asked the father to be able to spend time with the children between 19 December 2008 and 23 December 2008. The father replied, “I have booked a holiday, I am taking the children away.” The mother asked, “Where are you going and when?” The father responded, “none of your business.”
In response to a letter from the mother’s solicitor dated 3 December 2008, the father replied through his solicitor by letter dated 4 December 2008 in the following terms, “We note that our client at this stage is not willing to enter into any contact arrangements in relation to the children as he is fearful that your client will a) not return the children, b) mistreat the children and/or c) cause the children further stress and grief.” The letter also contained a list of allegations of abusive or inappropriate behaviour alleged to have been exhibited by the mother towards the children. I note that in her oral evidence the mother has admitted that some of the incidents referred to in that letter in fact took place in their precise form as stated in the letter or in a form similar thereto.
On 8 December 2008, the mother received a phone call from the father at 5.41 am. She sets out the text of that conversation in her affidavit at paragraph 170. The conversation is aggressive and abusive and troubling. On that same day in a further conversation with the mother, the father said, “You have lost your children, [mother]….. The children are disgusted…. You disobeyed me that is why I slapped you.”
At 3.35 pm on the afternoon of the 8 December 2008, the mother received a phone call from R. He was crying. He said, “Mummy, how come you have a boyfriend?” That evening the father rang again. He spoke for about two hours. During the conversation he said, “I’m bringing the truck tomorrow. Have all the things on the list ready for me including the jewellery and the Louis Vuitton handbag.” The mother objected to him coming to collect items from the house. The father said, “My solicitor gave you the list of things I want. That is good enough notice.” The mother contacted the E police and sought their assistance.
On 9 December 2008, the father arrived at the family home with the children, his mother, his sister JL and his nephew PL. The police were present. There was a conversation between the police and the father. The police spoke to the mother. The mother moved a number of items on “the list” to the front balcony. The father came into the house. He was escorted by the police. The father’s family started to come into the house. The father started to remove items from the wall and various other places. M became distressed and was screaming. The mother cuddled her in the bedroom. The paternal grandmother came into the bedroom and attempted to remove the child. The police escorted the paternal grandmother off the property and told her not to come back. R was present. The mother said he became hysterical. He was asking her about a male friend. A police officer said to R, “Just settle down, mate.” R responded, “You can’t tell me what to do.” M said to her mother, “Mum, I’d really like to stay with you.” The mother said, “I’d love to have you.” M said, “But I think dad will be upset, I better not.” As the father and the children were leaving the mother heard the father say to M, “If you had stayed with your mother she would have locked you in a cupboard.” The father did not permit the children to spend any time with the mother on that day.
After 9 December 2008, on a number of occasions when the mother spoke to the children, M said to her words to the effect, “Mum, why won’t you sign the document. Dad said once you sign the documents then we will be allowed to come and see you. Mummy, please just sign the documents.”
Following the orders of 16 December 2008, the children spent time with their mother. During the time the children were with their mother the father rang at least a few times a day. Frequently he would speak to the mother rather than to the children. He said things to her like, “‘Hi darling, you didn’t respond to my message this morning. Who have you got there with you?” “You are a liar.” “You are being rude, bloody dog.” “You are a fucking stubborn mole.” “It’s coming up eight weeks now/ what are you doing for sex.” “You have dug a hole deeper than you can get out of/ never reconciliation/ you are an enemy.” These are some of the statements the mother has set out in her affidavit.
During the Christmas school holidays of 2008/2009, M said to the mother, “Mum, I really would like to live with you in [E], perhaps not going back to [E School] this year but next year.” She also said, “Mum, I had a very sad day at school when nobody would talk to me and I had to talk to the girls in the year above me.” R said to his mother, “Mum, I don’t like [U] school. The boys are very bossy to me and call me retarded.” He said, “I don’t have one good friend there.” He said, ‘I get bullied at [U] school. I’m not allowed inside the classrooms but I went up to the classroom all by myself and cried.”
Pursuant to the interim orders on 5 February 2009, the children were to live with the mother from that day after school until Sunday 8 February 2009 and the weekend of 20 February 2009 to 22 February 2009. Pursuant to the orders, the mother went to the school at 3.00 pm on 5 February 2009 to collect the children. She had her brother with her. When she arrived the father was there with a neighbour, Ms G. The father said, “You’re not supposed to be here; you’re supposed to pick them up at [the paternal grandparents’ home] at 4.” The mother said, “The Judicial Registrar ruled that I collect the children this afternoon from school at 3.00pm.” The father said, “‘My car has broken down and [Ms G] will take the children back to [the paternal grandparents’ home] and you are to collect the children at [the paternal grandparents’ home] at 4.” The father would not be persuaded and therefore the mother was unable to take the children. The conversation took place before school was concluded.
When the mother arrived at the paternal grandparents’ property the paternal grandmother said to her, “The children do not want to go.” The mother asked to speak to the children and she was able to speak to M. The mother attempted to speak to R. The paternal grandmother screamed at her saying, “get away from my door. Go back out to the street.” R then came out to where the mother’s car was parked. They spoke for a while. R said, “I don’t want to go because I want to play with my friend tomorrow afternoon at the park.” The mother said, “If that’s what you want to do we can come back to the park tomorrow and you can play with your friend.” The children eventually agreed to go with the mother. As they were leaving the paternal grandmother “clung on to the children by hugging them very tightly for a while before she let them go.”
On 18 February 2009, the mother records at about 8.30 pm the children telephoned her. She said that she had a very good and responsive telephone discussion with each of the children. At the conclusion of the telephone call with the children, the mother told them she would be picking them up from school on the following Friday.
On 20 February 2009, at about 6.45 am the mother records she received a telephone call from the father. He told her that the children did not want to go with her. He said, “The children do not want to go with you. I have five witnesses to prove the children were screaming when you picked them up last time.” The mother replied, “That’s simply not true. We had a great time together.” In another phone call (one of six) the father made between 6.45 am and 9 am the father said to the mother, “You’re a deranged idiot and a moron. You stopped loving me in [E]. You now feel insecure because you have lost me. People can see the good person I am. Good luck. I hope you can find someone else who can give you what you want.”
The father further said, “The children don’t want to see you. Just accept that, [mother]. You need to become a real person and find spiritual growth. You have committed adultery.”
On Wednesday 11 March 2009, the father rang the mother at 6.00 am to speak to her. After the conversation, she asked the father, “Can I speak with the children?” He replied, “Not your time. Read the court order.” This was a reference to the specific times permitted by the mother to speak with the children on the phone by the court order.
On 27 March 2009, the mother said she missed the designated time to telephone the children. She rang the next morning at 9.00 am. The father answered the phone. He said to her, “What day is it, [mother]? What time is it, [mother]? No. You cannot speak to the children.”
The mother sets out details of the time she was to spend with the children during the Easter school holidays in 2009. Pursuant to the orders, she says that she was to have the children from 11.00 am on 11 April 2009 until 11.00 am on 18 April 2009. The father confirmed that in a text message he sent to the mother on 18 March 2009.
On 8 April 2009 during a telephone conversation with R, R said to his mother, “We just saw you last weekend and we want to stay in Sydney because daddy has planned lots of things for us to do like go karts.” He also said, “Mum, you should be here walking with us now. Get back with dad or I won’t come on holidays with you. Mum, get back with dad.”
On 10 April 2009 in a telephone conversation with the children, the children initially told the mother that they wanted to stay in Sydney for the holidays. The mother explained the activities that she had arranged for the children and they ultimately said, “Okay we will see you on Saturday.”
At 7.16 m on 10 April 2009, the mother received a text message from the father as follows, “As both kids just told you they refused to travel this weekend and I cannot encourage them more than I have. We will not be travelling tomorrow.”
On 11 April 2009 at about 8.00 am, the father sent the following further text message, “Save your fuel and time. Kids do not want to go. I tried again this morning to encourage them but they refuse. Sorry.”
The mother sought the assistance of the E police to see if there was anything they could do to assist. She ultimately spoke to police officers from a Sydney police station. She drove to the meeting place on 11 April 2009 to collect the children. She arrived at 11.00 am. She waited until 11.45 am. The father and the children did not arrive. She rang the father to see if he was experiencing difficulties with Easter traffic. He said, “I told you I’m not bringing the children.” She said, “But you went to the police this morning and they told you, you have to.” He replied, “The children said they don’t want to go.”
On the evening of 11 April 2009, the mother spoke to the father. He said to her, “If you did not abandon me then and the children you wouldn’t be there all by yourself. You brought this on yourself. It’s all your fault anyway.”
On 1 May 2009, the mother collected the children to spend the weekend with her. She had requested that the children be permitted to have an additional day with her in E. That request was declined by letter from the father’s solicitor, dated 1 May 2009. On the way from Sydney to E the father telephoned the mother and asked to speak to M. The mother heard the father say, “Did you tell your mum that you did not want to go back to [E] this weekend?” The mother says the question was asked, “repeatedly of [M].”
On 2 May 2009 at about 3.59 pm, the mother received a phone call from the E police who wanted to see the children at the showground. The mother and the children were attending the show. The mother made arrangements to meet the police at the gate. The police spoke to the children in front of the mother and her friends who were with her at the show. It is common ground that the police had received a complaint from the father which provoked them seeking out the children.
That afternoon the mother received a recorded message from the father’s sister, JL. She complained that the mother had prevented the children speaking to the paternal grandmother. She threatened to take some action against the mother if she did not permit the children to speak to the paternal grandmother. The mother then dialled the paternal grandmother’s mobile number and gave the phone to the children. After that conversation had finished the paternal grandmother rang again at 6.16 pm to speak to the children. Between 5.26 pm and 6.20 pm, the mother received nine calls from the father and his sister on her mobile phone. Whilst the mother was at the E show with the children, the father continued to ring her mobile number wanting to speak to the children. The children were occupied in other activities and could not speak with him.
The mother was due to spend time with the children on the long weekend in June 2009. She sought the father’s permission to return the children on Tuesday morning after the long weekend. That was refused by the father and by a letter from the father’s solicitors.
When the mother collected the children on the Friday she said to the father, “I will return the children to school on Tuesday morning.” The father said, “You have to meet me at the school at 9 am on Monday.” The mother said, “[father], there is not school on Monday.” The father said, “That’s the court order.” The mother returned the children to school on Monday morning.
When the mother collected the children on the Friday she said to the father, “I will return the children to school on Tuesday morning.” The father said, “You have to meet me at the school at 9 am on Monday.” The mother said, “[father], there is not school on Monday.” The father said, “That’s the court order.” The mother returned the children to school on Monday morning.
The father confirmed that on 20 February 2009 he said to the mother in a conversation, “The children do not want to go to a stranger’s house.” He confirmed this was at 6.45 am and further that he required the mother to tell him where the children would be going whilst in her care.
Father’s view of the mother
The father’s opinion of the mother and an illustration of the level of his anger towards the mother is evidence from the exchange the mother recorded as follows. Following the orders of 16 December 2008, the children spent time with their mother. During the time the children were with their mother the father rang at least a few times a day. Frequently, he would speak to the mother rather than to the children. He said things to her like, “‘Hi darling, you didn’t respond to my message this morning. Who have you got there with you?” “You are a liar.” “You are being rude, bloody dog.” “You are a fucking stubborn mole.” “It’s coming up eight weeks now/ what are you doing for sex?.” “You have dug a hole deeper than you can get out of/ never reconciliation/ you are an enemy.” These are some of the statements the mother has set out in her affidavit.
On 20 February 2009 at about 6.45 am, the mother records she received a telephone call from the father. He told her that the children did not want to go with her. He said, “The children do not want to go with you. I have five witnesses to prove the children were screaming when you picked them up last time.” The mother replied, “That’s simply not true. We had a great time together.” In another phone call (one of six) the father made between 6.45 am and 9.00 am, the father said to the mother, “You’re a deranged idiot and a moron. You stopped loving me in [D]. You now feel insecure because you have lost me. People can see the good person I am. Good luck. I hope you can find someone else who can give you what you want.”
On the evening of 11 April 2009, the mother spoke to the father. He said to her, “If you did not abandon me then and the children you wouldn’t be there all by yourself. You brought this on yourself. It’s all your fault anyway.”
As an illustration of the extent of the father’s vitriol towards the mother she recites a conversation which occurred on 15 April 2009. The father said to the mother, “You are shit, you are a compulsive, sickening liar. You are shocking. Wait until my children get up in the stand and testify. They are going to throw you in. You are a dog. You are a fucking idiot. You are a fucking pig’s arse. Why do you pretend all the time … when the kids turn 18 they will never want to see you again. Trust me, they never want to see you. You are soon going to lose verbal contact too. You wait. Keep up your attitude, [mother]. Just you wait. Kids don’t want to see you.”
In the last interview between the children and their father in the presence of Dr B, the children reported adverse aspects of their mother’s care. Dr B records that the father “looked very pleased to be listening to the things about what the mother did wrong.”
The father’s attitude towards the mother having limited time with the children extends earlier than 4 October 2008. The following extract from Exhibit ‘W4’ (COPS record) suggests that. The final entry is dated 22 September 2008. On that occasion, the father and the children attended at the police station at E. The father complained there was a history of domestic violence between the mother and him. The father attended at the police station to report that he had a verbal argument with his wife that day over custody of the children. During this argument, the mother said to the father, “Well, go fuck your mother then.” The father found this comment extremely offensive and attended the station to report the argument and to obtain an order to stop the mother from seeing the children.
The father’s concern about who comes and goes from the mother’s home was still something he sought to find out from the children when he had supervised time with the children in October 2009. One of the reports from the supervisor is as follows: “In relation to the visit on 18 October 2009 the matters of particular note are as follows: The father brought gifts of lollies and biscuits for the children, which they had at the end of the visit. It was noted that the father was questioning the children about who comes to the house and how often. Daughter willingly and freely talked about home life. It is further noted Dad spent a lot of time with daughter asking questions about home and she was giving answers, e.g. who comes to the house and how often.”
The father’s concern to ascertain this information suggests to me he has still not come to grips with the separation. This is contrary to his stated position of being fully accepting of the separation.
There were further reports of supervised contact sessions involving the children and their father as part of Exhibit ‘W6.’ These included that the father had been whispering to the children. He had also spoken to the children about “these people watching us all the time to make sure I don’t harm you.” He was also not following requests of the supervisor to conclude the session. The reports illustrate a level of disrespect which the father obviously had for the supervisors and the fact that he needed supervision. The questioning of the children about the people who visit the mother occurred on more than one visit.
Dr H expressed concern about the father’s ability to support the children having an ongoing relationship with the mother. Under questioning from the father’s solicitor, Dr H was asked about that part of the third paragraph of page five of his report, where he said, “This raised concerns with regard to his ability to provide consistent support for the mother’s parenting of the children.” He was asked whether that concern arose from his observations of the father or from documents provided for the report. He said, “From my observations together with the report of Dr [B]. It was primarily based on my own assessment. The father was very critical of the mother’s behaviour toward both, he and the children.”
I am concerned about the influence of the paternal grandmother on the children as a result, inter alia, of the oral evidence she gave as follows: She agreed that while waiting on the second floor of the Lionel Bowen Building on 5 August 2009 she said to the mother, in the earshot of the Independent Children’s Lawyer, “Fucking bitch.” She was asked whether she said to the mother, “You are the one who left them behind” on that occasion. She said she did not say it at that time, but she has told her that at another time. She confirmed she said to the mother at that time, “Now you liked them, now you don’t like them. You don’t want the kids from the beginning, now you do want them.”
Further the paternal grandmother’s evidence as follows adds to my concern: The paternal grandmother was asked whether that was her view that the mother does not want her children. She replied, “That’s what I think.” She was asked whether she believed the mother had abandoned the children. She replied, “Yes, she left them for three weeks.” The paternal grandmother was asked whether she would accompany the father if he visited the children in E. She said, “No, because she threw me out of the house. She didn’t give me a glass of water.” She confirmed in answer to a question I asked that she would not visit the children in E if they remained living with their mother.
In relation to the father’s current emotional state, Dr B told me that it was his perspective that the father still felt emotionally connected to the mother and in perhaps an immature way was wishing and hoping that the separation could be undone.
I asked Dr B what the chances were of the father being able to change his position in relation to his interaction with the children while he still remains emotionally connected to the mother and has an underlying desire for reconciliation. Dr B said it would be difficult. He considered that he would need an experienced psychologist to help him.
Section 60CC(4) & section 60CC(4A)
The evidence in this case establishes to my satisfaction that the father has failed to fulfil his responsibility as a parent in that he has failed to ensure the children had ample opportunity to maintain physical and verbal contact with their mother to enable them to have a meaningful relationship with her.
I am satisfied that the father has given the mother no opportunity to participate in decision making for the children post 4 October 2008 when he moved the children to Sydney.
I am satisfied that the father embarked on a course of action post 4 October 2008 which put at risk the good and close relationship which the children had hitherto had with their mother.
In reaching my decision about the matters required to be considered under s 60CC(4) of the Family Law Act 1975 (Cth), I have had regard to events which have occurred and the circumstances that have existed since the separation of the parties and as recited in these reasons.
Section 61DA
Section 61DA requires me to apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility, unless other sub-sections of s 61DA render the presumption inapplicable or alternatively I determine that it is not in the children’s best interests for their parents to have equal shared parental responsibility.
The reason the presumption would not apply is explained in s 61DA(2). One of the reasons is the occurrence of family violence. In this case, there are two separate occasions upon which I am satisfied the father perpetrated violence upon the wife.
The Independent Children's Lawyer submitted that even if there was not a ground under s 61DA(2) to avoid having to consider making an order for equal shared parental responsibility, this is a case where such an order should not be made. I have set out the submissions of the Independent Children's Lawyer on this aspect of the case and I adopt those submissions.
Section 65DAA
Section 65DAA has application only where an order for equal shared parental responsibility is to be made. That is not the case here. The Court is nonetheless at large to make such orders for the children to live with the parents or spend time with the parents in a manner which best caters to the best interests of the children. I will set out the orders I propose to make shortly hereafter.
Conclusion
There is one issue in this case which overrides all others by a very significant margin in terms of its impact upon the welfare of the children. That issue is the capacity of the parents to provide for the emotional needs of the children in such a way that it enables the children to have a meaningful relationship with each of their parents. The cumulative effect of all of the evidence touching on this issue is overwhelmingly against the father. The opinion of the court expert Dr B is that these children came perilously close to losing their relationship with their mother. The evidence also convinces me that the father has no insight into what he did or how he did it. He still continued in his oral evidence to voice opinions and views which he had clearly held at the date of separation from the mother. Those views and opinions, particularly about the mother, create a toxic emotional environment into which to place or expose the children. This is an extreme case and requires an extreme measure in terms of Court orders.
One of the very complex ingredients in the case is the nature of the relationship between the children and their father. They worship the ground he walks on. They clearly wish to spend time with him. If asked where they would like to live, I am satisfied they would immediately and unhesitatingly say “with my Dad.”
Thus the dilemma is how to balance the children’s need to see and have a relationship with their father without enabling him to poison their relationship with their mother. This dilemma is heightened by the evidence of the interaction between the father and the children even within the confines of closely supervised contact.
One of the confronting aspects of the case is that the children’s concern for the welfare of their father appears to be stronger than his concern for their welfare. Anything that might cause him inconvenience or discomfort is used as the reason not to participate in the lives of the children in a manner one might expect from a dedicated and loving father. Two examples of that are firstly; the father not being prepared to travel to the E area more than once a month because he does not cope well with Friday traffic out of Sydney; and secondly; that he is not prepared to travel to E for the purpose of spending time there with the children including participating in their school and extra‑curricular activities because he would feel a degree of personal discomfort arising from the fact that his marriage has broken down.
There was evidence given by Dr B supporting the concept of requiring the father to attend upon a qualified psychologist with expertise in providing therapy to parents and children arising out of marital breakdown even though the father does not consider he needs any such therapy. Dr H was of the view that it was unlikely the father would benefit from imposed therapy because the father does not see the need for same nor does he confess any problem within himself which might require attention in that way. The suggestion was that the counselling would be likely to be entirely counter productive.
At the end of the day I have concluded that it is in the children’s best interests to require the father to attend upon such a psychologist. Something must be done to try and prevent the inevitable conclusion for these children that if their father does not change they are destined to lose their relationship with one of their parents.
I found the father’s self-righteous attitude quite confronting. I was also concerned by his asserting that he needed to be and was honest with the children and so that was the justification for telling the children that their mother was responsible for the breakdown of the marriage, that she had lied to them at the point of separation, further, that she had deserted the family. The father did acknowledge that he had a part to play in the breakdown of the parties’ relationship however his professed honesty with the children did not extend to telling them that he was also to blame for their mother no longer wishing to be married to him.
I formed the opinion that the father’s ego did not allow him to reflect in any way which might be truly critical of his own role in the circumstances in which the children found themselves. This was in the face of the father agreeing candidly that he had assaulted the mother on at least two occasions during the marriage and that his alcohol use had created at least one event which could be acknowledged as embarrassing to the mother.
The starting point for the conclusion must include a determination that the children live with their mother. The evidence for such a conclusion is overwhelming. To order otherwise would be to condemn the children to lose their relationship with their mother.
Clearly the children need a relationship with their father. The question to be determined is what regime of time for them to spend with their father may not impose greater harm than good upon them.
Determination of The Issues
Has the father by his actions, words, and behaviour set the children on a pathway of being alienated from their mother?
As seen earlier the answer to this issue is a resounding yes.
Will each parties’ parental capacity, attitudes to parenting and the ability to create an emotional environment for the children allow the children to have a good and meaningful relationship with the other parent?
The answer to this is that the father could not be expected to be able to create an environment for the children, should they live with him, which would allow them to have a meaningful relationship with their mother. The mother has been assessed as capable of creating that environment for the children.
Did the mother attempt to smother R in about March 2008 in the presence of the paternal Grandmother? Has she harmed R or attempted to do so?
The answer to these questions is no.
If the children reside with the mother what time and in what circumstances should they spend time with their father?
To see the answer to this question see what is determined under the heading “The Orders.”
The Orders
The Independent Children's Lawyer and the mother addressed the specific orders which were pressed to a greater extent than the father. As stated earlier, the mother consented to most of the orders being made which were proposed by the Independent Children's Lawyer.
Both the Independent Children's Lawyer and the mother press for an order for sole parental responsibility to the mother. I accept that should be the case and I accept the force of the Independent Children's Lawyer’s submissions. I consider that the non application of s 61DA(1) to this case because of the reasons stated would not theoretically prevent the court making an order for equal shared parental responsibility. However, I could not determine in this matter that the best interests of the children would dictate that such an order should not be made. I have no confidence that the father could or would participate in a proper manner in any discussions with the mother about important issues for the children. I have no confidence that he presently has the capacity to prioritise the children’s needs ahead of his own and therefore the wrong approach would be the foundation of any contribution the father could make to such a discussion.
I accept that the mother can be relied upon to inform the father about important decisions she has made for the children. I will provide for her to consult with the father on long term welfare issues for the children in the event of pre‑conditions being met by the father.
In his oral evidence Dr B said that before the children spend time with their father in Sydney he should be required (pre-condition) to have commenced to see a consultant psychologist to address the issues of grief and loss and his impact on the children. Until that time, the father should have unsupervised time with the children in the country somewhere or in the Blue Mountains. However, having seen Exhibit ‘H7’, Dr B said that document would not lead him to believe that the father should move immediately to unsupervised time with the children. I conclude that the father should provide to the mother and the Independent Children's Lawyer, before he moves away from unsupervised time with the children, the name of the therapist he has engaged, confirmation that he has commenced therapy with that professional, confirmation that the therapist has received copies of the reports of Dr B, Dr H and a copy of these Reasons and the orders made.
I accept that it is desirable for the children and the father to move from the supervised time to unsupervised time as soon as possible. However, it will be entirely counter productive to the children’s best interests to move to that circumstance if the father has no understanding of how he came to be in this position in the first place. In my view, it would be quite abusive to the children to provide for an immediate re-instatement of unsupervised time for the children with their father. It would, on the balance of probabilities, quickly move to a position where the children’s time with the father could be suspended altogether for a lengthy period of time.
The Independent Children's Lawyer submits that the father should be required to attend upon a therapist. That therapy needs to address the father’s distress arising from the breakdown of the marriage. It also needs to address the father’s understanding of the harm he perpetrated upon the children through his actions and words which started them on the path of being alienated from their mother. The involvement of the father with a therapist of his choice (properly qualified and with appropriate experience) really needs to be a precondition to any extension of the time the children spend with their father. To provide otherwise is likely to perpetuate the problems the children have faced following the separation and potentially lead to the children not being able to see their father otherwise than in a supervised environment.
The orders should and will provide for an increase in the time and circumstances in which the children might spend time with their father both during school term and during school holiday time as soon as the father’s therapist confirms in writing to the Independent Children's Lawyer and the mother that the father is undertaking a course of therapy; has shown some real understanding of why Dr B was concerned the father had started the children on a pathway to being alienated from their mother and; that he has undertaken to the therapist to desist from the behaviours that may have contributed to the children’s circumstances.
As stated earlier, Greek Easter is an important festival for the father and his family. The children should have the opportunity to participate with the father in activities associated with that event once the precondition for moving to extended time with the father has been met.
Whenever the mother is required to make any decision in relation to the long term welfare of the children including decisions relating to changing school, authorising a medical procedure in relation to a child, approving a holiday for the child outside of Australia and consenting to the child participating in a potentially hazardous event, she is to advise the father of her proposal in relation to that particular matter and invite his input in relation to same. The correspondence between the parents in relation to those matters is to be by email. The mother is to take into account the father’s response before making a decision.
The mother is to instruct the children’s school or schools from time to time to provide to the father any details sought by him in relation to the children’s progress at school and provide to the father copies of the children’s school reports.
The mother is to advise the father of the name of the medical practitioner or medical practice to which she will take the children should they require medical attention and further, she will instruct the medical practitioner who attends upon the child or children and/or the practice, that they are to provide any information sought by the father in relation to the health of either of the children.
Each party is to promptly notify the other in the event of any accident or significant illness affecting the children and keep the other party advised of all relevant particulars regarding the whereabouts of the children at that time and the name of any person treating or attending the children in relation to such accident or illness.
In the event of either parent taking the children outside of the Sydney Regional area or the E regional area for the purposes of a holiday, they are to notify the other parent of their proposal to do so and where the children will be housed during that holiday.
The mother should forthwith arrange for the child M to attend upon “K Organisation” for the purposes of undergoing the necessary therapy to be determined by the psychologist at “K Organisation” and the mother should ensure R continues with his therapy at “K Organisation.”
The mother should provide to any therapist treating either child a copy of the reports of Dr B, the report of Dr H together with a copy of these orders and the reasons for same.
Each parent should ensure the other parent at all times has a contact telephone number so that the children and the other parent may make contact when appropriate.
The mother should have telephone contact with the children when they are on school holiday periods with the father.
Each of the parents should facilitate reasonable telephone contact between the children and the other parent at any time the children may request same.
Neither parent should be permitted to physically chastise either child.
The parties should be restrained from denigrating the other or members of the other party’s family in the presence or hearing of the children. The parents should be restrained from permitting another person to denigrate the other parent or a member of the other parent’s family in the presence or hearing of the children.
The mother should be restrained from swearing at or using profane language when addressing the children or either of them.
The evidence establishes to my satisfaction that the mother has on many occasions sworn at the children. Dr B said he could not condone that approach. He recommended that the mother seek assistance from a trained psychologist to contain her anger and or frustration with the children which may emerge as part of her parenting.
Based on the oral evidence of Dr B, I accept that swearing at the children can have some serious impacts on the children and I propose to restrain the mother from addressing the children in that way and require her to seek the type of assistance recommended by Dr B.
The mother should forthwith attend upon a psychologist of her choice to assist her to gain skills to contain her anger and/or frustration with the children which might emerge from time to time and to assist her in refraining from swearing at the children or using profane language directed to them.
The appointment of the Independent Children’s Lawyer needs to be extended for a period of 12 months from the date hereof. The Independent Children's Lawyer has consented to such an order being made.
The Independent Children’s Lawyer is to arrange for either a lawyer at the Legal Aid Office in E, or the children’s counsellor or some other appropriate person to explain to the children the orders of the Court and in language they may understand, to the extent that it is possible, the Reasons for the Court determining that they should live with their mother. The orders of the Court and these reasons may be provided to such a person for the purpose of this order.
I certify that the preceding seven hundred and seven (707) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.
Associate:
Date: 23.12.09
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Procedural Fairness
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