VINE & BUCHANAN
[2015] FCCA 1333
•9 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VINE & BUCHANAN | [2015] FCCA 1333 |
| Catchwords: FAMILY LAW – Bitter parenting dispute about 15 year old boy – child expressing anxiety about seeing father and reluctance to do so – whether child’s views resulting from alienation by the mother – father’s lack of insight about his behaviour to the child – family report recommending sole parental responsibility to the mother and time with the father at the child’s initiative – orders made as recommended in family report. |
| Legislation: Family Law Act 1975, ss.4AB, 60CC |
| Goode v Goode [2006] FamCA 1346 |
| Applicant: | MS VINE |
| Respondent: | MR BUCHANAN |
| File Number: | ADC 1303 of 2007 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 30 March 2015 |
| Date of Last Submission: | 30 March 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 9 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Potter |
| Solicitors for the Applicant: | Lander & Rogers |
| The Respondent: | In person |
ORDERS
That the Mother have sole parental responsibility for the child X (“X”) born (omitted) 2000.
That X live with the Mother.
That X spend time and communicate with the Father at X’s discretion and initiation.
That the Father and his servants and agents be restrained from attending (omitted) School or any other school at which X is enrolled save that the Father be at liberty to attend up to two school functions or events in 2015 for Y, (“Y”) born (omitted) 1997, provided:
(4.1)The school function or event is one to which parents are invited to attend;
(4.2)X will not be required to attend at or be participating in the function or event.
(4.3)X not be on campus at the time of the school function or event; and
(4.4)The Father give the Mother’s solicitors not less than 28 days’ written notice of his intention to attend the school function or event.
IT IS NOTED that publication of this judgment under the pseudonym Vine & Buchanan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT MELBOURNE |
ADC 1303 of 2007
| MS VINE |
Applicant
And
| MR BUCHANAN |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a strenuously contested dispute between two parents who detest one another about the best interests of a child, X, born (omitted) 2000. The mother seeks an order for sole parental responsibility for the child, that he live with her and spend time and communicate with the father at his discretion and initiation. The mother further seeks that the father and his servants and agents be restrained from attending the child’s school, (omitted) School.
The father’s response filed on 29 January 2015 seeks that he have sole parental responsibility, that X, and his elder brother Y, born (omitted) 1997 (“Y”) live at (omitted) School, that the applicant and her family have no contact with either X or Y until they are 21 years old. He seeks that the applicant resume payment for the children’s education, that the mother be prevented from having any contact with the children’s school or from attending it, that the mother be declared a vexatious litigant and that the mother be imprisoned for not less than seven years. He further seeks that this Court direct the Magistrates’ Court of Victoria to “remove AVO case number D13056933 from the record”. He further seeks orders in relation to unpaid airfares and other costs associated with the children.
Finally, he seeks that the applicant “pay the Respondent from her full and final settlement the costs of caring for the children adjusted for inflation based on her Form 13 Statement until they finish their education, together with the costs of the proceeding”.
I have indicated the orders sought by the father, which in part at least are clearly somewhat florid, as they give a flavour of the father’s case.
For the reasons that follow I am going to make the orders sought by the mother.
Agreed matters of background
The mother was born on (omitted) 1964 and the father on (omitted) 1962. They married on (omitted) 1996 and separated on 3 October 2005 (see Child Support Agreement Annexure C to the mother’s affidavit filed 29 July 2009).
As already indicated, their eldest son, Y, was born on (omitted) 1997 and X was born on (omitted) 2000.
Following divorce proceedings in 2007, the parties entered into consent orders in the Family Court at Adelaide on 23 June 2008 in relation to the children, by which the mother was permitted to relocate to Melbourne with the children who were to live with her and spend time with the father, mainly in school holidays. Orders were entered into by consent on 24 June 2008 resolving property issues between the parties. The issue of child support was also resolved at that time and the Agreement, as already indicated, is Annexure C to the mother’s affidavit.
On 29 July 2009, the mother filed an application effectively seeking that the children attend (omitted) School rather than (omitted) School (as previously agreed) and sought arrears of child support. The question of the payment of the children’s school fees, and indeed which school they might attend, has been vividly contested between the parties from time to time.
It is also apparent from the material in the parties’ affidavits that the consent orders made in 2008 followed an extensive process of court hearings in South Australia. The parties have very different understandings of what may have been alleged in that proceeding, but it is clear that the father believes that he was branded a paedophile by the actions of the mother and her legal representatives. It is equally clear that the mother denies that this was the case.
The 2009-2010 tranche of litigation was brought to an end by orders made by consent before Riley FM (as her Honour then was) on 30 March 2010. The children were to attend (omitted) School and the father was ordered to pay one-half of their tuition fees, excluding any boarding and day boarding costs. Both parties were expressly restrained, inter alia, from abusing, insulting, threatening, vilifying, harassing or intimidating the other.
There the matters stood, so to speak, until 7 May 2013 when the father lodged a contravention application. The application asserted a number of contraventions of the then extant orders. That matter appears to have become before Judge Walker on 2 July 2013, on which date her Honour granted leave to the father to file an amended application and an amended affidavit, ordered the father to pay the mother’s costs of $3,000 and noted that:
“1. The court was advised that each of the parties will cooperate in consulting with Mr V, family therapist, to assist in relation to the child, X, resuming his relationship with the father and spending time with him as soon as practicable.”
On 4 October 2013, the mother filed the initiating application which has given rise to this present proceeding. It will be necessary to return to the affidavit filed in support of the application, but for present purposes it is sufficient to note that the mother was seeking sole parental responsibility for both children and ancillary orders of the sort set out in her amended initiating application filed 17 March 2015, which is now the relevant document before the Court. On 19 June 2014 the father’s contravention application filed 7 May 2013, which so far as the file reveals had not been pressed in the interim, was dismissed.
Interim orders were made as sought by the mother, essentially consistent with her initiating application. The matter was set down for trial on 30 March 2015.
The father, who had been legally represented through almost all of the proceedings to that point, was self-represented at trial.
The affidavit evidence
Although the parties have filed substantial affidavit material (which I have of course had regard to), I do not propose to traverse this in great detail. There are features of the material to which it is necessary to pay regard, but in the light of the evidence given orally and more particularly the conclusions of the family report writer it will, in my view, be more appropriate to concentrate upon those matters.
The mother’s first affidavit filed 4 October 2013 details the parties and refers to the orders made in 2008. The mother also deposed to the proceedings that culminated in orders on 30 March 2010. The mother went on to detail what she asserted were difficulties in the relationship between X and his father, and the fact that (paragraph 8):
“Whilst the relationship between the father and Y is satisfactory and Y is prepared to continue to see his father, the relationship between the father and X has deteriorated to a point where X now refuses to go.”
The mother deposed that the relationship started to deteriorate following time that X spent with the father in Easter 2012. X complained that the father had called him a “cunt dobber” and that from then on, there had been increasing difficulty for the mother getting X to spend time with his father. According to the mother, the father attended (omitted) School on or about 1 August 2013 and insisted on speaking to X. According to the mother’s affidavit, (albeit that this evidence was clearly hearsay), following this, X was traumatised and spent a considerable amount of time crying.
Following an email from the mother to the father suggesting that X attend the school counsellor he responded with Annexure V-4, an email dated 8 August 2013. This commences:
“Dear Tragic and Pathetic
Firstly X did not tell you that I referred to you as “The Housekeeper” or that he was your “Puppet”, because it did not happen, even though both are true.”
The email also asserts:
“…you are scum, your family is scum. You will stoop to no level below.”
The tenor of the father’s email is offensive and aggressive and iterates what is clearly an ongoing perception on the father’s part that the mother has made false allegations against him, either in or in connection with earlier court proceedings, together with related assertions that the mother regularly breaches court orders without appropriate sanction.
The affidavit also annexes an email dated 16 September 2013 ostensibly from X to his father, which reads (Annexure V-6):
“Dear Mr Buchanan)
I don’t feel comfortable about coming to Sydney these holidays. Maybe we could see Mr V together to help sort all this out. Love X.”
The father did not reply and on 17 September, X emailed his mother (Annexure V-7) relevantly stating:
“I think he will come to school today … Cause I got no reply.”
I note that the subject of the email is described as “Mr Buchanan”. On that day, 17 September 2013, the father attended (omitted) School. There is vivid dispute between the parties as to quite what happened and why, but it seems clear beyond doubt that the father took X to Tullamarine Airport where he was confronted by the mother and a member of her family. Following police intervention, about which there is vivid disagreement, the child, X, left with his mother. The mother’s affidavit sets out her version of the events.
The mother also annexed as Annexure V-9, text messages between the father and herself following the incident on 17 September 2013. The tenor of these messages, which the father has described on more than one occasion, including his observations in court, as “fruity” include the following:
“…you are at the lowest destination you are a child abuser and a deadbeat mom you will be getting what you deserve … You are despised by everyone nobody other than (omitted) and (omitted) support you anymore … even your children hate you you are a disgrace and an embarrassment. Karma is on its way to you and your family do no more harm … Everyone knows about you even your family are scum … I will call my son any time I like and keep access to my son by traumarising (sic) him yelling child abduction and kidnapping preventing us from travelling to our holiday … you have to be joking you and that filth half relative stopped me from my legitimate court-ordered access to my … you are famous a legend about the most reviled woman in australia … Do no more harm to my child ne (sic) assured your commupance (sic) is on the way karma reigns … every body in three states knows every body at (omitted) School knows your children know your laweyers (sic) know you are a disgrace and an embarrassment … Knows what. you are a child abuser … expect you to be sentenced to. 20+ years in prison no body in this society thinks you belong anywhere else keep away from my children…”
As earlier indicated, the father filed his response on 29 January 2015. The father, by this stage, had recently become self-represented. His affidavit filed contemporaneously runs to 87 pages of text and in excess of 400 pages of annexures. I do not propose to traverse it in detail. There are a number of things to note. The first paragraph reads:
“1. I am The Respondent in ADC 1303/2007. I am also the Father named in ADC1303/2007 of Two Children known as the said children born in 1997, and 2000, subject to File No. 70 of 2006.”
The affidavit went on to assert at paragraphs 3 and 4:
“3. The Respondent has not had any meaningful contact with the said child born 2000 subject to those court orders for THREE YEARS.
4. The said child born 2000 has been denied his right to see his father, in contempt of the court, and contravention of the orders. The child born 2000 has been prevented from spending any time with his father by the Applicant. The Respondent has never been given a reason, or an excuse why the applicant has contravened the orders, so as to prevent his contact with the said child born 2000.”
The affidavit then traverses the proceedings before Judge Walker.
It then continues to traverse in great detail the matters raised by the mother’s affidavit. I do not propose to paraphrase the material set out. It amounts to a litany of complaint about the mother’s conduct in the previous proceedings in the Family Court and in domestic violence proceedings between the parties. Some of the matters asserted appear florid, such as at paragraph 34 where the father stated:
“34. Typical of the ‘evidence’ that the Respondents children hated him was the claim by a ‘(omitted),Witch’ who saw words written in invisible ink in the children’s bedroom saying “I hate Mr Buchanan”.”
The affidavit is prolix and replete with matters to which objection could properly be taken. Counsel for the mother did indeed take such objection, but given the applicant’s self-representation I ruled that it was preferable to allow Mr Buchanan simply to rely upon the affidavit despite the immediately apparent difficulties with it.
Perhaps the gravamen of the father’s position about X could be indicated by paragraph 54, where the affidavit asserts:
“54. The Applicants relationship with the said child born 2000,
is based on her abuse of him. She has compromised his integrity, terrorizing him, making him fearful and dependant. She has been assisted in this abuse by a series of charlatan psychologists which she has engaged in contravention of Order 13 by Justice Strickland, to drug a child.”
It should be noted that although much of the material in the affidavit consists of inadmissible comment and argument, the affidavit does set out amidst this other material the father’s version of the relevant events. In particular for these purposes it sets out his versions of the events in August and September 2013. The purport of what is put is that any difficulties that emerged on these occasions were wholly the result of the obstructive and inappropriate conduct of the mother. I note that in paragraph 134, the father expressed doubt that the emails contained in Annexure V-6 and V-7 to the mother’s affidavit were written by X: “the Author of those Emails was either the groomed housemaster referred to in Para. 133 above or the Applicant herself”.
The affidavit concludes at paragraphs 175 to 177:
“175.The Respondent asks that the court to declare the Applicant a vexatious litigant, so as to give the respondent some peace after Ten years of dealing with her manufactured, and false claims.
176. The Respondent asks the court to Order that the children not be bound to have any contact with the Applicants family, who have at all times been aware of the orders and have at all times assisted the applicant in her contraventions.
177. I otherwise ask the court respectfully, to punish the Applicant for failing to comply with the parenting orders, and/or contempt of court, and or child abuse, and or perjury, and or perverting the course of justice, and or abuse of process.”
As indicated, the affidavit appends an enormous amount of material passing between the parties. If nothing else, it goes to show the exceptionally strained nature of the communications between them.
The mother’s affidavit filed 17 March 2015
This affidavit reprises earlier material. I note that on 11 October 2013 the mother applied for an intervention order against the father, which was made finally, it would appear, on 1 April 2014. It is to expire when X attains the age of 18 years on (omitted) 2018 (See annexure V-3).
The affidavit also annexes V-4, a letter from Dr I dated 31 March 2014. Dr I had consulted about X since October 2013 and had assessed him as suffering from a major depressive illness which had, however, improved through psychotherapy, medication “and the decision that he should not be forced to see his father”. Dr I concluded “X’s response to the prospect of having to see his father remains one of distress. It is in this context that I believe that X’s mental state would be put at risk if he were forced to see his father”. Dr I noted that he had had one telephone conversation with the father on 3 December 2013.
The mother’s affidavit set out observations about X’s progress, said to have significantly improved as a result of not seeing his father, and complained, inter alia, of the failure of the father not to pay his share of school fees.
I note that the affidavit also contains what are described as “Further and Better Particulars of my Application for an Intervention Order annexed hereto and marked with the letters V-1” (paragraph 6(b)). Inter alia, these include an email from the father to the mother dated
11 September 2013 which relevantly for these purposes in my view asserts:
“I reaffirm previous advice you are SCUM, your whole family is SCUM, all your supporters are SCUM your lawyers are SCUM, you are a danger to all children and particular the vulnerable, you are a disgrace to yourself and an embarrassment to all who know you particularly your own childre (sic). It is you that needs help.
KEEP AWAY FROM MY CHILDREN YOU PIECE OF FILTH.”
The father’s further affidavit filed 25 March 2015
This affidavit runs to some 29 pages of text. It is inappropriate to traverse it in any detail. It reiterates the father’s version of events and in particular the incident of September 2013 at Tullamarine Airport, which was clearly extremely upsetting for all involved. Some aspects of the affidavit bear remark. In paragraph 8, the father deposed:
“The Two children the result of a marriage between the Applicant and the Respondent formerly Known as Y and X, they are known only individually, and not “collectively”. Further they are now known only as the Said Child born 1997 subject to FCA 70/2006, and the Said Child born 2000 subject to FCA 70/2006, at the Applicants insistence from the commencement of these proceedings by way of her Exparte Application in 2006. I bring the courts attention to the identification of the former children, as subjects of the court so as to avoid any confusion with the Applicants description of the now subjects of the Court.”
I note that in paragraph 12, the father took issue with annexure V-1 to the mother’s affidavit, being the further and better particulars to the intervention order. He asserts in paragraph 12:
“I stand by my Aide Memoir which is attached to my original Affidavit as an accurate record of all communications with the Applicant. No amount of selective editing can disguise the applicants contraventions, contempt, abuse and violence. All of the extracts from Annexure 4 that are DV1 “further and better particulars” are heavily redacted documents from Annexure 4 of the Respondents affidavit, so redacted that they are not just meaningless, but misleading and deceitful. The Respondents Aide Memoir, demonstrates that the Applicant was in constant breach of the court orders, and did everything, including all things unlawful to prevent and frustrate the possibility of the Respondent enjoying a meaningful relationship with his children that the court intended, that the Applicant consented to, and that Justice Strickland ordered.”
I should interpolate and say that I take the reference to “Annexure 4” to be an Annexure 4 to the father’s 400 page long document. While it is certainly the case that that enormous tranche of material is not by any means uniformly of the character described in the applicant’s annexure V-1, the fact is that the documents in V-1 speak for themselves.
The report of Dr N
Dr N’s report, which is annexed to her affidavit sworn 26 March 2015 is, for reasons to which I shall come, important. On the first page of the report (page 5 of 38 of the affidavit), Dr N recorded:
“The present matter ostensibly concerns X’s relationship with his father. I understand that X has not spent any significant time with his father for the last two years (i.e. since Easter 2012). I also understand that Mr Buchanan has attended (omitted) School and tried to collect X on two occasions in late 2013 (August 2013 and 17 September 2013) and that on the last occasion, Mr Buchanan took X with him to the airport to board a plane to Sydney but was stopped by the Federal Police. I understand that during the discussions in the boarding lounge at the airport, X expressed a preference to stay with his mother and Mr Buchanan allowed this to occur.”
Dr N went on to characterise the parties’ positions at page 6 of 38 as:
“Currently, Ms Vine is seeking sole parental responsibility for X. She argues that Mr Buchanan has a very difficult personality and that X has become estranged from his father because of his behaviour. She argued that both children have a long history of anxiety around seeing their father, and that since their move to Victoria, X has had a number of difficult interactions with him and not enjoyed his visits. She believes that X has always been anxious about spending time with this father and that this came to a head at Easter 2012 when Mr Buchanan allegedly aggressively confronted X.
Although Mr Buchanan’s presentation (discussed later in the report) made it difficult to discern, I understood that Mr Buchanan believes that Ms Vine has long discouraged his relationship with the children, that she is resistant to letting him see X, and has manipulated X into making statements that he does not want to see his father. I understood that Mr Buchanan believes that Ms Vine is manipulative, makes false allegations against him, and then seeks to gather support from professionals such as psychologists and psychiatrists to support her false premises.”
It is clear from the report that Dr N had not been told about Y’s existence until the previous day and, at Mr Buchanan’s particular insistence, spoke to Y following which there was a joint observation of X with his father and brother (at page 6 of 38).
“This was a very fraught and tense session, in which Mr Buchanan and Y fired questions and made derogatory remarks towards X until I had to intervene and try to paraphrase some of
Mr Buchanan’s concerns to X in a more sensitive and child friendly way. This was necessary to protect X and also assist Mr Buchanan to relax and perhaps get his message to his youngest son. However, Mr Buchanan and Y’s behaviour towards X continued, and as their behaviour could only be termed abusive, I ended the session.”
It is inappropriate to paraphrase the entirety of the report which speaks for itself. Dr N noted the almost complete absence of agreed facts between the parents (page 10 of 38). It is clear that each parent sees the other in the worst possible light from what they said to Dr N.
I note that Dr N characterised Ms Vine (at page 13 of 38) as:
“Ms Vine conveyed an exasperated air. She reported that she had explained her problems with Mr Buchanan many times and was tired and frustrated.”
Dr N described Mr Buchanan (at page16 of 38) as a man with:
“…an intense manner and did not relax very much over the assessment. As mentioned above, he tended to want to direct the assessment and could not be persuaded to either listen to explanations or take any direction. Over the time I assessed him, I gained the impression that some of his intensity was fuelled by anxiety. Towards the end he began to show some relative comfort, but the astounding lack of insight that he showed in the behavioural assessment with his two sons prevailed.
…A number of times, Mr Buchanan got up from his chair and walked around and stood over me as he spoke intensely. He often stared at me for long minutes before answering questions. His behaviour was odd.
…Over the interview it became very clear that Mr Buchanan has wholly negative beliefs about Ms Vine and took a superior stance over her. He expressed the belief that she does not work in any acceptable capacity and that her (omitted) business is comprised of favours from friends. Mr Buchanan expressed the opinion that Ms Vine should not see either child (“she should never see my children again ever. She has done enough. She shouldn’t be anywhere near the children”).”
Dr N noted a disconcerting and concerning presentation on the part of Y. Dr N said (at page 18 of 38):
“He was overtly very confident, even overly confident, but he also impressed as extremely emotionally brittle. With no disrespect intended, he spoke in a smug and, even arrogant way, but gave superficial responses and had a robot-like demeanour. His behaviour with his younger brother during the observations of them with their father was unsympathetic and bullying.”
It is clear from what Y said to Dr N that Y is entirely aligned with his father and could find nothing positive to say about his mother at all.
The assessment of X is at pages 19-21 of 38. It is clear that X showed extreme anxiety to Dr N about the approach and behavioural observation with his father, and he reported his father as saying to him on occasions “why haven’t you been coming to see me, you cunt”, “you had better be on that plane, you cunt” and that X was deeply distressed when his father took him to Tullamarine as he felt he was kidnapped (page 20 of 38).
The conclusions of Dr N following psychometric testing are summarised at page 25 of 38 as follows:
“Assessment of Ms Vine was a difficult task. She spoke in very plain and spare terms without any sense of exaggeration. The clearest impression I had of her was that she is very tired of dealing with Mr Buchanan. She seemed somewhat philosophical about her situation and her stated concerns for the children, as if, she considered herself to be ineffectual in dealing with things and took a fatalistic stance.
Mr Buchanan is clearly a very intelligent man, and he appears eccentric, however it is my opinion that he is likely to have some long-term personality issues. His current presentation suggested a personality disorder under extreme stress where his difficulties with insight might be compounded within the context of his conflicts with Ms Vine. Mr Buchanan’s results on the PAI did not seem very consistent with his rather flagrant presentation, but there were also indicative of underlying personality problems. Testing identified some possible Narcissistic and/or Antisocial features. I noted that across the assessment, when anxious, Mr Buchanan’s behaviour seemed to intensify…
My assessment of Y was concerning. He was very aligned with his father and spoke in a superficial and tightly controlled way. He was distrustful of his mother and believes that her alleged bitterness towards his father causes her to behave in a malicious way. Unlike X, there was little balance or ambivalence in his account, but suggested that he sees his mother as trying to influence him against his father and he is very angry at her about this.
Assessment of X found a very anxious boy who gave a reasoned and balanced account about the difficult aspects of his relationship with his father. He perceives his father as easily angered and described situations where he has felt helpless, alone and under attack. X presents as very fearful that his father will continue to contact him and demand explanations from him that he cannot give.
It is my assessment that Mr Buchanan has a difficult personality, but that the dynamics in the family are much more complex and multilayered and it seems that perhaps all the arguments have some validity. It might be tempting to focus entirely on Mr Buchanan and his flagrant and frankly abusive behaviour with X at this assessment, but I do not think that this entirely explains the presentation of family members.
I consider that the conflict between the parents has been so malicious for such a long time that neither parent can separate their hostile feelings for the other parent from the children’s relationship with their other parent.”
Dr N went on to say at page 26 of 38:
“On a fundamental level these parents are never going to agree and I regret the chance of any form of cooperation between them to be extremely unlikely now or in the future.
In relation to X, his wishes and preferences expressed to me seem valid and come from a mature perspective. While he is a delicate boy, he understands his vulnerabilities and does not want to expose himself to his father at the age. It is promising that X expects when he is ‘bigger and stronger’ he will be better able to deal with the more difficult aspects of his father’s personality.
In terms of the appropriateness of ongoing parental responsibility in relation to X being shared between Mr Buchanan and Ms Vine, it seems very clear that these parents cannot share parental responsibility and they have no effective communication. In addition, Mr Buchanan appears to have little insight or understanding about X’s needs. It is my recommendation that Ms Vine should have parental responsibility for X. I would also emphasise that X is now 14 years old and the next few years appear to be mapped out for him.
In relation to what time, if any, X should spend with his father and mother, it is my recommendation that X should spend time with his mother and his father as he wishes.
However, I would expect that Mr Buchanan might adopt a stance of trying to persuade or bully X, and that Orders that X initiate any interaction would be appropriate.”
The evidence given at court – the mother
The mother adopted her affidavits as true and correct.
The mother was cross-examined about the arrangements she was proposing for the children. She said the children should live with her and go to school in (omitted), X on a weekly basis and Y full time. She conceded she enrolled the children at (omitted) School and then there were further proceedings about the school fees. When it was put to her by the father that Y and the father had excellent relations, she said this was possible. She said there had been a good relationship between X and his father at some point. She disagreed that she did not encourage X to see his father.
She said she had encouraged X to see his father with Dr N and always said it would be better on the next visit. She said, however, that after the last time when the father called X a “cunt dobber” and threatened to run him over, she did not think he should be forced to go. The mother was then cross-examined about a holiday where she was asserted to have booked X into ski school. This led to a debate more in the nature of a domestic dispute between the parties as to whether what the mother had done had been in accordance with court orders. Indeed, much of the cross-examination was of this character.
It should be noted that the father’s questions put to the mother were slightly odd in that he continually referred to himself in the third person, either as “your husband” or “his father”.
The mother said it was very hard to make arrangements with the father. The father put it to her that she had told X that his father had refused to allow X to have a trip to (country omitted), but responded that she had told X he was not able to go with her because the father would not let him go. The mother, despite being pressed, repeated her understanding that the father had threatened to run X over.
These recitations, it should be understood, are taken from my notes and do not purport to be a transcript. I am doing my best to give the flavour of what was put.
Cross-examination of the mother commenced at approximately 10.45 a.m., and by 11.15 a.m. it was obvious that the cross-examination was essentially going to be so accusatory, and unlikely to provide significant additional insight, that I limited the cross-examination until midday. It was apparent from a very early stage in the cross-examination, one might say almost instantly, what the dynamic between the two parties was and what the nature of the questions and answers was likely to be. I indicated that I would give my reasons for limiting the father’s time in cross-examination in my judgment and what I have just set out constitutes those reasons.
I note that the mother was steadfast in her denial that she was the author of annexures V-6 and V-7 of her affidavit filed 4 October 2013, and that nor was Mr S (a schoolmaster at (omitted) School). She said in a way that I found credible that no one has access to X’s email except X.
Cross-examination unsurprisingly, tended to concentrate upon the Tullamarine Airport incident. It is sufficient to say that the mother stood by the version she had already given.
It is noteworthy that the father put it to the mother that all he had done on that occasion was take X a couple of hours early. The mother replied that he had taken him on Tuesday instead of Saturday as per the Court’s orders.
I do not propose to traverse the cross-examination further, because in my view it adds little to the Court’s deliberations.
The evidence of Dr N
Dr N was called and affirmed her report.
Under cross-examination by counsel for the mother, Dr N confirmed that X’s opinions were real. She noted that children were often anxious before seeing parents, but it was more a question of whether they were anxious after such a long time. Here, there had been no dissipation of X’s anxiety. After assessment, X had been fatalistic because he had expected the interview with his father to proceed in the way that it did. X seemed damaged by the session with his father.
Dr N confirmed that the father used extremely crude language when he was with her and that there was almost no chance the parents would be able to communicate effectively. Language may be colourful, but the mother was worried about the father pursuing visits and X not being able to withstand that onslaught.
Dr N did not think that the use of the word “cunt” was necessarily too offensive. She confirmed that X sees his father as very determined and standing up to him is very difficult for him. If there was to be any time with the father, the father would need to be sensitive and build X’s trust over time. She said that as X says, when he has grown up he might have the strength to deal with his father.
Mr Buchanan cross-examined Dr N. She confirmed that she had read Dr I’s report. It was confirmed that X had been put on antidepressant drugs, but Mr Buchanan had told Dr N that he did not need drugs and was not ill. She told Mr Buchanan that his behaviour with X at the interview was unfortunately insensitive and it was his and Y’s behaviour that she was concerned about. She confirmed that she never permitted parents to have one-on-one with children and it was not better not to have Y there. She said this provided very rich material and gave more information to her. She said that she saw the mother and X with Y, but had not known of Y until the day before. She tried to get Y alone with his mother, but was told that this would not occur this time.
When challenged by Mr Buchanan about the psychometric testing, Dr N confirmed that she was qualified to conduct such testing and confirmed that she worked on the bell curve. She said that the tests were not invalid. It should be noted there was some debate between Dr N and Mr Buchanan in cross-examination about what a bell curve was and what could be derived therefrom.
Mr Buchanan’s opening
Mr Buchanan confirmed that his older child is about to reach 18 and there was currently an Intervention Order in place involving the school where his son is. He referred to the amended application filed recently by the mother and said this was about X only. Mr Buchanan said that this was not supported by any evidence and should fail.
Mr Buchanan confirmed the reason he was at court was because the mother had stopped his time with X whom he had not seen at all for three years apart from a short time with Dr N and 50 minutes in the car on the way to the airport. He said he had never been given a reason why he was not seeing X and felt he was entitled to an explanation. He said that not seeing his son had had a devastating effect and he loved his son and missed him all the time and it affected the other child. He said it was most unusual to have one son who loved his father and the other hate him. He said the child was used and damaged and the only thing was to reunite him with his son.
Mr Buchanan said that even though his older son was almost 18, he had no confidence the mother would not continue to abuse him. She had disenrolled him last term and changed the locks on her house. Y had not seen or spoken to her since. He was concerned that the same thing would happen with X.
The evidence of Mr Buchanan
In chief, Mr Buchanan simply adopted his affidavits as true and correct.
Under cross-examination, Mr Buchanan did not agree that the mother loved the children. He said that X did not love his mother but was scared of her, and this is what he told Dr N. He denied saying to X “why haven’t you been coming to see me, you cunt?”, but then conceded that he might have said something like that. He said this was a term of affection. He said X was lying if he had reported that the father had said “you had better get on the plane, you cunt”. He said he would cooperate with the devil for his children.
He denied saying to X that he would run him over and reverse over him.
When it was put to him that X had been upset when taken to the airport, the father denied this. He said that he had been in the presence of the headmaster, school director and the housemaster at all times. He conceded that he refers to the children by their year of birth and as “the said children”. He said he was told this was appropriate by the applicant’s lawyers.
When taxed with having singled out X for special attention for ‘dobbing in’ (this appears to relate to the strenuously felt accusation on the mother’s part of possible improper sexual relations between Y and another member of the father’s household- see page 104 of 408 of the father’s affidavit annexures), the father said that he explained to X it was very important he not go home to his mother and speak about what happens at his house. He said he told X to be careful of what he told his mother. ‘Tittle-tattle’ was very damaging. The father said he was very glad he gave that instruction.
When taxed with telling Dr I to “fuck off” over the phone, the father denied this but then said he might have said it. He then said he might have paraphrased it. He denied referring to the mother as “the housekeeper” to his children. He said he does refer to X as the mother’s puppet and admitted that he did tell the mother’s lawyer that X was an easily influenced cretin. He said this was during without prejudice discussion and that cretin indicates some short-term memory loss. He said he was talking to a grown man, a solicitor.
I should interpolate and say that these answers had all the appearance of being made up on the run.
The father asserted that X was on drugs on the occasion he saw
Dr N. He said X was on a double dose on that day and couldn’t even get up. He said he did not think it appropriate to tell X he loved him and missed him.
The father said he would go to X’s school whenever he wished if there were no orders preventing him and that there was no reason for X to be scared of him. He said he had been to the children’s school four or five times in the last 10 years. He said, and this answer was wholly self-serving and non-responsive to any question, that what goes on at school stays at school.
The father said that the mother took X to Dr I as part of a plot to avoid Family Court orders, and that Dr I is no longer prescribing drugs. The father said he would only go to (omitted) for special occasions and would respect X’s wish for contact. He said it would be necessary for him to reconnect before he could meet him and that this would take significant time, given that he had not seen him for three years.
The father was adamant that exhibit V-6 of the mother’s affidavit filed 4 October 2013 was not written by X. He said it was obvious that a 13 year old with difficulties could not write it with perfect punctuation. The father denied that Y was abusive about his mother to X and said this might be just usual banter. He said he had not followed up a suggestion for a counsellor as this was just a sham. He did not accept that there was anything wrong in his relationship with X. He said he had been through this “mental health scam” before with Y.
The father said children should have their childhood unencumbered by court orders when things have changed. Orders are absolutely flexible. He said “I have never enforced the orders, it has never been me”.
The father was certain he would show, as I understood it, all relevant emails to the children when they turn 18. He said “they will never be in any doubt as to what happened to their childhood. I am perfectly entitled to do it. It’s not about cooperation, is it.”
The father then said he had turned up a day early for X’s holiday and with his free agreement, took him to Tullamarine. The father said that X had been at (omitted) School for the last six months and was thriving in his mother’s absence. He said, and by this stage there was some noticeable pressure of speech, that of course he would give X banter about not coming to see him. He said he had been prevented from seeing his son for no good reason at all.
If I understood the matter correctly, the father attempted to pass off the use of the phrase “cunt dobber” to his son as something entirely appropriate and he appeared to suggest that this might be, and I am not quite certain if I paraphrase this correctly, a matter related to his rich (nationality omitted)-Australian heritage.
Some brief observations about the credit of the parties
The mother’s evidence was generally given in a responsive and reasonable way. I would describe her as a good witness, although clearly one under strain. Her demeanour and affect was very much as noted by Dr N. She is plainly exasperated by Mr Buchanan and clearly does not like him. For the reasons indicated, I brought cross-examination to a relatively rapid conclusion as it was obvious within a short time what the interpersonal dynamic between the parties was.
Dr N, it can be shortly said, was a quite outstanding witness. Her answers were reasoned, responsive and fair. Not only was she a professional witness giving evidence within her area of expertise, but her answers were self-evidently honest, direct and truthful. I accept her evidence, including her report, entirely.
The father was not a good witness. He was combative and aggressive in his responses and demeanour. He was in the habit of answering questions with questions. He gave answers and then qualified them (such as his ultimate admission that he had sworn at Dr I) and as earlier indicated some of his answers were made up on the run or self-serving and non-responsive.
The parties’ final submissions
Counsel for the applicant mother submitted that it was clear the parties could not have shared parental responsibility. The mother accepts the recommendations of Dr N that she have sole parental responsibility for X. It was submitted that the father says that he concedes that there was banter between him and X, but it was submitted that this involved harsh language particularly for a child said to have learning difficulties. The father blames the mother for the estrangement from X, but ignores the material before the Court. It was submitted that the mother’s response had been measured, that she made concessions and showed a degree of insight that the father lacked. It was submitted that there was a strong family report upon which no effective attack had been made and it was appropriate to make the orders that the mother sought.
The father referred to the fact that X was 15 and complained that he had never had any role in deciding his life. He would cooperate when the mother made such decisions as she thought were in his best interests. He submitted that cooperation between the parents was not necessary as the child’s best interests override this consideration. He said he had not seen X for three years and had missed out. He said he had guided all his children through adolescence. He complained that the mother had locked Y out and had moved him from school, and that this could happen to X. He said his older child refused to have anything to do with his mother and for X’s safety, he must be with the father as soon as possible.
He said the mother was abusive through psychological treatments and that Y has nowhere to live at the moment. He said it was dangerous for X to live with the mother. He said X was happy when he last saw his father at age 11 and that if given enough rope, the mother would hang the children. He submitted the mother does not care for the children. He concluded by saying he was very emotional at being estranged from his son for so long.
Conclusions as to the disputed facts
In many ways, my conclusions as to the facts strongly reflect
Dr N’s evidence. These parties separated what is now quite some time ago and their relationship remains toxic. I accept Dr N’s evidence that while it would be easy to lay all the blame for all of the problems at Mr Buchanan, whom like her I found extremely odd, the problems in this family are more multilayered than that.
The fact is that on any view of the matter the elder child, Y, has become wholly aligned with his father. I have no doubt that X is scared of his father and does not want to see him.
Although the father sought to dismiss some of his offensive language to X as banter it is clear that his remarks were, as counsel for the mother submitted, exceptionally harsh and particularly to a sensitive child facing various difficulties as X clearly is.
I have no doubt whatsoever that the father has used extremely insulting and belittling language about X and to X in the past. He has referred to him to third parties as a cretin. I totally reject the father’s endeavour to explain the use of this word away. It is dismissive and demeaning. Likewise, calling your son “a dobber cunt” which the father clearly did and called him a “cunt” on other occasions as I have no hesitation in finding that he did despite his denials, is scarcely likely to have improved the relationship.
Although the father sought to explain it away, there is no question that he turned up early to (omitted) School to collect X in September 2013. This followed the sending to him by X of the emails that constitute V-6 and 7 of the mother’s affidavit filed 4 October 2013, which I fully accept were created and sent by X and not his mother or anyone else. While I suspect that the mother’s version of the events is probably closer to the truth than the father’s, it is not necessary for me to arrive at final conclusions as to the events that took place at Tullamarine Airport. They must have been deeply distressing for all concerned.
What really matters is at the end of it, X elected to leave with his mother. I accept, because this is what X told Dr N, that X was very frightened by the events and it is a measure of the father’s lack of insight that he wholly denies this and sees himself purely as the victim. It is also important to note that the father appears to have been successful in alienating Y substantially from his mother. Dr N’s description of the events at her own observation of the father, Y and X is extremely concerning.
I have already referred to the fact that Dr N has correctly analysed the difficulties between these parties as being multilayered. It is sufficient to say for these purposes that Mr Buchanan impressed me as being an exceptionally difficult man. The tenor of his emails, in which he often rants about assertions made against him as a paedophile and the like, show a marked lack of insight. Nonetheless, it is clear that the mother has also contributed to the present extremely regrettable state of affairs. She has had more than enough of Mr Buchanan and would not be able to cooperate or deal with him in any kind of sympathetic way.
The statutory pathway
The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:-
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Joint parental responsibility
If ever there were a case where joint parental responsibility is contraindicated, regrettably this must be it. Each parent, as I understand the matter, seeks sole parental responsibility in respect of X. It is common cause that there is no point in the Court seeking to make any orders about Y, who in all probability will have turned 18 by the time this judgment is delivered (these reasons have been dictated in mid to late April 2015).
Very unfortunately, these two parents have views about one another such that cooperation between them is wholly inconceivable. Indeed, the father went so far as to say that cooperation was not the point in giving his evidence. He impressed me as a person wholly unprepared and unable to cooperate with his former spouse in any way. Although her presentation was far less florid, the mother impressed me in much the same fashion although looking at the emails as a whole, it is plain that the general tenor of her emails has been more courteous and more cooperative in intention than that of the father.
In the circumstances, it is clear that it is not in the child’s best interests that there be an order for joint parental responsibility. Although it is a matter that springs in large part from the spend time arrangements, to which I shall shortly come, it is quite clear that the mother should have sole parental responsibility in respect of X.
The child’s best interests
As is clear from the decision of the Full Court in Goode & Goode, where an order for shared parental responsibility is not made, the Court is obliged to consider what arrangements will best promote the child’s interests. This requires consideration of the matters in s.60CC of the Family Law Act 1975.
The primary considerations
In the ultimate, at least in theory, even the mother I think concedes that it is in X’s best interests to have a meaningful relationship with his father. The father does not seem to me to regard it as being in X’s best interests to have any relationship with his mother at all. His closing submissions make it clear that he thinks that X should be with him to avoid the risks that he associates with X continuing to remain with his mother or even to see her. Even if I am unduly uncharitable in this regard, the experience as demonstrated with Y suggests that to put the matter at its lowest, the likely practical outcome of X living with his father would be an alienation from the mother.
On any view on the matter there is, in my opinion, a clear need to protect X from psychological harm from being subjected to or exposed to abuse and/or family violence within the extended meaning in s.4AB of the Family Law Act 1975. The father’s attitude towards X (an easily led cretin) and the insults to which he has exposed him (cunt, dobber cunt) clearly indicate that X would be at serious risk of psychological abuse and family violence were he to be exposed to the father. This conclusion is all the more buttressed by the impression I formed of the father’s demeanour (what he said and the way he said it) in court.
Pursuant to s.60CC(2A), I am obliged to give greater weight to the need to protect X from such harm.
Section 60CC(3)(a)
X’s views are clear. He has told Dr N and I accept that he is scared of his father and does not feel presently able to sustain time with him. He opines that this may change as he gets bigger and older and that in my view suggests that there is a residual, although presently suppressed, affection for him. But the reality is those are his present views.
He is 15 years old and his views should be given weight.
Section 60CC(3)(b)
X appears to have a warm and loving relationship with his mother. Dr N’s report seems quite clear as to this. His relationship with his father is as I have described it. His relationship with Y is more layered. Dr N thought that Y might not be as offensive to X in circumstances where the father was not present. Y will be leaving school at the end of the year and will, presumably in the circumstances, spend time with his father although that is not entirely certain. In any event in my view while X’s relationship with Y is important, it seems somewhat fractured (they do not appear to see much of each other at school) and the nature of the relationship between X and his father is what stands to my way of thinking at the forefront of the significant matters.
Section 60CC(3)(c)
The mother has undoubtedly taken every proper step to participate in making decisions about X’s long-term future and to spend time and communicate with him. The father complains bitterly of being excluded from the decision-making process and to an extent, I think he is correct. To the extent that this has occurred, however, it has in large part been caused by his own exceptionally offensive style of communicating with the mother for which he has no one but himself to blame. The father has clearly wished to spend time with X and to communicate with him from time to time, but the way in which he has sought to do so (most particularly in 2013) has been exceptionally unfortunate and counterproductive and damaging to X.
Section 60CC(3)(ca)
The mother has clearly taken proper steps to fulfil her obligations to maintain X. There is an ongoing rancorous dispute between the parties as to the extent to which the father has or has not fulfilled his obligations to pay school fees. In all the circumstances of the case, it is not necessary for me to come to final conclusions about that aspect of the matter because the other considerations are so clearly established.
Section 60CC(3)(d)
It is quite clear in the face of the material as a whole and in particular the report and evidence of Dr N, that any endeavour to move X from the primary care of his mother when he is not at school would be disastrous for him.
Section 60CC(3)(e)
There are no problems as I see it in terms of expense of X spending time with his mother or his father. Both these parties are clearly independently wealthy. The practical difficulty with X spending time with his father is X’s very clearly articulated and significant fear of doing so.
Section 60CC(3)(f)
The mother is plainly a competent mother at least sufficiently capable of caring for X’s needs, including his emotional and intellectual needs. The father’s astounding lack of insight most regrettably makes it very clear that he completely lacks the capacity to provide for the emotional needs of X. His capacity to provide for his intellectual needs must be in doubt, given that he has regarded X at least from time to time as a cretin. There is no question that should he wish to do so, the father would have sufficient funds to provide for material needs for X.
Section 60CC(3)(g)
X is presently at (omitted) School and lives with his mother when he is not at school. His lifestyle in the presence of his mother is unremarkable. The father’s lifestyle seems somewhat more complex. He was, it appears at least until recently, living at a home in a part of Sydney not accessible by road in or near the (omitted). He described his occupation as that of (omitted) and it appears from Dr N’s report that some of his self-perception is grandiose. He informed Dr N that he was writing a work that would completely revolutionise economic thinking. This may be so, but I share Dr N’s scepticism.
In the end, however, even if the father lives a relatively bohemian lifestyle, funded by wealth that does not appear at least at present to derive from employment, that is a matter for him. This is not irrelevant, but is not a matter to which I give any significant weight.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
This is an important subsection in the context of this case, but I have already dealt with it in my observations about the father above. The mother’s attitude to the child, subject to the problems associated with her inability to deal with the father, is unremarkable.
Section 60CC(3)(j)
There is a clearly been family violence involving X on the part of the father that was detailed above. The parties have had much to say about violence between each other. I think it is far more probable than otherwise that the father did subject the mother to family violence in terms of repeated derogatory remarks and the like. This goes at least in part to explain the toxic relationship between them.
Section 60CC(3)(k)
Although I think there is an AVO in place, it does not in the circumstances of this case take the matter further.
Section 60CC(3)(l)
It is plainly desirable to make orders bringing this litigation to a conclusive end. The parties both need it (whether they appreciate this or not) and X will certainly be reassured by the end of the trial. He is clearly aware of what is going on.
Section 60CC(3)(m)
There is no other relevant matter for these purposes.
Conclusion
Considering all of the above matters together, I regret to say that this is entirely obvious that the orders sought by the mother and as recommended by Dr N are the orders that are in X’s best interests. The father’s astounding lack of insight which has contributed in very large part to X’s fear of and concerns about his father are of themselves sufficient to ground this conclusion. I have dealt, albeit in an admittedly somewhat shorthand way with the relevant considerations that s.60CC requires to be considered, but taken as a whole (and bearing in mind that in an endeavour not to fan the flames between the parties, I have deliberately sought not to determine some of the more vivid disputes between the parents) it is quite apparent that the report of Dr N should be implemented. I have drawn orders to give effect to this conclusion.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 9 June 2015
Key Legal Topics
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Family Law
Legal Concepts
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Injunction
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