WALDMAN & WALDMAN

[2016] FCCA 3228

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALDMAN & WALDMAN [2016] FCCA 3228

Catchwords:
FAMILY LAW – Children – Presumption of Equal Shared Parental Responsibility not applicable in light of findings as to family violence – Father found guilty of attempted murder of Mother – Orders made that the Children spend no time with Father.

FAMILY LAW – Conduct of Proceedings – Mother took part in proceedings by way of video link in light of serious allegations of family violence – Direct cross-examination of the Mother by Self-Represented Father not allowed – Cross-examination ‘filtered’ through questioning by judge.

Legislation:

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC, 69ZN, 69ZX

Cases cited:

Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

MRR v GR [2010] HCA 4

Applicant: MS WALDMAN

Respondent: MR WALDMAN

File Number: BRC 8571 of 2012

Judgment of: Judge Lapthorn

Hearing dates: 22 and 23 August 2016

Date of Last Submission: 23 August 2016

Delivered at: Brisbane

Delivered on: 13 December 2016

REPRESENTATION

Counsel for the Applicant: Ms Oakley

Solicitors for the Applicant: Shine Lawyers

Solicitors for the Respondent: Self Represented

ORDERS

1. That all previous parenting orders be discharged.

2. The children, X born (omitted) 2000 and Y born (omitted) 2001 ("the children"), live with the Mother.

3. The Mother have sole parental responsibility for the children.

4. That the children spend no time with the Father.

5. That from the date of these Orders, the Father shall be at liberty to communicate with the children through written correspondence (such as letters or cards or gifts) only, with such correspondence/gifts to be sent via post to on the following occasions:

   (a)on one occasion in the two weeks leading up to each of the children's birthdays each year; and

   (b)quarterly:

   (i)on one occasion in March each year;

   (ii)on one occasion in June each year;

   (iii)on one occasion in September each year; and

   (iv)on one occasion in December each year.

6. That in relation to the written communications described in the preceding Order hereof, the Mother shall:

   (a)be at liberty to peruse each of the Father's written communications with the children prior to providing the communications with the children;

   (b)provide the communications to the children; and

   (c)facilitate the children responding to the Father's written communications in accordance with their wishes.

7. That within 45 days of the date of these orders, the Father inform the Mother’s solicitor in writing as to details of his preference for electronic communication through either Facetime or Skype and his contact details to facilitate this.

8. That upon receipt of the preferred contact details from the Father pursuant to the preceding Order hereof, the Mother shall inform the children of those details and confirm with the children that they are at liberty to communicate with the Father via Facetime or Skype in accordance with their wishes.

9. The Father shall not initiate Skype or Facetime communication(s) with the children.

10. That during any time the children are communicating with the father he must not denigrate or insult the mother.

IT IS NOTED that publication of this judgment under the pseudonym Waldman & Waldman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 8571 of 2012

MS WALDMAN

Applicant

And

MR WALDMAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. I am asked to make parenting orders in relation to two teenage children, X who is 16 years of age and Y who will be 15 later this month.  The children’s mother seeks an order that they live with her, that she have sole parental responsibility for them and that they spend no time with the father.  Although the father supported an order that the children live with the mother he would like the children to spend time with him according to their wishes.  He wishes to share parental responsibility with the mother and would like an order enabling electronic communication between the boys and their father.

Background

1. The father, who is 54 years of age, was incarcerated at the time of the trial as a consequence of being convicted of attempted murder of the mother as well as burglary.  He anticipated being released on 8 September this year and was of the view that upon his release he would be deported to (country omitted) which is his home country.  He did not intend to contest that deportation and the likelihood of his deportation was not in issue at the hearing.  He told the court that upon his return to (country omitted) he would live with his father in (omitted) in the (omitted) and would like the children to visit him there.  At the hearing in August this year I gave Mr Waldman leave to file a notice of address for service setting out his intended (country omitted) address.  I have proceeded on the basis that the father’s expectation as to deportation has occurred having received no evidence to the contrary.

2. The mother lives in (omitted) Queensland and is 46 years of age.  She was born in (country omitted) but grew up in (country omitted) where she met the father.

3. The parties married on (omitted) 1990.  They have had four children, all boys.  Mr J who is now 20 years of age, Mr B who is 18 and the two boys the subject of these proceedings.  The family migrated to Australia in (omitted) 2008 and lived in (omitted) Queensland.  The parties separated under the one roof in July 2012 with the mother leaving the former matrimonial home in November after having commenced these proceedings by filing her Initiating Application on 20 September 2012.

4. There are a number of allegations in relation to family violence some of which will be addressed later in this judgment.  The most significant however occurred in the early hours of 8 March 2013 when the father drove a motor vehicle through the front window of the mother’s home into X’s bedroom.  The father then used a hammer to gain entry to the home and assaulted the mother leaving her unconscious.  She was flown from (omitted) to Brisbane and underwent surgery as a consequence of the attack on her.  The father was arrested and remanded in custody.  In April 2015 he was convicted of attempted murder and burglary and was sentenced to 7 years imprisonment for attempted murder and 5 years imprisonment for burglary to be served concurrently.  During his evidence he informed the court that he had been granted parole and was due for release on 8 September 2017.

5. The parties were divorced on 3 October 2014.  On 23 August 2016 I made final property orders by consent.  On the same day I reserved judgment in these parenting proceedings.

Issues

1. The significant issues for determination in this case are:

   a)whether the court should order the parties to have equal shared parental responsibility or if the mother should have sole parental responsibility for making decisions about the children’s long term care welfare and development and if so if there should be any conditions attached to that;

   b)whether the children should spend any time with their father and if so how that should occur; and

   c)what other, if any, forms of communication should occur between the children and their father.

Material Relied Upon and the Evidence

1. Throughout these reasons I will refer to a number of facts.  Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.

2. The mother relied on the following documents:

   a)Amended Initiating Application filed 10 June 2015;

   b)Her Affidavit filed 15 July 2016; and

   c)Affidavit of Dr S filed 15 August 2016.

3. The father relied on:

   a)Response to Initiating Application filed 21 August 2015;

   b)His Affidavits filed:

   i)21 August 2015;

   ii)10 November 2015; and

   iii)18 January 2016.  

4. The court also had regard to:

   a)The Affidavit of Ms L filed 20 December 2012;

   b)The Children’s Wishes Report prepared by Family Consultant Ms F dated 13 May 2016; and

   c)The psychiatric report of Dr M dated 12 January 2015.[1]

   [1] Exhibit M1

5. Given the serious nature of the violence perpetrated upon the mother by the father that led to his conviction for attempted murder, I directed the mother to take part in these proceedings by way of video link from another court room. The mother’s counsel appeared in my court room. I did not permit the father, who appeared as a self-represented litigant, to cross-examine the mother directly. Instead I ‘filtered’ his questions by asking the mother the questions for him and putting any propositions he wanted put to her. Although the father challenged this approach, I took the view that in the circumstances of this case it would not be appropriate for the father to cross-examine the mother directly. There was no doubt that the mother was the victim of serious family violence perpetrated by the father. To allow her to be cross-examined directly by the father risked negatively adding to her experience even if the father had no intention of using his questioning to further family violence. The seriousness of the violence also warranted her being in another room. I took the view that the proceedings should be conducted that way in order to safeguard the parties against family violence consistent with the third principle of s.69ZN.[2] In doing so I exercised the power available to me pursuant to s 69ZX(1).

   [2] S.69ZN(5)(b)

6. Both parties gave their evidence to the best of their ability.  I did not assess either party was attempting to mislead the court even though their recollections of events were materially different at times.  Their recollections and perceptions have been clouded by the nature of their conflict and the family violence.  Where necessary I will address the differing evidence when I consider the best interest principles below.

Legal Principles

1. All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975.  In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[3] and must consider the best interests of the child as the paramount consideration.[4] 

   [3] S.60B

   [4] S.60CA

2. The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[5] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:

   a)Children have a right to know and be cared for by both their parents;

   b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;

   c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   d)Parents should agree about the future parenting of their children; and

   e)Children have a right to enjoy their culture.

   [5] S.60B lists the objects and principles for Pt VII.

3. The legislative framework which must be followed in all parenting cases,[6] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[7]  This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[8]

   [6] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

   [7] S.61DA

   [8] S.61DA(2) & (4)

4. For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[9]  Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[10]  When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[11]  A major long-term issue in relation to a child means an issue:

   [9] S.61B

   [10] S.61C

   [11] S.65DAC

   about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a) the child’s education (both current and future); and

   (b) the child’s religious and cultural upbringing; and

   (c) the child’s health; and

   (d) the child’s name; and

   (e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[12]

   [12] S.4

5. In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s 65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[13]  If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[14]

   [13] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4

   [14] S.65DAA(2)(c) & (d)

Determining the best interests of the children – the s.60CC considerations

1. The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. The two primary considerations address the benefit to the children of having a meaningful relationship with each of the parents and the need to protect them from physical and/or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[15] Greater weight is to be given to the later consideration.[16] In order to limit duplication I propose to group together a number of the factors.  I will also consider the two primary considerations together given I am being asked by the mother to find that the risk of harm issue outweighs the benefit of the children maintaining their relationship with the father at this stage in their lives.

   [15] S.60CC(2)(a) and (b)

   [16] S.60CC(2A)

Primary Considerations

1. There was no dispute that each child has a good and close relationship with his mother.  Neither party sought orders that would compromise that.

2. The mother argued however that the benefit of the children having a meaningful relationship with their father is outweighed by the risk to them of physical or psychological harm and the possible harm that might be borne upon the mother were time ordered.  In support of that submission she relied on the history of family violence and its impact on her and the children.

3. On 10 September 2012 there was an incident between the father and Mr J after Mr J asked the father for his passport.  There was pushing and shoving between them and the mother tried to intervene.  The police were called.  The parties gave different versions of this event.  It is not necessary for me to determine with any accuracy the facts surrounding the incident as clearly on each party’s version there was family violence.  The father obtained an interim family violence protection order against the mother after this incident.  The mother, although advised by the police to also seek such an order did not pursue such an application at that stage.

4. Another incident occurred on the evening of 1 November 2012.  The mother alleged that after an argument over dinner the father grabbed hold of her sleeve and wrist forcing her into a corner.  She then slapped the father across his face.  She was then knocked unconscious by the father sweeping her legs out from under her.  All four children were present.  Mr B described this incident to the first family report writer, Ms L in the context of the mother being the initial perpetrator of physical violence.  The police and ambulance attended at the home and the mother was taken to hospital.  It was at this point that the mother moved out of the former matrimonial home to live with the family’s pastor.  The mother also applied for a family violence protection order.

5. On 28 November 2012 the two cross-applications for protection orders were resolved by agreement between the parties by way of mutual undertakings to be of good behaviour to the other and their children and to not commit acts of domestic violence.  

6. Notwithstanding the undertakings a serious incident took place in the early hours of 8 March 2013.  At around 1am the father drove his vehicle through the wall of the house the mother was living in with the four children.  He drove into the bedroom being used by X.  After the father had alighted from the vehicle he attacked the mother by hitting her with a hammer to her head.  She was knocked unconscious and later that morning airlifted to a hospital in Brisbane.  She sustained a fractured skull, brain injury, multiple compound fractures to her right hand, bruising to the left arm and soft tissue damage to her right leg.  As a consequence of this attack she also suffered psychiatric injury.  A temporary family violence protection order was made by consent later that day in the Dalby Magistrates Court.  The father had been arrested and remanded in custody.  In April 2015 he was convicted following a trial where the mother and one of their son’s gave evidence and were cross-examined, of attempted murder and break and enter.  He was sentenced to a term of imprisonment of 7 years for the attempted murder charge and 5 years for the break and enter.  The sentences were to be served concurrently.  With time already served awaiting trial he was due to be released in September this year.  In light of this criminal conviction he was due to be deported to (country omitted) upon his release.

7. The mother was hospitalised for around one month after the attack and underwent surgery to her skull and right hand.  She was required to undertake extensive physiotherapy and had another period in hospital for the removal of pins to her hand.  In July 2016 she commenced counselling with Psychologist Dr S who prepared a report filed in these proceedings.  Dr S was not required for cross-examination.  She opined that the mother displayed symptoms consistent with having moderate depression in the context of the father being released from gaol.  Her prognosis was said to be good if she did not come into contact with the father.  Dr S was of the view that the mother’s mental health condition would be impacted in the event the children were to spend unsupervised time with their father although not to the point of the mother being unable to care for them or fulfil her duties and responsibilities as a parent.  In the psychologist’s opinion supervised time would reduce the mother’s anxiety to a manageable level.

8. I find that the father has perpetrated serious family violence upon the mother which has been witnessed by the children.  Further I am satisfied that as a consequence of the violence the mother has had to obtain support not only for physical injuries but for her mental health.  I accept the opinion of the mother’s treating psychologist that her mental health will be impacted if she were to come into contact with the father.  I am further satisfied that any form of direct communication between the mother and father would have a negative impact on her.  In light of Dr S’s evidence, I am further satisfied that any order for the children to see their father would raise anxiety in the mother and although the mother’s ability to parent the children would not be overwhelmed, she would still be negatively impacted by such an order.  Any form of time spent between the children and the father would need to be supervised if the mother’s levels of anxiety were to be managed but even so I am satisfied the mother’s mental health would be adversely affected by any form of time spent.

1. The father also alleged that the mother had been both verbally and physically violent to him and the children during the relationship.  The mother denied the extent of violence alleged by the father but conceded to Ms L that she had once slapped the father across the face.  In my view the mother minimised her involvement in the family violence.  All four children told Ms L that they had witnessed their mother physically hurt their father.  I find that the mother has perpetrated physical violence upon the father during the relationship and at around the time of separation.

2. It was further argued on behalf of the mother that the father would denigrate her to the children if he was to have unsupervised time with them.  There is no doubt the father holds the view that the mother had been unfaithful to him leading up to separation and that she was using illicit drugs including methamphetamines.  There is no evidence supportive of the father’s belief in this regard.  The children are certainly aware the father has accused the mother of seeing other men as they reported this to Ms L.  Although the father told the court he would not discuss these things with the children I am not satisfied he will be able to contain himself.  He presented as a man fixated on these issues and I have no confidence he will be able to refrain from letting his sons know his views.

3. When I take into account the serious family violence and the father’s strongly held views of the mother, I am satisfied the risk of harm issues outweigh the benefits of the children maintaining their relationship with him. 

The children’s views[17]

[17] S.60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.

1. Family Consultant Ms F interviewed both Y and X for the purposes of ascertaining their views.  Y was described by the family consultant as an earnest young man with considered views.  He described his father as being interested in computer games and getting angry.  At the time of the interviews he had not seen the father for about two years but he had received two letters from his father whilst incarcerated.  He told Ms F he wanted to live with his mother and visit his father.  In relation to frequency of visits he suggested a month’s visit in the December/January school holiday period or visits once every two holiday periods or “When I feel like it.  Maybe I would do one school holiday and then assess it.”  He went on to say that he might miss his father if he did not see him.  “I’d do stuff with him (when visiting) – what he’d like to do; mainly join him and do what he’d like; hang out for some father and son moments.”

2. X presented as somewhat weary of the process.  Like Y, X commented on his father as being interested in video games and getting angry.  In relation to the incident on 8 Marcy 2013 he said: “I have no idea why he rammed into the house.  He’s moody.”  He said he had received mail from his father and that his mother had encouraged him to reply.  He said: “I don’t really miss Dad.  He was busy (presumably pre-separation) and angry and punishing.  It’s easier to see him every couple of years when I go to (country omitted).” X was of the view that he would next go to (country omitted) in 2018.  He said that if any issues arose whilst visiting his father he would seek support from his grandfather or contact his mother who would have a maternal uncle collect him: “I can rely on Mum.” 

3. Ms F came to the view that neither child had been under any adverse influences in relation to their expressed wishes and that they were sufficiently mature to provide an informed view in relation to those wishes.

4. Given the ages of the children and their level of maturity I propose to give considerable weight to their wishes.  However their wishes alone are not determinative of the issue as to what time, if any, they spend with their father.  Their views though will be considered when I weigh up the other considerations.

Practical difficulties[18]

[18] S.60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

1. Any time the children spend with their father will need to take place in (country omitted) given his deportation after release from prison.  Accordingly a number of logistical issues will arise particularly in relation to the cost of airfares.  The issue of the children spending supervised time with the father was raised during the course of the hearing but no evidence was provided as to anyone being prepared to undertake that supervision.

Parental capacity and responsibility[19]

[19] S.60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.

1. I have no doubt each party would be able to meet the children’s day to day needs such as ensuring they are appropriately fed and housed. 

2. During the last stages of their relationship and following their separation under the one roof both parents conducted themselves in ways that were not always child focused resulting in the children being exposed to conflict and violence.  This is not an ongoing issue now that there is no communication between the parents.

3. The father raised concerns about the mother’s ability to provide for the children’s emotional wellbeing particularly in relation to supporting their relationship with him.  I do not share his concern.  The mother’s strong (religion omitted) ethic was clear in her evidence when she spoke about encouraging the children to respect their father notwithstanding she was the victim of a horrendous crime perpetrated by him.  The Family Consultant who prepared the wishes report formed the view that the boys had not been adversely influenced towards their father.  Y told the report writer that the mother had encouraged him to respond to his father’s correspondence whilst in gaol.  Although the mother’s own emotional wellbeing has been compromised by the actions of the father she has not allowed this to negatively impact her parenting responsibilities since the father’s incarceration.

4. The mother also raised concerns about the father’s ability to provide for the children’s emotional wellbeing.  She argued that the father remains fixated in the belief that she was a drug user and an adulterer.  She believes he will not refrain from raising these issues with the children.  I share her belief and am satisfied that prior to his incarceration he told the boys that the mother had been seeing other men.  His presentation at the final hearing where he maintained the belief did not give me any confidence he will be able to keep these views from the children.

Presumption of Equal Shared Parental Responsibility

1. I am satisfied that the presumption of equal shared parental responsibility does not apply in this case given the serious family violence.  The father though seeks to share parental responsibility with the mother.  I am not satisfied that that would be in the best interests of the boys as it would require the mother to communicate with the father heightening the risk of her suffering a compromising of her mental health.  During the hearing the assistance of a third party in that communication was explored.  Upon reflection I have come to the view that even with such assistance the mother would be communicating with the person found guilty of attempting to murder her and I consider that this would not be appropriate.  Accordingly I will order that the mother have sole parental responsibility.

Discussion

1. In determining whether the children should spend time with their father and if so how that is to be arranged I have come to the conclusion it is not in their best interests to spend time with him.  Whilst I acknowledge the children told the family report writer that they wanted to see their father I am satisfied there was a level of ambivalence in the expression of those wishes.  Even if they had expressed themselves with more enthusiasm I will still conclude that it is not in their best interests to spend time with their father.  The history of violence raises risk issues for the children’s own physical welfare.  This risk outweighs their wishes and the benefit of developing their relationship with the father. There is also a risk of the children being exposed to inappropriate comments about their mother by the father.  Although supervising their time with the father could go some way towards providing protections for the boys the parties could not agree on an appropriate supervisor.  There was no evidence from any person prepared to undertake that role.  I cannot be satisfied that appropriate arrangements can be put in place to protect the children from violence or from being exposed to inappropriate comments by the father.  I therefore conclude there would be an unacceptable risk of harm if orders were made for the children to spend time with the father.

2. A further relevant consideration is the effect an order for the children to spend time with their father would have on the mother.  Whilst such an order is unlikely to compromise the mother’s day to day ability to parent given the evidence of Dr S, I am satisfied it would still burden her mental health.  The mother is their primary carer both financially and physically.  It is not in the children’s best interests for their mother’s mental health to be burdened by the thought that they would be seeing their father.

3. The mother was open to the prospect of the children receiving communications from the father provided she had an opportunity to vet the correspondence.  This is a further example of her preparedness to not exclude the father from the lives of the children altogether.  She was also open to ensuring the children could communicate with the father by Skype or Facetime but did not want the father initiating such communication preferring the facility be there for the children to initiate should they wish.  Whilst there would still be some risk the children would be exposed to inappropriate comments by the father during such communications, overall I am satisfied that if the communication is to be initiated by the children themselves they are likely to terminate the call if the father was denigrating the mother.  The orders proposed by the mother in this regard appear appropriate.

4. For these reasons I make the orders set out at the commencement of this judgment.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Date:  13 December 2016

S.60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.S.60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
S.60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents