WENLOCK & TORRANCE

[2011] FamCA 218

FAMILY COURT OF AUSTRALIA

WENLOCK & TORRANCE [2011] FamCA 218

FAMILY LAW – CHILDREN - Father taping children about abuse by mother - Abuse unfounded - Father has no insight into problem - Paucity of evidence about a relationship between father and children - Supervision by a contact centre unlikely to assist to develop any relationship - Some children wanting to have a relationship but for their father to behave - Determination that best interests require no time - Costs - Order made

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Cotton & Cotton (1983) FLC 91-330
Loddington & Derringford (No. 2) [2008] FamCA 925
Pishke & Rupp; Bannon & Rupp [2010] FamCA 632

APPLICANT: Ms Wenlock

RESPONDENT: Mr Torrance

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1218 of 2010

DATE DELIVERED: 31 March 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR Nicholson

SOLICITOR FOR THE APPLICANT: Camerons Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Richardson

SOLICITOR FOR THE RESPONDENT: Richard Connelly

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McLeod

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Faram Richie Davies

Orders

1. That all previous parenting orders be discharged.

2. That the mother have sole responsibility for making decisions of a long term nature in relation to the children of the marriage S born … June 1995, J born … July 2000, K born … February 2002, L born … November 2003 and E born … March 2005.

3. That the children live with the mother.

4. That the father not spend any time with the children.

5. That the father be restrained from video-filming and/or recording conversations with the children relating to any incident, injury or complaint he (or they) may have about the mother or her husband.

6. That the application of the mother filed 15 December 2010 and the response of the father filed 3 February 2011 be otherwise dismissed.

7. That all material produced under subpoenae be returned to the recipient of the subpoena.

8. That all exhibits be returned to the parties tendering them.

9. That the father pay the mother’s costs of the proceedings in such sum as may be agreed and in default of agreement, as may be assessed.

10. That all proceedings be removed from the list of cases awaiting a hearing.

11. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1218 of 2010

Ms Wenlock

Applicant

And

Mr Torrance

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Mr Torrance (“the father”) and Ms Wenlock (“the mother”) have five children arising from their relationship.  As a result of the orders of the Federal Magistrates Court of Australia in February 2010, the father has not seen the children at all nor had any communication with them. 

2. The children are S born in June 1995 aged 15½, J born in July 2000 aged 10½, K born in February 2002 aged 9 years of age, L born in November 2003 7 years of age and E born in March 2005 aged 6 years.

3. The issues for determination are:

   (a)what time if any, the father should spend with the children and if so, under what conditions;

   (b)if there is to be time between the father and the children under supervision, for how long should it continue;

   (c)whether an injunction should be made against the father from filming, photographing or recording the mother and the children;

   (d)whether an injunction should be granted against the father from having anything to do with the mother or her present husband and precluding denigration of the mother and the children; and

   (e)whether a costs order should be made against the father.

4. The mother also began the proceedings seeking to “declare” the father “vexatious” and that he be precluded from commencing proceedings without leave of the Court.  In final address, counsel for the mother did not proceed with that application.

5. These proceedings have a long and unpleasant history.  I am satisfied on the evidence that most of the problem in recent years has been directly attributable to the father.  Whilst he does not and will never accept that, I can only determine the matter on the basis of the evidence presented to me. 

6. There is no finding I can make in this case other than that it is not in the best interests of the children for them to be put into a position where they are required to spend time with their father.  That situation could change but it would require a significant amount of evidence to show that the children would benefit from having a meaningful relationship with their father whilst at the same time not being exposed to significant psychological pressures and damage from his behaviour.  The mother has not closed the door on the possibility of the father having a relationship with the children in the future.

7. The background of this case unfortunately, is very important.  Notwithstanding the temptation to just look at the facts from 2010 until now, it would not do justice to the findings relating to my focus.

8. The father was born in 1966 and is therefore 44 years of age and the mother was born in 1977 and therefore 33 years of age.  Their cohabitation commenced in September 1994.  It will be observed that there was a significant age disparity between the parties.

9. In 2006, the parties had separated and the mother commenced a relationship with her current husband. 

10. Proceedings were filed in the Federal Magistrates Court by the mother in 2006 and were heard in Town 1 in north east Victoria.  In October 2006, interim orders were made for the children to live with the father and to spend time with the mother.  That situation changed dramatically on 10 August 2007 when Walters FM made orders giving the mother sole parental responsibility for the children and permitting a restricted regime of time between the children and the father under supervision.  A variety of other orders was made including that the father undergo a psychiatric assessment.  Whilst there was some debate about the finality of some of those orders, it is clear that they were intended to regulate the lives of the children for the future. 

11. The judgment of Walters FM in August 2007 was quite striking.  His Honour was utterly unimpressed with the father as a witness.  Having had the opportunity to observe the father, I find that time has done little to change his attitude or to give him insight into the role of a parent of these five children.  What is striking about that however is the father’s evidence in chief as set out in his affidavit.  In that affidavit, he said that he understood what the problem was and he had changed.  His evidence in chief prepared in affidavit form by his solicitor was a vain attempt to cover the warts.  Early in cross-examination by counsel for the mother, the veneer shattered.

12. Despite the very restrictive orders of Walters FM dated 10 August 2007, his Honour kept the case alive.  It was adjourned through a variety of Town 1 circuit hearings culminating in consent orders of a final nature between the parties on 29 May 2009.  Those orders provided for the father to have time with the children which was largely inconsistent with the restrictive orders of Walters FM.  In her evidence, the mother conceded to having consented but said it had been with great reservation.  Sadly, I find her reservation was well-founded.

13. From May 2009 onwards, the parties continued to have a troublesome relationship.  The father presented the children at a general medical practitioner’s surgery where complaints by the children were made about violence by their mother towards them.  Complaints about violence towards the children by the mother had been the subject of evidence before Walters FM.  His Honour was very concerned that the father had been video taping the children setting out their complaints.  I was shown that material and it is quite disconcerting and inconsistent with the evidence I heard from the mother about the nature of the relationship of the children within her family including her husband.

14. The current proceedings began in February 2010 when the mother made an application for a recovery order relating to the two boys.  The versions of how the boys came into the father’s care are controversial.  The mother accused the father of orchestrating the children leaving their school and going to their paternal grandparents’ home.  The father said he knew nothing about it and was 35 kilometres away at the time.  I need not make any finding about exactly what happened because the rest of the evidence of what occurred thereafter highlights the lack of insight on the part of the father.  This incident left the boys with the father and the girls with their mother.

15. The father persistently maintained that the boys did not want to go to school for a week because they needed his protection.  His way of protecting the children was to make an application to the State Magistrates’ Court for an intervention order.  In that application, he described the boys needing protection but the girls seemed to be in a difficult position.

16. The mother’s application for a recovery order came on before Walters FM and his Honour made an order that the boys return to their mother and the father’s time be suspended indefinitely.  Despite the order being so made in the presence of the father, he said that he was never told where the children were to be delivered and as the mother had an intervention order against him, he could not take them to her.  That ultimately culminated in a collection of the children by police which in the circumstances, was most unfortunate.

17. Walters FM also transferred the proceedings to this Court and it took considerable time to reach the final stage of a hearing.  At various times, the parties appeared unrepresented although I had the considerable benefit of having counsel appear for each of them at trial. 

18. The mother’s application as amended was filed on 15 December 2010.  She sought that in addition to the discharge of all parenting orders and having sole responsibility for the children, there be injunctions restraining the father from contacting the children or from filming the mother or the children.  She also sought that the father and his servants and agents also be restrained by injunction from approaching her, the children or her husband or any member of their respective families. 

19. In his amended response filed 3 February 2011, the father sought similar parenting orders to the mother but in respect of his own time with the children, suggested it should be for three months under supervision at the T Contact Centre and thereafter moved to alternate weekends from Friday afternoon through to Monday morning.  Those proposals were varied slightly in the proposed final orders handed to the Court at the commencement of the hearing. 

20. I shall deal with the parenting issues in some detail below. It is sufficient however for me to say that in respect of the mother’s application for injunctive orders, I am not satisfied that I should make those orders notwithstanding the fact that the father was prepared to agree to orders along those lines. In this case, there are extant intervention orders which cover behaviour of the father relating to the children quite extensively. The issue of the extent of those orders and their relationship to s 114AB of the Family Law Act 1975 (Cth) (“the Act”) was not canvassed but having had an opportunity to read the intervention order, it seems to be very wide. In the circumstances, even if there was jurisdiction to make the orders, I do not think that it is proper in the circumstances having regard to the nature of the orders that I ultimately propose to make of a parenting nature. I then turn to the parenting issues.

21. The mother also sought orders that the father be restrained from filming or recording the children.  The father did not oppose that.  The intervention orders are wide but I am satisfied this is an issue not comprehensively covered by those orders.  Accordingly, the orders should be made.

22. The February 2010 over-holding by the father will always remain controversial in his eyes.  Walters FM had no apparent hesitation in making the orders for the return of the children and suspending the father’s time.  Despite that, the father pointed his finger at a number of people all of whom he accused of dereliction of responsibility in one form or another.  The father wrote a complaint to Victoria Police about officers from two different police stations not being sufficiently concerned about bruising on the children.  The father said to the family consultant in April 2010 that he was contemplating a “civil claim” against Walters FM.  In cross-examination, 11 months later after making that statement, he said that he was still seeing what could be done about Walters FM.  He complained to the Legal Services Commission about the Independent Children’s Lawyer Mr Faram.  He said that in respect of the family consultant, the Court was very biased against him.  He had some type of complaint about counsel for the Independent Children’s Lawyer suggesting he had not previously been doing his job properly but that was not pursued.  When asked whether and if so what he was complaining about that counsel, he responded that it was “the whole scenario”.  He suggested that he had evidence that Mr Faram had misled the Court, the mother had committed perjury and the mother’s litigation arose out of false accusations to the Department of Human Services.  I was not able to discern any evidence that might have given rise to any of these complaints other than from what the children said to the father when being filmed.  That evidence had presumably been seen by a number of professionals and dismissed as without foundation.

23. In the context of all of that and the many court appearances, the father was asked whether he accepted any responsibility for the dilemma of the proceedings involving his children.  His answer was that he did not accept any.  The difficulty I have is that his evidence as set out in the affidavit he swore on 31 January 2011 reads as follows:

    The only reason I have had (these) concerns is because of what I have been told by (the children) on numerous occasions and what I have observed.  My concerns for their safety are bona fide and not motivated by malice towards the mother.  However, contrary to what the mother says I am confident that I can put these concerns aside for the sake of being able to re-establish a relationship with the children.  Should the Family Court decide that it is in the best interests for my children to resume contact with me, then I would agree not to raise these concerns in front of my children or denigrate the mother or (the mother’s husband).

24. I must find on the evidence that what the husband said in the quote above is just not so.  The father oozes with complaint about everyone under the guise that his children need protection.

25. I had the opportunity to ask questions of the mother about each of the five children.  She was an impressive person as a witness.  I have no reason to doubt her truthfulness.  Nothing that counsel for the father put to her suggested that she was motivated by malice or that her focus was on anyone other than the children. 

26. The mother was able to tell me in detail all of the current activities of the children in what I could only describe as a very settled environment with her current husband.  S is involved in bible classes and youth group.  She is a responsible young woman.  She is progressing well at school and appears to enjoy life.  J is only 10 but is doing well at school.  She loves music and is an active musician.  She loves animals and participates in farm life.  She too has activities away from the home where playing time appears very satisfying.  K has difficulties at times at school apparently requiring intervention by counsellors because of anger.  The mother impressed me as being able to deal with those issues when they arose and K was unable to explain why those events occurred.  Nothing about K’s life would appear to be inconsistent with a child doing reasonably well.  According to the mother and unchallenged by the father, K has a good relationship with the mother’s husband.  L is a child who is quiet if not introverted.  He started school a year ago and is progressing well.  He has friends and participates in family activities.  E has just started school last year and is a very happy child.  E had seen nothing of a functional family life between her parents.  She was seen with her father and her siblings on film, parroting words used by her father and siblings.  It was hard to get a sense of whether E had any understanding of what was going on.

27. The mother’s evidence about the children was important because notwithstanding the father’s absence from the lives of the children, it was difficult to see where he could contribute anything to their development.  His proposal for time in a contact centre under supervision left me puzzled.  I was not at all sure what the supervision was directed towards.  When I asked him about his knowledge of the activities of the children, he said that he knew of their musical ability and he was quick to point out that he had contributed to the equipment because it had been taken from the home at the conclusion of the relationship. 

28. The mother made it clear also that music was a family activity and the family did many things together.  Her husband was a significant contributor towards that.  When given an opportunity to speak about the contribution of the mother’s husband and the role he played, the father could give him no credit at all.  When asked about financial contribution, the father’s response was that the husband had chosen to live with the mother and that lifestyle and so it was a matter for him presumably to support the whole family.

29. The overwhelming impression on the evidence is that the mother has a very caring, secure and loving environment in which these children are well looked after and, contrary to the father’s view, there is no protective issue.

30. All of this is quite remarkable having regard to the apparent difficulties that I understand the mother suffered in the early part of her life and the perhaps unfortunate relationship that was commenced when she was only a teenager and when the father was an adult.  The absence of the father from the lives of the children during the last 12 months appears to have contributed to their settled environment.  Despite that, the mother was asked about the views of each of the children.  Her forthright answers were illuminating.  S said she wanted her father to stop lying but was concerned to have contact with his extended family.  J wanted someone present with her but also wanted to see her father without drama by which she meant disputes between her mother and father.  K just wanted to see his father.  L wanted to see his father three times by which the family consultant thought he meant weekend time but he also added that he wanted his father to stop doing the things that were causing trouble.

31. The mother was cross-examined by counsel for the father about whether the father was the subject of discussion within her house.  There were discussions around court dates.  She added that she recently stumbled upon the children talking about the fact that a birthday advertisement had been put in the newspaper by the father for K but not for them.  The inference was that K was favoured and the other children were conscious of it.

1. The mother’s unchallenged evidence was that the children had become more and more settled as time had gone by after the father’s contact was suspended.  That may have also been due to the fact that counselling for the children had occurred through the local community centre.  The mother’s evidence was that the father had threatened the counsellor and that caused a change to a different centre in a different town.  The father in responding to the mother’s affidavit did not make any comment or denial in respect of that assertion. 

2. K was described by the mother as being extremely distressed by the “emotional abuse” from his father and had ongoing issues with soiling his pants.  The mother said that she was advised that it was a “psychological problem”.  Again, the father did not comment.

3. In relation to the bruising which was the subject of the father’s attention throughout the proceedings, the mother said that K was taken by the father to the Town 1police station where an allegation of abuse was made against her.  She said that the bruising to K’s bottom had been caused by the child slipping in the shower.  The father did not respond to that assertion in his affidavit and the mother was not cross-examined about it.

4. The mother gave evidence that she had applied to the local Magistrates Court for the extension of her intervention order so that the children could be included upon it.  That document was served upon the father who indicated to the Magistrates’ Court that the application was opposed.  On 5 August 2010 when the matter was listed for final hearing, the father failed to appear.  The court made the order.  All five children are named on the order and it is an indefinite one.  It does provide for the father to be able to contact the children by direction or order of this Court.

5. The mother also quoted from the judgment of Walters FM on 10 August 2007.  Whilst the findings of the Federal Magistrate and his orders may be taken into account, they are not matters which have influenced my decision in this particular case.

6. The father was at pains in his evidence to point out that he had put all of his grievances with the mother to one side.  I find that he has not.  His position was clear.  If he saw the children and there was evidence of bruising or the children made a complaint about violence perpetrated on them, rather than record the children or discuss it with them as he had done in the past, he said he would go to the Department of Human Services and then his own lawyer to get advice about what to do.

7. Given an opportunity, the father reverted to an almost mantra-like statement that he had the responsibility as a parent to protect his children from violence.  Sadly, I find he fails to protect them from psychological abuse for which only he can be responsible.  He maintained he would go to the Attorney-General and the media about the irresponsibility of the system as he saw it but it was lost on him that such exposure, if it could occur at all, would damage his children more.  He shrugged that off on the philosophical basis that he had to expose the system.  I find that the father’s view is not child-focussed at all.  Unabated, these children are at risk of emotional abuse.

8. Over objection from counsel for the father, I viewed the various recorded films taken by the father of his interviews with the children.  The first category related to discussions between the father and children about violence by their mother giving rise to the bruising.  The first is a child’s arm showing a bite mark which apparently was inflicted by another child.  The father’s open criticism in front of the bitten child was of the mother for not smacking the offender.  He made reference to the “do-gooders who opposed smacking”.  That conversation was inappropriate in front of a very young child.

9. A second film shows the father speaking to S and in a cryptic comment to the child, he referred to the mother as attending his home when she was supposed to be scared of his violence.  That adult concept and discussion in front of S was inappropriate.

10. The third film is unashamed stalking of the mother.  She was at work and the father was outside her work filming her through a window.  If he was endeavouring to show that the mother was acting inappropriately by not caring for the children, the point was lost because I was uncertain as to who was caring for the children and whether there was a problem with that.  If the father was trying to obtain “evidence”, he could have done so by calling for the mother’s work records.

11. A fourth film related to S and J detailing a list of their grievances in 2007 of their mother.  The father’s position was that the children had done this filming of their own accord and he was not present but it was abundantly clear that S was reading from a set of notes and upon the conclusion of the session, she commented to her father that she did not know how to turn the camera off.  The whole episode looks scripted and orchestrated. 

12. The fifth film relates to January 2010 in which the father discussed the bruising on K and the child’s distress at having to return home.  The leading questions were inappropriate but all children were brought into the scenario.  It was inappropriate parenting.

13. The sixth piece of film occurred on the day that Walters FM had ordered the children be returned to their mother.  The father was shown filming the children telling them that they were to tell the police when they came to be collected and he would also video tape the police.  The conversation was totally inappropriate from a parenting perspective.

14. The final piece related to September 2009 in which a very distressed K talked of being hit for soiling his pants.  The father was heard saying that he would take the child “somewhere” to “talk” to someone but he was unashamedly collecting evidence and it occurred in front of the other children.  He then told the assembled children that if he did not take K home he would get into trouble himself.  He said that he would go to gaol for breaking the orders but in the midst of that, explained that it was not the same for “girls”.  He then told the children that they had a chance to complain about the police for not doing anything about their concerns.  I find this conversation not only inappropriate but quite disturbing. 

15. In the conversation in which S and J were filmed, they talked of the role of the husband and the mother in bathing the children.  I can only infer that it was intended to suggest inappropriate conduct by the mother’s husband.  I appreciate that the video was made in 2007 but I was not made aware of any allegation of impropriety against the husband and he was not required for cross-examination.

16. The only witness called by the Independent Children’s Lawyer was family consultant Ms D.  Ms D holds the qualifications of Master of Psychology.  Despite criticism of Ms D by the father as effectively doing the mother’s bidding, no-one challenged her expertise.  I found Ms D balanced and authoritative in her opinions.  I find that she approached the task of giving expert evidence diligently and professionally.  I accept her evidence.

17. Ms D saw the parties and the children in April 2010 to prepare an issues assessment concerning the parenting dispute.  Normally, this exercise is designed to identify issues for the consideration of parents and for discussion to then occur about the children.  What would sometimes follow is a family report requiring a much more comprehensive evaluation of the issues and evidence enabling the family consultant to provide an expert opinion for the Court.  Ms D doubted whether putting the children through that additional assessment would be appropriate.  She said that the updating of the children’s views might assist but I find that unnecessary having regard to the very clear and accepted evidence of the mother.

18. Ms D approached the assessment hampered by the father’s oppositional behaviour.  I found his approach in giving evidence consistent with how Ms D faced him.  She said he was litigious by which she meant he asserted he would sue Walters FM and that he was going to the media about the case.  What he failed to recognise both before me and whilst meeting Ms D was that the Court’s approach is a positive pursuit of information about what proposal best provides for the future of the children.  The father’s evidence remained remarkably silent about any positive attributes of a relationship with his children whilst at the same time, oozing with negativity.

19. It must be remembered that Walters FM had excluded the father from the life of his children because of his over-holding of them.  I would have expected evidence about his capacity and desire to be a significant part of the lives of the children.  After he was cross-examined, I ventured to tease out what role he saw he could play in the lives of his children so that they might benefit from a relationship with him.  My attempts fell on stony ground.  I say that having factored in all of the difficulties of the father in terms of his educational level, his inarticulateness and his dogged approach that he was always right.  This was what faced Ms D when she commenced her assessment only two months after the debacle brought on by the father in which, despite the order of Walters FM, the Victoria Police collected the children. 

20. The evidence of Ms D about the children was very helpful.  She said that S was a relatively well adjusted young adolescent.  Almost nine months later, that perception was mirrored by the unchallenged evidence of the mother.  Ms D reported that J was a confident, happy and easy to engage child.  Again, that evidence is consistent with that of the mother now. 

21. K was found to be open and candid.  Ms D found L as engaging, happy and energetic.  Again, the evidence of the mother is consistent with Ms D’s perception of the boys.  I need only say about five year old E that the mother’s evidence indicates a well adjusted energetic child much as Ms D saw.

22. Ms D said that there was nothing in the responses of the children to suggest that they had been manipulated.  That of course is the antithesis of the father’s position.  I find there is no foundation for the father’s view.  Ms D’s view was that the older children were developmentally credible.

23. As reporters, only months after the important events of February 2010, the children appear to have been remarkably frank with Ms D.  Despite the filmed evidence of the father of conversations with the children suggesting distraught, frightened and intimidated behaviour, each child was clear that it was their father who was the cause of the problems.  They suggested, and I so find, the father fabricated the information about the mother and her husband. 

24. S’s views must be given weight based on the evidence of Ms D. 

25. The picture that Ms D elicited, after speaking to each child separately, was that the father kept telling them to tell lies and took them to doctors and other professionals including the police.  It was noticeable that no evidence was called from these potential witnesses.  The general medical practitioner, various police officers and workers of the Department of Human Services were all professionals who saw the children.  Contrary to the assertion of the father and that of the paternal grandfather, the children had a positive view about their mother and her husband.  The only conclusion open to me is that these witnesses were not likely to support the father’s contention. 

26. To Ms D, the father said that the mother had a history of bipolar disorder.  No evidence was presented to support that nor was the mother cross-examined about it.  Counsel for the father indicated that the mother did not need to rely on an affidavit of a psychiatrist filed in 2007 to rebut any such assertion. 

27. To Ms D, the father said that he had had a psychiatric assessment of himself.  No evidence was called about this although the father’s counsel indicated that he had reports from those professionals.

28. The father said that he had given the videos of the interviews with the children to a “top psychiatrist” but when he thought about it a little later, it was a psychologist.  When I asked who it was, he declined to name the person.

29. All of these pieces of evidence were in the context of a hearing in which the Court was pursuing proposals for the benefit of the children in the future.  Specifically, what evidence would ensure the safety of the children and what proposals were there to ensure their stable life would not be damaged?

30. Ms D said that S and J were burdened with anxiety about their siblings.  She said the father’s actions amounted to psychological abuse if the allegations he made were false.  Having found there was no foundation for the allegations, I find the father had psychologically abused the children. 

31. The respite of the last 12 months has enabled the children to settle with a family life they deserve.  That view about the mother’s family is not shared by the father although he was quick to acknowledge that he did not know what was happening in the mother’s household.  Not so quick however was the paternal grandfather who was scathing of the mother and her husband.  His outburst in court did him little justice.  Unfortunately, I found him tarred with a brush of subjectivity and his evidence of no value.  The saddest thing about that observation is that the children showed an interest in their extended family and I would have expected some balance and interest from the grandfather in their welfare.  I was unable to find it.

32. Ms D said that based on a finding to which I have just referred, there were consequences for the children.  The impact on them was such that they could reject their mother.  There were long term ramifications in destabilising sibling relationships and the father’s behaviour created problems for longer term relationships with other people.  That was particularly concerning because of the impact on the peers of the children.  These children need role models.  Their father gave no indication that he could provide that.  The children deserve better.

33. I asked Ms D whether the father could learn the skills necessary to play a significant role in the lives of his children.  Whilst agreeing that anyone can learn, she expressed doubt in this case unless the father changed his attitude towards the mother.  There was no indication that he had or could.

34. Ms D said that contact could occur if the father had (and maintained) a positive child-focussed structure which I understood to mean that he would participate in a positive way in the children’s lives.  He needed to be able to understand his teenage daughter’s interests, needs and desires.  That required a positive role to support her.  He needed to understand how S fitted into her family, related to her peers and was grappling with education.  The father’s comment was that S was a lost cause.  He was able to tell me that he participated in swimming and skate park activities with the boys but apart from otherwise saying that he was there to love and support the children, nothing in his evidence indicated that he could provide any support for the mother’s role, her lifestyle and her plans for the children’s future.  He clearly has no respect for her.  He clearly has no respect for her husband who has played a very significant role in the lives of these children.

35. The father said he wanted things for his children but he could not express how he would go about that.  The video clips indicated he has no capacity to allow the children not to be engaged in his war with the mother and her husband.  As I have set out above, he led the children into conversations under the guise of recording their statements for “future evidence”.  He has no insight into the damage that he was doing to them.  That being so, Ms D’s view that a resumption of time was only recommended if he could maintain a positive and child-focussed structure resonates.  I could not find there is currently any prospect of that happening.

36. All findings of fact in this case have been determined according to the standard of proof applicable under s 140 of the Evidence Act 1995 (Cth) namely the balance of probabilities. Where a serious allegation has been made, I have given consideration to the matters set out in s 140(2) of the Evidence Act.

37. Section 60B of the Act sets out the objects and principles underlying Part VII. These are the aspirations of the community for children which guide any decision to be made by the courts.

38. The legislative objects just mentioned require consideration of how the Court can meet the best interests of the children by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. 

39. Of equal importance is the legislative indication that the objects are designed to protect children from physical or psychological harm and that they are also intended to ensure that children receive adequate and proper parenting. Both of those objectives in this case are sadly lacking from the father’s perspective. The children are at risk for the reasons earlier set out.  To simply take up the proposal of the father would also mean that on the evidence he presented, they would not receive either adequate or proper parenting. I have set out the father’s views as he expressed them about his aspirations for his children. The same subject was discussed with the father’s counsel in final address and as I there pointed out, I am very conscious of the educational deficiencies of the father. It is not the function of this Court to act as some sort of social engineer. The Court can only do the best for the children based upon the evidence presented to it and to use some form of intuitive synthesis to craft orders which will best promote the children’s welfare bearing in mind their parents have to take responsibility for them. In this case, bearing in mind the evidence of the mother’s parenting and her stable and settled household, I could not find that these children would receive the parenting considered by the legislation as adequate from their father.

40. The objects also require consideration of the evidence that would enable a court to say that the orders will ensure that the parents fulfil their duties and meet their responsibilities concerning their children. Because of the findings above, I could not see that occurring here either. Examples of that include the denigration of the mother, the conveying of confusing messages to the children about the roles of the Department of Human Services and police and the refusal to return the children upon the orders of Walters FM which meant their collection by police. I reject the father’s counsel’s submission that the view held by the father about his responsibilities as a parent has something to do with his committed belief that what his children have told him was true. That belief only has foundation if there is evidence to show that the statements of the children were voluntary and well-founded. There is no evidence upon which I could find that was so. 

41. Section 60B sets out the various principles underlying the legislative objects. They are that children have the right to know and be cared for by both parents as well as the right to spend time on a regular basis with and communicate with both parents. However, that principle is always subject to the best interests principle. The principles are extended to include parents jointly sharing duties and responsibilities concerning children as well as agreeing about the future parenting of their children.

42. Unless there is a radical change in the father’s position about parenting responsibility which I suspect could only be brought about by therapeutic intervention, all children have little prospect of enjoying any of the aspirations above. The father maintained in evidence and I have no reason to doubt him, that he went to a parenting program twice. He went the second time and already knew from the first time what parenting was all about. Taking account of his inarticulateness, I could not be satisfied there is any likelihood of change. Supervision of any time would therefore not achieve a positive involvement for the children.

1. Section 61DA provides 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.  That mandatory presumption is rebutted if a court is satisfied that there are reasonable grounds to believe that a parent has engaged in abuse or family violence.  I am satisfied for the reasons above that that situation applies. 

2. There is also the unchallenged evidence that an intervention order was made against the father which perhaps unusually, included the children as the persons to be protected.

3. Section 60CA requires that when a court is deciding whether to make a parenting order, it must regard the best interests of the child as the paramount but therefore, not the only consideration.  The main consideration is guided by the provisions of s 60CC.

4. Consideration of Section 60CC enables a picture to emerge of what orders should be made that might best advance the interests and development of the children.

5. Section 60CC is divided into primary and other considerations. Despite the apparent distinction, the court is required to consider whether each parent has fulfilled or fail to fulfil responsibilities.  I now turn to those matters.

6. It is a primary consideration that the children have the benefit of having a meaningful relationship with both parents.  In Pishke & Rupp; Bannon & Rupp [2010] FamCA 632 Murphy J noted with approval the comments of Nygh J in Cotton & Cotton (1983) FLC 91-330 at 78,252, where the question was asked whether there was a chance of a meaningful relationship which was beneficial to the children but also whether both parents had ‘something to offer’ the children (my emphasis).

7. In a case where the focus has been largely on the behaviour of the father and his impact on the children, that same question still has to be examined. What is beneficial to these children? And what has the father that he can offer?

8. In Loddington & Derringford (No. 2) [2008] FamCA 925 I referred to the fact there was no legislative definition of meaningful relationship and said that for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. What evidence is there that these five children have anything to gain by being with their father in either a supervised or unsupervised environment? What sort of relationship have they currently with their mother and is that at risk of damage by contact with the father?

9. The mother provides a stable relationship and environment which I find would be undermined if the father was given an opportunity to spend time with the children. I could not find that supervision of any such time would make any difference having regard to the views held by the father. The evidence shows the father has not changed his view about the mother or about the protection of the children. He said he would contact “DHS” rather than discuss a “scratch” with the children. He failed to see the consequence of intervention and interviews by the Department. The father’s counsel suggested that the paternal grandparents could protect the children through supervision of their son. Having regard to my findings about the paternal grandfather, I could not see any prospect of objectivity there. The children would descend into the troubled relationship of 12 months ago.

10. There is sufficient evidence in this case to show that the children were exposed to a fractured and dysfunctional family life until just over 12 months ago. That has now changed. There is no basis for me to confidently say that involving the father again will do anything other than destroy the current stability.

11. Section 60CC has a number of additional considerations.  The children have expressed their views.  Unusually, their views were consistent in the evidence of the Family Consultant in April 2010 and the mother’s own evidence given in 2011. They have differing views about their father but the common thread was that they wanted him to stop his behaviour. They did not indicate distress at his absence. They did want to have a relationship with their extended family presumably from happy memories. The evidence about that is not something that I could make any finding on other than in relation to the paternal grandfather. In respect of the two older children, there is every reason to give their views weight. In respect of the younger three, the Court is not obliged to follow their views but must give those views such weight as is relevant.  In my view at this stage, those views should be given little weight.

12. The nature of the relationship of the children with each of the parents is set out above arising out of the questions that I asked each parent. The mother is organised, thoughtful, protective and practical with the children. Her evidence could not have been manufactured and importantly, it was not challenged on that point. I do not understand what the husband could do for the children other than provide leisure activities which they have previously enjoyed. That may well be the limit of his capabilities but where there is an overlay of emotional damage and a destructive attitude towards the children’s main family life, it does not make sense to take a risk of repeated bad parenting.

13. The mother and her husband provide all of the physical needs for the children. The father’s attitude about the provision of assistance by the husband was unpleasant and insulting. The father provides limited child support. That is not surprising having regard to his pension status but I note that he was previously ordered to pay legal costs and did so and was not represented by legal aid on this occasion. On that basis, he seemed content to spend money on litigation but not on something from which his children might benefit.

14. Counsel for the father submitted that history showed that the father was compliant in respect of court orders.  He pointed to the attendances at the contact centre after the 2007 orders. The mother’s evidence was not so positive about that and it does not matter. What was very telling in this case was the father’s reaction to the order for the return for the children in February 2010. How could that possibly indicate a willingness to comply with orders of the court?

15. Because of the findings I have made about the father’s behaviour, I have significant doubts about his capacity to facilitate a relationship between the children and their mother.  If he does not accept that responsibility, he is failing to achieve the objects and principles to which I have earlier referred.

16. Section 60CC requires the Court to consider the likely effect of changes in the children’s circumstances.  I could not find on the expert evidence of Ms D that the children would be damaged by the absence of their father. What I found helpful was a submission by the mother’s counsel that if the father did show some change of attitude supported by genuine evidence from an expert, she would not stand in the way of a renewed relationship. It was very noticeable in this case that the father had been to two professionals. That evidence was not produced. The father conceded that he had been to anger management and parenting courses but was unable to tell me how they influenced his attitude. His evidence indicates he went but did not learn much.

17. I am satisfied that the mother is meeting all of the emotional and intellectual needs of the children. 

18. All of the findings above relating to the parental attitude to the children and the responsibilities of parenthood show the stark distinction between the parents. It is clear as was submitted by the mother’s counsel that she has “moved on” but the father has not.  The mother began parenting life as well as her relationship with the father from a low base. The age gap and the apparent difficulties have disappeared but the period up until February 2010 indicates that the father harbours serious grudges. I could not find that he would not be destructive of the relationship between the mother and the children.

19. I have already dealt with questions of family violence reflected by the family violence orders.  Those matters are historically now recorded.  The father did not dispute those issues. They are telling in respect of his understanding of the impact of adult conflictual behaviour on children. These children do not deserve any of that. 

20. S 60CC requires a court to consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings. I think the matter is the hands of the father but nothing that he said or his counsel submitted would suggest that an adjournment might resolve the problem. I indicated during the hearing that there seemed to be a dearth of material. Nothing changed during the hearing.

21. Section 61DA provides 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. 

22. That presumption is rebutted if the Court has reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence.

23. Family violence is defined in s 4 of the Act to mean conduct, whether actual or threatened, by a person towards a member of the family that causes that person to reasonably fear for or, reasonably to be apprehensive about, his or her personal wellbeing or safety.

24. In this case, I am satisfied that the mother did fear for her personal wellbeing and safety.

25. Even if that were not the case, s 61DA(4) provides that the Court may rebut the presumption if it is satisfied that it would not be in the best interests for the children for the parents to have equal shared parental responsibility.

26. Equal shared parental responsibility is not defined in the Act. Parental responsibility is defined as meaning all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

27. Having regard to the matters earlier set out, I must find that it is not in the best interests of the children for the parents to have equal shared parental responsibility. Apart from anything else, there is already an order for the mother to have sole parental responsibility. The father did not challenge that.

28. Accordingly, on the evidence, there is a basis for me to find that it is not in the best interests of these children for their father to spend time with them.

29. Upon the conclusion of the hearing in this matter, counsel for the mother made an application for costs.  I made an order at the time that counsel for the father, having been taken somewhat by surprise by the application, would have until 4.00pm on 25 March 2011 to file a written submission relating to those costs.  I have had the advantage of reading those submissions.  The Independent Children’s Lawyer did not seek costs from either party nor did he wish to be heard in respect of the application for costs by the mother.

30. The submission for costs was put on the basis that the whole of the litigation proceedings before me began with an over-holding of the children in February 2010 as I have outlined earlier.   Counsel pointed to the fact that the father was wholly unsuccessful and had been seeking a change of residence in the early part of 2010.  The ultimate proceedings were conducted on the basis that the father’s position was that he was seeking to have supervised contact at a contact centre although as I have outlined earlier, his position was that if I was prepared to go back to the 2009 orders, he would have that position occur.  In my view, that was unrealistic having regard to the findings I have made.

31. The father’s position in respect of the costs application was that there was no justification for an order against him.  It was always his position that the belief he held arose from the position described to him by the children.  In addition, his counsel argued that the mother had brought a s 118 application but not proceeded with it.  He further submitted that the father had taken the mother’s application seriously.

32. Section 117 of the Act provides that subject to the Court finding circumstances justifying otherwise, each party to the proceedings shall bear his and her own costs. If a court decides that there are justifying circumstances, the court must also examine the matters set out in s 117(2A) of the Act.

33. In this case, I find there are justifying circumstances to depart from the principle that each party pays their own costs.  I agree with the mother’s position that the father created the problem by over-holding in circumstances which were unjustified.  I am further satisfied that the positions throughout 2010 were unrealistic from the father’s perspective.  Importantly, the father’s case was conducted on the basis that he had had a change of approach and had understood the dilemma for the children of maintaining a negative approach towards the mother.  Nothing I heard from the father indicated that any such change had occurred.  More importantly again, the evidence of the negativity of the father which was so apparent during the proceedings gave me little confidence that he has much to offer the children at this stage in their lives. 

34. Section 117(2A) provides that if a court is considering making an order, it must contemplate a number of matters. None of those matters is particularly more important than the other. I have taken into account the financial circumstances of each of the parties. Although neither party filed a financial statement for these proceedings, I was advised that neither was represented by legal aid. That may be somewhat unusual having regard to the fact that at least in the father’s case, he described himself as a pensioner. Although there was no evidence about it, counsel for the father submitted that the father owned a property with no equity and his parents had paid his legal costs. The mother is a full-time worker earning $37,000 per annum and although she has remarried, the five children are her responsibility and on the evidence, she appears to be supporting them without much assistance from the father. The mother too has incurred significant costs which are being borne by herself and her husband in financial circumstances they can ill-afford with five children.

35. I have also considered the conduct of the proceedings.  That issue really concerns questions of compliance with procedural matters to enable the hearing to be dealt with expeditiously.  The parties placed the evidence that they thought was important before the Court and to a very large degree, counsel appeared very conscious to contain the issues in dispute. 

36. There can be no doubt however that the proceedings were necessitated by the failure of the father to comply with the orders in the circumstances to which I have earlier referred.  Having been in that position, he applied to the Court again and must be seen to have been wholly unsuccessful. 

37. Costs are not intended as a punishment but rather to compensate the party who has had little choice but to participate in the litigation.  There has often been a reluctance for courts to make costs orders in parenting cases but here, there was little foresight by the father about how any argument he wanted to put would advance the interest of his children.  The negative campaign of the father caused the mother significant and unnecessary costs in circumstances where he had to establish that the children would benefit from a resumed relationship with him.

38. In my view, this is a case where it is appropriate to make an order for costs on the basis of the scale set out in the schedule to the Family Law Rules 2004. The costs sought by the mother amounted to $17,195. I do not have any understanding of how that was calculated and in the circumstances, the order I propose to make is that if the parties cannot reach agreement, the matter will have to be assessed by the Registrar.

I certify that the preceding One Hundred and Eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 31 March 2011.

Associate: 

Date:  31 March 2011