Whitby & Hopkirk
[2009] FMCAfam 803
•6 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WHITBY & HOPKIRK | [2009] FMCAfam 803 |
| FAMILY LAW – Parental responsibility – implacable levels of conflict – best interests of children. |
| Family Law Act 1975 (Cth) Part VII, ss.60B, 60CA, 60CC(2), 60CC(3), (3)(a), (b), (c), (f), (g), (i), (j), (k), 60CC(4), 60CC(4A), 61DA, 65DAA |
| Allied Pastoral Holdings Pty Limited v Federal Commissioner of Taxation (1983) 44 ALR 607; (1983) 70 FLR 447 T. Altobelli FM, “A response to `A Cautionary Tale’: Learning to paint with a fine brush,” presentation to the 8th Annual Family Law Intensive, Sydney |
| Applicant: | MS WHITBY |
| Respondent: | MR HOPKIRK |
| File Number: | CAC 1521 of 2007 |
| Judgment of: | Neville FM |
| Hearing dates: | 13 & 14 July 2009 |
| Date of Last Submission: | 14 July 2009 |
| Delivered at: | Canberra |
| Delivered on: | 6 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Godtschalk |
| Solicitors for the Applicant: | Watts McCray McGuinness Eley |
| Counsel for the Respondent: | Mr Hopkirk in person |
ORDERS
That Orders 1, 2, 3, 4, 5, 6, 7, 8, 9 and 9A of the orders made in the Federal Magistrates Court at Canberra on 10 May 2007 be discharged.
That the Mother have sole parental responsibility for the children [X] born in 2001 and [Y] born in 2004 (“the children”).
That the children live with the Mother.
That the children spend time with the Father as follows:
(a)On each alternate weekend from after school Friday until before school on Monday;
(b)For half of the school term holidays, being the first half in years ending in a odd number and the second half in years ending in zero or an even number;
(c)For half of the Christmas school holiday period;
(d)On the Father’s birthday, on Father’s Day and each of the children’s birthdays.
For the purposes of calculating the school term holidays as referred to in Order 4:
(a)the first half of the school term holidays will commence after school on the last gazetted day of the school term in the Australian Capital Territory;
(b)the second half of the school term holidays will commence at 10:00am on the second Saturday after the last gazetted day of the school term;
(c)The “school term holidays” do not include the Christmas school holiday period.
In relation to the Christmas school holiday period referred to in Order 4(c):
(a)When the Christmas school holiday period commences in a year ending in an odd number, the children will spend the first two week period with the Mother, the next two week period with the Father, the next week with the Mother and the following week with the Father;
(b)When the Christmas school holiday period commences in a year ending in a zero or an even number, the children will spend the first two week period with the Father, the next two week period with the Mother, the next week with the Father and the following week with the Mother.
For the purposes of Order 6:
(a)the “first two week period” commences after school on the last gazetted day of the final school term in the Australian Capital Territory;
(b)the “next two week period” commences at 10:00am on the third Saturday after the last gazetted day of the final school term in the Australian Capital Territory;
(c)the “next week” commences at 10:00am on the Saturday that falls 14 days after the commencement of the period referred to in Order 7(b) herein;
(d)the “following week” commences at 10:00am on the Saturday that falls 7 days after the commencement of the period referred to in Order 7(c) herein;
(e)if the children are with the Father during the “following week” it concludes at 5:00pm on the Saturday that falls 7 days after the commencement of the period referred to in Order 7(d) herein.
That for the purpose of these Orders:
(a)If the children are ordinarily attending school on a day when handover is scheduled to occur, then handover will be effected by the parent with whom the children will be spending time collecting the children from their school at the commencement of that time and that parent delivering the children to their school at the conclusion of that time, and the other parent is restrained from being present during that handover;
(b)If handover is scheduled to occur at a time or on a day when the children do not ordinarily attend school, then it will occur at [M] Contact and Changeover Centre (“[M]”);
(c)If [M] is unavailable or unable facilitate handover at any time or day when handover is scheduled to occur, then handover will occur in the front foyer of [T] Police Station;
(d)If the Mother or the Father are unable to attend handover in person then they may arrange for an agent of their choosing to collect or deliver the children, and the other parent will handover the children to that agent;
(e)If handover is scheduled to occur on a day when either one or both the children do not attend school due to illness or some other reasonable excuse, then the parent who is caring for the child or children on that day shall notify the other parent by SMS text message AND email, by no later than 12 noon on that day, and handover shall occur at the front foyer of [T] Police Station at 4:00pm.
In relation to the children’s birthdays:
(a)if either of the children’s birthdays fall on a weekday (other than on a day when handover is scheduled to occur) then both children will spend time with the parent with whom they are not with on that day from after school until 5:30pm that day and handover at the conclusion of that time will occur at the front foyer of [T] Police Station;
(b)if either of the children’s birthdays fall on the weekend then both the children will spend time with the parent with whom they are not with that day from 9:00am until 12 noon on that day and handover will occur at the front foyer of [T] Police Station.
In the event that the Mother’s birthday or Mother’s Day occurs on a day when the children are with the father in accordance with these Orders, Order 3 shall be suspended and the children shall spend time with the Mother from 3:00pm to 7:00pm if it falls on a week day and from 9:00am to 5:00pm if it falls on a weekend.
In relation to the Father’s birthday and Father’s Day, if the children are with the Mother in accordance with these Orders, the children shall spend time with the Father from 3:00pm to 7:00pm if it falls on a week day and from 9:00am to 5:00pm if it falls on a weekend
On Christmas Day, the parent with whom the children are with on that day shall ensure that the children contact the other parent by telephone at 10:00am Canberra time, for a period of no less than 20 minutes, and shall arrange for the children to have privacy during that time.
Order 4(a) is suspended during any school holiday period, including the Christmas school holiday period, and:
(a)Order 4(a) will resume operation at the conclusion of any school term holiday period on the first Friday of the school term in years ending in an odd number and the second Friday of the school term in years ending in zero or an even number, and;
(b)Order 4(a) will resume operation at the conclusion of the Christmas holiday period on the first Friday of the school term in years ending in an odd number and the second Friday of the school term in years ending in a zero or an even number.
During the school term the children will communicate with the Father by telephone on each alternate Thursday at 7.00pm, for a period of no less than 20 minutes, and for that purpose the Mother will ensure that the children call the Father and will arrange for the children to have privacy during that time.
During the school holidays, including the Christmas school holiday period, the parent with whom the children are with shall ensure that the children contact the other parent by telephone on one occasion each week, being at 6:30pm on a Wednesday, for a period of no less than
20 minutes, and that parent shall arrange for the children to have privacy during that time.
IT IS NOTED that publication of this judgment under the pseudonym Whitby & Hopkirk is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1521 of 2007
| MS WHITBY |
Applicant
And
| MR HOPKIRK |
Respondent
REASONS FOR JUDGMENT
Overview
There are two young girls involved in these proceedings, [X] (aged 8) and [Y] (aged 5) (“the girls”), who are the daughters of the parties. The central issues in the case concern the intractable and significantly bitter communication - or lack thereof – between the girls’ parents, and the substantial, on-going parenting problems that flow from the fractured and friction-laden relationship between the parties.
The girls have been in a shared-care/equal time arrangement for approximately two years. Thus, the Court has the benefit of evidence based on how that arrangement has been working, notably and importantly its benefits to and or detriments on the girls. To put it bluntly, from the evidence before the Court – from the parties and the Family Consultant – the shared-care/equal time arrangement is not working. In my view, it would not be in the girls’ best interests for it to continue.
I should also note that the Court has the benefit of consulting the record of a quite detailed ex tempore judgment involving these parties and their children delivered in August 2007. Then as now the issues to consider and resolve relate not to the day-to-day care of the children but in the significant communication and conflictual/relational problems as between the parties. And most unfortunately, a number of the concerns I expressed in August 2007 have either been realised or particular issues have deteriorated.
The shards of the relationship between the parties are so brittle and so dangerously sharp that they cannot sustain the parenting relationship for the girls in its current form. Put another way, there is so little foundation upon which the Court could (or should) frame orders that are in the girls best interests, and upon which their future care and welfare under the current parenting regime could be repaired, that it would be dangerous for the current shared-care/equal time regime to continue. Among many possible risks, some of which emerged from the evidence as detailed below, is the danger of the girls’ on-going and future relationship with their Father. This is to say that Mr Hopkirk’s relationship with the girls risks significant injury. He seems to be unable and or unwilling to recognise this risk.
In the course of her Report, the experienced family consultant,
Ms Michelin, recorded a particular statement from the elder of the two girls, [X], as follows. The whole paragraph is germane. In my view, [X]’s observation is prescient, and reflects the old adage – “out of the mouths of babes…”:[1]
[X] had asked that many of the things discussed not be disclosed to her father as she did not want him to be displeased with her. It was discussed that change in the current difficulties could not occur unless her father was aware of the issues that bothered her and [Y]. [X]’s view was that it was a “waste of time telling Dad because he doesn’t want to hear.”
[1] The Family Report of Ms Michelin, dated 14th March 2009, was formally admitted as Exhibit A. The quotation is taken from p.4.
Mr Hopkirk did not believe that his daughter made such a statement. Unfortunately, his reaction to the statement was typical in relation to much, if not most, of the evidence. He has a particular world-view (indeed, a daily and weekly one as well) which is of quite narrow compass and admits of little or no other views, even those of his daughters when made to independent third parties. He expresses his views very forcefully. While essentially respectful in his argument in Court, there was sufficient material (current and past), as well as from observation, by which I formed the view that some would feel brow-beaten and intimidated by him. Indeed, this is precisely what
Mrs Whitby contends. I accept her contentions in this regard.
Ms Michelin also stated (also at p.4 of her Report):
[X] and [Y] love their father; however, they appear to experience his love of them as conditional on them agreeing with his world view. They fear incurring his anger if they disagreed or challenged him about his views. [Y] and [X] [sic] are aware that their father does not like Mr W [Mrs Whitby’s husband] and they feel frightened [of] telling him that they share a close relationship with [Mr W] for fear of upsetting him or making him angry with them.
I agree with Ms Michelin’s conclusions that Mr Hopkirk has “little insight into how his negative and all pervading views of Mrs Whitby may be affecting the children. He does not understand that in criticising their mother he is also being critical of them and their judgment.”[2]
[2] Family Report, p.5.
I also agree with her observation, at the same place in the conclusion of her Report, that “[X] and [Y] have had to protect and shield their father from the joy that they derive from their relationship with their mother. His fear that he may be removed from his daughters’ lives may be achieved more through his action rather [than] those of his former wife.”
Significantly and very unfortunately, Mr Hopkirk takes little responsibility for any of the circumstances in which the girls, and their parents, find themselves.
For the reasons that follow, I propose to make orders as sought by
Mrs Whitby. In large measure, they reflect the recommendations made by Ms Michelin.
For the purposes of context, principle and legislative framework, I have noted in other judgments the utility of Brown J’s observations in Mazorski v Albright,[3] which provide a helpful summary of the Court’s responsibilities under Part VII of the Act. Her Honour’s not infrequently cited “twin pillars” description, of children having a meaningful relationship with both parents and the need to protect children from physical and psychological harm, neatly summarises the general principles that are in tension in these proceedings.
[3] (2007) 37 Fam LR 518 at [3] – [6].
These reasons proceed as follows. I deal firstly, in more detail than I have, with the evidence of the Family Consultant, Ms Michelin. Next, I consider the evidence of the parties and other witnesses. Thirdly and finally, I deal with the “legislative pathway” as prescribed by Part VII of the Family Law Act (“the Act”) and the Full Court in Goode v Goode and later cases, such as Keach & Keach.[4]
[4] (2007) 36 Fam LR 422, especially at [10], [47], [48], [56], [81] & [82], and (2007) FLC ¶93-353 at [24] ff respectively.
A. Evidence of Family Consultant
Preliminary Matters: It is important to note here one important matter that arose out of an inquiry I made at the outset of the trial. In the absence of any relevant document, I inquired of Mr Hopkirk whether the Court would have any paper that set out the orders sought by him. He replied that, because of what he had heard from Ms Michelin at the Family Conference, namely that he was going to `lose his children’, he had turned up to Court “as directed” and that he had come to Court simply to wait “for the axe to fall.”[5]
[5] Transcript (13th July 2009) p.1.
He confirmed that he had not heard such a statement from me at any stage of the proceedings. I confirmed that, last I checked, I was still the person with the responsibility for making any parenting orders. I also indicated that there was no such recommendation in the Family Report (Mr Hopkirk confirmed that he had a copy of that Report).
Ms Godtschalk, for Mrs Whitby, confirmed that “this was not a “no-contact case.”[6]
[6] Transcript (13th July 2009) p.2.
Ms Godtschalk also confirmed that, from her perspective, and on the basis of what is in the Family Report, she was not taken by surprise about Mr Hopkirk seeking either the shared-care arrangement to continue, or alternatively and in response to Mrs Whitby seeking sole parental responsibility and primary care of the children, that he have primary care of them. On such a basis, the children would spend approximately three nights per fortnight with their Mother.[7]
[7] As things turned out, on the second day of the trial Mr Hopkirk filed a document which set out 48 orders that he sought.
All of the above exchanges took place before Ms Michelin entered the Court-room.[8]
[8] See Transcript (13th July 2009) pp.1-6.
During these exchanges, Mr Hopkirk also said that he did not intend cross-examining either Mrs Whitby or her husband. This position changed somewhat in the course of the trial.
Examination of the Family Consultant: At the outset of cross-examination by Ms Godtschalk, Ms Michelin confirmed that she was aware of the respective proposals of the parties, and that Mrs Whitby confirmed that there had been fault on both sides.
Ms Michelin confirmed the following in relation to her interviews with both parents. First, she observed that Mrs Whitby showed insight into, and a focus on, the interests of the children. Secondly, she confirmed that unfortunately, the same could not be said about Mr Hopkirk. As recorded in her Report (p.2), Ms Michelin noted:
Mr Hopkirk expresses disdain of both Ms Whitby and Mr W and the role that they play in his children’s lives. He described
Ms Whitby as a poor parent, who never developed a maternal bond with either child.
Also in her Report (p.3), Ms Michelin noted that Mr Hopkirk “could not say anything positive about Ms Whitby or her parenting skills.”
Ms Michelin gave a range of examples of things said by Mr Hopkirk about Mrs and Mr W. I need not repeat them, except to note that they confirm the disdain about which Ms Michelin wrote in her Report. She also noted that Mr Hopkirk said that the children preferred to spend time with him rather than with their Mother. Mr Hopkirk also said that Mr W had thrown one of the children to the ground and then dragged her. Pointedly, Ms Michelin observed that neither of the girls referred to any such incident.[9]
[9] Transcript (13th July 2009) p.8.
Both in her Report (p.3) and in her oral evidence, Ms Michelin confirmed that Mr Hopkirk made many conflicting statements. In her Report, at the place cited, she simply said about Mr Hopkirk: “On many occasions Mr Hopkirk would give many contradictory statements about the same person [or] issue. His position in such situations appeared inconsistent.”
Ms Michelin confirmed that Mr Hopkirk’s statement to her about wanting to have primary care of the children was in the context of him learning of Mrs Whitby’s application to have primary care of them. She also confirmed that the girls could speak much more freely, and be more relaxed and comfortable, with their Mother than with
Mr Hopkirk.
Significantly, Ms Michelin agreed strongly with the proposition put to her by Ms Godtschalk that her interviews confirmed that Mr Hopkirk’s intense dislike of Mrs and Mr W “is detrimentally affecting the children.”[10]
[10] Transcript (13th July 2009) p.11.
In her Report (p.4), Ms Michelin stated: “[X] and [Y] love their father. However, they appear to experience his love as being conditional on them agreeing with his world view. They fear incurring his anger if they disagree or challenge him about his views. [X] asked that many of the things discussed not be disclosed to her father, as she didn’t want him to be displeased with her.” Indeed, Ms Michelin noted that [X] was concerned about her Father finding out how much she enjoyed being with Mr W.
Ms Michelin also noted that the school had initiated some counselling for [X] because of concerns about her becoming more withdrawn. She also agreed with the suggestion that the girls – [X] in particular with [Y] taking her older sister’s lead – could become, in a sense, schizophrenic moving between both households because they seek to shield the respective parents – and Mr Hopkirk in particular – from what is said and done in the other household.
Ms Michelin agreed with the proposition that, unfortunately,
Mr Hopkirk has very little insight into his own behaviour and its negative impact on the children, and the risk that, as the girls get older, the negative impact is likely to increase. Appositely, she observed (Report, p.5): “His fear that he may be removed from his daughters’ lives may be achieved more through his action rather than those of his former wife.” This is indeed a very sad statement. It is likely that his opening remarks at the trial, to which I have referred earlier, were his mis-understanding of a comment such as this from Ms Michelin, who is (if it needed to be stated) a most experienced family consultant.
The Family Consultant also agreed that “flexibility” is a very important factor in parenting, especially in a shared-care situation. She observed further that “flexibility” was something that has not been available in the parenting relationship at all.
Summarily, Ms Michelin agreed that the issue was not the day-to-day, `hands-on parenting’, but rather the high conflict between the parents and Mr Hopkirk’s inability to quarantine his negativity about the Mother (and her husband) from the children.[11] She confirmed her recommendation that the shared-care regime not continue and that it be discontinued sooner rather than later.[12]
[11] Transcript (13th July 2009) pp.14-15.
[12] Transcript (13th July 2009) p.15.
The final matter to note at this juncture was my question to her about Mr Hopkirk’s comment that Ms Michelin had said to him that the children were going to be removed from his care. She said that she had no recollection about such a statement being made.
In the course of Ms Michelin being questioned by Mr Hopkirk about how she formed the view that there were issues between he and
Mrs Whitby regarding communication and the like, she stated that it was from her two observation sessions with the parents and, as she said, “the fact that there was little respect, understanding or flexibility … in the way you [Mr Hopkirk] discussed matters, or even clarification, if there was any confusion; assumptions would be reached rather than clarification sought.”[13]
[13] Transcript (13th July 2009) pp.17-18.
The last matter raised with Ms Michelin by Mr Hopkirk was whether, after telling him what recommendation(s) she would be making, she remembered laughing about the recommendation(s) as he left the room. Unsurprisingly, she did not. He commented: “No, I didn’t think so.”[14]
[14] Transcript (13th July 2009) p.18.
This was a very unfortunate inquiry, and remark. Not only was it distasteful and unnecessary, it was incredible to suggest that a family consultant would do such a thing, and it bordered on the snide. Unfortunately, it was not the first time that such an approach was taken by Mr Hopkirk in the course of the trial.
B. Evidence of Mrs Whitby
Prior to calling her client, and noting again that Mr Hopkirk had indicated that he did not propose cross-examining Mrs Whitby (or
Mr W), Ms Godtschalk indicated that the principal object in doing so was simply to put either a formal refutation, or her client’s version, of Mr Hopkirk’s account of events. It is sufficient only to note a couple of the matters traversed.
For example, in Mr Hopkirk’s most recent affidavit, he alleged that Mrs Whitby had taken the children to Queensland for an extended period and that he had had no contact with them while they were there. After some discussion, Mr Hopkirk confirmed that the holiday period in question was incorrectly stated in his affidavit. He also seemed to accept that the duration the children were in Queensland was not as he had stated (4 weeks), as opposed to only 2 weeks, as stated by
Mrs Whitby.
More relevantly however in relation to his claim that he had had no contact with the children, Mrs Whitby produced telephone records, which established that four calls were made from her mobile phone to Mr Hopkirk’s phone. Some were of very limited duration, which indicated, as Mrs Whitby said, that [probably] only a voice-mail message was left. She also said that there were other occasions during the two weeks vacation in Queensland when Mr Hopkirk telephoned the girls directly. Her phone records only detail calls made by her, not calls to her. I accept Mrs Whitby’s evidence.
Another matter addressed related to information concerning a day-care centre and contact details thereof. Mr Hopkirk alleged that Mrs Whitby had not advised him of the day-care centre and relevant details of it. Mrs Whitby produced an email, addressed to Mr Hopkirk, which provided details. Moreover, Mrs Whitby confirmed that Mr Hopkirk picked up [Y] from this Centre ([A] Early Childhood Centre). Not unreasonably, she contended that he had a pretty good idea about its location and details of it.
Mr Hopkirk also contended that he was not listed at that Centre as an emergency contact person. As Mrs Whitby rightly put it, nor was she. The emergency contact details relate to persons other than the parents.
A bundle of documents were tendered (Exhibit C) which contained the Centre’s records, including the enrolment form, emails to Mr Hopkirk, and sign-in and sign-out records, which confirm Mr Hopkirk knew relevant contact details, contrary to what he alleged, and did so under oath.
Among other things, in the light of the documents included in Exhibit C, Mr Hopkirk showed a significant willingness and capacity to manufacture controversy where the facts were readily available to establish that his version of events was inaccurate.
I will not retail incidents of long ago, such as those that resulted in
Mr Hopkirk being charged with common assault in 2002, an incident that involved Mrs Whitby disciplining [X], nor allegations that
Mrs Whitby has a long history of drug abuse – as alleged by
Mr Hopkirk. Mrs Whitby confirmed that she smoked “pot” twice during the relationship with Mr Hopkirk, and that she had been prescribed anti-depressants since she was 19 years old. She has taken the same medication in this regard since 2003.
Notwithstanding his stance that he did not wish to cross-examine
Mrs Whitby, Mr Hopkirk ultimately did so, and at a little length. The cross-examination was, in essence, trawling through matters that were canvassed in the affidavits filed.
In my view, there was nothing of assistance to the Court deriving from it, save that it gave me the further opportunity to observe both
Mrs Whitby and Mr Hopkirk at quite `close range.’ If any further evidence were needed, the cross-examination simply confirmed that there is a very high level of (non-physical) conflict between the parties. On a number of occasions, Mr Hopkirk’s questions or statements to Mrs Whitby were prefaced by comments such as “given the level of problems that we’ve had”, or “given the level of conflict.”
For my part, I took Mrs Whitby to be a forthright witness who gave her evidence candidly and without any undue embellishment. In the light of what is dealt with below in relation to Mr Hopkirk’s evidence, I prefer her evidence to that of Mr Hopkirk where there is any material difference between them.
Mr Hopkirk did maintain his position in not wishing to cross-examine Mr W. I should also note that at the outset of the trial Ms Godtschalk indicated very clearly to the Court that she would, if necessary, ask the Court to draw relevant inferences from Mr Hopkirk’s failure to cross-examine any witness. I asked Mr Hopkirk if he understood what
Ms Godtschalk was indicating. He said that he did. In such circumstances, should it be necessary, I would take Mr W’s account of events where there is any conflict with that given by Mr Hopkirk.
C. Evidence of Mr Hopkirk
Summarily, the following may be noted about Mr Hopkirk’s evidence. First, he was selective about what he did and what he did not believe about what was contained in Ms Michelin’s Report. Unsurprisingly, he did not agree with comments which Ms Michelin said were made directly by [X] about her Father and her fear about speaking freely with him and that the girls fear incurring his anger if they disagree or challenge him about his views.[15]
[15] See Transcript (13th July 2009) p.54.
He said that he did not know Mr W, but confirmed that there are constant disagreements and constant arguments with him at changeover. In this regard he said that he has no idea why the girls are frightened of telling their Father about their good relationship with
Mr W.[16]
[16] Ibid., p.55.
There were a range of statements by which Mr Hopkirk sought to cast doubt – directly or indirectly – on the evidence of Ms Michelin, particularly matters in her Report where she quotes [X] directly.
Mr Hopkirk disputed that his daughter said any of the things attributed to her by Ms Michelin. He acknowledged, nonetheless, that because he had not cross-examined or otherwise challenged Ms Michelin’s evidence (either in the Report or in the witness box) he was “in a very deep pool” and that he was “treading water….”[17]
[17] Ibid., p.58.
Indeed, I pointed out to him on many occasions during the trial that (a) he had the opportunity to challenge evidence of Ms Michelin, and others, (b) he chose not to do so, and (c) he never explained why he did not do so.
In the course of his cross-examination by Ms Godtschalk during which she inquired (a) why he had simply rehearsed only negative parenting and relationship issues in his affidavit material and (b) why he had not indicated anything positive about Mrs Whitby’s parenting (and that of Mr W too), Mr Hopkirk said that it was not his place to make such comments. In his words: “It’s not my place to see positive things in
Mr and Mrs Whitby.”[18]
[18] Transcript (13th July 2009) p.62.
Mr Hopkirk asserts that `his children are returned to him with bruising on their bodies, but this is not always the case.’ He annexed a range of photographs to his affidavit, which purported to establish the truth of his assertion. He also averred originally that he was advised by the police to keep a photographic record of alleged physical abuse, and that he had told the elder of the two children, [X], that he had to take the photographs of her and of her sister because the police had told him to do so. Later he resiled from that to say that he told [X] that he had simply been told to take these photographs, without any mention of the police.[19]
[19] Transcript (13th July 2009) pp.64-67.
He asserts that Mrs Whitby hits the girls. He also asserts that when questioned, [X] simply replies: “I don’t know Dad but Mum didn’t do it.”[20] Under further questioning, Mr Hopkirk confirmed that he believed his daughters and their denial that their Mother hit them. Nonetheless, he maintained this aspect of Mrs Whitby hitting the children despite (a) the children’s denials (which he said he accepted) and (b) Mrs Whitby’s evidence that, apart from one incident a number of year’s ago, she does not discipline them in this way.
[20] See, for example, the exchanges at Transcript (13th July 2009) pp.66-67.
Moreover, in relation to the one incident, which involved the use by Mrs Whitby of a wooden spoon, there were quite a number of versions given by Mr Hopkirk as to when and how he learnt of the incident. To say the least, his evidence in his regard was confusing. It was certainly unreliable.[21]
[21] The various accounts of events begin Transcript (13th July 2009) p.73 through to p.80.
Unfortunately, this was another instance which indicated that
Mr Hopkirk sought to raise issues that were highly contentious, which were certain to heighten tension between the parents, and which, upon closer examination, had little if any substance to them.
The final matter to note, as briefly as possible, concerns allegations made by Mr Hopkirk against Mr W. He contended that Mr W had threatened, on a number of occasions, to kill him.[22] To put it somewhat neutrally, there is some dissonance between Mr Hopkirk’s version of events as set out in his affidavit and what he put to the Local Court in Canberra regarding alleged threats made by Mr W, and in what was recorded in the police records.[23]
[22] This aspect begins at Transcript (13th July 2009) p.81.
[23] The transcript of the proceedings before the Local Court, together with the police report, are annexures to Mrs Whitby’s affidavit filed on 16th June 2009. I note too that when the AVO proceedings returned to the Local Court, Mr Hopkirk did not appear. It was suggested by Ms Godtschalk that Mr Hopkirk was content to seek an AVO on an ex parte basis but when he had to substantiate his allegations and face Mr W, he chose to absent himself. I need not make any formal findings or comment on such matters, other than to observe that such conduct is not to be recommended. I am not fully satisfied by Mr Hopkirk’s explanation that it was unnecessary to continue with those proceedings because orders were later made in this Court.
It is unnecessary to rehearse the differences in the two versions of events in relation to this matter, save that Mr Hopkirk’s version of events before the Local Court was somewhat more lurid than what was put before this Court. Indeed, so different were the accounts of events that Ms Godtschalk suggested strongly to Mr Hopkirk that he was lying in his evidence to one or both Courts. He denied this assertion.
Remarkably, Mr Hopkirk indicated that he thought that the communication between the parties “wasn’t that bad.”[24] This was his response to Ms Godtschalk asking whether he agreed that a degree of cooperation and communication between parents was necessary for a shared-care arrangement to work properly. He also said that he respected Mrs Whitby, and that he inferred that he had been able to consult with her in the past.
[24] Transcript (13th July 2009) p.87.
By way of conclusion of the evidence, Ms Godtschalk submitted that because Mr Hopkirk’s evidence was so unreliable, and because he chose not to cross-examine Mr W and did so only to a limited degree with Mrs Whitby, (a) she proposed not to go through all the matters raised in the affidavit material, and (b) submitted that the rule in Browne v Dunn was otherwise satisfied, which should result in findings essentially in favour of her client where there was any conflict in the evidence between that of Mr Hopkirk, on the one hand, and that of her client and Mr W, on the other.[25]
[25] Transcript (13th July 2009) p.1.
For my part, giving the benefit of the doubt to Mr Hopkirk wherever possible, and accepting that he is a self-represented litigant (albeit with some not insignificant court experience), I accept all of
Ms Godtschalk’s submissions in relation to the evidence
For the sake of completeness, I should set out the so-called “Rule in Browne v Dunn”, which has been outlined in detail in a number of places. For example, Hunt J, in the New South Wales Supreme Court, described it this way in Allied Pastoral Holdings Pty Limited v Federal Commissioner of Taxation:[26]
It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.
[26] (1983) 44 ALR 607 at p.623.
Hunt J’s description has been followed and applied in many cases, such as by the Full Court of the Federal Court in 3D Scaffolding Pty Limited v Commissioner of Taxation, and by the Full Court of the Family Court in Jacks v Samson.[27]
[27] Respectively, [2009] FCAFC 75 at [29]; (2008) 221 FLR 307 at [223].
I turn to consider the “legislative pathway” and matters relating thereto.
D. Legislative Pathway
In Stuart & Stuart,[28] I examined at some length the indicia and the risks for children where, as here, there is significant conflict. Much of the material to which I referred there is relevant to this case.[29] It is sufficient to note here the observations of Dr Altobelli FM in his paper, which I abbreviate to “Response.” They provide important context for the orders to be made in the light of my consideration of the “legislative pathway,” which follows.
[28] [2008] FMCAfam 177.
[29] See J. McIntosh and R. Chisholm, “Shared Care and Children’s Best Interests In Conflicted Separation: A Cautionary Tale from Current Research,” (2008) 20 Australian Family Lawyer 3-16; T. Altobelli FM, “A response to `A Cautionary Tale’: Learning to paint with a fine brush,” presentation to the 8th Annual Family Law Intensive, Sydney; R. Kaspiew, “Empirical Insights into Parental Attitudes and Children’s Interests in Family Court Litigation,” (2007) 29 Sydney Law Review 131; H. Rhoades, “The Dangers of Shared Care Legislation: Why Australia Needs (Yet More) Family Law Reform,” (2008) 36 Federal Law Review 279.
As summarised by Dr Altobelli, the features of a high conflict parenting relationship are: intractable disputes (e.g. multiple and repeat users of the legal system; unwilling to listen to or respond to advice, adopting fixed views or positions in negotiations); ongoing disagreement over day to day parenting practices; expressed hostility, verbal abuse, physical threats; intermittent violence; poorly concealed acrimony; on-going denigration of one parent by another; insidious embroilment in supporting the separate views of each parent.[30]
[30] Response: par.5, p.7.
In my view, most if not all of these features are present in the relationship between these parties. In those circumstances, I have the greatest difficulty in seeing how it can be in the children’s best interests for the existing shared-care arrangement to continue. Indeed, as the research of Professors McIntosh and Chisholm makes plain, children in such strained and otherwise fraught circumstances are at significant risk. Given the protective responsibilities of this Court, I cannot allow the shared-care regime to continue. I will return to the more exact terms of what orders are in the children’s best interests after I have negotiated the `legislative pathway.’
The objects and principles of the Act are set out in s.60B. I have already noted Brown J’s summary of them in Mazorski v Albright and will not repeat them here.
In determining what orders are in the children’s best interests (s.60CA), I must have regard to the primary (s.60CC(2)) and additional considerations (s.60CC(3)) spelt out in those sub-sections. In what follows, unless otherwise specified, I follow the order of additional considerations prescribed in s.60CC(3).
I have already noted, to the degree possible, Ms Michelin’s observations and comments from the children, [X] in particular, about their relationship with both parents. I will not repeat them. Such matters are relevant to s.60CC(3)(a) and (b). The only matter not addressed in this regard concerns the girls’ relationship with
Mr Hopkirk’s new partner. He said that marriage was [hopefully] in the offing but not immediately on the drawing-board. Ms Michelin noted that she did not come to the family conference, but she
(Ms Michelin) had offered, through Mr Hopkirk, for his female friend to speak with Ms Michelin. This did not occur.[31]
[31] See Transcript (13th July 2009) p.10.
Throughout these reasons I have presented relevant facts that, in my view, are directly relevant to a determination of the willingness and capacity of both parents to facilitate and encourage a close and continuing relationship between the girls and the other parent (s.60CC(3)(c)). The same facts and circumstances are relevant to the Court evaluating each parent’s attitude to the children and to their responsibilities of parenthood (s.60CC(3)(i)), and the matters highlighted by s.60CC(4) regarding capacity to communicate, facilitation of time spent with the children and participation in making decisions about major long-term issues in relation to the children. Ms Michelin’s evidence, from her Report and her oral evidence, is telling on all these fronts. In my view, in relation to all of these matters, accepting that it was acknowledged that there was fault on both sides, nonetheless the evidence tells very much in favour of Mrs Whitby, and (most unfortunately) quite negatively against Mr Hopkirk.[32]
[32] The same matters are relevant, in my view, in relation to s.60CC(4A).
In terms of the orders proposed and the likely impact on of any changes on the girls, there will be little practical impact on them from a day-to-day organisational point of view. However, it will almost certainly ensure that [X] and [Y]’s lives are much more settled and much less exposed to the risk of conflict.
There are no issues of practical difficulty and expense associated with the order proposed.
In my view, having regard to the matters canvassed under s.60CC(3)(f) and the provision for the children, both parents, in many respects, would be able to provide for the children’s needs, save that Mrs Whitby clearly has the advantage in relation to providing the most appropriate environment and has the much greater capacity to provide for the girls’ emotional needs. The same comments apply with respect to the matters addressed by s.60CC(3)(g).[33]
[33] The matters addressed by s.60CC(3)(h) have no application here.
To the degree necessary, I have considered earlier in these reasons matters relating to allegations of violence either involving the parties or, in so far as it is relevant, the contested and isolated issue of some years ago surrounding the disciplining of the children. That consideration will suffice, in my view, for the purposes of s.60CC(3)(j) and (k), as well as s.60CC(4A).
It remains to consider whether the presumption of equal shared parental responsibility should apply in this case. Unfortunately, Ms Michelin’s “prophecy” about Mr Hopkirk’s actions resulting in a diminution in the time that he spends with his daughters will come true. In my view, because of the very high level of acrimony and conflict between their parents, it would not be in their best interests for there to be such an order. Thus, s.61DA has no work to do here. Similarly, therefore, s.65DAA has no application either.
Most unfortunately, it is Mr Hopkirk’s own actions much more so than anything said or done by Mrs Whitby (or by Mr W for that matter) that has ensured or resulted in the Court making the orders it does today. One can only hope that he might accept some responsibility for the utterly negative actions that he has continued to mete out and ventilate in Court during these proceedings.
In conclusion, I venture to suggest to the parties that they might wish to consider reading a small section of another judgment of mine in which I offer some suggestions about dealing with the past and seeking to cultivate some strategies for the future. I offer it simply as a way out of the path of bitterness and recrimination which, to a large degree,
Mr Hopkirk seems intent on pursuing.
In her closing submissions, Ms Godtschalk contended that Mr Hopkirk was simply a “bully”, who, when faced with someone (such as Mr W) who was not intimidated by him, ran away. On the face of the evidence, there might be some truth to this. However, I offer the judgment in Monds & Mullan as a positive course (and source) to both parties about how they might “move on” with their lives and leave recrimination behind.[34]
[34] Monds & Mullan [2009] FMCAfam 58, especially at [20] – [34].
Formally, in my view, the orders that are in the children’s best interests, and which are the least likely to lead to further litigation, are those that are proposed by Mrs Whitby. I make those orders.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: D.R. Gale
Date: 6 August 2009
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