Whitehouse and Whitehouse
[2015] FCCA 3621
•20 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WHITEHOUSE & WHITEHOUSE | [2015] FCCA 3621 |
| Catchwords: FAMILY LAW – Final parenting – competing parenting applications – future care arrangements – allegations of family violence – consideration of unacceptable risk – where the child is enmeshed within parental conflict – inability of the father to support the child’s relationship with the mother – need to protect the child’s emotional health and right to a relationship with each parent – where a meaningful relationship with each parent is achievable on the mother’s proposal. |
| Legislation: Family Law Act 1975, ss.4, 4AB, 13C, 60B, 60CA, 60CC, 60CC(2A), 61DA, 64D, 65DAA(5), 65DAC, 102A, 121, |
| Cases cited: Jones & Dunkel (1959) 101 CLR 298 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Rickard Constructions Pty Ltd v Rickard Hails Merreti Pty Ltd [2004] NSWSC 984 Johnson & Page [2007] FamCA 1235 M & M [1988] HCA 68 A v A (1976) V.R 298 Stevenson v Hughes [1993] FamCA 14 In the Marriage of Stavros (1984) 9 Fam LR 1025 Mitchell & Mitchell [2014] FCCA 2526 Harrison & Woollard (1995) FLC 92-598 Re R Children’s Wishes [2000] FamCA 43 Other Articles Cited: Evidence (Business Records), NSWLRC 17, July 1973 Stephen Odgers Uniform Evidence Law 10th Edition Hon. John Fogarty A.M., “Unacceptable Risk – A Return to Basics”, (2006) Australian Journal of Family Law, 20 AJFL 249 |
| Applicant: | MS WHITEHOUSE |
| Respondent: | MR WHITEHOUSE |
| File Number: | AYC 275 of 2013 |
| Judgment of: | Judge Harman |
| Hearing dates: | 19, 20 March 2015 |
| Date of Last Submission: | 20 March 2015 |
| Delivered at: | Albury |
| Delivered on: | 20 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dart |
| Solicitors for the Applicant: | Rama Myers Family Lawyers |
| The Respondent appeared in person |
| Counsel for the Independent Children’s Lawyer: | Ms Giacomo |
| Solicitors for the Independent Children’s Lawyer: | Cater & Blumer |
ORDERS
That the mother have sole parental responsibility for the child X born (omitted) 2005 (“X”).
Before making any decision in accordance with Order 1 the mother shall:
(a)Give the father as much written notice as possible as to any decision that is to be made including the nature of that decision and the reason for it.
(b)Invite the father to make a written response to the matters raised in that written notice including whether he agrees and if he does not reasons for the disagreement.
(c)Consider any written response from the father and the matters that he raises in that written notice.
(d)Provide the father with written notice of the decision that was ultimately made.
That each parent have sole responsibility for the day to day care of X whilst X is in their respective care.
That X live with the mother.
That X spend time with the father as follows:
(a)During the school term:
(i)Each alternate weekend from after school Friday to before school Monday, commencing 27 March 2015;
(ii)Each alternate Thursday from the conclusion of school until the commencement of school on Friday, commencing 19 March 2015.
(b)For one half of each school term holiday periods as agreed between the parties but failing agreement, for the first half in even-numbered years commencing from after school on the last day of term and concluding at 5pm on the middle Sunday of the holidays and the second half in odd-numbered years commencing at 5pm on the middle Sunday of the holidays and concluding before school on the first day of term;
(c)For one half of the Christmas school holiday periods as agreed between the parties but failing agreement for the first half in even numbered years commencing from after school on the last day of term and concluding at 5pm on the day halfway through the holidays and the second half in odd-numbered years commencing at 5pm on the day half way through the holidays and concluding before school on the first day of term.
(d)On the Father’s Day weekend from after school Friday until before school Monday;
(e)Overnight on the father’s birthday in each year and if the Father’s birthday falls on a school night, from after school until before school or 9am the following day and if the Father’s birthday falls on a weekend, from after school Friday until before school Monday;
(f)If X is not in the father’s care on the morning of X’s birthday, from after school on the day of her birthday (or 3pm if a non-school day) until before school (or 9am if a non-school day) the following day so that X spends time with each of her parents on her birthday.
That the father’s time with X pursuant to Order 4 herein shall be suspended so that X is in the mother’s care as follows:
(a)On the Mother’s Day weekend, from after school Friday to before school on Monday;
(b)Overnight on the mother’s birthday in each year and if the mother’s birthday falls on a school night, from after school until before school or 9am the following day and if the mother’s birthday falls on a weekend, from after school Friday until before school Monday;
(c)If X is not in the mother’s care on the morning of X’s birthday, from after school on the day of her birthday (or 3pm if a non-school day) until before school (or 9am if a non-school day) the following day so that X spends time with each of her parents on her birthday.
That wherever possible changeover take place at school and if a non-school day, by the mother delivering X to the father’s residence at the commencement of the visit and the father returning X to the mother’s residence at the conclusion of the visit.
That if X has any (hobbies omitted) activities that fall on a weekend, the party that has X in their care shall ensure that X attends her activity and if that parent is unable or unwilling to do so, they shall notify the other parent no less than 12 hours before the activity is due to take place and the other parent shall be at liberty to take X to the activity.
That neither party shall relay messages to the other via X.
That all communication between the parties (unless agreed otherwise) be via text or email and such communication is to be polite and courteous and relate to the arrangements for X.
That the parties be, and hereby are, restrained from consuming alcohol to excess whilst X is in their care.
That the father do all acts and things necessary to ensure that X attends school at all times that it is open for instruction whilst X is in his care. In the event that X is unwell and unable to attend school, the father is to notify the mother by text message no later than 8 am that day and unless otherwise agreed, X is to be returned to the care of the mother by 8.30 am.
That each party shall notify the other as soon as practicable of any serious injury or illness suffered by X whilst she is in their care.
That the mother shall authorise X’s school to provide to the father, at his request and expense, copies of X’s school reports, school photographs and school newsletters and that the father be at liberty to attend events at X’s school to which parents are ordinarily invited to attend.
That the parties shall be, and hereby are, restrained from denigrating the other party, their family or partners in the presence or hearing of X.
That pursuant to section 68B, the father be, and hereby is, injuncted from:
(a)Attending any residence where the mother from time to time reside other than with the written invitation of the mother or as otherwise provided for in these Orders;
(b)Attending any school which X may from time to time attend on the days and times that she is due to be delivered to, or collected from, school by the mother, unless attending any event to which parents are encouraged or invited to attend and in which event the father shall ensure he is not present 15 minutes before or after the scheduled start or end time of school;
(c)Spending time with X as otherwise provided for in these Orders.
That pursuant to section 64D(2), these Orders may only be varied by varied by a subsequent order of the Court and not by way of a parenting plan.
Dismiss all outstanding parenting applications and responses and remove all issues with respect to parenting from the list of matters awaiting hearing.
Adjourn the property adjustment aspect of the proceedings for further mention and directions to 19 June 2015 at 9.30am.
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.
AND THE COURT NOTES
A.A reference in these orders to “written notice” is taken to be a reference to notice sent by way of SMS or email to the parties’ current email address or mobile telephone number.
IT IS NOTED that publication of this judgment under the pseudonym Whitehouse & Whitehouse is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ALBURY |
AYC 275 of 2013
| MS WHITEHOUSE |
Applicant
And
| MR WHITEHOUSE |
Respondent
REASONS FOR JUDGMENT
These are proceedings with respect to future parenting arrangements for a young child, X, born (omitted) 2005. X has, some days prior to the commencement of this hearing, enjoyed her 10th birthday.
The parties to the proceedings are X's parents, namely her mother, Ms Whitehouse, who is the Applicant and her father, Mr Whitehouse, who is the Respondent.
The parties proposals
The proposals of the parties are somewhat diametrically opposed.
The mother, by her Initiating Application filed 25 July 2013 had not sought parenting relief. The proceedings, when commenced, had related to issues of property adjustment only. That circumstance changed upon the filing of an Amended Application.
The mother has at all times, since a plea for parenting relief was joined to the present, been steadfast in her position that the child's best interests would be best met and addressed through the child living with her and spending time with the father.
There have been variations in the relief that has been proposed by the mother as to how that relationship might best be facilitated. Those changes have their etiology in the ongoing and continuing conflict between the parties to which I will return, it forming, to some extent, the fulcrum upon which this determination is made. I make clear that that is not to suggest that the child's best interests are not the paramount consideration in these proceedings. Indeed, they are and must be.
Conflict and poor communication is that which has led the parties down this path to a judicial determination of their daughter's future arrangements.
At the close of her case and through her Counsel the mother has tendered an amended Minute of Orders. The amendments are not substantial and largely incorporate matters which arose from the Bench or otherwise from the evidence during the course of the hearing.
That Minute of Order, Exhibit M4, provides, from the mother's perspective, that X's best interests would be best met through an Order for sole parental responsibility in her favour, (subject to certain reservations as to limited consultation with the father or, at least, seeking to elicit his input) and Orders that would substantially continue the present arrangement for this child's care, being her placement with her mother and spending time with her father each alternate weekend from Friday after school till Monday before school and in each intervening week from Thursday after school to Friday before school. The mother proposes an equal sharing of school holidays and certain other provisions with respect to special events, principally Father's Day, the mother's birthday and X's birthday.
The father, for his part, continues to seek Orders in accordance with his Response filed 26 September 2013. Therein, Mr Whitehouse seeks that the parents would have equal shared parental responsibility, that X would live with him and would spend time with her mother each alternate week from Wednesday to Thursday and each alternate weekend from Friday to Monday. Accordingly, the proposals that the parties each of them raise are not dissimilar, the only variance being, in essence, whether the time to occur in the intervening week, if it might be so described, is from Wednesday to Thursday or Thursday to Friday. The most substantial difference between the proposals is the determination of which parent will enjoy the primacy of care.
A significant issue arises, both as regards the facts and circumstances of the disintegrating relationship between these parties and application of the legislative pathway, by the contest between the parents with respect to parental responsibility and its allocation.
History of proceedings
This matter has, regrettably, been before the Court for some little time, although less than the majority of cases heard on this circuit. The proceedings have been on foot since 25 July 2013 a period of 20 months. It is regrettable that resources are not sufficient to have enabled an earlier conclusion of the matter in light of the evidence as to that which young X has endured during those 20 months.
What is clear from any cursory examination of the evidence is that during this 20 month period there have been a number of deteriorations, both with respect to X's arrangements and the parents' communication with each other. Importantly and not entirely disconnected, although not matters which must be determined factually by me, there has been a deterioration in the financial circumstances of the parties which has seen during the course of these proceedings:
a)The former matrimonial home being the subject of a Writ of Possession issued by the Supreme Court of New South Wales;
b)The father being locked out of the business premises from which he had previously conducted his (omitted) business; and
c)A general escalation in the overall level of debt, secured and unsecured, which will significantly impact these parents and X.
X has suffered the consequences of these deteriorations although she and to a large extent Ms Whitehouse, have had little or no control over the events leading to said consequences. If the Court’s resources allowed more timely access to justice some might have been avoided.
As a consequence of the above matters and during the course of these proceedings the husband has declared bankruptcy. The mother has indicated that this is a matter which she has considered and will continue to consider as regards any financial relief that she will ultimately press.
During the course of the proceedings there have been a number of interim Orders made which are of relevance and significance.
When the proceedings first came before the Court on 27 August 2013, Mr Whitehouse had not filed material. Orders were made for that to occur and the matter adjourned. Notwithstanding that material had not been filed a Conciliation Conference was allocated to allow facilitated negotiation to occur expeditiously.
The proceedings then came before a Registrar for the purpose of a Conciliation Conference. It was suggested in the Registrar’s Bench Sheet following the Conference that the financial matter, all that was on foot at that point, had been resolved consensually and that Terms of Settlement would be filed. That has never occurred. Indeed, as indicated, the financial position of these parties has deteriorated significantly since that time.
In the intervening period before the matter next came back before the Court on 31 October 2013, parenting issues were joined.
On 31 October, 2013 the proceedings were adjourned and an Order made for the appointment of an Independent Children’s Lawyer.
The matter was next before the Court on 28 November 2013. At that time the proceedings were adjourned for interim hearing to 27 February 2014. Clearly, by that date difficulties had arisen between the parties regarding parenting arrangements for X. A number of Orders of an interlocutory and procedural nature were made. Importantly, an Order was made on that date that the husband make all payments as and when they fall due with respect to the mortgage encumbering the former matrimonial home, the occupation of which he had resumed, those payments being a mere $220 per week. There is no dispute on the evidence that the Order requiring those payments was not complied with and that no payments were made after the Order had been imposed. It is as a consequence directly of that non-compliance and non-payment that the home has been seized and is in the process of being sold by the mortgagee in possession.
The proceedings continue to involve a claim for property relief, although that portion of the proceedings has not been conducted or addressed on this occasion. It is unclear whether that portion of the proceedings will require judicial determination.
On 27 February 2014, the parties and the Independent Children’s Lawyer agreed to a number of interim parenting Orders. They provided that X would spend time with her father each alternate weekend from after school Friday until before school Monday, for a period during school holidays, and “any other times as agreed between the parties”. Orders were also made which provided for telephone communication, being that the husband be able to telephone X “at all reasonable times”. Those Orders are a matter of some moment to which I will return.
The proceedings were next before the Court following release of the Family Report. The Family Report contained relatively clear recommendations. Some amendment thereto has been canvassed with the Report writer who attended for cross-examination.
On 17 July 2014, being the first Court event following the release of the Report, directions were made to list this matter for Trial. The matter has proceeded for the days upon which it was listed.
Orders were made for the parties to file material. Material has been filed, although there are certain deficiencies with respect to that material particularly that relied upon by Mr Whitehouse.
Also, of importance, on 17 July 2014 Orders were made pursuant to section 13C of the Family Law Act 1975 for the parties and each of them to contact the intake officer of (omitted) Family Care for the purpose of arranging and attending the first available and offered intake appointment for assessment of suitability to participate in and, subject to assessment of suitability, completion of the Parenting Orders Program. Both parties were assessed as suitable and young X was assessed as suitable for the Jigsaw Program. Both parties participated in the Parenting Orders Program. X was enrolled in and completed the Jigsaw Program, having attended her last session yesterday, day 1 of the hearing.
On 20 January 2015, further interim parenting Orders were made by consent and in Chambers. Those Orders had arisen, it would seem, from the parties' attendance at Family Dispute Resolution. The Orders made provision for periods of time during the past Christmas school holidays. The parties had also been able to agree to an extension of the Orders which had been made on 27 February 2014 and so as to include a further night spent by X in her father's care in the intervening week, thus bridging the period of 12 days which had previously occurred between the father's visits with X. X had raised some complaint and issue with the Family Report writer regarding that “gap”, and Mr Whitehouse had vociferously complained since the separation of these parties.
Material considered
In dealing with the proceedings today, I have read and considered each of the following documents.
In the case of the mother, I have read and considered:
a)Her further Amended Initiating Application filed 23 August 2013, together with;
b)Her Affidavit of evidence-in-chief sworn or affirmed 9 January 2015, filed 12 January 2015;
c)An Affidavit of Mr A, a friend of the mother. That Affidavit had been sworn or affirmed 2 February 2015, filed 3 February 2015;
d)An Affidavit of Ms S, a clinical psychologist, upon whom the mother has attended for a number of appointments. That Affidavit had been sworn or affirmed 16 March 2015; and
e)A Case Outline document provided by Counsel for the mother prior to the commencement of the hearing.
In the father's case I have read and considered:
a)His Response filed 26 September 2013; and
b)His Trial Affidavit sworn or affirmed 13 March 2015, being the Friday preceding the hearing.
The Independent Children’s Lawyer has provided a Case Outline document which I have read and considered. There is also before the Court a Family Report, Exhibit A dated 12 June 2014.
A number of Exhibits have been received in the mother’s case comprising:
a)Exhibit M1, certain material from the (omitted) Health Service with respect to an admission to hospital of the father after he had ingested certain prescription medications and alcohol;
b)Exhibit M2, hospital admission notes regarding the same event;
c)Exhibit M3, school records with respect to the child, particularly her absences from January 2014 to 4 March 2015;
d)Exhibit M4, the Minute of Orders proposed by the mother.
In the father's case I have received one Exhibit, although the document is relied upon and the mother had sought to also tender it in her case, comprising a video of events which developed and took place at the school of young X on 2 June 2014. Those events, together with the communication between the parties generally, assume some great significance and require some attention in these proceedings.
Conduct of the trial
As is common in proceedings before the Court the father appeared on a self-represented basis. The father was, for a very brief period early in the proceedings, legally represented and it would seem, legally aided with respect to that representation. For the majority of the proceedings since their commencement, and certainly for the totality of this hearing and preparation therefore, the mother was legally aided.
In opening the Trial I had addressed with Mr Whitehouse the matters set out at paragraph 253 of Re F Litigant in Person Guidelines (2001) FLC 93-072 and in particular, those portions of that paragraph imposing obligations upon the Court to bring certain matters to the father's attention.
Whether they have provided assistance to the father or not will never be known. His case has not been conducted with any significant attention to Trial process, although he cannot be criticised for that. It is not his training or qualification. However, it has certainly impeded, I would imagine, the presentation of his case which has otherwise been less than credible.
Issues relating to evidence
Before turning to the evidence in general, I must make clear that two additional matters arose in the Trial and which were dealt with as preliminary issues before embarking upon the substantive dispute between the parties.
Firstly, an Application in a Case was filed by the Independent Children’s Lawyer on 5 February 2015 and which sought Orders as follows:
(1) That pursuant to Rule 3.05 of the Federal Circuit Court Rules 2001 this application be listed urgently.
(2) That this interim application be heard by a Federal Circuit Court Judge other than Judge Harman.
(3) That paragraph 82 Annexure W-21 of the Mother's Affidavit filed 12 January 2015 be uplifted or otherwise redacted from the affidavit on the basis that the evidence is inadmissible and prejudicial.
(4) That the mother pay the ICL's costs of and incidental to this application.
A Response thereto was filed by the mother on 16 March 2015. It sought dismissal of the Application and it pressed and unsuccessfully prosecuted, an Order for indemnity costs as against the Independent Children’s Lawyer.
In dealing with that Application, submissions were put by the Independent Children’s Lawyer in support of the Application and by the mother in opposition thereto.
The Independent Children’s Lawyer submitted that the material contained in the identified paragraph and annexure to the mother's Affidavit should be excluded by reference to sections 135 or 136 of the Evidence Act 1995 (Cth) as “unfairly prejudicial” (presumably to the father).
It was also suggested that the complained of material was not relevant to the issues in dispute between the parties and/or to the extent that it was, that the material might still be excluded on the basis of its probative value being outweighed by the potential to cause prejudice to, it would appear, the father rather than X or her best interests.
Submissions were put by the mother's Counsel to the effect that it was simply not the role of the Independent Children’s Lawyer to bring and prosecute such an action and that if such an Application were to be made that it should have been properly made by the father.
I pause at this point to note that in all probability, it was the desire and intention of the Independent Children’s Lawyer to ensure that these proceedings were concluded and expeditiously so. If it were apprehended that some Application might be made by the father or that it might arise from the Court's own motion that some prejudice was perceived to the father by material being included and having been considered, that the Trial might be aborted or Application made for recusal. No Application was made by the father who did not put any submissions speaking to the Application to suggest prejudice but sought to apologise for the contents of the suggested Facebook posting forming the annexure.
The material ultimately, I am satisfied, has the potential to be prejudicial to the father but not within the scope of decisions such as Ainsworth & Burden. The prejudice to the father is that it may well create some difficulty as regards his credit, not prejudice as regards the conduct of the proceedings or prejudice as regards the subject matter of the proceedings, i.e., the child's best interests.
The mother submitted that the material objected to was clearly admissible. I accept that it is so. Admissibility is determined by reference to section 55 of the Evidence Act 1995. If the material is relevant, then it is admissible, subject to other possible challenges as to form, privilege or otherwise.
The paragraph of the mother’s Affidavit complained of provides that, “Mr Whitehouse was clearly unhappy about the matter not being listed for interim hearing and following the attendance at Court on 17 July 2014”. It should be observed that prior to that mentioned date and following release of the family report, that an application in the case had been filed by Mr Whitehouse seeking orders for equal time spent by X with each parent.
That Application, to the extent that it was before the Court, was problematic:
a)Firstly, it would appear to have completely misunderstood or misapprehended the nature and effect of the Family Report and its recommendations;
b)Secondly, it would appear to have misunderstood the place of the Family Report in the evidence, being part of the evidence only, not a determination of the proceedings. Matters are not conducted on the basis of parties being required to demonstrate why the recommendation of a Family Report should not be followed. Family Report recommendations are simply part of that which the Court must have regard to;
c)Thirdly, and to the extent that the balance of the material to which I will return shortly must be considered, the father perceived that his Application in a Case had not been dealt with on the day due to pressures of work or some other extraneous reason, I make clear that there is no basis to such a belief or assertion. It was made clear that the Application in a Case filed by Mr Whitehouse sought to pre-empt determination of the final proceedings and it was, accordingly, consolidated with all extant Applications to be heard, expeditiously as it was, at final hearing.
The paragraph then goes on to incorporate certain portions of that which is otherwise contained within the annexure referred to, that annexure being a Facebook posting by Mr Whitehouse that provides:
Seems today is just fitting to add some asholes (sic) to my list… Fuck you judge harmon (sic),its (sic) not my fault your workload is so high and you cant (sic) be bothered reading my affidavits or application in a case which you insisted that I do - fuck you…
I make clear that the Application in a Case and Affidavit were read. I also make clear that no direction was made requiring that they be filed. Accordingly, those assertions would appear to also be misapprehensions.
The Facebook posting continues with various other criticisms in the most offensive and misogynous terms with respect to the mother's attorneys, suggested perjury by an unidentified person, suggested professional misconduct by a firm of accountants for whom the mother works and who had previously prepared tax returns for the father, as well as a witness to be called in the mother's case before turning to criticism of the Police and others.
It concludes, “Go ahead you assholes call me a liar oh and fuck the court appointed family report that recommends 50/50”.
Again, I make clear the Family Report does not and has never made such a recommendation.
To the extent that the material might have been perceived by the Independent Children’s Lawyer as:
...the spray directed by the father towards various persons connected with these proceedings and other events affecting the father's life -
I am not concerned to the extent that they are directed to me.
I am satisfied that the father should he be unhappy with the conduct of the proceedings, is entitled to express his views as he desires, even if that is by public postings on Facebook. It is a matter for others whether this is in breach of section 121 of the Family Law Act 1975.
The father submitted that whilst he did not seek to exclude the material but purely to apologise for it, that he is concerned that the mother is or must have been stalking him to obtain it as it had only been posted for some 12 minutes before he realised the error of his ways of the offence which the posting contained, and thus withdrew it. Whether that is so or not I need not determine.
In any event, the material clearly, on its face, was relevant to the issues in dispute between these parties, particularly regarding matters raised in the mother's case such as:
a)The father's attitude towards her;
b)The father's attitude towards all those involved in the conduct of the proceedings and the determination of his relationship with X as he perceives it; and
c)The father's propensity for what might be broadly described as “emotional immaturity”.
On that basis, the material being relevant and any prejudice arising from the document, the father's own document, not falling within the ambit of that required to be demonstrated by settled authority, the material was admitted.
Secondly, an issue arose with respect to a subpoena issued by the father addressed to the mother's employers. The recipients of that subpoena had filed an objection principally based upon two factors:
a)Firstly, the scope of the subpoena. The father, by the subpoena, sought the production of documents with respect to the mother's employment for a period from December 2004 till 2006, a significant portion of that period pre-dating the child's birth. Accordingly, it was pointed out to the father that it was unlikely that this material could possibly be relevant;
b)Secondly, objection was raised on the basis that the scope of the subpoena required such work that payment in advance for the work to be undertaken was required before material would be produced. That is an Application that the recipients of a subpoena are entitled to make pursuant to rule 15A.09 of the Federal Circuit Court Rules 2001.
Ultimately, whilst many issues might have been raised by the objection, the father, faced with those concerns, withdrew the subpoena and any call thereupon.
A third evidential issue arose during the course of the Trial and with respect to the evidence produced by the mother's counsellor, Ms S. Ms S was available for cross‑examination and was briefly cross-examined by the Independent Children’s Lawyer. The father declined the opportunity for cross‑examination.
Ms S gives clear evidence that she has engaged with the mother over various periods of time to provide her with support. She annexes a copy of her qualifications and experience to the material. I am satisfied that her curriculum vitae clearly establishes that the matters spoken to within her Report are within her expert knowledge and qualification.
The Affidavit sworn by the psychologist incorporates correspondence from the mother's attorney positing six specific questions to be answered by Ms S. Two of the answers to those questions were challenged by the Independent Children’s Lawyer as inappropriately before the Court.
Ms S is a person who has provided therapeutic treatment and assistance to the mother. She is also a qualified psychologist. Ms S was asked for her opinion as to whether the mother suffered from any mental health condition and, if so, the nature of it and whether it rendered the mother a risk to either herself or to the child, and flowing therefrom whether the mother suffers from any condition that would render her a risk by and of itself, whether by diagnosed mental health condition or otherwise, to herself and the child.
The Court was referred, in opposition to those portions of the Report and their specific inclusion, to rule 15.41 of the Family Law Rules 2004.
The Family Law Rules 2004 do not apply to these proceedings. The Family Law Rules 2004 are those which guide the conduct of proceedings before the Family Court of Australia. The Federal Circuit Court Rules 2001 deal with proceedings in this Court.
Part 15 of the Federal Circuit Court Rules 2001 deals specifically with expert evidence. The substantial difference between this Court's Rules and those which operate under the Family Law Rules 2004 is the gravitation towards single experts in the presentation of any evidence under the Family Law Rules 2004 but not the Federal Circuit Court Rules 2001.
Often it is confused that in property proceedings, for example, that evidence as to value must be produced by a joint expert appointed by the parties or the Court. It is simply not so under this Court's Rules. The parties are entitled to obtain their own expert evidence such as they desire.
To the extent that it is submitted that as the Federal Circuit Court Rules 2001 make no provision for the production of such expert evidence, that the Family Law Rules 2004 should apply, I am conscious of the Full Court's recent decision dealing with that issue (Thompson & Berg [2014] FamCAFC 73).
The absence of a provision does not, of itself, give rise to a deficiency or inadequacy in this Court's Rules. I am satisfied and was so satisfied at the time but having provided no reasons at that time and feeling compelled to do so at this point, that there is no prohibition on the production by the parties of expert evidence of this nature. It is also not excluded and could not suggest to be excluded by section 102A of the Family Law Act 1975.
I am satisfied that the admissibility of the good psychologists evidence extends to and includes the production of, or the eliciting of, professional opinion from experts who may be involved in treatment of a person.
In that regard, I am not concerned that either a conflict of interest or any breach of the Federal Circuit Court Rules 2001 arises from Ms S being both a treater, for quite some years, of Ms Whitehouse as well as offering the expert opinion that is sought of her. It is clearly within her professional knowledge and experience.
Ms S is to be commended in that the evidence that she has given in response to those questions has been concise, erudite and limited entirely to that which was within her personal knowledge and skill set and specific to, confined to and relating to that which is known from the mother and about the mother. She does not, for example, offer opinions with respect to the father or the child, purely the mother. That evidence, thus, forms part of that which is before the Court.
A number of other evidential issues arise which I will deal with briefly and by reference to an incorporation of prior decisions.
I incorporate paragraphs 63 to 88 of my earlier decision in Deacon & Castle [2013] FCCA 691, that is, to highlight the applicability of the Rules of evidence to proceedings before this Court. That is so notwithstanding the provisions of Division 12A and notwithstanding the mandate imposed upon this Court by the Federal Circuit Court of Australia Act 1999 to proceed with informality of process.
Rules of evidence generally
63. These proceedings, dealt with as they are pursuant to Part VII Division 12A of the Family Law Act 1975, are not the subject of strict application of certain portions of the Evidence Act.
64. Division 12A and, in particular, section 69ZT(1) provides:
(1) These provisions of the Evidence Act 1995 do not apply to child-related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
65. Section 69ZT(1) is subject always to sub-sections (2) and (3) which provide:
(2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
66. I have not taken the step of seeking to declare my satisfaction that the circumstances of the proceedings are “exceptional” such that the rules of evidence would apply strictly to the totality of the proceedings or any specific portion thereof.
67. I did, at the commencement of the trial, make clear to the parties that section 69ZT(2) would have significant impact on these proceedings (for reasons that I will explain in detail shortly) and as a consequence of its application that little, if any (emphasis added), weight would be attached to material which did not comply with the portions of the rules of evidence otherwise expressed not to apply as a consequence of section 69ZT.
68. Similar issues were apprehended as regards evidence relating to statements suggested to have been made by the children or either of them and admissible as a consequence of section 69ZV which provides:
(1) This section applies if the court applies the law against hearsay under subsection 69ZT(2) to child-related proceedings.
(2) Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay.
(3) The court may give such weight (if any) as it thinks fit to evidence admitted under subsection (2).
(4) This section applies despite any other Act or rule of law.
(5) In this section:
"child" means a person under 18.
"representation" includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.
69. It is to be noted that section 69ZV includes a similar provision to section 69ZT(2) in that the Court may, by sub-section (3), “…give such weight (if any) as it thinks fit to evidence admitted…” regarding representations made by a child.
70. Germanely, it is important to note that Division 12A does not exclude Part 3.11 of the Evidence Act dealing with discretionary and mandatory exclusions.
71. Sections 135 and 136 of the Evidence Act provide:
135. The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
136. The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
72. The general discretion to exclude or limit the use of evidence pursuant to sections 135 and 136 has some real application to these proceedings (and any proceedings subject to Division 12A) and, in particular, the weight attached to evidence which would not, but for the provisions of Division 12A, be admissible and the weight, if any, to attach to that evidence so admitted. That is particularly so as regards substantial portions of the material filed in Mr Castle’s case.
73. It is to be noted that until shortly prior to the hearing of the matter that Mr Castle was self represented (indeed when the matter was initially listed for hearing in February 2013 Mr Castle remained self represented). Thus, Mr Castle has prepared material on his own behalf and without the benefit, assistance and guidance of an attorney.
74. Notwithstanding the above, it is to be observed that due process must be afforded to both parties. It is not appropriate to nor will the Court allow favour to a party and differentially apply rules of evidence based upon whether a party is represented or not.
75. Whilst it is common for parties before this Court to be self represented, the same rules of practice, procedure and, importantly, evidence apply to them as apply to parties who are capably legally represented.
76. One of the purposes for the inclusion of Division 12A may well have been to seek to obviate against difficulties faced by self represented litigants in preparing material to be filed with the Court in support of their application or response. However, the requirement of due process can never obviate against the equal dispensation of justice.
77. The creation of different or unequal requirements as regards the production of evidence, by represented and self represented parties, is inappropriate [emphasis added]. To countenance same would be to deny due process to the represented party and, in reality, both parties though especially to the party who is legally represented and required to answer a case which is potentially unanswerable.
78. The rules of evidence have evolved over a significant period and have since 1995 been codified by Parliament. The rules of evidence are designed to ensure the integrity of the process and to ensure that each party before the Court is able to do that which is enshrined within our legal process (as far back as Magna Carta) and being the right to properly meet and test a case which one is called upon to answer.
79. It is to be noted that the Federal Circuit Court Rules 2001 provide for the order in which evidence is to be given and submissions made by parties (Regulation 15.02) and orders were made, at the time hearing dates were fixed, for the filing of Affidavit material by each party. Those orders provided and envisaged that each party would file an Affidavit and do so sequentially.
80. Ms Deacon has filed and relied upon an Affidavit in these proceedings. Mr Castle has sought to file and rely upon a considerable number of Affidavits including Affidavits in reply to Ms Deacon and her witnesses. This has made the consideration of material far more complex but ultimately has been an allowance extended to Mr Castle on the basis of his prior self representation.
81. Partially in reliance upon the above leniency, leave was also granted to Ms Deacon to identify and tender a proof of evidence in response to Ms Deacon's Affidavits and particularly his most recent Affidavit sworn and filed only some days prior to the hearing.
82. My concern regarding the voluminous material filed by Mr Castle relates not only to its volume, its difficulty to follow (for example there being numerous Affidavits all dealing with the same incidents) and the inclusion of material that would appear largely, if not completely, irrelevant. I am further concerned, however, that Mr Castle has, with respect to significant elements of his case:
a) Sought to rely entirely upon hearsay evidence. This has been particularly so as regards as the suggested “dragging” of X at school changeovers in late 2009/early 2010 (one of the more significant issues raised); and
b) Sought to adduce evidence by third parties by annexing to his material documents or statements produced by them (including, in one case, a document addresses “To The Presiding Magistrate”).
83. I made clear to the parties before reading and considering any of their material and before either party was called for cross examination that no weight would be attached to such material (and which could not appropriately be described as evidence). This was particularly so by reference to sections 135,136 and 140 of the Evidence Act.
84. Section 140 of the Evidence Act provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
85. This reflects a codification of what has previously been referred to as the “Briginshaw scale” (Briginshaw v Briginshaw (1938) 60 CLR 336).
86. On the basis that I am asked by each of the parties, and for different reasons, to make a finding of “unacceptable risk”, I am satisfied that the standard of proof which I must apply with respect to such determination is impacted section 140 and thus involves proof on the balance of probabilities but to a level approaching but not reaching the criminal standard. This is particularly so having regard to the subject matter of the proceedings and the gravity of the matters alleged, that is, a physical assault upon the child (as alleged by Mr Castle of Ms Deacon) or psychological or emotional abuse of X (as alleged of Mr Castle by Ms Deacon). On that basis I can do nothing other than apply the civil standard at its highest possible level and exclude or place no weight on material that is unreliable, prejudicial or subject to exclusion but for the provisions of s.69ZT.
87. In connection with those matters, I am concerned that material sought to be introduced in such fashion, particularly by Mr Castle (being hearsay, unsworn testimony by unidentified third parties and the like) is unfairly prejudicial to Ms Deacon who cannot test such evidence nor seek to challenge it in any fashion nor respond to it. Thus, whenever such issues have arisen in the evidence (which I will attempt to identify specifically but which would be clear from any consideration of Mr Castle’s material) I propose to refuse to admit the evidence as its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or confusing. Alternatively, the material can be viewed as admitted pursuant to Division 12A but accorded absolutely no weight (and with the same consequence-it will not be relied upon). Indeed, the probative value of such evidence (being unsworn hearsay) is so little that on either of the above bases it could not be relied upon as its value would be entirely outweighed, particularly by reference to section 140, by its prejudice or potential to cause injustice.
88. No adjournment of proceedings has been sought to remedy the evidential defects of Mr Castle’s case and notwithstanding that the approach which I propose to adopt and have so adopted was made clear prior to the evidence commencing.
Process is intimately connected with due process as I had attempted to make clear in that earlier decision.
Whilst certain portions of the Evidence Act 1995 are expressed to not specifically apply to parenting proceedings under the Family Law Act 1975, the admission of such material is always subject to weight. The entirety of the Evidence Act 1995 is not excluded only certain portions. I do not expect that Mr Whitehouse has had regard to the codified provisions of the Evidence Act 1995, nor the common law provisions which would have guided a more expert preparation of his case for Trial.
However, as I had also endeavoured to make clear in Deacon & Castle and, in particular, commencing at paragraph 74 therefore:
…due process must be afforded to both parties. It is not appropriate, nor will the Court allow favour to a party and differentially apply rules based upon whether a party is represented or not.
If one were to allow, as it were, open slather to Mr Whitehouse in presenting material that is clearly inadmissible and irrelevant, then one must:
a)Permit the same luxury to Ms Whitehouse, although that will achieve nothing but to further cloud the issues before the Court; and
b)Be conscious of the prejudice to Ms Whitehouse as a consequence of her being presented with material she cannot possibly answer. A party should not be prejudiced purely as they choose to be or are competently represented.
There is good reason why the rules of evidence exist. It is to ensure the integrity of the process and ensure that due process is afforded.
Otherwise, with respect to evidential issues, I also incorporate from my earlier decision of Gabel & Meltzer [2014] FCCA 604, and commencing at paragraph 176, therefore, those portions as edited herein which deal with:
a)The admission of business records and reliance thereupon;
b)The rule in Browne & Dunn (1893) 6 R 67 (HL) dealing with cross-examination and presentation of contrary propositions to witnesses;
c)The rules in Jones & Dunkel (1959) 101 CLR 298 and the failure to call evidence clearly available; and
d)Makita & Sprowles (2001) 52 NSWLR 705.
All of those factors arise in this case which I will touch upon, albeit briefly, in a discussion of the evidence.
Evidential issues
A number of evidential matters must be addressed by me before concluding a discussion of the evidence and turning to the legislative pathway.
Admission of business records and reliance thereupon
……The admission of the record is not, by and of itself, proof of the contents of the record.
Section 69 of the Evidence Act permits, as an exception to the hearsay rule, the admission of business records. This is, in accordance with subsection 2 on the following basis:
(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
Whilst the contents of the document is not proved by the record having been made the comments of the New South Wales Law Reform Commission in its Report, Evidence (Business Records) makes clear that “… the fact that the statements were to be used by the business provided a strong incentive for accuracy”.[1]
[1] Evidence (Business Records), NSWLRC 17, July 1973.
I accept that each of the authors of the records which have been admitted as business records (without objection), is independent of the parties, objective and has accurately recorded that which has come to their knowledge whether through direct observation or through perception.
To the extent that opinions are offered within any of the documents admitted pursuant to section 69 of the Evidence Act (particularly as regards Police records and those of supervisors of time between Mr Gabel and the children) I am satisfied that I should be guided by the comments of French CJ, Heydon and Bell JJ in their joint judgment in Lithgow City Council v Jackson [2011] HCA 36 and such that the words “saw heard or otherwise perceived” should include “to observe by one of the five senses of sight, hearing, smell, taste or touch” (as discussed in Stephen Odgers “Uniform Evidence Law 10th edition at page 307) and further that “the party adducing the evidence does not have to satisfy the Court that the person who made the representation had personal knowledge of the asserted fact. It will be enough that he or she “might reasonably be supposed” to have had such knowledge…”
In Rickard Constructions Pty Ltd v Rickard Hails Merreti Pty Ltd [2004] NSWSC 984 McDougal J stated at [19]:
in this context I think the words “or might reasonably be supposed to have had personal knowledge” indicate that the court is allowed to draw inferences not just from the form of the document but from the nature of the information contained in it…there is no need to identify the person who made the representation in the busies record the person with the pre-requisite knowledge [Lee v Minister for Immigration and Multicultural Affairs] 2002 [FCA 303 per Hely J at 22]; Australian Securities Investment Commission v Ridge [2005] 216 ALR 320 per Austin J at 197; Guest v Federal Commissioner of Taxation [207] FCA 193 per Heerey J at 25-31; Forbes Engineering (Asia) Pty Ltd v Forbes (no 4) [2009] FCA675 Collier J at 104.
I am satisfied that I can, should and will accept as accurate the contents of each of the documents that have been tendered as exhibits and admitted as business records pursuant to section 69 of the Evidence Act.
Particularly as regards the Police records there is no significant challenge by Mr Gabel (or any challenge which I consider credible) to the accuracy of their contents and thus I accept the accuracy of those records both as to the observations made and as recorded and as corroborative of Ms Meltzer’s evidence.
Browne & Dunn
Mr Gabel’s case is very much typified by the absence of information. It is also plagued by the absence of information that would be relevant (which will be dealt with separately by reference to Jones & Dunkel (1959) 101 CLR 298 issues).
Mr Gabel’s evidence is largely absence comment upon or response by him to the evidence of Ms Meltzer or the evidence of Ms Meltzer’s mother (who was not cross examined at all).
Mr Gabel did not instruct his Counsel to engage in cross examination of Ms Meltzer regarding the majority of her evidence and especially serious allegations or issues of significance.
I accept that the absence of cross-examination and such matters has occurred upon instructions. I do not intend to suggest or imply any degree of negligence (to the extent that that is a relevant concept) by Counsel for Mr Gabel. Mr Gabel’s case has been prepared and conducted in accordance with his instructions and to the extent that he has allowed and permitted it to be so.
Mr Gabel does not substantially refer to, comment upon or present any evidence regarding events demonstrative of family violence as led in Ms Meltzer’s case. This is significantly addressed above in canvassing of the evidence.
In light of the above one is reminded of the comments of Lord Herschell in Browne & Dunn (1893) 6 R 67 (HL):
“… I cannot help saying that there seems to me to be absolutely essential to the proper conduct of a case, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do so if such questions had been put to him, the circumstances which it is suggested to indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit… I have always understood that if you intend to impeach a witness you are abound, whilst he is in the box, to give him an opportunity of making explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.
The allegations of violence and the specific particulars of each allegation as raised in Ms Meltzer’s evidence were not canvassed with her at all in either Mr Gabel’s affidavit evidence or cross-examination.
To the above end I am particularly appreciative of the comments of Wells J in Reid v Kerr (1974) 9 SASR 367 at 373-4 which I consider the most apt and appropriate description of the difficulty that arises in this case and the interpretation and application of the rule in Browne & Dunn as follows:
…a judge… is entitled to have presented to him... issues of fact that are well and truly joined on the evidence; there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne & Dunn has not been observed, have not been brought into direct opposition, and serenely past one another like two trains in the night.
In reliance upon the above passages I am satisfied that wherever there is conflict between the evidence of Ms Meltzer and Mr Gabel, particularly but not solely confined to issues of family violence and the particulars thereof, that the evidence of Ms Meltzer should be accepted.
Jones & Dunkel
Significant Jones & Dunkel issues arise in this case.
As is clear from the above Mr Gabel has presented minimal evidence in his case and particularly so as regards the central if not pivotal issues, the fulcrum upon which the case substantially balances, his present mental health, symptomology, treatment, diagnosis and the impact of these factors (individually and cumulatively, and at least historically by reference also to issues of drug and alcohol abuse) upon his capacity to act as an appropriate member of civil society, conduct himself in an appropriate fashion as regards Ms Meltzer and the children (and others) and provide these children with an opportunity to experience a relationship with him in a safe and appropriate environment.
The failure by Mr Gabel to call any evidence with respect to his present mental health, his past, present or future treatment or to corroborate that asserted by him (albeit minimal in nature) is somewhat fatal to his cause.
Mr Gabel did not provide any explanation as to why this evidence had not been called other than to indicate, with respect to his general practitioner, that he did not consider it “relevant”. I do not accept that Mr Gabel would not have been disabused of that notion, had he raised it with his attorneys. Indeed, he should have been disabused of that notion by each of the two reports commissioned in the proceedings.
I note and receive considerable assistance from the joint judgment of Gibbs ACJ, Stephen, Mason and Aitken J in the High Court’s decision of Brandi v Mingot (1976) 12 ALR 551 (at pages 559-560) and as quoted with approval by Campbell J in Manly Council v Burn and another (2004) NSWCA123 at 51 follows:
.. if a witness is not called to different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party that failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn.
I am satisfied these principles should apply to Mr Gabel’s case.
To the extent that there is an absence of evidence regarding
Mr Gabel’s mental health, treatment therefore, diagnosis, compliance and the like I am satisfied that an adverse inference should be drawn as to Mr Gabel’s present mental health, engagement with treatment and overall “wellness”. This is particularly so as the only reference I have to any opinion by a treating practitioner (or relatively recent treating practitioner) is the reference by Dr R to his discussions with Mr Gabel’s last treating psychiatrist which was suggested by Dr R to confirm his concerns that in addition to personality issues that Mr Gabel also experienced and suffered from a recurring psychotic illness and which was further exacerbated through poor insight and poor compliance. Dr R indicated that Mr Gabel’s past psychiatrist had, for 12 months been unable to obtain any appointment with Mr Gabel or regular compliance with medication and that:
He had presented with persecutory delusions (Mr Gabel’s evidence was, indeed, typified by his being able to “point the finger of blame” at various persons (particularly Ms Meltzer and Ms A) for the difficulties that had befallen him as a consequence of his actions towards them rather than, in self-reflective fashion, stepping back from those behaviours and accepting his own responsibility and culpability let alone the impact of those behaviours upon those persons).
Having been diagnosed with a personality disorder with cluster B traits relating to anti-social behaviour.
Gaps in treatment.
Periods of homelessness
Periods of erratic or non-compliant behaviour.
Thus I am satisfied that evidence has not been called by Mr Gabel from treating psychiatrists or other practitioners as that evidence would, in all probability, provide little or no support (if not direct contradiction) to the optimistic prognosis and presentation suggested by Mr Gabel.
As regards the absence of other relevant witnesses, (such as for instance his parents who were for a significant period the supervisors of his time with the children) I am satisfied that this would not only give rise to a negative inference as to the support to be provided by their evidence to Mr Gabel’s cause but also the fact that their evidence would cause harm to Mr Gabel’s case.
It is to be remembered that Mr Gabel’s parents had been implicated in a number of regrettable and negative events relating to the children including:
The failure to return the children (on Mr Gabel’s evidence on his instruction) to Ms Meltzer’s father (the Bunnings incident).
The involvement of Mr Gabel’s mother in the removal of [X] from school and [Y] from pre-school and presentation thereafter at the hospital.
The introduction of the children to Mr Gabel’s brother who is restrained from coming into contact with the children pursuant to Orders made by consent between the parties and as to which Mr Gabel indicated that he had made his parents fully aware (indeed his evidence suggested that they were at Court in his place when that Order was made).
At no point in his evidence did Mr Gabel give any cogent or tangible reason why any of the relevant witnesses who might have been called in his case were not so called.
The Jones & Dunkel inferences that arise would be sufficient and I am satisfied should be sufficient to cause me to reject Mr Gabel’s evidence whenever it is in conflict with that of Ms Meltzer or the other available objective evidence introduced through business records.
Makita & Sprowles
Heydon JA’s judgment in Makita (Australia) Pty ltd v Sprowles (2001) 52 NSWLR 705 makes clear, to paraphrase His Honour’s reasoning, that an expert is required to identify the factual matters relied upon by them in formulating and expressing their opinion (to be based on specialised knowledge) and for those matters to be proven as fact for the opinion to attract weight and or be relied upon.
Such reasoning has been reaffirmed by the High Court in Dasreef Pty Ltd v Howchar (2011) 277 ALR 611 and others.
The expert evidence that is before the Court (the Reports of Dr H and Dr R) has undertaken careful analysis as is clear within each of those reports.
Each of the report writers are highly competent, experienced and excellent practitioners.
Dr H’s Report, to the extent that it has relied upon the assertions of Mr Gabel, has made certain recommendations. As indicated above I do not accept those recommendations as current or valid (indeed the Report is now some two and a half years of age). However, more fundamental to the rejection of those recommendations is the very caveat appropriately contained by Dr H within his Report being that certain findings of fact would need to be made by the Court prior to their acceptance. The assumption of those facts by Dr H was and is entirely appropriate particularly in the context of the caution urged by him as to their acceptance without obtaining further evidence and the Court being satisfied as to the reliability of the information advanced by Mr Gabel.
As would be apparent from the above I do not accept the information advanced to Dr H by Mr Gabel. I do not accept it at all. In fact I find it to be, at best, a partial and an inaccurate reportage of then current events if not a disingenuous or deliberately deceptive euphemism of those events with significant exclusion of matters which Mr Gabel would have been fully aware would not have assisted him.
As regards Dr R’s Report I am satisfied that the matters that he has relied upon have been the subject of due and diligent enquiry and have been the subject of independent enquiry by him. Thus I am satisfied and accept that I can, without hesitation, accept and rely upon the recommendations of Dr R.
The father's allegations that the child is “abused” have been a consistent theme throughout the conduct of these proceedings. There has been an allegation by Mr Whitehouse that the mother is a “child abuser”.
Language of that nature must be responded to on the basis that one can only presume that it is used deliberately and specifically, not that it is thrown about with gay abandon or used for any purpose other than a clear forensic purpose focused upon a child's protection.
To that end and whilst it may ultimately not be directly relevant, I incorporate paragraphs 454 to 459 of my earlier decision also in Deacon & Castle dealing with and summarising the relevant authorities concerning the unacceptable risk test and extra judicial writings relating thereto.
Unacceptable risk
454. In dealing with an issue of unacceptable risk, I am considerably assisted by the Full Court’s decision in Johnson & Page and particularly passage of that judgement at paragraphs 62 and 63 and 65-68 (inclusive) as follows:
“Relevant legal principles
The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M.
Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A. (1976) V.R. 298 at p. 300), “an element of risk” or “an appreciable risk” (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), “a real possibility” (B and B [Access] (1986) FLC 91-758 at p. 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
455. And:
456. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
457. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows:
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party. As Thomas J said at 670:
“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”
Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:
“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”
If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J’s approach at 681-2:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court’s emphasis]
458. Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter (2007) FamCA 350. His Honour said:
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change. (paragraph 114)
459. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
(a) The decisive issue is and always remains the best interests of that child.
(b) All other issues are subservient.
(c)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
(d) Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
(e) The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
(f) The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
(g) The onus of proof in reaching that conclusion is the ordinary civil standard.
(h) But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary”
There must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture.
I have some concern that one could contemplate a position of unacceptable risk being advanced by the father in these proceedings. His evidence would suggest contrary to that being so.
The father, whilst he proposes that the child must be, as it were, “rescued” from the mother who is the subject of a number of significant criticisms, he could not be suggested, from his own evidence, to be putting to the Court that the child is at risk or unacceptable risk of harm in the mother's care. I am satisfied, for reasons I will expand upon, that the husband’s use of such language is hyperbole and emotively misplaced.
The Orders that the father proposes, Orders for equal shared parental responsibility and substantial and significant time, fly contrary to the very proposition the father advances that there is a risk of “abuse”.
The father, during cross-examination, opined that he was more than satisfied to provide the mother with time additional to that which is actually proposed in his Response. The father made clear that if the mother, as the father has done at various points in time, made daily or near daily requests for additional time, that he would accede to those requests, “if appropriate” - whatever that may have been intended to signal.
In those circumstances, I am at a loss to understand how it could be suggested that the child is “at risk” in the mother's care. However, thus it was alleged by the father.
I make clear at this point and before turning to a full and proper discussion of the evidence, that I am not satisfied that there is an unacceptable risk to this child posed by the mother nor has there been one at any point in time. As is submitted by Counsel for the mother, the father has failed, on any level, to discharge his evidential burden to prove such matters. Yet it is how he has chosen to run his case, thankfully for him, absent the repealed section 117AB of the Act.
The father has made many allegations but his case, as was often opined by the greatly missed Judicial Registrar Knibbs, was “long on allegation and short on proof”. Indeed, the father’s case was entirely absent proof.
The allegations that are raised in the proceedings by the father are raised consistent with that which has occurred throughout the proceedings being allegations raised in somewhat hyperbolic - at times verging upon hysterical - fashion. However, there is no evidence, let alone credible evidence, that would support the father's contentions of risk posed by the mother.
The father, notwithstanding various instances that he quoted in his material or during cross-examination or raised with the Family Report writer, failed at any point in time to take any action or make any report with respect to his suggested concerns. Yet, the father is and was clearly aware of how to do so.
The father routinely involves the Police in contacting the mother, attending at her premises to undertake “welfare checks” for matters such as the mother not answering her telephone when he has phoned, not responding to a text message he has sent, or the child not phoning him when he has expected her to do so.
On one occasion, the father had two Police Officers attend with him at a changeover, one of the first changeovers following the separation of these parties. Why he did so was entirely unclear from his evidence. He sought to suggest that it was to assist him in uplifting certain items or securing their uplift. He then opined that it may well have been an occasion when he was concerned to ensure that he was not accused of breaching a domestic violence Order. That was held out as the basis until it was pointed out that the attendance occurred before any domestic violence Order existed.
Why the father felt the need to have the Police attend simply remains a mystery, although it may be connected with a throw‑away portion of the father's evidence given during cross-examination that two of the local Police Officers in the township in which he lives are friends or clients of his business. If that is so those Officers should seriously review their ethical duties.
The father has produced no evidence that suggests that the child has been or would, at any time in the future, be exposed to harm from or in the presence of the mother.
The only clear evidence of any occasion when the child has been directly exposed to harm has been her exposure to emotional harm on 2 June 2014, an occasion when the father attended at the child's school at a time when the child was, pursuant to Orders made by the Court and by consent days earlier, in the mother's care.
It is in that context that if anything in these proceedings is to be categorised as “abusive”, that the abuse occurred on that occasion and was occasioned by and precipitated through the actions of the father. I make very clear that I do not use the term “abuse” in that context, other than to adopt the language of the father. I do not suggest that it falls within the section 4 definition of abuse contained within the Act, nor that any finding of fact is made in that regard.
But the father's behaviour in attending at the child's school on 2 June 2014 - the subject of the Exhibit referred to above, Exhibit F1 - and setting up a situation whereby this child was, as described in the evidence of the Family Report writer, Ms M, during her cross-examination, “... physically placed…between the conflict between her parents”.
The father’s attendance at the school was an appalling, insightless and deliberately calculated act by him. Whether he had intended it to cause upset to the mother or not it is clearly what he achieved. Even if he did not have that intent, that malice of forethought as it were, he did so without regard to the reality or even possibility that it might be so and demonstrated no awareness that it would be so and was reluctant or unwilling to make any concession that it had been so. But for the calm and appropriate intervention of the child's school Principal, the child's trauma and the situation's escalation, may have been far more extreme.
On the evidence, to which I will very shortly turn to discuss, it is simply not possible to make any finding that the mother has been an “unacceptable risk” to the child at any point in time, nor that she would be in the future. As indicated, the father's proposed Orders support that finding.
The father's behaviour, on the other hand, has in the past caused significant disquiet to this child and has the potential in the future - and if it continues unabated and unmodified - to become an unacceptable risk to this child.
What is important to note is that the parties, as they were ordered to do, have each completed the Parenting Orders Program. The father was cross-examined with respect to that Program. When first asked whether he had obtained any benefit from it, he responded quickly, indeed bordering upon enthusiastically, “None at all”. When he was asked to reconsider that response and reflect upon anything which he might possibly have gained, he was still not able to identify anything. He articulated a catalogue of complaint about various others who attended the course who took up time in discussing their problems, their difficulties, their disadvantage occasioned to their child through their behaviour but was not able to identify a single thing that he had taken from the course.
The father's inability to demonstrate self-focus, self-reflection, the very things that make up “emotional maturity”, would appear from that evidence to be stark and manifest and as evidenced through some of his actions including, but not limited to:
a)His continued suggestion of acting in reliance upon the child's requests or views - doing her bidding, as it were - whether for her protection or to secure that which she desires;
b)His attendance at the school on 2 June 2014 which, perhaps, is the crowning achievement of disadvantage for this child;
c)His Facebook postings to which I shall also return;
d)His over-holding the child on several occasions - at least two if not more - in the latter half of 2014, and his desire on those occasions, as demonstrated through the conversation between the parties at the school on 2 June 2014, to deliberately misinterpret that which was contained in the Orders, being a provision that his time, in addition to that specified and prescribed, would occur “otherwise as agreed”;
e)His attitude towards the mother, without basis or objective foundation, that she is “alienating” the child, “harming” the child and “abusing” the child, and his desire to share those allegations with the world; and
f)His continued assertion that his actions, inappropriate as they are sometimes and as conceded by him to be so, are designed to protect and guard the child when nothing is required in that regard and nothing could be further from the truth.
That the father has gained nothing from the Parenting Orders Program is regrettable. That is touched upon by Ms M during her cross‑examination. Ms M, having shortly before taking the witness box having:
a)Read the material that had been filed by the parties in preparation for this Trial; and
b)Upon having taken the witness box viewed the video Exhibit F1;
opined that whilst she had, at the time of her Report interviews last May, had some confidence in recommending equal shared parental responsibility being allocated to the parties, notwithstanding how poor they each described their communication as being, could no longer do so.
It must be made clear that one of the agreed facts in this case is that these parties do not communicate and resolve difficulties. They have each conceded so much in their evidence.
Ms M made clear that her prior optimism had been based upon the fact that:
a)She had seen the parties shortly after their separation for the purposes of a Child Dispute Conference Memo. That document is not in evidence;
b)By the time she had seen the parties a second time they had still been separated for only a little over 12 months;
c)She had made recommendations for the parties to attend in therapeutic programs - the Parenting Orders Program - which she felt would be of some real benefit to both of them; and
d)It having been early days, as it were, and without either having obtained any external assistance, that one should not, at that time, have given up any hope.
When Ms M was confronted with the various aspects of the evidence that suggested, as indicated above for example, the father’s inability to identify anything of benefit obtained from the Parenting Orders Program, Ms M was somewhat more circumspect in her view regarding the effective operation - indeed, the efficacy - of equal shared parental responsibility. She went so far as to suggest that it would be feasible if communication could be made better, but that to make that determination with any optimism, one must look at the history over time and what has happened since separation and that on the basis of what she was now apprised of she found it difficult to have any confidence that the parties have the capacity to make joint decisions in the future.
Communication between the parties was described by the mother in her evidence when she was asked why equal shared parental responsibility should not be ordered and could not operate. She responded to the effect that, “We're not able to resolve disputes about her school socks. How are we going to deal with important issues”?
The events at the school on 2 June 2014
I do not wish these events to consume all consideration of the evidence. However, the events are, perhaps, a glaring and stark example of a number of facets of the difficulties in this case.
It is often said that “a picture paints a thousand words”. If that is true then a video must paint many millions.
When questioned about this incident, the father indicated that he had a video to “prove” his version of events – that the mother was traumatising indeed “abusing” the child. The video was then produced.
The father’s evidence is that the video was taken by him at a time when he was at the school at X’s request. He says the camera was placed on the dashboard of the car and filming was through the front windshield. That clearly was not true. The camera was held by the father in his hand. Very little turns upon that other than possibly an issue of credit.
The father was at the school on that day - a day that he concedes was a day when the child was, pursuant to the Orders of 27 February 2014, to be in the mother's care. As the father describes in his evidence and from which he would not be shaken, he was there “to ensure [nothing more than that] the mother would be there to collect X at the end of day”. The father was suggesting that, in his mind, he had some uncertainty that it would be so.
The mother deals with the events commencing at paragraph 77 of her Affidavit. The mother suggests that at that point in time, she was receiving daily or near daily requests from the father for the child to have extra time with him. That included requests received when the child was already with the father and requesting that the child be permitted to stay longer. Examples of such requests are given at paragraphs 74 and 75 of her Affidavit where she nominates specific dates when the father has made such requests.
As a consequence of receiving such frequent requests for additional time and noting that the parties at that point were and, indeed, at the present are, unable to communicate effectively with each other, the mother instructed her attorneys to write to the father by email on 16 May 2014.
That correspondence included the following:
Please note that the Orders made on 27 February 2014 are clear and unambiguous and require X to spend time with you each alternate weekend from after [school] Friday until before school Monday and “at any other times as agreed between the parties”. Please note that our client did not agree to X remaining in your care on Monday 5 May 2014 and your actions in unilaterally over holding her amount to a breach of the orders.
We are further instructed by our client that you have been sending her almost daily text messages that X spend additional time with you. Whilst our client is agreeable to X spending additional time with you on special occasions (and we are instructed in this regard that X spent additional time with you on her birthday) our client is not agreeable to X spending additional time with you on an ad hoc basis each week, as our client is keen to ensure that during the school week, X maintains a routine.
Your constant text messages to our client amount to a form of harassment and our client requires you to immediately stop, failing which she will have no option but to discuss the matter with the Police. In addition, our client requires strict compliance with the Orders made on 27 February 2014 and in the event you fail to return X to our client's care in accordance with the Orders again, our client will have no hesitation in bringing a breach application.
Certainly, that correspondence is stern. In the circumstances, however, it is appropriately so.
The father suggests that the child had been in his care for a period of weekend time pursuant to the Orders and that on the Sunday evening the child had indicated to him a desire to stay with him the following day, Monday, and he had accordingly sent a text message to the mother making that request. He suggests the mother had not responded, and it was on that basis that it was “necessary” for him to go to the school as he was unclear and unsure as to whether the mother would be attending to collect her or whether she was agreeing to his request but simply had not communicated her agreement to him. Why he would believe that, in light of the correspondence to which I have just referred, beggars belief the father being far from foolish.
In any event, the father's evidence is that he arrived at the school with his partner sometime prior to the school bell ringing. His evidence is that prior to the school bell ringing, the mother also arrived at the school. In fact, she pulled up beside him in the car park and alighted from her vehicle to go and get X.
If the father is genuine in his evidence - and I make clear I do not accept that he is - that his sole intention of being there was to ensure X's safe collection from school by the mother, then he could and should, at that point in time, have left.
When the father was asked in the witness box why he did not leave, he simply responded, “I don’t know. Maybe I should have”. Indeed, he should have. He had no business being there and the only consequence of his being there was to create distress for X.
The video that is taken by the father, leaving aside that he had no consent from anyone depicted within the video but no objection is taken, clearly has X standing, as Ms M described, physically between the parents, standing in the middle of their conflict. What transpires is the child's refusal to get into the mother's car and leave with her mother.
What is completely absent in anything that is depicted within that video is any step, action or statement by the father to support the child leaving with the mother as she was required to do by the Orders then operating.
After asking the child to enter the car on several occasions, the mother looked to the father and said to him, “Do not do this to her. It is you doing it”. The father responded to the effect, “No, it's you”. The standoff continued for some little time with X standing, crying, her school bag on her back and, at one point in time, the camera pointed at her and she looking into it, looking distressed and upset.
The mother said to the father, “She's with me. It's my time”. The father responded, “By agreement” and then a response suggesting to the mother that, “You're going to have to accept it”. Then to the child, “Jump in”, being to the father’s car rather than the mother’s.
The mother made several requests that the child get in the car. The child simply stood between the two parents frozen, as it were, not moving towards either vehicle. At one point in time, the child is heard to say, “But I won't see my father”. That would appear to be a direct reflection of the father's attitudes towards time arrangements, being that unless the child can see him on each and every occasion he desires, the mother is interfering in his relationship, in his capacity to see the child. Nothing could be further from the truth.
What is abundantly clear by the conclusion of the evidence is that the mother has, at all times, complied with each and every Order made by this Court, not only as to its terms but its spirit. In that regard, it is clear - and I incorporate herein the appropriate portion of the authority - that the father has never had regard to the dicta of their Honours, Fogarty and Nygh JJ in Stevenson v Hughes [1993] FamCA 14, and that which is required of a responsible authoritative parent to support a child's relationship with both parents and to comply with an Order:
Per Nygh J:
25. This is what I might call the classical case which the Full Court dealt with in In the Marriage of Stavros (1984) 9 Fam LR 1025, namely, that there is an obligation cast upon the custodial parent to take reasonable steps to make the child available for access. It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it. It is quite clear that such an approach is wrong and that the wife in this circumstance,
Per Fogarty J (and quoting Moore J at first instance):
"I have already made reference to the implied obligation of the custodian to take reasonable steps to ensure that the access stipulated in an order takes place. Words and actions have meaning in context and affect. It is not a sufficient discharge of custodian's obligations, express or implied, to point to words and actions and to say, in effect: 'You see I tried. But the child does not want to go,' and thereafter to figuratively fold their arms as if that were an end of the matter.
Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation."
Finally, her Honour, in relating those observations to the particular facts of this case said this:-
"... the respondent has adopted on the occasions when those expressions have been used a passively obstructive stance inconsistent with her obligations under the order."
It is important that in cases of this sort custodians appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance. That matter was emphasised as early as 1984 in Stavros (1984) FLC 91-562, but I am afraid that the contrary attitude still appears to permeate the jurisdiction and the sooner that that misunderstanding is removed the better for everybody.
Thankfully, I need not become embroiled in the issue of whether that statement is so or not. That is a matter for the parents. I am satisfied that it would be inappropriate for the Court to engage in any consideration of which faith the child should be baptised into in light of section 118 of the Commonwealth of Australia Constitution Act 1900. If the Commonwealth cannot prescribe a State religion I do not see it as the role of the Court to determine which faith a child should be raised in either. That is a matter for parents and for the allocation of parental responsibility. As it simply cannot be agreed I am satisfied it should be a matter for a single parent with parental responsibility.
There is no evidence, in any event, to suggest that either of these parents have any particular faith or belief system and to the extent that they do, such assertion would be regrettable as clearly, particularly in the case of Mr Whitehouse, he has not acted in a “Christian” manner towards either the child or the mother.
The principles provide that parents should share duties and responsibilities. I am satisfied, for reasons that I will expand upon, that these parents cannot.
I am conscious that the determination as to the allocation of parental responsibility must be made by reference to a full and proper consideration of section 60CC of the Act, to which I will shortly turn. However, the Court must also determine whether the presumption of equal shared parental responsibility applies, different in its nature to the allocation of parental responsibility, so as to be able to determine what mandatory considerations as to time might come into play.
In turning to section 61DA of the Act, I am satisfied that the presumption does not apply. The mother has led evidence of family violence. The mother has not been challenged or tested on that evidence and, on the basis of the findings of credit made, I accept her evidence. Thus, I am satisfied that there are reasonable grounds to believe that a parent, being, Mr Whitehouse, has engaged in family violence.
Lest I am wrong in that regard, I am satisfied that the presumption would be rebutted by reference to subsection (4). For reasons that will be expanded upon shortly, I am satisfied that it would not be in this child’s best interests for her parents to have equal shared parental responsibility. It would not be practical, if anything else, for equal shared parental responsibility to operate.
If an Order for equal shared responsibility were made then the obligations created by section 65DAC of the Act would come into play. That would require that these parents consult with each other in relation to decisions about major issues as defined in section 4 of the Act, and such consultation occurring before any decision is made. The parents would be required to make a genuine effort to come to a joint decision. I do not see that is possible at present.
These parents have not been able to agree on what time a child will make a telephone call without the Police becoming involved. In those circumstances, I am satisfied that to escalate decision making, consultation and genuine effort to even more profound issues such as religious upbringing and baptism is simply placing this child in a position whereby her exposure to parental conflict, her enmeshment in dispute, the father’s attempts to continue to engage her as an ally in his crusade to protect her from the mother and in furthering his perception of victimisation as a parent whose child has been subject to parental alienation, will be inevitably heightened.
That would not be in the child’s best interests. Accordingly, I will in due course and again for reasons that I will elaborate upon, make Orders as sought by the mother with respect to parental responsibility, allocating it to her subject to certain terms and conditions.
As I am not satisfied that the presumption applies, I need not consider equal or substantial and significant time before considering any other time arrangement.
Certainly, it is clear that neither party proposes equal time. The only reference to it arises in the context of the Family Report, whereby young X has suggested that it may be a “fairer arrangement”, something that she may even consider to have equal time.
However, Ms M adds the caveats quickly that:
a)The child did not indicate that she wished to spend more time with her father than with her mother;
b)X had a clear and heightened sense of justice which may have infused or enlivened any view expressed;
c)The circumstances of the case and the evidence of the parties, particularly as made known to Ms M during her cross-examination, are such as to contraindicate equal time being of any benefit to this child.
That being so, I am satisfied that on that evidence alone, I need not consider equal time further. I propose to consider all time arrangements at large by turning to section 60CC of the Act and incorporating therein section 65DAA(5) of the Act.
I must commence with the primary considerations, being:
a)The benefit of the child of having a meaningful relationship with both parents;
b)The need to protect the child from physical or psychological harm.
The latter is prioritised over the former by subsection (2A).
As I have already indicated, I am not satisfied that any finding could be made that the child requires protection from physical or psychological harm. I again, for the benefit of Mr Whitehouse or any future Judge before whom these proceedings may come on a fresh Application, make clear that if the lack of change in Mr Whitehouse’s attitudes and behaviours, as has continued following the Parenting Orders Program and during the currency of these proceedings continues, it may become a very real risk to this child in the foreseeable future. This child deserves better, particularly from her parents.
As regards the benefit of a meaningful relationship between the child and each parent, I am satisfied that this would be best achieved through the mother’s proposals.
The Family Report opines that possibly a five day block or a four day block with one night in the other week would be beneficial to this child during school terms. The mother proposes four days, being a three day weekend and one day in the off week, a replication of that which is presently occurring.
I have some confidence that this would be of real benefit to this child, if for no other reason, because the parties agree that it has been. Since that arrangement came into being, after the release of the Family Report, prior to which the child was only seeing her father each alternate weekend, Friday to Monday and expressing a desire for more time, things have settled a little. Whether that is as a consequence of the additional time and it is sating the child’s desire and need for more time, whether that is based on a genuine desire on her part to have it, or based on a desire on her part to placate her father’s emotional demand for it, I need not determine. All I need know is that things have become more settled.
Connected and corresponding with that change is the father’s backing down, as it were, from the daily or near daily requests for extra time. The father asserts that the child asks for more time up to each and every day. He asserts, with some force, that he is fully aware that this is so. He states, in correspondence to the mother’s attorneys annexed to the mother’s material, that it is a “proven fact” that the child asks the mother for more time every day. How the father would know that when he was not part of the household is unclear but the father is strident in his view that the child continues to desire much more time with him, to the point of living with him.
That, I accept, is what is in the father’s mind. It is not what is in the evidence before me, including Ms M’s evidence and her reportage of the child. Ms M has undertaken an excellent consideration of the child’s position in this family and in this conflict and has opined that conflict has most assuredly impacted the child and her views but also that there is an underlying genuineness to the desire she has expressed to spend more time with her father than she was.
The fact that this extra time has been provided by the mother willingly and voluntarily, whether with the assistance of attorneys, lawyer-assisted negotiation, Family Dispute Resolution or otherwise, is a testament to her insight and responsiveness, her reflective thinking. She has read the Report, heard her daughter’s voice and responded to it. It has produced some degree of calm, relative as it is. I cannot predict it will be long lasting. One would hope it might be.
However, that benefit has clearly been derived from a fairly minimal change from that which applied when Ms M undertook her interviews in May of last year. I am satisfied on the basis of its demonstrated benefit that that is preferable.
The mother conceded that if certain events occurred, such as the father obtaining stable accommodation that was suitable for the child, that she may consider extending it to a five night per fortnight arrangement. However, that was a concession by the mother during cross-examination based on conditions and in circumstances where until the father took the witness box she had no idea where he was even presently living.
In those circumstances, I am satisfied that the primary considerations would favour the mother’s position. There would be benefit to the child of that relationship.
Lest it be suggested I have not considered the father’s proposal that the child live with him, I make clear that I am not satisfied there would not then be corresponding benefit to the child of having a meaningful relationship with both parents.
There would be the potential, if this child passed to live with the father, of her relationship becoming increasingly enmeshed, the child increasingly being an “emotional crutch” for the father, which to some extent she has been since separation and all of that and the father’s attitudes and behaviours toward the mother impacting upon the mother’s relationship. That would all be, I am satisfied, without any corresponding benefit to the child. She would not develop a meaningful or more meaningful relationship with the father by him being emotionally dependent upon her. She would lose the support and benefit of the relationship she has and has benefitted from with her mother. Such a change would, overall, be entirely disadvantageous to her.
I turn to the additional considerations.
Views
They are canvassed in some small part above. By reference to Harrison & Woollard (1995) FLC 92-598 and Re R Children’s Wishes [2000] FamCA 43 and like authorities, I am satisfied that I must give some weight to X’s views.
What is glaringly apparent is that the view expressed by the father in his Facebook posting (annexure 20 of the mother’s Affidavit), that the Family Report writer supports an immediate move to equal shared time is, in the words of Counsel for the mother, “delusional”.
It is certainly wrong. It is simply not something that could, by a reasonable or rational mind, be taken to arise from Ms M’s discussion. She makes very clear it is contraindicated. She certainly suggests there should be more time, up to five nights a fortnight. Ms M has never supported equal time nor is X suggested to have asked for it or expressed desire for it.
I accept that this little girl does have a genuine love and desire for both her parents. It is tragic that the behaviours that have been occurring, particularly events such as that at her school, have the real potential to impede her capacity to engage in those relationships or receive benefit from them. They are matters for the father, as it is his behaviour, attitudes and views which must change to remove that potential.
I accept that some weight must be attached to the child’s views, but they are not dispositive. To the extent that it is suggested, in the one paragraph of the Report in which it is addressed, that the child has raised a desire to explore equal time, I do not accept that as her genuine view. Her genuine view, I accept and as Ms M has reported, recorded and opined, is to spend more time with her father than she then was, then being three days per fortnight. It is now four and working much better.
That seems to be meeting her needs well and not only positively through maintaining a good relationship with both parents but through the mother’s support of that relationship, having a meaningful relationship with her father. It ensures that she is well parented in the mother’s care. It ensures that her exposure to the father’s negative attitudes and potential undermining of the child’s relationship with the mother and impact upon her emotional functioning is minimised.
I am satisfied that Orders as proposed by the mother are consistent with the child’s views and also take into account the extent to which they may have been influenced or impacted through the child’s desire to provide emotional support for the father, adopting his views and positions.
Nature of the child’s relationship with each parent and other persons
Ms M has observed that both parents would appear to have a warm and positive relationship with the child. That is, in all probability, so. The mother agrees that it is so with respect to the father. The father cannot bring himself to make that concession as regards the mother. That is a shortcoming on his part, not the child’s and not the mother’s.
This child clearly has an excellent and important relationship with the mother. One shudders to think what may have followed for this child if the mother had not been as supportive of the child’s relationship with the father or had not provided such consistent, stable, structured and quality care since separation. Things may have been much worse for X than they presently are.
I am satisfied that the Orders the mother proposes will best support, enable and facilitate this child’s ongoing relationship with each parent.
More time with the father would expose the child to negativity and potential disadvantage. It would expose the child to further undermining of her view of the mother and her relationship with the mother.
Less time with the father is potentially protective but not sought. X craves more time. If more time with the father was at the cost of the mother’s relationship, I am not satisfied that could begin to be described as beneficial. If it becomes so in the future then reduction would be verging upon inevitable.
The extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, spending time or communicating with the child
This is one factor as to which neither parent could be criticised. Indeed, the converse applies. It is the difficulty of the zealous desire of the father, indeed at times verging upon obsession, with daily or near daily messages to have the child in his care that has created so many of the problems and disadvantages for X.
The extent to which each parent has fulfilled, or failed to fulfil, their obligation to maintain the child
The mother has solely maintained this child since separation.
The father pays no Child Support and has, as indicated, now created such a pool of debt such that neither of these parents will have any tangible assets.
The father will retain his business assets and his ability to earn income therefrom. That is an advantage he will obtain, possibly unfairly but that is simply how things have fallen.
The father has failed, in circumstances where he clearly had the capacity to contribute, to make any contribution whatsoever to this child’s maintenance.
That is a matter which denies the child’s right. The International Convention on the Rights of the Child is incorporated in its totality into the Family Law Act 1975 in the objects and principles. As I expressed and accepted in Bateman & Kavan [2014] FCCA 2521, the International Convention includes the child’s right to be maintained by both parents. It is a legal and moral right. It is not something which comes into being only through the completion of an assessment by the Child Support Registrar.
The father has denied and frustrated his child’s rights to be supported. He has rendered it more difficult for the mother to support the child in the future through the debt he has created.
Likely effect of change, including separation from either parent or other child
I accept the submissions of Counsel for the mother and the Independent Children’s Lawyer that it would be disastrous for this child to pass to live in the father’s care. The potential for this father to support the child’s relationship with the mother is unproven, undemonstrated and, indeed, on the evidence, completely questionable.
The father has, whilst the child has lived with the mother, engaged in activities, behaviours and attitudes, including those which he has shared with the child, in part inculcated into the child, and as a consequence of the conflict that he has generated surrounding those views, demonstrated his incapacity to support the relationship as well as his potential to undermine it.
I am not satisfied that the child would have any benefit passing to the father’s care. He is no more capable of caring for this child physically than the mother. She is doing an excellent job and as is submitted by her Counsel, in the most onerous and trying of circumstances, including through her continuing to support and encourage the child’s relationship, providing the child without criticism or allegation of failure to do so in accordance both with Orders and agreements between the parents.
The father cannot be suggested to have such a track record, indeed, quite the contrary. It would be readily predictable that if the child passed to live with the father, her relationship with the mother would begin to deteriorate rapidly. Her time with the mother would be withheld on the same basis as it has been through the child’s retention and over holding last year and for no positive benefit.
The practical difficulty and expense
I incorporate herein section 65DAA(5) of the Act.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The parents live in the same township. Indeed, on the basis of the address to which the father suggests he will this very weekend be moving, they live two streets apart. However, they live in different worlds in all other respects.
Their capacity to implement arrangements is abundantly demonstrated as regards the mother and is highly problematic as regards the father. His withholding, his interfering, his continuous and unrelenting demands, at least until October 2014, for more time on a near daily basis, suggest his inability to implement such arrangements for any time that the child lived with him.
The parents’ capacity to communicate and resolve difficulties is equally problematic. They simply do not communicate. They exchange information from time to time, largely and frequently, including threats of involving the Police and other agencies. However, their communication and dispute resolution skills together are non-existent. That will impact on this child in the future, all the more so as she grows older.
Ms M has been clear that X is already cognisant of the dispute, she is already enmeshed in the conflict and she is already damaged by it. She will continue to be so and keeping the parents apart, which is submitted to me by the Independent Children’s Lawyer and mother’s Counsel I should do and which I accept regretfully I must, is the best that I can achieve to protect this child from conflict.
The Court cannot, just as the Parenting Orders Program or any other counselling intervention cannot, change the father’s attitudes or make him realise the errors of his ways. His evidence during cross-examination, indeed up to and including his submissions, would suggest an inability to accept responsibility for his actions, that which he has done, or to understand that there is anything remiss in the attitudes that he holds and expresses, including to this child, which give this child a false and prejudicial view of reality.
All of those things obviate against both equal shared parental responsibility and any substantial sharing of time.
The impact of the arrangement, I am satisfied, is already addressed above in reference to subsection (d).
The capacity of the parents and other people to meet the child’s intellectual and emotional needs
The parties are able to meet the child’s physical needs, although the mother has been the sole financial support for the child since separation.
The mother’s capacity to meet the child’s emotional needs is far greater than the father’s. She is able to differentiate her needs and interests. She is able to meet her own adult emotional needs without recourse to the child and she is able to support and encourage the child in her various endeavours, not only her relationship with the father but schooling, (hobbies omitted) and the like.
The father’s capacity to do so is, as discussed in the evidence above and as need not be repeated, highly problematic.
Maturity, sex, lifestyle and background of the child and each parent
This is a little girl who, on the evidence of the parties jointly, has grown up surrounded by conflict. Conflict, distrust and dysfunction have been circumjacent to her life since birth. Certainly, since separation, she has been very much caught in the conflict between her parents, as Ms M described and as amply demonstrated in Exhibit F1, physically caught as a demonstration of her involvement in this conflict, and entirely unnecessarily so.
To the extent that apportionment of culpability is of any utility whatsoever, and it is limited, I am satisfied the culpability rests substantially, if not solely, with the father.
Aboriginality
Neither parent identifies as Aboriginal or Torres Strait Islander and thus nor does the child.
The attitude to the child and the responsibilities of parenthood demonstrated by each parent
As would be apparent from the above discussion of evidence, I have no concerns or criticisms with respect to the mother’s attitude. She has, in the most onerous and trying of circumstances, daily requests for more time, weekly threats that the Police or the Department will be engaged to visit her home and investigate complaints with respect to her, supported and encouraged this child in all respects.
There is nothing to suggest X is not doing well at school. The father complains that the mother is unable to meet her needs and that she is frequently late or not at school at all. The school records, Exhibit M3, demonstrate what a fallacy that suggestion is. The child has had a dozen or so absences or lateness’s in 18 months. At least six of those, from the father’s own evidence, are times when he has withheld the child from school, including 3 and 4 June 2014 after the standoff in the playground. On that basis, the child’s attendance record is in fact quite exemplary. The child is suggested to be doing perfectly well at school. One could only imagine how much better she might be doing if she had cooperative parents.
The father’s aggrandised hyperbole as regards risk to this child does him no credit whatsoever. It demonstrates incapacity on his part to understand his child’s needs and to prioritise them above other things, including his own needs. All of those things impact on attitude in a way that I am satisfied irresistibly supports the relief that the mother seeks.
Family violence
There is a finding of family violence in accordance with the mother’s evidence. It is, perhaps, situational rather than coercive and controlling, although the mother asserts it in the latter categorisation. It is suggested by the father to be historical, at least as regards physical acting out.
What is important to note is that the section 4AB definition of family violence in the Act, illustrative as subsection (2) is, focuses upon many aspects of violence, only one of which is physical. The derogatory taunts, the Facebook postings, the harassment with frequent texts, messages and emails, the withholding of the child, knowing the distress that would cause to the mother – these are all typifiers and incidents of family violence. The mother has been a victim of the father’s control and violence since separation and I so find.
Family violence orders
An Order had been made. It would appear to remain in force.
Whether it is preferable to avoid future proceedings
On one level, there is the temptation to give the father what he seeks in the hope that he will then desist. However, what flies in the face of that is the reality that even with clear and certain Orders, such as were made on 27 February 2014, the father will not cease. He continues, over and over, to ignore the Orders, to act as he wishes and to act in a fashion which he justifies to himself as his daughter’s desires, wishes and protective of her best interests.
He is simply not correct in those assessments. The child needs clear, stable, settled arrangements. It is one of the very criticisms made of the mother that following separation, she has sought to put such things into place. The father has interpreted that, as his evidence suggests, as not allowing him “to have anything to do with his daughter” and “making it impossible for him to do so”. Nothing is further from the truth. The mother’s actions are the only things that have made it possible for this little girl’s relationship with both parents to have any stability or routine. The father has undermined it.
Thankfully, in the last few months things have settled somewhat. Whether that is because the penny has dropped, as it were, for the father, or otherwise I need not be concerned. Things are beginning to improve. Whether it is sustainable, whether it is long lasting and whether it will be demonstrated as beneficial to this child, only time will tell.
The other means by which one might seek to provide arrangements that might ensure that future proceedings are unnecessary would be to have the parties engage in Family Counselling services. However, the parties have already done that. The mother, it would seem, with some to good effect, the father with none.
Without insight and without communication and problem solving abilities between these parents, nothing the Court Orders can reasonably predict that future proceedings will not result. It is with that trepidation that I am satisfied that the best that I can do is, as I am urged by Counsel for the mother and the Independent Children’s Lawyer to do is to make Orders that are clear, specific and, importantly, and as I have raised and as the mother’s Counsel and the Independent Children’s Lawyer have submitted, will obviate the need for these parties to negotiate in any fashion regarding future arrangements.
During the evidence of the father, I had raised the importance of Orders being made pursuant to section 64D(2), that the Orders not be varied by subsequent parenting plan and only by Order. I had also raised at the beginning of the hearing today the utility of Orders that the father not attend at or be in the same place as the mother, save as is absolutely necessary for the purpose of the child being exchanged.
Such Orders are proposed by the mother and subject to the Court’s acceptance that sole parental responsibility is appropriate, which I do accept, acceded to by the Independent Children’s Lawyer with one minor variation regarding the father’s presence at the school at the same time as the mother and which I propose to address in a fashion similar to that suggested by the Independent Children’s Lawyer.
The father did not make any substantial submissions at the conclusion of the case. Accordingly, I am satisfied that the Orders supported by the position advanced by the mother and the Independent Children’s Lawyer are the best that can be done and will best prioritise as paramount this child’s best interests.
I certify that the preceding three hundred and fourty four (344) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 22 July 2016
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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Civil Procedure
Legal Concepts
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Procedural Fairness
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Natural Justice
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Costs
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Injunction
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