Winters and Bean
[2013] FCCA 1334
•12 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WINTERS & BEAN | [2013] FCCA 1334 |
| Catchwords: FAMILY LAW – Parenting – Mother permitted to relocate children to New Zealand – rebuttal of the presumption of equal shared parental responsibility –analysis of impact upon mother’s parenting if she was not permitted to relocate and impact on children’s meaningful relationship with father if relocation was permitted having regard to their young age – impact upon mother and children of father’s “alpha male” anti-social behaviours. |
| Legislation: Family Law Act 1975 |
| Cases cited: Khoury & Mills [2013] FamCA 300 MRR & GR [2010] HCA 4 |
| Applicant: | MS WINTERS |
| Respondent: | MR BEAN |
| File Number: | CAC 1425 of 2012 |
| Judgment of: | Judge Henderson |
| Hearing dates: | 15, 16 May 2013 & 22, 23, 24 July 2013 |
| Date of Last Submission: | 10 September 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 12 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Curran |
| Solicitors for the Applicant: | Legal Aid ACT |
| Counsel for the Respondent: | Ms Haughton |
| Solicitors for the Respondent: | Mazengarb Family Lawyers |
ORDERS
The mother shall have sole parental responsibility for the children X born (omitted) 2008, and Y born (omitted) 2010 (“the children”).
The children shall live with the mother.
The mother is permitted to relocate with the children to New Zealand.
The mother to advise the father prior to exercising sole parental responsibility of the decision she proposes to make, have regard to the father’s position with the final decision to be made by her solely.
The mother to do all acts and things and sign all documents necessary such that the father may receive from any school that the children attend, copies of their school reports, notices of parent teacher interviews, newsletters and any other material ordinarily received by parents on any occasion he chooses.
The mother to do all acts and things and sign all documents necessary such that the father is authorised to contact any of the children’s treating medical health professionals to receive information about their health, treatment, diagnosis and any medication prescribed to them on any occasion he chooses.
The mother is permitted to request a random chain of custody drug test 7 days prior to the father spending time with the children, by the mother emailing the father such request in writing and the father undertaking such testing within 48 hours of receipt of the request.
The father is to do all things and sign all documents and authorities to cause a copy of the results of the random chain of custody drug tests to be forwarded to the mother at the time they are released to the father.
Should the results of any drug tests be positive, or should the father fail to undertake such tests or fail to provide such results the mother may suspend the father’s time with the children.
Upon the father providing three clear consecutive drug screens orders 7, 8 and 9 are discharged.
The children to spend time with the father unless otherwise agreed as follows:
(a)If the father travels to (omitted) in New Zealand and provides the mother with fourteen days notice in writing for periods of two nights and three days in an eleven day cycle from 9am on the first day to 6pm on the last day for Y and three nights, four days for X conditional upon the father:
(b)Having suitable accommodation for overnight time;
(c)Taking the children to and from formal schooling and organised sporting activities;
(d)Advising the mother of the address of the children’s accommodation;
(e)The father to pay all costs associated with such time.
Until 31 December 2016, on not less than 3 occasions per calendar year in Australia for not less than eleven days per visit, in the same regime of time as set out in Order 11.
Upon Y reaching age 4 his time with his father to be as for X.
From 1 January 2017 and thereafter for each New Zealand school term holiday period, such time being spent in Australia, unless alternate location is agreed, being the first half in even numbered years and the second half in odd numbered years, with the parents to equally share the cost of travel to Australia and return.
For the purpose of Order 14 and unless otherwise agreed:
(a)The first half of school holiday period is deemed to commence at 12 noon Eastern Standard Australian time on the Saturday immediately following the last day of school and conclude at 12 noon Eastern Standard Australian time on the Saturday closest to the midpoint of the school holiday period.
(b)The second half of a school holiday period is deemed to commence at 12 noon Eastern Australian time on the Saturday closest to the midpoint of the school holiday period and conclude at 12 noon Eastern Australian time on the Saturday immediately prior to the recommencement of school.
(c)Cost of airfares from New Zealand to Australia will be arranged and paid for by the father with arrangements to be made and confirmed flight itinerary provided to the mother not less than 4 weeks prior to the commencement of the time the children spend with the father.
(d)Costs of return airfares from Australia to New Zealand will be arranged and paid for by the mother with arrangements to be made and the confirmed flight itinerary provided to the father not less than 4 weeks prior to the conclusion of time the children spend with the father.
The children may communicate with the parent with whom they are not otherwise living with by telephone or Skype each Sunday, Tuesday and Thursday between 7pm and 7.30pm in the time zone the children are in at the time, or any reasonable time if the children initiate or request the communication.
Each parent is to notify the other parent as soon as possible, if either of the children suffers any serious illness or injury or hospital admission whilst in their care and each parent is at liberty to contact any doctor, hospital or other medical professional treating the children to obtain information.
Within 14 days of the date of these orders, or within 14 days of relocating to New Zealand, whichever occurs first, the mother will authorise and direct the following to provide information, including school report and photographs to the father upon his request:
(a)The children’s school, their school teachers and any counsellor at the school (in the last case subject to normal professional confidentiality); and
(b)The children’s doctors, dentists, therapists or other medical or allied professionals including information about their treatment, their diagnosis and their prognosis from time to time.
Neither of the parents will say unkind or rude or critical things about the other parent to, or in front of the children, or allow any other person to do so.
Nothing in these orders is designed to prevent the parents from making alternative arrangements for the children by agreement.
The Registrar of the Federal Circuit Court to do all things necessary to cause these orders to be registered in the Family Court of New Zealand.
Pending the mother’s and children’s removal to New Zealand:
(a)The children spend time with the father as follows:
(i)Each Tuesday from 9am Tuesday to 9am Wednesday;
(ii)For Y each alternate Friday from 9am until 6pm Sunday;
(iii)For X from after school each alternate Friday to commencement of school Monday;
(iv)All other times as agreed.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Winters & Bean is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1425 of 2012
| MS WINTERS |
Applicant
And
| MR BEAN |
Respondent
REASONS FOR JUDGMENT
The matter of Winters & Bean was a final hearing on the mother’s application that she be permitted to permanently relocate with the two children of the marriage, X, born (omitted) 2008, and Y, born (omitted) 2010 to New Zealand.
The father opposes this application and seeks orders that the mother be restrained from relocating the children outside the Canberra (omitted) area.
The mother told the Court that, should she be unsuccessful she will remain living with the children in Australia.
The father initially wanted an equal-time arrangement with the children. He amended that application and sought orders approaching significant and substantial time with the children at the commencement of the ultimate hearing.
The family consultant recommended the mother remain in Australia for 2 years until Y was of school age and then if she still wished to do so she be permitted to remove herself and the children to New Zealand.
The mother commenced proceedings on 17 September 2012 for property and parenting orders. The parties resolved their property issues at the commencement of this hearing.
The evidence read is as follows.
For the applicant mother.
a)Affidavits, affirmed 27 February 2013, 17 September 2012, and 10 April 2013.
b)Financial statement, affirmed 10 April 2013.
c)Affidavit of her maternal aunt, Ms M, 22 February 2013.
d)Affidavit of her mother, Ms W, affirmed 22 February 2013.
e)Affidavit of a friend, Ms N, affirmed 22 February 2013. This affidavit did not add anything to the matters before the Court and she was not cross-examined
f)Affidavit of the mother’s psychologist Ms S who prepared a report for these proceedings affirmed 11 March 2013.
g)Affidavit of her treating general practitioner, who is also a psychiatrist, Dr L, affirmed 12 May 2013.
The mother, maternal grandmother and Ms S were all cross-examined.
In addition to the mother’s filed material, she tendered the following exhibits.
a)Mother’s Exhibit 1. Notes and reports prepared by Mr A, the father’s treating psychologist for these proceedings and the father’s personal injuries claim matter.
b)Mothers Exhibit 2. A report prepared by Dr K a psychiatrist the father has consulted in relation to both the father’s personal injury claim and these proceedings regarding the father’s functioning and mental health.
c)Mother’s Exhibit 3. Her case outline.
d)Mother’s Exhibit 4. A minute of orders sought in all the likely scenarios being, pending her relocation to New Zealand, for the remainder of 2013 and 2014, if she is permitted to relocate, and orders sought if she is not permitted to relocate.
e)Mother’s Exhibit 5. (omitted) bank accounts, in the husband’s name, showing monies received by him from early 2010 up to April/May 2013.
f)Mother’s Exhibit 6. Employment separation certificate, in the father’s name, showing the receipt, by him, of $11,979.17 on 24 May 2012, in relation to termination of employment.
g)Mother’s Exhibit 7. Credits received by the husband in relation to income tax and other lump sum benefits since separation.
The evidence for the father.
a)Affidavit filed 5 July 2013.
b)Financial statement, filed 6 May 2013.
c)An affidavit of his mother, Ms J, filed 14 May 2013. This affidavit did not add anything to the matters before the Court. Ms J is a caring and loving grandmother who with her husband has been of great support to the parents and children and she was not required for cross-examination.
d)Case outline prepared by his Counsel.
e)A minute of order tendered at the conclusion of the evidence, in relation to time with the boys pending relocation, time with the boys if the mother is permitted to relocate, and time with the boys if the mother is not permitted to relocate.
The father was cross-examined.
The father’s psychologist Mr A was cross-examined on 15 May 2013.
In addition to the oral evidence, the father tendered the following exhibits.
a)Father’s Exhibit 1. The psychological progress reports prepared by Mr A, dated 21 August 2012, 20 November 2012 and 22 February 2013.
b)Questions and answers to specific questions requested by the father’s lawyer in relation to his family law matter which document I have called Mr A’s report dated 8 May 2013.
c)Mr A’s clinical notes.
d)Father’s Exhibit 2. Case outline.
e)Father’s Exhibit 3. Information from the internet in relation to the purchase price of a three-bedroom unit in (omitted) in the amount of $284,000.
f)Father’s Exhibit 4. Statement of the payments made by him towards the mortgage over the former matrimonial home. The parties lived in this home for a time and the mother and children lived in the home to the exclusion of the father for a time.
g)Father’s Exhibit 5. Documents prepared by the husband’s legal team showing the calculations of child support he would have been assessed to pay to the mother in 2010, 2011, and 2012.
h)The father’s position was that by reading exhibits 4 and 5 together it would demonstrate he had paid more by his payment of the joint mortgage than he would have been required to pay in child support. This submission was not supported on the evidence.
i)Father’s Exhibit 6. A document prepared by the ACT Government Community Service Priority Housing Assistance, which the father asserts demonstrates that the mother is able to obtain appropriate housing should she remain in Canberra at a minimum cost as the former matrimonial home is to be sold.
Court Exhibits.
a)Court Exhibit 1. Family report prepared by Ms W and she was cross-examined.
b)Court Exhibit 2. Transcript of proceedings on 15 and 16 May 2013.
CHRONOLOGY
The father was born in 1972, and the mother in 1978.
The parties married on (omitted) 2001 in (country omitted).
In August 2005 the parties moved to (country omitted) to enable the father to take up a position in his vocational areas of (omitted).
X, their first child, was born in (country omitted) on (omitted) 2008.
The father completed his (qualifications omitted), in 2009.
In March 2010 the father accepted a job in Canberra and the parties returned to Canberra from overseas. Unfortunately this is the time from which their relationship significantly deteriorated.
The parties relocated to Canberra in February 2010, purchased their home in (omitted) in February 2010, and some two months later, on 5 April 2010, had separated under the one roof.
The mother told the father that she wished to relocate to New Zealand around this time.
In May 2010 the mother and X with the agreement of the father travelled to New Zealand, for her family’s support and the birth of their second child, Y.
Y was born in New Zealand on (omitted) 2010.
On 14 October 2010, in accordance with the parent’s agreement the mother returned to Australia. The father had travelled to New Zealand for a period of about three weeks between May 2010 and October 2010.
In November 2011, the father physically left the home and resigned his position with (omitted).
In January 2012 he had obtained a position (omitted) the (omitted) and he moved to (omitted). He held that position from January 2012 until 26 May 2012 when his employment was terminated.
The father did not return to Canberra until 4 July 2012 when he made a unilateral decision to re-enter the home against the wishes of the wife.
The mother was uncomfortable with this decision and left the home with the boys.
On 5 July 2012 the father removed the children from day care without informing the mother.
On 6 July the father, showing insight into the needs of his children notified the mother that she could have exclusive occupation of the home.
The mother has lived in that home with the children, to the exclusion of the husband, since about late July 2012 and the father has maintained the mortgage payments on the home.
The father has along with several others commenced proceedings for a personal injuries claim against (omitted) College due to sexual abuse he suffered at the hands of a teacher Mr L whilst he was a student at the College.
The parties resolved their property matter on the 22 July 2013, terms were entered into and the issues for me to determine were the parenting arrangements.
I stated when the matter came before me in May 2013 and again in July 2013 that, whatever decision I make one parent will be bitterly disappointed.
The matter first came before me for a final hearing on 13 March 2013. It was not ready for hearing as no family report had been prepared and evidence of the father’s ongoing psychological treatment and claim in relation to sexual abuse allegations had just been discovered in subpoenaed material amongst other matters. I adjourned the matter for hearing on 15, 16 and 17 May and ordered a family report.
On 15 May 2013 the hearing commenced however events occurred on that day which resulted in the father becoming unrepresented and then re-represented in the afternoon of 15 May 2013 and the matter was again adjourned.
At the commencement of the hearing on 15 May 2013 the father was represented by Mr Crispin of Counsel and Ms Curran of Counsel represented the mother which representation continues. Ms Haughton of Counsel ultimately represented the father at the resumed hearing on 22, 23 and 24 July 2013.
The events that transpired in May 2013 were as follows. Documents had been subpoenaed by the mother from the husband’s treating psychologist Mr A as well as Dr K his psychiatrist who the father had been seeing in relation to his personal injuries claim.
The father strongly opposed these notes and reports coming into evidence and being read as they involved personal and upsetting revelations about the sexual abuse he had suffered at the hands of a teacher at a secondary college. The mother asserts she did not know of this abuse until these proceedings commenced and the father had not informed his parents prior to this time.
On instructions Mr Crispin objected to the release of the material and the objection was overruled. When this occurred the father sacked his legal team.
Ms Curran for the mother proffered that neither she, the mother nor the Court needed to know the specifics of the father’s abuse rather its consequences upon his adult functioning and suggested Dr K’s report be redacted insofar as the specifics of the abuse was concerned.
I adopted that sensible approach and Dr K’s report came into evidence with many black lines. However the doctor’s findings, prognosis, and diagnosis of the consequences for the father of the abuse he suffered when a child at the hands of a trusted teacher were made known to the Court.
The father was mollified by this approach which had not been suggested by his legal team and sought to re-engage his legal team however they would not be re-engaged.
Ms Heinz, solicitor of Mazengarb Solicitors appeared in the afternoon for the father and made an adjournment application which I granted. The matter was listed for hearing on 22, 23 and 24 July 2013.
The parents came to agreement on that day permitting the mother to leave for New Zealand with the boys provided she return for the final hearing in July, and agreement as to a partial distribution of monies in trust and the filing of additional material.
EVIDENCE AT THE HEARING
Mr A the father’s psychologist gave his evidence first and was cross-examined on 15 May 2013 when the father was still represented by Mr Crispin. Mr A sat with the father throughout the proceedings in July 2013.
The mother also gave some evidence on that occasion.
Mr A had seen the father on at least 24 occasions since August 2012. He prepared a report dated 8 May 2012 for Porters solicitors, the solicitors the father had initially engaged in the family law proceedings and this report forms part of Father’s Exhibit 1.
Mr A described the father at page 35 of the transcript as “A very troubled man”.
He described him in his reports of 20 November 2012 and 20 February 2013 as having a personality disorder and narcissistic/angry personality features and displaying alpha-male traits. These reports were prepared for the father’s personal injures claim.
At page 29 of the transcript Mr A described the father as full of anger and resentment. He spoke angrily, he perceived it an injustice his wife taking his children away and robbing him of his children. Mr A agreed that part of the treatment that he was engaging in with the father was to enable the father to learn to control his anger.
Mr A reported the father told him his wife fabricated things against him to make him look bad; he had issues about negotiating for time with his sons, like swapping weekends and the like; that he wasn’t properly employed and had difficulties with employment, this was causing difficulty; that he would go to nightclubs, stay for all hours, become intoxicated and generally party on, followed by moments of remorse.
Unfortunately, the father did not tell either Mr A, or Dr K, of the level of his speed use which is still twice a week as disclosed in his affidavit of 5 July 2013. The father says he gave up binge drinking in April 2013.
Mr A’s reports and oral evidence were clear. The father would be devastated if he lost “this battle”. The father regards these proceedings as “a battle” those being his words.
Mr A said the father believed the custody proceedings before the Court would impact badly on the children, that he wouldn’t get a fair shake; that he wouldn’t be able to present his arguments well; that matters that should be aired would not be; that he’d been paying accounts and bills for the home and the mortgage, which he wasn’t going to get credit for; and that although he agreed he speaks badly and forthrightly to people this is held against him later.
As an example of this forthrightness the father told Mr A that he said to X in January 2013, “That’s true. Mummy hates daddy.” The father agreed this statement had caused significant difficulty for the mother and X. The father said the words just flew out of his mouth, he regrets it, but the damage was done.
The mother gave evidence that the father’s comments caused X significant grief and he took him some time to overcome his sadness at this comment, a comment which is simply untrue.
A further example of this was the father’s response to Ms Curran mispronouncing his surname at page 83, commencing at line 20 of the transcript.
The father said, “It is Bean (omitted). But that’s like an example when Mr A was saying about me getting angry. They are the sort of button pushers that make me angry and the only reason I am angry is through this case is because it is button pushing”.
I asked, “You think people are doing it intentionally?”
Answer - “I feel that way. Yes.”
Ms Curran apologised and I said, “Perhaps we are not good at pronouncing the name?”
Answer - “To me that is a lack of education. She’s had plenty of chances to speak to my ex-wife about the correct pronunciation and I personally see that as arrogance Your Honour”
The father’s reaction in the light of Ms Curran’s apology is an example of ongoing behaviour by the father which causes significant difficulty for the mother and children. As the evidence unfolded and despite the father’s treatment from Mr A and his desire, as he expresses it, to change and not fly off the handle this has not yet come to pass. He continues to behave in this unpredictable manner and lose it and to do so in front of the children.
Although the father has expressed to many including the family consultant that he did not want to behave this way towards the wife and despite Mr A’s view on 15 May 2013, at page 32, point 35 of the transcript, that the father had a growing capacity not to speak harshly to or fly off the handle at the mother, it became clear he continues to behave in this damaging manner towards her.
The maternal grandmother’s evidence was that on 16 July 2013 in New Zealand when the father was collecting the boys from her he said “if she thinks things have been bad, they have not been. I can make this worse for her and make her life a living hell”. This was said 6 days before the final hearing commenced.
The father agreed in cross examination that he said words something to that effect to the grandmother but it was an off the cuff comment. The father is an adult and there are consequences of adult behaviours. It is apparent that he struggles to control himself.
Mr A said we all struggle to control our emotions and although he did not want to put the father down at the bad end of people who could not control themselves with the public, he agreed the father had less control than average.
At page 34, point 15 of the transcript Mr A said the reason that the father wasn’t getting better was due to this matter:
When I started seeing him, this matter was not prominent, but, in the last three or four months, the matter’s come up, and I think it’s set back his course of recovery, if you like.
Mr A saw the father in August 2012, and this evidence was given in May 2013. The father’s behaviour from August 2012 to May 2013 had not, on the evidence I have read in the mother’s affidavit or the father’s affidavit or observed improved at any time and Mr A’s comments were not supported on the evidence.
He went on to say.
I would expect the course of recovery he was on to continue, but he’s been very distressed the last three or four months.
I do not accept Mr A’s view that the father was recovering from between August 2012 and January 2013 when this matter again loomed large.
Mr A said:
If this hearing hadn’t happened I’d expect him to be getting better. This has provoked him, it had made him more anxious, and the more anxious he is, the less control he has.
These proceedings will not be the only matter Mr Bean has to contend with in life nor are they the only stressors he is contending with. He does not have a permanent job at present and is unable to gain employment in his chosen career of (omitted). Those matters caused him significant stress as he reported to Mr A and the family consultant.
He has been let go, from two positions since returning to Australia in 2010 and tells the Court he has just resigned from his last position as a (omitted) as he disagreed with the ethics of his employer. He is hopeful of finding other work in his chosen field and has made applications as a (omitted) but is as yet unsuccessful.
I asked Mr A:
So, the court proceedings have heightened his anxiety, and therefore his ability to control his emotions? – Yes.
The reality is that on the evidence the father has had difficulties controlling his emotions and anger since he returned to Australia in 2010, 2 years before these proceeding were contemplated let alone commenced. I accept these proceedings would not help the father however he exhibited seriously flawed behaviours before the proceedings were commenced.
Secondly the mother commenced the proceedings in September 2012. Mr A saw the father in July 2012. What behaviour prior to the first time Mr A saw the father is he relying upon to make this assessment of an improvement? There is none as Mr A had not met the father until two months at most prior to the proceedings commencing.
Thirdly the opinion that the family law proceedings underpin the father’s continuing poor behaviour, anger and anxiety is far too simplistic an answer. The reason for the father’s poor emotional functioning and lack of control is complicated and includes the consequences of the abuse he suffered as a child, his own personality, the breakdown of his marriage, inability to financially support his family as he would wish, failure to hold down a job in his area of expertise, at which I accept he excels, as well as the possible consequences of these proceedings.
The father has known since May 2010, within three or four months of the parents returning to Canberra that the mother wished to relocate to New Zealand and that she was not content or happy living in Canberra. It is now July 2013 and Mr Bean continues to be unable to control his anger towards those who disagree with him and when challenged as observed in Court.
To his credit, the father told Mr A that he believes the mother would be better off in New Zealand because she would be closer to her family, she has connections over there, she is a New Zealander, and would feel more at home. Mr Bean is correct in his assessment and this demonstrated the father has insight into the needs of others at times.
The report prepared by Mr A for these proceedings is headed Answers to questions for the Family Law proceedings and is dated 8 May 2013. The specific questions and answers are:
Has the father been diagnosed with mental, psychological, or emotional conditions? Dysthymia, acute high anxiety—most probably due to the current family matter—and, finally, a longstanding sense of inferiority and shame, for which he overcompensates.
There is no mention in this report of Mr A’s earlier diagnosis of anger, and narcissistic personality disorder. Mr A had watered down his earlier assessments of the father.
Mr A wrote:
Currently, he’s very anxious and distressed by the current Family Court matter. He’s very afraid his children may be relocated to New Zealand. He has a longstanding sense of inferiority and shame. He was referred to me in July 2012 about the sexual assault which occurred 20 years ago. Though I’ve seen him for 20 sessions, we seem to have a good rapport, he’s not been able to tell me the details.
In oral evidence Mr A said it was not necessary for the father to tell him the details of the assault in order to recover and this will not inhibit his recovery.
Like many people who’ve suffered sexual assault, he has a longstanding sense of shame, inadequacy, low self-esteem, not being man enough, not being able to get close to and trust others, and this has given rise to his longstanding dysthymic disorder. He overcompensates for his low self-esteem by adopting a manner of a strong masculine man, the alpha male presentation.
The presentation when Mr Bean ensures no one stands over him, or is seen as inferior, makes him, at times, seem intimidating.
I observed this behaviour as did Ms W in her report where she said at page 5 paragraph 5.1.5:
The family consultant experienced Mr Bean’s style as forceful, somewhat angry, and bordering on intimidating. A frank discussion about the way he presented in the interview led to acknowledgement that he does scare people, an issue he’s currently dealing with in relation to other matters before other courts.
It’s noted in the affidavits that Mr Bean punched walls, punched and caused damage to a wall in the bedroom, in response to having an object thrown at him by Ms Winters.
Mr A’s report of 21 August 2012 states:
Diagnosis: personality disorder, depression. His attachment style is very brittle and he may not be able to tolerate the closeness that therapy demands. He’s cooperative and seems keen to change his lifestyle.
In 20 November 2012, Mr A says that the diagnosis, his personality disorder, had become clearer:
He has, what appears to be, narcissistic, angry personality features. These almost certainly mask a deep insecurity and depression.
These presentations were evident at the hearing, as much of the father’s comment was about what this was doing to him - that he’s being punished for the fact that he was molested as a child, what the wife is doing to him and that everyone is against him.
Mr A further reported,
His current life issues in November were: custody battle with ex-wife, relationship with ex-wife and sons, lack of proper employment, substance use.
At page 35, paragraph 35 of the transcript Mr A began the watering down process of his diagnosis in his earlier reports prepared for the father’s personal injuries claim when giving evidence in the family law proceedings.
In oral evidence he described the father as narcissistic in his presentation, with depressive behaviours. This description was watered down from his prior diagnosis in his November 2012 report of the father having a personality disorder and presenting as narcissistic and angry. A parent described with a personality disorder, presenting as narcissistic and angry, suffering from depression may potentially present a real risk of harm to a child in an unsupervised setting or at any time.
The behavioural consequences of such disorders may render the sharing of parental responsibility an impossibility and not realistic and make the parenting of the children by the afflicted parent all the harder.
In oral evidence Mr A broke up the behaviour consequences of the father’s disorders into three themes:
a)His dysthymic disorder makes him miserable and unhappy, and have a bleak view of the future.
b)The second is the anxiety around the loss of his children, which will come or go depending on the results of the proceedings.
c)The third which is a sustained feature is that he has an enduring low self-confidence, lack of self-belief, and that makes him behave in an alpha male sort of fashion. Mr A referred to this alpha male presentation in his reports.
Mr A said that the father does not choose to be an alpha male, or behave in this aggressive, bullying manner it’s just how he thinks he should behave, “I’m just being forthright, I’m being upfront, and I’m not wishy-washy.”
This described behaviour is that which the children have experienced and is how the father deals with and treats the mother. It is consistent with the mother’s description of the father’s anger, aggression, bad temper and then regret.
Mr A said people with the father’s issues are not really able to read the impact they are having on other people, and they are somewhat surprised when people have a bad reaction to them.
This describes the father’s lack of insight into the negative consequences of his comments on the children and mother such as “Mummy hates me” and to the maternal grandmother “if she thinks things have been bad, they have not been. I can make this worse for her and make her life a living hell”. The father’s own significant issues and troubled mental health functioning have compromised his ability to have insight into the impact of his behaviours on his children and their mother.
Mr A read Ms S’s report. Ms S is the mother’s psychologist. Ms S administered the dominance scale testing of individuals and found Ms Winters had a low score and that she is probably not skilled in asserting herself when needed and referred to the mother as an unassertive personality.
I observed her to be a gentle and sensitive person with a calm and mild manner which was a stark contrast to the father’s aggressive in your face manner.
Mr A agreed that such a person would have difficulty dealing with the type of person Mr Bean presents. He agreed this difference would impact on their capacity to communicate face-to-face yet would not accept that from the mother’s point of view her husband did scary things and she could be a pushover.
Mr A said “Well, unassertive people resort to other tactics, called passive-aggressive.” I was struck that the father used this same description of the mother‘s behaviours as well in his oral evidence. Mr A agreed that if at the time the aggressive person is being aggressive, the passive person will back off.
Mr A was asked whether it would be difficult for the mother to deal, on a day-to-day basis, with someone who has Mr Bean’s personality type.
Mr A replied:
Probably you would, but the person would be dealing with any other matters of complexity, which may then be dealt with in other ways later on. So, they might not give in at the instance, but they come back again in other cleverer ways. I’m not saying that has happened, because I don’t know, but I also can’t say because someone’s dominant and someone’s weak, the dominant one always wins, it’s not like that.
I said to Mr A, “You’re getting off the track, this is the Family Law Act; it’s not about winning, it’s about their ability to communicate with each other and talk about their children.” Mr A’s answer was not responsive and winning was not the focus of the question but rather how the mother would be able to deal with the father when she is a non-assertive person and he an alpha male.
Mr A was asked,
“If the mother stays here, what is your expectation on the father’s prognosis?”
Answer - “Good. My prognosis is good.”
“What period of time would you expect to need to continue to see Mr Bean?”
Answer - “At least until the end of this year, 2013.”
“And, if the mother was successful in her application to live in New Zealand?”
Answer - “I would continue to see Mr Bean, but he would have a much less rosy prognosis - poor prognosis.”
He opined that the risk of the father self-harming was great if the mother left. That the possibility is he may become withdrawn, or embittered, and lose his relationship with the children by his conduct and not maintaining the relationship was also a possibility.
Mr A said:
Mr Bean struggles with feelings that he’s not good enough, he’s not man enough, he’s not strong enough, and he overcompensates. And, what we’ve been doing is to trying to address that wounding in emotional terms, but also in a behavioural sense, of dealing more calmly and assertively with people, rather than being inclined to get red-faced and cranky, or wimpy and compliant. I think he alternates between the two. A good prognosis is he is less hostile and angry, or wimpy and overly compliant, and get into the middle ground of being assertive but not threatening or wimpy.
Mr A opined that if the mother remained he would be more conciliatory as he would not feel he’s having his nose rubbed in it.
Ms Curran put to Mr A that he might continue to behave in his current manner even if the mother stayed in Australia. Ms Curran gave as an example that, after separation and before these proceedings commenced he had relocated to (omitted) for work. He had been absent from the home for eight months and simply announced that he would be returning to live at the home, against the mother’s wishes, changed the locks and moved in. There was no prospect of the mother going to New Zealand with the children at that point yet this is how he behaved.
Mr A was asked, “What does that behaviour indicate to you?” His answer:
Oh, well, there was some dispute about whose house it was and he felt it was his too and why should he have to leave? And, that’s what drove him to overcompensate, he was being robbed, he overcompensated.
This describes the father behaving in an unpredictable alpha male manner well before the court proceedings commenced. He has been behaving in that manner for many years and continues and little has changed.
I am not satisfied that if the mother remained in Australia the father would become conciliatory and easier to deal with. It is at best a faint possibility.
Mr A said “Well, winning won’t make him better, but losing will make him worse. Mr Bean is likely to be able to achieve a normal range of control in six to twelve months.” I was unable to discern upon what fact or evidence that prognosis was based.
The father told Mr A he believed in February 2013 that he was less abrasive, and his employment prospects may improve. On both accounts the father was unfortunately incorrect.
Mr A said. “Mr Bean did not see himself as being intimidating, more likely he sees himself as behaving forthrightly, directly calling a spade a spade. He’s now more inclined to accept, despite his intentions, he may be seen as threatening, and is now consciously trying to curb his manner.”
I saw no evidence of this intention having been put into effect by the time of the hearing.
Mr A said “Partly as a component of the alpha male role, when distressed he is inclined to go to nightclubs where he drinks to excess in the process of mixing with women.” The father had been unfaithful to the wife during the relationship and felt poorly about that.
The father said he spent $50 on binge drinking as other people bought him drinks, and that he has only spent $1,000 on his speed intake over the last 3 years although he admits to taking the drug twice a week. I do not accept those figures. Given the difficult financial position the parties are in it is a pity the father used his scarce resources on these self-indulgent activities.
It came as a surprise to the mother, that the father was still taking speed twice a week. The mother sought orders for drug testing. There are some practical difficulties with such an order. Although I find the father’s honesty refreshing it is extraordinary that he would continue this behaviour and bespeaks of the father’s continued difficulties in exercising self-control.
Mr A was asked what impact the children relocating in New Zealand would have on their father.
Mr Bean will be distressed as any average father would be, however, because of his early sexual abuse, he may become particularly vulnerable and distressed
He will be distressed, both for his loss, and their loss of him. He will suffer bereavement, sadness, longing, preoccupation with their welfare, probably poor sleep, loss of appetite, loss of interest, and loss of positive view of life. And, he may suffer them more intently because he’s been abused. This will also add to his existing bitterness. He can see what damage this sexual assault has done to his life, and he alternates between sadness and bitterness.
On one occasion when having a session with Mr A the father was referring to the current Family Law matter and said “I was already fucked once, now it’s happening again.”
Mr A said if the relocation takes place he would be very worried about Mr Bean’s reaction. The father will become very sad and self-harm would be a distinct possibility. Another possibility was that to protect himself from further distress he may abruptly, or gradually, psychologically distance himself from the children.
Mr A opined that this would not be an act to punish his children and his ex-wife, but more an act of despair. If the father became embittered or withdrawn, this would be noticed by the children and, presumably, harm them and, indeed, they would suffer the loss of their father in their life.
It was submitted by the father’s Counsel that as there is a real risk of the father’s behaviour and health deteriorating if I permit the mother to go to New Zealand and/or his cutting off his relationship with the children as a reaction to such an event I should not so permit her so to do.
I am struggling with that being a consideration I should take into account, having regard to the best interest of the children. I accept the consequences for the children of those scenarios are matters I must consider however the consequence for the father is not of itself a matter for consideration other than to inform me of the possible consequences for the children.
One of the significant difficulties for the mother as a result of the father’s infidelities and multiple sexual partners is that he infected her with genital herpes which flares up when under stress. The father has not behaved well towards the mother throughout their marriage.
Although I accept a large contributor to the father’s poor continuing behaviour, is as a result of the abuse he suffered at the hands of a paedophile some 20 years ago, the result is his poor behaviour is a reality that the mother must deal with and that the children are exposed to.
The mother has consulted Dr L due to her herpes condition and he has prepared a report for these proceedings. Dr L is not only a general practitioner, he is also a psychiatrist, and the mother has consulted him for both her general health and psychiatric health. He has an impressive CV.
Dr L's report, dated 2 May 2013 states.
I have attended Ms Winters in my professional capacity as primary care psychiatrist and prepared to attest she suffers from, and is treated for, a chronic anxiety disorder and somatic expression which is directly consequential to the accumulative sense of distress, occasioned by her relationship breakdown, and the obfuscation and frustration generated by her ex-partner. Ms Winters is an intelligent, practical and insightful young mother, who finds herself separated from her familial supports, and unsupported with respect to the needs of her small family.
The relationship is further tainted by Ms Winters having contracted Herpes Genitalis from her ex-partner, who was clearly aware but did not inform her of this infection. This adds to her sense of distress and recurrent flare-ups of infection, requiring on-going treatment, and is directly attributable to the anxiety and distress consequent upon the obstructive, and convoluted, machinations of her ex-husband, especially with regard to the ultimate domicile of her family.
There is no doubt, Ms Winters suffers chronic anxiety symptoms, while assisted by her pragmatism these are amplified by her circumstances and there is a prominent somatic, or physical expression of that anxiety. I am of the view that her symptoms are unlikely to resolve until her social circumstances are appropriately concluded.
The mother's evidence was that during her last visit to New Zealand she had had no flare up of herpes as her anxiety was low.
Ms Curran asked Mr A whether he had explored with the father his capacity to move to New Zealand and asked would that be a course he might adopt. Mr A said no, it was not a course he would adopt. The father told him the mother’s family is located near the (omitted), it’s a small town, there is no employment there, the father has no money, he has no particular assets, and no skills to take there and he would be completely isolated.
The father made no mention of the specifics of his treatment and diagnoses by Mr A and Dr K in his material filed prior to July 2013 other than casually referring to having counselling sessions. He did not tell Ms W the extent of his sessions, why he having the sessions or give an explanation of the need for this intensive counselling. I accept the father has a significant and disabling inability to speak of or deal with, what are traumatic and abusive physical events in his past.
The father had the sole benefit of or received the following monies post separation. $50,000 in joint savings at separation, $12,000 payout from the (omitted) in 2012; three tax returns $11,000 and $3,000 in 2012 and $12,000 in 2010, $12,000 from his (omitted) payout in 2012 and $2,000 refund from the (omitted). That totals $90,000 together with the income he earned during that time.
The mother has not had access to the joint bank account since May 2010 and was unaware that the father received money from tax refunds and termination of employment. This evidence came as a shock to her.
I accept the husband made the mortgage payments post separation. He has paid around $68,000 towards the mortgage from 2010 to April 2013 of which $40,500 was paid since the wife has had exclusive occupation.
The wife had an entitlement to part of those lump sums being joint savings, the 2010 tax returns and (omitted) money which amounts total $64,000 and on an equal entitlement basis $32,000.
On these figures the wife has paid 50% of the mortgage payments since 2010 yet received no child support. Thus the husband’s argument that he has by way of making mortgage payments paid more than he was required to pay if he was only paying child support is fallacious. The husband has not supported his family to the best of his ability which is consistent with excessive alcohol consumption and illegal drug taking which activities the husband admitted he has engaged in.
Secondly his submission that he has paid the mortgage solely from his resources is not correct. I find the mother has made an equal contribution to the mortgage payments post separation.
The mother’s source of income since separation is as follows. When in New Zealand the equivalent of sole parenting pension and $100 a week from the father. Upon her return to Australia in October 2010, she commenced (omitted) twice a week at about $70 a session, the family tax benefit and $100 a week from the father up to November 2011.
The mother agreed that the father had given her $100 a fortnight, from October 2010 to November 2011, to support the family and paid the mortgage, rates, and taxes on the home. However this was insufficient to buy food etc and the mother has used food bank, and relied on charities at times to feed herself and her children. The mother was complimentary of the support the paternal family have given her since separation and described them as lovely people.
These children have not had a stability of living arrangements or parenting arrangements, that the mother, and in his heart the father would have preferred for them. The father and mother have struggled to pay the mortgage on the property. There has been no child support to the mother for the support of the children, because the father was paying the mortgage on the property.
The paternal Grandparents have provided sums of money to assist the parties.
The father has been unable to provide the financial security for his family in Australia that he was able to provide whilst overseas. This hardship has had a negative and deleterious impact upon the mother, the children, and the father. The mother has been, and always will be, the children’s primary carer. The mother has worked to the best of her ability being the primary carer of two young children.
The father said to Ms W at paragraph 1.5 he has had serious difficulties with employment associated with the breakdown of the marriage. The father’s behaviour is the root cause of his difficulties with employment not the breakdown of his marriage. I accept the breakdown of his marriage did not assist his behaviours and that he excels in his work, is well-qualified, and capable in his chosen field of a (omitted).
The upshot is that due to his behavioural dysfunction in dealing with people and inability to control his anger the father has been unable to financially support his family. That inability is a significant problem for the father and his self-esteem.
The father’s squandering of money on his own self-indulgent activities is even more distressing in light of all these facts.
The mother is not a permanent resident of Australia and is not entitled to all benefits of a permanent resident, particularly in being required to pay HECS up front to complete her (studies omitted). Although I accept she has the ability to become a permanent resident, such an application will cost around $3,000 and the husband will be required to sponsor her application. He said in oral evidence he would do so. He has not done so to date.
The mother currently receives a parenting benefit, and works as a (omitted) part-time earning about $70, or so, a session and has just started to work at the (omitted) as a casual employee. The mother has a very low income and receives no child support.
When the father was in (omitted) in the first half of 2012 the children only saw him on one occasion. The father said in cross-examination this was because the wife prevented the children from coming down to (omitted) for his birthday. He was working 80 hours a week 6 days a week and had limited off time. The father blames the mother for not arranging for the children to spend time with him on his birthday weekend. It is clear from the series of emails attached to the mother's affidavit, the father would not compromise.
I was concerned about the father’s choices at that time. He ceased work with the (omitted) in late May yet did not return to Canberra until early July 2012. He could proffer no reasonable explanation for this delay of 6 weeks in being reunited with his children.
When he returned he caused distress and upset by entering the home against the mother’s wishes. It is hypocritical for the father to criticise the mother for not fitting in with his timing in mid-2012 and ensure the children spent a weekend with him on his birthday in (omitted) when he did not spend any time with his sons in a six week period when he was not working.
The reality is as the mother stated, X and Y have experienced and are used to frequent and lengthy absences from their father. X had a significant absence from his father, when in New Zealand with his mother for five months either side of Y’s birth in 2010. He saw his dad for 3 weeks during those five months.
X and Y experienced an absence from their father for 7 months from January to July 2012. The children appear to have coped with these absences as they have a close and attached relationship with him. The strength of their relationship is not only down to the father and his capacity to positively engage with the children when he has them in his care. With young children who have been apart from a parent it must also be because the primary parent, in this matter the mother, has a capacity to encourage this relationship as well.
Thus, for the father to assert in oral evidence that the mother will not promote his relationship with the children, is not correct and is contrary to the evidence.
The mother spoke of the positives of the father:
When he is in a good mood he does fun things with them. He is great with the sport; helps them with building things. He's a male, and they're boys. It's really good. He is not always a positive for the children, but sometimes he's great. He's uncontrollable. The failings are: the comments he makes when he's uncontrolled, saying, 'Your mother hates me.' Keeping Secrets - X says he has secrets.
The facts clearly show that the mother is positive of the children’s relationship with their father, and that the father has built on this encouragement and his children are closely attached and bonded with him. This demonstrated capacity of the mother was not taken into account at all by Ms W or mentioned by her yet it is clear and apparent that the children’s relationship with their father has been fostered by their mother.
Ms W opined that Y’s relationship with his father at his young age could not be maintained or fostered over time and distance which would be the case if the mother relocated to New Zealand.
She was asked:
X is particularly attached to his father, yet he has had significant absences from him approaching a year in his young life thus, why could not Y, also, have the same attached relationship with his father, as X now does even if the mother is in New Zealand?
Ms W said X’s attachment is strong because his father came back. Ms W did not acknowledge the role the mother played in fostering this relationship. Ms W did not accept even the possibility that Y could develop the same close and attached relationship with his father as X has despite the father being absent for 11 months of X’s life. X’s close relationship with his father in light of these facts must be due to a combination of his mother’s capacity to foster the relationship and the father’s capacity to build on that encouragement.
Ms W said in the family report at paragraph 6.5:
Y is still in a critical period for the development of attachment relationships, the predominant organising force of infant and young child social development.
He appeared strongly attached to both parents. It was not possible to identify, on the day at court, his main attachment figure. However, it is most likely it is his mother. He is still breastfed each morning and he spends six nights a week with his mother.
I found the comment regarding being unable to discern Y’s main attachments figure unhelpful given the reality of parenting arrangements. However the observation is support for the mother’s position that the children are used to long absences from their father and that this does not and has not had a negative impact upon their capacity to form a close relationship with him and benefit from that close and meaningful relationship.
The observations by the family consultant of this close relationship of the children and father is consistent with their mother’s description of their relationship with him and the father’s belief. The absences of their father in their lives has not diminished this strong relationship and thus the mother’s belief that relocating to New Zealand will not have the negative impact upon the children’s relationship as the father and Ms W would suggest has some support on the evidence.
Ms W made a startling finding, at paragraph 5.1 of her report.
The communication between her and the father is apparently without significant incident.
That is not a finding Ms W was entitled to make and is contrary to the evidence of each parent. Face to face communication is fraught. The mother disagreed with Ms W’s opinion in her oral evidence on 15 May, page 55, point 30 of the transcript where she said:
Well, I don't agree with that. I mean, we have had incidents when he has come into the house, he's had a go at me about some things, and I wouldn't say it's completely incident free. But especially on Fridays, now that we do hand over at pre-school, yes, it is much better. We can communicate over text, we can email about doctor's appointments for the boys and the like.
Ms W opined that the mother is able to deal with the father. Ms W either failed to read or mention in her report the mother’s affidavit of 27 February 2013, paragraph 22, where she says:
He was referred to the (omitted) Mental Health in early 2011. During September 2011 the parties were having a meditation and she received a phone call because of the suicidal thoughts that the father was having from a mediator.
On 15 September 2011 Mr Bean was very aggressive, he threw chairs onto the floor, kicked things across the room, slammed doors, yelled and swore. X was upset and kept asking Mr Bean to stop, saying words to effect, “Stop daddy, stop,” in a distressed voice.
On 2 January 2012 Y was stuck on his climbing seat, crying out for help. Mr Bean said to him, “Sort yourself out or fall off, I can’t help you any more.” Y seemed confused by his father’s response.
Later, on the same day, the boys were playing in a pool and the mother was watching them. The father came to the backyard with a carving knife and said, “I’m going to put a hole in the pool to teach the boys that when life is good something will ruin it.” He did not do this, but left the house instead.
Ms W did not describe all the incidents of violence and frightening behaviour the mother referred to in her material and thus may have downplayed the impact of the father’s behaviour on the mother.
Further I accept the mother’s evidence that the boys entered the interview room on 2 or 3 occasions whilst she and Ms W were talking. That at that time she was discussing intimate details of her husband’s infidelity and the consequences for her of herpes she contracted from him and was crying. That upon the boys entering the room the mother put on a brave face and ceased any negative comments about the father.
The mother said in her oral evidence:
It was particularly bad timing. We were discussing something quite sensitive, and I was crying at the time. It was a bit awkward. My children sort of came in. Y had done a number two and needed to be changed. I provided a nappy and wipes. It was a bit awkward considering the content that had just been discussed.
And that when she is around her children:
I try to hide how I'm truly feeling. I'm not saying I don't cry in front of them, because they give me a hug when they say, 'Is mummy sad?' But it was particularly awkward for me when I was speaking to the family consultant.
The mother said the boys came in quite a few times and:
It was turning into a bit of game like hide and seek, running through the corridors, because they had been there all day.
In her oral evidence Ms W did not concede the interruptions had any impact on the mother’s presentation or may be an explanation why the mother did not disclose orally to her all the incidents of poor behaviour asserted against the father in her affidavit. I formed the view that Ms W had not been particularly aware of the impact these interruptions may have had on the answers the mother gave.
The use of Skype will be of great assistance to X in maintaining his relationship with his father. Ms W agreed it would also assist Y.
The possibility of the mother’s parenting diminishing if she is to remain in Australia even for two years coupled with the father’s already impaired parenting capacity and functioning is more likely than not to result in the children being parented by two impaired parents. Such an outcome may affect the meaningful relationship of the boys with each parent as it is clear that a part of the strength of the boys’ relationship now with their father is due to the mother’s capacity to foster same.
The children spending significant time with their father and the mother having to deal with and communicate with him will continue to negatively impact upon her parenting resulting in potentially two impaired parents of two young children whilst he behaves as he does.
The parents have significant difficulty in communicating and resolving issues about their children. The mother has to build up courage to talk to the father and if she cannot she ignores him. The father behaves in a knee-jerk, high-handed, offensive, overbearing manner and does not respond well to being ignored.
There is no guarantee that the father will improve to a level to enable him to become an appropriately functioning parent in the near future. At best he may recover in 6 to 12 months however that of itself is a prognosis of hope rather than science. The clear evidence is that the mother will function to a high level if she returns to New Zealand.
The father’s dysfunction may be exacerbated if the mother is successful and may result in him becoming embittered and the boys losing their father. Although the children do and will benefit from a meaningful relationship with the father, there are potential risks attached to this relationship as pointed out by Ms W and noted by the mother as the father not being a good role model.
Ms W said if attuned children like X are exposed to intimidation in the home they may, as they grow older, learn to use their knowledge of how others feel in antisocial ways, such as teasing and bullying and this is a risk for X.
Additionally, Ms W reported X was already suffering from being parented by two compromised parents and he had described mummy and daddy as sad.
The father’s own impaired functioning may as his children age and grow, compromise his capacity to further develop his meaningful relationship with the children. The father does not deal well with being challenged and boys will challenge a parent. He agrees he flies off the handle at times and does so in front of the boys. He makes derogatory comments about the mother in the presence of the boys.
I am not satisfied that Y’s relationship with his father will be so impacted upon as to render it of no meaning to him if the mother relocates. I accept it will be diminished and be less than if he remained in Australia, however X has spent lengthy time apart from his father with little diminishing of his strong relationship. The mother has demonstrated capacity to promote the boys relationship with their father in very difficult circumstances which will no doubt be maximised if she lives in New Zealand and the father has the capacity to engage meaningfully with his sons despite lengthy absences from them.
The need to protect the children from harm and abuse.
The father has exposed the children to poor behaviour, angry outbursts, denigrating of the mother and poor impulse control. The parents can only now communicate via e-mail and SMS and avoid contact with each other. The mother says she will feel safer in New Zealand and being separated from the father.
The father has perpetrated family violence against the mother and in the presence of the children at times and the children spending time with him may further expose them to the father’s intimidating and aggressive behaviours directly and in his dealing with their mother.
Even in July 2013 whilst in New Zealand the father could not control himself and threatened the mother through her mother. I accept the mother will feel safer in New Zealand with her family around her.
X is at risk of mimicking his father’s behaviours and has already suffered psychological harm from his father’s conduct.
Wishes of the children.
The children are too young to express a wish or know the consequences of living in New Zealand or Australia
The nature of the children’s relationship with their parents and others.
Whether the children remain in Australia or live in New Zealand the children are primarily and securely attached to their mother. The children have a loving relationship with their paternal grandparents and have a relationship with their maternal grandmother.
The children’s relationship with their father is strong and attached particularly for X and can be maintained whether he lives in Australia or New Zealand. Y is still developing his attached relationship with his father and this relationship would benefit from his remaining in Australia for the next 2 years.
The parents agree the children have fun with their father, enjoy their time with him and love him as he does them. The father has not been the day to day parent and has been absent in the children’s lives for lengthy periods on at least 2 occasions since their birth. There is no doubt the children benefit from a relationship with each of their parents and the paternal grandparents as well which relationship will also suffer if they move to New Zealand.
The mother’s relationship with the boys and her capacities do not suffer from any such deficit although her functioning may deteriorate if she is to remain in Australia even for two years.
Financial support of the children.
The mother supported the children to the best of her ability and a move to New Zealand she believes, and I accept, will maximise her income earning capacity to adequately support her children which is a significant factor in the mother’s desire to relocate.
The father has not maximised his support of the children. He has spent significant sums on binge drinking, partying and illegal drug taking. Financial support for the children has not been at a level either parent is satisfied with and is one of the reasons the mother seeks to relocate to finish her studies with the help of her family and obtain employment. The father has been unable to find secure employment since his return to Australia in 2010 which has compromised his ability to financially support the children at a level he would wish.
The practical difficulty and expense of a child spending time with either parent.
If the mother relocates the expense is considerable to enable the children and father to spend time with each other if the father remains in Australia.
A four hour one way international flight is the only way the boys and the father can spend time with each other. It will be 4 years before Y and thus both boys can travel as unaccompanied minors.
If the children remain in Australia there is no practical difficulty or expense associated with the children spending time with each parent.
If the father lives in New Zealand he can maximise his time with the children. He has no impediment to living in New Zealand other than his wish not to do so and that decision is a matter for him.
Impact of change upon the boys.
If the mother remains in Australia there will be little impact or change for the boys save that their mother’s level of parenting may diminish.
If the mother is successful the boys will live permanently in New Zealand something they have not experienced before. They are familiar with New Zealand having spent much time in that country but will be separated from their father and paternal grandparents. There is no evidence that the boys will not be able to cope with this change or benefit from it. It is the reduction in time they will spend with their father and in part the paternal grandparents that is the most damaging aspect of this change and this impact is unknown.
The boys have been used to spending large chunks of time without their father’s daily presence or even monthly presence. These breaks amounting to 11 months for X and 7 months for Y have not diminished the benefit they receive from a relationship with their father or appear to have negatively impacted upon that important relationship.
If the boys are in New Zealand and the father in Australia he will be unable to attend at their school, doctors’ appointments and the like, sport on a Saturday and be involved with the children at that level. If he lives in New Zealand this level of involvement is possible
If the mother remains in the Canberra region the father’s involvement with the children can include all the aforesaid activities and they will be able to spend regular time with their father and paternal grandparents.
Parenting capacity.
The father’s parenting capacity is significantly flawed and compromised due to his own impaired emotional and psychological functioning and this is likely to continue for some time whether the boys live in New Zealand or Australia.
The mother has a demonstrated superior parenting capacity to the father which will be enhanced and strengthened if she is permitted to relocate to New Zealand and it will still be superior to the father’s even if she remains in Australia.
I accept that there is a possibility that the father’s functioning may deteriorate if the mother is successful and if that occurs it would have a negative impact upon the boys. However I do not accept that the father would ever abandon his children.
If the mother remains in Australia there is a possibility that her parenting capacity will deteriorate as hope of moving will be lost at least for a time and thus the children may have two impaired parents which will have a negative impact upon them.
The parents have significant difficulty in communicating and resolving issues about their children. The mother has to build up courage to talk to the father and if she cannot she ignores him. The father behaves in a knee-jerk, high-handed, offensive, overbearing manner and does not respond well to being ignored.
Attitude to the responsibilities of parenthood.
The mother has a high level of functioning as a parent and has been able to carry out her parental responsibilities to a high level in very difficult circumstances. The strength of the boys’ relationship with their father and her ability to protect the children from her disappointment in the father are testament to this. The mother’s functioning will be to the higher end of her capacity if she is permitted to relocate and will diminish if she is to remain even for two years.
The father has a strong commitment to his role as a father and takes his parenting role seriously. Whether the boys live in Australia or New Zealand his own troubled emotional and psychological functioning result in him causing problems for the children by his behaviours and have made the mother’s parenting role harder with comments such as “your mother hates me” to the children.
The father’s lack of control and narcissistic behaviours make it much harder for him to put the needs of the children before his own needs and this will continue into the future no matter where the children live.
Even if the father shows remorse and insight into the negative consequences for his children of his behaviour after the event, it does not prevent him from repeating his destructive behaviours as he cannot control himself as his 16 July 2013 comments to the maternal grandmother whilst in New Zealand demonstrate.
The father failed to communicate with or spend time with the boys for six weeks from late May to early July 2012 and could give no satisfactory explanation for that failure.
The need to protect the children from violence and poor behaviour.
The father’s behaviour poses a risk to the children in that spending time with him may expose them to his antisocial and poor impulse control behaviours.
Having now considered the matters under section 60CC I am finding that an order for equal shared parental responsibility is not an order in the children’s best interests and that the presumption ought to be rebutted.
I am further strengthened that this decision is in the children’s best interests at this time as the mother agreed she will notify the father before she makes any major decision, listen to his views and then make her decision.
The mother agreeing to this order is but a further indication of her capacity to put the needs of the children before her own in that she believes it is essential that the father have an input in the important decisions to be made in their lives despite his behaviour. The mother has put the children’s needs before her own again and again. The father is significantly flawed in being able so to do.
The inability of the parents to communicate is a significant impediment to this responsibility being shared and working in a practical manner to promote the children’s best interests.
The mother’s evidence that she has to get up courage to speak to him particularly on matters of controversy and the father’s agreement the mother’s lack of response frustrates him and he goes off bespeaks of a fundamental impossibility at this stage for decisions to be made which focus on the boys needs as the primary consideration.
Evidence that the father’s already impaired functioning may significantly deteriorate if the mother relocates is a further risk to the boys having decisions made for them for the right reasons and in a timely fashion and militates against an order for equal shared parental responsibility being an order in the children’s best interests.
Had the mother continued to press for an order for equal shared parental responsibility it is likely I would have rebutted the presumption in the exercise of my discretion on the above evidence.
Ms W said “it is a bigger struggle for the father to put the needs of the children before his own”. The father presents as narcissistic and focused on his needs which may be due to the trauma he suffered as a child. However sad that is, it is the consequences of the father’s flawed functioning, behaviour and conduct and the impact of this upon the boys that is at the centre of the focus of my inquiry.
Given the mother’s past success in ensuring the father is involved in the children lives as much as he is able to be, I am confident she will carry this order out.
Having rebutted the presumption of equal shared parental responsibility, I need not now consider whether an order for equal time or secondly an order for significant and substantial time is an order in the children’s best interests.
An order for significant and substantial time was ultimately sought by the parents. On the evidence before me such an order would be contra-indicated as in the children best interest due to the consequences for the mother and children of the father’s behaviours and it is neither practical not realistic given his impaired parenting capacity.
I must now determine which of the 3 scenarios namely the mother relocating to New Zealand forthwith, in two years, or being restrained indefinitely from so doing is the order I should make in the children’s best interests.
I find on the evidence that it is an order in the children’s best interests that the mother be permitted to forthwith relocate to New Zealand and that this move not be delayed for 2 years.
Such an order ensures X will begin his formal education in New Zealand and not have to change countries and schools within 2 years and thus maximise his stability, another key factor in the mother’s desire to relocate.
I accept that this decision may have a significant impact upon their father and may, as Mr A predicted, set him back.
The father has behaved in an anti-social way for many years and his children and his wife have suffered as a consequence. Whether the children live in Australia or New Zealand his functioning will continue to be impaired and present a risk to the children.
The father’s behaviour is inconsistent with focused parenting and he is an impaired parent. To require the mother to stay here for another 2 years with the children for the benefit of the father’s mental health is not a factor I need consider under the Family Law Act although I accept the consequences for the children of a setback in his mental health and functioning is a relevant factor. However the father said in the witness box, “If they go to New Zealand, I will toughen up”. He has a significant commitment to his children, and that commitment will continue.
When the choice is between two impaired parents, which I find will be the consequence of requiring the mother to remain in Australia even for two years, or one fully functioning parent, protecting and supporting the fully functioning parent is the matter that has tipped the scales even though I accept a consequence is likely to be that Y’s relationship with his father will be negatively impacted upon.
I find that the balance here is between the meaningful relationship of Y and his father being potentially compromised and “the mother getting on with the life she chose and endeavouring to maximise opportunities for the children to be adequately supported” to use the words of Justice Kay in Godfrey & Sanders. These words echo the mother’s position and I find this to be the balance.
It is not practicable, realistic or in these children’s best interests to impose upon the mother any restrictions which will detrimentally impact upon her parenting and thus result in the children having two impaired parents rather than one fully functioning and one impaired parent who may, it is hoped improve in time.
I certify that the preceding four hundred and seventy (470) paragraphs are a true copy of the reasons for judgment of Judge Henderson.
Date: 12. 09. 2013
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Costs
-
Remedies
-
Procedural Fairness
0
6
0