WRONSKI & WRONSKI
[2011] FMCAfam 211
•10 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WRONSKI & WRONSKI | [2011] FMCAfam 211 |
| FAMILY LAW – Parenting – rebut the presumption of equal shared parental responsibility as not in the child’s best interests – father has implacably hostile and critical view of the mother. |
| Family Law Act 1975, ss.61DA, 60CC(2), (3) and (4), 65 |
| Applicant: | MR WRONSKI |
| Respondent: | MS WRONSKI |
| File Number: | PAC 4589 of 2007 |
| Judgment of: | Henderson FM |
| Hearing dates: | 8 and 9 February 2011 |
| Date of Last Submission: | 9 February 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 10 February 2011 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Gersbach |
| Solicitors for the Respondent: | Rafton Family Lawyers |
ORDERS
That the Orders of 13 November 2006 be discharged.
That the Mother have sole parental responsibility for the child, [Y] born in 1999.
That [Y] live with the Mother.
That [Y] spend time with the Father as follows:
(a)Each alternate weekend from 8.00pm Friday, unless otherwise agreed, until 8.00pm Sunday with such time to coincide with times when [X] is in the Father’s care;
(b)For half of all NSW gazetted school holidays as agreed between the parties, but failing agreement for the first half of all such holidays in even numbered years and for the second half of all such holidays in odd numbered years;
(c)On the Father’s Day weekend each year. In the event the Father’s Day weekend is a weekend the child would not otherwise be spending with the father the father’s time the following weekend to be suspended.
(d)At other such times as agreed between the parties.
(e)In the event the father would be spending time with the child pursuant to these orders on the Mother’s Day weekend, the father’s time with the child is suspended and the father to spend time with the child the following weekend in lieu.
That the child, [X] born in 1994, spend time with the Mother as follows:
(a)Each alternate weekend from 8.00pm Friday, unless otherwise agreed, until 8.00pm Sunday with such time to coincide with times when [Y] is in the Mother’s care;
(b)For half of all NSW gazetted school holidays as agreed between the parties, but failing agreement for the second half of all such holidays in even numbered years and for the first half of all such holidays in odd numbered years; and
(c)On the Mother’s Day weekend each year.
(d)In the event the mother is scheduled to spend time with [X] on the Father’s Day weekend, the mother’s time with [X] is suspended and the mother to spend time with [X] the following weekend in lieu.
That, for the purpose of changeover of the children for the purpose of implementing Orders 4 and 5, the Mother and the Father shall meet at an agreed location halfway between their respective homes, but failing agreement, at McDonalds Restaurant [suburb omitted].
That the children be at liberty to communicate freely by telephone with the Mother and the Father at all reasonable times and, for that purpose the Mother and the Father shall each facilitate the other parent speaking with the children and facilitate the children speaking with the other parent by telephone.
That, unless otherwise agreed in writing by the Mother and the Father, [Y] shall continue to attend [omitted] High School for her secondary education.
That the Mother and the Father each do all acts and things necessary, including signing any documents necessary, to facilitate Order 8.
That 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.
THE COURT NOTES THAT:
The child, [X] born in 1994, lives with the father. In the event [X] chooses to live with the Mother, [X] shall live with the Mother and the Mother and the Father shall each do all things necessary to facilitate that change.
In the event [X] is living with the Mother, [X] shall spend time with the Father in accordance with Order 5 above and changeovers shall occur in accordance with Order 6.
IT IS NOTED that publication of this judgment under the pseudonym Wronski & Wronski is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4589 of 2007
| MR WRONSKI |
Applicant
And
| MS WRONSKI |
Respondent
REASONS FOR JUDGMENT
The matter of Wronski was a final parenting hearing relating to the parenting arrangements for [X], called [X], born in 1994, aged 16.5, and [Y], born in 1999, aged 11.5.
The parties’ eldest child, [Z], was born in 1990 and is over the age of 18 years.
The matter was heard on Tuesday and Wednesday, 8 and 9 February 2011.
Mr Gersbach of Counsel appeared on behalf of the respondent mother and the father, who was the applicant, represented himself as he has done throughout these proceedings.
Final orders were entered into by consent on 13 November 2006 and it is the father’s application that I vary those orders. Those orders provided for [Z] and [X] to live with their father and [Y] to live with her mother. The orders provided for the children to spend time together on holidays and at weekends.
It is agreed between the parents that [X] remain living with her father at [suburb omitted]. She is a gifted student and preferred the subjects offered at [omitted] High to those offered at the high school near her mother’s home in [suburb omitted].
The parties married in 1990 and final separation occurred on 9 August 2006. The court notes that since final separation the mother has moved residence but has remained in the [suburb omitted] area. That is not the case for the father. The father moved initially to the southern suburbs in 2010 and now lives in [suburb omitted] with Ms C. The father left the [suburb omitted] area in 2010 to live with Ms C, his fiancée.
It is a credit to the parents that given [X]’s age they have been able to put in place orders which are to her benefit, namely that she lives with her father to attend a school which suits her educational needs. I do not propose to make any live with orders in relation to [X]. I will make time-with orders however.
Thus, the issue is where [Y], the youngest child, ought to primarily live.
Her father says she should live with him, primarily, because she has been subjected to poor behaviour at her mother’s home from her mother’s partner, Mr J, and her mother which, he says, started in 2006 and is continuing.
Secondly, the father says the girls should live together.
Thirdly, the father says he is the superior parent to the mother. The mother is, to use his words and echoed by his partner and fiancée Ms C, “a neglectful, self-focussed and unstable parent.”
The father’s case is 100% blindly supported by Ms C.
The mother says leave the children where they are but define holiday time and weekend time, places of changeover, and the like.
At the end of the hearing the mother changed one important aspect of her initial application. Initially she sought to maintain the presumption of equal share parental responsibility.
I indicated during the hearing that the evidence was leading me to the view that the presumption ought to be rebutted. My concerns were highlighted after the evidence of Ms C and the father. Had the hearing not continued, parental responsibility would have continued to have either been shared between the parties on a joint basis or equally.
The current consent orders made on 13 November 2006 dealt with parenting and property. The reality is that [Y] has always lived with her mother except for a short period in 2008/2009 when the mother and Mr J first separated.
[Z] and [X] have lived variously with their mother and their father as their needs required. I accept that they have lived with their father more than with their mother since separation.
The evidence was contained in the following.
For the father:
a)Initiating application filed 10 February 2010;
b)Affidavit filed 10 February 2010; and
c)Affidavit of his fiancée, Ms C, filed 15 October 2010.
For the mother:
a)Amended response filed 16 December 2010;
b)Affidavit filed 14 December 2010;
c)Affidavit of her partner, Mr J filed 14 December 2010; and
d)The mother’s solicitor’s affidavit, which was not germane to these matters.
All the parties, including Ms C and Mr J, were cross-examined.
The exhibits tendered were.
For the father :
a)Father’s Exhibit 1: Part of the notes of what he called his diary. The father sought to tender an entry in October 2010. Ultimately, the whole of the diary came into evidence and became Father’s Exhibit 1;
b)Father’s Exhibit 2: The child-dispute memorandum of 30 March 2010; and
c)Father’s Exhibit 3: The child-inclusive memorandum of 13 April 2010.
The family consultant, Mr G, prepared a family report. That report was marked Court Exhibit 1. Mr G was cross examined.
The mother’s counsel provided a case outline.
The father put much weight, in his submissions and in his oral evidence, on the recommendations and wishes of the children expressed in the child-inclusive memorandum of April 2010.
In that memorandum [X] said she would not want to live with Mr J. [Y] said she would not like it if she had to live with Mr J. I do not know why the father placed such weight on those issues as the reality is the children do not live with Mr J and have not done so since about 2008. Nevertheless, they were matters pressed by the father.
Mr G reported [Y] showing a slight preference for living with her mother in that, being asked to score living with her parents out of 10, she said “8” for her mother and “7” for her father.
In Mr G’s oral evidence it became abundantly clear this was not a slight preference. This was a clear preference. Mr G agreed that, due to the high parental conflict, [Y] was a child caught in the middle and has difficulty expressing preferences for her parents in those circumstances. Thus [Y]’s wishes are not so simply understood.
[Y] is a delightful child, a credit to both her parents, and due to the parental conflict and her nature would have difficulty in saying a harmful thing about either parent. That this is so is supported in the report when she told Mr G she did not want to make the decision where she was to live and thought her parents wanted her to make the decision. Mr G says her scoring of 8 over 7 was a clear indication from [Y] she wanted to live with her mother as the close score was her attempt not to upset her father.
Mr G’s oral evidence cemented even further [Y]’s clear wishes to remain living primarily with her mother. It was most sad hearing Mr G’s evidence that [Y]’s and [X]’s need to appease their parents, particularly their father, made it difficult for them to express strongly held views in a clear manner as they love each parent and want to keep the peace.
The father and his fiancée, Ms C, have an extraordinarily negative view of and demonstrate a hostile attitude towards the mother as a woman and parent. Ms C’s affidavit was offensive towards the mother. The mother was quite teary when she said in the witness box:
I don’t think badly of Ms C. I think she is good. My children really like her, they do. I don’t know why she has the view of me she has.
It became clear from cross-examination that Ms C has not met the mother in any meaningful way or had a conversation with the mother. Ms C has never met Mr J and she has never met Mr J’s children. Yet Ms C is able to tell me, chapter and verse, what “a neglectful, unstable and self-focused” parent the mother is.
Ms C has two children, [V] and [W], aged 13 and 8, and Ms C tells me she and they have an excellent relationship with their father. Ms C’s children are fortunate. This is not the case for [Y] and [X]. Ms C could not see this sadness for the father’s children or the stark contrast in her children’s happy circumstances with their parent’s relationship.
Ms C and the father met in April 2007. She has no idea about events prior to that time other than what the father tells her. Ms C’s information about the mother and children comes from what the father tells her. The father has a poisonous attitude to the mother. Ms C has little idea of events concerning the children that happen outside her home as she only sees the children in her home and has no relationship whatsoever with the mother.
Ms C tells me, at paragraph 9, that when the children were living full time with their father:
they did not stay overnight or spend time at Mr J’s residence… where their mother was residing. This was due to the abuse and aggression Mr J had displayed and aimed towards [Z], [X] and [Y] at his home in December 2006.
What is concerning about that evidence is that Ms C had not met the father in 2006 and would have no idea what happened in 2006, other than what the father told her. She has never bothered to speak to the mother or Mr J.
What is most revealing is that the father cannot have been too worried about the events in 2006 as he took no action to have [Y] live with him or to change the time [X] and [Z] spent with their mother. The father let his asserted concerns ride until after he determined he wanted to live with Ms C in 2010. It was after he made this decision that he brought an application.
Ms C’s affidavit, in paragraph 21, tells me:
I am a loving, caring and supportive mother to [V], [W], [X] and [Y]. The children all live under the same rules in our home and they are treated with the same love, care and respect as each other. Although [Z] is now residing in Queensland he is always included as part of our blended family and we all love and miss him dearly.
The first sentence is self serving and the second is nothing but a flight of fancy. [Z] and his father do not speak. They have not for some time. The father could not deal with [Z] and sent him to the mother’s home in 2008 where he caused difficulties for the mother as well. [Z] has suffered from the parental breakdown and the significant hostility between his parents. Ms C’s statement is a fairytale.
Paragraph 29:
Mr Wronski and I are very proud of the new start [Z] has made for himself since moving to [suburb omitted] Queensland at the end of June 2010.
That is not what the father tells me. He does not speak to his son.
Paragraph 56:
[X] told us that she did not trust her mother, and was worried that her mother would try to move them all back to Mr J’s house. When Mr Wronski asked [X] what she would do if Ms Wronski tried to do that, [X] replied “I will refuse to go and live at Mr J’s, no matter what.”
The mother has, since 2008, ensured she and her children have not lived with Mr J. This paragraph indicates the pressure put on the children by their father and Ms C.
Paragraph 58:
Although [X] was living full-time with her mother for her Year 10 school year (2009), [X] asked Mr Wronski and I to take her shopping for her Year 10 formal dress.
I said to Ms C:
Did you put that statement into your evidence as a criticism of the mother?
Ms C said “Yes”. When I asked why, she replied:
[X] was living with her. Her mother should have taken her.
I said to her:
Do you not think the mother was allowing you to be involved in this very significant event in [X]’s life, and that is a positive for this mother?
Ms C could not concede this was the case and said she had not thought about it that way before. Thus even when the mother is being fair-minded, even-handed and trying to share significant events with their children, the father and his partner criticise her.
Paragraph 59:
[X] never asks if she can phone her mother, nor are there any calls to her mother on our itemised land line phone bill.
The difficulty with this criticism is that [X] at 16.5 years of age has her own mobile, speaks to her mother consistently on it, SMS’s her mother and she and [Y] use Facebook to communicate with their mother when at their father’s home.
Paragraph 60:
Ms Wronski allowed [X] to drive home from [suburb omitted] to [suburb omitted] on August 8, 2010 (6.30-8.05pm). This was [X]’s first time at driving a car since she obtained her learner drivers licence. This involved driving at night and on the motorways. This was very unsafe and an irresponsible siltation in which to put [X] as a first-time inexperienced driver.
This criticism is clutching at straws and has no validity. The comment reflects poorly on Ms C not the mother. Couple these with Ms C’s evidence that the father helped her prepare her affidavit and I am most concerned to rely on anything Ms C says in this matter.
Paragraph 62:
I have asked [Y] many times when she has been in mother’s care what she had for dinner. She often responds with McDonalds, 2 minute chicken noodles and fairy bread.
In cross examination it became clear that on the long trip from [suburb omitted] to [suburb omitted] the mother, [X] and [Y] stop at McDonalds each second Friday for a meal. [Y] does eat two-minute noodles on her return from school – a proper and appropriate snack for a child – and, occasionally, she has fairy bread. If it is wholegrain bread it is probably a most reasonable snack for a child to have occasionally.
Paragraph 61:
When [X] arrives home after spending a weekend with her mother and when [Y] arrives to spend weekends with us, they and their clothes smell of cigarette smoke, from the passive smoking that they are exposed to in the presence of Ms Wronski.
Paragraph 63:
[Y] often arrives at our home in under-sized clothing and underwear provided by her mother.
The father pays $77 per month child support for the child. He is a [occupation omitted] on a significantly higher income than the mother who is a [occupation omitted]. That criticism does not fall at the feet of the mother. That criticism, if even accepted by me, can be remedied by the father buying the child underwear.
At paragraph 65:
[Y] has told Mr Wronski and I she has midweek sleepovers at friends houses because mum has to attend meetings, or she stays at Mr J’s home.
These sleepovers occurred on two occasions in 2010 when the mother was attending a [omitted] meeting. She is a [position omitted] – something the father was when the parties were together. That is not a criticism of the mother. This comment reflects poorly upon the father and Ms C.
I asked Ms C if she had anything good to say about the mother as a mother. She said “no”. Similarly, the father has nothing good to say either. Ms C’s affidavit was littered with unfair, unjustified and twisted versions of events and criticisms of the mother, many of which were her parroting what the father told her.
Ms C was asked by Mr Gersbach:
Is there anything about Mr Wronski’s parenting that you say he could improve upon?
Ms C replied “Nothing.” Mr Wronski is, for her, perfect. Perhaps he is for her but he is far from a perfect parent.
I can well see why Ms C and the father have an excellent relationship. It is clear to me that Ms C accepts anything the father says, supports him 100 % in any endeavour, never disagrees with him, and believes he is a perfect parent. As I find the evidence, that is the only way that Mr Wronski could have a relationship with an adult, that is, they find him perfect. I have formed this view after hearing all the evidence particularly that which came from Mr Wronski. I find Mr Wronski’s conduct, attitude and behaviour towards his former wife to be coercive, controlling and manipulative.
Mr Wronski is at one level a good father. He loves his children, and his children love him. But the overarching constant in this hearing is the father’s implacable disrespect of the mother, disregard for any of her points of view and a need to find fault with every action the mother takes. For whatever reason, the mother can do no right in his eyes and she will never be retrieved as a woman or as a parent. The father could not name one positive thing about the mother.
As Mr G said clearly on several occasions in his oral evidence, the father is still suffering from the marriage breakdown. Mr Wronski did not accept what Mr G said. He persisted that he was over it and things were okay, and he had resolved those issues. He has not, and his children, as always is the case, have suffered the brunt of his inability to deal with the breakdown of his marriage in an adult way.
For the father, the mother embodies all that is wrong or has gone wrong in his life, and it is all her fault. He and Ms C need help to deal with this concerning behaviour. However, I will take matters no further as I am not convinced they will listen to anything anyone else says. They have their own life and attitudes and will conduct themselves as they see fit.
This poor attitude of the father to the mother is exemplified in the written material received by her from the father and attached to her affidavit. The mother writes to father on 13 August 2010:
I have asked if you can have the girls the weekend of 21 August as I have work commitments on the 21/8. However its been confirmed and I will be able to pick them up Saturday night or Sunday morning of that weekend. I will message you as soon as I can with an approximate time to pick them up.
The fathers reply is diatribe. He refers to her as a neglectful and disgraceful mother. All that the mother was doing was giving the father first right to spend time with his children when she could not.
The father’s response continues in a critical manner. He states she puts her needs above the children, and is going to run off with her boyfriend and shove the children aside to spend time with Mr J. In any event, he will not have them for a day. He will only have them if he can have them for the whole weekend. He will only have the children on his conditions, as is always the case. It is Mr Wronski’s way or no way.
The father’s hypocrisy throughout this hearing was breathtaking.
The mother wrote to the father in September 2010 to advise him that the children will be missing a day of school because of a [extra curricular activity] commitment – [Y] was doing [extra curricular activity] in 2010 and is now doing [extra curricular activity] in 2011 – his email to her in reply is disgraceful.
The father writes back:
This weekend [Y] informed me that you are intending to take her out of school on Friday June 11, prior to the [extra curricular activity] at [suburb omitted].
If you are intending to this, then you are once again being derelict and neglectful in your duty of care to ensure [Y]’s attendance at school.
This reply is dated 14 September 2010.
This is not the first time I have written to you to make you aware of my disapproval of your lax attitude towards [Y]’s educational requirements. Your attitude towards [Y]’s attendance at school is to say the least, extremely disturbing. By allowing [Y] to have unnecessary days off school you are teaching her to have a bad attitude towards school attendance.
…
I do not approve of nor give my permission for [Y] to miss school this coming Friday...
However, when the father asks the mother, on 27 October, to take the girls out of school on 13 December to attend Ms C’s work picnic day the mother writes back, “Mr Wronski. That’s OK.”. The mother said in evidence she knew they would have a great time with their dad.
The difference in attitude is stark.
The mother writes to the father on 15 November 2010 concerning [Z]:
…The children find it very awkward very sad that we can’t communicate with each other about them.
I have [Z] in my thought at the moment his looking to come home. He is finding [suburb omitted] too sad at the moment...
His msg to me the other night was his thinking of moving back to New South Wales and could I look out for any jobs. I suggested that he does a TAFE course but he still needs transport. I know that for what ever reason you don’t like to talk about it but please lets try for his sake.
I’m open for any suggestions as I’m sure he would be to.
The father did not even respond to the mother. He said in oral evidence he cannot talk to or think about [Z] at the moment as he is so upset about what [Z] has said and done after [Z] became aware of the contents of Ms C’s affidavit. The father accepts no responsibility for this sad state of affairs. I too found Ms C’s affidavit offensive. One can only imagine how [Z] felt.
There is just not one iota of truth in the father’s assertions in his affidavit, emails, and submissions to me that the mother is neglectful about the children’s schooling or is giving them bad habits. To the contrary. He should be proud of his children, as the mother clearly is.
The father complained bitterly, in evidence, that the mother had given [X], aged 16 years of age, Nurofen for menstrual pain. I asked him what the problem was. He replied “Well, she should have told me.” I said, “She is 16 years of age. She is perfectly capable of taking Nurofen.” He went on at length of his concerns for [X] maybe taking too many Nurofen and that he needed to monitor what she was taking. None of his complaints are valid and have nothing to do with the mother.
When the father realised that his complaint was not having the desired impact upon the Court he said, “Well, her brothers and sisters”- Ms C’s children - “could well have picked up the tablets because they were just sitting there in her room.” I said to the father, “That is a matter for you to take up with [X]. You cannot blame the mother for that.” He would not accept my comments.
It is clear to me the father goes through [X]’s room when she is not there. Although [X] is sixteen and a half the father treats her like an eight year old, and when he does not think things are going well it is her mother’s fault.
The father would not concede that [Y] might suffer any long term effect if she was removed from her mother’s care. She has always lived with her mum, apart from a period of time in 2008/2009.
The father said in the witness box that the mother was an abusive mother. He complained [X] never rang the mother while at his home and the mother never rang his home to speak to her. It was put to him how foolish that complaint was in circumstances where [X] is aged 16.5, has her own mobile, and use of the internet. He did not concede these matters.
The father told Mr G that he believed the mother was “bribing” [Y] to say she wanted to live more with her mother because the mother had apparently said to [Y] that when they moved home she might be able to get a pet.
The father’s comments are not accepted by me. The father, realising he had overstepped the mark on this issue, attempted to resile and said “Well, maybe I didn’t use the word ‘bribe.’” He did not put that proposition to Mr G. I find he used the word “bribe.” It is what he really thinks and is another example of his trying to make a case where there is none. He has no basis for that view.
The father would not concede that he and Ms C sitting [Y] down and outlining the pros of her living with them would have put pressure on the child. He agreed [Y] probably did not need to know these pros because she was probably aware of them but he still thought, as a parent, he needed to tell her. This event no doubt made Mr Wronski feel better but it did not help his daughter at this very stressful time.
It is clear the father quizzes [Y] about the mother’s comings and goings. He is obsessed with the mother and Mr J.
The father attempted to make a case that [Y] does not talk to her father about her mother at all and thus the mother is a poor parent. I ask how [Y] could. How could either of these girls speak to their father or Ms C about what they do in their mother’s home when they know their father and Ms C have such a negative view of the mother and are looking only to criticise and run her down. Ms C could not see it; neither could the father.
What was impressive was the different evidence given by Mr J on this issue. He spoke of the girls talking about the other parent in his and the mother’s presence. I asked “Mr J, does [Y] talk positively about her dad when she is with you?” It had become apparent from the evidence that [Y] spends many Mondays with Mr J after school. They cook cakes, muffins and the like. They and the mother have dinner together, and [Y] and her mother return home. Mr J said: “Yes. She talks all the time about what she does at her dad’s” and he went on to describe activities [Y] and her dad had engaged in the last school holidays.
That evidence was in stark contrast to the father and Ms C’s evidence which is all negative. Ms C and the father cannot see that the child clearly feels more comfortable in her mother and Mr J’s company than she does in her father and Ms C’s company, although she likes Ms C and loves her father dearly.
The father is a person who must be in control and he wants control over the mother, and he will use any means to achieve that control, including his children.
He expressed a view that the mother pushes [Y] onto other people on any occasion to enable her to spend time with her boyfriend, Mr J. The evidence, however, was to the contrary.
The mother and Mr J do not live together. They have not since August 2008. On [Z]’s 18th birthday there was a distressing altercation between [Z] and Mr J. Mr J ripped up [Z]’s birthday gift to him, which was a ticket to go to a Ute show.
Mr J said he realised he had done the wrong thing, felt guilty and bought him another ticket. The mother bundled all her children out of the home, went to her parents’ home, and she sent the children to their father until she could get appropriate accommodation.
This was a serious argument and it was a very sad event. The mother has shown much insight and sensitivity to her children’s needs since that time and has reviewed her relationship with Mr J. The mother has not lived with Mr J since and has only recently brought the children into contact with him again. Yet the father still criticises her.
It is clear from Mr G’s report that the girls are now, to use his words, “fine with Mr J” and that his behaviour has, in their eyes, improved and things are going along quite well. However the father would have none of it.
The father clearly blames Mr J for the marriage breakdown. He has entered Mr J’s home on at least two occasions uninvited and in a rage where, if there was not physical altercation, there were verbal altercations. I find that the father has been the instigator of these verbal altercations in the presence of his children. He, not Mr J or the mother, was the aggressor.
The father was 100% responsible for the distressing incident in 2006.
The mother and Mr J and all the children were to attend a family holiday. The mother was late in arriving at Mr J’s home. [X] was waiting for a phone call from her friend, no doubt to see if she would get a better offer, and [Z] had made up some story about having to take his dad to hospital. It is fairly clearly [X] and [Z] did not want to go on the holiday.
The mother and Mr J had a fight, a verbal altercation, and the children witnessed this. The mother took the children away. They were upset, teary and emotional as was she. The mother took the children back to their father’s home as Mr J had pronounced “You either come or you go”.
Upon arrival at their father’s home the children, having just witnessed the altercation with Mr J and their mother, witness the father launching into the mother, as he admitted he began yelling at her, “What’s happened? What's Mr J done?” The father behaved in this manner despite his children’s upset which he admitted he had observed.
The children witness their mother and father fighting at the former matrimonial home. The father storms off to Mr J’s home to confront him. The mother foolishly follows him some short time later with the children in tow.
The hapless children are then exposed to a third altercation with the father yelling at Mr J, the mother yelling at Mr J and the father, and Mr J and [Z] having a verbal altercation. This must have been a frightening and scarring event for the children. The mother called the police to end the behaviour.
The father would have me believe that Mr J is verbally aggressive to his children and is a danger to his children. I find the father was the verbal aggressor on this occasion. He caused that dispute. He was the catalyst for his son becoming involved, the wife again becoming involved and all the children witnessing unseemly and distressing behaviour from the adults who are their primary carers.
Yet the father could not see it. He has raised this issue again and again. It occurred in 2006. It is now 2011. He took no action at the time in terms of protecting his children. From the point of view of the police, he was the aggressor. The mother took no action against him.
The father complained about two mid-week periods of sleepover [Y] had in 2010 during the school week. He believed the mother was pushing the child off to others in order to spend time with her boyfriend. It became clear that the mother was at a [omitted] meeting. She said the father rang her on the telephone and asked to speak to [Y] as he had not been able to contact her at home. The mother said, “She’s at friends’”. He asked for the number. She said, “I don’t have the number now, I’m at a meeting,” and hung up.
The father then took that conversation to mean the mother, although knowing where the child was, did not know the telephone number of the home or was refusing to give him the telephone number. He therefore he assumed she was up to something and was off with her boyfriend.
The father’s assumptions are just that, assumptions. It is but a further attempt to put the mother in a bad light when it is his conduct that is reprehensible. He is hell-bent on portraying this mother in the worst possible light at every turn.
I accept the mother’s version of events. It makes perfect sense to me. The father had it completely wrong and he chose, as he always does, to believe what suited him, and what suits him is that the mother is bad, neglectful and abusive.
The father agreed the mother was flexible in accommodating the children’s needs to live with him in 2008 and for [Z] to come back to her home when he, the father, could not deal with [Z]’s poor behaviour. He agreed the mother was flexible with [X] living with her and with him from time to time despite the orders.
The father said he was also flexible. He is not. There is not one skerrick of evidence demonstrating his flexibility. All the evidence shows it is his way or no way. The reason the mother is flexible is because she acquiesces. The mother acquiesces otherwise there is an argument and she and the children become upset.
The father says the mother is unstable and she has moved a lot. I accept the mother’s evidence that the father put it to her at separation that they would not live more than 30 minutes away from each other’s home to enable them each to spend time with their children during the week and on weekends. I accept that was the father’s position and the mother agreed.
Yet when his need to live with Ms C is put to the test in 2010 over and above [X]’s needs to remain at the school she was attending in the [suburb omitted] area he choose Ms C and not [X]. He could not even wait for her [X] to finish the school year before he moved such was his need to live with Ms C.
The father now lives one and a half hours away from the [suburb omitted] area, an area he agreed he and the wife would not move from. [X] went to live with her mother to complete her schooling. She could not live with her dad and do that. Now the father complains his children are not living together because of the mother. That is not the case and is a completely false assertion.
These two girls are not living together because there were consent orders entered into in November 2006 for them to be split between their parents and the father has moved one and a half hours away from where the children, mother and he had lived prior to his meeting Ms C. The reason the girls are separated is as a consequence of the father’s conduct and his choices, not the mother’s.
The father criticised the mother soundly in his oral evidence to Mr G and in his affidavit that the girls are separated and do not go to the same school because of the mother. It is his actions that have caused this.
The father is verbally aggressive and impatient, as no doubt is Mr J. The father could not handle [Z]. [Z] was suffering badly in 2007/2008 and the father sent him to live with his mother.
Unsurprisingly, Mr J could not handle [Z] and asked him to leave his home. [Z]’s suffering was causing real disharmony in the relationship between Mr J and the mother. The mother took a child-focused approach and left Mr J’s home. Yet the father criticises Mr J’s aggression and asserts the mother is hopeless. He could not cope with [Z] either.
Instead of the father joining with Mr J in an endeavour to sort [Z] out and provide him with a proper role model he criticises the mother. The father has no communication with [Z] at present, and he has not had any for some time. [Z] has more communication with Mr J than he does with his father. He has frequent communication with his mother who is his significant support, has always been and will continue to be there for him. His father has effectively abandoned him to his mother’s care.
The father believed [Z] had come to Sydney because this trial was on and his mother had pressured him to do so. This is but a flight of fancy.
It is time Mr Wronski dealt with his continuing significant issues surrounding the breakdown of his marriage and that he and Ms C accept their own roles in and Mr Wronski’s responsibility in this sad saga. The mother has accepted her responsibility. The father has not and Ms C does not help him to do so either.
The father did not respond to the mother’s email inviting him to attend a barbeque for [Z] when he was leaving for Queensland, which invitation was extended to Ms C as well. The father said, “I couldn’t. I knew I wouldn’t be welcome. I didn’t want to have a fight.” The father abrogated his parental responsibility.
There is no rapprochement, no assistance offered to the mother to deal with [Z] despite her quite poignant pleas to the father to put forward some suggestions and be there for their son. All the mother receives is rudeness and criticism.
As for holiday time, the father criticised the mother and said she has never put forward any time for holidays, does not spend Mother’s Day with the children and did not spend the last two Christmases with them.
My concern is how could the mother put a proposal to the father? The father tells the mother what is going to happen and she acquiesces or there is a fight. The mother and children fit around Mr Wronski’s shiftwork as [occupation omitted] and he cannot see it.
Anything the mother said to the father on these issues would be dismissed. Thus the mother acquiesces, keeps the peace and causes her children minimum distress. The children would have well and truly been able to deal with the very poor behaviour of their parents and Mr J in 2006 if the father had supported them and shouldered his responsibility for that event, but he did not and he cannot. Yet he tells me he is the best parent. He is not.
To place [Y], a shyer and move sensitive child than either [Z] or [X], in that poisonous environment with Ms C as effectively her mother would spell the death knell for [Y]’s own free will, let alone her relationship with her mother.
It is her mother with whom she has always lived and with whom she has her closest emotional attachment. Her mother is a positive for [Y]’s time with her father and encourages this at every turn.
It would be an abusive step on my part if I acceded to the father’s orders. If the mother did not want [Y] to spend time with her father and if [X] did not live with her father, I would have considered suspending the father’s time with [Y] to give her a break from the constant pressure, harassment and negativity she receives about her mother in their father’s home.
It would be beneficial if the father could gain some insight that he has been able to move on with his new life and have a relationship with Ms C as the mother supports it but that the mother has not been able to do so as she has not had the same courtesy from him.
The mother has not been able to move on with her relationship with Mr J because the father is hell-bent on ensuring the mother cannot, placing unnecessary obstacles in the children’s relationship with him and maintaining what I regard as a false fear of Mr J. The father has acted just as badly as Mr J in the past.
I find the father and Mr J are at the same level of physical risk to these child, which Mr G agreed with me is at the lowest end of the scale.
The father, however, unlike Mr J, continues to be a real psychological and emotional risk to the children well aided and abetted by Ms C.
For example, the father’s response to [Y] preferring the mother, on the 1 to 10 scale was, “I hope I’m not being punished by missing out by one point,” says it all. It is all about him. It is not about the children. He has never had any real concerns about the children in the mother’s care. The impetus for him bringing this application was his wanting his children to live with him because he had made a decision to move to [suburb omitted]. It had nothing to do with the mother’s parenting capacity or her capability. It is all about what Mr Wronski wants.
Mr G said that there were two levels of parenting in this matter. The physical and educational parenting is good from both parents. I accept this. The emotional and psychological parenting is something different due to the high conflict level and the lack of insight into the impact of that high conflict on the children.
I find that negative aspect of parenting only applies to Mr Wronski. The mother is well aware of the conflict, hence her acquiescence on matters where she can give ground. [Y]’s primary living arrangements was not a matter she could give ground on however.
The mother understands the impact the marital separation has had on her children, particularly [Z]. The father shows little insight and has no remedies other than blaming the mother.
The father is the problem here, not the mother. The mother has tried every tactic to have the father come to a realisation of how he can help his children rather than focusing on whatever it was that caused the marriage break down. He has not been able to take this important step as a parent, namely self assessment.
When the mother makes these entreaties to the father he criticises her for it, tells her she is the disgraceful, neglectful parent. He may be talking about himself, I do not know, but he is wrong about the mother.
I will rebut the presumption of equal shared parental responsibility in this matter. This mother has been through significant trauma at the hands of this father. He is manipulative, controlling, coercive, not child focussed and it is impossible for her to deal with him. Whether the mother is making an offer for him to look after the children first or asking him to assist her to care for [Z], he criticises her for it.
Equal shared parental responsibility is a very important parental right. If it is to be exercised equally I must be sure that children are not damaged by its continuing to be equally exercised. In this case I find they will be. [Y] cannot be put in the position of her mother continually having to communicate with her father and advise him of matters when all the mother can expect is a diatribe of critical and derogatory emails in reply.
[Y] cops it because [Y] spends time with her father and her father will continue to rail against her mother no matter what I say today.
The mother must be able to make decisions for [Y] free of the father’s harassment or interference. There may be no violence in this matter however, for other reason impacting upon [Y]’s best interests namely the implacably hostile and critical view the father has of the mother, it is not an order in this child’s best interests that her parents share her responsibility equally.
Having so rebutted that presumption I need not consider the issue of equal time.
An order for significant and substantial time is likely covered by the existing orders. There cannot be any mid-week time because the father has removed himself from where the child lives.
I am only making an order for time with because the mother wants me to do so and [X] lives with the father. If [Y] was any younger than she is I may well not have made any order for time no matter what her mother wanted.
Going to the matters I must under section 60CC(2), (3) and (4) of the Family Law Act, the child does benefit from a meaningful relationship with her dad. She loves him, he loves her and they do fun things together. [Y] likes Ms C and she is part of a happy household. Her older sister lives with her dad thus it is important she spends time at her father’s home.
What looms large in the father’s life and hangs like a shadow over him is his implacable dislike and disapproval of the mother which seeps through him to all.
Thus although [Y] benefits from a meaningful relationship there is a real issue about the benefit of that relationship when weighed against the negativity she receives about her mum, her primary carer and closest emotional attachment.
There may come a time when [Y] is unable to deal with that stress. [X] can. [X] is an intelligent girl and that may assist her. [Y] is doing well but she is an average student and is far shyer and very gentle in nature.
To change this child’s usual care arrangements by putting her in her father’s care would be a significant change. She has just started high school. She is a shy child. She has made four new friends where she is attending a high school with children from her primary school. The father showed no insight into the impact on [Y] of changing schools right now, living in a different area to that where she has always lived and going to school with new children not those she has gone to primary school with. Yet this is a very important factor weighing on my mind.
Placing her with the father places her into a poisonous household in terms of her mother’s relationship with her. [Y]’s relationship with her mother cannot be supported in that household. The father and Ms C are incapable of doing so. The father and Ms C will do everything they can to minimise her relationship with her mother yet it is a strong bond. [Y] and her mother have a close, attached and emotionally robust relationship, and that is because the mother is a parent who is able to put the needs of her children before her own needs, unlike the father.
There is the factor that the girls are separated but that has been the fact since 2006 and by way of consent order. The girls are significantly different in ages and needs. We have a girl in Year 12 and a girl starting high school. They see each other every weekend either at their mum’s home or their dad’s home. They spend time together as they can. That is the least concerning issue for me.
[Y]’s clear preference is to remain living with her mum. I will honour those wishes. She is a child well capable of making her views known and she has made them known and I should attach weight to her views.
Both parents can promote the children’s educational and physical wellbeing.
A factor that has weighed on my mind is the father’s argument that the parents should continue to collect and deliver the children as they do now. The mother seeks a change.
The mother acquiesced to the present arrangement because the father wanted it. The arrangement is if it is the mother’s weekend, she comes and collects [X]. If it is the father’s he comes and collects [Y]. The father said he could not agree to the mother’s request for a halfway meeting point as he works shift work. That argument is fallacious and disingenuous. What is the difference between travelling all the way each second weekend and half way each weekend in terms of accommodating shift work. His shift work is not on an alternate weekend cycle. He is on a rotating work cycle. The mother has always accommodated different times for collection and delivery to fit in with his shifts and she will continue to do it whether they met halfway each week or the full way once a fortnight.
This but a further example of the father’s priority being at the forefront of his mind not what is best for the children or working in a spirit of co-operation.
The mother’s orders are those preferred as those being in the child’s best interests. They are the most child-focused orders. They provide for [Y] to spend time with her sister, [X], and her father in his home and maintain what has been her stability and her emotional rock, her mum.
If [Y] continues to primarily reside with her mother she will have a relationship with [Z] as her mother is supportive of [Z]. If [Y] lives with the father she will get nothing but negative views of [Z]. Thus if [Y] goes into that environment she may not only lose a mother, she will lose [Z].
Therefore, I make the Orders as set out at the commencement of this decision.
I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of Henderson FM
Date: 16 March 2011
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