FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOPWOOD & HOPWOOD | [2019] FCCA 1544 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – allegations of family violence – lack of communication between parties – father’s time – children’s wishes. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Marvel & Marvel (2010) 240 FLR 367; (2010) 43 Fam LR 348; [2010] FamCAFC 101 McCall & Clark [2009] FamCAFC 92; (2009) 41 Fam LR 483; (2009) FLC 93-405 |
| Applicant: | MR HOPWOOD |
| Respondent: | MS HOPWOOD |
| File Number: | MLC 3783 of 2015 |
| Judgment of: | Judge Mercuri |
| Hearing dates: | 26, 27 & 28 February 2018 |
| Date of last submission: | 28 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 27 June 2018 |
REPRESENTATION
| Counsel for the applicant: | None |
| Advocate for the applicant: | In person |
| Counsel for the respondent: | Ms Johnston |
| Solicitors for the respondent: | Heinz & Partners |
| Counsel for the Independent Children’s Lawyer: | Ms Boymal |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
All previous parenting orders be discharged.
The mother have sole parental responsibility for the children of the relationship, namely:
(a)[Y] born 2003 (“[Y]”); and
(b)[Z] born 2006 (“[Z]”) (collectively referred to as “the children”).
The mother advise the father by email of any significant decisions made by her relating to the children’s health and education as soon as practicable after making such a decision.
The children spend time and communicate with the father as agreed with the mother and subject to the wishes of the children.
The children communicate with the father by telephone each Monday at 5:00pm with the children (or any of them) to place a telephone call to the father’s mobile telephone, subject to order 12 herein.
The father be permitted to respond by text message to any text messages initiated by the children (or any of them) to him and otherwise be restrained from sending text messages to the children.
The mother facilitate the children spending time and communicating with the father by providing transport to the children to attend any agreed changeover location, delivering to the children any letters or parcels sent to the children by post and/or providing the children reasonable telephone and internet facilities.
The father be at liberty to communicate with any medical practitioner or professional at the school at which the children or any of them may attend from time to time and be at liberty to obtain directly from the children’s school any school report or photographs, at his expense.
The mother and father advise and keep the other advised of their mobile telephone numbers, residential address and email addresses.
The father be and is hereby restrained by injunction from posting photographs of the children or comments in relation to these proceedings on Facebook or other social media platforms.
The appointment of the Independent Children’s Lawyer be discharged.
In the event that the children are not in the one place together for the purpose of the telephone call in order 5, the mother will ensure that the children (or any of them not present at the call) telephone the father at a suitable time to ensure that each child has one telephone call per week with the father.
Within 21 days of the date of this order, the father deliver to the mother the children’s belongings that are currently in his possession (“the delivery”), including but not limited to [Z]'s Lego and for the purposes of the delivery, the father deliver the items to the mother’s residential address and the mother is permitted to be present together with Ms D.
The father be at liberty to attend any school function, extra-curricular activity or sporting activity in the event that the children (or any of them) make a written request for him to attend (including by text message).
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.
AND THE COURT NOTES THAT:
(A)Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Hopwood & Hopwood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3783 of 2015
| MR HOPWOOD |
Applicant
And
| MS HOPWOOD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in respect of [X] born 2000 (“[X]”), [Y] born 2003 (“[Y]”) and [Z] born 2006 (“[Z]”) (collectively referred to as “the children”).
Since the commencement of these proceedings, [X] has turned 18 years of age. The orders to be made therefore will not apply to her.
Proposals of the parties
The father’s proposal varied over the course of these proceedings. Initially, he sought orders which in effect provided for:
a)the parents to have equal shared parental responsibility for the children;
b)the children to live with the mother; and
c)the children spend each alternate weekend with the father and half of all school holidays.
In his further amended initiating application filed 14 July 2017, the father sought a “50% shared care between the parents” arrangement in respect of the children. This was reiterated by the father in his outline of case document filed in these proceedings.[1]
[1] See document entitled ‘Case Information’ filed 23 February 2018.
The mother’s position also altered over the course of these proceedings. Initially, her amended response filed on 6 July 2017 was that:
a)the parents have equal shared parental responsibility for the children;
b)the children spend three hours each alternate Sunday with the father from 11:00am until 2:00pm, on special occasions and otherwise as agreed; and
c)the mother would not unreasonably withhold such additional time as requested by the children nor would the father unreasonably require the children to spend time with him, if they indicated that they did not wish to do so.
In her further amended response, the mother’s position further altered such that she sought:
a)to have sole parental responsibility,
b)that the children live with her;
c)that the children spend time and communicate with the father according to their wishes with the mother to facilitate such time; and
d)[Z] only spend time with the father in the presence of [X] and/or [Y];
e)the mother communicate with the father about major issues relating to the children; and
f)the parties not denigrate each other.[2]
[2] See further amended response to initiating application filed 8 February 2018.
After three days of hearing during which both parties gave evidence and were subjected to cross examination and at which both Mr J, psychologist and Dr R, family consultant gave evidence and were subject to cross examination, the issues between the parties were confined to:
a)whether the mother should be granted sole parental responsibility;
b)whether the children (or at least the two younger ones) should have regular and structured time with the father; and
c)whether the father should be permitted to send the children text messages or be limited to responding to text messages from the children.
At trial, the father, to his credit, abandoned his claim for the children to live in an equal shared care arrangement.
At the end of the trial, the parties handed up a minute of proposed orders which was largely agreed to by all parties, save for the three issues which I have identified in paragraph 7 above.
The orders which I have made are consistent with the agreed position at trial. In addition, they address the remaining issues in dispute between the parties as set out in paragraph 7 above.
Background
These proceedings have a long history, the applicant father having initiated them in April 2015. The father’s initial application related to both property and parenting matters.
The property proceedings were resolved by the making of final orders by consent on 8 December 2015. Also on that date, interim parenting orders were made which provided for:
a)the children to live with the mother and communicate with and spend time with the father at such times as proposed by the father to the mother and as agreed to by the children or any of them;
b)the parents to use their best endeavours to engage with the children’s counsellor to assist in facilitating unsupervised time between the children and the father; and
c)all time with the father to be supervised until such time as the children feel comfortable for the time to be unsupervised (“the December 2015 interim orders”).
Various other orders were made since the December 2015 interim orders, including for the provision of:
a)a family report which was prepared by Dr R and dated 9 July 2017; and
b)a psychological assessment of each of the parents, which was undertaken by Mr J.
In preparing his reports in respect of the psychological assessment of the parties, Mr J reviewed the two section 11F child inclusive conference memorandums which had been undertaken by Mr B, family consultant on 7 August 2015 and 16 November 2015.
Mr J also had the benefit of considering the family report prepared by Dr R.
Documents relied upon by the parties
The father relied upon the following documents:
a)amended initiating application filed 1 September 2016;
b)affidavit of Mr Hopwood affirmed and filed 29 January 2018;
c)affidavit of Mr Hopwood affirmed 30 August 2016 and filed 1 September 2016;
d)affidavit of Mr Hopwood affirmed 27 April 2015 and filed 30 April 2015;
e)affidavit of Mr Hopwood affirmed and filed 13 July 2017;
f)affidavit of Mr Hopwood affirmed 20 March 2015 and filed 30 April 2015; and
g)outline of case document filed 23 February 2018.
The mother relied upon the following documents:
a)further amended response to initiating application filed 8 February 2018;
b)trial affidavit of Ms Hopwood affirmed and filed 8 February 2018;
c)affidavit of Mr J filed 13 November 2017;
d)family report prepared by Dr R dated 12 July 2017; and
e)outline of case document filed 21 February 2018.
The Independent Children’s Lawyer relied upon the following documents:
a)family report prepared by Dr R dated 12 July 2017;
b)affidavit of Mr J filed 13 November 2017;
c)section 11F child inclusive memorandum prepared by Mr B dated 7 August 2015;
d)section 11F child inclusive memorandum prepared by Mr B dated 16 November 2015; and
e)outline of case document filed 14 February 2018.
Evidence
It is common ground that the parties commenced their relationship in 1992, when the father was 18 years of age and the mother was 16 years of age. They married on 1999 and separated on 18 April 2014.
It is also not in dispute that since separation, the children have lived with the mother and have spent some time with the father although that time has been supervised generally by a family member.
Both parties gave evidence that the critical incident which led to the final separation was an incident which occurred in the former matrimonial home on 18 April 2014 (“April 2014 incident”). A Family Violence Intervention Order was subsequently obtained on 30 April 2014 naming the mother and the children as affected family members.
The father gave evidence that he consented to this order without admission[3] and that he similarly consented to the extension of this order in September 2014 again, without admission.
[3] Paragraph 15 of the affidavit of Mr Hopwood filed 30 April 2015.
It is also common ground that until the father brought this application in 2015, the parties had attempted to facilitate parenting arrangements between themselves.
April 2014 incident
The father makes no reference at all to the April 2014 incident in his first or second affidavit. The first time he referred to the incident was in response to the mother’s affidavit filed 13 July 2016.[4] The father conceded that the children were present in the former matrimonial home although he went on to say:
…I told Ms Hopwood I no longer wanted to continue with the marriage. Ms Hopwood disagreed and I asked her to leave. When she refused I called her father and he collected her. Ms Hopwood called the police after her departure from the marital home.[5]
[4] See affidavit of Mr Hopwood filed 1 September 2016.
[5] Paragraph 15(iii) of the affidavit of Mr Hopwood filed 1 September 2016.
He referred to the incident in a subsequent affidavit where he said:
I agree that there was an incident of family violence on 18 April 2014. I disagree that I was the only party involved: Ms Hopwood had a large part in it also… The police did inform me that Ms Hopwood had recorded some of the altercation, but that the recording was paused each time Ms Hopwood spoke/yelled/swore and there was no evidence that I had hit either Ms Hopwood or [X], either on the recording or any marks on either of them. I do not deny or agree there was any physical (sic) altercation; I can’t remember it as it was a very heated situation… It is a situation that I regret and I wish that I could work through it with [X] but due to circumstances of limited contact and counselling, I have not been able too (sic). My understanding of the night is that Ms Hopwood and I had been arguing in the morning and in (sic) afternoon I went out to a friend’s house to try and disperse the situation. I did have a few drinks but was not intoxicated. As soon as I arrived home, Ms Hopwood continued with the aggressive arguing, which in hindsight was a set up for her to have the iPod ready to record the argument. I believe she has exaggerated the claim that I hit her as her story has changed several times, I may have pushed past her or pushed her out of the way as she was so aggressive in her verbal attack towards me. I had told her that night… that I did not want to continue with the marriage, it was when I asked her to leave as she was verbally attacking me, that she refused and I called her father to pick her up. I admit that I was a participant in the heated arguing.[6]
[6] Paragraph 9 of the affidavit of Mr Hopwood filed 13 July 2017.
In his further affidavit[7], the father deposed:
Ms Hopwood has made false allegations of abuse, she claims that the night we split up that ALL of the abuse was from me, she took part in a great deal of it, if it was to the extreme that she claims, I would’ve been arrested and or made to leave the house and Ms Hopwood and the children would’ve been told to stay in the house, instead she neglects to say that the police asked her to leave on several occasions due to her abusive behaviour towards me, I do not deny that I took part in the argument, but I had calmed down after she left and she was the one who continued the arguing each time the police tried to bring her back in to collect some of her belongings. The girls (sic) recollection of the night, seems to be very exaggerated to what I remember and more like Ms Hopwood’s (sic) claims, which is where I’m suspecting it has come from. Ms Hopwood’s (sic) claims that I struck [X] is not true, if I touched her or Ms Hopwood (which I do not recall either) then it would’ve been by accident with the chaos of what was going on, the police did say to me on the night that she had claimed that, but they could not see any marks on either of them. This is the one and only family violence claim I have ever had against me, and it stemmed from a massive argument between Ms Hopwood and myself that we both contributed in (sic). Am I going to be punished for this for the rest of my life by my girls being taken away from me? It is punishing my girls even more by not allowing them to have the relationship with their father and his family, like they are entitled to.[8]
[7] See affidavit of Mr Hopwood filed 29 January 2018.
[8] Paragraph 21 of the affidavit of Mr Hopwood filed 29 January 2018.
I have set these paragraphs out in full because the father’s attitude to this incident, which he conceded occurred in the presence of the children, is central to my findings about his level of insight and capacity to co-parent constructively with the mother if his application for equal shared parental responsibility were to be granted.
In her trial affidavit[9], the mother referred to the incident in the following terms:
On [18 April 2014], Mr Hopwood was alcohol affected and made allegations of me being with another man. He became enraged and his behaviour escalated to the point that he hit [X] once and me twice. He also threw my mobile telephone at my face which connected and caused me pain. He then physically forced me to leave the home. The children all witnessed the event.
I say that I recorded the incident on my iPod in the first instance to show Mr Hopwood how silly his behaviour was, however as the violence escalated I continued to record what was going on and I played the recording to the Police.[10]
[9] Affidavit of Ms Hopwood filed 8 February 2018.
[10] Paragraphs 32 and 33 of the affidavit of Ms Hopwood filed 8 February 2018.
This is consistent with the evidence given about this incident by the mother in her previous affidavit.[11]
[11] Paragraphs 34 and 35 of the affidavit of Ms Hopwood filed 31 July 2015.
It is clear from the father’s own affidavit material that he was aware that the mother had a recording of the incident; however, it became apparent during the course of the hearing that he had not obtained a copy of that recording prior to the hearing.
Leave was granted to play the recording in the hearing and a disc of the recording was tendered into evidence.[12]
[12] Exhibit E.
It is clear from the recording that the father was intoxicated during the exchange. The mother appears to be calm, at least initially. The children could be heard in the background with at least one of them becoming increasingly distressed as the altercation continued. At the beginning of the recording, one of the children was heard to ask about ‘potato cakes’. It was evident that at least at the beginning of the altercation the children were not distressed, suggesting that this type of argument was not unusual.
By the end of the recording, it appears that two or more of the children were crying and clearly distressed by what was happening. Variously throughout the argument, the father referred to the mother in extremely derogatory terms. It is not necessary for the purpose of my decision to set those out in detail.
At one point in the recording, the mother, appearing to try and calm the children down, says “it’s alright” and then one of the other children says “no it’s not, he shouldn’t be doing this in front of us”.
At one point, the father started to demand that the mother give him her telephone. Following this, there is more yelling and the children are heard becoming increasingly distressed in the background. The mother repeatedly tells the father to stop and to consider the impact of his behaviour on the children.
The father then:
a)repeatedly tells the mother to leave “his house”;
b)makes reference to divorcing her; and
c)says that she would only see the children every second weekend.
The father is then heard to telephone the mother’s father and direct him to collect his daughter. He then forces the mother to leave. The mother is repeatedly heard to say that she does not want to leave without the children. She ultimately does leave but says she will return to collect the children.
It is clear from the recording that at the point at which the mother is removed from the home, the children are distressed and crying with one of the children heard repeatedly to say “I need you mum”.
The father was visibly distressed while hearing the recording in court. Upon hearing the recording, the father conceded that he was clearly more intoxicated than he recalled and that he regretted his behaviour.
Notwithstanding this and the fact that on the final day of hearing, he apologised to the mother for his behaviour on that evening in open court, the father continued to maintain throughout cross examination of the mother that:
a)she had entrapped him into this situation;
b)she had been asking leading questions of him; and
c)the distress caused to the children was partially the mother’s fault because she could have left at any time and this would have diffused the situation.
Moreover, the father said that the mother had withheld a crucial piece of evidence from him throughout the proceedings and that if she provided him with a copy of the recording at an earlier point in the case, he may have made the concessions which he eventually made about that evening.[13]
[13] Transcript page 178 at line 44 to page 179 at line 16.
As stated, it is clear from the father’s own material that he was at all times aware that the mother had a recording of this incident. In fact, he himself refers to it as evidence that he had not physically assaulted either his wife or his daughter.[14] Moreover, the father was put on notice that the mother would be relying on that recording as she referred to in it her affidavit filed 6 July 2017. At no stage did the father request a copy of that recording.
[14] See paragraph 9 of the affidavit of Mr Hopwood filed 13 July 2017.
I find that the father engaged in verbal abuse towards the mother during the April 2014 incident. In relation to the allegation that the father hit the mother and the child [X] in the course of this incident, I prefer the evidence of the mother and find that he in fact did hit both her and [X]. The father was clearly intoxicated at the time and he himself indicated that he did not have a clear recollection of the event. By contrast, the mother did have a clear recollection of what transpired and I prefer her evidence on this point.
Police involvement
It is common ground that the mother telephoned the police following the April 2014 incident and they attended the family home. The mother ultimately left with the children that evening.
After the April 2014 incident, the mother alleged that the father has either threatened to or has actually telephoned the police on a number of occasions in the presence of the children and that this has further impacted them.
The mother alleged that on 27 June 2015 whilst the children were in his care, the father threatened to call the police regarding the mother’s alleged stalking of him.[15] According to the mother’s evidence, which I accept, the children were distressed by this.
[15] Paragraph 36 of the affidavit of Ms Hopwood filed 9 February 2018.
It is common ground that in July 2014 when the children were at a (hobby) game, it had been arranged that they would spend time with the father from 1:00pm. It is also common ground that the (hobby) game ended a little early and there was a dispute between the parents as to whether the children could go with the father before 1:00pm.
The father conceded that he called the police in response to this dispute because of the mother’s “aggressive behaviour”[16], and that the police attended the (hobby) game in front of the children’s friends. The father stated in cross examination that the reason he called the police was because he feared for his safety and for the safety of the children.[17]
[16] Transcript page 40 at line 10.
[17] Transcript page 40 at line 26.
The father conceded that the police attending the children’s (hobby) game would have been distressing for them.
It was also common ground that there was a further incident at another (hobby) game at which the father again called the police to attend when there was some disagreement between the parents about when the children’s time with him was to commence.
Whilst he conceded that this would have been embarrassing for the children given that the police again attended in front of their friends, the father maintained that he was nonetheless behaving in a child focused manner and that he was only responding to the mother’s “aggressive” behaviour.[18]
[18] Transcript page 42.
Ms A incident
Interim orders were made in August 2015 which provided for the children to spend time with the father each alternate Saturday supervised by a member of the father’s family with a view to progressing to unsupervised time on 25 October 2015.
It is also common ground that on 10 October 2015, the children were spending time with the father, supervised by his sister-in-law pursuant to these orders. The mother alleged that when the children returned to her care after this visit, they told her that the father had had “a hissy fit in Ms A’s” at his sister-in-law.
The father denied that he had an argument with his sister-in-law. Notwithstanding this denial, the father acknowledged that his sister-in-law had ‘accused’ him of being on his mobile telephone which he denied.[19]
[19] Transcript page 43 at line 30 to page 44 at line 24.
The children made reference to this incident when they met with Mr B in November 2015. In his second memorandum, Mr B noted:
All three girls today were consistent in their view that whilst there (sic) time with their father had been progressing well, the incident involving the altercation between their aunt and their father had been a setback. All three girls stated quite unequivocally that whilst they wish to continue spending time with their father they wished for this time to continue to be supervised because of their concerns that their father may become angry. The children were unanimous in that their father had not been angry against them, but rather their Aunt and her daughter. However, they stated that his behaviours had brought back memories of what they had experienced in the past, and as such their firm preference was to continue with supervised time.
… All three children were unambiguously clear that their mother was in no way influencing their decision making in relation to spending time with their father.
In summary, these three girls all appear to be extremely vulnerable as a result of the continuing parental discord as well as the possibility that there may be a court imposed solution to the issue of time spent with their father that may involve no supervision.[20]
[20] Pages 3 and 4 of the section 11F child inclusive memorandum prepared by Mr B dated 16 November 2017.
When it was put to the father that the children had reported this incident to Mr B, he initially claimed that the Ms A incident was hearsay and then suggested that the mother had coached the children to report this to him.[21]
[21] Transcript page 44 at line 26 to page 45 at line 37.
In response to a series of questions from me about this incident, the father gave the following evidence:
…there wasn’t a huge argument as what’s being portrayed, no.
…as I said, I was accused of being on my phone while I was driving, which was not true, which is what I explained.
…Well, when we sat down my niece actually had a bit to say, and I just said to her, “Stop”. I said, “I’m quite happy to take the children back to Ms Hopwood; finish the spend-time right now, and just take them back to home.” That’s actually what was said.[22]
[22] Transcript page 45 at line 45 to page 46 at line 7.
I find that the Ms A incident marked a significant setback in the father moving from supervised to unsupervised time.
The father’s continued minimisation of his conduct on this occasion and his inability to acknowledge the impact of that on the children is telling.
The father’s time in November 2016
It is also not disputed that in November 2016, shortly prior to the parties attending upon Mr P for the purposes of a private family report, the father contacted the mother and asked to see the children. The mother facilitated this and the father conceded that he had prepared a ‘letter’ containing handwritten notes which he read to the children when he saw them (“the letter”). The father produced this letter to the court.[23]
[23] Exhibit F.
The letter contained the following:
Regardless of what anyone says, the only people that can change this situation is (sic) the three of you. Not the courts says (sic) on misleading information. Not Mum. Not Dad or anyone else trying to influence your decision.
…
I/we only want to focus on the three of you (NO MORE fighting)
Supervision – Its (sic) up to you three you don’t have to have anyone there it’s not court requirement (sic) if you three are happy not to have supervisors. You can have whoever you want there. (emphasis in original) [24]
[24] Exhibit F.
The father conceded that he may have told the children that he was exhausted from fighting for them. The notes are consistent with this. The father denied however, that his behaviour in this regard involved the children in his dispute with the mother.[25]
[25] Transcript page 48 at line 15.
Exclusion from key events
Central to the father’s case was his allegation of parental alienation by the mother. In addition to the matters set out above, he pointed to his exclusion from various significant milestones in the children’s lives. For example, he stated that he did not have any knowledge of [Z]’s confirmation until well after it had occurred.[26]
[26] Paragraph 16 of the affidavit of Mr Hopwood filed 13 July 2017.
He also alleged that he was excluded from [X]’s debutante ball and in particular, when he asked [X] about it, he was told that he could not sit at the family table.[27] During cross examination, the father confirmed that he and his partner did attend [X]’s debutante ball but did not sit on the family table. When it was put to him that perhaps it would not have been appropriate for the father and mother to sit at the same table at the debutante ball given the conflict between him and the mother which may make [X] uncomfortable, the father replied:
Why wouldn’t you be able to? Most parents, out of separated families, high conflict or not, can still actually sit at the same table for their children.
… It really shouldn’t have been an issue. I’d be there for [X].[28]
[27] Paragraph 17 of the affidavit of Mr Hopwood filed 13 July 2017.
[28] Transcript page 58 at lines 29 to 39.
The father also complained about being excluded from celebrating [X]’s 16th birthday. The mother gave evidence that [X] had asked if she could make arrangements for a lunch with her friends to celebrate her birthday on 2016.[29]
[29] The mother’s evidence in relation to this issue is set out at paragraphs 113 to 127 of the affidavit of Ms Hopwood filed 8 February 2018.
During cross examination, the father conceded that the children did spend time with him on [X]’s birthday and that the mother facilitated the time and in fact supervised (albeit that she sat in another part of the hotel) as there were no other supervisors available.[30] Notwithstanding this, the father said that he believed that the mother would have argued with [X] about spending time with him.[31]
[30] Transcript page 120 at lines 25 to 37.
[31] Transcript page 121 at lines 1 to 14.
Facebook posts
The mother annexed to her trial affidavit, a photograph of a Facebook post which she alleged the father made about parental alienation.[32] During cross-examination, the father conceded that this was his Facebook post. In addition, he conceded that the day before the trial commenced, he posted again on Facebook saying, among other things:
To my friends and family, thanks for the encouraging words and your ongoing support, I really do appreciate every one of you. I say bring on Monday, Tuesday and Wednesday, bring on the high flying barristers I’ll be up against, as I paid for in property settlement, bring on the family law court system that’s totally one sided to the person willing to lie, nearly four years of this crap constantly defending yourself from the lies, as the Australian family law reduced most parents with little care of their children to being just an ATM (cash cow) for the ex. I love my children and always will !!! We will continue to build a future for all of our children, I’ll keep fighting for the safety of my children!!! It takes more than the parents to raise children, I need the community to stand up and help, speak up and be heard!! This won’t be the end for me, I will continue the fight for myself and all the alienated parents out there, we will be heard!
Family Court. Where no evidence is necessary. Where lies are not only allowed but are actually both encouraged and rewarded.
The real deadbeat is the woman who keeps her child from a loving father.[33]
[32] Annexure H-5 of the affidavit of Ms Hopwood filed 8 February 2018.
[33] Exhibit C.
Counselling
The parties both gave evidence about the context in which counselling was arranged for the children post separation and the circumstances which led to that counselling ceasing.
Although by the conclusion of these proceedings, neither parent sought orders for the children to engage in any court-ordered counselling, the circumstances which led to the cessation of that counselling is relevant to the question of whether it is in the children’s best interests to make an order for equal shared parental responsibility as it goes to the nature of their relationship and ability to resolve conflict going forward.
The mother gave evidence, which I accept, that she arranged for the children to commence individual counselling with her counsellor, Ms B in September 2015. In his November 2015 report after counselling had commenced, Mr B made the following observations:
The parents were advised to seek counselling with Uniting Care with the children’s current counsellor, so that both parents may receive feedback in relation to how their daughter’s (sic) are faring, and for the parents to receive input as to how they can best employ strategies to encourage the children towards a regime of care that does not involve supervision.
Of course, if the father’s behaviour in the past has been of a nature whereby the children have formed certain negative opinions of him and his capacity to control his emotions, it may be some time before Mr Hopwood may be able to build the necessary trust for the children to be comfortable in spending unsupervised time with him. Mr Hopwood needs to be conscious of his own behaviours and if necessary through his own continuing personal counselling address his own issues and behaviours that may lead to the children forming more trust in his capacity to provide for them a nurturing and stress free environment. (emphasis added).[34]
[34] Page 4 of the section 11F child inclusive memorandum prepared by Mr B dated 16 November 2017.
By the time the parties returned to court in December 2015, the children had attended counselling with Ms B for a number of months. Consistent with the observations of Mr B in his second memorandum, the parties consented to an order (“the December 2015 interim orders”) in the following terms:
The parties will use their best endeavours to engage with the children’s counsellor, Ms B at Uniting Care with the aim of building time between the father and the children so that at some future point they may feel comfortable spending time with their father unsupervised, and for the purpose of such counselling the parties provide Ms B with a copy of the Memorandum to Court of Mr B dated 7 August 2015 and 16 November 2015.[35]
[35] Paragraph 26 of the interim orders made by consent on 8 December 2015.
The December 2015 interim orders were made in the context of further orders which provided for the children to continue to spend supervised time with the father until they felt comfortable with unsupervised time commencing and also, that neither the father’s partner Ms F, nor her children, be permitted to attend any such time.
The father stated that he understood that the December 2015 interim orders required the whole family to attend counselling; that is, the five of them.[36]
[36] Transcript page 61 at line 8.
I note that although the December 2015 interim orders did not expressly require the whole family to see the same counsellor, they did require the parties to ‘use their best endeavours’ to engage with the children’s counsellor, Ms B. The order was made in the context of the comments made by Mr B that it would be helpful for the parents to seek counselling with the children’s current counsellor:
…so that both parents may receive feedback in relation to how their daughters are faring, and for the parents to receive input as to how they can best employ strategies to encourage the children towards a regime of care that does not involve supervision.[37]
[37] Page 4 of the section 11F child inclusive memorandum prepared by Mr B dated 16 November 2017.
In this context, it is understandable that the father tried to book an appointment with Ms B.
In any event, when it became apparent that that could not be arranged, the father sent an email to Ms B on 9 February 2016 attaching the December 2015 interim orders and alleging that those orders were being breached as Ms B was already seeing the mother and children but not him.[38] In that email, the father stated that an appointment should be made for him as he did not wish to add to the children’s stress by having to change counsellors. The father went on to say:
If you are unable to supply an appointment within a reasonable time then I request that you do not have any further appointments with [X], [Y] or [Z] as we will have to find another counsellor who can see all… of us.[39]
[38] Transcript page 63 at lines 12 to 47 and Exhibit I.
[39] Transcript page 63 at lines 42 to 45.
The father conceded in cross examination that on 16 February 2016, he received a response to this email from Uniting Care in which he was advised:
a)that he was on a waitlist for an allocation;
b)a suggestion was made for an alternative process; and
c)there was an allocation meeting the following day and the father would be advised of the outcome.
Less than 10 minutes after receiving that email and without awaiting the outcome of the allocation meeting the following day, having any other discussions with Uniting Care or discussing the matter with the mother, the father emailed the following response:
Thanks. But as far as the girls still seeing (Ms B) (sic) that will have to cease as per the court order until a counsellor can see us all. Regards Mr Hopwood.[40]
[40] Transcript page 65 at lines 1 to 2.
This is an example of the father’s conduct which was not child focused. Rather than working with Uniting Care to determine whether an appointment could be arranged with Ms B for him, and if not, what other options were available noting that the purpose of the counselling was to give the father feedback to allow him to develop strategies which would ultimately facilitate unsupervised time with the children, the father’s actions put a stop to counselling which the children were undertaking. This was counselling which the father conceded the children needed for their benefit.
The mother’s evidence, which I accept, was that she had been seeing Ms B before she obtained funding for the children to commence seeing her. This is corroborated by the file note of Ms A dated 18 February 2016 which records that the mother commenced seeing Ms B in February 2015.[41] It was therefore not the case that Ms B had made arrangements to see the mother pursuant to the December 2015 interim orders without the father.
[41] Exhibit K.
In this context, the following exchange occurred in cross examination between the mother’s counsel and the father:
The children were having therapeutic counselling with Ms B (sic) from September 2015 and, on 16 February 2016, without reference to my client, without checking with the girls, you terminated that counselling? --- Without reference to your client.
You didn’t tell my client you were going to send this email and cancel the appointments that the girls had with Ms B? (sic) --- Right.
Did you --- No.
No. You did it yourself. You wrote the email, and you terminated the counselling? --- I wrote the email, yes. Yes.
And you maintain that terminating these girls’ counselling was in their best interest at that time? --- No, probably wasn’t in their best interest.
Wasn’t in their best interest, but you did it anyway? --- But I was following the court orders…
…
… what I suggest to you, sir, is that these children genuinely needed counselling ---? ---Yes.
--- that you agreed to an order for them to have counselling back in August 2015 ---? --- Okay.
--- and in February 2016, you unilaterally stopped that counselling? – As I’ve explained. I actually thought it was in the orders for the five of us, which I’m pretty sure there is somewhere.
So you put your reading of the orders over these children’s need for counselling? --- Well, no. Well, I suppose I did, but not intentionally.
Not intentionally, but it was the consequence of your actions? --- yes.[42]
[42] Transcript page 65 at line 46 to page 67 at line 31.
In the course of the father’s cross examination by the Independent Children’s Lawyer, the father also explained his decision to cease the children’s counselling as follows:
And then I also spoke to Ms B (sic) and the children were not engaging and they were not cooperative with Ms B. So it was probably best at that stage to stop that one and start afresh.[43]
[43] Transcript page 133 at lines 36 to 38.
In the context of this evidence, the following exchange occurred with counsel for the Independent Children’s Lawyer:
Do you understand that therapeutic processes can sometimes take a very lengthy period of time ---? --- Yes.
--- that patients need to get the trust of the therapist? Yes? --- Yes.
That they need to get to some underlying causes of each individual person before they actually see people as a group? --- Yes. True.
You weren’t prepared to wait, were you? --- Well, we were trying to get it done within the court frame. We were trying… to get it done ASAP.
Right. But you weren’t prepared to say, “Hang on. I will step back a minute. I will let the girls to what they need to do and I will become engaged when the expert in it believes I’m able to become engaged.” You weren’t prepared to do that, were you? --- I would say no.[44]
[44] Transcript page 133 at line 43 to page 134 at line 12.
In any event, further interim orders were made on 6 September 2016 (“September 2016 interim orders”) in the following terms:
The parties forthwith do all things and sign all necessary documents necessary to facilitate the parties and children attending for family therapy with the Family Relationships Centre, Ballarat and the parties follow all lawful directions of the service including as to their attendance, and the attendance of the children in person or by telephone.[45]
[45] Paragraph 3 of the interim orders made by consent on 6 September 2016.
In his affidavit filed 13 July 2017, the father deposed:
It was agreed after court in September 2016 that Ms Hopwood and I, and then, the children and I would attend counselling together with Ms G from. When Ms Hopwood and I attended, Ms Hopwood made it clear that she did not want to work with me to move forward for the sake of the girls, she stated how jealous she was that I had moved on and was happy in my relationship with my partner Ms F. She had no intention of moving forward it was just a blame session on her part.[46]
[46] Paragraph 14 of the affidavit of Mr Hopwood filed 13 July 2017.
The father described the three sessions he had with the children and
Ms G stating that the children were initially open to the counselling with him with the first session being very positive, but deposed that they became less engaged in the remaining two sessions and pointed to this as further evidence of parental alienation.[47]
[47] Paragraph 15 of the affidavit of Mr Hopwood filed 13 July 2017.
Prior to the September 2016 interim orders being made, the mother wrote to the father requesting he contribute half the costs of a private counsellor for the children to work through some of their issues.[48] The father referred to this letter in a subsequent affidavit and described it as an “ill-informed and hostile letter which is indicative of her abusive nature.”[49] He also described it as “vitriolic”.When it was put to him during cross examination that the letter was in fact not abusive or vitriolic, the father asked “has it been edited?”[50] The father maintained that the letter was vitriolic although at times, it appeared he did not really understand the meaning of the term.[51]
[48] Annexure H-3 of the affidavit of Ms Hopwood filed 8 February 2018.
[49] Paragraph 15(xvii) of the affidavit of Mr Hopwood filed 1 September 2016.
[50] Transcript page 73 at line 15.
[51] Transcript page 74 at line 35 to page 75 at line 40.
I find that the mother’s letter referred to above was reasonable and appropriate in the circumstances and reject the father’s characterisation of it.
Psychological assessment
Further interim orders were made by consent on 26 July 2017 (“July 2017 interim orders”) for each parent to undergo a psychological assessment.
The parties were each assessed by Mr J whose reports were filed in these proceedings.[52] Mr J also gave evidence and was cross-examined.
[52] See annexures J-1 and J-2 of the affidavit of Mr J filed 9 November 2017.
In relation to the father, Mr J concluded:
I believe Mr Hopwood has no overwhelmingly serious mental disorder but a considerably serious behavioural disorder. This disorder relates to his emotional abuse, controlling behaviour and general aggressiveness mainly of a verbal nature, which has clearly landed him in a situation where he is somewhat alienated from not only his ex-wife but also his children… Ongoing counselling with a specific aim of developing such insights would be appropriate.[53]
[53] Annexure J-1 of the affidavit of Mr J filed 9 November 2017.
Mr J also assessed the mother. After describing the mother’s history and her relationship with the father, Mr J stated:
It is hard to say that Mr Hopwood was the sole contributor to this very unhealthy dynamic, but he certainly maintained a very powerful influence over Ms Hopwood and their three girls… It is easy to say the (sic) Mr Hopwood was a dominating influence, and this seems to have been true. It is perhaps difficult for Ms Hopwood to understand that he simply exacerbated her own ingrained beliefs from a badly fractured family and that those beliefs also contributed to her own powerlessness either for herself or for her to fully protect her children.[54]
[54] Annexure J-2 of the affidavit of Mr J filed 9 November 2017.
Mr J noted that as the children have gotten older, they observed the interactions between their parents themselves, without the mother in any way denigrating the father.
Family report
The parties attended upon Dr R in accordance with further orders of the court. Dr R’s report contained the following observations of the father:
Throughout his interview the father assumed the mantle of being the victim who has been appallingly treated by the mother and much of his conversation seemed to be about his rights rather than him showing insight and understanding about the children’s rights or wishes.[55]
[55] Paragraph 15 of the family report prepared by Dr R dated 12 July 2017.
Dr R also made the following observation:
…the most notable feature of the two older children’s comments was their repeated reference to the mother being abused by the father and the father’s constant lack of emotional control and anger outbursts and then associated abuse of either the mother or them which appears to have gone on since both were very little… In turn [Z] indicated that she was scared of spending time with the father on her own…[56]
The father has clearly rejected such… views of the children as not being their independent views and that in fact such views are the result of the mother’s interference and show how much the mother has unduly influenced and tried to alienate the children against him.[57]
[56] Paragraph 63 of the family report prepared by Dr R dated 12 July 2017.
[57] Paragraph 64 of the family report prepared by Dr R dated 12 July 2017.
Father’s view of the mother
In his affidavit material, the father repeatedly described the mother as ‘narcissistic’ and ‘manipulative’ and asserted that she was seeking to exclude the father from the children’s lives.
There is a consistent theme which came out of the father’s evidence in this matter, whether in his own affidavits, his answers in cross examination or his statements to the various experts he has attended upon throughout the proceedings: namely that the children are perfectly happy and content in his care, that the mother’s allegations about his abuse during the relationship are untrue or greatly exaggerated and that the mother has alienated the children from him.
The father appeared to be genuinely unable to understand why he was not able to have a civil relationship with the mother and co-parent the children post-separation (as many separated parents do). Nor could he understand why his children seemed to be reporting fear to the family consultants. The only explanation that he could accept was that their reaction was a result of the pressure that the mother was putting on them.
It is clear that the father loves his children and wants to have a meaningful relationship with them. However, the father has not displayed any insight into the impact of his own behaviour (other than, belatedly, his behaviour during the April 2014 incident) on his relationship with his children.
I find that the concerns the children have expressed about spending time with their father genuinely reflect their experience of him and are not reflective of any actions on the part of the mother to limit their time with their father.
The children were all present during the April 2014 incident and were clearly distressed by what occurred. The father did not acknowledge the extent of his conduct on that occasion until presented with the recording in court. It was only then that he conceded that he was more intoxicated than he thought he had been. Leaving aside the mother’s claims that he had hit her during this altercation, [X], who was then 14 years old, also reported that the father had slapped her in the face when she met with Mr B in August 2015.
At this stage of the proceedings, the mother’s application was for the children to spend time with the father. Interim orders made by consent at the time contemplated that the children’s time with their father would move to unsupervised time in October 2015. There is no suggestion in the way in which the mother was running her case that she sought to exclude the father from the children’s lives.
Perhaps if the father had taken [X] at her word and apologised to her following the April 2014 incident, particularly having regard to the concessions he made at trial, his conduct may have better demonstrated to [X] a level of insight into his own behaviour.
It is concerning that even during the trial when listening to the recording and acknowledging that he was more intoxicated than he initially thought, that the father could not concede that he may have hit [X] that evening.
As noted by Mr J, the situation between the father and the mother was in all likelihood the result of a combination of factors, including both the mother’s personality and low self-esteem and the father’s behaviour. However, the father’s attempts to portray himself as a victim in these proceedings have unfortunately limited his ability to develop insight into things that he can and should take responsibility for. This has consequently resulted in his repeated failure to act in a child focused manner.
His interference with the children’s counselling in February 2016 is a further example of the father prioritising his rights over what was in the children’s best interests.
As stated, it was a significant part of the father’s case that the mother, by her conduct alienated the children from him. This was squarely put by the father to Dr R and was one of the issues Dr R addressed in his report.
Dr R made the following observations:
Mindful of the father’s very strong allegations that the mother had unduly influenced and/or alienated one or more of the children against him the writer paid particular attention to the children’s presentation and comments. At all times each child appeared consistent with no apparent contradictions in their respective comments...Overall they appeared intelligent, credible and well able to articulate what they felt about their past experiences of living with the parties.[58]
[58] Paragraph 56 of the family report prepared by Dr R dated 12 July 2017.
Contrary to the father’s claim that the mother was alienating the children from him, the evidence suggests, and I find that the mother facilitated the children’s time with their father even on occasions when the supervisors nominated were not available. The mother gave evidence, which I accept, that she supervised on at least three occasions by being in the vicinity of where the children spent time with the father, even though this caused her discomfort.
Parental conflict
In his first memorandum, Mr B made the following observations of the parents:
The parental relationship is currently quite unhealthy. It is characterised by a lack of effective communication and trust…
…
Observed together the parents were both noted to become argumentative very easily and both appear to have the capacity too (sic) become quickly inflamed and argumentative. Ms Hopwood claims she has now “found my voice” and feels a need to stand up to her ex husband. Mr Hopwood counters that he is in fact the victim with his ex wife wanting to control him…
Thus the view of this writer is that both parents have unresolved issues from their past driving them into disputation and both show some level of low impulse control.[59]
[59] Pages 2 and 3 of the section 11F child inclusive memorandum prepared by Mr B dated 7 August 2015.
In relation to the state of communication between the parents, Dr R opined in his report:
…self-hurt, pig-headedness and petty games by each party as well as the ongoing effects of long term hostility preventing meaningful communication about the children’s welfare appeared to highlight the current impasse. Basically it seems that the level of distrust and suspicion that each party has about the other at a personal and child level about the other’s motives and actions about the children is so strong that it basically prevents any meaningful communication and/or collaboration between the parties about the children’s welfare.[60]
[60] Paragraph 67 of the family report prepared by Dr R dated 12 July 2017.
Dr R made the final telling comment:
Thus whether either party thinks the other is at fault in terms of the children’s best interest (sic) appears to a large degree irrelevant but what appears very relevant is that what the children currently think and feel must be respected in such way (sic) that both parties take heed, value, accept, and utilize such views of the children to try to modify their existing behaviours so as to become more empathic and child-centred parents.[61]
[61] Paragraph 77 of the family report prepared by Dr R dated 12 July 2017.
The children’s wishes
The father disputed that the children’s current wishes as expressed in the mother’s trial affidavit are in fact their own wishes. Rather, he maintained that they are the mother’s wishes being imposed upon the children.[62] I do not accept this submission.
[62] Transcript page 159 at line 7 to page 160 at line 46.
In 2015 when they first saw Mr B, he noted the following:
All three children reported that they loved their father as well as their mother.
All 3 children stated quite unequivocally that they believed that their mother wants them to spend time and see their father, with [X] stating that their mother has on occasion “forced us to go and see him”.
The children all stated that they did not mind a resumption of time with their father but all 3 expressed discomfort with extended overnight time and the oldest two girls stated they would feel more comfortable if their paternal grandparents were present. The youngest girl stated she did not mind who was present as long as her father “stopped doing things” such as “calling the police and shouting at mum”…
In summary all 3 girls were noted to be intelligent, fairly quiet individuals, however their narrative was consistent and unambiguous.[63]
[63] Pages 3 and 4 of the section 11F child inclusive memorandum prepared by Mr B dated 7 August 2015.
Dr R’s report also contained comments attributed to the children about their wishes regarding spend time arrangements with the father.
The mother also gave evidence about the children’s current wishes in relation to spending time with their father.[64] In summary, the mother deposed that:
a)[X] is currently completing Year 12 and has been upset that these proceedings are still on foot. [X] has said on numerous occasions that she does not want to spend time with her father but does not want [Z] to go alone;
b)[Y] has also said to the mother on numerous occasions that she does not wish to spend time with her father at the moment; and
c)[Z] has been the most distressed and is concerned that if something were to happen to the mother, she would have to live with the father.
[64] See the affidavit of Ms Hopwood filed 8 February 2018.
The children have had numerous opportunities to express a view contrary to that reported by the mother to not only Mr B and Dr R but also the various counsellors that they have seen over the course of these proceedings. The children’s views as expressed to the court appointed experts are consistent with those reported by their mother.
Family violence
Family violence is defined in section 4AB of the Family Law Act 1975 (Cth) (“the Act”) as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
Section 4AB(2) goes on to relevantly provide:
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
…
(d)repeated derogatory taunts; or
…
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
… (b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or…
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
I find that the father’s behaviour during the April 2014 incident falls within the definition of family violence set out above and I also find that each of the children were exposed to family violence.
I also find on the basis of the totality of the evidence that in addition to this specific incident, the parties had engaged in verbal arguments over the course of their relationship to which the children, especially the older two were exposed and that this also constitutes a form of family violence within the definition set out above.
Best interests of the child
Part VII of the Act deals with how the court should approach parenting orders. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Note:The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website (>
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will address the relevant considerations in order.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Both parents acknowledged the benefit to the children of having a meaningful relationship with each parent. However, the mother’s case at trial was that the children should have a significant say in how their time with the father should occur. As stated above, initially the children expressed concern about spending time with their father but indicated that they would be prepared to do so if it was supervised. This was trialled for some time with limited success as detailed above.
The children’s views as expressed to Dr R and to the mother are that they do not wish to spend regular and structured time with the father at present. It is evident from their comments to Dr R that the children feel that this litigation has been drawn out and they want some finality to the situation.
In McCall & Clark [2009] FamCAFC 92; (2009) 41 Fam LR 483; (2009) FLC 93-405 the court said:
…the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child.[65]
[65] McCall & Clark [2009] FamCAFC 92; (2009) 41 Fam LR 483; (2009) FLC 93-405 at [117].
…
…we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.[66]
[66] McCall & Clark [2009] FamCAFC 92; (2009) 41 Fam LR 483; (2009) FLC 93-405 at [122].
As noted by the Honourable Justice Cronin in Tait & Densmore [2007] FamCA 1383, there is a clear distinction between an optimal relationship and a meaningful relationship:
… An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. The responsibilities of parents are to give the children a chance to be part of a family albeit in two households where they can have a feeling of being wanted and appreciated.[67]
[67] Tait & Densmore [2007] FamCA 1383 at [170].
Whilst it is hoped that these children will be able to have a meaningful relationship with both parents in the future, it is clear on the basis of the evidence that a significant amount of work will need to be done with the assistance of appropriately qualified specialists to assist in that process.
For his part, the father could benefit from some counselling to help him to reflect on the part he has played in the relationship and what he can do to support his children moving forward.
For her part, the mother also needs to continue counselling to help her to deal with her own issues with the father in a way which still supports the children in their relationship with him.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Whilst post-separation the children were no longer exposed to the verbal abuse they had previously witnessed between their parents, I am satisfied that there is a need to protect the children from ongoing psychological harm following exposure to the father’s emotional outbursts.
The children have each disclosed to various experts in these proceedings that they are concerned about spending time with the father because they do not know how he will be. I understand this to be a reference to the father’s lack of emotional regulation.
The Ms A incident is a case in point. Even on his own evidence, the father took offence at the comment made by his sister-in-law and he himself suggested that the time spent be brought to an end and the children returned to their mother.
The father also gave evidence, which I accept, that on the week prior to trial, he met with the children and at the end of that time, told them that he loved them and this might be the last time that he would see them.
As required by section 60CC(2A) of the Act, this factor needs to be given greater weight than the considerations under section 60CC(2)(a).
The proposed orders which provide for the children to spend time with the father according to their wishes, will allow these children, all of whom have been described by Mr B as “intelligent”, whose “narrative was consistent and unambiguous” and Dr R as “quite credible, intelligent and aware if not far too aware of the processes involved in the dispute” will strike the right balance between these competing factors.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
I have set out above the children’s clear and unambiguous desire to be allowed to make their own decisions about when and how they spend time with their father.
To the extent that their most recent views are set out in the mother’s affidavit, I accept the mother’s evidence that this is an accurate reflection of the children’s views. I have also had regard to the views which these children have consistently expressed to both Mr B and Dr R over the past three years.
As stated above, I do not accept the father’s position that the children’s views are a reflection of the mother having alienated them from the father. Rather, I find that the children’s views are the result of their own lived experience with their father both before and after separation.
The children, particularly the older ones, were exposed to the verbal arguments which both parents conceded were a part of their life prior to separation. As evidenced by the recording of the April 2014 incident, the children were visibly distressed by the father’s treatment of the mother on that evening.
In addition, the father’s conduct in calling the police to deal with a changeover issue at (hobby game) was at best, insensitive to the children’s needs and at worst, demonstrative of a complete disregard for the impact that his behaviour would have on the children. The father’s evidence that he called the police because he was in fear of his own safety and that of the children rings hollow. The changeover occurred in a public place surrounded by many people.
Even if the father was right and the mother should have allowed the children to leave with him as soon as the (hobby) game had finished (which is not conceded and I make no finding in that regard), the father’s reaction was completely disproportionate to the situation. Moreover, the father’s conduct on this occasion was consistent with [Y]’s comments to Dr R about her father:
…he never listens to anyone and he must always be right and he gets so angry over nothing and then we all pay.[68]
[68] Paragraph 39 of the family report prepared by Dr R dated 12 July 2017.
I have also had regard to the fact that at present the children have, over the course of these proceedings stated repeatedly that they love their father, despite them wanting him to change his behaviour towards their mother and them.
Whilst to date the father has refused to accept the children’s wishes as arising from their own experiences, it is hoped that having the benefit of hearing the evidence in this matter, the father might reflect on his own behaviour and what part that may have played in the current state of his relationship with his children.
That is not to say that the father is entirely responsible for the current situation. As noted by Mr J, it is apparent that the relationship between the parties was unhealthy for some time before separation with both parties having contributed to that situation.
Nevertheless, at this point in time, it is in the best interests of the children that their wishes be taken into account.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
The children have a positive relationship with their mother.
As discussed above, the children’s relationship with their father is fractured and they have all expressed concerns about spending regular and structured time with him at the moment.
I also note the comments made by the children to Dr R about the father’s new partner. The father stated, and I accept, that his relationship with his new partner is a very positive and supportive one. He clearly wants his children to be part of his new life. So much is evident from not only his evidence but also the ‘letter’ which he discussed with the children.[69]
[69] Exhibit F.
The father gave evidence that the children had a positive relationship with his partner when they first met her and that it was the mother’s jealousy of that relationship that infected the children’s views.[70]
[70] Paragraph 13 of the affidavit of Mr Hopwood filed 1 September 2016.
There are no comments by the children in either of Mr B’s two reports or in Dr R’s report which indicate that the children have a positive relationship with the father’s partner or indeed that they are keen to develop a relationship with her at this stage.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
The children have lived with the mother post-separation. As detailed above, the father has had limited and supervised time with the children. The key complaint from the father is that he wishes to spend more time with his children and remain involved in making major long term decisions about the children.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
I refer to my comments above.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
To the extent that the proposed orders provide for the mother to have sole parental responsibility, it will limit the necessity for joint decision making about major long term issues relating to the children.
Similarly, the absence of any regular and structured time with the father also reflects a change from the previous orders which provided for some, albeit limited, supervised time with the father.
Given the wishes expressed by the children in this case, the effect of these changes is likely to alleviate some of the pressure which the children are feeling at the moment and give them a sense that their voices have been heard and considered.
Ultimately, it is hoped that this, together with some counselling for each of the parents (separately) might result in both parents working out how to better support their children’s long term relationship with either parent.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This factor is not a relevant consideration in this case.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
As is evident from my assessment of the evidence set out above, I am concerned about the father’s ability to put the children’s interests above his own and his perspective of what is fair.
By comparison, the mother demonstrated an ability to remain child focused in her dealings with respect to the children’s time with the father. In coming to this conclusion, I note that from separation until February 2018, the mother sought orders for equal shared parental responsibility and that the children spend time with the father.
I have also had regard to the comments made by the children to the family consultants in this matter that the mother has always encouraged them to spend time with their father and that on occasions when the children did not wish to spend time with the father, the mother would make them attend.
I do not accept the father’s characterisation of the mother as someone who has sought to alienate him from his children. I find that it is more probable than not that the father’s own conduct in front of the children has resulted in the views they have formed about spending time with him.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The two older children in this case are old enough to express their own wishes about where and when they spend time with their father. Given her age, the orders will not apply to [X]. The youngest child, [Z] is 12 years old and has presented to the family consultants as an intelligent and mature child for her age.
These factors have been taken into account in determining appropriate orders in this matter.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor is not a relevant consideration in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This factor has been discussed above.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
I have discussed family violence issues above and have had regard to those matters in determining what is in the children’s best interests in all of the circumstances.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
This factor has been discussed above.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is trite to say that the ongoing nature of these proceedings has adversely impacted on this family and most particularly the children. They need finality to the dispute. The orders which I propose bring these proceedings to an end and are least likely to lead to further proceedings.
The orders prioritise the wishes of the children and protect the children from further conflict by requiring the mother to agree to any time with the father, subject to the children’s wishes. As stated above, I find that the mother is able to put the children’s needs ahead of her own and that she will facilitate time with the father as and when requested by the children.
The orders also provide for the father to respond by text message to any text message from the children. This is another means by which these children can determine and regulate their own relationship with their father as they may communicate with their father by text when they wish.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
There are no other relevant factors in this case.
Parental responsibility
Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
…
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The mother sought an order for sole parental responsibility. The father sought an order for equal shared parental responsibility.
I find that in this case, the presumption in favour of equal parental responsibility is rebutted on the following grounds:
a)firstly, the father has engaged in family violence as defined and as discussed above; and
b)perhaps more importantly, it is not in the best interests of the children for the parents to have equal shared parental responsibility.
The parents have demonstrated over the past four years post-separation that they cannot communicate effectively.
During cross examination, the mother stated that she would find it extremely difficult to negotiate anything with the father. She stated:
…because I’ve tried so many times to negotiate many things and I’m either wrong or it’s not what he wants to hear or – yes, it’s impossible.[71]
[71] Transcript page 220 at lines 11 to 12.
The father has deposed in affidavit material that the parties ought to be able to be ‘civil’ to one another for the benefit of the children. This is a laudable aim. However, the parties have been unable to achieve this over the course of these proceedings.
The father’s most recent affidavit filed in these proceedings is replete with allegations of parental alienation by the mother. Similar claims were again made by the father in a Facebook post just days before this hearing commenced.
In these circumstances, it is difficult to see how the parties could appropriately engage with each other to resolve key issues about their children.
It is clear that the father is frustrated by the fact that he has been unable to progress his time from supervised time to more regular and structured time with his children since commencing these proceedings.
It was also submitted by the father that if the children’s time with him was to be subject to their wishes, that it should not also be subject to the mother’s involvement. I am satisfied that if the children ask the mother to facilitate time with the father, she will do so. I am concerned on the basis of the evidence, including for example, the letter and the father’s discussion with the children on the weekend prior to this hearing, that if the children had to communicate directly with the father, he would place undue pressure on the children and this would not be in their best interests.
In his report, Dr R had recommended equal shared parental responsibility. He moved from this position at the hearing. In response to a summary by the counsel for the Independent Children’s Lawyer of the evidence which had been led in the course of the hearing, Dr R said:
On the basis of the… information you’ve given me today… taking into account Mr J’s psychological assessment of both parties, which I perceive to be very comprehensive, I believe it would be quite reasonable for the mother to have sole care of the children – sole responsibility of the children.[72]
[72] Transcript (day 3) page 7 at lines 34 to 38.
Furthermore, Dr R was asked to comment on his view as to the effectiveness of couples counselling between the parents. His response was that “…couples counselling would be worthless given the longevity of hostility and the fact that there had been no change.”[73]
[73] Transcript (day 3) page 7 at line 47 to page 8 at line 1.
In response to a question as to the likely effectiveness of further therapeutic counselling for the children, Dr R stated:
These two girls, the older two girls, are clearly hurting greatly. And I think that some time down the track, I think they will benefit from counselling. But in the interim, I think they’ve been through so much that I think it would be best if they were let free and have a chance to develop greater resilience through friendships... through the mother without the context of the father being there all the time.[74]
[74] Transcript (day 3) page 8 at lines 28 to 33.
Finally, in response to a question as to his view of the benefit of any counselling between the children and the father, Dr R responded quite firmly: “No, absolutely not at this stage … they are not ready for that.”[75]
[75] Transcript (day 3) page 8 at line 37.
In Marvel & Marvel (2010) 240 FLR 367; (2010) 43 Fam LR 348; [2010] FamCAFC 101, the full court noted:
It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child's best interests.[76]
[76] Marvel & Marvel (2010) 240 FLR 367; (2010) 43 Fam LR 348; [2010] FamCAFC 101 at [103].
Similarly, in Chappell & Chappell (2008) 39 Fam LR 627;
(2008) FLC 93-382; [2008] FamCAFC 143, the full court said:
In order to rebut the presumption it is necessary for the court to make a finding that it would not be in the best interests of the child for the presumption to be applied… In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings (emphasis in original).[77]
[77] Chappell & Chappell (2008) 39 Fam LR 627; (2008) FLC 93-382; [2008] FamCAFC 143 at [75].
I find on the basis of all the evidence in this matter, that the track record between these parents means that they will not be able to resolve ‘deadlocks’ as they occur. To the extent that past behaviour is an indicator of future conduct, the father’s cancellation of the children’s counselling and his response to the mother’s reasonable request to contribute equally to the costs of counselling in 2016 indicates that for the foreseeable future, where there is a deadlock, the parties will be unable to act in a child focused manner to resolve such deadlocks.
I am therefore satisfied that the presumption of equal shared parental responsibility is rebutted in this instance. In coming to this conclusion, I have also had regard to the evidence given by the mother in this case, which I accept, that if the children or any of them expressed an intention to spend time or communicate with their father, she would facilitate that.[78]
[78] Transcript page 222 at lines 23 to 38.
Equal or substantial and significant time with each parent
In light of the findings above regarding sole parental responsibility, it is not necessary for the court to consider equal or substantial and significant time with each parent.
Proposed orders
To give effect to these findings, I propose making orders that:
a)the mother have sole parental responsibility for the children;
b)the children spend time and communicate with the father as agreed with the mother and subject to the wishes of the children; and
c)the father be permitted to respond by text message to text messages initiated by the children to him and otherwise be restrained from sending text messages to the children.
The remaining orders herein are as agreed between the parties during the hearing.
I am satisfied that these orders are in the best interests of the children.
I certify that the preceding one hundred and ninety-eight (198) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 27 June 2018
- AGLC
- HOPWOOD & HOPWOOD [2019] FCCA 1544
- Case
- [2018] FCCA 1544
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were the allocation of parental responsibility, the nature and extent of the children's time and communication with each parent, and the facilitation of these arrangements. The court also considered the father's access to information regarding the children's education and health, and the conduct of the parents in relation to social media and the dissemination of information about the proceedings. The discharge of previous orders and the appointment of an Independent Children's Lawyer were also matters for determination.
Judge Mercuri ordered the discharge of all previous parenting orders. The mother was granted sole parental responsibility for the children. The children were to spend time and communicate with the father as agreed with the mother and subject to the children's wishes, with specific provisions for a weekly telephone call. The mother was to facilitate communication and transport for agreed changeovers. The father was permitted to communicate with the children's medical practitioners and school, and to obtain reports at his expense. Crucially, the father was restrained by injunction from posting photographs of the children or comments about the proceedings on social media. The court also noted the provisions of section 121 of the *Family Law Act 1975* regarding the publication of family law proceedings.
Orders
Orders of the court
1.
All previous parenting orders be discharged.
2.
The mother have sole parental responsibility for the children of the relationship, namely:
(a) [Y] born 2003 (“[Y]”); and
(b) [Z] born 2006 (“[Z]”) (collectively referred to as “the children”).
3.
The mother advise the father by email of any significant decisions made by her relating to the children’s health and education as soon as practicable after making such a decision.
4.
The children spend time and communicate with the father as agreed with the mother and subject to the wishes of the children.
5.
The children communicate with the father by telephone each Monday at 5:00pm with the children (or any of them) to place a telephone call to the father’s mobile telephone, subject to order 12 herein.
6.
The father be permitted to respond by text message to any text messages initiated by the children (or any of them) to him and otherwise be restrained from sending text messages to the children.
7.
The mother facilitate the children spending time and communicating with the father by providing transport to the children to attend any agreed changeover location, delivering to the children any letters or parcels sent to the children by post and/or providing the children reasonable telephone and internet facilities.
8.
The father be at liberty to communicate with any medical practitioner or professional at the school at which the children or any of them may attend from time to time and be at liberty to obtain directly from the children’s school any school report or photographs, at his expense.
9.
The mother and father advise and keep the other advised of their mobile telephone numbers, residential address and email addresses.
10.
The father be and is hereby restrained by injunction from posting photographs of the children or comments in relation to these proceedings on Facebook or other social media platforms.
11.
The appointment of the Independent Children’s Lawyer be discharged.
12.
In the event that the children are not in the one place together for the purpose of the telephone call in order 5, the mother will ensure that the children (or any of them not present at the call) telephone the father at a suitable time to ensure that each child has one telephone call per week with the father.
13.
Within 21 days of the date of this order, the father deliver to the mother the children’s belongings that are currently in his possession (“the delivery”), including but not limited to [Z]'s Lego and for the purposes of the delivery, the father deliver the items to the mother’s residential address and the mother is permitted to be present together with Ms D.
14.
The father be at liberty to attend any school function, extra-curricular activity or sporting activity in the event that the children (or any of them) make a written request for him to attend (including by text message).
15.
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.
AND THE COURT NOTES THAT:
(A) Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B) Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.