Litigation war and harm to children

Litigation war and harm to children – Kallas & Kondos [2015] FCCA 3242 (11 December 2015)

Last Updated: 22 January 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

Legislation:  Family Law Act 1975 , ss.60CC, 61DA(4)

Background overview

3. As already indicated, X was born on (omitted) 2009. The parties have been litigating about her since 24 March 2010 on what must be described as effectively an ongoing, unremitting war of attrition.
4. It is not necessary or appropriate to detail the protracted course of the litigation between the parents. It is sufficient for present purposes to note that (albeit these are rather general characterisations) it has been the mother’s position that the father is domineering and controlling, and that his endeavours to spend time with X have led the child to become deeply distressed and to engage in aggressive behaviour. It is the father’s case that the mother is, at all points, seeking to prevent him from spending time with the child and that, contrary to the mother’s position, the child is happy and contented when in his care.
5. It should be noted that there has been a quite staggering amount of professional assistance given to these somewhat insightless parents. I have not counted them myself, but nobody disagreed with a submission made by the Independent Children’s Lawyer’s counsel in closing submissions that there have been as many as 14 reports involving psychologists Ms W, Mr G and Dr S, together with extensive assistance provided by Ms L, who has herself provided a number of reports from time to time.
6. It is common cause that, despite everyone’s best efforts, the parents continue to detest one another.

The affidavits of the parties

26. Even since the inception of this tranche of litigation on 12 November 2013, the parties have filed a number of affidavits. It is neither necessary nor appropriate to paraphrase them in any detail whatsoever, although of course I have read and re-read the file (in its entirety) and have regard to the materials filed. In essence, the affidavits merely repeat the mutual criticisms the parties have of one another, which are, in my view, fully appropriately paraphrased in the reports of Dr S. The father’s affidavits are replete with accusations against the mother, including the dark suspicions as to her trying to present X to him in a tired and difficult state, and the alleged failure of the mother properly to involve him in X’s life. The mother’s material complains, at length, of the father’s difficult, controlling, and impossible behaviour.

Findings on the facts

51. It should be noted that it is no business of the Court to be gratuitously rude to parties or witnesses, or to say things in a judgment that are likely to be hurtful to them. Nonetheless criticism, and trenchant criticism at that, can sometimes unfortunately not be avoided, and this is such a case.
52. Disagreements of the entrenched sort that the parents have in this proceeding can never be solely caused by only one of the parties. Both of the parties struck me as being self-centred and, to an extent, lacking in insight. The lack of insight on the part of the father was far greater than that of the mother.
53. It is clear that the mother has a genuine fear of X’s response to spending time with her father albeit that she does not articulate any particular concern when she is with him, other than she may sleep in his bed (something in respect of which I accept the father’s version of events). It should be noted that the mother made a number of concessions, which, as I have earlier remarked are to her credit. As indicated, she conceded that looking back she would now agree that Dr S’s earlier report was correct. She conceded that she had sworn at the father. This is to her credit, but it is noteworthy that she felt it appropriate to report the father for saying exactly the same word to her at (omitted) School. I suspect that the father did say it, but it is disingenuous of the mother to complain when she uses the same language.
54. Nonetheless, as I have indicated already, I accept the mother’s evidence that she wants the child to spend time with her father and encourages her to go. The difficulties she perceives in this situation are rooted in her own perceptions of her past experiences with the father, and there is no doubt that the reluctance and difficulty that X has demonstrated to spending time with her mother has its origins in her mother and grandmother’s resistance. Greatly to her credit, however, the mother has advanced to a point where she can contemplate the matter in a far more sanguine way, and X has made enormous progress with the assistance of (omitted) School and Ms L.
55. In a general way, I find the mother’s evidence to have been given honestly and her answers were generally direct and responsive.
56. I regret to say that the same cannot be said of the evidence of the father. Even in evidence-in-chief he impressed me as being rigid and obsessive. Under cross-examination, some of his answers suggested a quite staggering lack of insight. His assertion that there were no risks to X’s psychiatric or emotional development at this time almost beggars belief. That he should have such a view, despite the matters contained in Dr S’s report, and in the face of the mother’s evidence and the overall history of the matter, almost defies belief.
57. Similarly, this underlying belief that X should be moving over time to an equal time relationship (something he was adopting as his formal position as recently as the interviews with Dr S) once again suggest a self-focus and lack of proper understanding of where X is. Further, a number of his answers were unconvincing and non-responsive. By way of example only, I refer to his assertion that he did not fail to respond to emails from the mother, something that is palpably untrue in relation to the dental treatment issue.
58. It has to be said that not only did the father demonstrate all the qualities ascribed to him so clearly by Dr S, but he was simply not a good witness. I think that for him it is indeed all about winning. While he genuinely believes that the mother is seeking to alienate X from him (and there is historical evidence that he is correct in that assumption), his express determination to return to Court again and again until he gets what he wants shows an alarming lack of insight about the effects of litigation both on X and on her mother. It should be noted in passing, that the scope and cost of these proceedings (he said he has spent $50,000 legal fees) sits rather poorly with his professed impoverishment as a student.

Conclusion

103. This has been a very long journey for the parties and an even longer one for X. These Reasons for Judgment, regrettably, involve a measure of criticism of both parents. Rather than retreat into the trenches and bombarding each other with further insult and/or legal proceedings, the parties would foster X’s best interests far more effectively by trying to take on board the findings made about them by an independent third party, namely the judge, and to re-orientate their efforts to try and give X a life free of stress occasioned by their mutual dislike in which she can enjoy the love and affection that each of her parents so clearly have for her.