Children’s views and the nature of the children’s relationships

Children’s views and the nature of the children’s relationships

Mann & Irving

Children’s views and the nature of the children’s relationships

44. As noted at the outset of these Reasons, the children have a strong and loving relationship with both of their parents. Despite the parent’s difficulties with each other and each other’s style of parenting, neither the mother nor the father have denied the children the right to their relationship with the other parent.
45. The children’s views were recorded by Mr G as follows:
    1. In respect of X:

X perceived his mother as more concerned with supervision, stating his father lets him do “whatever I want”. Other differences between the parents were bedtimes – he said his father allows him to stay up till 10.30 but his mother tells him to go to bed at 9pm – as well as discipline – he stated that his mother “yells” while his father “explains.”

Regarding relatives, X said he loves them all, especially indicating strong attachments to both sets of grandparents…

Mr G reports asking X about any living preferences he might have. X replied with:

It would be good to share his weeks between the parents. Asked why,….replied it would be good because they would get more money.

2. In respect of Y:

Y was well aware of his parents’ arguments and said he wished they would stop and “get along”. He indicated that each person had said bad things about the other.

Y stated he enjoys spending time with his parents, grandparents and other relatives. He seemed to careful to not differentiate between the two families and stated a wish to live three days with one parent, followed by three days with the other. Asked why he preferred this to the current arrangements, she replied it would be fairer. Y said he would not like to live a full week about with either parent as he would miss the other one.

46. Z’s views were not sought nor discussed in the Family Report and the Court notes that she was just shy of being five years old at the time of the Family Report interviews.
47. The following observations of the children and the parents were recorded by Mr G:
    1. In respect of the interaction with the father

The children immediately went over, initiating hugs and kisses. Z said she had missed him. …the children demonstrated good rapport with the father and he sustained involvement with all three, sharing his time between them. Mr Irving spoke clearly and positively and the boys were happy conversing about their interests. …X and Y parted appropriately but Z found it difficult and clung to Mr Irving. He settled her down and got her to leave the room with her brothers.

2. In respect of the interaction with the mother:

They ran over and offered spontaneous greetings. Z cuddled her and for a time followed her mother around the room, before settling down to play….All three maintained a similar degree of conversation with Ms Mann that had been apparent with Mr Irving, and she seemed equally comfortable relating to them.

100. In respect of the interaction with the maternal grandparents:

When the maternal grandparents were introduced, little changed as they easily fitted into the interactions and were readily accepted by the children.

48. A dire warning was given to the parents during Mr G’s cross-examination, namely that if the parental conflict continued it would place too much pressure on the children to the extent that it will be more psychologically comfortable for them to take sides and choose only one parent.
49. Such an outcome would certainly not be in the children’s best interest as they would miss out on their rights to know and be cared for by both of their parents, and to spend time on a regular basis with both of their parents.
50. Although the views expressed by the children according to Mr G appear to reflect their attachments but because they are age-related perceptions of fairness and because the statements given in the interview were not always consistent, the Court does not place significant weight on those views.

The extent to which each of the parents has taken, or failed to take, the opportunity to participate in making long-term decisions, spend time with the child and communicate with the child and the parents obligations towards maintaining the child

51. The mother’s evidence is that the father was largely absent from the daily lives of the children during the parties’ relationship. She asserts that the father did not attend to feeding or changing the children when they were babies. She says that when the father commenced work in Adelaide in 2010 he would return to Sydney about once a month for between two days to a week at a time. She says that during this time he spent very little time with the children and that this was the reason behind many of their arguments. She says that she would beg him to be a father to the children.
52. The father was not present at the birth of the parties’ third child, Z.
53. The mother’s frustration with the father being absent from the children’s lives continued even after the father returned to Sydney following his employment in Adelaide. She says that he would spend large amounts of time away from the family and he showed no interest in the children’s activities such as soccer training and did not assist in their care. The mother concedes that the father did provide “some money” towards the running of the home.
54. Even after separation the frustration of both parents towards each other continued, and may even have intensified. An example of this was the issue of the children’s schooling, made all the more difficult by the parents disagreement and inability to come to a mutual position about the payment of the children’s school fees and the father’s ultimate failure to pay for such fees despite Court orders. Such dispute resulted in the Court making an order granting the mother sole parental responsibility for educational decision-making and the older children being taken out of the (omitted) College during 2016.
55. The father says that despite there being Court orders in place for the father to spend time with the child Z, the mother did not comply with the orders and instead would “dictate the times” he spent with her “at her discretion”. The father did not cross-examine the mother about such matters nor did he at any point in time bring any application which might have been of assistance to him in having the mother comply with the order, if indeed this is not something that she was doing.
56. The father has been unemployed throughout 2015 and 2016. He does not pay child support.
57. Furthermore the father has failed at the time of the final hearing to comply with a Court order to pay the mother’s costs in the sum of $2,730, being an order of the Court made on 14 March 2016.

Likely effect of any changes in the children’s circumstances; Practical difficulty and expenses of a child spending time with a parent

58. There will be some changes to the children’s lives once final orders are made. However, they will have more stability in their daily routines, while still being able to maintain strong relationships with both of their parents.
59. A continuing issue for the father, despite the orders made previously in this matter, was the education of the children. The children had previously attended (omitted) College (including at the time of the Family Report interviews), however at the time of hearing they were enrolled in the local public school near their mother’s residence.
60. X reported to Mr G that he found the (omitted) school a very strict place, claiming he got too much homework and that the teachers yelled at him. He did not mind the religious studies, finding them interesting.
61. The father stated in his Affidavit that he has “strong concerns and fear” for his children attending the local public school and much of his Affidavit went to the issue of the children attending (omitted) College for the remainder of their schooling. However, the issue regarding parental responsibility regarding issues of education was decided on a final basis by Judge Dunkley on 14 March 2016 where the mother was granted sole parental responsibility for this issue.
62. During cross-examination, the father conceded that it was appropriate for the children to remain at the local school and them to attend the local high school in due course, as long as they were all together.
63. The parents both live in suburban Sydney and no practical difficulty and expense has been identified in respect of the children spending time with either of the parents.

Maturity, sex, lifestyle and background of children and parents

64. The mother is currently employed albeit on a part-time basis, and works for a (omitted) company at (employer omitted).
65. The mother is of (omitted) background, and originally a (religion omitted)^[5] who after her marriage to the father converted to (religion omitted).
66. The father is of (omitted) background, and he is a (omitted).
67. The father is unemployed and lives at (omitted). To the Family Consultant he described his family relations as “awkward”.
68. The father is enrolled in a (omitted) degree which he commenced in 2009 although he is yet to finish.
69. The children are (religion omitted).

Capacity to provide for needs of the children, Attitudes to the children and Responsibilities of parenthood

70. There is significant dispute between the parents in relation to their respective capacities to provide for the needs of the children, both physical and emotional and their respective attitudes to not only the children, but also to the responsibilities of parenthood.
71. The father is what one might describe as a more relaxed parent. The mother is stricter and prefers to have routine and rules in place. The children have been navigating between the two households for some years now since separation, but not without some difficulty.
72. There were numerous incidents of disagreement mentioned in the parties’ evidence.
73. The mother is of the view that the father is an irresponsible parent.
74. The father is critical of the mother for example by saying “…when the children are in my care, they are anxious to receive lunch orders, as it is a treat not granted to them on any occasions by Ms Mann”.
75. The father says that he has attended to the children’s education “solely since the beginning of their education” and goes on to list a number of events he attended or assisted the children with regarding their education such as:
    In relation to Z education I have attended all major events since preschool solely. I attended her first day of day-care, Ms Mann did not attend.

 

I prepared Z for her intake exam at (omitted college) and she was awarded the Gold Prize. Ms Mann did not participate in her preparation.

 

I attended Z graduation from day-care. Ms Mann did not attend.

 

I attended Z first day at Kindergarten at (omitted) College, Ms Mann did not.

 

I prepared X for his HSIE exam.

 

I attended X’s school assembly in 2014 and 2015, Ms Mann did not.

 

I attended Y school assembly in 2015, Ms Mann did not.

(errors in original)

76. The father has concerns that the mother does not place a great deal of weight on the children’s education and deliberately does not advise the father that the children have homework when they are in his care. He says that the mother on a number of occasions has denied the children time to study or prepare of exams.
77. The children were also historically, on numerous occasions late to school or fully absent, during the days that they were spending time with their father. In his evidence, the father explains this issue as follows:
    The reasons X and Y missed out on school on the days they did, was either due to them being ill (and therefore a doctor’s certificate) or due to Ms Mann’s actions.

 

Whether Ms Mann was aware of her actions or unaware of her actions, in any case presents a major concern. Ms Mann’s actions prevented the boys from attending school. I have had to explain their absence because on most of these occasions she has done so on the days that I have them in my care. These situations have also occurred on days that I have helped her care for the children whilst she was at work.

78. The Court finds that both parents are capable and loving parents, despite their differences in parenting styles. They are both capable of meeting the children’s needs, although they have different strengths in meeting such needs.
79. The children will certainly benefit from having both of their parent’s continued involvement in their daily lives.

Allegations of Family Violence and relevant orders made

80. The mother makes a number of allegations of family violence against the father.
81. She says that she recalls that during the first couple of years prior to the birth of the parties’ first child, X, the father started being verbally abusive towards her. She said that she recalls the father calling her a “dumb cunt” and that he would threaten her with words to the effect of “I will kill you if you ever leave me” and “you deserve to be bashed”.
82. The mother says that she observed the father to have a short temper during their relationship and that he would throw furniture or break objects around the house. The mother recalls an occasion when the father broke the home telephone when the mother tried to call the police during a domestic argument with the father. The mother says that this behaviour would occur “at least once a fortnight but on some occasions once a week”.
83. The mother says that in 2006 the father would say words to the effect of “I will fucking put your head through the wall”, “you are a dumb whore” and “you ugly bitch”. The mother says that the father would often make these comments in the presence of the children.
84. The mother recounts an occasion when the parties were arguing in 2008 when the father swept his arm across a kitchen bench pushing groceries to the floor and his arm connecting with the mother’s face. The mother tried to leave the premises however says that the father pushed her back and grabbed her by the arms leaving bruising.
85. The mother says that following her advising the father that she wanted to separate on a final basis in April 2012 the father began harassing her on a more regular basis. She says the text messages were threatening and constant. It was following this that the father removed the two older children from their school and kept them at home with him for one week refusing them to see the mother.
86. The mother says that she agreed to move to the granny flat at the father’s parents’ home with the children in an attempt to lessen the likelihood of the father taking the children away from her again. She says the plan was for her and the children to live in the granny flat and for the father to live in the main house with his parents.
87. The mother says that the father’s behaviour escalated between June 2012 and September 2012. He would regularly abuse the mother and his own mother. The police were called on a number of occasions with the father being escorted by the police on one occasion. Following this, the father’s parents refused him to return to the property and the mother began living in the main house with the father’s parents and the children. Despite this the mother allowed the father to spend time with the children for a few hours per week. Thereafter the father returned to live at the granny flat.
88. The father again retained the two older children on 19 April 2013 when the mother had returned to live with her parents. It was this event that led the mother to file an urgent application with the Court which was heard on 12 July 2013.
89. On 1 May 2013 the mother attended (omitted) Police Station following the father becoming verbally abusive towards her where an Apprehended Domestic Violence Order was sought and granted on a final basis for 12 months on 2 September 2013 for the mother’s protection against the father.
90. The mother describes an incident where she was attending the father’s home to collect the youngest child, Z, from the father. She says that the father became enraged and pushed the mother with both hands on her shoulders in the direction of stairs. The mother managed to grab hold of the railing before falling down the stairs. The mother managed to get the child and at this time the father head butted the mother.
91. The father was cross-examined at some length about this incident. He denied the incident as described by the mother and particularly that he did not head-butt her or push her down the stairs. The father however considered that the mother should not have been at his home because these were private premises and as such she was trespassing when she came to pick up the child.
92. The Court is not able to make any findings about this particular incident which on either parent’s version is troubling, but particularly on the mother’s version.
93. A further Apprehended Domestic Violence Order was issued and became final on 6 August 2015 with the mother and the child, Z, being named as protected persons.
94. The father denies many of the assertions made by the mother. He says that the mother has fabricated allegations of abuse and violence against him to the police and to the Court in order to keep the children from him.
95. The father’s evidence, not only in his extremely lengthy and mostly irrelevant Affidavit, but also in his oral evidence given during the hearing takes a very strong view that the mother is not fearful of him, that he is not a person who exhibits anger or violent behaviour and that the allegations which the mother makes against him of family violence are fabrications.
96. The father says that “the mother has never experienced any abuse or violence throughout our relationship” the father says that he is a “calm person and I am patient”^[6]
97. The father was self-represented during the hearing. While the Court understands that the Court room may be an intimidating place, and that legal procedure may be difficult for those who are not trained in the law to understand, the level of poor behaviour, frustration and anger exhibited by the father during the entirety of the proceedings was a poor reflection of his ability to self-regulate and act appropriately.
98. An example of what occurred at the hearing was the following exchange between Counsel for the mother and the father during the cross-examination of the father:

Mr Siggins:
Just returning back to equal shared parental responsibility, if this is going to happen at all there has to be a way forward by which you can communicate with the mother in a civil manner, would you agree with that proposition?
Mr Irving:
No. I would think that if we move forward we establish, the mother can communicate with me. The SMS’s I’ve provided you have only seen maybe two or three that have been in that fashion but that’s after four years, five years of what she is doing to me. It’s taken that long to react like that. But all my other SMS’s and obviously time was against me, are all here four folders of them are all of different in nature, completely different. All of the ones I’ve shown you demonstrate- were they abusive? Were they aggressive? No they weren’t. They were descriptive, they were in detail, they were respectful. That’s how I am. But anyone pushed to a corner to the point where they are gonna and will and that’s what’s happened to me. She’s doing that strategically. I communicate with her on everything. Unless you can prove where and how show me.
Mr Siggins:
Mr Irving.
Mr Irving:
Mr Siggins, Mr Siggins. Very little.
Mr Siggins:
I’m asking the questions Mr Irving.
Mr Irving:
I’m helping the situation.
Mr Siggins:
No you’re not helping the situation, you’re not helping yourself frankly
Mr Irving:
…. SMS transcript from her provider, very little.
Judge Obradovic:
Mr Irving, Mr Siggins asks the questions, you answer the questions.
Mr Irving:
Sorry your Honour.
Judge Obradovic:
You will get the opportunity to answer all of these matters later on.
Mr Irving:
What? Do I?
Judge Obradovic:
Yes.
Mr Siggins:
I’ve explained that to you haven’t I?
Mr Irving:
Oh sorry, my apologies.
Judge Obradovic:
I said it to you at the beginning of the trial.
Mr Irving:
Ok. Yep. Too much to take in. So I can have a chance to reply to this?
Judge Obradovic:
Yes.
Mr Irving:
Please.
Judge Obradovic:
You were asking the father about communicating with the mother in a civil way and the father says no that’s not what needs to be done amongst other things.
Mr Siggins:
Now in your affidavit and in fact in your questioning of the mother during the course of today, what is your proposal then moving forward in respect of a way that you can communicate with her civilly?
Judge Obradovic:
Mr Irving. Mr Siggins can you ask that question in a way that’s not just directed to the father communicating with the mother in a civil manner? Perhaps both of them.
Mr Siggins:
Yes
Judge Obradovic:
I think that’s what Mr Irving is taking exception to. The underlying suggestion that he’s not being civil to the mother but she is being civil to him.
Mr Siggins:
Certainly Your Honour. Perhaps if I put it this way. Putting aside fault – who’s to blame in respect of communication between the both of you, what is your proposal moving forward as to how you will communicate with the mother starting with education?
Mr Irving:
I will continue to communicate with the mother as I have communicated with the mother over the many years in regards to not only the children’s education but in everything I’ve communicated with her. But you will agree, you would agree that on occasion and I would agree and I think it is actually human that on occasion when pushed and when provoked you will respond, and I’m sure you’ve done it, we’re all guilty of it in a way that you would not otherwise do. Those occasions Mr Siggins are rare, are rare. So rare that there is significant emotion. The way I’ve communicated with Ms Mann about the children is as I’ve shown you. I’ve continued to put aside the drama and the commotion and updated her with exams, fees in the most respectful of ways. I’ve got 24 hours I will provide you with all the evidence you need. But Mr Siggins it takes two to communicate. It takes two to communicate. It can’t help if I’m talking and I get no response how, how, how would I communicate.
Judge Obradovic:
Does that frustrate you when you don’t get a response?
Mr Irving:
It does.
Judge Obradovic:
And how are you going to deal with that frustration in the future?
Mr Irving:
I don’t know. I don’t know. I’m going to have to go see or maybe you guys can get intervention I don’t know. For example there are situations when there are breaches of court orders so much so that every week it happens three or four times to date. I’ve discussed it with her hundreds of times and I get no response. What do I do? What do I do? I’ve come to the Court. I’ve discussed it with the Court, they gave me intervention form, they gave me this, they gave me that, I’ve taken. I’ve sent her an SMS, I’ve said Ms Mann this is what’s happening blah blah blah. I don’t give a fuck. What do I do? What do I do when I’m provoked like that? I’ve made a concern to the Court about abuse to the children from the father directly, the court orders put in for the father to be the sole carer for the children and to date over the last three years has been three or four times a week. I addressed this concern about three years’ time. I’ve been addressing it for three years. And you want to ask me how I’m going to deal with the frustration. This is how I’m dealing with it. By coming to the Court by asking the court what can I do. And when I get out of the Court she does again and I go to the police and they say look we can’t interview you are talking about the Family Court the one with the most powers in the land and we have no jurisdiction. So when I’m in the Court the police can’t help. When I’m here, what can I do? It’s coming from there. I’ve approached it to the Court. Three years I’ve been trying to, have I been there once? Have I abused her once? Have I assaulted her once? No. Because I’m not that way inclined. But I’ve been talking about my concern about the children being abused for three years still. What have I done towards it? How have I reacted? That shows my colours. The worst thing I’ve said, you’re evil. Yes. Yes. When the children are being forced to be picked up and change their name, involved in conversations to change their names. They are just sitting there watching it. I call the police over and you pervert the course of justice and they send them away. Yet you’ve got all the evidence there. I’ve got a 58 minute recording of you admitting it. And then you come here and make out it’s not the case. That I’ve got some issues of anger and violence and abuse and you want me to be calm, I am calm.
Mr Siggins:
Do you call this calm sir?
Mr Irving:
No, now I’m not calm. You’re right, you’re asking me. I’m being reactive. You’re asking me and I’m showing you how it is to be me.
Mr Siggins:
And this is how you react whenever you are challenged by the mother isn’t it?
Mr Irving:
No.
Mr Siggins:
Whenever you’re challenged about.
Mr Irving:
No no no, you listen. Mr Siggins, Mr Siggins
Mr Siggins:
Whenever you are challenged about agreement of school about the disagreement of
Mr Irving:
Mr Siggins, your Honour. This is an assumption.
Mr Siggins:
This is how you .
Mr Irving:
Are you telling me how I react? You’re telling me?
Mr Siggins:
I’m putting it to you this is how you react isn’t it?
Mr Irving:
Yeah ok.
Mr Siggins:
This is also how you have reacted with other people as well isn’t it?
Mr Irving:
Is it?
Mr Siggins:
I call on the subpoena evidence of the New South Wales Police. In 2012 you had an altercation with your own father and police were called weren’t’ they?
Mr Irving:
No. Mr Siggins.
Mr Siggins:
Answer the question please sir.

Mr Irving:
Yes I did have an altercation with my father and the police were called and it was set up and coordinated by Ms Mann and the evidence is on my desk if you want to have a look at it.
Mr Siggins:
The mother is at fault on that one?
Mr Irving:
Yes she is. Yes she is. She said in her Affidavit and she said in the statement what? That we were living apart? Were we Ms Mann? Is that what happened? You tell the police? And what did I do? In your statement what did you say, you were calling them for what reason? Cause I told you to come and give me a kiss is that worthy of an assault? What’s the issue? What’s the issue there Mr Siggins?

99. Much of this evidence was given by the father in a very loud voice.
100. The Court having observed the father during the two days of final hearing is of the view that the father does at times fail to control his emotions and self-regulate. He certainly did not appear as a calm or patient person during much of the final hearing.
101. Family violence can take many different forms, as is for example, made clear by the definition contained in the Act.
102. Importantly from the Court’s perspective Mr G stated that during the assessment there was no indication of the children feeling apprehensive with the father, as one might expect if they had been affected by family violence. This evidence was further explained in cross-examination, when Mr G said that often one sees indicators in children of some negativity or apprehension towards the parent who is allegedly violent, not necessarily to them, but to their mother.
103. Despite the admissions of both parties in relation to their volatile relationship, and the parents’ hostile interactions, the children’s relationships with the parents have not been adversely affected because of this.
104. Importantly, the mother does not make any allegation that the father was violent, whether physically or verbally, towards the children. The fact that the parents are no longer together removes much of the circumstances which gave rise to the allegations of family violence, being the intimacy of the marriage relationship. The risks of family violence arising out of parental conflict are further reduced by the certainty of the orders including the allocation of parental responsibility.

Likelihood of further proceedings

105. These are final parenting proceedings.
106. The orders which the Court makes will give clarity and certainty to the parents about their responsibilities to the children and their time with the children.