by Ilsa Evans
‘Affirmation please.’
As soon as Maddie was sworn in, the clerk returned to her computer, leaving Maddie to gaze up at the magistrate. Close up his skin was pasty, with pallid jowls that looked almost canine.
‘Is it Mrs Hampton?’
‘I prefer Ms McCourt,’ replied Maddie, surprised to hear her voice emerge relatively even. ‘Your Honour.’
‘Which is the surname you adopted when you left six years ago?’
‘Yes.’
‘And herein lies my problem.’ He gazed at her levelly for a few moments. ‘I have no real evidence here to support your claims of domestic abuse. Clearly there was aggressive behaviour occurring, but the affidavits before me suggest it was coming from both sides.’
‘No.’ Maddie shook her head. She grasped for words, the importance of which were heightened by the knowledge that this was her chance, perhaps her only chance, to convince the magistrate that she was right and Jake was wrong. She glanced towards the public seating and caught Hannah’s eye, who immediately smiled encouragingly. Maddie looked back towards the bench. ‘I was abused throughout my entire marriage. And when I finally left it only got worse.’
‘But it states in your husband’s affidavit that you both continued an intimate relationship after you left the marital home. That for quite some time, until you took the children, he regularly stayed over at your home and vice versa. Is that not correct?’
A half-smile that turned his eyes into crinkled crescents. One eyebrow lifting just slightly in an age-old question. Your Husband. Maddie blinked. ‘No, I mean yes, that’s correct. But I thought that maybe we could make things work. That the abuse would stop.’
‘How many times in total had you left the relationship?’
‘Ah, three. No, four. Including the last time.’
The magistrate closed his eyes briefly, as if tired. ‘So with this history in mind, and if the violence was escalating during this last separation, as you claim, then why didn’t you simply discontinue the relationship? Or seek help? Or even, for your children’s sake, reach out to the school counsellor who clearly had serious concerns?’
‘Because . . .’ Maddie paused, searching frantically for some way of describing how things had been. The fear, the love, the misplaced loyalty. The sticks and stones. She rubbed her arm fiercely as she looked back over towards the gallery, meaning to catch Hannah’s eye again but instead catching Jake’s. And instantly the ideas, the words that were trying to evolve into cogency shrivelled like burnt offerings, leaving only ashes in their wake. And she swallowed painfully as she continued to stare, now desperately willing him to wink or grin or something, so that the magistrate would realise how things were. Without her having to say a word.
‘Ms McCourt?’
Maddie snapped her head around and knew, from the look on his face, that her time was rapidly running out. She cast around, hauling in the first words that came near. ‘I know I’m not explaining things very well but it wasn’t like that. Easily explainable, I mean. And the further away I get, the less easy it is to explain. Even to myself.’
‘Would you say, though, that your children have suffered any ill effects in the past six years from not seeing their father?’
‘No,’ replied Maddie clearly, sure at least of this. She kept her eyes on the magistrate and away from the gallery. ‘That is to say, the positives outweighed the negatives. By a lot.’
‘Ms McCourt, we now have a rebuttable presumption of shared care in this country,’ the magistrate spoke slowly, almost kindly. ‘Had you followed through with your original hearing you would have been able to argue against such a presumption in your case if you so chose. However with your subsequent actions, you chose to bypass this, and by doing so –’
‘I only did it because –’
‘Please,’ the magistrate’s voice tightened with annoyance. ‘Do not interrupt me. How are you going to follow what I am saying if you interrupt me?’ He paused for emphasis as Maddie reddened, mortified. ‘As I was saying, by doing so you denied your ex-husband even the right of reply to your allegations. And you also denied your children their right in law to ongoing contact with their father. If I am to even come close to understanding your actions, I am going to need some sort of explanation that makes sense.’
Maddie stared at him and now dread began to nibble within. She pushed it down and made one last effort to find those magic words. Taking a deep breath. ‘I fully understand that what I did seems extreme, but for that reason alone you must realise that I only did it because I had no choice. He. Beat. Me. It wasn’t going to ever stop, and there was nothing I could have done. So it wasn’t out of vengeance, or spite, or bloody-mindedness. I did it out of fear. Fear for me, fear for my kids. And my only regret, now, is that it was necessary at all.’ Maddie shook her head slowly, maintaining eye contact. ‘Not that I did it.’
There was a snort from the gallery and Maddie glanced over. Dana glared back with implacable dislike. Next to her, auburn hair pulled back, was Natalie. Just part of the family.
‘Thank you,’ said the magistrate crossly towards the public seating. He turned back to Maddie. ‘And thank you, Ms McCourt, that will be all.’
Now words crowded themselves into her mind, hundreds of them, tumbling over each other in their haste. But still not making sense. Just snippets from those years, swimming in a quagmire of feelings, emotions, reactions. Maddie closed her eyes, willing them to form sentences. Convincing, coherent, concise sentences.
‘Ms McCourt? This way please.’
Maddie opened her eyes and the clerk was standing before her. She took a deep breath and then walked slowly, deliberately, making sure she kept her head high and her gaze forward. Edging along the row, finding her seat, and sinking into it with equal parts relief and regret, her stomach empty yet full at the same time.
The magistrate shuffled through his papers and started reading silently. Both Diana and Mr Redman followed suit, as if this was de rigueur. When he finally looked up it was straight at the large lawyer, who immediately rose. ‘I’m reading here the affidavit from the children’s former principal, which I assume was obtained for the original hearing?’
‘Yes, Your Honour,’ Mr Redman nodded. ‘My client kept the documentation in anticipation that another hearing would eventuate at some stage.’ He paused with a wry smile, leaving enough space for a tacit six years, and then simply sighed, rather than continue.
The magistrate seemed unimpressed by the performance. ‘My reading of this is that there were no problems at school pre-separation, but that after this date there were ongoing issues.’
Diana stood. ‘That is correct, Your Honour. However, the decline in the children’s behaviour corresponded with the escalation of violence post-separation.’
‘If, as your client claims, the entire marriage was abusive, then one would expect problems with the children to have arisen somewhat earlier. And that also doesn’t explain why the mother didn’t follow through with the school counsellor’s suggestion to discuss Max’s behaviour. In fact, the counsellor describes the mother’s response as,’ the magistrate paused as he found the right part, ‘ “defensive and rather obstructive”.’
Maddie turned to look helplessly at Hannah. In her face she could see, quite clearly, how badly this was going.
‘Your Honour,’ said Mr Redman, standing once more. ‘My client is of the opinion that his wife absconded primarily to avoid shared care. That once she discovered the upcoming hearing was unlikely to award her full residency, she decided to circumvent the decision.’
Diana objected, at last. ‘That’s not true, Your Honour.’
‘And even now she is having some difficulty with the fact the children are living with my client. To the point that she made the boy Max ring her each night until his mobile phone ran out of charge. And the day that she got served for this hearing, she used the boy’s phone to contact my client and then verbally abuse him in front of the children.’
Di
ana twisted around and spoke in a low, hissed voice. ‘What happened?’
‘Nothing of the sort,’ said Maddie angrily. ‘That is, sure I rang him. But only because I was shocked, that’s all. There was no verbal abuse, except from him.’
‘With respect to my learned friend here, that is a complete exaggeration.’ Diana was facing the magistrate once more. ‘And my client states that the father in fact abused her. And, Your Honour, that appears to be the difficulty with much of these affidavits,’ she gestured dismissively at the file. ‘A kernel of truth that is then blown out of all proportion.’
‘Some things are already out of all proportion,’ commented the magistrate dryly. ‘Such as the father being denied access to his children for six years.’
Mr Redman bobbed back up, adjusting his trousers as he spoke. ‘May we put forward our proposal, Your Honour?’ He waited for the magistrate to incline his head. ‘My client proposes that the children, Max and Courtney, live with him from now until the hearing for the final orders. This will give him a chance to enhance his bond with the children, who have already been with him for the past two weeks and have shown no signs of wanting to be returned to the mother. My client further proposes that the mother have supervised access every weekend for the first eight weeks and then unsupervised after that. This is largely due to her proven flight risk. The father is concerned that if she is given unsupervised access immediately, then she will convince the children to leave with her. Again.’
Diana jumped up. ‘Your Honour, we strenuously reject this proposal. Whatever her motives six years ago, there is no argument that my client has had sole care of both children for the past six years. She is all they have known. And Your Honour has several affidavits before you stating that they are well-adjusted children who are settled in their home town of Badgerton. This needs to be about the best interests of the children, not the father. To uproot them at this time would be injurious to their wellbeing.’
The magistrate held up his hand, as if Diana was overreacting. He turned back to Jake’s lawyer. ‘Mr Redman, I would be extremely loathe to award supervised access in this case. There is no evidence that the mother was abusive in any way towards the children.’
‘We hold that by removing them six years ago, she was abusive.’ Mr Redman spoke quickly, nodding every so often to speed the words along. ‘That these actions resulted in a clear case of parental alienation, where my client was alienated from the children’s affection through his forced absence from their lives. And that by positioning herself as the sole provider, the mother fostered an unnatural alignment with herself. And I refer Your Honour to Calvert vs Calvert, where Justice Altobelli performed an excellent summary of the issues surrounding alienation of children. And also to such papers as Lodge 1998 and Gardner 1992 and 1998, which state that parental alienation is in itself an emotionally abusive process. And that,’ he paused for a moment as he lifted a sheaf of papers and began reading, ‘ “the overall goal of interventions should emphasise and be guided by the restoration of contact as the primary objective”.’
‘May I see those?’ the magistrate nodded towards the clerk who fetched the sheaf from Mr Redman and passed them up. Maddie closed her eyes for a moment so that she wouldn’t see him reading. Parental alienation – the very words brought with them a liquid surge of resentment.
‘Thank you, Mr Redman,’ said the magistrate, putting the papers to one side. He flicked his eyes over to Diana. ‘Ms Le Gassick? What is your proposal?’
‘Well, firstly we reject any suggestion of parental alienation and urge Your Honour to look at the facts here, and not the hyperbole. Our proposal takes note of the father’s desire for contact while still acknowledging that the children have been living with the mother for six years and are extremely settled. We propose that the father now have supervised contact due to his prior history of violence. To be reassessed at the final hearing and, in the meantime, for the father to undertake both an anger-management course and a post-separation parenting course. My client is also willing to attend the latter.’
‘Good of her,’ said the magistrate. He turned back to Jake’s lawyer. ‘Mr Redman, would your proposal involve the children changing schools?’
‘No, Your Honour. My client acknowledges that the children are currently established at their school and therefore he would prefer them to remain there. At least in the short term. In order to achieve this, he is prepared to move to the locality himself.’
Maddie stared at the lawyer’s back, aghast. She closed her eyes, willing something to change, but when she opened them again he was still there, and he was still talking.
‘In fact my client has already located a rental home in Silver’s Creek, which involves a similar bus ride to the secondary school as the mother’s home. He has a high degree of flexibility as he runs his own accountancy business. However, my client would like allowance made for the possibility it may be in the children’s best interest to change schools at some stage in the future. It seems that their current school does not have a very high ranking for academic results and both children are rather ambitious in that regard. I have the VCE ranking from last year if Your Honour cares to . . .’ Mr Redman held up a sheet of paper but the magistrate shook his head. ‘My client is prepared to be governed by the wishes of his children but would like, at some stage, to offer private schooling. Max, in particular, may wish to avail himself of this offer as he is not overly happy at his current school. And my client is aware that the mother is in no position to contribute to such costs and is therefore prepared to shoulder the entire financial responsibility himself.’
Maddie felt Hannah staring at her but wouldn’t, couldn’t, meet her eyes. There were so many things wrong with the proposal that she simply couldn’t absorb it, not in its entirety. The magistrate’s eyes flicked from Mr Redman to the row behind Maddie, and she knew he was impressed. She reached forward, desperately, and tapped Diana on the shoulder, whispering fiercely, ‘You can’t let him do this. You just can’t. And Max is happy.’
‘Your Honour,’ Diana straightened and spoke briskly, ‘the principal at their current school makes no mention of Max being unhappy there.’
‘It is not at all unusual for school principals to be unaware of the complexity of individual students. Especially in public schools as large as this one.’ Mr Redman paused and nodded at the magistrate. ‘Fifteen hundred students. Two hundred and fifty in Max’s year level alone.’
‘Hmm.’ The magistrate flicked through the file. ‘I note that the issue of the children’s schooling is one of the factual issues laid out by the independent children’s lawyer as requiring determination by me. Mr Washington, did you have anything to add?’
The older man bobbed up slightly. ‘No, Your Honour. Not at this stage.’
‘Mr Redman? Ms Le Gassick?’
‘We believe that the facts speak for themselves here, Your Honour.’ Mr Redman stood stiffly. ‘And would just like to add that the mother works relatively long hours and the children are home by themselves for a considerable time every afternoon. The father, on the other hand, works from home. Which leaves us with the necessity of them maintaining contact with both parents, an undertaking that the mother has shown herself incapable of performing. My client, however, is a loving father who is devoted to his children and is quite prepared to put their needs first. As shown by his willingness to relocate.’
Diana was already rising as the large lawyer sat. ‘Your Honour, it is precisely because she is able to put the children’s needs first that my client fled six years ago. The father is a domestic abuser whose violence escalated after separation to the point where my client feared for her life and the lives of her children. Since then they have lived a settled life in the country and both children are now well adjusted and very close to their mother.’
The magistrate waited for a moment, as if expecting Diana to continue. ‘Thank you.’ He cleared his throat and then peered down, reading. For a while the only sound in the room
was the gentle whoosh of papers sliding over each other but then a low conversation began in the row behind. Maddie didn’t bother straining to hear, she simply didn’t care.
‘Is that it?’ Hannah leant over, speaking hoarsely. ‘Do you think that’s it?’
Maddie nodded, not trusting herself to speak. She rubbed her arm and then looked down at the silky sage, now a mess of corrugated creases. Behind her the word ‘bitch’ came again quite clearly and Maddie had the sudden urge to turn and start throwing punches. First into Dana’s face, and then Frank’s, and maybe Natalie’s just for good measure. She pictured their expressions, stunned disbelief imploding with the splattering of blood. See how they liked it.
The magistrate cleared his throat again. ‘In this matter, there are competing applications by the parents for orders in relation to the care of their two children, Max aged fourteen years and Courtney aged twelve years. Both seek orders for sole parental responsibility and limited, supervised time with the other parent. Both have also claimed family violence.’ The magistrate suddenly paused and looked across at Maddie, quite deliberately. ‘Now, the applicable law in this case states that children have the right to know and be cared for by both their parents, regardless of whether they are together or not. With a consideration being the willingness of each parent to encourage a continuing relationship between the child and the other parent. Which brings us to the mother’s claim that family violence was the reason she absconded six years ago.’
Maddie took a deep breath and let it out slowly, so that the sigh puffed her bottom lip.
‘I have strong reservations about the mother’s story. She admits to having maintained an intimate relationship with the father after she left the marital home. These circumstances are hardly demonstrative of fear and apprehension on the part of the mother. Her actions, if indeed the victim of severe and ongoing abuse, defy common sense. I note there is no significant corroborating evidence and there is, indeed, some evidence that she herself was violent. It appears likely that the father’s version of events is closer to the truth, in that separation put pressure on an already volatile relationship.’