Anelli and Sault
[2018] FamCA 80
•20 February 2018
FAMILY COURT OF AUSTRALIA
| ANELLI & SAULT | [2018] FamCA 80 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Senior Registrar – Review of decision FAMILY LAW – CHILDREN – Parenting Orders – application for an interim order for equal shared parental responsibility |
| APPLICANT: | Mr Anelli |
| RESPONDENT: | Ms Sault |
| INTERVENOR: |
| INDEPENDENT CHILDREN’S LAWYER: | Ms M Pandeli |
| FILE NUMBER: | MLC | 9855 | of | 2016 |
| DATE DELIVERED: | 20 February 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 5 September 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In Person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Ms Jenkinson |
| SOLICITOR FOR THE RESPONDENT: | Trapski Family Law |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Barbayannis Lawyers |
Orders
That the father’s application in a case filed 17 July 2017, being a review of the decision of the Senior Registrar made on 16 May 2017, be and is hereby dismissed, NOTING THAT the result is that until further order the father has no enforceable or other entitlement to spend time with or communicate with the children, B born … 2006 and C born … 2007.
Any party who proposes to undergo a psychiatric or psychological assessment by a single expert witness (as agreed) for the purpose of this proceeding be at liberty to provide the said expert with a copy of any documents in this proceeding including but not limited to the assessments and reports prepared by family consultants or other experts.
Until further order, the parties be and are hereby restrained from making any complaint to a professional body or association concerning the conduct of any Single Expert engaged for the purpose of this proceeding, or causing, permitting or suffering any other person to do so, without first obtaining leave of the Court and this injunction remain in full force and effect following completion of the proceedings.
The parties (or any of them) be permitted to rely on the documents and evidence in this proceeding, extant orders and these reasons for decision in any proceedings between the mother and the father or Victoria Police, and the mother or the father under State family violence legislation.
Any party wishing to make an application for costs may do so by filing and serving a submission in writing, of not more than four pages in length, within 14 days.
That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Anelli & Sault has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 9855 of 2016
| Mr Anelli |
Applicant
And
| Ms Sault |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
Introduction
This parenting matter concerns B, who was 11 years old and C, who is 10 years old and comes before me on the father’s application in a case filed 17 July 2017, in which he seeks that a decision made by Senior Registrar Fitzgibbon made on 16 May 2017 be reviewed. It was heard by me on 5 September 2017 and regret the delay in delivering my decision and reasons.
On 16 May 2017, the Senior Registrar made orders which suspended any face to face time between the father and the children, dismissed all interim applications and permitted the parties (or any of them) to make an application to the case management judge for priority for final hearing. By the time of the hearing before me, no party had made application for an expedited hearing. The proceedings are in the list of cases awaiting allocation to a judicial docket, without priority.
The father applies to review the exercise by the Senior Registrar of delegated judicial power. The procedure is that I hear the father’ application for review as an original hearing of the parties’ applications from the beginning rather than to examine how the Senior Registrar exercised his power[1]. The father’s application does not operate as a stay of the Senior Registrar’s order[2].
[1] Rule 18.10 (1)FLR
[2] Rule 18.09(1) FLR
Having taken into account the evidence of the parties and having the benefit of well-reasoned reports of two family consultants who assessed the children in February, March and May 2017, I have come to the view that it is not currently in the children’s best interests to spend time or live with the father or communicate with him in any way. For reasons which will appear below, the father’s review application should be dismissed.
The applications
The father’s original application was filed on 18 October 2016 and the mother’s response was filed on 22 November 2016. However, at the hearing before the Senior Registrar both parents sought orders at variance with their filed applications. The father now seeks orders which are different from those he sought in his original application and before the Senior Registrar. The mother and independent children’s lawyer seek to uphold the orders of the Senior Registrar, that is that there be no time or communication pending a final determination of the parenting case when all relevant evidence will be before the Court.
The father seeks that, in place of orders then made by the Senior Registrar, there be other parenting orders set out at pages 4, 5 and 6 of his application in a case, as follows:
1.The mother and father have equal shared parental responsibility for the long term care welfare education and development of the children.
2.The children live with the mother.
3.That the mother and father have equal shared parental responsibility for making decisions about the day to day care, welfare and development of the children during the periods when the children are living with or having face to face contact with them as a result of any residence or face to face contact Orders or otherwise by agreement between the parties.
4.Times
a. Initially for the first 4 weeks, three (3) hours every Saturday at 2.00pm to 5.00pm with changeover to occur at [Suburb D] Police Station car park, starting Saturday 23 September 2017;
b. After the initial first 4 weeks, fortnightly for a period of 4 weeks, Saturday 2.00pm to Sunday 5.00pm with changeover to occur at [Suburb D] Police Station car park, starting Saturday 21 October 2017;
c. After (a) and (b) as above, fortnightly, Friday 5.00pm to Sunday 5.00pm with changeover to occur at [Suburb D] Police Station car park, starting Friday 17 November 2017;
d. Telephone or Facetime calls with the mother for up to 30 minutes each overnight visit at a mutually agreed time, with the father to initiate the call between 6pm and 7pm;
e. The children are at liberty to contact the mother by telephone at any time they are spending time with the father;
f. That the children spend Mother’s Day/Father’s Day with that parent from 12 – 4pm, if in the care of the other parent;
g. The father and his partner may send the children, or either of them, a card with photographs, or gifts, through the mother and have knowledge of her postal address.
h. The father may pick up/drop off the children, or either of them to extracurricular activities or appointments upon request of the mother at least 24 hours prior;
i. The mother will collect/drop off children from a children’s contact centre [E], … as soon as practicable;
j. When changeovers may not take place at the abovementioned children’s contact centre, the children will be picked up/dropped off at the Suburb D Police station and will take place between parents, and the children are to walk between the cars;
k. That the father/ or the father’s nominee may collect/drop off the children as specified in the previous children’s orders;
l. One week during the Christmas school holidays each year commencing at 10am on the first Saturday in January;
m. The children spend time with the father every year from 11.00am to 4.00pm on Christmas eve 24 December, commencing in 2017;
n. On the children’s birthdays each year from 11.00 am to 3.00 pm (4 hours if non-school day / weekend) where such birthday falls on a non-school day/weekend or 5.00pm to 8.00pm (3hours if school day) where such birthday falls on a school day;
o. The children spend a minimum of 2 hours on the fathers, grandfathers and half siblings/s birthdays (4 hours if non-school day / weekend) where such birthday falls on a non-school day/weekend or 6.00pm to 8.00pm (2 hours if school day) where such birthday falls on a school day;
p. The children are at liberty to contact the father by telephone at any time.
5.The mother and father immediately complete all necessary forms and attend intake interviews to enable the change over where applicable at the children’s contact centre E, …. The cost of the children’s contact centre is to be shared equally between the mother and the father.
6.Communication
a. The parents will communicate about issues concerning the children through phone via SMS text message only;
b. SMS text messages send by either parent will be respectful;
c. If either parent changes their contact telephone number or address they must notify the other within 24 hours of that change; and to be given to the children’s school/day care and any medical professional treating the children;
d. The school/day care or medical professional is authorised to speak with either parent about the children’s health, education, development and welfare.
7.That the mother/father, her/his servants or agents, be and are hereby restrained by injunction from abusing, belittling, rebuking or otherwise denigrating the father and/or partner to or in the presence or hearing of the children, and from permitting anyone else to do so.
8.That the father be restrained from:-
a. Spending time with the children at any time at or within 200 metres of the mother’s home or at any place in her presence;
b. Spending time with the children at any time at or within 200 metres of the children’s school;
c. Spending time with the children outside the times in these orders unless notified by mother by text 24 hours prior;
d. Having anyone other than the father communicate with the mother regarding the children via text message or otherwise;
e. Seeking any financial support from the mother.
9.Any other or further Orders as deemed appropriate by this Honourable Court.
The father handed up a written submission dated 5 September 2017 (Exhibit “F1”) to which I have regard in addition to his oral submissions before me. It reads:-
• As you can see I have been trying with the mothers’ solicitor to develop opportunities for the matter to reach an agreed outcome which best promotes the child’s interests.
• The children have a fundamental, emotional need to have a relationship with their father just as they do with their mother. For this common reason, I have applied for orders to allow the mother to have contact with the children over the phone while they are in my care. I refer to Ridgely & Stiller [2014] FCCA 2668.
• I wish to have a more active role in the children’s education and seek orders to allow for me to have knowledge of the children’s school and to be provided with school reports and attend parent teacher interviews as in Aldrich & Bingley [2014] FamCA 516.
• I have concerns of the mothers’ mental stability after learning about the mothers’ diagnosed depression. I therefore seek a review of previous interim orders that the mother provide the father with a report from a nominated psychiatrist to confirm that the mother’s mental health does not adversely affect her capacity to parent the children as in Isaac & Isaac [2013] FCCA 136.
• I seek an injunction that I will not go near the mother in my interim orders sought as per s114 fo the family law act.
• I seek review and re assessment to the privilege of substantial time with the children under 65DAA Family Law Act. Confirmed in Goode v Goode [2006] FamCA 1346.
• Your honour, how can we reach an agreed settlement in our parenting disputes that is in the best interest of the children when she refuses to have any correspondence with me on the issue?
• I miss [B] and [C] deeply and just want to have a role in their lives. I have not done anything wrong by them and cannot understand why the mother is being so unreasonable and hostile towards me when I have not even spoke to her in years.
• Your honour, please make orders that would best promote [B] and [C’s] interests while allowing me to have a meaningful and significant role in their lives.
The parties
The father is aged 48 years. The father does not work outside the home. He is a carer for his father who is 87 or 88 years old. The other members of the father’s household are his father, Ms F and their daughter, G.
The applicant father appears in person.
The mother is aged 40 and is employed as a public servant. She resides at an undisclosed address with her partner of five years and the children who are the subject of this application.
Ms Jenkinson of counsel appeared on behalf of the mother, who attended Court with her current partner.
Ms Pandeli, solicitor, appeared as the independent children's lawyer.
Pursuant to an order made on 23 November 2016, Ms Pandeli, solicitor, was appointed as the independent children’s lawyer for B and C within the meaning of Division 10 of Part VII of the Act. Her role is to form an independent view, based on available evidence, of what is in the best interests of the children and then act in these proceedings in what she believes those best interests to be.[3] Ms Pandeli is not a legal representative retained by B and C and she is not bound by any instructions from them.[4] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the children are fully put before the Court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the Court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for each of the children the trauma associated with proceedings[5] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[6]
[3] Family Law Act 1975 (Cth) s 68LA(2).
[4] Family Law Act 1975 (Cth) s 68LA(4).
[5] Family Law Act 1975 (Cth) s 68LA(5)(d).
[6] Family Law Act 1975 (Cth) s 68LA(5)(e).
The father says that he is dyslexic and he sought the assistance of case guardian. I did not allow that application. The father admits that he is able to formulate a case and to conduct the proceedings on his own behalf. He led no evidence nor gave any indication that he is unable to understand the nature and possible consequences of the proceedings. That is, he is not a person under a disability or impairment as to judgement as contemplated by Chapter 6 - Part 6.3 of the Family Law Rules 2004.
The father sought that his partner, Ms F, be a McKenzie friend within the meaning of McKenzie v McKenzie (1970) 3 W.L.R. 472 and R v Bow County Court; Ex Parte Pelling [1999] 4 ALL ER 751. That is, a legally unqualified person who may, with the permission of the Court, support and assist a litigant in Court. I explained that would, if granted, entail Ms F sitting quietly next to the father so as to be available to do such things as pass documents to him when he needed them, but not permitting her to cross‑examine any witness on his behalf nor make submissions to the Court.
Ms F was not in a position to fulfil the role of McKenzie friend because she and the father had brought their young child, G, to Court. The infant needed Ms F’s constant attention and, at times, was required to be taken out of the courtroom because the noise made by the child was interfering with the accurate transcription of proceedings.
Evidence
For these proceedings, the father relied upon affidavits which were sworn by him on 13 December 2016, 15 May 2017, 17 July 2017 and 4 September 2017. None of the affidavits were sworn with a jurat clause reflecting the fact that the father had been unable to read the content of the affidavits, due to his dyslexia. However, from the bar table he confirmed that each and every word of the affidavits had been read over to him before they had been sworn, and that the contents were true and correct.
The mother relies upon her affidavits sworn on 22 November 2016 and 15 May 2017.
I can have regard to the transcript of the hearing before the Senior Registrar[7] but no party referred me to transcript. There appears to be draft reasons for decision from the Senior Registrar on the Court file but I have not read them.
[7] Rule 18.10(2)(c)
On 22 November 2016, the Department of Health and Human Services (“DHHS”) prepared s 67Z report as a consequence of a Notice of Risk (Form 4) having been filed by the father in these proceedings. DHHS provided some detail of the alleged risk posed by the mother to the children:
It was alleged that the mother “is often emotionally and psychologically violent toward the children, primarily in relation towards the father and his continuing access with them. It was alleged that the mother has been physically abusive to the father in the past, the incidents often occurring while she has been drinking, and she has threatened to have the father killed as well. There are also concerns that the mother – that the children are being hit by the mother and maternal grandparents, and that they have sustained bruises to their bodies as a result of the abusive. However, the children have not disclosed how they came to have these injuries when asked about them.
The report goes on to note that:
The children appear to have a history with Child Protection in reports made between 2010 and 2011.
The first report was made in 2010 regarding an incident of family violence between the mother and father, with both parties affected by alcohol. Police attended but did not have any concerns, and a letter was sent to the mother in regards to supports she could contact. The report was closed at Intake. The last report was made in 2011 and was subject to an investigation. However this did not relate to concerns directly involving [B] and [C], but rather an older half sibling.
Exhibit “F2” was part of a DHHS case note referrable to a notification which was investigated from 15 March 2011 to 18 April 2011 and related to a child, H. The case not refers to domestic violence between the mother and father and records that the mother “on one occasion being emotionally unstable to the point of self-harm – cutting her wrist three times”.
The s67Z response from DHHS dated 22 November 2016 concludes that:
it has been assessed that the reported information does not suggest that the children are currently at risk of significant harm to warrant further Child Protection involvement at this time, and the report will be closing at intake. The allegations regarding physical abuse by the mother could not be substantiated, and the children have not made any disclosures that would suggest they are at ongoing risk of physical harm. A number of issues identified appear to be related to ongoing conflict between the mother and father, with references to historical family violence, but no information to suggest this is current. Child Protection have not received a report for the children in a number of years, with the children’s school able to monitor, but not raising any concerns for their safety or well-being with either parent. It is Child Protection’s current assessment that future care and contact arrangements are best formalised through the Family Law Court process.
I have also had regard to a Parent and Children’s Issues Assessment dated 28 February 2017 by Ms J, family consultant and a s11F Assessment by Ms K, senior family consultant, dated 12 May 2017.
Ms K gave oral evidence before me and was cross examined. Her evidence is transcribed.
I am mindful that not all of the evidence has been tested by cross-examination and my ability to make findings on contested issues is limited. I take the untested evidence into account and where it is plausible I give it weight as evidence which has not been fully tested. There is a strong internal consistency to the two s11F assessments. The father did not quibble with the descriptions of poor behaviour by him to, or in front of, the family consultants. The apparently objective quality of each s11F assessment and the absence of competing evidence gives me confidence about the accuracy of them. However, I appreciate that, at this interim stage, there may well be more and different evidence to come. The parties have not put on all of their evidence, the parties might be psychiatrically assessed, the father may attend the behaviour change programs and there may be more developments in the case before it gets to final hearing. To the extent that I have expressed views that appear to be concluded views or findings, they are findings and views to which I have come only for the purposes of this interim determination and would stand to be reconsidered by me subsequently based on other evidence, argument and submissions.
Proof and findings of fact
Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
A statement of fact is a finding of fact.
Background
The mother and father commenced a relationship in 2004 and separated in August 2007. The two children of their relationship are B, born in 2006, and C, born in 2007. Accordingly, when the parents separated, B was scarcely one year of age and C had just been born.
The parents never lived together on a permanent basis.
It is asserted by Mr Anelli that approximately ten years ago, that is in 2007, the mother made a comment about his mother, which made him angry, and, as a result of that, he had tattooed on his left forearm the words:-
[Ms Sault is a big whore]
which the father confirmed refers to the mother by name and that she is “a big whore” or “moll”. It is a large tattoo in script. The father was reluctant to explain the content of the tattoo to me. When pressed, he said
“it’s not nice”,
“it says that she is not a good Mum”,
“it means that she is “a big moll”,
“a very unkind person”.
I am satisfied that the words are, as the father admitted, a reference to the mother being a whore. It is a traditional Italian insult, quite venomous in nature. He said that he has never repeated what the tattoo says aloud and would never do so. I make no finding in that regard.
The father’s responses to me differed to what he said to the senior family consultant, Ms K, in May 2017. Ms K recorded that:
18. […][Mr Anelli’s] level of cooperation with the process fluctuated as did his levels of anger and sarcasm. This created a tense atmosphere. Some responses were glib or deliberately evasive, particularly when his conduct was scrutinised. For example when asked about how he came to acquire the tattoo on his arm he was quick to anger and offered “I have no idea how it got there” adding “Go on, write that down, next question.” At other times, particularly with the pacifying effect of [Ms F], Mr Anelli engaged well.
I am satisfied that the children know of the tattoo and that it deliberately advertises to the children and all and sundry what he thinks of the mother. It is known, presumably, to other members of the father’s family and any friends, with whom the father would have the children mix and commune when in his care. My preliminary impression is that the father has locked himself into this derogatory and grossly disrespectful view of the mother and remains committed to that view.
In relation to the children, I accept the evidence of the senior family consultant[8] that:-
I guess that the tattoo is some kind of – for the children is some kind of representation of how their father feels about their mother. I think what the – what that does is that it reinforces for them what their mother is saying about their father, and it reinforces for them what they say and – and potentially believe in relation to their father. So it acts as a very – it has a very galvanising effect on the children. I think that kind of – you know, contemptuous comment about someone who the children love dearly and
are very close to – I think when the children are confronted with that kind of commentary about one of the most important people in their lives, I think what that does is not only, you know, at a very sort of basic level makes them feel very sad and conflicted: it also acts to encourage them to reject him even further.
[8]Transcript of evidence of Ms K, 5 September 2017, pp 16 and 17
The husband’s mother disappeared not too long after he got the tattoo. It appears from the documents that the paternal grandmother’s body was found in late 2009. No findings were made as to who was responsible for the paternal grandmother’s death and it remains an open homicide case following a coronial inquest. The Coroner’s report stated:
The police conducted a thorough investigation with a focus on the [father’s father] and his son [the father], but to date no charges have been laid against anybody.
In May 2009, orders were made in the Federal Magistrates Court which provided for the children to live with the mother, for the mother to have sole parental responsibility, and for the children to spend time with the father for three hours twice a week. These orders were made in the absence of the father, as he did not attend Court. The children were then aged two and three years and it is recorded in a subsequent s11F assessment[9] that
6. […] The father was to spend time with the children, then aged two and three years of age, each Monday and Sunday from 1.00pm until 4.00pm, with changeover to occur at [Suburb D] Police Station. Incremental increases in time spent, eventuated in the children spending alternate weekends with their father, which reportedly continued until 2014.
7. In October 2014, the parents attended mediation at Q Group Suburb L as [Mr Anelli] was seeking increased involvement with the children. Agreement was reached that the father would now collect the children from school on specified days. According to the mother, [Mr Anelli] sent his partner more often than he attended to collect the children. [Mr Anelli] said he collected the children on four occasions and his partner collected the children once. According to [Mr Anelli], [Ms Sault] was verbally abusive to his partner in front of the children. [Ms Sault] confirms there was an argument as it was her perception that the father had not committed to the children and that it was not up to [Ms F] to take on a parenting role with the children.
[9] Parent and Issues Assessment by Ms J dated 28 February 2017 [6]
On 6 November 2014, an intervention order was made pursuant to state legislation, being the Magistrates’ Court Family Violence Protection Act 2008, in the Magistrates Court at Suburb L. The order was made against the father, who is recorded as being at Court. The order was expressed to be for the protection of the mother and the two children. It is a fairly usual order, notably for these proceedings, by paragraph 9 which states:-
The respondent father may, “do anything that is permitted by a Family Law Act order, and child protection order, or a written agreement about child arrangements; or communicate with a protected person [the mother] through a lawyer or mediator, or arrange and/or participate in counselling or mediation; or, but only if, the respondent does not commit family violence while doing so.
The intervention order was expressed to expire on 6 November 2016, unless varied or extended prior to that time. My understanding is that the order has not been extended, and, therefore, expired on 6 November 2016.
The father did not spend time with the children, then aged 7seven years and six years after the intervention order was made. The father’s case is that, following the intervention order being made, he was told by his lawyer that, because the children were covered by the order, he could not spend time with the children pursuant to the orders of 2009. The father does not adduce evidence from the lawyer to whom he refers. The father did not see the children from mid‑November 2014. The mother’s version is that the intervention order did not preclude the father from spending time with the children and that she took the children to the changeover for time and the father did not attend. She then desisted. The intervention order clearly did not preclude the father from spending time with the children pursuant to the then extant parenting order made in May 2009 wherein the father was entitled to spend face to face time with the children twice a week for three hours on each occasion.
The fact that the father’s rights to spend time with the children were not affected is further confirmed by the intervention order. In addition to the above quoted proviso, about being able to do anything permitted by a parenting order, it was further ordered that, “the following to be read in conjunction with the above exception” and provided that Ms Sault will not–
except in an emergency contact, the respondent during any period when [B] or [C] is spending time with the respondent;-
Which, I am satisfied, is predicated on the children being in the father’s care.
I take into account the fact that the father cannot read. However, he has Ms F to help him. It is incongruous that the father and Ms F devoted time and energy to constructing written submissions including reference to legal authorities, whilst, at the same time, apparently not being able to read and appreciate the import of a plainly expressed intervention order made in 2014, which, on any reading, allows time to be spent between the children and the father. There is, at the very least, a disparity in effort and possibly wilful blindness on the father’s part.
On 18 October 2016, some three weeks prior to the expiration of the intervention order, the father filed an application initiating proceedings seeking parenting orders. By this time B was 10 years old and C was nine years old and had not seen the father for about two years. The father sought final orders that he have equal shared parental responsibility for the children and that the children live in a week about arrangement with each parent. He also sought that the children spend half of each school term holiday with each parent, and that there is provision for special days, such as Christmas Day, Christmas Eve, New Year’s Eve, birthdays, Mother’s Day and Father’s Day. Birthdays were to include the father’s birthday or the paternal grandfather’s birthday, “and the birthday of any half‑siblings”. He sought communication by telephone. The father sought the mother be restrained from taking the children out of the State of Victoria without his written permission, and exposing the children to indirect smoke caused by tobacco products. The father sought orders that neither parent be entitled to take the children out of Australia without the prior written consent of the other.
By way of interim orders, the father sought equal shared parental responsibility, that the children live with the mother. Under “times”, the children were to live with the mother and father on a week‑about basis commencing on 21 November 2016 and, then, the same orders as on a final basis.
By a response to the initiating application filed by the mother on 22 November 2016, the mother sought that the orders made on 25 May 2009 remain in full force and effect, save that the father spend time and communicate with the children for two hours per fortnight for three occasions under the supervision of a professional supervising agency called M Family Services (at the sole cost of the father). The mother sought orders which provide that, after the first three occasions, a written report issue and, if that report indicates that “at the completion of the three visits [there are no] concerns or risks observed in relation to the children’s time with father], the father spend unsupervised time with the children for a period of four hours per fortnight “from 1 pm to 5 pm” for a period of two months increasing gradually to one overnight period on alternate weekends for a period of two months, and thereafter each alternate weekend from after school on Friday to 6 pm on Sunday. The mother sought that the father pay the mother’s costs of and incidental to the proceedings.
The interim orders sought by the mother were more or less the same as the final orders, save that the mother sought a child‑inclusive assessment pursuant to section 11F of the Family Law Act 1975 (the Act). The mother also sought that the father pay her costs of the interim proceedings.
The parties attended a children and parents issues assessment before family consultant Ms J, who published the s 11F assessment dated 28 February 2017. The assessment was based on intake and assessment meetings for the father on 13 February 2017 and 22 February 2017, and for the mother and children on 22 February 2017. The extra interview for the father was attributable to the mother being unable to attend on 13 February 2017 and the father electing to proceed with the interview nonetheless. The father arrived one hour and 45 minutes early for his interview on 22 February 2017. The family consultant recorded:-
2.[…] It is the writer’s view he disregarded the times allocated for his interview. [Mr Anelli’s] arrival suggested he was perhaps intentionally early to either observe the children or upset [Ms Sault]. [Mr Anelli] also indicated he had difficulties with the interview processes as he had formed the view or perception, that his views would not be adequately considered in the process. [Mr Anelli] was observed to have limited capacity to regulate his emotions.
This was an early observation, published to the father, which should have served to put the father on notice about the potential for adverse impressions to be drawn about him based on his demeanour and presentation. Based on his behaviour before me, it did not.
The father was seen by the family consultant on two occasions and the mother once. It is noted by the family consultant, that:-
9. [Ms Sault] reported there was significant family violence throughout her relationship with [Mr Anelli] which commenced when she was pregnant with their first child. [Mr Anelli] queries the mother’s accounts of family violence and claims they are fabricated and that any injuries the mother sustained were a result of self-inflicted intoxication to the point where she was unable to stand up.
The family consultant, Ms J, noted that in her direct interviews with the children both children expressed not wanting to see their father at that stage. In summary, her recommendation was that there be no time between the father and children until after the father undertook behaviour change programs and was psychiatrically or professionally assessed, all of which the father refuses to do.
The matter was before the Senior Registrar on 22 March 2017 by which time the parties had some weeks to consider the contents of the s11F Assessment.
On the 22nd of March 2017, the matter proceeded as a contested hearing and the Senior Registrar ordered that the father spend time with the children for up to and inclusive of 2 hours per fortnight following a senior family consultant and the independent children’s lawyer (“ICL”) explaining the orders to them as soon as practicable. It was further ordered that, in addition and without further engagement and participation by the ICL, the senior family consultant prepare a further Children’s and Parents Issues Assessment to record the meeting in and any other matters including but not limited to meetings with any of the parties, or either of them, their partners, families, including maternal grandparents, or any other person or agency and schools (at the discretion of the senior family consultant), such assessment to be completed, released and sent to the parties and ICL by no later than 10 May 2017. It was clearly intended that the senior family consultant would make some assessment about the time spent pursuant to the Order of 22 March 2017.
This matter was allocated to senior family consultant Ms K and, in accordance with Ms K’s suggestion, it was agreed that the children would spend time with the father as follows:-
a)for one hour on Saturday, the 15th of April;
b)for one hour on Saturday, the 22nd of April;
c)for one hour on Saturday, the 29th of April, and
d)for two hours on Saturday, the 6th of May 2017.
The senior family consultant described the interview on 11 April 2017 as follows:-
the parties were cooperative with the process. [Ms Sault] expressed her distress about the impact on the children however maintained a commitment to facilitating the orders. [Mr Anelli] was open to discussion about the structuring and scheduling of the orders.
She also reported that when the children were advised:
They expressed their reluctance and distress at the arrangements being made. The children were reassured they would be given further opportunity to be heard after the visits and before the next Court event.
The children have not seen or communicated with the father since 6 May 2017.
The senior family consultant saw the children and the mother again on 8 or 10 May 2017 and the father and the father’s partner, Ms F, again on 11 May 2017. Ms K formed the impression that the children had not enjoyed their four visits with the father and/or did not want any further time with him. She reported:-
26. There are conflicting proposals as to the origin of the children’s resistance to any time spent with the father. Information available to the Consultant would suggest the children’s perceptions of their father have developed from a combination of accumulated experiences as well as his absence from their lives at critical times in their childhood. Undue influence on the part of the mother cannot be excluded, particularly as she is the primary caregiver and better placed to shape the views of the children. Consideration also needs to be given to the children’s over exposure to the persistent hostility and low cooperation between the parties as a possible explanation for the polarised reports of the children’s experience. In high conflict arrangements children are more likely to engage in strategies that will minimise the effects of that conflict. Attuning themselves to the needs of each parent and identifying one parent as “good” and the other as “bad” are common reactions adopted by children, particularly from mid childhood onward. These strategies alleviate stress.
27. The father claims that the children’s negative perceptions of him are governed by [Ms Sault’s] attitude and undue influence. There are some features of the children’s narrative that could support this claim, particularly the unbalanced nature of it however there are no hallmarks in the children’s narrative to strongly suggest the mother has engaged the children in alienating behaviours. The children’s account presented as plausible, developmentally appropriate and with events reported in temporal order. Language used was developmentally appropriate and lacked the “borrowed” flavour often accompanying scripted children. When challenged, the children’s ability to reflect and clarify what happened before and after events without incident could be seen as indicative of [Ms Sault’s] ability to facilitate rather than restrict the children’s relationship with the father.
28. Consideration must be given to the alternate hypothesis that the children’s account is authentic and their realistic estrangement arises from a history of the children being exposed to their father’s threats towards others, his under involvement in their lives and their perception of him as an untrustworthy caregiver. The father claims he was prevented from seeing the children however he did not attend a Final Family Law Hearing (May, 2009) and his absence from their lives for over 2 years is not well explained. The father states there “was no family violence” however Intervention Orders have been made (that do not override the family law orders of 2009). A tattoo on his inner left arm openly denigrates the mother and at interview his disdain for her was palpable. There observations add weight to concern expressed by the children (and their mother) about his approach to parenting responsibilities and his ability to remain child focussed. In contrast however, the children’s uneventful transition to the father on each visit may indicate that the resistance is later expressed for the benefit of their mother.
29. It is apparent that the children are becoming increasingly anxious and involved in the issues before the Court. The maternal reports of anticipatory stress, the acting out and rumination, the children’s reported underlying sadness when with their father as well as their presentation at interview indicate a level of stress that is not conducive to healthy development. If the children’s stress persists and is unaddressed, their psychological wellbeing will be at risk, particularly in relation to anxiety disorders. Their ability to meet social and educational milestones may be compromised. Relieving the children of this stress ought to be a priority.
[…]
31. It may be important for the Court to have a greater understanding of how each party’s personality style and individual functioning may be contributing to the impasse. Understanding any psychological vulnerability of the parties’ as well as any risks in their parenting style is likely to assist the Court in the allocation of parental responsibility and in relation to the parent best placed to care for the children.
Ms K recommended that any time between the children and the father be suspended until such time as the parents have undertaken an individual psychological assessment, any further time to be spent to be considered after such an assessment and copies of any s 11F reports and any other specialist reports be provided to the practitioner undertaking the psychological assessment.
Best interests considerations
In deciding whether to make a parenting order, I must regard the best interests of the children as the paramount consideration. There are a number of matters for me to consider but the major requirements are set out in s 60CC(2) of the Act and are describe my task as assessing:
(a)the benefit to the children of having a meaningful relationship with both parents; and
(b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
with greater weight to be given to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[10]
[10] Family Law Act 1975 (Cth) s 60CC(2)(b).
More specific circumstances, which inform my consideration of the benefit of the children having a meaningful relationship with the father and the need to protect them from physical or psychological harm, are set out in s 60CC(3) of the Act. I do not have the benefit of psychiatric or psychological assessments of the parents nor of having had all the evidence of the parties, their lay witnesses and the family consultants tested in cross examination. However, having reviewed the evidence before me, heard from the family consultant Ms K, having seen the father unfiltered by legal representation and having had the benefit of submissions by all parties, I am satisfied that I have sufficient information upon which to render an interim decision which is sound and in the best interests of the children.
The child’s views[11]
[11] Family Law Act 1975 (Cth) s 60CC(3)(a).
In determining what is in the child’s best interests the Court must consider, amongst other factors, any views expressed by the child and any other factors that the Court thinks are relevant to the weight to be accorded to the child’s views. The Court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court by a family consultant[12] or other expert or appropriately qualified person retained by the parties or through the independent children’s lawyer[13] and I do so.
[12] Family Law Act 1975 (Cth) ss 60CD(2)(a), 62G(2) and 62G(3A), the last provision of which generally requires the person giving the report to ascertain the child’s views and include them in the report.
[13] Family Law Act 1975 (Cth) ss 60CD(2)(b), 62G(2) and 68LA(5)(b), the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the Court.
In February 2017 the family consultant, Ms J, recorded that both children remembered seeing the father prior to November 2014 and some features of spending time with him and were not sure why time ceased. Neither child proffered any positive feelings about spending time with their father. Indeed, both said that they did not want to spend time with the father. The children were not observed with the father.
In May 2017, and following the four short visits in April and May 2017, the senior family consultant observed the children to be unenthusiastic and resistant to spending further time with the father. She wrote:-
9.The children were invited to talk about their experiences of seeing their father on four occasions.
10.[C] commented that “It makes me sad and frustrated that I have to do it. I don’t want to do it anymore.”
11.The children spoke of receiving the equivalent of an iPad from their father on the first visit and his suggestions that they “Take photos of home, school”. Quite apart from the Family Court order restraining this, the children were not appreciative of his gift and when asked said “We worried he would find out where we were. I thought it may have a tracker on it so he could find out where we live…..we gave them back on the last visit saying “mum say we already have enough stuff” to which they said their father replied “That’s a bit rude.”
12.The children explained that their father continued to ask them if they wanted to go to his home. This had been a point of discussion with their mother and they reported saying to her they didn’t want to continue with the visits, particularly at the home. They said their mother told them “It’s ok you can go, if you don’t want to go to the home then tell Dad that, you need to use your voice.” This will be referred to in the summary.
13.Asked about any fun occasions with their father they both replied “Not really” with [C] adding “Dad said some weird jokes and [Ms F] pinched him and put her finger to her mouth to “Shoosh” like a teacher does. I laughed at the joke because I had to go along with it but it feels uncomfortable. I don’t want him to get angry.”
14.The children were pressed to think carefully about memories of the time, however little, that made them feel good. The Consultant asked about seeing their [grandfather] and [C] replied “It was okay, he’s a bit crazy now. He made us some pasta. He watches the TV and if there is a monkey on the TV he thinks the monkey is real.” [C] said his Dad told them that [grandfather] wasn’t very well.
15.The children were asked to talk about baby [G] and [Ms F]. They said “[Ms F] seemed really stressed” and they knew this because “The baby was crying and she was walking really quickly around the house. She like, opened the door for no reason and then closed it. It was weird.”
16.The children reported that they visited a restaurant of the father’s friend. [C] said that his father and the friend were whispering and the friend asked “What school do you go to?” to which they replied “We don’t know.” They said their father and the friend began whispering again and said something about the Family Court. The children said that they felt uncomfortable being asked questions that may identify their school and home and they worried about how their response of “I don’t know” would be perceived by their father.
17.It is evident that the children report a common view of their father and were unable to comment positively on any aspect of the time spent, despite being pressed on this. [C] began to cry and summarised that “It’s not about seeing him here or there, it the whole of him I don’t like.” [B], who noticed [C] crying, took the lead role saying “He made me keep a secret about something illegal, something to do with a motorbike he was building…He has said a lot of lies and done bad things… He has a tattoo on his arm with Mum’s name ‘[Ms Sault]’ and there are bad words underneath it.”
Ms K recorded the father’s impressions in May 2017:
19.[Mr Anelli] appraised the time spent in positive terms, marked in small parts by frustration around arrangements and a perception the children provided coached responses to him. He spoke, with [Ms F’s] agreement, about the children’s happiness when with him and identified moments where the children appeared to delight in remembering toys and memorabilia from their father’s home. He conveyed this with a sense of vindication. He claims there were no indicators of resistance in the children, save for responses he attributed to their mother’s influence such as the children attending only on the final visit.
20.[Mr Anelli] was given feedback on the children’s accounts of the visits. Whilst he accepts the children are stressed he attributes this to their mother’s undue influence and disagrees that it is a by-product of each party’s conduct and the poor co-parenting relationship.
Ms K recorded the mother’s position as follows:-
22.[Ms Sault] apprised the time spent arrangements, aided by a diary of the children’s wellbeing, over the time spent period. She said about today’s meeting “The kids feel as though no one is listening to them” saying “That lady will make me go even though I said I didn’t want to.”
23.[Ms Sault] worried about [C’s] rumination over arrangements, the excessive checking of the plan and his ongoing protestation. She claims this was becoming a behaviour management issue. She said that his sleep has been disturbed and that he has become highly sensitised, with frequent bouts of crying and some separation anxiety. [B] is said to have started acting out aggressively on two occasions by scratching [C’s] face in arguments. [Ms Sault] said it was distressing for her to send the children as it conflicted with her (and those of the children) views on seeing their father. She thought it may also be starting to impact on the children’s basic sense of trust in her. [Ms Sault] denies coaching the children and/or inciting stressful responses in them to advance her case.
24.[Ms Sault] expressed an unwillingness to continue with the arrangements and in the process revised her view about any future. She claims that the significant family history of family violence as well as the father’s unexplained absence from the children’s lives for over 2 years has led to the children forming a view that their father is not a trustworthy and safe-care figure. She claims the children do not want a relationship with him at this stage in their lives and now believes there should be orders for no time spent between the children and their father.
I accept that when assessed by Ms K last May 2017, the children did not want to spend time with the father. Further that the children’s view should be accorded respect and given weight.
The father’s report of the children’s reaction to seeing him is somewhat different. Before me the father described the children’s reaction and then reverted to his own needs, as follows:-
[Mr Anelli]: There has not been one report about me and my kids. Now, I had them for four weeks. One hour a week for four weeks, and they said, “Dad, we missed you,” and they were hugging me. The first day they went into the – into the police station, they sat next to me like complete strangers. By the end of that month, they were hugging me, kissing me, going, “Dad, can we stay a bit longer?” Now, I don’t know where they get they get these reports from that the kids hate me, don’t want to see me. I told you, the kids were eating ..... my food, and they’re going, “Dad, we’ve missed eating this pasta.” I’ve had a routine for my kids from day one. I bath them every night before going to bed. I’ve had a routine. I pick them up. I do everything with a routine.
And the poor kids looked like they were lost the first time I saw them in two and a half years. And I don’t know where they get this thing, they were shaking. The only reason they’re scared is because someone has influenced that in their head. I’ve never had a problem with my kids, and the problem is, the longer you go, the worse you’re off. You’re actually destroying my kids’ life by having me out of their life. Now, this has got to stop. And I know you don’t care what I got to say. That’s fine. But I miss my kids, and I want – I need to see them, and they need to see me. And you know what? I’d prefer you make some orders today, because I’m not coming back. So I leave it up to you if you want to make some orders.
HER HONOUR: No, I think your case is one that I will think about, and I will prepare some reasons and explain why I make the orders that I make; so I won’t rush into it today. […]
[MR ANELLI]: You make this so hard, so that […] four fathers a day commit suicide cause of this.[…]
[MR ANELLI]: It’s time you understand that. Four fathers. I’ve lost four of my best mates because of this crap. Absolutely crap, the justice system.
HER HONOUR: [….] Anything else?
[MR ANELLI]: No, nothing. It’s pointless. You’re falling on deaf ears. […]
HER HONOUR: Anything – repetition doesn’t actually help you. Anything else?
[MR ANELLI]: Do you understand what I mean? You’re just talking to a brick wall.
[…][MR ANELLI]: See, if this Court was really here to help families, wouldn’t they set up one of these rooms where you can come in and do courses here instead of outsourcing them and have some actually people with hearts working here.
HER HONOUR: [Mr Anelli], you are digging a hole for yourself in terms of
[MR ANELLI]: No, that’s okay. I’ve already dug before
HER HONOUR: it being everybody else’s fault.
[MR ANELLI]: That’s all right. It’s my fault and the kids hate me. Correct. ‘Cause I showed them too much love. That’s fine.
The nature of the children’s relationships[14]
[14] Family Law Act 1975 (Cth) s 60CC(3)(b).
I consider the nature of the children’s relationship with each of the parents and other persons inclusive of grandparents and other relatives.
I am satisfied that the children are primarily bonded to the mother and draw their sense of security and safety from her. The children recognise the father but the father’s contention that they want to see him and should see him is unsupported by evidence other than his own.
I infer from the fact that the maternal grandparents look after the children regularly that they have a good relationship with them.
A consequence of the father having no time with the children from November 2014 is that they have no real experience of their sister, G. The children also do not see their paternal grandfather or the paternal side of the family and Ms F. It does not appear from independent assessors, Ms J and Ms K, that the children have a sense of loss about the father’s family.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child[15]
[15] Family Law Act 1975 (Cth) s 60CC(3)(c).
As discussed above, there appears to be no good reason why the father did not spend time with the children after the intervention order was made in late 2014. There is at least a distinct possibility, to my mind, that he so resented the intervention order being made that he withdrew from spending alternate weekends with the children to punish the mother or the children or both and out of spite.
The father’s dialogue is largely self-justifying without any insight into how his actions - such as aggressive outbursts, his failure to avail himself of time with the children and the tattoo – impact on others. He blames the mother and the Court for the dislocation of his relationship with the children but did not seek to see them for two years and has not sought to have the final hearing expedited by an application to the case management judge, as was provided for in the Senior Registrar’s Order made 16 May 2017 and under review.
The mother has cared consistently for the children including making decisions about major long term issues affecting them
The extent to which each of the parents have fulfilled or failed to fulfil his/her obligations to maintain the child[16]
[16] Family Law Act 1975 (Cth) s 60CC(ca).
I do not have sufficient evidence on this point to make it part of my evaluation at this interim stage.
The likely effect of any changes in the children’s circumstances[17]
[17] Family Law Act 1975 (Cth) s 60CC(3)(d).
In determining what is in the best interests of the child I am required to consider the likely effect of any change in the children’s circumstances particularly in relation to separation from their parents, other children, wider family including grandparents and other persons with whom the children have a relationship.
In February 2017[18], Ms J opined “the children are in middle school and appear to have endured a number of changes and challenges in their young lives. In the past two years they have adapted to life with their mother and her partner, as well as significant input from their maternal grandparents. It is likely their expressed reluctance to spend time with their father may be the result of realistic estrangement and the possibility of alignment with the maternal view, given the length of time since they have spent any meaningful time with their father.”
[18] Op cit [39]
My impression is that the children are settled into a routine in the care of the mother.
The proposal of the mother and the independent children’s lawyer does not involve any significant change for the children. The children did not see the father for two and a half years. Most recently and pursuant to the Order made on 22 March 2017, the children had four brief visits with the father. The children saw the father for one hour on each of the last three Saturdays in April 2017 and for two hours on Saturday 6 May 2017.
The father’s proposal would involve very significant changes for the children and likely be adversely received by them.
I am concerned that the reintroduction of regular and frequent time between the father and the children will undermine the children’s sense of security and safety with the mother and probably compromise her capacity to parent them as effectively as she does currently. In February 2017, the family consultant, Ms J, recorded that:-
26There are conflicting proposals as to the origin of the children’s resistance to any time spent with their father. Information available to the Consultant would suggest the children’s perceptions of their father have developed from a combination of accumulated experiences as well as his absence from their lives at critical times in their childhood. Undue influence on the part of the mother cannot be excluded, particularly as she is the primary caregiver and better placed to shape the views of the children. Consideration also needs to be given to the children’s over exposure to the persistent hostility and low cooperation between the parties as a possible explanation for the polarised reports of the children’s experience. In high conflict arrangements children are more likely to engage in strategies that will minimise the effects of that conflict. Attuning themselves to the needs of each parent and identifying one parent as “good” and the other as “bad” are common reactions adopted by children, particularly from mid childhood onward. These strategies alleviate stress.
27.The father claims that the children’s negative perceptions of him are governed by [Ms Sault’s] attitude and undue influence. There are some features of the children’s narrative that could support this claim, particularly the unbalanced nature of it however there are no hallmarks in the children’s narrative to strongly suggest the mother has engaged the children in alienating behaviours. The children’s account presented as plausible, developmentally appropriate and with events presented in temporal order. Language used was developmentally appropriate and lacked the “borrowed” flavour often accompanying scripted children. When challenged, the children’s ability to reflect and clarify what happened before and after events presented as consistent with a remembered experience. That changeover occurred without incident could be seen as indicative of [Ms Sault’s] ability to facilitate rather than restrict the children’s relationship with the father.
It is not feasible for the father to make application for parenting orders after a significant, unexplained failure to spend time with the children and expect the children to pick up the relationship from where they left off in November 2014. The above extract supports the proposition that the estrangement which the children have with the father is not (as the father contends) a consequence of the mother conditioning the children not to want to spend time with him.
The father’s case is that extensive time should be ordered now and then an assessment made of how the children react. It is not, however, appropriate to experiment on the children or try to bend the children to the father’s will. The children have experienced life without the father and were introduced to him in April/May 2017. The children have been assessed by the family consultants as not wanting to spend time with him for the time being.
A number of factors weigh against me making orders in opposition to the children’s express wishes and imposing significant changes of circumstances on them. The factors include not causing the children to feel that they have not been listened to; that this is an interim and not a final hearing; that the children’s relationship with the mother must be protected because she is the only parent who has consistently cared and been responsible for them; the father has not taken up any recommendations about behaviour change programs and, importantly, has a poor opinion of the mother which I am not satisfied he will or can conceal from the children.
In cross-examination by counsel for the mother, the senior family consultant Ms K expressed the following opinion about the emotional risk which being required to see the father at this time poses to the children:-
[MS K]: So I think the most significant risk for the children is the continued stress – stressful state that they are going to be placed in each time one of these visits occur. Not just the visit itself, but the lead up to the visit, and what happens to them after the visit. The reason why I think the – the stress is significant is because, for children of this age – so you call it sort of middle – middle childhood or prepubescent, in this age group we know that when children are continually exposed to parental conflict, or when they’re continually placed under stress, one of the risks associated with those type of arrangements for – for kids of this age is, that you either start to get some externalising behaviours for boys. So boys will externalise and girls will internalise. That’s the risk that I think the children are going to be placed in. By externalising I mean that boys have a tendency to act out, and it can often be the start of some early aggression that tends not to resolve itself through adolescence. So you get this kind of inability to be able to regulate your state. And you get some really poor coping mechanisms for boys. That’s a – that’s a summary for boys. For girls, the risk is in relation – in – in relation to their mental health. Is that they are – are more prone to anxiety and depression, and if that emerges throughout the course of their adolescence then you are more likely to see either risk taking behaviours in girls, and that means drug and alcohol issues, and you – you potentially have emerging issues around cutting, so self-harming, and also eating disorders. So they’re the sort of global risks that we know relate to these type of high conflict arrangements. We already know, because the kids are telling us, that this is an intrusion into their life. That they regard it as unwanted. And I think that if they are ordered to continue to go to see their dad, then I think that they will start to potentially develop a view that, not only are people not listening to them, but that they might start to view their mother as somebody who is not responding to their emotional and psychological needs.
HER HONOUR: Not protecting them?
So what’s their view of the world if the only person – the only parent that has been caring for them for the last three years, for whatever reason that may be, is considered by the children not to be protective and they can’t have confidence in them? [MS K]: Well, I guess for this age group in particular, I will – I will look at it from a developmental perspective. What’s going on for them, sort of psychologically and cognitively, is that they are looking to work out how to be in the world as an adult. So they’re forming views about projecting into the future, about how they are going to be as a young man, how they’re going to be as a young woman, and they need models – appropriate models, to be able to help them with that transition psychologically, so that they can be in the world as an adult. When they don’t have people available to them to do that, they can often look to – well, it just simply isn’t there for them to go to. So there is a tendency to inappropriately seek out people, have their intimacy needs met in an appropriate way. So the formation of poor relations in your adolescence. And there are a whole host of risks associated with doing that, particularly for young women.
HER HONOUR: What about at school? Well, we know
Taking direction from teachers? [MS K]: We know generally that outcomes for children who are in this group, and this group is this – I’m labelling it this sort of high conflict group. That’s probably the safest label at this point in time. So we know for them that the outcomes for them, academically and socially, are poorer. So that’s the risk. That’s the risk to them. That they are at greater risk of poor performance at school.
HER HONOUR: And are they overrepresented in mental health scenarios? [MS K]: Yes, they are, your Honour.
Separately from the father’s application for face to face time and shared care, I have considered whether telephone communication would be viable. I find it is not. The senior family consultant’s view is that children may be even more rejecting of the father by telephone than they have been in person. I am also concerned that the obligation to take calls will be disruptive of their relationship with the mother.
Capacity of the responsibilities of parenthood demonstrated by each of the children’s parents[19]the parents to meet the children’s needs[20] and the attitude to the children and to the responsibilities of parenthood demonstrated by each of the parents
[19] Family Law Act 1975 (Cth) s 60CC(3)(i).
[20] Family Law Act 1975 (Cth) s 60CC(3)(f).
In determining what is in the best interests of the children, I need to consider the capacity of the parent or of any other person to provide for the needs of the children, including emotional and intellectual needs.
Apart from the impact of pressures brought to bear on the mother by the father having an ongoing face to face relationship with the children, I am not concerned about the adequacy of the mother’s capacity to care for the children. I have regard to the early report from DHHS about the mother self-harming in 2011. However it is historical and I have not heard from the mother in this regard.
I hesitate to place weight on the father’s complaints about the mother because he was content to leave the children in her undisturbed care from November 2014 to October 2016 notwithstanding that he could have been spending time with them children regularly and frequently as provided for by the parenting orders of 2009.
The father blames the mother for undermining his relationship with the children but that is not consistent with the preparedness of the mother to extend the time that the father spent with the children from 2009 to 2014. The parenting order made in 2009 provided for day time visits whereas the father’s time was increased voluntarily to overnight time on weekends. Even after a break of two years, the mother’s initial response to the father’s application included face to face time which would have gradually increased.
In February 2017, the family consultant made the following observations in the s11F Assessment:-
28.[Ms Sault] said the father has not been consistently present in the children’s lives and she believes that the current application, is because he is pushed by his partners to take action to spend time with the children and that his commitment to the children will wane.
29.At his interview, [Mr Anelli] reported he wants the children to live in an equal shared parenting arrangement because he is their father and he believes the children will benefit from what he has to offer.
30.[Mr Anelli] was critical of [Ms Sault] and blamed her, for him not spending time with the children. He confidently said that the children would want to see him and laughed off any discussion, that they may be hesitant about spending time with him after such a lengthy period of no contact. [Mr Anelli] held strongly to his belief that it was [Ms Sault] that had kept the children from him and when presented with the opportunity, they would be happy to see him.
31.[Mr Anelli] attended his initial interview with his partner [Ms F] and their seven- week old daughter, [G]. He was provocative during his interview as at one point he pointed to a small cloth bag on the table and said “see that, you are being taped.” [Mr Anelli’s] interview was focused on him, rather than the children. He was reactive and emotional and at times derogatory about [Ms Sault] and women in general.
32.The theme throughout [Mr Anelli’s] interview was to blame [Ms Sault] as the reason he has not had any contact with the children. He maintained that he is not violent and that there are no police records to indicate that he has been convicted of any violent acts. He has formed the view that it is [Ms Sault] who is abusive toward him. There was no subpoenaed material available at the time of preparing this assessment.
33.[Mr Anelli] said the last time he spent time with the children they went to the park. [Mr Anelli] said “I take my kids everywhere with me.”
34According to [Mr Anelli] he has no diagnosed mental health illness or is prescribed medication in relation to his mental health. He has pain in his leg as a result of a motorbike accident which caused permanent nerve damage. He informed that he is dyslexic and cannot read or write but said “I am very good with my hands.” There is no current Intervention Order and it remains [Mr Anelli’s] view that “every time the children get close to me or there is time ordered for them to see me,” then the mother routinely applies for Intervention Orders.
The father’s propensity to blame the mother for the break in him spending time with the children resonates with his comments in Court about the tattoo. He submitted that the mother should be criticised for having told the children about the tattoo which refers to her being a whore. The father’s attitude reflects poorly on his capacity to parent and to empathise with the children or the mother. It is also illogical and avoidant of his responsibilities of parenthood.
It is concerning that the father is unable to contain his aggressive and inappropriate behaviour during assessment processes. It augers poorly for his ability to do so elsewhere and when subjected to less or no scrutiny. It also leads me to question his priorities and level of commitment to the children. In particular, he persists with provocative behaviour which he and Ms F must realise is harmful to whatever prospects he has of spending time with the children either pursuant to an order of the Court or agreement by the mother.
In relation to the father’s provocative behaviour impacting on the mother, Ms J recorded the following in February 2017:-
18.[Mr Anelli] and the writer met following the children’s interviews. The writer advised [Mr Anelli] there would not be an observation conducted today between him and the children. [Mr Anelli] was clearly upset as he yelled at the writer and left the Registry before any further discussion could occur.
19.[Ms Sault] was advised of the decision not to progress with an observation. [Ms Sault] appeared nervous as she was visibly shaking and indicated her heart was racing, as she had witnessed [Mr Anelli] verbally abusing the writer, as he left the Registry.
Under the heading “Future Directions” Ms J wrote:-
43.If the children are to spend time with their father in the future, they may benefit from attendance at a therapeutic program which focuses on re-introduction to a parent after a lengthy period, for example, [N Group] in [Suburb O] PH: ….
44.It is the writer’s assessment the Court give consideration to reserving the father’s time with the children, pending the completion by [Mr Anelli] of the following recommended programs and assessments.
45.[Mr Anelli] is to attend and complete a [T] Program [P Group], PH: …, a 13 week course x 2 hour sessions, cost $325.00 concession or [Q Group Suburb L] PH: ….
46.[Mr Anelli] is to attend a Parenting Program such as that run by [P Group] a 4 week course x 2 hour sessions, PH: .. or [R Group] [S] Program. PH: ….
47.Supervised time is to be considered by the Court upon completion of the above programs and assessments and evidence of completion to be provided to the Independent Children’s Lawyer. The waiting list at a Children’s Contact Centre may be lengthy so the option of a private service, such as [M] Family Services may initially be appropriate so as not to delay further the children spending time with their father.
48.[Ms Sault] would benefit from attendance with a health professional or women’s family violence support service for support with her feelings about the reported family violence experienced when she lived with [Mr Anelli]. [Ms Sault] is to seek support from [U Group] or a referral from her GP to a mental health professional.
49.If this dispute continues to be litigated the Court may be assisted by psychiatric assessments of both parents.
Notwithstanding the above clear recommendations, the father refuses to undergo a psychiatric assessment and has not, as best I can discern, participated in any behaviour change programs. On the other hand, he deposes (without qualification) to the mother being depressed, suffering from a narcissistic personality disorder and to being a sociopath.
The father did inform me of his involvement in a group for men, he said:-
For the last two years I’ve been attending a support group for men, and there’s a lot of blokes in my situation that – they get pressed into this corner. It’s called the funnel effect. The – the courts favour the women. […] Doesn’t matter what you say or do. And it’s set up like for that – for the father to fail. Now, youse are all painting this picture that I’m some sort of animal. I’ve got a security licence for 28 years, okay?[…] My security licence and a crowd control licence for 28 years. I’ve helped a lot of people […] I haven’t got a criminal record, okay? I run a club called [V]. There’s about 1500 members, not including family and friends. There’s about probably 10,000 of us. I’ve never had a problem with anyone, okay? I take care of friends of mine. I babysit their kids. I’ve got a kid of my own. I’ve never, ever abused my kids, laid a hand or even flicked their ear. And you paint this picture that the kids are scared of me. Why would my kids be scared of me when I’ve bought them everything they ever wanted? They have got everything at home. They have got their own bedrooms. Everything. Like every time they wanted something, I get it for them. Why would my kids all of a sudden decide to hate my guts?
I know people that are junkies. They smoke, drink. I don’t smoke. I don’t drink. I don’t do drugs. I don’t do nothing. And you give privilege to these people, to the junkies, to see their kids. They’ve never seen any sort of domestic violence in front of me, apart from my ex-partner attacks me in front of my own kids. I’ve never even shown anything in front of my kids. And I don’t believe half of these reports even understand half of these things what these people do to these kids and the situation they put fathers in. A father has no right in this Court, I’ve noticed. Doesn’t matter if I can’t read and write. I show them all the love in the world, and that’s what the kids need. The kids need their father. Not a stepfather, stepmother or grandmother. Actually the kids need a father in their life, a father figure. And that’s why the world’s turned to shit.
The father is determined but not insightful. During the hearing he said that he would walk away from the proceedings but then recanted. He said:-
[MR ANELLI]: But your Honour, I will come back, and probably when they’re about 18, and we will have this chat. When they become junkies and alcoholics, my kids, because they’ve been neglected.
HER HONOUR: Can you show me in the DHHS records – all right. Okay.
[MR ANELLI]: It’s okay, your Honour. I’m actually going to take this further. I am. I’m going to take it further. I will go to jail for this. This is – no, it’s set up wrong, it’s set up wrong. These people are evil. These people are so evil in this courtroom. You know what the problem is, your Honour? A lot of people don’t understand the Bible. You know that? They swear on it and they don’t understand it at all. You know what? I will leave this as a gift to you, this Bible, your Honour.
HER HONOUR: No, thank you.
[MR ANELLI]: Exactly.
The father’s self-evaluation is disconnected to various indices in the case at this interim stage such as his failure to see the children for two years, his tantrum like behaviour in front of family consultants and before me, the DHHS assessment and the tattoo. He is generous with self-justification. He empathises with other fathers but appears not to empathise with his children or their mother.
If the parties can ultimately agree to attend upon a psychiatrist for assessment of them both, that assessment is likely to be of assistance to the Court. I have tried to explain, through conversation with counsel for the ICL that the absence of such evidence might be a deficiency in the father’s case and/or preclude him from successfully running an argument that he is in the process of changing his behaviour. My strong view is that if one parent is to be assessed by a psychiatrist the other parent should also be assessed and by the same practitioner.
Whilst I am on the topic of expert witnesses, it is important that any single expert witness get on with their task without undue interruption. I will make my usual order restraining the parties from lodging any complaints without first obtaining leave of the Court to do so. That is not to stifle complaints where there appears to be grounds to complain about professional misconduct. It is to ensure that information is submitted with the complaint in an even handed manner on notice to other parties and without undue disruption to the trial process.
The children’s maturity, sex, background and other characteristics[21]
[21] Family Law Act 1975(Cth) s 60CC(3)(g).
A comprehensive consideration of the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and the parents can await the final hearing. The children seem age appropriate.
Any family violence involving the children or any member of the children’s family and family violence orders[22]
[22] Family Law Act (Cth) ss 60CC(3)(j) and (k).
The definition of family violence provided in s 4 of the Act is broad and may include threatened or actual violence toward a person, members of their family or their property[23].
[23]As these proceedings were instituted after 7 June 2012, the s 4AB FLA applies
In February 2017, the family consultant recorded the mother as alleging family violence, intimidation, denigration and verbal abuse of her by the father resulting in a number of intervention orders against the father. The family consultant further recorded the father’s denial of any violence, that any injuries of the mother were self-inflicted whilst under the influence of alcohol, that the mother was an alcoholic and alleging physical abuse of the children by the mother and maternal grandparents. The family consultant further noted correctly that the 67ZW Response from the Department of Health and Human Services indicted that there was insufficient information to indicate risk and that the department would be taking no further action.
I am not aware of whether there is an existing family violence order under state law. If there are any proceedings contemplated in state courts, it would be appropriate to the parents (or either of them) to be able to produce evidence in this proceeding, extant orders and these reasons for decision to the state courts. I will order accordingly.
Determination of where the best interests of the children (or either of them) lie.
Having regard to the above evidence and assisted by the considerations I have referred to above, I am comfortably satisfied that there should be no face to face time or communication between the father and the children (or either of them) until the Court has had the benefit of all evidence including such expert psychiatric evidence (if any) which the father will co-operate to obtain.
On the evidence presented to me and my assessment of the parents to date, I cannot be satisfied that the children will benefit from time with the father at this interim stage in proceedings. Section 60CC(2)(a) requires the Court to give consideration to what benefit there is for the children in having a meaningful relationship with the father. That requires the Court, at the final determination stage, to identify the disadvantages and the advantages and to take all of them into account whilst having regard to what is necessary to protect the children from being subjected to or exposed to harm within the meaning of s60CC(2)(b) and s60CC(2A).
The father’s proposal is to impose a spend time regime on the children, contrary to their expressed view in the expectation that the children’s opposition will melt away and they will enjoy being reunited with him, his paternal family members and the father’s partner and his infant sister, G. In my assessment, the father’s expectations are not well founded but, even if they were very soundly based, that does not obviate the need for the Court to be first satisfied that a meaningful relationship between him and the children is of benefit to the children.
Parental responsibility
Section 61DA provides that when making a parenting order[24], I must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility for them or either of them. The father seeks equal shared parental responsibility for both children which is opposed by the mother and the independent children’s lawyer. They propose on an interim basis that the mother have sole parental responsibility as she has since the final parenting order in 2009.
[24] Family Law Act (Cth) s 64B(2)-(4A) defines “a parenting order” and what a parenting order may provide.
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[25] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
…issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
[25] Family Law Act 1975 (Cth) s 61B.
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[26] The concept of shared parental responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[27] and to ‘make a genuine effort to come to a joint decision about that issue’.[28] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared.
[26] Family Law Act 1975 (Cth) s 65DAC(2).
[27] Family Law Act 1975 (Cth) s 65DAC(3)(a).
[28] Family Law Act 1975 (Cth) s 65DAC(3)(b).
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
a)If the Court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[29] or abuse of the child or another child who is a member of the parent’s family;[30]
b)If, at an interim hearing, the Court considers it is inappropriate for the presumption to apply[31] or;
c)Where evidence is adduced, upon which the Court is satisfied 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.[32]
[29] Family Law Act 1975 (Cth) s 61DA(2)(b).
[30] Family Law Act 1975 (Cth) s 61DA(2)(a).
[31] Family Law Act 1975 (Cth) s 61DA(3).
[32] Family Law Act 1975 (Cth) s 61DA(4).
In this case, I am making interim orders so the presumption need not apply. More significantly, I assess the mother’s ability to consult with the father and for the two of them to make a genuine effort to come to a joint decision about issues as severely compromised by the father’s antipathy to the mother. I note the observation of Ms J when the father abruptly left he first assessment and the mother was anxious (see above) The senior family consultant, Ms K, gave a depressing description of the parties’ inability to co-parent, she wrote:-
30. The parties’ long history of poor cooperation indicates that any co-parenting arrangement will likely be conflicted and problem focussed. There is no history of cooperation that could serve as a reference point to guide their future cooperation. Their views of each other are entrenched and this limits their capacity to appreciate the children’s own experience of that parent. Their lack of communication at the most basic level has been shown in this arrangement to make the children responsible for carrying messages between the parties and determining when they visit their father’s home, responsibilities and decisions they should not have been burdened with.
Finally, the mother has had sole parental responsibility for the last eight years and the children have been well cared for.
Taking all of the above considerations into account I am satisfied that the father’s application for an interim order for equal shared parental responsibility is not in the children’s best interests and should be dismissed.
Consideration of equal time or substantial and significant time with both parents
By virtue of having previously determined that it is not in the children’s best interests for the parties to have equal shared parental responsibility, it is not necessary for me to consider whether it is in the best interest of the children or reasonably practicable for them to spend equal or substantial and significant time with each of the parents.
Conclusion
I am satisfied that the Order I have made is in the best interests of the children individually and together. For the time being the risk of emotional harm to the children outweighs any benefit associated with spending time with, or having a meaningful relationship with, the father.
This determination will come as a disappointment but not as a surprise to the father. It is an interim determination which I envisage will last until the final hearing. The father can put his case however he sees fit. However, the most productive course for the father may be to concentrate on improving his behaviour vis a vis the mother and the children. From my limited perspective, this does not appear to be a case where attacking the mother’s parenting will result in the father securing the outcome he seeks by default.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 20 February 2018.
Associate:
Date: 20 February 2018
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