Ardema & Wakeling
[2022] FedCFamC2F 497
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ardema & Wakeling [2022] FedCFamC2F 497
File number(s): PAC 1742 of 2019 Judgment of: JUDGE MCNAB Date of judgment: 1 April 2022 Catchwords: FAMILY LAW – parenting – allegations of family violence – father to engage with psychologist over at least 12 months to address issues with the children – orders made. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC. Division: Division 2 Family Law Number of paragraphs: 61 Date of last submission/s: 23 March 2022 Date of hearing: 24 & 25 March 2022 Place: Melbourne Counsel for the Applicant: Mr Shaw Solicitor for the Applicant: Prominent Lawyers Counsel for the Respondent: Mr Petrushnko Solicitor for the Respondent: Gad & Co Lawyers Counsel for the Independent Children’s Lawyer Ms Tabbernor Solicitor for the Independent Children’s Lawyer Sydney West Family Lawyers ORDERS
PAC 1742 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ARDEMA
Applicant
AND: MS WAKELING
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
1 APRIL 2022
THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for the children Y and X both born in 2010 (collectively “the children”).
2.In exercising equal shared parental responsibility for the children pursuant to Order 1, the Mother shall:
(a)as far as practicable, provide the Father with not less than twenty-either (28) days’ notice in writing of the decision she is considering making;
(b)consider any feedback or input provided by the Father in response to her proposal; and
(c)inform the Father in writing of the decision she has made.
3.The children live with the Mother.
4.The children spend time with their Father:
(a)from the date of these Orders and for a period of two months, fortnightly supervised by the D Family Services for three (3) hours at the Father’s expense;
(b)thereafter and for a period of two months, on every Saturday or Sunday (as agreed) from 9.00am to 6.00pm;
(c)thereafter, for a period of a further three months, each Friday after school/or 3.00pm until 6.00pm Saturday;
(d)thereafter, for a period of a further six months, on a fortnightly basis after school/or Friday 3.00pm until 9.00am Monday; and
(e)thereafter:
(i)week 1: after school/or 3.00pm Friday until 9.00am Monday; and
(ii)week 2: after school/or 3.00pm Tuesday until 9.00am Thursday.
5.Changeover, shall occur at school or at McDonalds Suburb E if it occurs outside of school hours. Changeover in order 4, the father shall collect and drop off the children at F School.
6.Upon the Father’s time progressing to the time set out in Order 4(e), the Father shall spend time with the children during the school holidays:
(a)for NSW school holiday period commencing after school on the last day of term and concluding at 6.00pm on the day midpoint of the holidays in even years.
7.Conditional on the Father’s time with the children progressing pursuant to Order 4, and notwithstanding any other Order, the children shall spend additional time with the Father;
(a)on Father’s Day from 9.00 am to 6.00 pm;
(b)on the Father’s Birthday from after school until 10.00 pm if it is a school day, or 9.00 am to 6.00 pm if it is a non-school day;
(c)on the children’s birthday, from after school until 10.00 pm if it is a school day, or 2.00 pm to 7.00 pm if it is a non-school day;
(d)from 3.00 pm to 7.30 pm on Diwali and Vaisakhi; and
(e)
on Christmas in odd numbered year, 24 December 2023 at 2.00pm till 2.00pm on
25 December 2022 and thereafter, with the children to spend from 2.00pm on 25 December 2022 to 2.00pm on 26 December 2022.
8.Notwithstanding any other order, children spend time with the Mother:
(a)for NSW school holiday period commencing after school on the last day of term and concluding at 6.00pm on the day midpoint of the holidays in odd years;
(b)on Mother’s Day from 9.00 am to 6.00 pm;
(c)on the Mother’s Birthday from after school until 7.00 pm if it is a school day, or 9.00 am to 6.00 pm if it is a non-school day;
(d)on the children’s birthday, from after school until 10.00 pm if it is a school day, or 2.00 pm to 10.00 pm if it is a non-school day; and
(e)
on Christmas in odd years, from 2.00pm on 24 December 2023 to 2.00pm on
25 December 2023 and thereafter.
Therapy, Counselling and Testing:
9.The Father’s time pursuant to Orders 4(b), 4(c) and 4(d) is conditional upon:
(a)the Father, within seven (7) days of the date of these Orders, attending upon his GP for the purposes of obtaining a mental health care plan and referral to a suitably qualified psychologist with experience in dealing with anger management and family violence;
(b)commencing at the earliest opportunity, appointments with a psychologist for the purposes of addressing his anger and family violence issues;
(c)following all treatment recommendations of the psychologist, including frequency of appointments;
(d)continuing to attend appointments with the psychologist (or any other psychologist if the psychologist ceases to be available) until such time as recommended but for a minimum of 12 months from the date of the first attendance with that psychologist; and
(e)causing the psychologist of provide to the Mother, every two (2) months for a period of 12 months, a letter setting out his compliance with this Order.
10.In the event that the Father fails to comply with Order 10, then his time pursuant to the Orders will be hereby suspended and the father shall spend time with the children pursuant to Order 4(a) only.
11.The ICL shall provide to the Father’s psychologist a copy of:
(a)these Orders;
(b)the Family Report of Ms G dated 1 April 2021;
(c)the affidavits of the Mother and the Father filed in these proceedings without the Annexures or Tender Bundle, except for the emails referred to at [21] of the Mother’s affidavit; and
(d)a copy of these Reasons
12.The parties shall do all things necessary to continue the children engagement in the Anchor program at Suburb H for as long as the program facilitator deems their engagement necessary.
Communication:
13.The parties shall keep each other informed of:
(a)any serious medical problems or illnesses suffered by the children or either of them whilst in their care; and
(b)any medication that has been prescribed for the children.
14.For the purposes of communicating information as between them, the Mother and Father shall communicate by way of text message except in the event of an emergency, where the parties shall communicate with each other by any means to cause the other parent to be contacted as soon as reasonably practicable.
15.Each parent shall keep the other parent advised of their current address and contact telephone numbers (including both landline and mobile phone number, if applicable) and advise the other parent of any changes to these details within seven days of such change occurring.
16.Each parent is at liberty to communicate with the children by telephone on any Wednesday that the children are not in that parent’s care between 7:00 pm and 7:30pm with the call to be not in excess of 15 minutes in total on any occasion.
School and Other:
17.Each party is hereby authorised to obtain from the children’s school all letters, notices, school reports and invitations ordinarily provided to parents.
18.The parents shall take all steps to take the children to their extra-curricular activities during their time with the children.
19.The parties are both at liberty to attend all school functions and events to which parents are invited including but not limited to parent teacher nights, school carnivals, excursions, graduations, extra-curricular activities, school assemblies and awards events.
20.Each parent be and is hereby restrained from:
(a)discussing these proceedings or any allegation made in the proceedings with the children;
(b)from consuming alcohol such that their blood alcohol reading would be above that permitted to legally operate a motor vehicle in the state of NSW, whilst the child is in their care;
(c)showing the children any document pertaining to these proceedings;
(d)denigrating the other parent or any member of their family to or within the presence or hearing of the children and they shall each use their best endeavours to ensure that no other member of their family does so; or
(e)subjecting either of the children to any form of physical punishment.
AND THE COURT NOTES THAT:
A.The Father’s sister, Ms J is content to facilitate contact between her three children and the Father and his children in a home setting including family meals when she and her husband Mr K are able to participate in such family gatherings. The Husband’s sister is aware of the allegation made by the Mother against the Father.
B.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Ardema & Wakeling has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Delivered Ex Tempore – Revised From Transcript)Judge McNab
INTRODUCTION
This matter commenced by initiating application filed on 13 April 2019 with the Father seeking parenting orders in respect of two children, Y and X both born in 2010, and who will turn 12 shortly. The proceeding has come to involve property issues.
The matter was fixed for final hearing on 23 March 2022 for a three-day hearing involving both parenting and property issues. On 23 March 2022, the Court stood the matter down at the request of the parties' Counsel for the purposes of seeking to resolve the property issues. On 24 March 2022, the matter proceeded to hearing in order to determine the parenting issues only, as the Court was advised by Counsel that the property aspect had nearly settled or alternatively was settled. On the basis of that, the proceedings have been heard as a parenting case.[1]
[1] The Court has been subsequently advised that the property matter has not resolved.
In this case, each party had the benefit of experienced Counsel and the Independent Children’s Lawyer (“ICL”) by her Counsel played an active and constructive role in the hearing. Unlike many cases that are dealt with at final hearing, where there is no adjustment to any parties' proposal following the hearing, almost as if the hearing did not occur, there has been movement from both parties and the ICL responsive to the evidence as it unfolded.
For this reason, many of the controversies that I may have had to have resolved have fallen away. In real terms, the differences between the parties have narrowed. The issues in dispute relate to the period in which the time between the children and the Father should be professionally supervised and when the time moves to unsupervised time and if that time then moves on to overnight time.
BACKGROUND
The parties married in 2005 as a result of having been in an arranged marriage. It appears from both parties' point of view that this has not been a happy marriage for a long time and there was a high level of animosity between the parents. There have been periods of separation where the Mother and the children went to India, for instance, in 2010, and then in 2013 from January 2013 to March 2014.
The Mother makes serious allegations of family violence on the part of the Father towards her and the children over the course of the relationship and certainly since about 2013 in relation to the children. These include allegations of the Mother being hit and beaten by the Father. The Father has been the subject of very clear correspondence from his younger sister as long ago as 2010 in regards to his failure to control his temper. That correspondence was in evidence before the Court and the subject of cross examination.
That most troubling material was contained in documents subpoenaed from the Department of Community and Justice helpline assessment team, which set out calls from persons who were under an obligation to report child safety issues. I am not aware of the identity of the reporter, but I suspect it was a school teacher, a psychologist or a counsellor to the children.
The notes set out concerning conduct that has been reported in relation to the Father. For instance, in a report made on 5 February 2021, there are reports that somebody raised concerns in relation to the Father: (see Exhibit ICL 1):
Concern for the child/young person(s):
The children have weekly contact with their Father who is both verbally and physically abusive towards them. The Father, Mr Ardema regularly pinches Y as a means to discipline her leaving marks on her arms. He has also slapped X on two occasions. The Father regularly yells at the children and puts them down. This is impacting on their psychological wellbeing.
Concern about parent/carer/house members:
The parents are separated and there is a history of domestic violence in the relationship prior to separation. The children describe behaviours of the Father that are consistent with ongoing domestic violence directed towards them. This includes verbal abuse, controlling behaviour and physical abuse.
Known impacts on the child/young person:
The children have both experienced physical harm from pinching and slapping. They experience ongoing psychological harm due to yelling and controlling behaviours of the Father.
These reports refer to other reports made through 2019. I will not read them all and they speak for themselves and they were in evidence before the Court, but they are concerning. The Father has denied the allegations of family violence as set out in these reports and the allegations made by the Mother.
The Father in his evidence initially did not admit to engaging in any family violence. That position changed somewhat as a result of cross-examination by the ICL. Under cross-examination by Counsel for the Mother he stated he had completed an anger management course in 2013. In that evidence, he said that that was not the first time that he had completed a course and he had done a previous course in anger management. When he did the course in 2013, he did it in order to “handle situations better”. He said that he needed more education, but he said that he had never had an anger issue. He thought that the course taught him how to behave around people when they are “not giving you respect”.
The Father stated that the objective of the course was to teaching him how to diffuse situations in a better way. He denied that there was any particular need for him to go to a anger management course, but said he was simply seeking knowledge and he said there was no particular reason for doing it. As I said earlier, he claimed not to have an anger issue.
Whilst the Father denied that he had an anger management issue, there has been evidence given by the Mother, his Sister and the Paternal Grandmother which supports a finding that the Father has significant anger management issues. Evidence has been given that he has behaved in an angry way over the years; and, as the Paternal Grandmother said in her oral evidence, that she effectively could not control him. The reports of his behaviour are not all historical.
In relation to the reported comments of the children, his response throughout his evidence was that they were either exaggerating or that they had been brainwashed by the Mother and her family.
To a great extent, the controversy of whether there was family violence and the extent of it is quelled. The Father has proposed by his orders that he spend supervised time for a period of time and that any non-supervised time be conditional upon him obtaining a referral and attending upon a suitably qualified psychologist in order to deal with his anger management issues. That was a course suggested by the Family Report writer in her evidence to the Court.
Lest there be any doubt, I do find that the Father has engaged in family violence and has done so over a long period of time. This has involved uncontrolled anger, pushing and hitting the Mother and physically disciplining the children while angry. It is notable that he said that he attended the first anger management course in 2013, although he said he never had anger management issues, because it helped in learning “how to behave with other people when they are not going to respect you.”
It may well be that the Father has a distorted concept of the notion of respect: because when a person does not agree with you or because an 11 year-old child answers back is not necessarily a display of lack of respect. It may, in fact, be the exercise of independent thought. It is hoped that by engaging in directed psychological therapy for an extended period, it will assist the Father with dealing with these matters.
The Father has in the past had issues with gambling (as referred to in his own correspondence with his sister which was attached to the Mother’s affidavit evidence) and he raised that he had conflict with co-workers in the workplace that he had attended and that was one of the reasons that he had attended one of the anger management courses. He has had significant conflict with his own family and with the Mother and her family. For those reasons, I endorse the orders proposed by the Father that he engage with a psychologist to assist him with these longstanding issues. Those orders were also sought by the ICL and the Mother.
THE PARTIES’ PROPOSALS
In cross-examination, the Mother said that the Father's strengths were that he could offer love, care and a safe environment if he was able to control his anger. The Mother presented as a person who was exhausted by the process of litigation and the ongoing stress of dealing with the father's verbal and physical aggression. She had initially proposed very restrictive periods for the Father to spend time with his children with supervision to remain in place for two years. That proposal has been modified.
The relevant points of difference are those that I have raised earlier. The Mother by her orders proposes by order 4 of the proposal that the children shall spend time with the Father as follows:
a.from the date orders and for a period of six (6) months fortnightly supervised by D Family Services for three (3) hours at the Father's expense;
b.thereafter for a period of three months on the first Saturday of each month from 9.00am to 6.00pm unsupervised;
c.thereafter for a period of three (3) months each alternate Saturday from 9.00am to 6.00pm unsupervised; and
d.thereafter from each Saturday from 9.00am to 6.00pm.
Orders 4(b), (c) and (d) are conditional upon the Father attending upon a psychologist. There are other minor variations within the orders.
The Father, by his proposal, in relation to spend time, proposes that the supervision under Order 4 which is set out below:
a.From the date of these orders for a period of one (1) month, fortnightly supervised by the D Family Services for three (3) hours at the Father's expense;
b.Thereafter and for a period of two (2) months, on every Saturday or Sunday (as agreed) from 9.00am to 6.00pm;
c.Thereafter, for a period of a further two (2) months, each Friday after school/or 3.00pm until 6.00pm Saturday; and
d.Thereafter, for a period of a further (2) months, on a fortnightly basis after school/or Friday 3.00pm until 9.00am Monday; and
e.Thereafter:
i.Week 1: After school/or 3.00pm Friday until 9.00am Monday; and
ii.Week 2: After school/or 3.00pm Tuesday until 9.00am Thursday.
The ICL proposed spend time arrangements as follows:
a. From the date of these Orders and for a period of three (3) months, fortnightly supervised by the D Family Services for three (3) hours at the Father’s expense;
b. Thereafter and for a period of three (3) months, on the first Saturday of each month from 9.00am to 6.00pm;
c. Thereafter, for a period of a further (3) months, each alternate Saturday from 9.00am to 6.00pm; and
d. Thereafter, each alternate Friday from after school until Saturday 6.00pm.
There are various orders dealing with pick-up and drop-off for the overnight time that are not controversial.
The parties have agreed to orders in relation to parental responsibility in the following terms:
(a)the parties have equal shared parental responsibility for the children;
(b)in exercising shared parental responsibilities for the children, the Mother shall, as far as practicable, provide the Father with no less than 28 days’ notice of a decision she is considering making in relation to the children; and
(c)the Mother is to consider any feedback or input by the Father in response to her proposal and then inform the Father in writing of the decision she has made.
THE FAMILY REPORT
I have regard to the contents of the Family Report prepared by Ms G, dated 5 May 2021. I refer to the accounts given by the children witnessing the Father's anger: (see Family Report 97-98); the observations of the Father's time, albeit that observation was conducted by Microsoft Teams and note that it was positive and without incident: (see Family Report 100-107).
In her oral evidence, the Family Report writer emphasised that if the Father continued to subject the children to angry outbursts or physical discipline, they would simply refuse to spend time with the father. Given that they are now aged 12 and at high school, they are able to report what happens and they are able to think independently. At [127] of the Family Report, the report writer made the following recommendation:
If the Court finds there is no unacceptable risk, it is recommended that Y and X spend five nights a fortnight with the Father given the (children's) views. This may need support through family therapy where the family has the opportunity to engage in rebuilding their trust in each other.
The Family Report writer also emphasised that ongoing supervision is not sustainable for the purposes of establishing a meaningful relationship between the Father and the children. The Family Report writer recommended that the Father engage with a psychologist to address the family violence issues that have been raised and found to have occurred.
The ICL made particularly powerful submissions regarding the need for a cautious approach. She pointed out:
(a)the Father's lack of insight into his behaviour and his tendency to blame the Mother;
(b)that his approach to previous courses have been a "tick-a-box" exercise with apparently no insights being gained; and
(c)that supervised time should continue for three months until the counselling psychological assistance had time to have any effect.
CONSIDERATION
By operation of s60CA of the Family Law Act 1975 (Cth) (“the Act”), the Court is required to have regard to the best interests of the children as the paramount consideration when making parenting orders. To determine what is in the best interests of the children in this matter, the Court is guided by the primary and secondary considerations set out in s60CC of the Act.
Primary Considerations
In terms of the primary considerations under s60CC(2) of the Act, I must have regard to the following:
s60CC(2)(a) – the benefit to the child of having a meaningful relationship with both the child’s parents;
s60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in (2)(b). That is, the need to give greater weight to the need to protect the children.
The orders that I have made acknowledge that the Father has had issues with anger management and there is a need to protect the children from angry behaviour which is different from giving appropriate directions or insisting on appropriate behaviour in children.
The requirement that the Father undertake lengthy psychological counselling which is subject to an obligation that the psychologist reports to the Mother every two months is a protective measure.
The Father resides in a close family with his parents who are aware of these proceedings. The Father’s sister and brother in law who gave evidence, impressed as witnesses who appreciated the need to protect the children from harm.
It is also anticipated that once these proceedings resolve, the high level of emotion that was evident from both the Father and the Mother may move to a level whereby both parents can focus on the business of being parents to soon to be teenage children than focusing on their litigation.
I did not order the more prolonged period of supervised time sought by the Mother and the ICL as I accept the evidence of the Father and his Mother that the children appear to be sick of spending time with a supervisor present. I also note that there have been ongoing issues for both parents about the choice of professional supervisors which added tension between the parties. The tension that creates is more likely to disrupt the Father maintaining a meaningful relationship with the children. I note that much of the time that the Father spends with the children is with other adults. I also take into account that the children are able to repeat to the Mother concerns they have regarding the Father’s behaviour. I regard the further period of supervised time complied with the Father engaging with a psychologist to be sufficient to address the risk of harm to the children.
Secondary Considerations
In addition to the primary considerations, I must have regard to s60CC(3). The additional considerations are set out below.
s60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
The Court has had the benefit of the observations and the Family Report, which sets out the children's views at [87]-[99] and both of the children expressed reservations about spending the time with the Father if he was not able to control his anger. But neither the children did not want to spend time with him. Otherwise, I refer in full to the views expressed by the children in that report.
s60CC(3)(b) – the nature of the relationship of the child with: (i) each of the children’s parents; and (ii) other persons (including any grandparent or other relative of the child);
The Mother is the primary carer of these children, but they clearly have a relationship with the Father, but it is strained at times. The evidence is that they wish to have a relationship with the Father and I have no doubt that he has a lot to offer them.
The children have a close relationship with their Grandparents and their wider family and, in particular, with the Paternal Aunt and Uncle, who they seem close with and together with the children of that Aunt and Uncle. One of the benefits for this family is that they do have a wider family support network.
s60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
There has been no failure on the part of either of these parents to be involved in the children's lives.
s60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
There is no evidence of a failure to maintain by either of the parents.
s60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
These orders do not involve any major separation. I think the children are old enough to handle overnight time, as long as the Father is able to maintain his composure and not become angry either verbally or physically with the children. For the reasons stated above I consider that the orders for ongoing psychological assistance will assist the Father to safely parent the children.
s60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis;
These orders do not create any impediment to the children spending time and contacting both the parents on a regular basis.
s60CC(3)(f) – the capacity of: (i) each of the children’s parents; and (ii) any other person (including any grandparent or other relative of the children), to provide for the needs of the children, including emotional and intellectual needs;
In terms of capacity, there is no issue of capacity of either of these parents. The issue is whether the Father can actually just focus on maintaining composure and behaving appropriately towards the Mother and the children.
s60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant;
This is not an issue.
s60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not an issue.
s60CC(3)(i) – the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;
There is no evidence that either of these parents are derelict in their attitude or the exercise of responsibilities. Again, the issue is the Father's behaviours.
s60CC(3)(j) – any family violence involving the child or a member of the child's family;
I refer to what I have said above.
s60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the Court in, or in proceedings for, the order; (v) any other relevant matter;
In relation to family violence orders, there have been Intervention Orders applied for, but from my reading of the material, those orders have been withdrawn.
s60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to that child;
The reason that I made orders that make provision for a move to overnight time subject to compliance with the orders is because it sets out a path for the parties without requiring the parties to engage in further litigation about where matters proceed to after a particular period of time. The Mother's proposed orders did not proceed to anywhere after unsupervised time from 9.00am to 6.00pm on every Saturday. In my view, if the Father is complying with the orders to attend a psychologist and is not engaging in family violence, that would not be meaningful and significant time and would likely result in the Father making a further application for more time. The orders that I have made take into account the progression of time if the Father complies.
s60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant.
Both these parents are plainly intelligent and motivated parents who want their children to get the most out of life. The Father must address his overbearing and aggressive approach to the Mother and the children. On the other hand, the Mother must support the Father through the process of his obtaining professional assistance and actively encourage the children to spend time with him, particularly through the stage of supervised time, which must be irritating and constricting to 12 year-old children.
During the Mother’s evidence, I asked her what the ideal position would be if the Father was able to maintain his composure and not engage in family violence. She said that the notion of the children spending five nights a fortnight was something that she thought was a good idea, but that response was heavily qualified on the basis that it must be in a situation where the Father is not engaging in angry behaviours either towards her or the children.
The issue with the overnight time, as I see it, and the issue of the risk to the children is not whether it is during the daytime or the night-time. The children are now 12 years of age. They are not little children. They are able to report what has happened. Whether the time is during the daytime or the night-time, it is really a question of the length of the time and whether the Father can remain composed and keep things on a proper and safe level for extended periods.
Material to be provided to the Father’s psychologist
I am not requiring the supervision reports to be provided to the Father’s psychologist, the supervision reports are for the purposes of ascertaining whether a parent presents a risk to the children by his or her conduct during the supervised time. They are not a de facto Family Report where a person with unknown skills, experience or qualification expresses opinions about the quality of the relationship between the parent and the child or children. Nor are they to provide a very detailed account of every activity engaged in and provide a commentary on the quality of the food eaten, save where those matters are particularly relevant to the capacity to safely parent, such as if the child has got allergies to particular foods and it is suggested that the parent does not have the capacity to understand a child’s dietary requirements.
The family observation reports in this case went way beyond providing an account of whether the Father presented a risk to the children during the time spent. For those reasons, I will not be requiring them to be provided to the Father's psychologist.
The Paternal Aunt
In the course of the hearing, the children’s Paternal Aunt gave evidence in support of the Father. She gave clear and considered evidence and made plain that she was aware of the issues of concern regarding the Father’s displays of anger in the past. She gave positive evidence of the Father’s relationship with the children. She also gave evidence of the positive relationship that the children have with her own children.
Given that the Aunt seemed to be a sensible and measured person who was also able to communicate with the Mother, the Court raised a proposal that the Father might spend time with his children in a setting with the Aunt and Uncle in their house at a regular family dinner. This proposal was taken up and supported by the Mother and the ICL. The Father’s final proposed minute had the proposal recorded as a notation (which I have recorded in the orders). I did not make the orders as proposed by the ICL and the Mother as it had the effect of imposing an ongoing responsibility on the Aunt and Uncle in circumstances where they have their own busy work and home life looking after their own children. The notation records their willingness to assist but does not purport to impose any legal obligations.
CONCLUSION
The Father must be aware that if he engages in conduct which makes these children and their Mother feel unsafe, then they are likely to do exactly what the Family Report writer suggested would happen and simply decide that they do not want to spend time with him.
The Father must have that squarely in mind and that the attendance upon the psychologist is for the purpose of anger management training and to get assistance with some of the issues that he has had for what would appear to be a long period of time. It is not simply for the purposes of achieving a milestone in order to move to the next step in the parenting orders. The orders that I have made are there to actually give the parents and the children some real benefit, so that he can move to a position of being an active and valuable contributor to these young people's lives and not be embroiled in ongoing litigation.
Those are my reasons in relation to parenting and the orders that I make.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 1 April 2022
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