Arena & Arena (No 6)
[2024] FedCFamC1F 364
•28 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arena & Arena (No 6) [2024] FedCFamC1F 364
File number(s): WOC 1226 of 2019 Judgment of: CURRAN J Date of judgment: 28 May 2024 Catchwords: FAMILY LAW – PARENTING – Final hearing – Where orders were made by consent for the mother to have sole parental responsibility – Where the mother alleges the father poses a risk of harm to the children if they spend overnight time – Where the mother alleges coercive and controlling behaviour by the father – Where one of the children is neurodiverse – Where the children are involved in the parental conflict – Where the parents have a high conflict relationship – Where the children spend unsupervised time with the father – Whether the children should spend overnight time with the father – Where orders made for the children to live with the mother – Where orders made for the children to spend overnight time with the father – Where orders made for the children to spend special occasions and school holiday time with the father – Where the mother is permitted to take the children overseas for holidays
FAMILY LAW – EVIDENCE – s 138 of the Evidence Act – Unauthorised recordings of private conversations – Alleged contravention of Surveillance Devices Act – Consideration of the meaning of “lawful interests” – Where the mother was found to be protecting lawful interests – Where recordings admitted into evidence
Legislation: Australian Passports Act 2005 (Cth) s 11
Evidence Act 1995 (Cth) Ch 3, s 138
Family Law Act 1975 (Cth) ss 60CA, 60CC, 65Y, 69ZT, 102NA
Surveillance Devices Act 2007 (NSW) s 7
Cases cited: Amador & Amador (2009) 43 Fam LR 268
Arena & Arena (No 2) [2023] FedCFamC1F 1011
Arena & Arena (No 3) [2023] FedCFamC1F 1129
Arena & Arena (No 4) [2024] FedCFamC1F 22
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Briginshaw v Briginshaw (1938) 60 CLR 336
Fitzwater v Fitzwater (2019) 60 Fam LR 212
Isles & Nelissen (2022) FLC 94-092
McCall & Clark [2009] 41 Fam LR 483
Mazorski & Allbright (2007) 37 Fam LR 518
Marsden & Winch (No 3) [2007] FamCA 1364
Sigley & Evor (2011) 44 Fam LR 439
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 399 Date of last submission/s: 21 May 2024 Date of hearing: 28 – 31 August 2023 & 21 November 2023 Place: Sydney Counsel for the Applicant: Mr Lawrence Solicitor for the Applicant: Maguire & Mcinerney Lawyers Counsel for the Respondent: Mr McGirr Counsel for the Respondent: Mr Cataldi (on the second occasion) Solicitor for the Respondent: Houston Dearn O’Connor Solicitor for the Respondent: John Stonham & Co (on the second occasion) Solicitor Advocate for the Independent Children's Lawyer: Ms Dodson Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
WOC 1226 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ARENA
Applicant
AND: MS ARENA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
28 MAY 2024
THE COURT ORDERS THAT:
1.The children shall live with the mother.
2.The children shall spend time with the father as follows, commencing from the week of 10 June 2024:
(a)Each Thursday from the conclusion of school to the commencement of school on the Friday and from 9.00 am on Thursday to 9.00 am on Friday on a non‑school day;
(b)Each alternate Sunday from 9.00 am to the commencement of school on the Monday, or to 9.00 am on a Monday on a non-school day; and
(c)At other times as agreed between the parents in writing.
3.If the father is unable to spend time with the children in accordance with these orders, then the father must provide the mother with 72 hours written notice.
4.If the father is unable to spend school holiday time with the children in accordance with these orders, the father must provide the mother with 14 days’ written notice.
5.The children are to spend time with the father, and the children’s time with the mother be suspended on the following occasions:
(a)In odd numbered years from 3.00 pm Christmas Eve until 3.00 pm Christmas Day;
(b)In even numbered years from 3.00 pm Christmas Day until 3.00 pm Boxing Day;
(c)In odd numbered years from 3.00 pm Easter Sunday until 3.00 pm Easter Monday;
(d)In even numbered years from 3.00 pm Easter Saturday until 3.00 pm Easter Sunday;
(e)In the event that the father’s birthday falls on a day that the children are living with or spending time with the mother, then the children are to spend time with the father from 9.00 am until 4.00 pm if a non-school day, or from the conclusion of school until 8.30 pm if a school day;
(f)In the event that Father’s Day falls during a time when the children are living with or spending time with the mother, then the children are to spend time with the father from 5.00 pm the Saturday prior to Father’s Day until 7.30 pm on Father’s Day each year;
(g)During each of the school holiday periods, each Tuesday from 9.00am to 9.00am Wednesday, with such time to be under the following conditions:
(i)The additional time is not to coincide with the children’s school holiday time with the mother; and
(ii)The additional time is not to coincide with the mother’s birthday or Christmas Day.
6.The children are to spend time with the mother and the children’s time with the father be suspended on the following occasions:
(a)In even numbered years from 3.00 pm Christmas Eve until 3.00 pm Christmas Day;
(b)In odd numbered years from 3.00 pm Christmas Day until 3.00 pm Boxing Day;
(c)In even numbered years from 3.00 pm Easter Sunday until 3.00 pm Easter Monday;
(d)In odd numbered years from 3.00 pm Easter Saturday until 3.00 pm Easter Sunday;
(e)In the event that the mother’s birthday falls on a day that the children are living with or spending time with the father, then the children are to spend time with the mother from 9.00 am until 4.00 pm if a non-school day, or from the conclusion of school until 8.30 pm if a school day;
(f)In the event that Mother’s Day falls during a time when the children are spending time with the father, then the children are to spend time with the mother from 5.00 pm the Saturday prior to Mother’s Day until 7.30 pm on Mother’s Day each year;
(g)For one block period in each calendar year, from the conclusion of school on the last day of term until the middle Saturday of the school holidays to take place in either the Term 1, Term 2 or Term 3 school holiday period as nominated by the mother and subject to the following conditions:
(i)The mother is to provide the father with no less than 35 day’s written notice of the short school holiday period nominated in each calendar year; and
(ii)In the event that Easter falls in the Term 1 short school holiday period and the said short school holiday period is nominated by the mother, then the time pursuant to Order 5(c)-(d) is to proceed notwithstanding Order 6(g)(i).
(h)During the Christmas school holidays for one block period of up to 21 consecutive days subject to the following conditions:
(i)The mother is to provide the father with no less than 35 days’ written notice of the proposed dates in writing; and
(ii)The proposed dates must exclude Christmas Day.
7.In the event that the children’s time with the father does not occur as a consequence of the mother’s election to spend block time during the school holidays, then the father is at liberty to propose make up time with the children on one occasion to be nominated by the father, with such time to be under the following conditions:
(i)The make-up time is to occur in the same school holiday period;
(ii)The make up time is to not coincide with the mother’s school holiday time pursuant to these orders;
(iii)The make up time is not to occur on Easter Sunday, Christmas Day or the mother’s birthday;
(iv)The make up time is to occur from 9.00am on the nominated day to 9.00am the following day;
(v)The nominated day shall not be the day immediately prior to or immediately after a day that the children would otherwise be in the father’s care; and
(vi)The father is to provide no less than 14 days written notice to the mother of the day nominated for the make up time.
8.Pursuant to s 65Y of the Family Law Act 1975 (Cth), the mother be permitted to remove the children from the Commonwealth of Australia for the purposes of international travel, provided that the mother provides the father with at least eight weeks’ written notice of her intention to travel with the children, including providing the father with travel dates, destination, means of travel, and contact arrangements for communication between the father and the children whilst they are overseas.
9.Pursuant to s 11 of the Australian Passports Act 2005 (Cth), upon the mother’s application to apply for or, renew a passport for the children X born 2009 and Y born 2010, such passport be issued to the mother without the need for the Father’s signature or consent and will thereafter remain in the Mother’s possession.
10.Should the mother travel interstate with the children, she will notify the father one week prior to the travel of the destination and the dates they will be away.
11.The children have telephone, Skype or similar electronic contact with the parent that they are not with at the relevant time, as follows:
(a)At any other reasonable time as requested by the children; and
(b)For X, each Tuesday between 6.30pm and 7.30pm.
12.To facilitate the communication referred to at Order 11 herein, the other parent shall assist X to place the call and provide the children with privacy during such conversations.
13.In the event of the child suffering a medical emergency requiring medical attention whilst in the care of either parent:
(a)The other parent is to be notified as soon as practicable;
(b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable; and
(c)The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them upon request.
14.The mother is to do all acts and things necessary to irrevocably authorise any doctor and specialist upon whom the children, or either of them, attend to forward to the father, at his expense, copies of any medical reports.
15.The mother is to do all acts and things necessary to irrevocably authorise any school attended by the children, or either of them, to forward directly to the Father copies of all of each child’s school reports, individual education plans and any written material pertaining to each child’s academic and extra-curricular activities.
16.Within 7 days of the date of these orders the parties will exchange their current mobile phone number and email address and each party keep shall the other informed of their current mobile phone number and email address within 24 hours of any changes occurring.
17.Order 2 of the orders dated 31 August 2024 be discharged.
18.The parents are to do all things necessary to changeover the children as follows:
(a)All changeovers that occur at the conclusion or commencement of a school day are to take place at the children’s school;
(b)For all other changeovers, the parents or their nominated person shall changeover the children at the BP Service Station, G Centre, Suburb H; and
(c)Each parent is to remain in their motor vehicle except in the case of an emergency.
19.The father complete the courses “[J Program]”, or similar, and “Parenting after Separation”, or similar.
20.The father is to undertake a period of counselling on a monthly basis or as otherwise recommended by his treating psychologist for a period of not less than 12 months.
21.A copy of these orders and reasons for judgment be provided to the father’s treating psychologist.
22.The mother be permitted to provide a copy of the orders and these reasons to any of the children’s treating psychologists or counsellors.
23.It is requested that the Court Child Expert Ms C meet with the children to explain the effect of the orders, and the Independent Children’s Lawyers is to liaise with Ms C for such purpose.
24.After compliance with Order 23 above, the Independent Children’s Lawyer will be discharged.
THE COURT NOTES THAT:
A.The existing orders for the children to spend time with the father will continue until the commencement of the final spend time with orders on 10 June 2024.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Arena & Arena has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CURRAN J:
INTRODUCTION
These proceedings are competing applications for parenting orders in respect of X, born 2009 (15 years old) and Y, born 2010 (13 years old) (“the children”). They are the children of the applicant mother, Ms Arena, born 1975 (“the mother”) and the respondent father, Mr Arena, born 1973 (“the father”).
The key issue in dispute in this matter is in respect of the time the children should spend with the father. The mother seeks orders for the children to spend no overnight time with the father but to spend each Thursday from after school until 8.00 pm and alternate Sundays from 9.00am until 4.00 pm with the father. The father seeks orders that the children spend overnight time with him, graduating until they reach an equal time arrangement.
BACKGROUND
The parties commenced cohabitation in 1997. The parties married in 2004. The parties’ first child, X, was born in 2009 and was 14 years old at the time of the final hearing, and is now 15 years old. The parties’ second child, Y, was born in 2010 and was 13 years old at the time of the final hearing. The parties separated on a final basis on 9 August 2019, when the mother moved out of the former matrimonial home with the children.
X has special needs, being diagnosed with Autism Spectrum Disorder (“ASD”), moderate intellectual disability, attention-deficit/hyperactivity disorder (“ADHD”), anxiety, and speech delay.
Ms C (“the Court Child Expert”) described Y as an intelligent, compliant, and sensitive child, under immense pressure. Each of his parents describe him as a smart, sensitive, and responsible boy who cares deeply for those he loves. Y is described as mature for his age.
Since separation in August 2019, the children have lived with the mother and have not spent any overnight time with the father. The mother said she initially facilitated time after separation between the father and the children for short periods on a Friday after school until 6.30 pm, and for several hours on each Sunday.
The mother arranged for Y to attend upon Counsellor Mr K at L Psychology at Suburb M in late September 2019. After his first session, Mr K recommended that the children should only spend supervised time with the father.
The children ceased spending time with the father on 5 October 2019, following allegations of risk to the children in the father’s care, including Y’s alleged disclosure to the mother that the father had hit him in the stomach. The mother asserts that she ceased the children’s time with the father because she was concerned that the father was unable to control his anger and she had concerns for the children’s safety and welfare.
On 28 October 2019, proceedings were commenced by the mother by way of filing an Initiating Application in what was then Federal Circuit Court. The matter was transferred to the Family Court of Australia on 20 November 2020 by his Honour Judge Altobelli, as he then was.
On 4 December 2019, interim consent orders were made by Judge Altobelli. Those orders engaged Dr E to undertake a private Child Inclusive Conference, and arranged for the children, on a without prejudice basis, to spend time with the father supervised by N Contact Service each Saturday from 1.00 pm to 5.00 pm, and at other times as agreed by the parties in writing.
In December 2019, the children commenced supervised time with the father, facilitated by N Contact Service. In accordance with Dr E’s recommendations, the parties and the children attended Reportable Intensive Family Therapy (“RIFT”) with Dr F in mid-September 2020. After four days of RIFT, it was agreed for the father to spend time with the children for four hours unsupervised on Sundays from 10.00 am to 2.00 pm.
On the evidence, over the following few months, unsupervised time arrangements were agreed between the parties, while they were both in contact with Dr F.
Thereafter the children spent time with the father each Tuesday and Thursday from the conclusion of school until 8.00 pm, and each Sunday from 4.30 pm until 8.00 pm. The father asserted that the changeover time was 8.30 pm. The mother said that the 8.00 pm changeover time was unilaterally disregarded by the father, as he regularly returned them late, often later than 8.30 pm. These arrangements were not formalised as orders at this stage.
The final hearing of this matter was listed over four days commencing on 28 August 2023. On the last day of the hearing, final parenting orders were made by consent in respect of sole parental responsibility, changeovers, restraints, communication, and provision of reports. Judgment was thereafter reserved in relation to the remaining issues in dispute.
After Father’s Day 2023, the mother unilaterally ceased time between the father and the children. She sought that the final hearing be reopened. The father consented to the matter being reopened.
The matter was listed for interim hearing on 21 November 2023. The matter was reopened (see Arena & Arena (No 2) [2023] FedCFamC1F 1011) and further cross examination of the parties occurred. At the conclusion of this evidence and further final submissions, final judgment was reserved.
Following the conclusion of the final hearing, the father’s Application in a Proceeding filed on 1 November 2023 in which he sought for children’s time with him to be reinstated was then heard. Orders were made on 22 November 2023 (see Arena & Arena (No 3) [2023] FedCFamC1F 1129 (“Arena (No 3)”), reinstating time between the children and their father each Tuesday and Thursday from the conclusion of school until 8.30 pm and each Sunday from 4.30 pm until 8.30 pm. This is the current arrangement for time pending final determination.
The matter was listed for further mention on 5 April 2024 for short submissions as to school holiday and make-up time. As the father was self -represented, I ordered the parties to each file written submissions on the issue. The father filed additional written submissions after the filing deadline on 21 May 2024. I have read and had regard to each of the parties’ written submissions.
ISSUES IN DISPUTE
The issues that remained in dispute between the parties were as follows:
(a)Whether there is a risk of harm to the children arising from:
(i)Family violence;
(ii)Exposure to parental conflict;
(iii)The father’s inability to regulate his emotions;
(iv)The father’s unregulated mental health;
(v)The father’s insight; and
(vi)The mother’s insight.
(b)If the risks are established, do they pose an unacceptable risk of harm?
(c)If so, can the risk(s) be ameliorated?
(d)Should the children live with the mother?
(e)Whether the current arrangements for spending daytime only time should continue (as sought by the mother)?
(f)Whether the time the children should spend with the father should include overnight time?
(g)Whether the time the children spend with the father should increase to a shared care arrangement as sought by the father?
(h)Whether the frequency of time should be reduced as sought by the mother?
(i)What weight should be afforded to Y’s and X’s wishes?
(j)Ancillary issues of travel, special occasions and school holiday time, injunctions, notification of cancellation of time, the dog, family therapy, communication, irrevocable authority, and notification of illness and change of address/contact details.
MATERIAL RELIED UPON
The parties relied upon a joint chronology dated 25 August 2023.
Applicant mother
The mother relied upon the following documents:
(a)Her Amended Initiating Application filed 21 July 2023;
(b)Notice of Risk filed 28 October 2019;
(c)Her affidavit filed 14 August 2023;
(d)Her affidavit filed 15 September 2023;
(e)Affidavit of Mr O filed 14 August 2023;
(f)Affidavit of Ms P filed 14 August 2023;
(g)Affidavit of Ms Q filed 14 August 2023;
(h)Outline of Case Document filed 14 August 2023;
(i)Documents tendered from the mother’s Tender Bundle;
(j)Factual findings dated 25 August 2023;
(k)List of issues dated 25 August 2023;
(l)Mother’s minute of orders sought in relation to school holiday and make up time filed 12 April 2024; and
(m)Her written submissions filed 7 May 2024.
Respondent father
The father relied upon the following documents:
(a)His Amended Response to Final Orders filed 27 July 2023;
(b)Notice of Risk filed 2 December 2019;
(c)His affidavit filed 16 August 2023;
(d)His affidavit filed 18 October 2023;
(e)Affidavit of Ms R filed 16 August 2023;
(f)Affidavit of Mr S filed 11 February 2020;
(g)Outline of Case Document filed 18 August 2023;
(h)List of issues dated 24 August 2023;
(i)Factual findings dated 25 August 2023;
(j)His written submissions filed 24 April 2024; and
(k)His further written submissions filed 21 May 2024, excluding any evidence.
The further written submissions filed by the father on 21 May 2024 were not filed in accordance with the directions I made on 5 April 2024. I have read and considered the submissions but have had no regard to material that was not in the form of submission including the evidence of recent communication.
Independent Children’s Lawyer
The Independent Children’s Lawyer (“ICL”) relied upon the following documents:
(a)Preliminary Child Inclusive Consultation Memorandum to the Court prepared by Dr E dated 20 December 2019;
(b)Letter from Dr F dated 15 September 2020;
(c)Family Report of Court Child Expert Ms C dated 29 June 2023;
(d)Outline of Case Document filed 18 August 2023;
(e)Documents tendered from the Independent Children’s Lawyer’s Tender Bundle received by Chambers on 24 August 2023;
(f)The ICL’s proposed Minute of Order sought marked as Exhibit 12;
(g)The ICL’s proposed minute of order sought in relation to school holiday and make up time; and
(h)Written submissions filed 10 May 2024.
No evidence was called from Dr F or Dr E. I give very little weight to the information provided by Dr F and Dr E in their reports or orally to the Court Child Expert in circumstances where the evidence was not tested.
ORDERS SOUGHT BY THE PARTIES
Independent Children’s Lawyer
The ICL sought orders as set out in the Minute of Orders marked as Exhibit 12. The mother consented to all the orders sought by the ICL, and the father consented to a number of the orders sought. Orders in respect of the areas of agreement were in the best interests of the children and were made by consent on 31 August 2023.
The remaining orders sought by the ICL set out, inter alia, that the children spend time with the father each Thursday from conclusion of school to 8.00 pm and each alternate Sunday from 9.00 am to 4.00 pm. The Minute further provided for, amongst other things, special occasion time; changeovers; travel with the children; and communication at the children’s request.
Applicant mother
The mother sought orders in accordance with the ICL’s Minute, as well as orders that: in the event the father is unable to spend time with the children he shall provide 72 hours’ notice, restraints on the father approaching the mother, that the father will not leave X unattended, and orders for the father to pay her costs.
Respondent father
The father sought orders for the time the children spend with him to progressively increase to an equal shared care arrangement.
The first stage, for three months following the date of these orders, was for the children to spend time with him from the conclusion of school on Tuesdays to commencement of school on Wednesdays (overnight time), each Thursday from the conclusion of school to 8.30 pm, and each Sunday from 4.30 pm to 8.30 pm. The following stage, for another period of three months, was for the children to spend time with the father from conclusion of school on Tuesdays and Thursdays, to the commencement of school the following day, and each Sunday from 4.30 pm to 8.30 pm. The next stage involved overnight time on Tuesdays, Wednesdays, and Sundays each week. The final stage involved a week-about arrangement, from 9.00 am on Tuesday to 9.00 am on Tuesday the following week.
The father sought orders for half of each school holiday period, special occasions time, communication with the children each Monday, Wednesday, and Saturday between 6.30 pm and 7.30 pm, restraints, and travel. On the final day of the hearing, the father also proposed three additional orders. These orders were proposed after evidence was closed and were not put to any witness, including the Court Child Expert. He sought for the parties to commence child inclusive therapy, for the father to undertake counselling on a monthly basis for a period of 12 months, and for the father to complete “[J Program]” and “parenting after separation” courses.
THE LAW
Pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the Court’s paramount consideration in determining whether a parenting order should be made, is the best interests of a child. Those best interests are to be determined by having regard: to the considerations set out in s 60CC of the Act, the objects and principles set out in s 60B, and the reasoning process set out in s 65DAA.
The considerations as set out in the Act are divided into primary and additional considerations.
The primary considerations are the benefit to the children of a meaningful relationship with both parents and the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence. The Court is to place greater weight upon the second of the two primary considerations, namely, protecting the children from abuse, neglect or family violence. The additional considerations must also be considered.
DO THE CHILDREN HAVE A MEANINGFUL RELATIONSHIP WITH EACH PARENT?
The primary considerations include the assessment of the benefits of a meaningful relationship between the children and each of their parents (at s 60CC(2)(a) of the Act).
That a meaningful relationship exists is not sufficient to warrant an order for a parent to spend time with the child. It must be established that the child will derive a positive benefit from the relationship (McCall & Clark [2009] 41 Fam LR 483 at [122]). Such relationship is one that is “important, significant, and valuable to the child” (see Mazorski & Allbright (2007) 37 Fam LR 518 at [26]).
The need to protect the child from harm takes priority over any potential meaningful relationship. As stated by their Honours Warnick and Thackray JJ in Marsden & Winch (No 3) [2007] FamCA 1364 at [77]:
…whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
It is not in contest, and I find, that the children have a meaningful relationship with both their father and with their mother.
The Court Child Expert identified the connection and the existence of a meaningful relationship between the children and each of their parents and noted that they derive benefit from those relationships. It was reported, and I accept, that the children see their mother as their primary attachment figure with whom they have a close relationship.
It was reported by the Court Child Expert, and I accept, that Y has a more limited and complex relationship with his father, but that nonetheless it is meaningful, although she notes that, in her opinion, it is disrupted. It was reported that X presented as an outspoken and unfiltered adolescent who is not always able to regulate his emotions but who was coping well enough with the current arrangements.
The evidence from both parents and from the Court Child Expert supports a finding that the children derive benefit from the relationship they have with their father. Such evidence includes the mother’s observations that X and Y were excited to buy a gift for the father prior to Father’s Day, and that in the last two months, Y has been more positive about spending time with the father and the enjoyment he derives from special activities they undertake together, such as “shooting hoops”.
The father expressed his desire to be able to further develop his meaningful relationship with the children, including through spending overnight time with them. He identified that a transition to overnight time would allow the children to undertake activities with him including waking up in his home, him cooking them breakfast, going camping and fishing, and developing relationships with those close to the father.
A "meaningful relationship” does not mean an “optimal relationship” (see Sigley & Evor (2011) 44 Fam LR 439). I accept the father has a meaningful relationship with the children under the current arrangement. I also accept that the identified benefits to the children of spending time in a routine that includes sleeping and waking at the father’s home, cooking meals together, having breakfast together, and avoiding the tension of the handovers, may add to the nature and depth of the relationship between the children and their father. This was also highlighted by the Court Child Expert in her written report and her oral evidence.
THE NEED TO PROTECT THE CHILDREN FROM HARM: S 60CC(2)(B) OF THE ACT
The mother alleges that the children spending time with the father for large blocks or overnight would expose them to harm. Her contention is the current arrangement of limited time has been beneficial, as behaviours of the children and the father are able to remain settled and contained for shorter periods of time. This too was highlighted by the Court Child Expert in her written report and her oral evidence.
The mother opposed any orders for the children to spend any overnight time with the father. Implicit in her position is that overnight time would expose the children to harm. The evidentiary basis of her contention appears to be based largely on the volatility of the parties’ relationship in the past, and the father’s explosive reactions, words, and tone, together with the identified limitations of the insight shown by the father on understanding the impact of his behaviours on the children. It is also contended that, for X, limited time with the father provides benefits to him of stability and routine, given his neurodiversity. It was agreed by both parents in evidence and in the Family Report, and I accept, that X needs stability and a predictable routine.
Pursuant to Isles & Nelissen (2022) FLC 94-092, in assessing unacceptable risk and whether there is a possibility of harm arising in the future, I am required to have consideration to all of the circumstances, including historical conduct, whether or not there is sufficient evidence to make a finding of fact on the balance of probabilities in relation to the allegations made.
When allegations of harm are raised, the relevant historical facts that establish the allegations need to be established on the balance of probabilities. However, when assessing whether there is unacceptable risk of future harm, the possibility of a risk of harm may be based on a finding of a possibility that harm has occurred in the past. The assessment is a prediction of future harm, and an assessment of the severity of the impact on the children if harm eventuates. At some point in the risk assessment, the possibility of future harm and severity of harm may become unacceptable.
THE ALLEGATIONS OF RISK
The central issue is, in essence, whether there is a risk of harm to the children if they spend overnight or longer periods of time with the father. There is no suggestion of unacceptable risk of harm if the shorter periods of time currently being spent are maintained. The mother does not suggest risk of harm in the daytime periods the children currently spend with the father, as indicated by her own application.
Exposure to family violence and risk of psychological harm
The mother alleges that she and the children were exposed to family violence perpetrated by the father, and that he has hit the children. It is contended a risk of psychological harm of the children exists by them being exposed to the father’s behaviour, including his control and coercion. She alleged that he coerced and controlled both she and the children, and caused her fear.
The mother contends that the father’s conduct poses a risk to the children both indirectly, by increasing the mother’s anxiety and impacting her parenting capacity, and directly, through his coercive and controlling behaviour, his inability to regulate his emotions, his hitting of the children, and his lack of insight in respect of his behaviour on the children.
However, the mother did not contend the risk of harm of his alleged behaviour was unacceptable, such that the children should not spend time with the father, but rather that the time should be limited to alternate Sundays from 9.00 am until 4.00 pm, and weekly time Thursday after school until 8.00 pm.
Prior to separation – alleged incidents
Prior to separation the mother detailed a number of incidents that she alleged were instances family violence, including that the father called X a “mongrel” and threatened him on 25 January 2018; the father hit the mother’s face with the back of his hand causing injury to her face; that the father hit X; that the father hit Y on the head on 29 April 2019; that the father threatened to burn the house down on 9 March 2019; and that he made threats, used demeaning language, and yelled during numerous periods prior to separation.
Incidents captured in the audio recordings
Audio recordings of a number of incidents from 2018 and 2019, being prior to the parties’ separation, were admitted into evidence. The father accepted the events had occurred and agreed that the transcripts of the events were accurate.
The audio recordings illustrate that both parents in their communication with each other during these events, failed to shield the children from their open hostility, high emotion, and arguments. In each of the arguments that were recorded it is apparent that X was distressed and likely having a “meltdown” and that Y was also present.
The audio recordings revealed that the mother said a number of critical things to and about the father, to and in the presence of the children, including:
(a)On 25 January 2018:
(i)“You really have some issues, I really want you to see someone, cause you’re destroying the family with your aggression.”
(ii)“You need help, you seriously do, you are nasty and cruel, just go.”
(iii)“You are so mean, that is disgraceful, disgraceful what you call your kid and in front of your other child. You have some, you need help. Any son, any Father that calls their kid that needs help. You need help.”
(iv)“no, you don’t call your kids names mate, but we put up with you”.
(v)“Just get out of our lives, seriously get out of our lives. Go, I don’t want my kids exposed to this anymore, just go, nasty and cruel.”
(vi)“Go away, walk away from us, walk away from him, go outside and go somewhere. Walk away. Just let him have his breakfast. Just go away. Poor [Y], your aggression, you think that is right for him. Just go, go. I’ve had enough… I don’t want to be with a man like you anymore. Go away.”
(vii)“Don’t yell like that alright, don’t yell like daddy does, okay, it’s not good, it’s not good”
(b)On 3 December 2018:
(i)“I know he scares everyone mate, I can’t let you kids live like this anymore, it’s just not fair”;
(ii)“I don’t know how many times I have to tell your dad to stop, he can’t help himself”.
(c)On 26 December 2018:
(i)“He’s scared of you mate, cause you’re just an angry aggressive man.”
(ii)“These kids don’t deserve to grow up like this, they don’t deserve, I’m doing a huge injustice, massive by staying here”.
(d)On 5 January 2019:
(i)“get out please, leave my kids alone and don’t come back”;
(ii)“I just want dad to leave mate, okay I’m tired of him swearing”;
(iii)“just whack him over the head mate”;
(iv)“all calm until the volcano comes home and creates chaos”.
(e)On 15 February 2019: “he’s just like that mate”; and
(f)On 17 March 2019: “he is always yelling mate, he is always yelling [X]”.
The mother readily accepted in oral evidence that she said critical things of the father in the presence of, and to, the children in the recordings. She conceded that the impact of this criticism of the father on the children would not be good.
The transcripts of the recordings formed part of the evidence and corroborated the mother’s evidence as to what occurred. The father acknowledged the incidents occurred, however minimised their significance and contended that:
(a)They were not illustrative of his usual conduct as a parent;
(b)The incidents were out of character as they were in the context of extreme marital stress; and
(c)They were opportunistic recordings made by the mother without the full context being available.
Even if I accepted all the father’s contentions in respect of the circumstances of the incidents not being representative of his parenting and being part of a bigger picture of marital crisis and stress, the conduct of the father generally, and specifically toward X, was deeply concerning and occurred on at least six occasions between January 2018 and March 2019.
25 January 2018 – Calling X a “mongrel”
On 25 January 2018, the father repeatedly calls X “a mongrel”. The mother says in the recording, “do not call him that … he’s your son”, to which the father replies “I don’t care, I don’t give a shit where he came from.” The demeaning language and tone used, the belittling, and the yelling of the father constitutes family violence.
Concerningly, in a later recording from 21 April 2019, Y calls the father a “mongrel” after the father is alleged to have hit him on the head. The exposure to parental conflict was likely to have influenced the children, as illustrated by Y’s copying of the father’s language in the use of the word “mongrel”.
On 25 January 2018, the father is recorded saying to X “You know what mate, your mother is going back to work tomorrow and you deal with me.” X cried and said to his mother “I want you to stay home”. The father continued saying in a menacing manner “Mate then we’ll see.” X continues with “I want you to stay home, I don’t want you to go to work Mum, I want you to stay here, I don’t want you to.”
The tone and words used by the father were threatening to X and caused the mother distress and concern as she deposed. I find that this is part of a pattern of family violence, that it was distressing for X, and that it intended to cause him fear and worry. I find that the words the father spoke also caused the mother to be fearful for X’s welfare.
The father contended that the mother was not fearful as she went to work the next day. I do not accept that contention. I accept the mother was fearful and concerned. The mother’s evidence was that she was financially stressed due to being the sole income earner at that time and felt that she had no choice. Mr O’s oral evidence was that in mid-2019 the mother was distraught and crying at work and expressed to him at that time, when he was her supervisor and friend but not then in a romantic relationship, that she was concerned about the children’s safety. Further, the mother said, and I accept, that she recorded the father on occasion as she was concerned about possible harm.
3 December 2018 – “it all goes up in flames” comment
The father taunted X on another occasion as recorded on 3 December 2018, adopting a mocking tone and repeating the wail of “no” that X was crying. In response to X yelling “no”, the father stated: “NOOO that’s all you do … that’s all you’re good at 10 years … 10 years, 10 year old”. When the mother asked for the father to leave X alone, X said “get out of my house”, to which the father responds “you know what mate (whispers) you don’t own this house and you know what if you continue like your mother says you won’t have this house anymore mate that’s the reality of it … ok it all goes up in flames mate that’s how smart you are.” The incident continued and later the father said “that’s all we have got a 10‑year‑old that screams”. X then hit the father, to which he responds with “keep your hands to yourself mate, you wanna wack someone wack your mother, cause I am over it”. The mother said, “can you stop in front of the kids – I have asked you like a thousand time how many times do I have to tell you to stop.” The recording of the incident then concludes.
The father agreed that the comment “it all goes up in flames” could have been taken literally by X. He conceded that this might have been frightening for X but maintained that it was metaphorical, in that they would likely need to sell the house if the parents separated. There is no dispute that this incident occurred. This is another example of family violence to which the children were directly exposed.
9 March 2019 – Threat to burn the house
The mother deposes that on 9 March 2019, the father threatened that he would “burn the house down” and take the children if she tried to leave him. She also alleges that the father pushed her, said that X needs to go into respite, and that X was no longer welcome in the family home. The maternal aunt gave evidence that the mother spoke of the threat to her and was fearful following this threat. The father denied that he threatened to “burn the house down”, that he pushed the mother, and the alleged comment about X. Rather, he said that X was playing with the power point connected to the vacuum, and that he intervened, stopping X playing with the power point as it was dangerous. The mother gave oral evidence that X did play with the power point on some occasions, but not on that occasion. The father gave evidence that speaking of X going into respite was a source of tension between them. I am unable on the evidence to make a finding as to the threat to burn down the house.
The father said he could not recall the alleged incident, but nevertheless denied that it occurred in oral evidence. The father deposed that in late 2018 to 2019, the conflict between the parents began to increase, particularly around the management of X. It is not in contest that the parties had an increasingly volatile relationship in this period. The father asserted that X’s behaviour deteriorated around this time. He denies that he managed X with physical violence but conceded that he “regrettably lost his patience” on occasion.
The father said “this is not the norm of how I parented those boys, and it’s not the norm how I interacted with [the mother]. There were certainly occasions where things like this happened, but it is not the norm, and four years down the track the situation has moved on from this.”
He also conceded that “in the period prior to separation, in that extremely turbulent time during the marriage, I would agree that there were times where I would have been verbally – verbally abusive towards [the mother]. Yes.” He denied, however, that it amounted to threats or intimidation. I find that the father was verbally abusive toward the mother at times prior to separation.
21 April 2019 – the alleged hit of Y in the head
On 21 April 2019, the mother said she was in the car with X when Y came running to her saying that the father had hit him. The father is recorded responding “I gave you a smack on the bottom…”. The mother responded, “why’s he holding his head?” Y then exclaimed, “It was my head, you hit my head, you hit me, you bloody liar. You hit me, you hit me on my head, you’re such a fucken liar.” Y goes on to call his father a “mongrel”.
The father denies ever hitting the children.
The fact that Y was observed holding his head, the mother’s question about why he is holding his head, and the angry response by Y are persuasive. I find that the father did hit Y as reported by him. I accept that the mother and children, on the evidence, have been exposed to family violence as alleged. As acknowledged, the inescapable fact is that the recordings disclose family violence within the meaning of the Act.
29 July 2019 – Allegation of the father hitting the mother
The mother alleges that on 29 July 2019, she was trying to prevent the father from hitting X, the father then pushed her in the chest and the later hit her on the face with the back of his hand while both children watched. She said she felt a nail dig into her skin.
In relation to this incident, the father gave evidence that:
That was an occasion where we just had an argument and we were both in proximity –both in close proximity to one another and I attempted to get out of the way and I just lifted my hand up, and there was no intention – there was never any intention to strike or hit [the mother], or cause harm or do anything of that nature to [the mother]. And I have never, ever, in the 23 years of my relationship, ever laid a finger on her, and that is my evidence and that is my truth. I’ve never, ever done that to [the mother].
He gave further evidence that it could have been his nail that hit the mother, with a “slight flick”. He denies that this incident happened after he threatened to hit X.
The father says this occurred on a different date, and that he contacted the police because the mother pushed him following an incident where X was misbehaving, and that he picked him up to cause a “time out”. The father states that when police arrived, he retracted his complaint as he was concerned for the mother.
The mother deposes that this incident occurred in mid-2019. The mother accepted that she pushed the father on this occasion, however she said that she did so to stop the father from hurting X. While conceding this was an incident of family violence, the father vehemently denied physically hitting the children and he denies deliberately striking the mother, although accepted an incident where he says he accidentally touched or flicked the mother. The photographs of the mother show that she sustained an injury at the time.
The Court Child Expert reported at [27] of the Family Report that “[the father] said that, once during an argument, he stepped back and lifted his arm and “kind of scratched” [the mother] in the face.”
I find that this was an incident where there was high emotion between the parties during conflict and that the father did strike the mother’s face but accept his evidence that it was not deliberate.
Allegations the mother assaulted X pre-separation
The father made allegations that the mother had perpetrated family violence against him and X. He said the mother assaulted him and, on a number of occasions in mid-2019, she screamed at X, slapped him across the back of the head and face, dragged him across the floor, and dragged him from a car. He also said he witnessed her physically chastising both children including slapping and hitting them. The mother denied these allegations.
There were no corroborative reports or complaints made by the children to any other party or to the family consultant. The police records dated mid-2019 record that both parties called the police after heightened tensions following a disagreement about discipline of X. The father withdrew his assertion that he was pushed by the mother. The records do not contain any material that indicates any report or concern was made at that time of the mother assaulting the children.
The father’s evidence was that on 11 June 2019, he witnessed the mother slap X across the back of the head. He says that on 2 July 2019, she violently dragged him across the floor and slapped him around the face. He says that on 16 August 2019, she violently dragged X from her vehicle. It is not clear whether Y was present at any of the alleged times. The children did not report these matters to any person, noting Y saw Mr K shortly after this time, and that he reported to the Court Child Expert incidents where he alleged the father had been violent that he had spoken to the mother about. These incidents were specifically put to, and denied by, the mother.
There were no doubt periods of high tension in the home both due to parental conflict and X’s meltdowns, however, I am not satisfied on the evidence that the mother perpetrated family violence as alleged. I find that on one occasion, the mother pushed the father and that at the time she did so to protect X.
Post separation – alleged incidents in 2019
The mother details a number of post-separation incidents that she contends were the father perpetrating family violence, including:
(a)Hitting X across the head for beeping the car horn 25 August 2019;
(b)Hitting X on the leg with the dog’s lead 15 September 2019; and
(c)Hitting Y in the stomach 5 October 2019.
25 August 2019 – Allegation of the father hitting X on the head
The mother alleges that after collecting the children from their time with the father on 25 August 2019, Y said, “Dad yelled at us and hit [X] across the head for beeping the car horn”.
The mother sent a message to the father saying this was not acceptable. The father responded saying that the children were lying.
The mother arranged for Y to attend Mr K at L Psychology at Suburb M in late September 2019. After Y’s first session, Mr K requested that the mother contact him. On 5 October 2019, she states she made that contact, and Mr K told her that Y had told him that he witnessed the father hitting X across the head and screaming. Y allegedly reported that he was sad because he wanted to help his brother but was scared he may be hurt.
A record of Mr K dated 5 October 2019, contained in Exhibit 10, states “I asked about [X], [Y] became extremely agitated, started crying and said “he hit him on the head”, I asked “just once?” [Y] replied “no lots”.”
The father denies hitting him on the head.
Y made a contemporaneous report to his mother about the incident. He reported it to his counsellor the following month. He maintained it occurred when discussing it with the Court Child Expert, who gave his report weight due to his age and his consistent disclosures.
15 September 2019 – Allegation of the father hitting X with the dog lead
The mother alleges that on 15 September 2019, X said to her when she was driving the children home after their time with the father that “Dad hit me on the leg with [the dog’s] lead.” She asked Y, “Is that what happened?” Y replied “Yes. [X] was throwing sand.”
This contemporaneous report was made by both children to the mother.
The father denies ever striking, hitting, or harming the children.
5 October 2019 – Allegation of physical violence by the father hitting Y in the stomach
The mother alleges that on 5 October 2019, the children spent time with the father and when they returned to her care, Y said “We took [the dog] for a walk […]. I tried to call you on my watch but dad took it from me and hit me in the stomach”.
The father said that this did not occur. The father has maintained that Y is also lying about this incident. The mother deposed that she cannot recall any incident she was aware of where Y has lied, and stated she always encourages him to tell the truth.
Y has made the same report of the father hitting him in the stomach to a number of people over many years.
The Court Child Expert gives weight to the consistent disclosure that Y has made regarding the allegation of the hitting given his age, and as it has been given on a number of occasions, to a number of people. The Court Child Expert accepted the truth of his report.
25 October 2019 to 10 December 2019 – The scrap book entry
The mother gave evidence that between 25 October 2019 and 10 December 2019, she found concerning notes Y made about the father in a scrap book. These notes were annexed to the mother’s affidavit and read:
Kill dad he belongs in hell…
Dad yells he called my brother a fucker turd and other mean words. He hits me and my brother across the head...
It was submitted on behalf of the father that there is not the benefit of any evidence to corroborate the accounts of other people who say that Y told them it occurred and that the only evidence of this incident are “second-hand reports from [Y]”, and that this does not satisfy the standards set out in Briginshaw v Briginshaw (1938) 60 CLR 336.
The father vehemently denies ever hitting or harming the children.
I do not accept the submission that Y’s reports should not be accepted because “the only evidence of the behaviour alleged is from second hand reports from [Y].” It is significant that both Y and X reported to their mother the allegation of X being hit with the dog lead and that Y reported the other incidents to his mother shortly after they are alleged to have occurred. I give some weight to the fact that Y is noted as being a mature child. Y told his psychologist that the father had hit X and he said the reports he made were truthful to the Court Child Expert. I also note that he included in his scrapbook that his father had been mean and had hit both children across the head.
I have also carefully considered the evidence of the father that Y acknowledged he had not told the truth. It is possible that Y has not been truthful, that he has exaggerated or that he has been entirely truthful. Y consistently reported being “hit” and that the mother reported Y said he had been “hit in the stomach”.
I am satisfied that the evidence and corroboration of evidence supports a finding on the balance of probabilities that the father did hit X on the head as reported by Y, did hit X with the dog lead as reported by both children, and did hit Y in the stomach as reported by Y.
I form this view because there is a history of allegations of the father hitting the children, for example, the recorded incident on 21 April 2019 referred to in paragraph 70. I also give weight to the multiple and contemporaneous reports made by Y to his mother; his report and distress when speaking with Mr K; his report to Ms C; the scrap book entry and its contents; and the corroboration by X of the incident with the dog lead.
Additionally, the incidents were at a time shortly after separation and appear to be inherently plausible.
I am satisfied on the balance of probabilities that the father hit X and Y as alleged.
Coercive and controlling behaviour
The mother alleges that the father was very controlling throughout the relationship, refusing to give her a key to the house, rather just a garage remote; that he refused to allow X’s dog to go with the mother and the children after separation; and that he questioned the children about the mother’s household. Although he denied that the mother only had access to the house by garage remote, he agreed he refused to allow the dog to go. The dog was ultimately taken by the mother without the father’s consent which remains an issue of conflict some four years later.
I am unable to make a finding on the evidence that I am satisfied that the behaviour alleged in respect of the control occurred or that it amounted to conduct that was coercive and controlling behaviour.
The mother’s fear
In relation to the father’s alleged behaviour, yelling and arguments, the mother said that she is fearful of the father and that she finds him to be an invasive and pervasive person. It was submitted that when she was told that the father was questioning the children about what is happening in her life, it made her feel uncomfortable. The father denied questioning the children in a way other than in normal engagement about the children’s own activities.
The mother gave evidence of engaging medical providers to manage her stress levels. This was not disputed. Her current partner gave evidence that he reads emails from the father before she does to reduce her anxiety and stress. He also gave persuasive evidence of her stress and anxiety response in relation to a trip to Melbourne, referred to below.
The mother presented as a frank and direct witness. She acknowledged that her behaviour at times would have had a negative impact on the children. I found her to be a witness of truth. I accept her evidence as to her fear of the father and as to the reports made to her by Y and X.
The questioning of X about “the lies”
The father gave evidence that he had conversations with Y “about him lying”. The father maintained that Y was lying about being hit by the father. He said that, on the advice of his psychologist, he had a conversation with Y about why Y was lying. The Court Child Expert deposed that this “is a poor parenting choice to so actively involve a child in the heart of the parent dispute like that.”
In re-examination, the father stated that he would do the same again in respect of questioning Y to “get to the bottom of it” with him. This raises concerns that despite having read the Family Report, the father may have gained little insight as to the impact of this embroilment into the conflict of Y by the father. However, in re-examination the father also gave evidence that he would seek professional advice as to how to best address what was described by the Court Child Expert as a “tricky” issue to navigate. The expert accepted that this shows some insight. I agree with this analysis of the expert.
The father’s capacity to regulate his emotions
The father accepted he has had periods where he has struggled to regulate his emotions. The Court Child Expert observed that the father’s “capacity to contain his anxiety… or to be able to openly engage in [the interview] was, at times, limited.” The father’s conduct during the final hearing referred to below also indicated some limitation in his capacity to regulate his emotions at times.
Exposure to parental conflict
The ICL contended, by reference to the Court Child Expert’s opinion, that ongoing parental conflict poses a risk to the children of psychological harm. I accept this contention of the ICL. The level of parental conflict is high and apparently increasing.
The parents have had a fraught co-parenting relationship even before separation. Prior to separation, the father stated that the relationship involved “high parental conflict around the management of the children”. The mother gave oral evidence that she and the father were not communicating properly prior to separation and that she was “miserable”. The mother agreed there was “no love lost between the parties.”
The pressure that the ongoing parental conflict has placed on Y is of particular significance. The risk of psychological harm to Y due to this conflict is one of the risks identified in the Family Report.
The mother and the father have not been able to effectively communicate or agree on almost any aspect of their parenting of the children. The inability to agree on an 8.00 pm or 8.30 pm changeover, which remained in dispute until late 2023, is a stark and recent example of the parental conflict. The audio recordings of conflict from 2019 also support a finding that the parents have had extremely high parental conflict since before separation, and from which they have been unable and unwilling to shield the children.
There are many incidents which highlight the high level of unresolved parental conflict. For example, the incident involving the dog, the conflict over the lack of communication when the mother took the children to Melbourne, and the many disputes as relevant to the changeovers of the children.
I find the parents have an extremely high level of conflict and distrust. There is no doubt the children should be shielded from the conflict where possible. The consent order for sole parental responsibility made in favour of the mother is the only appropriate order given the findings of family violence and the increasing and extremely high conflict that continues to exist.
Changeover time
A major source of the parental conflict was the dispute as to the drop off time at the conclusion of the children’s time with the father pursuant to the informal agreement. The mother contended the agreed time was 8.00 pm. The father contended it was 8.30 pm.
There was no clear or written agreement as to the changeover time. Orders were made on 22 November 2023 stipulating the time for changeover to be 8.30 pm.
The Court Child Expert, at [55], reported that:
… [The father] was certain that he is usually on time or “not more than ten minutes late” at exchanges and that arrangement are more than 90 percent consistently adhered to. This author was unclear as to why the children would be worried about late exchanges if the parents had protected them from such disruptions and inconsistencies. Despite his assertion that he was not late to exchanges, he later gave an example that he dropped the children 45 minutes later than scheduled due to [Y’s sporting] commitments.
The father disagreed that he was often late to changeovers, and his evidence was that he was generally on time.
Shortly after the conclusion of the final hearing, the children spent time with their father on Father’s Day. The mother alleged that the father was in breach of an injunction made by consent on the final day of the trial, by discussing these proceedings with the children, and was late in returning children to the drop off location, being, she says, at 8.57 pm. The mother unilaterally ceased the children’s time with the father after that occasion. It is not in contest that an undertaking was sought by the mother on 5 September 2023 for the father to refrain from discussing court proceedings with the children and to return the children by 8.00 pm. On 26 September 2023, the father advised he would sign the undertaking provided the mother also sign an undertaking not to withhold the children and to make the dog, available with time with the children. No undertaking was signed.
I prefer the mother’s evidence about the time the children were returned on Father’s Day. The father’s evidence was somewhat difficult to follow. His initial evidence was that he asked Y to contact his mother advising that they would be late because they wished to finish watching a television show. He said he assumed that Y had sent the text to his mother. When presented with the evidence of the timing of Y’s text records, he then said he could not recall whether he asked Y or whether the father asked Y to reply to the mother.
The father said it was Father’s Day and that he and the children had made a joint decision to return later because they were watching a television show. He did not take responsibility for the failure to communicate the later time to the mother. Rather, the father let the responsibility fall to Y who, on the evidence, did not communicate with his mother until 8.45 pm, in response to his mother’s text queries as to his whereabouts.
The father initially gave evidence that he was 10 minutes late to changeover, and that it took him 10 minutes to drive to the changeover location. When queried about the time of the text message exchange between Y and his mother, his explanation was that his evidence earlier was approximate. He later stated that he was pretty sure it was 8.50 pm.
The father conceded that in hindsight he could have contacted the mother earlier, however continued to minimise the incident as insignificant.
The evidence supports the mother’s contention that the father left home with the children at around 8.45 pm when Y texted his mother and that they arrived at changeover, as the mother said, at 8.57 pm. I accept the evidence of the mother was precise because she was waiting to collect the children and was “watching the clock”. She also sent several messages via Our Family Wizard which corroborates her evidence as to time, which I accept.
The father had been cross examined at length at the trial just days prior to this incident in respect of the dispute about time, and heard the mother’s evidence about the impact on the children’s routine when returned late; he had heard that the mother believed the time to be returned was 8.00 pm; claimed to wish to improve communication with the mother; and was aware of the comments of the Court Child Expert at [55] of the Family Report that the children were worried about late exchanges. These matters were not taken into account by him on this occasion.
The father would have known, with the benefit of the opinion of the Court Child Expert, that the time for drop off had been identified as anxiety provoking for the mother and the children, and he had been cross examined only days prior as to the impact of the conflict. However, he was still prepared to have to mother wait for either 27 or 57 minutes (depending on whether changeover was 8.00 pm or 8.30 pm) at the changeover location. Despite the evidence he heard just days prior, he did not prioritise being on time to avoid anxiety for the children or the mother. It must be that he either remains unaware of the negative impact on the parties co-parenting relationship and on the children, or disregards it.
It is also concerning that Y, a child identified as being under pressure from the high parental conflict, was burdened with task of informing the mother of the later changeover time and that this was after the trial had concluded.
It is not in contest that the father did not spend time with the children, outside of sporting fixtures, from 3 September 2023 until after interim orders reinstating time on 22 November 2023 were made (see Arena (No 3)).
The Court Child Expert recommended, at [101] of the Family Report that:
… [The father] is to show reassurance that he can adhere to arrangements regarding the children with a focus on protecting his children from conflict, pressure and distress. Specifically, this includes adhering to arrangements on time and consistently and engaging with [the mother] about smaller changes to arrangements in a child focussed and respectful manner.
The incident showed and I find that the father was not prepared to adhere to arrangements nor able to protect the children from conflict, pressure and distress that had been identified by the Court Child Expert by reference to the stressors around drop off times.
It is not in contest that in the current arrangements, changeover has been a major source of parental conflict. It was submitted on behalf of the father that overnight time would ameliorate the risk caused by the parental conflict as to changeovers, as changeovers would be reduced to pick up and drop off at school where possible, meaning the parties not come into contact with one another multiple times each week during school term. This contention has merit.
Father’s Day 2023 incident
The conflict over the events of Father’s Day was not limited to the drop off at the end of the day.
Immediately upon commencement of the children’s time with the father, Y sent a text to his mother at 4.33 pm saying “His off his chops.” The father denied the report made by Y and X to the mother following changeover on the drive home. The father’s evidence is that there was no issue with the children in the car, other than that Y was upset because the father did not attend his sports game, but that his attitude improved after a discussion they had.
The mother alleged that Y reported to her, amongst other things, that “[the father] then said that Court is over and that he can say what he wants and that there were no Court Orders in place.”
On 31 August 2023, the following order was made by consent and on a final basis:
3. That the mother and the father are each restrained by injunction from discussing with or questioning the children about any of the following:
3.1. The family law proceedings including, but not limited to, the following:
3.1.1. Any material filed by any party in these proceedings;
3.1.2. Any material produced on subpoena in these proceedings; and
3.1.3. Any reports that may be prepared for the purpose of these proceedings;
3.1.4. Allegations made during the course of these proceedings.
3.2. The children’s or either of the children’s preferred living and spend time with arrangements.
The father denied saying anything to the children about these proceedings, because there is an order restraining such discussion with the children. Rather, he said he discussed the reasons why he did not attend Y’s sporting fixture. The father was of the view that no argument ensued upon them getting into the car.
The specifics of what Y reported as being discussed as set out in the mother’s affidavit was somewhat vague. The father denied any breach of the order made. The context also included the ongoing dispute between the parents as to the drop off time, as referred to above. I accept the submission, however, that whatever occurred, it is clear that the father did not show any insight relating to the issues that were ventilated at the final hearing just days earlier.
It is not necessary nor possible to make a finding as to precisely what was said on this occasion. What is of note is that so shortly after the hearing of the matter, the parties were once again in a position of extremely high conflict with refusals to give undertakings as to conflict and termination of previously occurring time.
Involving the children in the conflict
Y has been involved in the parental conflict. The immense pressure Y has been under as a consequence as identified in the Family Report is not in dispute. The fact that it is damaging to Y is also not in dispute.
Both parents have involved the children in the parental conflict.
The mother alleges that on Mother’s Day 2019, the father took to children to see the paternal grandmother, and when they returned, they told her “Dad said he was taking us away to a hotel and we would never see you again.” She says that the father told her “they misunderstood.” The father stated that, “I accept that I’ve said something, but I don’t believe that it’s what’s in front of me here.” He agreed that if something along these lines was said, it would have made the children afraid.
In 2020, the father wanted the children to visit his sick mother in a nursing home, but the mother refused as she said they had a school event. The father called the school to confirm whether there was an event. They told him there was not. When he next saw Y, the father questioned Y as to how the event was, to which Y responded that it was great. The father then told Y that he had called the school and that he knew that there was no event. If Y was complicit in the lie about the event it reflects poorly on the mother. That the father believes he “caught out” Y and told him he had done so, reflects poorly on the father.
This is an example of a lack of insight by both parents, by way of them involving the children in the parental conflict. The father conceded in oral evidence that this would have had the effect of making Y feel uncomfortable, and of drawing him into the conflict between the parents which was not acceptable.
A further example of pressure placed on the children is illustrated in the father saying to the children that “If you guys are willing to transition to overnight time, then … these pressures would be alleviated”. He said that he would “probably” not have that conversation again but considered that it was an appropriate or reasonable option for the children to transition to overnight time.
This conversation with the children occurred despite the Family Report providing opinion as to the level of pressure Y was under. It also recommended that the father should refrain from conversations of that kind. Both parents have at times involved the children, usually Y, in their parental conflict. This is harmful for the children.
The father’s emotional regulation
It was observed by the Court Child Expert that:
[The father] does not appear to have accessed counselling or support for him to grieve the end of what had been a long standing and significant relationship with [the mother], and the subsequent enormous changes he has experienced including with his children. Such steps may have provided some reassurance to the Court about his capacity to have addressed the concerns raised.
The father’s evidence was that he had attended his psychologist Dr T on a monthly basis over the past three years. However, she was not called as a witness by the father in his case. Exhibit 11 was a bundle of letters from Dr T to the father’s GP from December 2019 to December 2022. One of the letters, dated 2 September 2021, states:
He continues to work on affect regulation skills, emotion identification and interpersonal communication skills in order to improve his capacity to navigate conflict and parenting arrangements in relation to his ex-partner. He has made considerable progress in this regard, and has worked on further strengthening the connection he has already developed with his boys, under new care arrangements.
It was submitted on the father’s behalf that these letters indicate a lengthy process of self‑reflection and of self-improvement since the breakdown of the relationship, addressing and navigating the emotional stress of the marriage breakdown, improving capacity to navigate conflict, affect regulation, emotion identification and interpersonal communication.
There is no evidence from Dr T as to what she knew about the facts in these proceedings, the allegations in respect of hitting the children or of the family violence, or the strained co‑parenting relationship. Equally, there was no evidence as to whether Dr T has read the Family Report, notwithstanding an order dated 29 June 2023 granted the parties leave to provide a copy of the report to their respective treating psychologists.
I give little weight to the contents of the letters, as to the progress that the father may have made with therapy, as Dr T was not called as a witness and her evidence was not tested.
Notwithstanding the limitations of the evidence, I accept that the father has attended his psychologist regularly between late-2019 and late-2022 following the breakdown of his relationship with the mother, to seek professional assistance to navigate parental conflict and strengthen his connection with his children. The evidence supports a finding that he engaged with a psychologist in the areas identified in the letters. The father’s evidence was that his engagement with a psychologist provides him with continuing support, and he intends to continue to seek professional assistance. The fact that he sought an order that he continue to engage monthly for the next twelve months with the psychologist is significant, as it indicates an acknowledgement of the need to continue to be supported and of the need for the mother to be reassured that professional support is mandated.
The father’s conduct during the final hearing
The father was audibly sighing and breathing heavily during the cross examination of the mother’s sister. He agreed that he was responding in this way, and said he was particularly disappointed with her evidence as it was “not true”. It was put to him that he was behaving in such a manner so that he could be heard by the other people in the court room. He agreed that he was.
One of the issues in this case is the father’s ability to control himself in stressful situations. He accepted this was an example of failing to control himself. He said that these proceedings and the allegations made against him have taken a heavy burden on him, but he did not believe that his reaction was out of control or an action of agitation. Rather, he asserts that it was simply an action of disappointment to have to hear “that stuff”.
It was submitted that the father’s audible breathing and sighing were a reflection of his frustration at what he perceives as being a number of unfounded allegations made against him, and not a reflection of the overall approach he took to his examination and cross examination.
The father was audibly sobbing during the evidence of the Court Child Expert. In the context of the mother’s concerns as to his ability to regulate his emotions, these two examples give some weight to her concerns. It was submitted on behalf of the father that the Child Court Expert’s evidence presented confronting insights into his character in a public setting. It was submitted that this “has had him undertake a look into the nature of his being and his relationships, and that this is an ongoing journey.”
Counsel for the father sought a finding that his emotions in cross examination and during the final hearing represent an emotional testimony of a man who has had a difficult time in his life, but that he has sought to make things better through engaging his psychologist.
I accept the trial process and hearing evidence may have been confronting for the father. However, his inability to contain his disdain as the mother’s sister gave evidence and his emotional response to the Court Child Expert’s evidence (which remained largely consistent with her written report) corroborated the mother’s concern that the father struggles at times to contain his emotions. This is relevant to how he may respond when he has the children if he is confronted with a situation where he is at odds with the boys or he had to respond to conflict with the boys.
The mother seeks for the father to spend day-time periods with the children. There is no evidence to satisfy me that his emotional responses to situations will be less or more contained during the day than during overnight time periods. In fact, the opportunity to remove the stressor of getting to the drop off time by 8.30pm may reduce tensions for both children and parents.
While I am satisfied that during the hearing the father displayed difficulty in regulating his emotions, there was no evidence that limiting the time spent to daytime only is necessary. I will order that these reasons are provided to the father’s treating psychologist and expect that ongoing work on his affect regulation skills as identified by her in the letter to the GP, will continue with a view to managing any issues in order to reduce the risk of exposure of the children to emotional responses of their father while they spend time with him.
The father’s mental health
The mother sought that the father is to nominate one additional day to spend time with the children each of the shorter school holidays periods (after Term 1, Term 2 and Term 3) from 9.00am to 4.00pm, provided he gives 14 days’ notice to the mother. The mother sought that the father is to nominate three additional days for the children to spend time with the father in the Christmas school holidays following the conclusion of Term 4, provided he gives 14 days’ notice.
The ICL proposed that the father spend time with the children each Tuesday from 9.00am to 4.00pm in school holiday periods. The ICL submitted that the father nominating a day as proposed by the mother focusses on the father’s needs rather than the children’s needs, noting that it is an agreed fact that routine, certainty, and stability benefits X. It is submitted that X will benefit from a set arrangement and familiar pattern each holiday period. The evidence supports the ICL’s submission with which I agree.
The mother in her written submissions raised concern that if orders are made for time every Tuesday with the father, and the father is required to work, that he will leave X in the care of Y. She also submits that the father is unlikely to comply with an order for Tuesday time, causing X to become dysregulated and the mother having to make urgent care arrangements for the children.
The mother raised concern that the father may cancel time at short notice due to his work commitments or for other unknown. Her concern was to minimise X becoming dysregulated and to provide her with sufficient time to arrange care for the children and also plan activities.
The required notice provisions pursuant to the orders herein of 14 days provides time in the event of cancellation and addresses the concern of the mother of the father cancelling time due to other commitments.
The children have been used to spending Tuesdays with the father in the past. The father must, pursuant to these orders, give notice of an inability to spend time with the children both during the school Terms and school holidays.
I accept it is in the best interests of the children as accepted by the mother, for the father to have some additional time during school holidays where the children do not have the usual commitments of school and will have more free time. Accordingly, provided it is not during the mother’s elected block period in accordance with these orders, additional time is to occur from 9.00am Tuesday to 9.00am Wednesday school holiday periods.
Suspension of father’s time in the short school holidays
The mother seeks that the father’s time be suspended from the conclusion of the school term in either Term 1, 2, or 3 each year, to the middle Saturday of the school holidays. The ICL also seeks this order, however, with the conditions that the mother provide 35 days’ notice of her the nominated holiday period, and that in the event Easter falls in this holiday period, that time with the father on Easter in accordance with these orders still occur.
It is appropriate for the mother to be able to elect one school holiday period of either Term 1, Term 2 or Term 3 for the purpose of a holiday with the children, subject to make up time (as discussed below) being provided to the father, because it is important for the children to have the opportunity for an occasional holiday. I agree with the conditions set out by the ICL and make orders accordingly.
Suspension of time in the Christmas school holidays
The mother and the ICL seek that the father’s time is suspended for 21 days during the Christmas school holidays with the mother to provide the father 35 days’ notice of the dates, and for the proposed dates not to include Christmas Day.
I consider a 21-day block is appropriate and in the best interests of the boys. Routine is essential for managing X’s special needs and his, sometimes, dysregulated behaviours. Weighing against that is the potential benefit to the children of having the opportunity of experiencing a block holiday period with their mother over the Christmas holidays. Although the evidence before me is that routine is important for X, as contained in the uncontested evidence of the mother, the father and the Court Child Expert, on balance, the experience of overseas or interstate travel, or simply holiday time, is also important. The proposal for a 21‑day block is to occur only once per year. I am satisfied on balance that the proposed 21‑day block for such purpose will provide positive opportunities for the children, including the option of more extensive travel or other activities, and is in the best interests of the children.
The father agreed in his evidence that, if there was an opportunity, schedules could be rearranged to take the boys away for a “bit of a holiday or have a weekend away.” There was no evidence of the benefits to the children of the mother’s proposed holiday time. The mother’s proposal for the period of 21 days was contained in her 21 July 2023 final orders application and was known to all parties.
The father’s time with the children will be suspended for a period of 21-days in the Christmas period, provided the mother gives 35 days’ notice of the proposed dates and the time does not include Christmas Day.
Make up time
The father seeks that make up time equivalent to the number of days lost should be provided, with the father entitled to nominate a block time for when make up time shall occur, by giving 14 days’ notice.
The ICL sought that the father be at liberty to propose make up time with the children on one occasion to be nominated by the father between 9.00am to 4.00pm, to occur in the same school holiday period; not to coincide with the mother’s school holiday time; not to occur on Easter, Christmas or the mother’s birthday; and for the father to provide 14 days’ notice of the nominated day.
The mother noted in her orders sought that, “It is noted that no 'make up time' will be provided during school holiday time as the children will have set time with each parent during the school holidays.”
It was submitted by the father that that the mother’s proposed orders are not child focused, and this is further demonstrated by the lack of insight that not offering make up time is clearly not in the best interests of the children. The father further submits that the ICL’s proposal for holiday time and make up time is minimal and does not offer any time of significance that will foster a meaningful relationship with the children.
Counsel for the mother submitted, however, that if the mother could have, in effect, half of the school holidays so she could travel with the child, the father ‘should have’ some extra time in the other half of the holidays. In circumstances where the mother seeks to be permitted to take the children away for school holidays, on providing notice, where such orders are appropriate and in their best interests, there should be some make up time with the father as a consequence of her holiday time with the children.
Therefore, for the periods nominated in the school holidays by the mother in accordance with the orders, some make up time should be provided to the father.
Pursuant to these orders, the children will be spending overnight time with the father each Tuesday, Thursday, and alternate Sundays during the school holiday periods, at times when the mother has not nominated the one week or 21-day block holiday periods.
The ICL’s proposal, as identified in paragraph 289 above, of one extra occasion of make up time is an appropriate order as it provides some further time with the father but does not further disrupt the routine of X, particularly as described at paragraph 276 above.
Accordingly, the orders proposed by the ICL in relation to make up time ensures that the children’s time with the father is not minimised and that they do not go for significant blocks without seeking their father after periods away with their mother. In my view, this make up time, together with the additional Tuesdays in school holidays is in the children’s best interests. I have found that overnight time is in the best interests of the children and that time should include the nominated make up days.
Special Days
The mother and the ICL sought orders that the children’s time with the father be suspended on Easter Sunday and Christmas Day from 12.00 pm to 8.00 pm, and that the children’s time with the mother be suspended on Easter Sunday and Christmas Day from 8.00 am to 12.00 pm. It was also sought that the father’s time be suspended on Mother’s Day from 9.00 am to 8.00 pm, and that the mother’s time be suspended from 9.00 am to 4.00 pm on Father’s Day. In the ICL’s amended orders sought, she sought orders that the children spend time with their parents on the parent’s birthdays.
The father sought orders for the children to spend time with him in odd numbered years from 3.00 pm on Christmas Eve to 3.00 pm on Christmas Day, and in even years from 3.00 pm on Christmas Day to 3.00 pm Boxing Day, with a similar arrangement for Easter. He further sought that the children spend daytime with each parent on their respective birthdays. The father sought that on Father’s Day, the children are to spend time with the father from 5.00 pm the Saturday prior to Father’s Day to 7.30 pm on Father’s Day, and on Mother’s Day, the children are to spend time with the mother from 5.00 pm the Saturday prior to Mother’s Day until 7.30 pm on Mother’s Day.
X has special needs and routine is important but equally so are significant days. I make orders for Mother’s Day, Father’s Day, Christmas Day, Easter Sunday and the parents’ birthdays as proposed by the father. I have found that overnight time is in the best interest of the children and that time should include the nominated special days.
The mother made no submissions opposing the orders sought by the father for the children to spend time with each parent on their respective birthdays.
No party sought orders to spend time with the children on the children’s birthdays. No party made any submission or referred to any evidence in support of such an order. In those circumstances it is appropriate that no order be made and that the parents will celebrate the boys’ birthdays when they are exercising their usual time with them.
The dog
In accordance with my interim decision in Arena & Arena (No 4) [2024] FedCFamC1F 22, there is no jurisdiction to make the orders sought by the father.
Communication
Final orders were made by consent on the final day of the trial for communication between the parties to occur through the Our Family Wizard application.
The father sought orders for communication with the children every Monday, Wednesday and Saturday between 6.30 pm and 7.30 pm, and at any other reasonable time as requested by the children. The mother sought orders for the children to have video/telephone communication with each of their parents as they may request, and that the other parent is to do all acts and things necessary to facilitate such communication and ensure privacy for the communication.
There was limited evidence in both the mother and the father’s affidavits in respect of the orders sought that went to the question of communication by video or telephone. There was no recommendation by the Court Child Expert or cross examination as to the benefit to the children of video/telephone communication with the father.
Without such evidence, I must do the best I can to determine whether the communication orders proposed by the father are in the children’s best interests.
On 22 November 2023, I made interim orders for the mother to facilitate X communicating with his father by Facetime or similar means at all reasonable times requested by X. I declined to make any orders for communication for Y due to his age.
Communication on Monday, Wednesday, and Saturday, as sought by the father, is inhibitive of the children’s quality time with the mother and has the capacity to cause further parental conflict.
In accordance with the reasons in Arena (No 3), there is significant evidence as to the impact of and pressure on Y as set out in the Family Report. I am satisfied that given Y’s age, wishes, and maturity as identified in the Family Report, and given that he has his own mobile phone and is free to contact his father as he wishes, that it is appropriate to make no order for telephone/video communication in respect of Y.
X’s needs are more complex due to his diagnosed conditions. The father gave evidence that X, having special needs, needs help to facilitate phone calls. There is evidence that X derives benefit from routine. I am making orders for less frequent time spent with the father. Orders ensuring communication between the father and X each Tuesday evening are in X’s best interests due to the familiarity of the existing routine of contact every Tuesday currently with the father. I am satisfied that the order for video communication each Tuesday maintains the regularity of contact that X is familiar with.
I am also satisfied that it is in the best interests of the children to have video/telephone communication with each of their parents as they may request, and that the other parent is to do all acts and things necessary to facilitate such communication, and ensure privacy for the communication.
Injunctions
Injunctive orders were made by consent on the final day of the trial as to physically disciplining the children and denigrating the other parent.
The mother also sought orders for a restraint on the father from communicating with her, other than in accordance with the orders. There was no evidence or submission made in support of such an injunction.
The mother also sought that the father be restrained by injunction from approaching the mother, her home, or her place of work. It was conceded by the mother that there is no direct evidence as to the father attempting to approach her, her home, or place of work, but it was submitted that the mother is anxious and stressed. However, it was further contended that there is some evidence that the mother’s stress and anxiety has the risk of impacting on her ability to parent the children.
I am not satisfied on the evidence before me that since separation the father has attempted to approach the mother at her home or work. I am not satisfied that there is evidence to support a finding that the injunctions are required, failing which, the mother’s parenting capacity will be adversely impacted. No such evidence was called by the mother and the Court Child Expert was not asked for an opinion. There is no evidence that satisfies me on the balance of probabilities that such an injunction is warranted or appropriate.
The mother also sought an order requiring the father to ensure that he does not leave X unattended, and if the father is unable to care for X, that X will be returned to the mother’s care. This order is problematic, as if the father is personally unable to care for X for a short time and leaves him with a babysitter or family member, or even Y when he is older and capable of caring for X, he will be in breach of this order. It was submitted on behalf of the mother that if he was to leave, X has particular care needs, and another person may not have the experience in caring for him.
The father was previously the primary carer for the boys while the mother was working. The father accepted that he once left X and Y in the car while he was attending to a client. He says he was observing them at all times and in any event would not repeat this.
I do not accept that an order preventing the father from leaving X in the care of an appropriate adult or carer is warranted on the evidence.
Notice of cancellation of time
The mother sought an order for the father to provide at least 72 hours written notice if he is unable to spend time in accordance with the orders.
It was submitted on behalf of the mother that this is so she can organise herself and properly organise the children. It was also submitted that last minute changes are a part of a coercive and controlling behaviour of the father.
It is not unreasonable for the father to notify the mother in advance if he is unable to exercise time with the children, so that she may make proper arrangements for the children’s care, and so the children are not surprised by a late change of routine.
An appropriate order is that the father provide 72 hours written notice of an inability to exercise time in accordance with these orders, or in the event of illness or an emergency he notify the mother as soon as is practicable.
Family therapy
In his Further Amended Response to Initiating Application tendered just prior to submissions on the final day of the initial hearing of the matter, the father sought an order for the family to attend family therapy. This was opposed by the mother.
The father submitted that family therapy would represent a safety net for Y to express his views in relation to the progression of overnight time. The proposal was not put to the Court Child Expert. There is no evidence before me to satisfy me that the proposed family therapy will be of benefit to the children. There is significant evidence of very high conflict between the parents which the children have been exposed to. Family therapy was attempted in the past and there was no evidence or opinion that a continuation would be in the best interests of the children. I give weight to the mother’s evidence about her fear of the father and to her resistance to such orders. I am not satisfied that such an order is in the best interests of the children.
Y is already attending his own psychologist so has a safe and confidential space as recommended by the Court Child Expert.
Irrevocable authority
The mother, father and the ICL each sought an order to irrevocably authorise the children’s school to provide information about the children to the father. The father sought that the orders are provided to the school to facilitate this, whereas the mother and ICL sought that the mother do all things necessary to irrevocably authorise this.
The extent of the parents’ inability to reach agreement is illustrated in the competing orders sought in respect of the authority that it is agreed should be given to the school for the father to be provided with usual information with respect of the children. A comparison of the orders each seeks illustrates that they are in effect seeking the same outcome but have absolutely no capacity to compromise, agree, negotiate, or reduce conflict on even the most obvious issue. These parties are entirely intractable in their firmly held views.
In the circumstances I have made an order achieving the necessary authority.
The mother and the ICL sought orders for the mother to irrevocably authorise any doctor or specialist of either of the children to forward to the father, at his expense, copies of any medical reports. The father sought that these orders are an irrevocable authority for the children’s treating medical practitioners and allied health workers to provide information to the parties about the children, at the requesting parties’ expense, including but not limited to treatment, referral, medication or any other information.
The mother agreed the father should be able to obtain information from health treatment providers and the children’s school, but not the children’s psychologists.
The Court Child Expert specifically noted that Y would benefit from a private and safe space to explore, unload and receive support, without the fear of being reprimanded, given the extraordinary pressure he has been under. I make the order as sought by the mother.
Attendance at events including but not limited to meetings, appointments and extra-curriculars concerning the children
The father sought an order that the mother and the father, at their individual discretion, may jointly or severally attend meetings, interviews, consultations, appointments, and social, cultural, extracurricular, sporting, or other events.
In circumstances where the parents have such high conflict, cannot communicate effectively and the impact on Y is concerning, an order that they jointly or severally attend meetings or appointments at their discretion is completely contraindicated. I decline to make that order.
There was vast evidence about how the father has regularly attended Y’s sport. His attendance at these events is important to Y and assists in the facilitation of a meaningful relationship. An example was when Y expressed disappointment that his father did not attend his sports game, and when X requested the father to take him swimming.
The mother and the father may, at their individual discretion, attend any social, cultural, sporting or extracurricular event that the children are participating in, and may attend any school assembly or usual event that parents are invited to.
Residential address and telephone numbers
The father sought an order for the each of the parties to provide the other with their current residential address and a contact telephone number, and to inform the other within 24 hours of such a change occurring.
The mother sought that the parties keep each other informed of their respective telephone numbers.
There was no evidence or submission in respect of the benefit or otherwise of keeping the other informed of their residential address. There is no basis for me to make the order. I order that each party keep the other informed of their current mobile phone number and email address for urgent communication. Orders were made by consent for all non-urgent communication to be made by Our Family Wizard.
Notification of illness or other matter of significance
The parents both seek orders to the effect that they advise the other in the event of any injury, illness or other significant matter involving the children as soon as possible. This is an appropriate order.
Changeovers
Orders were made by consent on 31 August 2023 in relation to changeovers. Order 2.1 should be varied to include the commencement of school in circumstances where I have ordered overnight time.
CONCLUSION
Having carefully considered all the evidence before the Court and the submissions as made, I am satisfied that the orders are in the best interests of the children.
THE ADMISSIBILITY OF THE RECORDINGS MADE BY THE MOTHER
I determined that the recordings made by the mother were admissible and allowed them and the transcripts into evidence. There was no dispute that the events were recorded had occurred. My reasons follow.
Section 69ZT of the Act excludes certain parts of Chapter 3 of the Evidence Act 1995 (Cth) (“the Evidence Act”) in child related proceedings, however, s 69ZT(3) empowers me to apply an excluded provision to an issue in parenting proceedings if satisfied that the circumstances are exceptional, and having taken into account those factors set out. I am so satisfied, and I address each consideration in turn below.
The question of admissibility of the recording made by the mother is determined by the relevant provisions in and in particular s 138 of the Evidence Act.
Section 138 of the Evidence Act provides:
Evidence that was obtained: improperly or in contravention of an Australian law; or in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
The Surveillance Devices Act 2007 (NSW) (“the Surveillance Devices Act”) governs the use of devices to record private conversations.
Section 7(1) of the Surveillance Devices Act states:
(1) A person must not knowingly install, use or cause to be used or maintain a listening device:
(a)to overhear, record, monitor or listen to a private conversation to which the person is not a party, or
(b)to record a private conversation to which the person is a party.
Pursuant to s 7(3) of the Surveillance Devices Act, s 7(1)(b) does not apply to the use of a listening device by a party to a private conversation if:
(a)all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or
(b)a principal party to the conversation consents to the listening device being so used and the recording of the conversation:
(i)is reasonably necessary for the protection of the lawful interests of that principal party, or
(ii)is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.
It is the father’s case that the recorded conversations were evidence obtained in contravention of the Surveillance Devices Act. It is submitted on his behalf that the father did not know and did not consent to the mother using her mobile phone to record his private conversation and that the mother did not record the conversation for the purpose of protecting her lawful interests.
It was the mother’s case that she was protecting her and her children’s lawful interests, and in the alternative, that the evidence is so probative as it goes to the issue of family violence and parenting capacity of the father, particularly the audio recordings rather than the mere transcripts, as the intonation and pace of what was being said was most probative.
These submissions were largely adopted by the ICL.
I am not satisfied that the father gave consent to the mother using her phone to record the conversations nor can his consent be implied in the circumstances of this case, except in the instant of 3 December 2018 where he was it appears aware of the recording as he says “she has put the record button because I am such a bad person”.
The mother’s evidence was that she was recording the exchanges because she was “scared and I wanted to make sure that people knew what was happening in my house if anything happened to me and the [children].”
It is well known that it is notoriously difficult to prove allegations of family violence as noted by the Full Court in Amador & Amador (2009) 43 Fam LR 268 at [79]. In fact, in this instance, the father’s evidence was that he would only behave with the children in the way he did as recorded, if the mother was present, and that it was in fact her presence and the parental conflict that was a cause of/precipitator to the behaviour.
In these circumstances I am satisfied that the evidence in question was obtained by the mother in contravention of an Australian law but that she was protecting her lawful interest and that of her children. This contributes to the exceptional circumstances in which I am empowered to apply the excluded provisions of the Evidence Act to admit the recordings. The nature of the subject matter, being family violence, is such that it is often difficult to prove, and as the importance of the evidence is significant as it goes to the family violence experienced by the children in proceedings that I am obliged to make determinations about risk.
However, even if I was not satisfied that she was protecting her lawful interests, I would have admitted the evidence as my analysis of the evidence was that the desirability of admitting it on account of its probative value outweighs the undesirability.
Pursuant to s 138 (1)(c) of the Evidence Act, illegally or improperly obtained evidence is not to be admitted unless the desirability of admitting it outweighs the undesirability of admitting evidence that has been illegally obtained.
Section 138(3) of the Evidence Act provides:
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
In my view the evidence in question has significant probative value as to the fact in issue, being of one importance in the proceedings, having regard to the competing parenting proposals. The father denies any family violence toward the mother and the children. His evidence was that he “vehemently denied” it, in his sworn material he did not acknowledge any conduct that was family violence.
The mother contended that the evidence captured in the recording is relevant to the father’s inability to regulate his emotions, his anger management issues and the parenting of the children, particularly X who has special needs.
The mother’s concerns about these matters are of great significance as she proposes that the children spend quite limited daytime only time with the children due to the father’s inability to regulate himself.
The father’s counsel accepted that the evidence of the mother about the events was not in dispute and that the transcript of the events were also accurate, but submitted that the audio was highly prejudicial to the father.
The mother’s counsel submitted that the audio was so probative as to be necessary to understand context, tone and pace of the interactions between these parents, and their children.
The application to admit the unlawfully obtained evidence arises in parenting proceedings under the Act, being proceedings in which the best interests of the child are paramount. In my view, in circumstances where one party has covertly recorded interactions, the court should approach with great caution the admission of unlawfully obtained evidence to support a party’s version of events.
The contravention, in my view, is not particularly grave in the sense that it involves recordings of interaction between the parties and children by a handheld mobile telephone. There is no suggestion of any sophistication in making the recording such as the covert installation of a listening device to record conversations on an ongoing basis. However, the recording was deliberate in the sense that the mother consciously and intentionally recorded the father’s conduct for her own purposes prior to separation.
I am of the view that while it is difficult to obtain actual evidence of conversations and conduct that occurs in the privacy of a family home, audio recording is not essential to prove facts in issue. It is not difficult to simply set out a version of the conversation and conduct in question and have the court determine the matter in the usual way. In these circumstances, I approach with great caution the suggestion that the difficulty of obtaining evidence of an event of this nature on the basis that it occurred in the privacy of a home should carry great weight in permitting the admission of illegally obtained evidence.
The Court is required to balance the seriousness of the mother’s conduct in recording the events in question against the potential for harm to the children if the evidence is not admitted. In my view there is potential for harm if the evidence in question is not admitted. The parents may each rely on their version of the event in question contained in their respective affidavit if the recording is not admitted. In these circumstances, where the mother raises the question of risk of harm posed by the father due to his behaviour and due to, what she asserts is an inability to regulate his emotions, and where there are vulnerabilities of X in particular, I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that may have been illegally obtained.
I certify that the preceding three hundred and ninety-nine (399) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 28 May 2024
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