Ayton & Ayton
[2022] FedCFamC2F 1856
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ayton & Ayton [2022] FedCFamC2F 1856
File number(s): NCC 841 of 2021 Judgment of: JUDGE KEARNEY Date of judgment: 21 October 2022 Catchwords: FAMILY LAW – parenting – two children aged 12 and 10 – what time if any to be spent with father – what conditions if any to be imposed - whether the father poses an unacceptable risk and if so, whether the risk could be sufficiently mitigated – family violence and conflict - poor emotional dysregulation with little insight into impact – professional supervision for time to be spent quarterly - regular written communication appropriate – prescriptive restraints and injunctions – after older child turns 14, time with father to be at sole discretion of mother – best interests of children Legislation: Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 68B, 68C
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Berys & Berys [2022] FedCFamC2F 1162
Blinko & Blinko [2015] FamCAFC 146
Cross & Beaumont [2008] FamCAFC 68
Dunst & Dunst [2016] FamCAFC 15
Eastley & Eastley [2021] FedCFamC1F 212
Gallagher & Gomez [2017] FamCA 944
Hollister & Gosselin [2016] FamCA 759
Isles & Nelissen [2022] FedCFamC1A 97
Keane & Keane [2020] FamCA 99
Mazorski & Albright [2007] FamCA 520
Medlon & Medlon (No. 6) (Indemnity costs) [2015] FamCAFC 157
Nada & Nettle (Costs) [2014] FamCAFC 207
Napier & Hepburn [2006] FamCA 1316
PBF(as child representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL [2005] FamCA 158
Re Andrew [1996] FamCA 43
R & C [1993] FamCA 62
Sedgley & Sedgley [1995] FamCA 154
Sweet & Sweet [2022] FedCFamC2F 676
Division: Division 2 Family Law Number of paragraphs: 209 Date of hearing: 17-19 October 2022 Place: Newcastle Counsel for the Applicant: Mr Murray Solicitor for the Applicant: Nash Allen Williams & Wotton Counsel for the Respondent: Mr Matthews Solicitor for the Respondent: Taperell Rutledge Lawyers Counsel for the Independent Children's Lawyer: Ms Cantrall (Solicitor Advocate) Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
NCC 841 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR AYTON
Applicant
AND: MS AYTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE KEARNEY
DATE OF ORDER:
21 OCTOBER 2022
THE COURT ORDERS THAT:
1.The respondent MS AYTON (‘the mother’) shall have sole parental responsibility for the children, X born 2010 and Y born 2012, collectively described as ‘the children’.
2.The children shall live with the mother.
3.Up until 19 August 2024, the children shall spend time with the applicant MR AYTON (‘the father’) on a professionally supervised basis on four (4) occasions each year during:
(a)the week in which Y’s birthday falls;
(b)the last week of Term 2 as exercised by X’s school;
(c)the week in which X’s birthday falls; and
(d)the last week of Term 4 as exercised by X’s school,
with the period described as “week” meaning from Monday to Sunday.
4.To facilitate Order 3:
(a)The time spent by the children with the father shall be supervised by an authorised officer employed by B Contact Service or C Contact Service or some other person or entity nominated by one of these organisations in that order of priority (‘the professional supervisor’);
(b)In the event of a disagreement between the parties, the mother shall do all such things necessary to engage the professional supervisor;
(c)The parties shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the professional supervisor;
(d)If the professional supervisor does not receive the joint written consent of the parties about the time and day that supervised time is to occur by 4.00pm on the Monday that falls three (3) weeks prior to the specified periods above, THEN the time shall occur as nominated solely by the mother in contemplation of the professional supervisor being available.
(e)Any communication between the mother and father about the proposed time and day of supervised time shall be by way of emails only.
(f)The venue at which the time is to be spent by the children with the father shall be designated by the professional supervisor;
(g)The father shall pay for all costs charged by the professional supervisor;
(h)The mother shall do all acts and things necessary to cause the delivery of the children to and from the professional supervisor at the commencement and conclusion of the supervised time;
(i)The mother and the father shall comply with all reasonable requests and directions of the professional supervisor who shall retain their ultimate discretion to terminate the supervised time should they deem this necessary to preserve the welfare of the children;
(j)The mother and the father are permitted to provide a copy of these Orders to the professional supervisor.
5.From 19 August 2024, the children shall spend time with the father at the sole discretion of the mother.
6.The mother shall inform the father as soon as reasonably practicable in the event that the children or either of them are:
(a)involved in an accident or medical emergency requiring their attendance at hospital; or
(b)diagnosed with a serious illness.
PROVIDED THAT any response by the father to the mother should in the first instance be via an email to the mother and continue in that manner unless and only if the mother gives express written consent for the father to communicate with her by another means.
7.Despite the allocation of sole parental responsibility to the mother, the father is permitted to approach the children’s school/s via email in order to arrange access to copies of school newsletters, the children’s progress reports and order forms for school photographs.
8.Pursuant to s 68B of the Family Law Act 1975 (Cth) and unless otherwise permitted by these Orders, MR AYTON is restrained and an injunction shall issue prohibiting him from contacting or communicating with the mother in any manner.
9.Pursuant to s 68C of the Family Law Act 1975 (Cth), Order 8 is an injunction for the personal protection of MS AYTON.
10.Pursuant to s 68C of the Family Law Act 1975 (Cth), if a police officer believes, on reasonable grounds, that the person (MR AYTON) against whom the injunction is directed has breached the injunction by:
(a)causing, or threatening to cause, bodily harm to the protected person; or
(b)harassing, molesting or stalking that person;
the police officer may arrest MR AYTON without warrant.
11.Pursuant to s 68B of the Family Law Act 1975 (Cth), and for the personal protection of the mother and the children from the father, the father is restrained and an injunction shall issue prohibiting him from engaging in any behaviour towards the mother and/or the children that is violent, threatening, or otherwise is coercive or controlling of them or causes them to be fearful.
12.Pursuant to s 68B of the Family Law Act 1975 (Cth), the father is restrained and an injunction shall issue prohibiting him from allowing the children to have any contact with Ms D, including by means of telephone, digital, electronic and/or via social media.
13.Pursuant to s 68B of the Family Law Act 1975 (Cth), the father is restrained and an injunction shall issue prohibiting him from entering upon or approaching within 100 metres of:
(a)Any school attended by either X or Y;
(b)Any place of employment where either X or Y are employed;
(c)Any location (whether within property owned by the children’s school or elsewhere) where the children are engaged in an activity that is facilitated by the children’s school including but not limited to sporting, cultural and academic events;
(d)Any location at which the children undertake extra-curricular activities;
(e)The residence of the mother and the children being E Street, Suburb F NSW;
(f)Any other address at which the children may primarily reside in the future; and
(g)Any place of employment where the mother is employed.
14.Pursuant to s 68B of the Family Law Act 1975 (Cth), the father is restrained and an injunction shall issue prohibiting him from removing or attempting to remove the children from any school, day care centre, extra-curricular activity or from any person in whose care the mother has placed the children.
15.Pursuant to s 68B of the Family Law Act 1975 (Cth), the father is restrained and an injunction shall issue prohibiting him from initiating any contact or spontaneous communication with the children in any form including by means of telephone, digital, electronic and/or social media.
16.Commencing from 1 December 2022, the father shall be permitted to communicate with the children in writing on no more than six (6) occasions each calendar year by way of either letter and/or card (which may also contain a gift from himself) on or for the following occasions each year:
(a)Once during the month of February;
(b)Easter;
(c)Y’s birthday;
(d)X’s birthday;
(e)Once during the month of October; and
(f)Christmas,
PROVIDED THAT any letter shall not consist of more than two (2) single-sided pages of text.
17.To facilitate Order 16, the mother shall ensure that such gifts and communications are provided to the children unless she determines, upon inspection, that the gifts and/or communications are inappropriate and in those circumstances, she will promptly return the applicable item/s to the address nominated by the father on the envelope/wrapping that the item/s were posted in and in so doing, the mother does not need to provide a written explanation to the father either at the time of posting or by email communication afterwards.
18.In the event that the children or either of them express to the mother a wish to communicate with the father by post, THEN the mother is to facilitate such reasonable communication.
19.To support Orders 16 and 17:-
(a)no later than 4 November 2022, the mother shall advise the father by email of a postal address to which the father may address the letters, cards and/or gifts for the children and shall inform the father by email in a timely manner of any change to such address; and
(b)no later than 11 November 2022, the father shall advise the mother by email of a postal address to which the children may send him correspondence and in a timely manner, the father shall inform the mother by email of any change to such address.
20.The mother and the father are restrained and an injunction shall issue prohibiting them from denigrating each other or any member of that parent’s family to or in the presence or hearing of the children or either of them and shall remove the children or either of them from the presence or hearing of any other person doing so.
21.By way of email communication to each other, the mother and the father shall keep each other informed of their contact email address and shall notify each other within 48 hours of any change to that email address.
22.The mother is permitted to provide a copy of these Orders to any person, school or service provider identified within Orders 13 and 14.
23.Pursuant to s 117(4)(b) of the Family Law Act 1975 (Cth), the mother should not make any contribution to Legal Aid NSW for the costs of the Independent Children’s Lawyer in these proceedings.
24.No later than 23 January 2023, the father shall pay $4,774 to Legal Aid NSW as a contribution to the costs of the Independent Children’s Lawyer in these proceedings.
25.All outstanding applications are withdrawn and dismissed.
26.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
THE COURT NOTES THAT:
A.By way of explanation of Order 3, if the time period at Order 3(c) commences on Monday 5 December 2022, then the professional supervisor must receive written notice of the parties’ consent, no later than 4.00pm Monday 14 November 2022.
B.In the event that the mother decides to facilitate time pursuant to Order 5, it will be at her instigation only and the making of Order 5 is not an open invitation for the father to communicate or contact the mother to ascertain whether she has made a decision, either at that time or any time between then and when either X or Y reach 18 years of age.
C.The Court expects Legal Aid NSW to forthwith refund to the mother (at her written direction) her previously made contribution of $1,650.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ayton & Ayton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEARNEY
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the reasons delivered orally amenable to being read.
INTRODUCTION
Until early 2021, a brother and sister were spending regular overnight time in the homes of both their parents. Then their father assaulted his girlfriend in a car in which they sat in the back seat. The consequences for them and their parents has reverberated like a stone cast in to a pond. Almost two years on, should I permit the children to continue spending time with the father and, if so, under what conditions?
Out of respect for each person’s gender and social status, other than parties and the children, persons will be identified by their surnames and, where possible, there will be an avoidance of the use of gendered pronouns.
These proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975 (Cth). Unless otherwise specified, any reference to the Act or a legislative provision shall be a reference to the Family Law Act 1975 (Cth).
The proceedings were commenced by the Applicant, Mr Ayton (‘the father’) and the respondent is Ms Ayton (‘the mother’).
There are two subject children,
(a)X who is 12 years of age; and
(b)Y who is 10 years of age.
and these children shall be collectively described as ‘the children’.
The children are independently represented by Ms U (‘the ICL’).
PRECIS
The genesis for the commencement of the substantive proceedings by the father was the mother’s refusal to permit the children to spend time with the father following a serious incident of family violence between the father and his then partner in a car in which the children were sitting in the back seat.
Despite the father’s formal application for the children to commence spending time with him for two nights a fortnight and the allocation of equal shared parental responsibility to both parents, the main issue became what time (if any), the children should spend with the father and, if so, under what conditions.
For the reasons that follow, orders will be made with the consent of the parties for the children to live with the mother and for her to exercise sole parental responsibility for them.
Insofar as time is concerned, the children will spend professionally supervised time with the father four times a year until X’s 14th birthday, after which, any time the children spend with the father shall be at the mother’s discretion (including as to whether there are conditions attached, such as professional supervision).
There shall be no spontaneous communication between the children and the father, but the father will be at liberty to send correspondence via post to the children on six (6) occasions each year, the quantum of which will include any cards or gifts he sends for specified special occasions.
Various restraints will be imposed on the parties. In particular, a restraint will be imposed upon the father prohibiting him from communicating with the mother, with the power for him to be arrested without warrant in certain circumstances.
Orders will be made for the father to contribute $4,774 towards the ICL’s costs, with the mother not responsible for any contribution, meaning a refund of $1,650 to her.
In order to determine these issues, it is important that I traverse the applicable law.
THE APPLICABLE LAW – PARENTING PROCEEDINGS
In these proceedings, the parties invite me to make a parenting order (s 64B) which I can, provided I think it is proper to do so in light of the objects of the Act and the underpinning principles of those objects: ss 65D and 60B.
Any orders I make about a child must be orders determined by treating their best interests as the paramount consideration and in doing so, s 60CC(2) and (3) set out the matters to which I must have regard to. This consideration of the child’s best interests is also mandated within s 65DAA to which I shall return.
The legislation makes clear that s 60CC(2)(a) is not intended to elevate the paramount consideration as to the benefit of a meaningful relationship for the benefit of the parent, but rather it is for the benefit of the child. For example, see the preamble within s 60B which specifies that the specified objects of Part VII are to ensure that the best interests of children are met.
In Mazorski & Albright [2007] FamCA 520, Brown J said this about the concept of meaningful relationship:
26.…A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be where possible and in their best interests substantial and significant.
Put another say, s 60CC(2)(a) does not invite a court to act on an artificial view that any circumstance which would increase a parent’s involvement with a child must be in the child’s best interests. It may be that to do so would simply increase the child’s potential, if not real exposure to parental conflict between two people they may love and for whom the child would have adverse feelings, including sadness, distress or anger by seeing one parent upset, angry or frustrated by actions or decisions taken by the other parent for whom they share similar feelings.
The other paramount consideration which takes precedence over the benefit to the child arising from a meaningful relationship with parents is the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence: s 60CC(2)(b).
In reflecting on the Court’s role when matters of risk are raised, Morely J in Berys & Berys [2022] FedCFamC2F 1162 said this at paragraph [177]:
177.Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:
(1) Assess whether that risk is an acceptable risk or an unacceptable risk;
(2)If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
(3)Decide what orders are proper in all the circumstances in the best interests of the child.
In the decision of McClelland DCJ in Sweet & Sweet [2022] FedCFamC2F 676, his Honour neatly summarised the issues of unacceptable risk. At [55], his Honour said this:
55.The task of determining whether an unacceptable risk, in terms of section 60CC(2)(b) of the Act exists is assisted by having regard to the following principles:
•In devising tests to determine whether unacceptable risk exists, the court have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child from parental access: see M & M (1988) 166 CLR 69 (“M & M”) at 78; B & B (1993) FLC 92-357 at 79,778.
•It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A & A (1998) FLC 92-800 at 84,996; M & M at 77.
•Such an unacceptable risk can include any or all matters that compromise the safety, welfare and wellbeing of a child and is examined in light of an accumulation of factors proved: see Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSW ChC 5 at [146]-[148] (‘DFCS v the Colt Children’).
•The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at 81,890-81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty, “Unacceptable Risk – A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
A finding of unacceptable risk need not be demonstrated according to the civil standard of proof - see Isles & Nelissen [2022] FedCFamC1A 97 (‘Isles & Nelissen’) at [6], [7], [46] to [51] and [81]. Isles & Nelissen was followed in the decision of Eastley & Eastley [2022] FedCFamC1F 212 at [45] where the Full Court observed that a finding of unacceptable risk was open on the available evidence because the evidence demonstrated a material possibility of risk which need not have been demonstrated according to the civil standard of proof.
If the Court identifies existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”, see Blinko & Blinko [2015] FamCAFC 146 at [83] (‘Blinko’), referring to R & C [1993] FamCA 62 (‘R & C’).
In Napier & Hepburn [2006] FamCA 1316, the Full Court emphasised that it is not for the Court to find a solution which eradicates the chance of serious harm. Rather, the court must balance the harm that will follow if the risk is not minimised or removed as against a normal healthy parent/child relationship not being permitted to flourish.
I was invited to consider whether the mother’s genuine subjective fear of the risk of harm posed by the father was so pervasive that if the father was to spend any time with the children, the mother would be unable to cope causing compromise to the children’s welfare; see Sedgley & Sedgley [1995] FamCA 154 (‘Sedgley’) and Re Andrew [1996] FamCA 43 (‘Re Andrew’).
Helpfully for me, in Keane & Keane [2020] FamCA 99 at [83] to [93], Judge McEvoy considered this issue which I have summarised below.
(a)In Re Andrew the Full Court observed that the welfare of the child remains the paramount consideration and in considering such welfare, the Court must take into account any anxiety held by the primary carer concerning the child’s potential harm where such anxiety is likely to adversely impact that person’s care-giving ability. In taking account of the beliefs of the primary carer and the effects of such beliefs on that person and the consequent harm to the child, a subjective test is required.
(b)However it must be established that the belief is genuinely held and where the entirety of the evidence demonstrates that the belief is entirely irrational and baseless, the genuineness of the subjective believe will be open to doubt: R & C.
(c)A decision to sever the relationship between a parent and a child is one which the Court would ordinarily make only with considerable hesitation: Sedgley
(d)It is only in cases where a conclusion is reached that there was no unacceptable risk that the Court would need to consider the separate question of the primary carer’s belief in the occurrence of events in question: R & C.
(e)It is not necessary that the belief should be reasonably and objectively based, but rather whether it is genuinely held: R & C.
(f)Despite no apparent expert evidence in support of the primary carer’s apprehension, the Full Court in Dunst & Dunst [2016] FamCAFC 15 at [119] did not criticise the trial judge for concluding that whilst the available evidence fell short of proving the primary carer’s capacity would deteriorate and impinge the children’s best interest (there having been a diagnosis of post-traumatic stress disorder (‘PTSD’) and expert evidence of the genuineness of the apprehension but not about such apprehension impinging capacity); the trial judge nonetheless found that the primary carer’s fear was genuine and objectively reasonable and remained a feature of the evidence favouring curtailment of the children’s interaction with the other party.
(g)The court has made a “no time” order in circumstances where the psychological evidence was that if time or communication was ordered, the mother’s already poor mental health would deteriorate further and negatively affect her parenting capacity and that further treatment would not diminish her fear: Gallagher & Gomez [2017] FamCA 944 at [142]-[157];
(h)In the decision of Hollister & Gosselin [2016] FamCA 759, the Court did not make a “no time” order because the Court found at [193] that, there was little evidence, beyond the mother’s inevitable devastation and horror, to suggest that she could not continue to successfully parent the children. Notably in that case, the trial judge observed that there was no evidence from her psychologist or counsellor, much less a psychiatrist, as to her likely being unable to continue to function effectively so as to adequately care for the children.
Following a consideration of the case law, in Keane, McEvoy J concluded at [93]:
93.It will be necessary to analyse carefully the evidence led on behalf of the mother in relation to the impact that allowing the child supervised time with the father would have on her caregiving capacity. For present purposes, however, it may be accepted that there would need to be very cogent evidence that, to use the language of the Full Court in Marra & Marra[1] the mother’s caregiving capacity would be discernibly impaired by any order that the child have time with the father – (see Re Andrew at 83,210) - for such an order not to be made. Ultimately as the Full Court has consistently observed, the lodestar is the welfare and best interests of the child, which principle now finds statutory expression in section 60CA of the Act; Re Andrew 83,199.
[1] Marra & Marra unreported Full Court decision, 8 September 1993, Fogarty, Baker and Butler JJ
Whenever the Court is asked to make a parenting order, the court is required to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility: s 61DA. Whenever the court is asked to make a parenting order, where circumstances are made out, the presumption of equal shared parental responsibility does not apply including, for example, instances of child abuse and family violence: s 61DA(2).
All parties agree that the mother should have sole parental responsibility and, as such, the mandatory considerations within s 65DAA were not triggered.
Sections 68B and 68C permit me to make injunctive orders with, shall we say, “bite”, insofar as s 68C empowers a member of the police service, on reasonable grounds, to arrest a person without a warrant if the police officer finds that certain circumstances are made out when the person has breached an injunction made pursuant to s 68B for the personal protection of a person.
The question for me is whether the circumstances lay a proper basis for an order to be made for arrest without warrant. Given that the person, the subject of the proposed restraint, is the person submitting that I make such an order, I will not take up too much time analysing whether to do so is proper.
EVIDENCE
Turning then to the evidence. In terms of the evidence, the father read and relied upon the following documents:
(a)Affidavit of Mr Ayton filed 11 October 2022;
(b)Affidavit of Dr G filed 6 December 2021;
(c)Exhibit ‘F1’, Notice of Costs pursuant to r 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).[2]
(d)Exhibit ‘F2’, the outline of case document filed by the father on 14 October 2022; and
(e)Exhibit ‘F4’, the father’s revised proposed Minute of Order filed in Court on 19 October 2022.
[2] Unless otherwise specified, any reference to ‘the Rules’ or a subordinate legislative provision shall be a reference to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The mother read and/or relied upon the following documents:
(a)Amended response to initiating application filed 11 October 2022;
(b)Affidavit of Ms Ayton filed 11 October 2022;
(c)Notice of child abuse, family violence or risk filed 22 April 2021;
(d)Exhibit ‘M1’, Notice of costs pursuant to rule 12.06 filed 14 October 2022;
(e)Exhibit ‘M2’, the outline of case document filed by the mother on 12 October 2022; and
(f)Various other exhibits.
The ICL read and/or relied upon her outline of case document filed 17 October 2022, (being exhibit ‘ICL1’), and her r 12.06 Notice of costs, (being Exhibit ‘ICL2’).
The parties, to varying degrees, all sort to rely upon Exhibit ‘A’, the family report dated 3 May 2022 as prepared by court child expert Mr H (‘the child expert’).
Statements of facts as set out below should constitute findings of fact unless otherwise expressed.
When the mother approached the witness box, she was visibly upset and/or nervous. Nonetheless the mother gave her evidence in an honest and forthright manner. Given her observable emotions, the Court wishes to acknowledge the appropriate manner in which counsel for the father approached his task.
The father’s presentation was at times evasive, but at other times he too was honest and made admissions against his interest. Overall where their evidence conflicted, I preferred the mother’s account. Where I was not satisfied that the father’s evidence was credible or otherwise should not be preferred over another version or document, then I will say so and explain the reason why.
I found the child expert and Dr G to give measured and thorough evidence with the basis of their opinions clearly expressed.
In order to consider the various applications, it is necessary, firstly, to consider the parties’ proposals and then set out a chronology of the significant features in the parties’ circumstances. Where there is a controversy I have done my best to highlight this within the chronology. There may be other significant circumstances that I miss in the chronology which are picked up elsewhere in this decision.
Before setting out the chronology I will canvass the parties’ proposals.
THE PARTIES’ PROPOSALS
As can sometimes happen in matters involving complex issues, a party’s (in this case the father) position can change over the course of the trial.
In summary, he started out seeking only unsupervised overnight time building to an equal-time regime (week-about) in 2024, but by closing submissions his proposal involved him engaging with a psychiatrist and psychologist for no less than six months (during which weekly time, (three hours), would be professionally supervised), at the end of which, and after receipt by the mother and the ICL of the treating clinicians’ reports, the mother would have the sole discretion about whether the existing weekly supervised time was maintained or extended in the regime specified, which was a gradually increasing build‑up to block overnight time both during school terms and during school holidays.
The father submitted that he be subject to a more stringent injunction pursuant to ss 68B and 68C, such that he be prohibited from contacting or communicating with the mother other than via email, (which was in the mother’s proposal) and if the police found that his communication fell into categories such as being of an intimidating nature, just by way of example, then the police could arrest him without notice.
All parties agrede that the children should live with the mother, and she should have sole parental responsibility for them. All parties agreed that written correspondence by the father to the children (with the mother as the filter) was in the best interests of the children and that should the children wish to write to the father, then this too would meet their needs.
The mother sought that the children spend no time with the father. She sought various orders and restraints to curb the father’s adverse behaviours and otherwise to quarantine her and the children from further exposure to them.
The ICL submitted that the children should have supervised time with the father six times a year and also sought various injunctive restraints including a non-denigration order against both parties.
CHRONOLOGY
In 1975 the father was born, and he is currently 46 years of age.
In 1977 the mother was born, and she is currently 45 years of age.
In mid-2001 the father and the mother commenced their relationship, according to the father, with the mother saying that the cohabitation between the parties commenced in early 2002.
The Court heard that during the course of the relationship – and this evidence was unchallenged when the mother was asked to give her evidence – the father had engaged in significant displays of temper and violent rages during the marriage. The mother claimed that he – she described the father – that he goes “all black”, and that he does not have any control over it.
The mother claimed that the father also has significant mental health issues. I recall during the course of cross-examination that some of these allegations of the mother were put to the father. For example, it was put to him that he throws food. The father says that he threw it into the sink. It was put to the father that he had punched holes in the walls of the house, and this was put to him on the basis of it happening on 25 occasions. The father denied that in terms of the number, but in his affidavit he certainly makes concessions that he has put holes in walls.
There was an occasion where – and I think this was some time later during the course of the relationship – the mother made an allegation about the father throwing food and spilling beer or throwing beer. The father says “I flipped a pizza box over” which caused a beer to be knocked over.
The father was taken to an allegation, it appears in 2005, where the mother says that she came home to find a dog lead hanging from the roof. This evidence was not challenged at all by the father. He says to her, according to the mother, that he had had it around his neck earlier, but that when they went to the doctor, the father told her not to tell the doctor of the suicidal thoughts that he had expressed to her, and so there was no disclosure recorded. The father denies this, but, as I have alluded to earlier, I prefer the evidence of the mother.
Then in about 2006 the mother says that the father was washing their puppy, he became angry, and then he punched the large, frosted panel of the shower screen. The father denies that he became angry, but he does say that he got frustrated, as I recall the evidence, and says that he did punch the shower screen but it did not smash. I think his evidence was that there was a crack.
Then in 2008 the father was charged and convicted of a traffic offence, and he was fined and disqualified from driving. A couple of days later he was caught drink‑driving with an unregistered vehicle, and he produced a high blood-alcohol content reading. He was suspended from driving. In relation to the mother’s evidence, I preferred her evidence about this incident insofar as he had been caught driving her car to evade police, and that he was charged with driving on a suspended licence and subsequently lost his licence for a period.
Then in mid-2008 the father was charged and convicted of driving with a suspended licence, and then the father says that he then decided he would give up alcohol for three and a half years.
A couple of years later in 2010 X was born.
In 2012 Y was born.
In early October 2014 the father says that the parties separated on a final basis, and he moved out of the family home.
Between 2014/2015 the parties reached an informal parenting arrangement which sees the children spending time with the father in accordance with his work schedule for up to five to six nights a fortnight.
Then in 2015 the mother claims that communicating with the father about parenting issues became very difficult. Nonetheless – and this was evidence that the mother was taken to[3] - the mother’s lawyer says – and this is in 2021 – that on instructions, previously (the father) has been an excellent father to the children.
[3] See annexure ‘RW3’ of the father’s affidavit.
In early 2015 the father was involved in a serious accident, and as a result of that he suffered chronic pain and had a permanent implant. He was diagnosed with PTSD and depression.
Between early 2015 and mid-2019, the father says that due to the pain from his accident, he heavily used pain medication. The mother also alleges that the father used marijuana for his chronic pain, and the father did give some evidence about that.
From April 2016 there was a series of text messages sent by the father to the mother, leading right up until (I think) mid-2022. Because I know that both parties are listening, I don’t intend to go into specifics about what those text messages contained other than to say this: it was a pattern of abusive, derogatory text messages aimed squarely at hurting the mother. The father, to his credit, made full admissions that he was the author of those terrible, terrible text messages.
In late 2016 the parties were granted their divorce.
In about 2017, the mother says that the children started telling her about serious arguments that they had witnessed between Ms D and the father; it is at about this time that the father forms a relationship with Ms D.
Then – and I should say here, I think it is common ground that in 2016 and a couple of times later on – it might have been more than a couple, but nowhere near to the extent of the father’s communication – the mother also engages in the use of some derogatory language about the father.
Then in November 2017, the parties entered into a parenting plan, which essentially became a version of equal time, with the children living between the parents on a two nights/two nights/three nights split over a fortnight.
Then, as I alluded to earlier, the father gave some evidence that between early 2019 and March 2021, he used an illicit substance to manage his back pain.
I just want to go back just a moment.
There was also some evidence in terms of a COPS event report from late 2019 where the COPS event – and this was contrary to what the father, in essence, said to the Court – the police saw a vehicle that they realised had cancelled registration. The police turned around, and they attempted to pull the vehicle over. The vehicle then, in their words, fled at speed. Subsequently, the vehicle crashed into a brick wall. The driver, being the father, alighted the vehicle, kicked off his thongs and fled the scene.
Then in early 2019 there was evidence about the father lying to the police about him being the owner of an illicit substance, because he says that, in fact, it was owned by Ms D, and he does agree at that time that he was consuming it. So it is another example of the father behaving in an evasive manner towards police.
Then we have an incident in early 2019 which was loosely described as “the football bag incident” in which Y was really exposed to the father’s anger and frustration about his reticence to play football, and the mother says that the police attended to conduct a welfare check on the children.
Then there was another incident – and I think this is at about the same time. The father decides that it would be appropriate for him to ask Ms D to go the front door of the mother’s home to request that Y come out to play football. In his cross-examination the father accepted that the mother would not want him to come to the front door, so he thought it was okay for Ms D to go instead. When the obvious, frankly, happened - and the two women became embroiled in some sort of verbal altercation, he says that he saw the mother assault Ms D, and he pulled out his phone to record it. The COPS events do not record either Ms D or the father saying that the mother had assaulted Ms D, and certainly on that basis, between the COPS event and the mother’s evidence, I accept what the mother says.
The consequence of that decision by the father was that the mother was prescribed anti-anxiety medication; this was unchallenged evidence, and she is still on that medication.
Then, the next significant incident occurred in early 2021. There seems to be some confusion about the date, but, frankly, it does not matter from my perspective. In any event, the evidence was that the father and Ms D were on their way home from a trip at City V, and they began to argue in the car in which the two children were sitting in the back seat. The father says that Ms D had been drinking throughout the entire day and was drunk on the way home. The father says that Ms D got physical and verbally aggressive towards him, calling him a “fucking cunt”. The father says Ms D threw a drink over the father and continued to swear at him. The father says that Ms D then punched the father’s head without warning and slapped the father across the mouth.
The father says that he stopped the car twice and asked her to get out. He says that the second time he stopped, he got out of the car and asked – and opened Ms D’s door to get her to leave the car. He says that Ms D started to scream and physically attack the father. The father claims he punched Ms D in self-defence, and both suffered injuries and were bleeding. The mother says that the children told her that Ms D was intoxicated during the incident and that the father dragged Ms D out of the car before leaving her on the freeway. She says that X later disclosed to her:
It was pitch-black, Mum. I thought we were going to die. The way Dad pulled over was so dangerous I was so frightened[4].
[4] Mother’s trial affidavit paragraph 62d.
In cross-examination the mother described the children’s response when they returned to her care as “distraught”. The police then became involved, an ADVO was issued with Ms D as the person in need of protection and the father as the defendant. The mother says that the father called the mother and asked her to pick up the children from his home as he was being arrested, presumably in relation to this incident and the ADVO. The mother says that Y was crying when he came into her care, and the mother says that she saw a very large, prominent scratch on the father’s face from the corner of his mouth to his ear. She says he also had caked blood in the corner of his mouth.
Following those events and later on that month, the father began to see Ms J, a psychologist with the K Clinic. He had seven follow-up appointments with her. It seemed to be common ground that there were some appointments in 2021 followed by a gap of about six months after which the sessions resumed again in about December 2021 until April 2022 – and that the father gave some oral evidence about having – I think it was about four sessions booked for later on this year.
Then in early 2021, the police unconditionally withdrew the ADVO application listing Ms D as the person in need of protection and the father as the defendant.
In early 2021 after consulting with Ms J, the father said he decided to stop smoking an illicit substance to manage his back pain. During this period of time the father also says that he had two appointments with another nurse called Ms L, and there was also some evidence of him seeing a further nurse as well.
In April 2021 (after the proceedings had commenced and the mother had filed her material) there were consent orders made preventing the father from allowing the children to come into contact with Ms D. And then in April 2021 the father underwent one of a series of urinalysis tests which showed a negative result for illicit substances.
The interim consent orders in April 2021 included permitting the father to have supervised time on three occasions each week for periods of time ranging from two to four hours and that the time was to be supervised by Mr M (being the father’s brother), or Ms N (being the father’s sister).
There were other orders made, including an order about the father undergoing urinalysis testing with some timeframes around the father responding and submitting to the test and then providing the results to the mother.
There was also an order made restraining both parties from making derogatory remarks about the other in the presence of the children, and a further order was made restraining them from questioning the children as to parenting arrangements, discussing the proceedings and from involving them in the current parenting dispute.
In mid-2021 the mother instructed her solicitor to write a letter to the father about concerns she had about the father’s disregard for the April orders. It seems to be almost on the same day, if not the same day, the father also attended an appointment with Ms J.
Then on 17 June 2021 the father undergoes another urinalysis test, and again it is negative for illicit substances.
In August 2021 the mother says that Mr O, her partner, was having dinner with her and the children when Mr O disclosed that he had received the COVID vaccine. The children were observed by the mother to become upset and worried that Mr O would die because he had the vaccine.
On 5 August 2021 the father sends a series of five messages in 10 minutes accusing her of being a liar and manipulative.
On 12 August 2021, the father requested additional time with the children, and the mother said no. The father sent the mother seven messages within 30 minutes accusing her of being sick in the head, ruining their marriage and doing nothing to make the situation better.
In late September/early October 2021 the mother says that X started displaying a lot of anxiety and discomfort about spending time with the father because he kept asking her about her phone. When the mother told X to tell the father when she is uncomfortable, she said:
I can’t, Mum. He’s just too scary. I can’t stand-up to him[5].
[5] Mother’s trial affidavit paragraph 126
It seems to be that from about November 2021 onwards for – certainly, for a significant period of time - the father started becoming late in the return of the children from supervision.
On 24 December 2021, the father decided that it was appropriate that he directly contact X in relation to arrangements for Christmas Day, which then causes more conflict between the parties and the children are exposed to it. This is because at the changeover, the father arrived without a supervisor, despite an order saying differently, and the mother said that he was yelling at the mother to hand over the children. None of this was of any benefit to the children.
Then if I turn to January 2022, after the mother had given the father some leeway in terms of the children attending an Ayton family event in December, the father reacted badly (by way of text message), when the mother asked for some extra time on Australia Day.
At about the same time, the mother received a letter from the Men’s Behaviour Change Program which was dated back in late 2021 stating that the father was unsuitable to complete the program, but his actions warranted that he could be eligible and left the door open for the father - should he change his statements and/or position.
Further appointments happened with the father and Ms J in early 2022.
In early 2022 there was a visit with the children and the father, during which time the father made allegations that he was essentially going to withhold the children. The mother became so concerned about how things were unravelling that she decided to call the police and the children were exposed to that incident. It was evident to me from the cross‑examination that occurred, that the father was the one who failed to exercise good communication. The mother was trying her best to accommodate his request for additional time, and yet was met with nothing but abuse from the father.
In relation to another incident in terms of not complying with an order, it was common ground that in February 2022 the mother made a request for the father to produce a urinalysis test. The father was late not only in submitting to the test but then in providing the results to her.
In relation to the incident in early 2022, the father said that he spoke to the children about the incident. He told the children that the mother did not have to call the police and that she had lied about something while they were married.
Then in relation to B Contact Service becoming involved, there was some discussion about having a professional supervisor report and monitoring the time between the father and the children. The father nominated B Contact Service to be the supervisors. And so I think it was later in March 2022 that orders were made to accommodate that professional supervision on a Wednesday.
Just in relation to something that I picked up from Exhibit ‘ICL4’ - on 22 March 2022 when X was talking to Ms P, a counsellor that she had been engaged to see. She said this:
[X] shared that she is currently worried about her [animals] which are at (the father’s) home, and [X] is concerned about Dad’s reaction when [X] suggested they may need to be put down. She is concerned the father will get angry.
She described the father’s anger to consist of yelling and shouting. (The father) is understood to escalate to the point of needing to leave contact once a week or fortnight. [X] reports the paternal aunt ([Ms N]) and the uncle (which is [Mr M]) who were acting as supervisors at the time do not intervene and sometimes “join in and gang up on us” referring to her and her brother [Y]. (She is recorded as saying she) feels scared and nervous when the same is occurring. [X] expressed she would like the supervisors to stop Dad and feels relieved contact will be moved to an independent supervisor.
So that’s X’s lived experience of the supervision in a family construct.
Then in relation to those March orders, just going back to them, there was another order made that the parties not denigrate each other, and the parties not discuss the current proceedings with the children.
Then we’ve got another report, and this is coming from some of the counselling notes for Y and Ms Q (which is part of Exhibit ‘ICL3’), and this was something that the father’s counsel took me to, there was a report created on 11 May 2022 which appears to be from an appointment the day before, where there is a discussion about ending the counselling sessions. It is recorded that:
[Ms Ayton] (as in the mother), doesn’t have any concerns for [Y’s] behaviour. Shared he is much better at regulating his big feelings now, and [Ms Ayton] has developed strategies to help him manage his big feelings.
I accept what the father’s counsel submitted, that this demonstrates the mother’s capacity to not only manage any distress or concerns that Y may have in an appropriate manner, but that she is not over egging her case and the children’s anxiety about the father. She is pragmatic. She is promoting the children’s relationship with the father as best she can, whilst being empathic to their needs.
Then in relation to these visits with B Contact Service involved, on a number of occasions starting with mid-2022 X is recorded as asking the supervisor for more time. So this in stark contrast to X’s expression about the concerns she has and the experiences she has when the family is supervising the father’s time.
In mid-2022, at the children’s school sports carnival, the father has lunch with the children unsupervised. It was evident from the cross-examination that the father had no understanding that he was in breach of a court order for reasons that I don’t understand. It was very clear in the court orders that he had to have supervision when he saw the children, and yet he decided that because he was not actually breaching an order because he was not on school property, he could do what he wanted in terms of seeing the children. My orders will prevent any miscommunication or misunderstanding about that issue into the future.
In August 2022, X is again asking the supervisor for more time. And this is on two occasions, 10 August and 17 August.
Then on 20 August 2022, the mother gives some evidence about the children, firstly, being late back from a supervised visit with family, and that the children tell the mother that the father has questioned them about “Ms U, the ICL”. In the past, it had been “Ms W, the ICL”, but, again, the concern from the Court’s perspective is that there’s an order saying don’t talk about the proceedings and the father does it anyway, and it’s certainly conceded that he did ask - had they met with Ms U?
The father confirmed that he had requested that the mother return all the presents and gifts that he had bought for the children, something which the mother subsequently complied with. Just in terms of that evidence, I’m just going to read part of paragraph 150 of the mother’s affidavit where she says that Y told her that the father had said:
“What have you been telling your mother about me and what I do? You need to tell her you want sleepovers,”
and this is a conversation Y is hearing his father have with X-
“This has gone on long enough. You are not scared of me. You just need to suck it up. You need to get over it. Don’t tell your mother anything. She will write it all down in her little book and then I will get in trouble. She will take you away from me.”
In essence, the father didn’t deny the substance of that conversation.
So the father then on 24 August 2022 decides to cancel supervision and his evidence was that it was for financial reasons.
Then in September 2022 the father concedes that he had had conversations of some sort with Ms D and it seems that this must have been observed in some part by the children because they start reporting to the mother that the father and Ms D had been messaging on Snapchat, and that X’s behaviour had become so hyper-vigilant that she starts sending messages and photos to the mother about what is on the father’s phone screen.
In October 2022, the father undergoes a urinalysis test, and he tests negative again for illicit substances.
And I will just pause there to say there was also some evidence that at the time in September 2022 the father gave or lent to Ms D $1000 to pay some fines.
On 18 November 2021, Dr G produced a single expert psychiatric report about the father. He was cross-examined about the report and said that he thought that at the time of the interviews the father was probably suffering from depression but was not delusional. Dr G opined that he never says that a person is beyond hope, and in summary he considered there was some prospect of the father being able to regulate his emotional behaviours, anger, impulsivity, and perseveration to the children about his negative views about the mother, the government, and COVID-19 generally if the father adhered to a treatment plan which engaged medication prescribed by a treating psychiatrist and talking therapy facilitated by a psychologist.
It was common ground that in his report, Dr G had made certain recommendations about the father engaging with these two classes of professionals. It was common ground that the father had not engaged with a psychiatrist and had not engaged with a psychologist as regularly as had been recommended by Dr G.
On 3 May 2022, a family report was produced. Insofar as X was concerned, the report included the following:
(a)X is in year 6 at R School in Region S;
(b)X presented as extremely friendly, bright and polite;
(c)The mother sees X as missing her old Dad and grieving for the Dad that they no longer have;
(d)X spoke freely without her responses having any indication of being influenced or coached;
(e)X said that the father had told her that if she received the COVID-19 vaccination, she would die, but that she would kind of want the vaccine so she could travel. When asked how she felt the father might respond if she did receive the vaccine, she replied, “He’ll rage”;
(f)X described her Dad as a big man, scary to talk to if cranky;
(g)X said that her Dad will “go on about stuff” and gave the example of not being allowed to put on sunscreen when she is with the father and, on one occasion, the father’s reaction to the topic was such that she and her brother both cried;
(h)In addition to reporting about the early 2021 incident, X disclosed another incident where the father sustained a large cut to his head and had to go to hospital due to a physical fight with Ms D. X recounted that she had witnessed the father and Ms D fighting 10 or 15 times;
(i)X described her father as very funny, kind, good when he is good and that “he cuddles us” and that she would love it if he stops going on about stuff;
(j)X described that at times the father makes her feel scared when he goes on or is cranky and described that she experiences anxiety at times because she feels sick, gets upset at night and will have a sad tantrum where she is just bawling her eyes out but does not know why;
(k)X said she would like to spend 25 or 30 per cent of her time with her Dad, that she was comfortable with him and said that if she became uncomfortable or unhappy or felt unsafe with her father and asked to go back to her Mum’s, her father would say no.
As for Y, the report includes the following:
(a)Y is friendly, pleasant and polite, but comparatively to his sister, he is less confident and outspoken, but could articulate his feelings.
(b)Y is in year 4 and at the same school as his sister.
(c)Y said that his father makes him scared a lot and that when Ms D and the father had fought, the father had told him not tell the mother. “Basically he yelled at us.”
(d)Y also described a pattern of behaviour by the father of going on about things like the ICL, COVID-19 and sunscreen.
(e)Y recounted his father saying that, “I know I am not supposed to tell you, but your mother is a liar. She has done things behind my back,” and this made Y feel scared.
(f)Y described his father as “really nice, caring, funny and quite smart”.
(g)Y said that if he stayed overnight with his Dad, he would just “go on”.
Just like in the majority of reports from the B Contact Service, the child expert’s observations of the children with the father were positive, ending in the children giving their Dad a warm embrace.
The children expressed no adverse worries or fears about the mother and it was evident from the report that they have a close, supportive and loving relationship with her.
The child expert identified a number of risk factors posed by the father and, in light of his poor insight and lack of any perceptible benefit from the recommendations of Dr G and his therapy with Ms J, opines that the only way to manage those risks is through professional supervision, if any time was ordered.
In short compass, these risks were the father’s poor emotional behaviours around
(a)managing anger (which has, in the past, caused him to punch Ms D, punch holes in walls, punch a shower screen, denigrate the mother and create chaos in the family home by throwing items and foodstuff around);
(b)secondly, impulsivity borne (it appears) largely out of frustration; and
(c)thirdly, his preoccupation with various – what was described as “world issues” in the context of the impact upon the children from him “going on” about them.
A common theme in Dr G’s report and the family report was the experts’ expressed concerns about the lack of insight the father had into his conduct. This resonated with me insofar as the father had also been unsuitable to progress and/or complete the Men’s Behaviour Change program because he failed to meet the entry requirements due to his statements and position. The chronological dates when these expressed concerns were expressed are September 2021, November 2021 and May 2022. The father had commenced therapy with Ms J in January in 2021 and one would expect that by May 2022 (as in when the family report was produced), the father would have gained tangible insights into the impact of his behaviours.
In cross-examination, the child expert did not recommend that the children spend time with their father. Her view was that the father’s past informed his future and that if he had failed to change his behaviours despite the benefit of Dr G’s recommendations, Ms J’s interventions and now the family report, then unsupervised time was impossible and supervised time was not a long-term proposition.
I asked the child expert about the risk of the children fantasising the father if no time was ordered. The child expert discounted this, saying that the children know their father very well and that the mother would be able to manage their feelings of grief. The child expert thought that if such an order was made, it would be supporting the mother’s ongoing role if either the child expert or the ICL explained the orders to the children.
The child expert considered postal communication – non-spontaneous – was a good way to keep the children in some way attached to the father, whilst also keeping them and their mother safe from harm. I canvassed with the child expert the notion that supervised time be limited to when one or both of the children reached a certain age, after which the mother should have the discretion. The child expert weighed up this option and I have carefully considered her responses. Similarly I have carefully considered the family report, including the recommendations.
The mother’s evidence about the impact on her from the father’s behaviour was unchallenged. Without meaning to dilute or in any way minimise her lived experience, in summary the mother says that:
(a)She has struggled with some aspects of parenting due to the historical family violence and the father’s continuing abuse of communications (which, it is agreed, continued up until August of this year);
(b)She is constantly in a heightened state and since 2019 has lived in a state of “fight or flight” mode, always being on high alert and experiencing high levels of anxiety and an episodic racing heart or heart palpitations;
(c)She has extreme difficulties with sleeping, lying awake at night worrying about the children and their safety;
(d)Since 2019 when Ms D and the father attended her home, she has been prescribed anti-anxiety tablets;
(e)She has experienced what she calls brain fog and poor concentration from worry and exhaustion; and finally
(f)She is concerned that her anxiety will rub off on the children and when X’s behaviours of taking screenshots of the father’s home – as but one example – were put to the child expert, she agreed that this could be symptomatic of the child picking up the mother’s anxiety and herself become aroused and anxious.
The father is self-employed. He says that on average he earns $1,500 net per week and that he does receive unquantified benefits from being a partner in the company or business he now operates. The father agreed that based on what he has disclosed, he earns $78,000 per annum in the hand and pays about $50,000 of it in rent each year. Even on the limited evidence he did give about his financial circumstances, his evidence was unsatisfactory. It is frankly implausible to tell this court that in light of the rent he pays each week, his weekly income is $1,500 in the hand.
Despite knowing that his current child support liability of $400 a year is based on an inaccurate estimate of his income, he has done nothing to remedy this. He remains in dispute with the Administrative Appeals Tribunal over an outstanding child support liability of about $34,000. Last month, the father paid Ms D $1,000 to assist her pay outstanding fines or penalty notices. The father says that he is a friend of Ms D and nothing more.
The accumulation of these factors are an example of the father’s disingenuousness and why, overall, where there is conflict between the mother’s evidence and his, I prefer the mother’s. I am also concerned around the father’s capacity to prioritise the needs of the children at many levels, including to keep them away from Ms D in an unsupervised setting and/or to be able to pay for their expenses in preference to others.
ANALYSIS – PARENTING PROCEEDINGS
The Primary Considerations
Section 60CC(2)(a)
Turning then to an analysis of the law versus the evidence, standing back and considering the evidence, it is clear to me that the children have a meaningful relationship with the mother that could be described as the mother being their bedrock. In more recent times, the children have been able to express their worries about their father to her, whereas previously they were reluctant to do so, overborne by the father’s demands to keep secrets from her.
The mother agreed that the children love their father. No one disputed my observation that it seemed to me that she was more than capable of supporting the children having a relationship with the father, if it was safe. This is amplified by the father’s ultimate proposal which left the time he should spend with the children entirely at her discretion.
Love, however, is not enough to make a finding that there is a benefit for the children in having a meaningful relationship as described within Mazorski & Albright. What I need to establish is whether, for example, their relationship is valuable to them (not the father). Because of the complex nature of this issue, I will park it for now and return to it in due course.
Section 60CC(2)(b)
In terms of issues around risk, the big issue in the room was whether the father posed an unacceptable risk and, if so, whether the risk could be sufficiently mitigated.
The father poses an unacceptable risk of harm because of his propensity to engage in family violence and his inability to regulate his emotional behaviours (to use Dr G’s language). Although the second identified risk is not expressed within s 60CC(2)(b) a line of decisions including DFCS v the Colt Children, suggests that matters compromising the safety, welfare and well-being of a child can form the basis of a finding of unacceptable risk.
I can easily make the finding about family violence because of the candid admissions the father makes about his behaviours whilst in the relationship with the mother and since.
The father is a bully with no insight into the impacts for the mother and children about what they have endured. So much was evident by his failure to be accepted into the Men’s Behaviour Change Program last year. If, as was submitted, the penny has dropped in more recent times, why was there no evidence of the father attempting to re-engage with Z Family Services (following for example, the release of the family report) to support the submission?
Compounding the risk, is the recent evidence from the children of their observations about the father’s recent communications with Ms D and the inexplicable reason about why he would lend her $1,000 if not because their relationship has resumed at some level other than them both being participants in acts of family violence against each other in the past.
I accept the mother’s unchallenged evidence that the children are genuinely scared of Ms D, and an injunction will be ordered accordingly.
Insofar as emotional dysregulation, the evidence overwhelming finds the children’s welfare and well-being have been impacted negatively. Again, even the father says that he will act out when he becomes frustrated. I heard from the father that he has momentary lapses whereby, “It’s not the exact thought process at the time that I’m going to disobey a request,” - in this case to not talk badly or at all about the mother to the children or a court order prohibiting him from speaking about the proceedings - but nonetheless he says something and then stops himself.
As I observed, even if (as he asked me to believe) that he has the capacity to stop himself when he can see the distressed reaction from the children, the damage has already been done and the horse has bolted. The most recent incident was in mid-2022, less than two months before the trial and after the family report released, when I would have expected a person in control of themselves would have been able to control their behaviours. The father is not one of those persons.
Other examples of his poor emotional dysregulation can be found in what the children described as him “going on”, and what I call a perseveration and what Dr G called “preoccupation”. As I indicated at trial, unless I can find a causal link between a person’s views and harm to a child, I’m not interested. Here, the children express exhaustion and despair about how the father won’t stop talking about his attitudes about the world which are in stark contrast to what they experience in the mother’s home.
One of the consequences of this behaviour, is that the children are being exposed to a form of parental conflict that is completely unnecessary and demonstrably undermining their relationship with their father, with the child expert recording X as saying that her father is good when he is good, that “he cuddles us,” that she would “love it if he stops going on about stuff”.
In one of the last professionally supervised visits the children had with the father, their hesitation with the father was recorded as them “gauging his feelings”. Even in a supervised setting, to ask the children to keep doing that week after week for at least six months (as the father asked me to do) is not in their best interests when there is little evidence to suggest that the father has the capacity to change.
The accumulation of factors within the evidence demonstrates a material possibility of risk (see Isles & Nelissen) that the father poses an unacceptable risk of harm as identified earlier.
Because of the mother’s contentions about the impact on her capacity, I will return to risk mitigation later.
The additional considerations
Section 60CC(3)(a)
Turning then to additional consideration, X is 12 and Y is 10. Given their ages and stages of development, their views need to be given some weight and no one has submitted that those views had been infected by coaching or other actions taken by the mother to deliberately align them against the father.
Both children want to see their dad. X’s expression about the percentage of time and/or Y’s expression about the time not being overnight must be seen through a prism including them historically not wanting to say things to upset the father. I am satisfied that the evidence of both parties, the child expert, and the counselling records confirms that the professionally supervised time is something both children have (in the main) enjoyed.
Section 60CC(3)(b)
The children have a disrupted relationship with the father, something of his own making, yet they still act in a way that suggests they find some value in him spending time with them. For example, X wanted to show him a report about her from school and liking it when he watches her skateboard on weekends. Y was reported to say his dad is “really nice, caring, funny, and quite smart”.
Section 60CC(3)(ca)
By his own admission, the current child support assessment is based on an inaccurate assessment of his income, leaving him with a current obligation of about $400 per annum to maintain the children. Even if he successfully overturns the existing child support arrears of about $34,000, I am satisfied that the father has failed to meet his obligations. What this says about his insight into the impacts of his failures have for his own children is hard to ignore.
Section 60CC(3)(d)
The child expert says that the children will likely grieve the father if a no-time order was imposed. The mother says that they are already doing so, missing the dad they used to have. Counselling has been implemented, but whether in the future this will be sufficient (as opined by the child expert) is not clear to me. The child expert says there is no risk of the children fantasising their dad if a no-time order was made because they know him well.
The ICL’s proposal is less drastic in terms of change, but nonetheless substantial. They would stop regularly seeing their dad in a supervised setting facilitated by their aunt (in the main) and instead see him on six occasions a year via a professional supervisor, but in the community. The child expert considered there was some merit in that proposal if any time was ordered but its longevity was limited. The mother and father agree, either because of their submissions and/or the nature of their relief.
The evidence enables me to comfortably find that the children would be severely emotionally impacted by having unsupervised time with the father with the child expert, for example, pointing to long-term implications for X if she continued to experience the unfiltered dysregulated views of the father about how her mother lies and cannot be trusted, which would likely feed into how she manages future personal relationships.
Section 60CC(3)(e)
For allegedly financial reasons, the father terminated professionally supervised time in August 2022. I’m not satisfied that either the proposals of the father or the ICL for professional supervision will have practical longevity, given the current round of such time has ended in less than six months.
Section 60CC(3)(f)
At the risk of repeating myself, the father currently has limited capacity to meet his children’s emotional needs. His proposal suggests some capacity for change in the future because he seeks at least six months of clinical and therapeutic treatment from a psychiatrist and psychology. I hope he takes up that opportunity.
The mother roundly discounts what could be described as his “aspiration” to be better. I tend to accept her scepticism given the long history of anti-social behaviours he has engaged in but, given the evidence of Dr G, I am unwilling to firmly close the door on the father’s propensity for change.
The mother invites me to find that her genuine subjective fear (of the father) is so pervasive as to leave her unable to cope, thus compromising the children’s welfare, in other words her capacity to parent is diminished.
Taken as a whole, there is no doubt that the mother holds a genuine subjective fear of the father but, in my view, those fears need to be seen through her lived experience to date, that is –
(a)the unlimited contact and communication he has had with her which included the father, in 2019, thinking it was okay to send Ms D to the front door of her home demanding Y come out for football, provided he sat in the car and filmed and which has led to her being on a course of anti-anxiety tablets since; and
(b)the time the children have spent with the father –
(i)unsupervised and before Ms D came on the scene in 2017, then
(ii)unsupervised after Ms D joined the household, then
(iii)supervised (poorly, one could suggest) by the father’s family; and finally,
(iv)professionally supervised (to which she gave oral evidence that she was comfortable with occurring in the future).
To be clear, the mother’s belief is not entirely irrational nor baseless (see R & C) but the findings she asks me to make are constrained in circumstances where I have no treating clinicians giving their expert opinion about her prognosis. In making that second observation, I have accepted the father’s counsel’s submission that the weight I can give to the child expert’s opinion about the psychological effect on the mother is severely impinged by her lack of qualifications in that field.
In my view, whilst I accept the mother has a genuine fear, this fear on its own is insufficient for me to make a “no-time” order. Whether the cumulative effect of the various considerations warrants this step will be explored shortly.
Section 60CC(3)(j)&(k)
There are no current family violence orders and I have considered all the evidence about family violence, which on balance, has meant an adverse finding against the father. No submissions were made against the mother.
Section 60CC(3)(l)
The evidence clearly demonstrates that the father has little regard for authority figures. He has at times failed to comply with reasonable directions from police and the Administrative Appeals Tribunal. He has failed to comply with orders of this Court, for example, turning up late to hand the children back to the mother, ignoring orders prohibiting discussions with the children that denigrate the mother or otherwise talking about the proceedings and submitting and providing a drug screen contrary to the timetable embedded in an order.
Both the father’s proposal and the ICL’s proposal infer that the father has the capacity, on a long-term basis, to comply with orders about spending time with the children, either supervised or not. His past conduct over many years suggests that in the future he has no capacity to keep it up. Even his own proposal for professional supervision has failed this year because he could not sustain it.
Returning then to whether there is a benefit in the children having a meaningful relationship with the father, the evidence leads to a finding that the children do find their Dad’s relationship with them to be important, significant and valuable. To use X’s language, “when he is good, he is good”. They like showing him their achievements, whether academically or physically, and to bask in his praise. However, the unacceptable risks he poses to their safety means that I have to prioritise their safety over their relationship with him.
CONCLUSION – PARENTING PROCEEDINGS
It was common ground that sole parental responsibility should reside with the mother and given the findings about the father’s perpetration of family violence upon her, I am satisfied that the presumption of equal shared parental responsibility is rebutted: s 61DA(2). The mother has been making decisions of this kind for many years, and I have no hesitation in formalising that responsibility.
All parties agree that the children should live with the mother, as did the child expert. Having considered the evidence I am satisfied that such an order should be made, in circumstances where the children have lived primarily with her since January 2021 and there was no evidence to suggest that those arrangements were anything other than meeting all of the children’s needs, both from a physical, educational and emotional perspective.
I have already found the father poses an unacceptable risk of harm to the children. The mother submits that her parenting capacity will be diminished by her genuine and subjective fear of the father to such a degree that a ‘no-time’ order should be made in the best interests of the children.
I have considered all the proposals put before the Court. I note that all parties agree that the children should be afforded the opportunity to have written communication (by post) with the father, and, certainly, as between one or other of them, there was some consensual positions about the making of injunctive orders.
The father’s proposal is not in the children’s best interests because there was insufficient evidence that, practically, he could follow the orders, for reasons (informed by the past) such as he could not afford it or he became disinclined to following the advice of someone he perceives to be in authority who may hold a different view to him, such as the mother, the prospective treating psychiatrist and/or the prospective treating psychologist. Certainly to date there is little by way of tangible evidence to suggest the father has learnt anything from Ms J about the management of his emotions.
The mother’s proposal neatly addresses the concern about practicality. There is a complete cessation of any time and spontaneous communication between the father and the children, but at what cost to the children’s relationship with the father and how that may play out for them in the future?
Is there another option that can address the children’s relationship with the father but also preserve the mother’s parenting capacity?
The ICL’s proposal for supervised time (and the various detailed restraints and other orders therein) was, in my view, the closest to meeting the children’s best interests, but not quite – mainly because I, like the mother and the child expert, have a fairly dim view on the long-term benefits to be derived from supervised time.
How can these competing issues about the potential to mitigate the father’s unacceptable risk versus the asserted adverse impact on the mother’s parenting capacity be reconciled, if at all?
In my view, a reconciliation is open to me by way of the making of extremely prescriptive orders that give the mother all the power and personal protection she needs, combined with the children having a very limited number of professionally supervised sessions with the father between now and when X reaches 14 years of age. This is a good balance as well as ensuring zero exposure by them to any spontaneous contact or communication with the father.
Put another way, the risks posed by the father can be sufficiently managed or ameliorated, as can the concerns the mother has about the impact on her capacity, for the following reasons.
(a)Firstly, face-to-face time would only occur four times a year and only until X turns 14, so the quantum is eight visits in just under two years;
(b)Secondly, face-to-face time would be conducted by a professional supervisor who can terminate the time at their discretion, noting that:
(i)to date, (in the main) the children have enjoyed their time with the father in this setting, with X wanting the visits to go longer. I make this finding noting that the child expert had reservations about the veracity of their presentation which potentially could have been at a superficial level only;
(ii)there is a risk of emotional harm to the children from no longer seeing their father, given they both want to do so provided it is safe;
(iii)the mother acknowledges that she would be comfortable with a regime of six supervised sessions per year;
(iv)the risk of non-compliance by the father with the various restraints underpinning time is limited because a supervisor is there and there are limited occasions when the visits would happen, which would coincide to some extent with special occasions that children would ordinarily expect to have some sort of contact with a parent;
(v)and, finally, X would not feel the need to continue acting in a hyper-vigilant way, (for example, covertly looking at the father’s phone, passing feedback to the mother and worrying about Ms D returning) because a supervisor is present at all times to keep her (and her brother) safe.
(c)Thirdly, there would be no spontaneous contact or communication between the father and either the mother and/or the children - it will not be countenanced - with the potential for the father to be arrested without warrant in certain circumstances. This lack of any unsupervised, spontaneous contact means that the children will get the benefit of continuing to see their “good dad” and derive pleasure from seeking out his praise for their efforts whilst not exposing them to the father’s emotional dysregulation, including his perseveration and impulsivity.
(d)Fourthly, by the time the supervision finishes, X will have reached an age where she will find the regime awkward and artificial, and the father will have had enough opportunity to secure their relationships with him into the future which would be supported by the ongoing written communication they can have with him (even if the mother does not exercise her discretion post-August 2024 for the children to see their father in person). Given the close relationships between the children and the comfort they find in having the other with them when seeing their dad, I considered, then rejected, the notion of extending supervised time only for Y.
(e)Finally, the benefit to the mother (and her parenting capacity) is that no longer will she have the children coming home reporting on what the father has said or done when he was supposed to be supervised by his family. In addition, there will be zero spontaneous communication with him except in some very limited circumstances and even less than the mother sought in her own relief. She will be able to vet the written communication he sends to the children – something she consented to;
In addition to the above reasons, I note the father will be restrained from attending any regular location where the children will be and where the mother works and lives. The only communication the father will have with the children will be via written postal mail, vetted by the mother and only on six occasions a year. The mother will have sole parental responsibility and not have to negotiate with the father at all about the children’s welfare.
In combination the net effect of all of this is that the father’s propensity for family violence and emotional dysregulation (resulting in acts of anger, impulsivity and perseveration) will be blocked by a series of orders and injunctions that are extremely prescriptive.
To use my language at trial, a ring fence will be built around the father, otherwise permitting the mother and the children their freedom to live their lives peacefully.
Based on the submissions of the father and in light of the father’s repeated failures to curb his language and/or views about the mother when he communicates with her, despite the oversight of this Court, his general disregard for authority and the cumulative effect this has had on the mother, it is proper that I invoke se 68C insofar as the injunctive restraint on his communication with the mother.
Because of my inability to find either that the father has full insight into what family violence is, its effects and the nature of his relationship with Ms D, injunctions have been made to address all of those concerns. The father says he has read s 4AB, and on that basis I accept that he now has, or can find within that section the examples of family violence included and will continue to keep in mind the language within s 4AB when interacting with people into the future.
To ensure the children and/or the mother are not exposed to the father’s erratic behaviours, restraints will be imposed upon him attending various locations including (to be clear to the father) locations outside of the children’s school where the children may otherwise be gathered, such as school sports carnivals.
I will make an order for written communication, but have delayed its implementation to give the mother and the children a chance to process my decision, and to afford the father a chance to start working again with Ms J and (hopefully) to at least have made an appointment and/or to have seen a psychiatrist.
If an order was otherwise sought to be made and I did not, that was because the evidence did not support the finding upon which the order was predicated.
THE DISPUTE AND APPLICABLE LAW - COSTS
The mother did not make submissions about the costs relief set out in her amended response, and I will dismiss that aspect as part of my orders.
The ICL sought that each party pay one-half of her total costs fixed at $9,548, which meant that each party pay $4,774. Although not the subject of any written minute of order, it was submitted that the parties’ liability, (if ordered) be adjusted to account for any contribution already made and noting that a party may be eligible for a waiver under New South Wales Legal Aid policy.
Both parties resisted the application, with the mother submitting that she had already made a contribution of $1,650.
Section 117(3) permits me to make an order about the ICL’s costs, provided I think it is just, having regard to s 117(2), and, by extension, various other subsections, including s 117(2A), and the Rules.
In the exercise of this broad discretion, the Court must take into account various considerations as set out in s 117(2A) of the Act. Rule 12.17 sets out various methods by which costs can be calculated and, in doing so, may have regard to the considerations described at r 12.17(2), including the reasonableness of each party’s behaviour in the proceedings, including by having regard to the matters set out in r 12.08(2). A consideration of r 12.08 is not strictly relevant to the contest before me because there was no submission made that the ICL’s costs were anything other than fair, reasonable and proportionate.
No one consideration under s 117(2A) prevails over any other and the weight to be accorded to each of the relevant factors is at my discretion: Medlon & Medlon (No. 6) (Indemnity costs) [2015] FamCAFC 157 at [24].
There is nothing to prevent just one consideration as set out in s117(2A) being the sole foundation for an order for costs: PBF(as child representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL [2005] FamCA 158.
Impecuniosity is not a bar to a cross-order being made: Cross & Beaumont [2008] FamCAFC 68 at [60] and Nada & Nettle (Costs) [2014] FamCAFC 207 at [11].
THE EVIDENCE, DISCUSSION & ANALYSIS - COSTS
Exhibit ‘M1’ is the mother’s costs notice. In summary, she has been billed over $97,000 with estimated future costs for the trial amounting to over $32,000. In total, this leaves her exposed to over $129,000.
Within her affidavit, the mother says she is in receipt of Centrelink payments and has borrowed money to pay for these proceedings. There is an exhibit to her affidavit which is her tax assessment for the financial year ended 30 June 2021 showing a taxable income of $23,000. Self-evidently, in the absence of a payment from the father to meet his child support liability, (currently sitting at over $34,000), the mother is left to meet the children’s day-to-day living expenses and this will not change by way of any orders I make. I have noticed that one of those day-to-day living expenses is annual school fees at a cost of $7,600. These fees are paid by the mother’s family.
The mother has been transparent about her financial circumstances and I am satisfied that she should not make any contribution towards the ICL’s costs because of the financial hardship it has already caused to her insofar as she has had to borrow money from her family in order to meet the request, noting that this was evidenced in the costs notice which included a reference to $1,650 being paid for the ICL, when that money – if it was still required to be borrowed – could have been better spent on meeting the children’s needs in circumstances where the father fails to honour his obligation to help her do so.
Exhibit ‘F1’ is the father’s costs notice. In summary, he has been billed fees and unbilled fees of $6,050 with the estimated future costs for an amount of over $22,000. In total, this leaves him exposed to just under $30,000.
In his affidavit, the father says he is a professional employed by T Company and that he works from home. Other than some evidence drawn through cross-examination and an exhibit from the Administrative Appeals Tribunal, there was little evidence by way of disclosure about the father’s financial circumstances.
The oral evidence he gave was not credible evidence about his income and/or the benefits he receives from others to help support his day-to-day living expenses. In my view, these failures are in breach of rr 6.01, 6.03 and 6.05 and give rise to a consideration of a costs order being made against him: r 6.17(a)(iii).
Exhibit ‘M6’ identifies that despite a request from the Administrative Appeals Tribunal, the father did not comply with a direction to make disclosure about his residential lease of his rented accommodation and bank account statements for those accounts in which he is a signatory. This evidence, from my perspective in this Court, is relevant to assess the father’s capacity to meet his obligations to maintain the children: s 60CC(3)(ca).
Given the state of his oral evidence and the lack of other evidence-in-chief before the Court, the father’s counsel was appropriate in not making any submissions about his client’s financial position. Due to the improbable evidence given in his cross-examination and his lack of disclosure in these proceedings, I too remain in the dark about the father’s true financial position.
No criticism can be made or could be found against the mother’s conduct.
The father has failed
(a)to make disclosure as to his financial circumstances when clearly that was a live issue pursuant to s 60CC(3)(ca);
(b)in his duty of disclosure pursuant to the rules;
(c)to resolve his significant outstanding child support liability –
which all go to his capacity to comply with his obligation to maintain his children.
The lack of credible evidence from the father about his financial circumstances means I cannot make any findings pursuant to s 117(4).
The father’s conduct in failing to make disclosure warrants a costs order being made against him because it is just. The taxpayer should not have to bear the legitimate costs of the ICL in circumstances where a party’s conduct is found to be so wanting.
Although I am strongly inclined to order that the father pay the ICL’s costs in full, I am concerned that the father was not given procedural fairness of this possibility and regrettably for me, but handily for the father, I am satisfied that it is just and appropriate for me to order the father make a contribution to Legal Aid as sought by the ICL.
For the reasons above, the parenting orders I make are in the best interests of the children and the costs order and declaration I make are just and appropriate.
I certify that the preceding two hundred and nine (209) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney delivered orally on 21 October 2022. Associate:
Dated: 12 July 2023
0
17
0