Barret & Barret
[2021] FedCFamC2F 14
Federal Circuit and family Court of Australia
(dIVISION 2)Barret & Barret [2021] FedCFamC2F 14
File number(s): ADC 4496 of 2018 Judgment of: JUDGE BROWN Date of judgment: 24 September 2021 Catchwords: FAMILY LAW – children – parenting – parenting arrangements of three children – relationship of approximately 12 years – where the parties respective positions are polarised – where co-parenting relationship is fractured – where there is parental conflict – where both parties positions are diametrically opposed – complex family dynamic – where the parties communicate poorly – where each party proposes a change to the current care arrangements – allegations of family violence perpetrated by the father – where children have been exposed to family violence – coercive and controlling behaviour – whether the father has not been upfront in making disclosures regarding anger management and family violence – where father denies the allegations of family violence – where the eldest child is refusing to spend time with the father – best interests considerations – how the court determines a child’s best interests – where the children have learning difficulties – where both parties assert the other parent is compromised – where there is no evidence to support the mother is a compromised parent – where there is a finding of family violence perpetrated by the father – where the mother is allocated sole parental responsibility – where the children are very protective of their mother – where there is a need to prevent the children from being subject to further litigation. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Div 12A, Pt VII, ss 4, 4AB, 60B, 68LA, 60CA, 60CC, 61B, 61DA, 64B, 65C, 65D, 65DAA, 65DAE, 68BCases cited: Amador & Amador [2009] FamCAFC 196
B v B: Family Law Reform Act 1995 (1997) 21 Fam LR 676
Bartel & Schmucker (No. 3) [2012] FamCA 1094
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Garrod & Davenort [2018] FamCA 825
Goode & Goode (2006) 206 FLR 212
In the Marriage of Blanch (1998) Fam LR 325
In the Marriage of H v W (1995) 126 Fam LR 788
In the Marriageof Patsalou (1994) 18 Fam LR 426
JG & BG (1994) 18 Fam LR 255
Jurchenko & Foster (2014) 51 Fam LR 588
Mazorski v Albright (2007) 37 Fam LR 518
MRR v GR (2010) 240 CLR 461
R & R: Children’s Wishes (2000) 25 Fam LR 712
Russell & Russell and Anor [2009] FamCA 28
Slater & Light [2013] FamCAFC 4
T & N (2003) 31 Fam LR 257Division: Division 2 Family Law Number of paragraphs: 454 Date of last submission/s: 28 May 2021 Date of hearing: 28-30 October 2020 / 24-28 May 2021 Place: Adelaide Solicitor for the Applicant: Norman Waterhouse Counsel for the Applicant: Ms Lewis Solicitor for the Respondent: Martin Robinson Solicitors Counsel for the Respondent: Mr Bowler Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia Counsel for the Independent Children's Lawyer: Ms Lee ORDERS
ADC 4496 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BARRET
Applicant
AND: MR BARRET
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BROWN
DATE OF ORDER:
24 September 2021
UPON NOTING THAT:
A. There is a final intervention order granted on 23 April 2019 listing the mother as a protected person; and
B. There has been a finding of family violence pursuant to section 4AB of the Family Law Act 1975 (Cth) in these proceedings.
THE COURT ORDERS THAT:
1.The mother, Ms Barret (hereinafter referred to as ‘the mother’) have sole parental responsibility for the children X born in 2008, Y born in 2009 and Z born in 2012 (collectively referred to as ‘the children’).
2.The mother advise the father, Mr Barret (hereinafter referred to as ‘the father’ and collectively referred to as ‘the parties’) in writing of any significant issues relating to the children’s welfare, health and education as soon as she is reasonably able to do so, including in the event that one of the children suffers a serious injury or illness or is admitted to hospital.
3.The children live with the mother.
4.The appointment of the Independent Children’s Lawyer be extended for a period of twelve (12) months following the date of these orders.
5.The children, X, Y and Z engage in a therapeutic intervention with the father, with a suitably qualified therapist, other than Dr C, with the therapist to be as agreed between the parties, in writing, within twenty-eight (28) days of the date of these orders, and failing agreement to be as nominated by the Independent Children’s Lawyer, with the mother to take part in such therapy as the therapist concerned deems appropriate and subject to the mother’s agreement to take part in the therapy.
6.The father and X engage in therapeutic intervention with the therapist nominated pursuant to order (5) hereof at such times and such intervals considered necessary by the therapist, and subject to X’s willingness to attend.
7.Within seven (7) days of the date of a therapist being appointed, the Independent Children’s Lawyer is to provide the therapist with copies of the following documents for consideration in conducting the therapeutic intervention with the parties and the children:
(a)These reasons for judgment dated 24 September 2021;
(b)The Family Report prepared by Ms D dated 12 September 2019; and
(c)The Family Report prepared by Ms D dated 29 April 2021.
8.Z and Y spend time with the father as follows:
(a)Each alternate Saturday commencing 9 October 2021 from 8:30 am to 4:00 pm.
(b)Following the completion of three (3) therapy sessions between Y and the father and Z and the father, the therapist, as referred to in order (5) hereof, provide a report to the Independent Children’s Lawyer (who is directed to convey the therapist’s report to the parties) in respect of whether the time that Y and Z spend with the father be varied to each alternate weekend from the conclusion of school on Friday, or 3:00 pm if a non-school day until Saturday at 4:00 pm, or if such an extension of time is deemed inappropriate, how Y and Z’s time with the father should progress.
(c)If either Y and/or Z notify the father that they wish to contact or be returned to the mother during the time they spend with the father, the father is to facilitate any communication and/or return the children to the mother as soon as reasonably practicable.
9.X do spend time with the father subject to his own wishes.
10.All handovers of the children are to occur inside the E Shop located at F Street, Suburb G.
11.The father be at liberty to send cards and gifts to the children on their birthdays and at Christmas and in order to facilitate the delivery of such items, the mother, through her solicitor, provide to the father’s solicitor within fourteen (14) days a postal address to where such cards and gifts may be sent by the father.
12.Within seven (7) days of the date of these orders, the father, through his solicitor, provide to the mother’s solicitor the account details (including but not limited to any username and passwords) for any gaming accounts (including but not limited to any PlayStation and Xbox accounts) that the children access NOTING THAT the father is not permitted to change the passwords without notifying and gaining the permission of the children, and in the event that the passwords to the gaming accounts are changed, or the children request or are required to change their passwords to these gaming accounts, the parties exchange details of these changes to the other by text message to the other’s mobile telephone within twenty-four (24) hours.
13.The parties be restrained and injunctions be granted restraining each of them and their respective partners and agents from:
(a)Abusing, insulting, belittling, rebuking, or denigrating the other in the presence or hearing of the children, or allowing any other person to do so;
(b)Discussing these proceedings, or any other proceedings that involve either party, including but not limited to any criminal proceedings and allegations thereof, in the presence of the children, or allowing any other person to do so.
14.The father be restrained and injunctions be granted restraining him, and/or any agent acting on his behalf, from:
(a)Attempting to have contact with or communicate with the children (save and except for the occasions listed in order (11) hereof) including but not limited to, letters, emails, telephone, text message, Xbox, PlayStation, or by any social media application or other means;
(b)Contacting or communicating with the mother, save and except in relation to the children’s welfare and/or development;
(c)Attending within five hundred (500) metres of the children’s school;
(d)Attending within five hundred (500) metres of the children’s extracurricular activities, including but not limited to, C sports, B sports, B sports trainings and games;
(e)Attending within one hundred (100) metres of any place where the children and/or the mother may be residing or working;
(f)Following, observing or approaching within one hundred (100) metres of the children and/or the mother;
(g)Keeping the mother under surveillance;
(h)Physically disciplining the children, verbally abusing or swearing at the children, or allowing any other person to do so;
(i)Publishing on the internet, by email, SMS, or any other electronic means any material about the mother.
15.The Independent Children’s Lawyer is granted liberty to relist the matter on an urgent basis upon fourteen (14) days written notice to address any issues that arise in respect of the therapeutic intervention undertaken by the children and the parties, as well as any further applications relevant to these proceedings.
16.All outstanding applications are dismissed and the proceedings are finalised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Barret & Barret has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
introduction
The current case centres on issues to do with family violence and the implications for the children concerned if it is found they have been exposed to such conduct. These are the specific terms utilised by the Family Law Act 1975 (Cth) (‘the Act’).
However, as will become apparent, the issues arising in this case are complex and multi-faceted and essentially deal with issues of control, both before and after the parties ended their relationship and the implications, of this control, for the children involved.
The parties to the proceedings are Ms Barret (“the mother”) and Mr Barret (“the father”). They are the parents of X, born in 2008; Y, born 8 in 2009; and Z, born in 2012.
The parties met in late-2006 and married in 2008. They finally separated, in highly contentious and emotionally charged circumstances, on 29 September 2018, which necessitated the involvement of police.
The police were called to the parties’ former home, at Suburb H on this occasion, by the mother. The father was subsequently charged with assaulting the mother and, as a consequence became the subject of a family violence order, which prevented him approaching the mother and, initially, the children of the relationship.
The incident occurred in 2018. X, Y and Z were each at home at the time and were present when police arrived and arrested their father. At the outset of proceedings, it was the father’s position that this was an isolated incident and he was subject to some level of provocation, in that the mother threw a ceramic candle holder at him.
It is the mother’s case that the father was consistently physically violent and controlling of her during their marriage and the level of his violence and control was escalating. As this violence and behaviour occurred within the home, it is her position that the children have each been exposed to it, and this has had significant implications for their psychological functioning, as well as for her own capacity to parent them to the full extent of her ability.
The mother further alleges that the father has continued to subject her and the children to a significant level of coercion and control, since the parties separated and notwithstanding the fact that she is a protected person, in a final intervention order granted on 23 April 2019, when the father pleaded guilty to one count of aggravated assault against her and one count of breaching bail.
It is a significant aspect of the mother’s case that, following separation, the father has followed her and the children; arrived at the extra-curricular activities, without invitation; has denigrated her to the children; and engaged other members of his family to act, as his proxies, in his surveillance of her and the children. In essence, it is the mother’s case that, notwithstanding the parties’ separation, the father continues to subject her to his coercion and control.
For his part, the father disputes the gravity of the allegations made against him. It is his case that he is a devoted and caring father, who only wants to pursue a meaningful level of relationship with his children. He acknowledges that he has attended the children’s sporting activities but asserts that he has located himself well away from the mother and has only done so because of his interest in the children.
In this context, the father disputes he has issues with controlling his anger in the most facets of his life, but concedes, in the past, that he has been subject to stress relating to marital conflict. The father has consulted a psychologist, Dr J. Dr J has deposed that the father does not suffer from any serious mental health disorder and is well motivated generally. In these circumstances, he has opined as follows:
I see the prognosis as very favourable if certain new arrangements and goals can be achieved. I believe that the conclusion of legal proceedings, and the minimising of further contact between Ms Barret and Mr Barret, should diffuse the hostility between them. If continuing hostility is well managed or contained, I believe the children’s relationship with their father can improve.[1]
[1] See psychological report of Dr J dated 5 March 2020 being annexure 6 to the Affidavit of Mr Barret filed 19 October 2020.
It is the father’s position that each of the parties were responsible, to some degree, for the conflict in their relationship and with its cessation. As a result, the father outlines there should be no barrier to him and the children enjoying extended periods of time in each other’s company. Underpinning his position is his assertion that the mother is disinclined to support such a level of relationship because of her antipathy for him.
On the other hand, it is the mother’s case that the father is essentially in denial about the nature of his behaviour and its emotional consequences for her and the children, or lacks sufficient insight about its implications, notwithstanding his consultation with Dr J. She alleges that the children are frightened of their father’s volatile and reactive behaviour because they have each, particularly X, been subject to it in the past.
In these circumstances, she contends that Mr Barret is an inappropriate role model for the children, who have exhibited problems in emotional regulation, which she believes derive from their exposure to their father’s behaviour.
The mother commenced these proceedings in 2018, seeking final orders in respect of both property and parenting arrangements. For a variety of reasons, the case has taken some time to be finalised.
The property aspects were concluded in 2019. Issues relating to children were fixed for final hearing in October 2020. The three days allocated for this hearing proved insufficient and a further five days, in May 2021, were required to complete the trial process.
Over this lengthy period of time, the respective positions of the parties have become more, rather than less, polarised. This state of affairs had implications for the extent of time the children, particularly X, have spent with their father, since separation.
Initially, in the immediate aftermath of the parties’ separation, all three children spent 5 hours, with their father, on alternate Sundays, subject to the supervision of the mother’s father, Mr K.[2] The requirement for supervision was dropped on 5 April 2019. At which stage, all three children spent alternate Saturdays, from 8.30am to 4.00pm, with their father.[3]
[2] See Order of Judge Brown dated 27 November 2018.
[3] See Order of Judge Brown dated 5 April 2019.
In between these times, the father used the Xbox to engage with the children electronically, while gaming with them. Over time, this mode of communication has become more and more controversial. It is the mother’s case that, during this period, the father has consistently denigrated her to the children and utilised Xbox inappropriately. It is also her case that the father’s behaviour continues to be reactive and unpredictable, which has caused the children to be more frightened of him.
In this context, the mother arranged, via a GP Mental Health Care Plan for initially X and then later for Y and Z to consult with Dr C, a therapist, who certifies herself as having specialised qualifications in treating traumatised children.
Dr C first saw X in February 2019 and, from June 2019, began to consult with Y and Z. In this context, it is important to note that both X and Y have been diagnosed with dyslexia and learning needs. As such, their progress at school has not been without problems, from time to time.
More significantly, X and Y have also been each diagnosed with behavioural issues, which have included episodes of significant emotional dysregulation. In 2020, Y was sent home from school for bullying another student. In late-2017, Y’s general medical practitioner referred him to a psychologist, Ms L for assistance in behavioural management.
It is the mother’s position, supported by Dr C that the children are influenced in their behaviour by exposure to their father’s coercive conduct and denigrating attitude, as demonstrated towards her. This causes them, from time to time, to be oppositional and defiant in their behaviour.
On the other hand, it is the father’s position that the mother and Dr C have placed insufficient emphasis on the children’s behaviour and what he would he would characterise as the mother’s inadequate response to it. In their shared assumptions as to why X and Y behave in the way that they do. He refutes any suggestion that they can be considered to be the survivors of trauma. To paraphrase his counsel, Mr Bowler, they are just “naughty children” who need to be disciplined.
An incident occurred on 14 December 2019, while the children and their father were on a bicycle excursion together, which ended in X running away. He has not spent any time with his father, in the period since. In this context, the father has provided text messages passing between him and X, from mid-May 2020, in which X has referred to his father as an arsehole and a fat loser.[4]
[4] See Exhibit B.
The father is highly critical that the mother has apparently acquiesced to the sending of these highly inappropriate text messages to him, which he asserts are emblematic of her inability to support X’s relationship with his father and, if appropriate, direct the child to desist with such behaviour and attend upon his father.
On the other hand, it is the mother’s position that X has justifiable reasons, independent of her feelings, for not wanting to spend time with his father. Essentially, he has become fed up with his father’s conduct, as demonstrated to both him and his mother, over very many years. In these circumstances, it is her case that she has done nothing to influence X against his father.
It is also been the mother, disputed by the father, that he continues to subject her to his surveillance, either directly or through the agency of the paternal grandmother, Ms O. What all concerned agree upon is that relations between the paternal and maternal aspects of the children’s family can only be described as poisonous and are demonstrably becoming more so. Sadly, these vitriolic and highly adversarial proceedings have done nothing to reduce the tensions in the family.
It is the father’s case that the mother has consciously exaggerated and misreported the incidents of conflict that have occurred between them, and has made a concerted attempt to align the children with her position, in order to ensure that they have no proper level of relationship with him. He is unclear what the mother’s motivation is for this conduct other than it is explicable by the personal antipathy she currently feels for him. It is his case that the mother is either actively or tacitly supporting the children in their dysregulated behaviour because she is incapable of exercising a proper level of parental discipline over them.
Essentially, at the outset of his case, it was the father’s position that the mother had concocted or exaggerated the various instances of coercion and control, which she has detailed in her affidavit material, and is therefore unable to discharge the obligations of a competent parent, which require them to facilitate a proper relationship between any relevant child and the other parent concerned.
The mother’s Trial Affidavit,[5] is one of some 62 pages in length, to which are attached some 30 exhibits. In addition, during the course of the 7 days of evidence, a further 21 exhibits were tendered, a large proportion of which consisted of contemporaneous text messages passing between the parties.
[5] See Affidavit of Ms Barret filed 1 October 2020.
The father responded to the mother’s Affidavit paragraph by paragraph,[6] as such, issue was joined between the parties in respect of the central issue in this case, namely whether the father subjected the mother to coercive and controlling family violence and whether the children have been exposed to this behaviour and what have been its psychological consequences for them.
[6] See Affidavit of Mr Barret filed 19 October 2020.
In his Affidavit, the father deposed as follows:
I deny being controlling, having angry outbursts and mood swings. I did not engage in coercive and controlling domestic violence. I admit the violence to the applicant mother of which I was convicted.[7]
In my view, this was a carefully considered and calibrated position on his part. He acknowledged the conduct, to which he had pleaded guilty in the Magistrates’ Court and which he was not in a position to disabuse in the current proceedings. Otherwise, he formally denied the allegations made against him, knowing it was his word against that of Ms Barret.
[7] Ibid at [73].
Counsel for the wife, Ms Lewis, when she began her cross-examination of the father, prefaced her examination of him on the basis that, as set out above, Mr Barret’s position was that he had not behaved in a consistently controlling manner towards Ms Barret and had not been violent towards her to the extent to which she had alleged. Mr Barret indicated that this assumption, on Ms Lewis’ part, was correct.
In particular, Mr Barret denied verbal abuse or being physically aggressive towards Ms Barret; denied calling her names; denied spitting on her; and alleged that the incident of 29 September 2019 had been exaggerated by the mother in order to get him evicted from his home. It was his position that the children had no rational reason to be fearful of him.
These denials were consistent with the opening written submissions of his counsel, Mr Bowler. In particular, it was submitted that the “father denies the assertions made by the mother in respect to such violence and asserts the mother also perpetrated acts of violence towards him during the parties’ relationship”.
In this context, it is asserted that the therapeutic intervention of Dr C has been totally ineffective in supporting the children’s, particularly X’s, relationship with their father, as it has resulted in the complete alienation of X with the significant risk that the two other children will follow his lead. In this context, Mr Bowler submitted as follows:
The father further asserts that in circumstances where he has spent several hours a fortnight with the children for now 2 years, that his impact on the children’s current functioning has been minimal and that any such dysfunction is as a consequence of the mother’s parenting.
Essentially, it is the father’s position that the only logical conclusion, which can be drawn from this state of affairs, is that it is the actions of the mother, in concert with Dr C, which have resulted in the children’s extremely limited relationship with their father and, in the case of X, the extinction of that relationship.
Given this background, the positions of the parties, in terms of the orders which each seeks from the Court, can only be described as being polarised. The mother’s position is that X should only spend time, with his father, if he expresses a desire to do so. Insofar as Y and Z are concerned, she proposes that they should spend a reduced amount of time, with their father from the current regime. She proposes that the children spend time, with their father, on one occasion per month, on Saturday, from 8.30am until 4.00pm.
Implicit in her position is the recognition that such a regime is extremely limited in nature, omitting as they do any arrangements for special occasions and school holidays. However, she does not wish the proceedings to be extended further.
Rather it is her position that the father should be restrained from making any further application, for a period of at least a year, during which period he undergoes a course of psychiatric treatment directed towards changing what she asserts are the aggressive and controlling aspects of his personality. Only when he has provided a report from the provider of this treatment, which is positive in its prognosis, should he be allowed to institute further proceedings. In these circumstances, it is contended that the children will be spared the deleterious effects of further litigation.
Ms Barret also seeks a comprehensive raft of injunctive orders, which would restrain the father from communicating with her and the children, including via Xbox and PlayStation and other social media and come anywhere near her or the children, particularly at their school or sporting activities. She seeks to be conferred with sole parental responsibility for the children.[8]
[8] See Amended Initiating Application filed by the Applicant on 1 October 2020.
On the other hand, the father seeks that the parties be conferred with equal shared parental responsibility for the children. In respect of Y and Z, he seeks to spend time with the children for half of each school holiday period and for the children to initially spend time with him on 6 nights per fortnight, to be extended to a week about basis, in due course. He conceded that X should spend time and communicate with him as he expressed the desire to do so.
Due to the significant and controversial issues of family violence arising in the case, it was ordered on 7 April 2020 that X, Y and Z should be represented independently of their parents, in the proceedings. The children’s representative is Robert Seymour, an experienced family lawyer employed by the Legal Services Commission of South Australia. Mr Seymour is to be regarded as a party of equal importance, in the case, to each of the parties.
Pursuant to section 68LA of the Act, Mr Seymour is under a statutory duty to gather and examine all relevant evidence and then advocate the outcome, which he believes will best serve the interests of the children, whom he represents.
In this context, initially the parties and then Mr Seymour, have engaged a psychologist and Family Consultant, Ms D, to prepare two Family Assessment Reports, dated 12 September 2019 and 29 April 2021 respectively.
At the conclusion of her first report, Ms D recommended that Mr Barret spend alternate weekends, from the conclusion of school Friday until 5.00pm Saturday, with all three children. She also recommended that the children continue to engage in therapeutic intervention (potentially with Dr C) to assist them to resolve their past experiences of conflict within their family.
At the date of the completion of the first tranche of evidence, in the case, Ms D’s report was approximately 1 year old. At this stage, Dr C had already provided some evidence to the Court. As previously indicated, in contrast to Ms D’s recommendations, the mother sought to reduce Y and Z’s time with their father. In this context, it was the father’s position that Dr C’s involvement had been detrimental to the children. In these circumstances, the parties agreed that it would be beneficial for Ms D to revisit the family and prepare a new report.
On the basis of evidence available to her, at the time of her second report, Ms D concluded that the children’s development, particularly at school, had improved since the time of her first report. However, Ms D remained concerned that the children’s relationship, with their father, had been impacted by their past experience of him. X, in particular, was reported to remain fearful of his father.
In this context, Ms D described the father’s attempts to repair his relationship with the children as appearing minimal. At the same time, Ms D was also concerned that the children had been exposed to their mother’s negative attitudes towards the father and his current partner, Ms FF. Z reported to Ms D that his mother had referred to Ms FF as ugly and called his father an arsehole. From Ms D’s perspective, these comments were inappropriate and placed pressure on the children to align with their mother.
In these circumstances, Ms D reported as follows:
At the completion of the updated Family Assessment, the writer remained concerned about X, Y and Z’s relationship with Mr Barret and their experiences within his care. It was the view of the writer that Mr Barret continued to minimise the impact of his behaviours on the children and he struggled to appreciate the children’s perspective. Given this, the writer could not support Mr Barret’s request for a significant increase in his time with Z and Y.
Whilst the writer did not support a significant increase in time, it was considered that Z and Y may benefit from one overnight period with Mr Barret. However, for this to be successful Z and Y would need to feel safe in their father’s care and that their relationship needs were understood. As such, it was considered that once Mr Barret had started to address his relationship issues with Z and Y (through at least 3 joint therapy sessions with them), his time with the children could be increased to include an overnight period.
Given X’s perspectives of Mr Barret and ongoing fears towards his father, the writer considered that Mr Barret’s relationship with X would need to be appropriately repaired, prior to time between them resuming.
As previously discussed, given the acrimonious nature of the parties’ relationship, their limited communication, the current Intervention Order and the concerns raised about the children’s experiences with Mr Barret, the writer questioned the appropriateness of shared parental responsibility between the parties. As such, the writer continued to recommend that Ms Barret should have sole parental responsibility.[9]
[9] See Family Report prepared by Ms D dated 29 April 2021 at [147]-[150].
Mr Seymour has briefed a barrister, Ms Lee, to appear on his behalf during the trial. Following the evidence, Ms Lee submits that the Court should make orders in terms of Ms D’s recommendations. She supports the children engaging in some form of reunification therapy, with their father, but submits that such therapy should not be provided by Dr C, given Mr Barret’s mistrust of her.
These reasons for judgment are directed to resolving the entrenched and highly controversial factual issues arising between the parties but more importantly determining what parenting relationship will be in X, Y and Z’s best interests, both in the short and medium term, but also in the long run.
In resolving these factual issues, the Court’s duty is to address the best interests of the children concerned.[10] The case does not turn on any perceptions, held by the parties, as to their respective rights as parents.
[10] See Family Law Act 1975 (Cth) s 60CA.
THE ISSUES IN DISPUTE
After this introduction, and before turning to the legal principals applicable, and the various aspects of the evidence, which must be traversed in more detail, it is useful to summarise the issues, which the case throws up. They can be encapsulated as follows:
·What, if any, is the nature of the coercive and controlling behaviour to which the mother and children have been subject by the father. This will entail an analysis of the provisions contained in section 4AB(1);
·Have any of the children experienced the effects of family violence emanating from within their family. This will entail an analysis of the provisions contained in section 4AB(3) of the Act;
·If so, has this caused any of the children to suffer some form of physical or psychological harm as a consequence of such exposure and what has been the extent of this harm;
·In particular, what are the consequences of this exposure in prospective terms. Essentially, this entails the Court making an assessment of risk arising for the children of having been exposed to family violence, both now and in future;
·What are the benefits likely to accrue to the children of having a meaningful level of relationship with their father in the future;
·As a corollary of this, what are the potential negative consequences, for the children, arising from not being able to interact extensively with their father and wider paternal family;
·What are the factors influencing X’s apparently strong negative views about his father;
·Do those factors emanate from the mother and/or Dr C and, if so, are they likely to impact upon Y and Z in the future;
·Is the mother open to criticism in this regard and is there evidence to enable the Court to conclude that she lacks parental capacity in some aspect(s) of her care of the children;
·If the father has behaved in a coercive and controlling way in the past, has he demonstrated that he has modified his behaviour or is capable of so doing in the future and is he, and those associated with him, sufficiently insightful about this issue;
·Is it appropriate for the Court to make the wide-ranging injunctive orders sought by the mother. This will require consideration of the provisions of section 68B of the Act.
·Should the Court be involved in directing what therapy, if any, should be provided to the children;
·What is the best mechanism to ensure that the children are not the subject of unnecessary litigation;
·How should parental authority and responsibility for making major long term decisions concerning the children be allocated between the parties;
·Fundamentally, what is the best outcome for the children given the issues raised in the case and the polarised nature of their family. This will entail a consideration of the various criteria delineated in section 60CC(2) and (3) of the Act, viewed through the lens provided by section 60B which contains the objects and principles underlying the law relating to children.
STANDARD OF PROOF
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[11] I have tried to reach my conclusions on credibility and reliability ‘on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events’.[12]
[11] See Evidence Act1995 (Cth) s 140.
[12] See Fox v Percy (2003) 214 CLR 118, 129 [31] (Gleeson CJ, Gummow and Kirby JJ).
In addition, I bear in mind section 140(2) of the Evidence Act, which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
background
Ms Barret was born in Adelaide in 1973. She left school in 1989. She does not have a strong academic background. She concedes that she struggles with comprehension and spelling. Currently, she is employed as a finance officer, at an organisation, earning $45,000.00 per annum. She works 4 days per week.
Ms Barret describes herself as being temperamentally an anxious person. She was diagnosed with PTSD and depression in the late 1990’s. Her evidence is that the factor precipitating this diagnosis was her being the victim of an armed robbery at a Shop S, which involved guns. She was prescribed anti-depressant medication and received counselling through the victims of crime service.
She does not currently take any medication for depression and deposed that she deals with her mental health issues through exercise and diet. However, more recently, since the beginning of 2020, she has begun to see a counsellor, whom she refers to as Miss T, who Ms Barret described as a healer. Ms Barret was not able to provide any evidence regarding her qualifications, if any, to provide psychological support. Ms Barret said she talked, to Miss T, about how she was feeling.
Mr Barret was born in Adelaide, in 1977. He joined armed forces as a young person. He was discharged, from the armed forces in 2008. He is a qualifdonalied tradesperson. He has worked for Company U, in Town V, on a fly-in/fly-out basis for the last 10 years. He earns approximately $140,000.00 per annum. He has re-partnered. The mother has not.
Mr Barret indicated that he did not have a relationship with his own father. He had elected to sever this relationship because of his perception that his own father had nothing to offer him because of the aggressive behaviour he had demonstrated towards him, whilst he was an adolescent. Mr Barret did not appear to consider that his own experience, as a person growing up, had influenced his own behaviour, as an adult.
The parties met in 2006, in suburban Adelaide. At the time, the father was based in Perth. Ms Barret fell pregnant, with X, in 2007. Mr Barret moved back to Adelaide and the two began to live together in early-2008. They married in 2008, shortly prior to X’s birth.
In 2009, the parties purchased a block of land, at M Street, Suburb H. They subsequently constructed a home, on the land. One of the consequences of the final property orders, made on 10 September 2019, was that Mr Barret retained the M Street property, which he continues to occupy. Ms Barret lives in a property owned by her father, located at Q Street, Suburb N.
Suburb H and Suburb N are adjoining suburbs. The parties’ two homes are approximately 2 kilometres apart. The paternal grandmother, Ms O also lives in Suburb H, on her calculations. The children each attend Suburb N Primary School. In addition, Y and Z attend C sports classes at the Suburb N, R Centre.
From time to time, Mr Barret must attend at the post office in Suburb N to collect his parcels. The post office is reasonably close to the children’s school. Ms O has a dog, which she walks regularly. The children play sport at ovals in the area.
As is evident, the parties and those related to them, live in a closely bounded area, within a suburban setting. Necessarily, they must each drive and walk through it from time to time. One of the central issues in the case is whether the parties come into proximity, with one another, inadvertently or whether the contact is designed and premediated to cause discomfort and distress.
These issues, for obvious reasons, have application to one of the issues identified in the case, namely whether it is appropriate to make the wide raft of injunctive orders sought by the mother. It is her case that the father has engaged in stalking her throughout her neighbourhood, which is, in itself, an incident of coercive control. In addition, she asserts that Ms O has acted as Mr Barret’s proxy, by attending at the children’s C sports classes and walking down the laneway behind her house, on the occasion of Z’s recent birthday.
For their part, the father and Ms O deny the gravamen of the mother’s allegations. However, Mr Barret is not in a position to deny that he has not been present at some of the children’s sporting occasions, as the mother has been able to photograph him. Rather he has kept within the terms of the applicable family violence order, which prevents him from coming within 50 metres of the mother or any place where she lives or work or within 100 metres of a number of specified locations, which include the children’s school. The order does not extend to Ms O or explicitly include any of the children.
The effect of Mr Barret’s evidence is that he has felt frustrated by what he regards as the mother’s unreasonable and controlling attitude towards him and his desire to remain in touch with the children’s everyday lives and activities. As such, he has felt drawn to attend their sporting fixtures and has remained distant from the mother and children, but has merely watched them playing.
Ms O and the father’s sister, Ms P have also attended the children’s sporting activities. It is their position that the mother assaulted Ms P, when Ms P was taking a photograph of Z’s B sports team, at the last game of the season. This incident was reported to police.
It is the evidence of Ms O that she and Ms P were only doing what interested relatives do on such an occasion, namely taking a photo of their loved ones. As such, it is Ms O’s position that it was the mother, who was the provocative one, not them.
In addition, it is Ms O’s position that, prior to the parties’ separation, she was closely involved in the day to day lives of all three children. It is her position that the mother has overreacted to the separation and has now unreasonably prevented her from having a proper level of relationship with her grandchildren, whom she can now only see, whilst they are in their father’s care.
In these circumstances, she regularly attends all of the children’s C sports lessons, so that she can see Y and Z, in particular, whilst they are playing their sport. She watches from the side. It is her position that she is entitled to do so. For her part, Ms Barret finds this behaviour intrusive and threatening.
WITNESSES AND MATERIAL BEFORE THE court
The following witnesses filed affidavits and gave evidence before the Court:
The Mother
Ms Barret was vigorously cross-examined at significant length. The thrust of the examination was that she was a highly anxious person, who was a lax parent and one who was emotionally over-involved with the children. Essentially, it was put to her, on a prolonged and forceful basis that the children’s behavioural issues emanated from her parenting. I do not accept this characterisation.
In this context, it was asserted that she continued to suffer the emotional sequellae of being involved in an armed robbery and was herself in need of expert psychological support, which she was disinclined to seek out. The thrust of this questioning was that she lacked insight into her own psychological make-up and its implications for the children.
In addition, it was put to her that she was the one driving the conflict between the two sides of the children’s family by her encouraging the children to have a negative view of their father and those associated with him by denigrating him to the children. The most striking example of this being that X was given his mother’s apparent imprimatur to refer to his father as an arsehole.
Ms Barret is not a robust person. In my assessment, the pressure under which she has lived, both before and after the parties had separated, has been intense. She did not strike me as being a vindictive person. As such, although she may have responded, from time to time, to what she perceived to be the provocative actions of others. I do not consider that she is likely to be the primary instigator of the highly regrettable family dynamic surrounding the children.
I agree with Ms D that it is highly regrettable that X has corresponded, with his father, in the manner described. However, it is simplistic, in my view, to ascribe this conduct to Ms Barret alone. Rather, in my assessment, X has reacted idiosyncratically to his own experience of his father, particularly given his perception that Mr Barret has behaved in a bullying fashion to both him and his mother.
Ms Barret was clearly shaken by the cross-examination and its insinuation that it was she who was the manipulative and disingenuous partner in the parties’ relationship. However, notwithstanding this robust cross-examination, in my assessment, she remained consistent in her position that she wanted the children to have a close relationship with their father but not at the price of her being undermined and the children themselves being exposed to controlling and reactive aspects of their father’s personality.
In this context, it is the mother’s evidence that X and Y’s behaviour and emotional functioning have improved markedly since their exposure to their father and his conduct have been reduced. I do not accept that the mother has fabricated this evidence or has actively engaged in a process of alienating the children from their father. Rather, in my assessment, she has behaved in a protective manner throughout. This is a most significant finding.
The more significant forensic task required in reaching judgment in this case is whether the father exposed the mother to coercive and controlling behaviour during the parties’ relationship. I will return to this issue in greater depth in due course. However, at this stage, it is sufficient to make the general finding that the mother was a credible witness in respect of these matters, whilst the father was not.
In my view, the most eloquent example of the mother’s protective attitude, both insofar as her own emotional functioning and that of the children is concerned, is contained in a personal letter, which she sent to Mr Barret in November 2017, which was prior to the parties’ final separation, but while the relationship between them was becoming increasingly problematic. Given the date of its writing, it cannot be considering to be self-serving in any way. It reads as follows:
I understand you’re sorry but this can’t go on anymore, the trust is broken and the boys are suffering.
X is angry and living in fear of you and the boys are imitating your aggressive behaviour and think it’s normal.
It will be a long road but you can’t expect me to take this on your word, as actions speak loud [sic] than words. Until I see positive change it will be difficult for me to move forward.
I’m so confused as to how you say you love me but can treat with such disrespect. I don’t know how I feel about us as the trust/ respect that I had for you is broken. We both would benefit from counselling, individually and together as we need to sort out our own feelings and you need to address you [sic] anger management problems in order for us to see if we are going to move forward.
I don’t want to be pressured into anything I don’t feel comfortable in.
We need to trial taking baby steps, in conjunction with help and in the promise that this will be between our family (you me and the boys) to sort out and no outside influences.
I will try and communicate with you more and show you the respect that you are after, like you will for me.
I want to make myself very clear that I’m not going to keep living in fear, or stand for putting up with negative comment or actions anymore or that will be it will end of us.[13]
[13] See Exhibit N.
In my opinion, the views in this letter are expressed in a calm and considered manner. The mother’s essential complaint is that she wishes to be respected in the parties’ marriage and is concerned that the children are starting to mimic their father behaviour. The tone of the letter is sincere. It indicates that Ms Barret has had concerns in respect of Mr Barret’s anger management for a significant period of time. As such, I do not think it can be said that she has embellished her claim or fabricated them to gain advantage in these proceedings.
Another significant aspect of Ms Barret’s evidence is that Mr Barret has excessively disciplined Y by striking him with a wooden spoon on the back of his leg and when he has become angry with X, again in the context of discipline he had grabbed him causing inflammation to the child’s neck.
I found Ms Barret to be a witness of truth, who did not exaggerate or embellish her evidence but one who remained consistent throughout. I prefer her evidence to that of the father in these proceedings, particularly in respect of the nature of the parties’ relationship with one another. On the other hand, Mr Barret attempted to deflect responsibility for his poor conduct onto others. He did this with the police and, in my view, also to Dr J.
In her evidence, Ms Barret has provided information about each of the children. Both X and Y have been diagnosed with special learning needs. It is the father’s position that it is these needs, which lead each of the children to struggle in the classroom setting, which provide a more logical explanation for their dysregulated behaviour than what has or has not occurred at home. In addition, it is Mr Barret’s position that the mother struggles to manage this behaviour, which can be extremely challenging at times, particularly so far as Y is concerned. In the past, Y has been referred to a psychologist, Ms L, by his general medical practitioner.
X was diagnosed as dyslexic in mid-2015, as was Y in September 2016. Later Y was diagnosed with developmental delays in language, memory, coordination, visual acuity, motor skills and sensory issues. He was described as being restless and fidgety. Autism was ruled out but he was found to have qualitative impairments in respect of socialisation, communication and his behaviour.
It is the effect of the mother’s evidence that the children have also each displayed behavioural issues, the more serious aspects of which have been emotional dysregulation, characterised by tantrums and aggressive behaviour directed towards siblings and their school peers. Both X and Y have been provided with psychological support.
It is the mother’s evidence that she did not find the involvement of Ms L, with Y, between May 2018 and March 2019 to be particularly helpful. Ms L saw Y over a course of twelve sessions, which spanned the period before and after the parties separated. Counsel for the father cross-examined Ms Barret about the content of Ms L’s treatment notes, although she herself was not called to give evidence.
The thrust of this cross-examination was that Ms Barret was not able to manage Y’s, at times, extremely dysregulated behaviour. This behaviour included swearing, violent behaviour and breaking objects. It was Ms Barret’s evidence that this behaviour became more extreme after the parties separated.
It was Ms Barret who was responsible for taking Y to see Ms L and it was she who provided the history and background to her. In the first consultation of May 2018, she reported that Y had witnessed significant conflict between her and Mr Barret. Y expressed positive feelings for both his father and mother.
At a subsequent consultation, the mother and Y discussed when Y had a brain flip when the mother declined to buy him some lego. Other similar incidents were also outlined, in other consultation, including one in which Y had urinated on the floor. His on-going poor behaviour, at school, was also a flavour of the various consultations. In the context of these various matters, in the mother’s cross-examination, it was suggested to her that she had a manifest inability to manage the child’s behaviour within appropriate boundaries. Essentially, the child’s problems emanated with his mother.
Significantly, Y also reported to Ms L, in his sessions with her on 9 October 2018, that things at had been not so good at home as there had been a fight, in which dad tried to strangle mum. Interestingly, Ms L described Y’s mood, in the majority of their consultations as being euthymic, consistent with how each of his parents describe him generally.
At the end of her ten sessions with Y, Ms L’s diagnosis of him was anxiety disorder, unspecified. Again, prior to this last session, Y reported having got into trouble, at school, which resulted in him being sent home after fighting with another student.[14]
[14] See Exhibit 26 to the Affidavit of Ms Barret filed 1 October 2020.
The effect of all this evidence is that Y, in particular, presents significant challenges, arising from his special needs, as a child to parent. As such, in my view, Ms Barret is not open to criticism for any alleged deficits in her parenting. At times, she has reacted inappropriately to the pressures of her situation and her perception that she is the subject of undeserved aggression and criticism from the father’s family.
In my view, the pressure she has been under, since the parties separated, has been extremely intense, particularly given the fact that she lives in close suburban proximity to Mr Barret and his family, who regretfully, I find, are not disinclined to make their presence felt, knowing full well Ms Barret’s potential fragility. As I have already indicated, I do not consider her to be an emotionally robust person. In my view, it is to her credit that she has remained as resilient as she has and has not snapped emotionally.
I accept her evidence that she has done her best, including seeking out appropriate support, to assist the children, with their behavioural issues. Mr Barret himself acknowledged that Ms Barret was a good mum, albeit that this indication was made towards the end of his own extensive cross-examination, when he had come to the realisation that his credibility had been significantly undermined.
In this context, in my view, it is unduly reductionist to attribute one factor or factors as being the precipitating issue in regard to the children’s behaviour, which can be attributable solely to the action of one or other of their parents. X and Y are challenging children, with complex special needs. However, it is also, in my view, equally simplistic not to acknowledge exposure to the conflict between the parties as playing a large part in the children’s dysregulated behaviour.
One significant evidentiary issue in the case is whether the children are continuing to be exposed to this type of conflict and its implications for their behaviour at the present time. It is the mother’s evidence that she perceives the father has an extremely negative view of her, which he conveys to the children, referring to her, to them, as a fucking moron, fucking idiot, a retard and a bitch. It is also her case that he has spoken disparagingly of her home and expressed resentment at the level of his expenditure on legal fees.
In answer, the father has admitted making inappropriate comments about the mother, in the latter part of the parties’ relationship. However, he asserts that he has refrained from doing so for the last twelve months or so. On any view, the relationship between the parties can only be described as being tense and difficult. There is no effective communication and, in my view, whatever communications do occur, have the significant potential to miscarry and boil over into recrimination.
It is the mother’s evidence that Y and Z are, at times, defiant and hostile towards her, after spending time with their father. One aspect of the conflict between the parties is that the father (and Ms O) are resentful that Ms Barret has retained her married name. As a consequence, Mr Barret refers to Ms Barret by her maiden name of Ms K. The children are aware of this. It is a practice which is not likely to be helpful to them.
In my assessment, there remains a very real risk that the father does continue to disparage the mother to the children (Y and Z), perhaps in a tacit manner, because of the general ill-will he holds for her. I would be naïve, I think, not to consider that this has had a detrimental effect on the children. Z has referred to his mother as a liar. When his behaviour is challenged, he refers to his mother as Ms K.
Y has asked questions about the fairness of the parties’ property proceedings. Both Y and Z are reported to have said to their mother that they don’t have to listen to her. In my view, these incidents are examples of the children being involved in the conflict between their parents. In contrast, X’s behaviour is reported, by his mother, to have improved of late.
Dr C
Dr C has a PhD conferred in the discipline of social work. In her evidence, she presented more as an advocate for a cause rather than as a dispassionate treating therapist. As such, I have reservations about some aspects of her evidence. Although Mr Bowler was critical of Dr C’s evidence, he did not elect to seriously challenge her expertise and qualifications and was not in a position to call expert evidence in rebuttal.
The main criticism Mr Barret has of Dr C is that her involvement with the children, particularly X, has resulted in their estrangement with him becoming more profound rather than less so. In short, Mr Barret asserts her therapy has not served any useful purpose – certainly not so far as he is concerned. As such, he sees no point in it continuing. From the mother’s point of view, the children appear to be more stable in their moods and happier, which she attributes to the counselling offered and the fact that the children are being listened to.
Given the dichotomy and mistrust between the parties and the father’s identification of Dr C with the mother, it seems improbable that Dr C would be able to work effectively, with Mr Barret, in any process of reunification counselling, given that he is likely to mistrust her, on the basis that he believes that she has pre-judged him and been negatively influenced by the mother. In these circumstances, it is apparent that there it is unlikely that any rapport will ever be developed between them. In my view, there is some substance to the father’s view that Dr C has reached a negative view about him before even meeting him.[15]
[15] See Affidavit of Mr Barret filed 19 October 2020 at [53].
Dr C does not advocate X having any further involvement with his father because of the danger that such involvement will reawaken malignant memories within the child. She has a similar view in respect of both Y and Z. Mr Barret’s view is this is an extreme and unhelpful position, when it is considered in the context of all aspects of the children’s best interests, particularly any benefits they are likely to derive from having some on-going level of relationship with him. Mr Bowler, in his cross-examination challenged the concept of malignant memories.
In these circumstances it is the father’s position that the children’s involvement, with Dr C, has the air of a self-fulfilling prophecy, which will inevitably end in the extinction of any viable paternal relationship being maintained between him and the children, if she continues to be extensively involved. In this context, it is the submission of Mr Bowler that Dr C’s therapy for X and Y has been spectacularly unsuccessful, as the children’s relationship, with their father, has become more rather than less fractured.
The thrust of much of Dr C’s evidence was that she felt her professional relationship was posited on the basis of listening to and protecting the children. It is her opinion that X and Y may have suffered some physiological damage, as a consequence of their exposure to their father’s conduct. It is the submission of Mr Bowler that Dr C is to be regarded as a partisan in her evidence and straying into areas of expertise, in which she is not qualified and so must be regarded as an unreliable witness.
In this context, Mr Bowler argues that the mother has co-opted Dr C to advance her agenda directed towards securing the complete alienation of the children from their father. Ms Barret’s evidence is that she was referred to Dr C by her general medical practitioner, whom she consulted to obtain assistance in respect of X’s dysregulated behaviour, which he has largely attributed to Mr Barret.
Ms Barret is not likely to be a sophisticated person in respect of her selection of a therapist for the children. Accordingly, I reject any suggestion that she had any ulterior motive in selecting Dr C. Certainly, in my view, there is no substance to the assertion that the mother and Dr C are colluding with one another, to alienate the children from their father. From the mother’s perspective, she took the children to see Dr C because she was recommended to her by a general medical practitioner.
However, in my assessment, it remains the case that there is a risk, whether inadvertently or not, that Dr C will act more as a reinforcer than as a corrective of the children’s adverse attitude towards their father. Clearly, this is a significant issue in the case. For various reasons, Ms Barret has an extremely negative view of Mr Barret, as does Dr C. The children are likely to be aware of this state of affairs, which may have some influence on their own view, which are also likely to be shaped by their own direct experience of their father.
Certainly, I do not consider Dr C is likely to be inclined to lead the children to reconsider their views of their father or contemplate any positive aspects of his personality or any happier times, which they have spent with him in the past. Ms D has recommended a modest increase, to overnight time, in respect of the two younger children. However, her position is posited on the basis that Mr Barret and the children address their relationship issues through a minimum of three joint therapy sessions.
In these circumstances, any therapist for the children has the potential to be extremely influential in shaping the ultimate outcome of the case, particularly in respect of the children’s attitude for their father, which implicitly Ms D assesses to be reparable. This is an important recommendation, which needs, in my view, to be earnestly considered by the Court, particularly to avoid the possibility of any such counselling miscarrying. Given her attitude in the case and the manner in which she has hitherto interacted with the children, I do not consider that Dr C would bring a sufficient level of either impartiality or proactivity to the therapeutic task envisaged by Ms D.
However, the fact remains, and I find so, that the most significant factor in the current matter, regarding what has shaped the children’s views, is their direct experience of their father. As such, important though it is, the involvement of Dr C in the matter to date should be regarded as more peripheral to it than influential. The most cogent factor in shaping the children’s views of their father is Mr Barret himself and what he has done.
It is Ms Barret’s evidence that Dr C visits the children in their home. Counsel for the father, Mr Bowler is critical of this approach, which is in his submission demonstrates a lack of professional boundaries between Dr C and the children. In this context, he further submits that this is demonstrative of Dr C’s potential to deepen rather than reduce the rift between the children and their father.
I appreciate the powerful reactions precipitated by the issues created in this case (and others like it) in those who are involved in them. However, I share the father’s concerns, which are also shared by the Independent Children’s Lawyer.
However, at the same time I accept Ms Barret’s evidence that the children benefit from consulting with Dr C and this is reflected in their improved emotional functioning, particularly insofar as X and Y are concerned. This is also the view of Ms D, who wrote as follows in her second Family Report:
With regard to the children's relationships, the writer appreciated that X, Y and Z shared a close attachment with Ms Barret and referenced her as their main care relationship. Whilst this primary care relationship should continue, the writer also appreciated the importance of the children developing a relationship with Mr Barret in a safe and supported manner. To help facilitate this relationship and in wishing to limit the number of professionals involved in the children's lives (should Dr C be agreeable), the writer would encourage Mr Barret to engage in the children's therapeutic intervention with Dr C to help repair their relationship with him.[16]
[16] See Family Report prepared by Ms D dated 29 April 2021 at [146].
This recommendation raises difficult issues given the assessment I have made of Dr C. For the reasons outlined above, I am not as sanguine as Ms D in regards to her providing the required therapy. To the contrary, I consider that Dr C is not equipped to provide the therapeutic intervention, notwithstanding the obvious appeal of limiting the number of professionals involved with the family.
I concede that it may be difficult for Dr C to remain involved with the family, if another therapist is engaged. I also accept that it is likely to be highly doubtful that the parties themselves will be able to agree on another therapist. In such circumstances, the only potential honest broker available to appoint such a person is the Independent Children’s Lawyer.
Ms Q
Ms Q is the Allied Health worker at Suburb N Primary School. She has a graduate and postgraduate qualifications in Psychology. She is the School Healthcare Professional and in this capacity has had regular sessions with Y and X from 2016 onwards. Primarily, she has seen the two children due to behavioural problems they have exhibited at school. She has had only limited involvement with Z.
Y has been seeing Ms Q on a weekly basis. His main behavioural problems have involved difficulties with class mates, which Y has attempted to resolve, in the past, by pushing, punching and kicking them. It would seem to be the case that Y has been picked on, by some of his peers, and reacts to this treatment violently.
Between early-2017 and 2019, Y has made concerning reports regarding his father’s behaviour. These have included ruminating about things happening between mum and dad;[17] his father choking his mother and the police coming;[18] his father upsetting his mother and talking badly about his mother and sending her nasty text messages;[19] and his mother crying, whilst on the phone to his father.[20]
[17] Report made by Y on 7 November 2017.
[18] Report made by Y on 17 October 2018.
[19] Report made by Y on 23 July 2019.
[20] Report made by Y on 3 September 2019.
X has complained about his father targeting and yelling at him. Overall, Ms Q’s evidence was of two children who had significant social and home issues, in which conflict with their dad loomed large. In these circumstances, the major effect of Ms Q’s evidence is that X and Y have been exposed to family violence, at home and this appears to have had consequences for their behaviour in the school setting.
Ms Q conceded that she had attended a meeting, with Dr C and two of X’s teachers, which the mother had organised. The inference being that Ms Q had been influenced, in assessing the reasons for X’s misbehaviour, by Dr C. The relevant meeting took place in 2019.
I found Ms Q to be a conscientious and professional person, who had the interest of her two students to the forefront of her mind. In this context, I found her evidence illuminating, particularly in respect of the reports made by Y, which pre-dated Ms Q meeting with Dr C. Given these reports, I am not in a position to dismiss Dr C’s view that both Y and X are displaying some symptoms of Post-Traumatic Stress Disorder.
The Father
As previously indicated, Ms Lewis set the scope of her cross-examination of the father from the outset, when she invited him to provide his assent to the proposition that he was the victim of the mother’s deception and behaviour rather than vice versa. Mr Barret provided this assent, in my view, without equivocation.
Thereafter, incident by incident, in my view, Ms Lewis forensically demolished his position to such an extent that, in his closing submissions, his counsel conceded that his client had been guilty of appalling behaviour during the parties’ relationship. This is both the central factual and legal issue in the case and I accept Mr Bowler’s description of his client’s behaviour.
In my view, this forensic cross-examination resulted in a fatal blow to the father’s credibility, which he himself recognised at it drew to its conclusion. As such, I do not accept the manner in which he attempted to recreate the nature of the parties’ past relationship with one another, in his affidavit material and through the manner in which his counsel cross examined Ms Barret.
Throughout his evidence, as it developed issue by issue, the father was compelled to make frequent concessions about his conduct, as described by him in his affidavit, which were extracted in the face of incontrovertible evidence and his own earlier denials. Sadly, he was not an impressive witness.
At the end of his cross-examination, the father apologised to the mother for his conduct towards her. In this context, he indicated that he wanted to change his behaviour and become a better person. He conceded that Ms Barret had been a very good mother. He also indicated a willingness to take advice on board and said that he regarded his life at present as being a work in progress. He also indicated a willingness to keep his distance from the mother and refrain from denigrating her in future.
One of the forensic tasks, which confronts the Court, is assessing the sincerity of these comments and whether the father has sufficient insight to do what he has said he is prepared to. My impression of Mr Barret is that he is a person who finds it extremely difficult to curb his anger, when he feels affronted. To some extent, Mr Barret has had an awareness of this personality trait for a significant period of time.
Prior to the parties’ separation, they took part in a process of counselling, a part of which involved each of them writing a letter of personal reflection. In his letter to himself, Mr Barret wrote as follows:
When you get angry it is doing more harm than good. You know you can control it so why do you let it get the better of you? I am sure you do stuff that frustrates and pisses off your family but they don’t react the same as you. You’re the only one who can change it. You really need to stop and think about it before it consumes you. I really want you to try even harder to control your anger. I know you can do it. How did you feel when your father did it. That’s right, not good and that’s how you make Ms Barret and the boys feel. You have to stop![21]
[21] See Exhibit A.
Mr Barret is a large and powerfully built person, who has obviously worked out at the gym for a significant period of time. He concedes that, from his appearance alone, he has the potential to be quite frightening. For obvious reasons, this propensity is likely to be enhanced, when he is angry. The evidence available to me indicates that Mr Barret has often lost his temper. As previously indicated, it is the mother’s view that the children are frightened of their father.
Sadly, however, due to one incident in particular, I also have grave concerns that Mr Barret has significant difficulties in regard to empathising with the feelings of others or indeed contemplating how his aggressive behaviour impacts upon them.
The origins of the incident lie in a series of text message which passed between Mr Barret and Ms Barret, on 20 December 2017.[22] The father sent a photograph of a note, which he had left on a vehicle parked next to his in a carpark. The note read as follows:
Park closer next time fuckwit. Hope you die of cancer, nice and slow and painful.
[22] See Exhibit T.
The father had sent that message, with some pride to Ms Barret, who had responded with “don’t do that’. To which Mr Barret had responded “why not?” To which, in turn, Ms Barret had responded, as follows; you don’t need to, it could be an old lady or man.
When the issue was raised with him, Mr Barret evinced the view that he was entitled to respond in this way because he had recently purchased a new motor vehicle and was concerned about it being damaged. He expressed some incredulity that, if as Ms Barret had conjectured, the other driver concerned had been a frail person and had seen him they would have been petrified.
The note, in my view was the action of a bully, with an overweening sense of entitlement and no capacity for empathy. I concede that, in the greater scheme of things, this is likely to be a minor matter, but in my view, it gives some indication of Mr Barret’s view of the world and how he approaches it, particularly if he considers that his actions are not likely to be subject to outside scrutiny.
In my view, this is particularly telling in respect of how an individual choses to behave within the private confines of the home. The mother’s view of the father is that he is a domineering bully, who threatens anyone who crosses him. The note confirms this characterisation. It is not the action of an empathetic person.
Dr J
Dr J has practiced as a psychologist since 1979. He prepared two reports in respect of Mr Barret, dated 6 May and 25 October 2020 respectively. He presented as a thoughtful and experienced professional person, who made appropriate concessions regarding the nature of the therapeutic relationship between psychologist and patient, namely, in order for such relationships to be effective, they had to be based on mutual trust and full and frank disclosure.
Dr J described how he saw his role with Mr Barret as being fundamentally to help him, particularly in terms of assisting him to improve his behaviour. Dr J also acknowledged that he had an obligation to keep everyone safe and work in ways which assisted the parties to have a better co-parenting relationship.
The thrust of Ms Lewis’ cross-examination of Dr J was that Mr Barret had not been completely frank about his behaviour and Dr J had, to some extent, had the wool pulled over his eyes by Mr Barret, who had minimised the gravity of his conduct towards the mother. In this context, Dr J had been presented with all the relevant affidavit material on the court file and read the first family assessment report of Ms D.
In addition, he has consulted with Mr Barret on approximately twelve occasions between December 2017 and September 2020. The initial reason for the consultation, on Mr Barret’s part, appears to have been in respect of anger management issues, in the context of criminal proceedings.
Dr J administered a number of psychometric tests directed towards measuring a subject’s susceptibility to anger and provocation. Dr J also wrote a letter to Ms Barret, at the father’s request, providing his opinion about his patient’s mental health. Ms Barret took exception to this opinion.
In his oral evidence to the court, Dr J indicated that was not currently engaged on an on-going therapeutic relationship with Mr Barret, who had elected to see him on a needs basis. In this context, Dr J indicated that he would welcome Mr Barret back, if he wished to consult with him again.
As such, I do not consider that Dr J was unduly naïve about the issues in the case but I am concerned that Mr Barret has not been completely frank with Dr J and has only consulted with him on an opportunistic basis rather than with any desire to change his behaviour or more importantly with a significant level of insight as to why he should change his behaviour.
As one would expect of a therapist, Dr J was sympathetic to his patient’s situation and his point of view. This led Dr J to opine, in his first report, that Mr Barret’s primary issue was “his experience of betrayal and disrespect from his estranged partner despite what he has contributed, and sacrificed for their family”. In these circumstances, he further opined that Mr Barret’s problematic conduct was attributable to the “conflict between the estranged parents” and “his anger [was] an expression of [his] hurt and betrayal”.
This is clearly Mr Barret’s view also – he attributes the conflict in the parties’ relationship as much to Ms Barret as to him and has essentially denied that it is reflective of any power imbalance between the two as demonstrated by elements of coercion and control.In this context, I am concerned that in his evidence to the Court, provided prior to his subsequent significant recantation of it, Mr Barret’s view is that it is he who is the victim of unfairness in the case, rather than Ms Barret.
I am also concerned that this is the view of other members of his family.I hold a radically different view of the evidence. In this context, I am concerned that, either to himself (and his family) or to Dr J, Mr Barret has not been frank and insightful about his previous behaviour but has either dismissed it or excused it.
Dr J further opined that the various incidents of family violence, of which he was aware in this case, were not likely to be reflective of a mental health issue for Mr Barret and, as such, “need not be a long-term ongoing phenomenon” for him. This conclusion, on his part, was buttressed by the following opinion:
People with a general trait of problem anger typically display this across most if not all settings of their lives (i.e. the workplace, family of origin and social settings, not just one like their primary couple relationship as is the case here). There have not been any indication that Mr Barret has had a problem with anger in other contexts, e.g. work or family of origin.[23]
[23] See Annexure -2 to the Affidavit of Ms TT filed 25 May 2020.
In these circumstances, including the fact that Mr Barret had formed a new relationship, Dr J considered once the “negative dynamic” had been resolved between the parties, through the resolution of the current proceedings, the children’s relationship with their father was likely to improve. This opinion was predicated on the basis of Mr Barret being able to “gain some affirmation and respect for his past parenting and family contributions, (especially if that can come from the current judicial process), the prospect of anger reduction is very real”.
Ms Barret views this as a simplistic and erroneous analysis and she takes exception to it. It is her case that a proper analysis of the evidence indicates that, at best, Mr Barret’s hostility to her remains at the same level, in the period since separation, and has been problematic in other aspects of his life, for a significant period of time. She does not accept Dr J’s view that Mr Barret’s life has moved on. She does not accept that issue to do with anger have not played a role in other aspects of Mr Barret’s life.
The children, in the past, have been severely frightened by their father’s behaviour. This is not emotionally supportive of them. In addition, since the parties separated, I am concerned that the children have each continued to be exposed to their father’s derogatory attitude toward the mother. The central feature of each of Ms D’s reports is that the children are scared of Mr Barret and something needs to be done to repair their relationship with him.
Mr Barret has a negative view of the mother’s capacity to provide for the children’s emotional needs in the sense that he contends that she is not properly motivated to support an appropriate level of relationship with the children, which is exemplified by the negative comments she and the children have made about him and his partner and which Ms Barret herself acknowledges she has made.
At present Ms Barret undoubtedly does have a negative view of Mr Barret and it is inevitable, in the current circumstances, that the children will be aware of this state of affairs. However, in my view, to a very large degree, Ms Barret’s antipathy for Mr Barret stems from his behaviour towards her, to which each of the children were exposed in the past.
Ms Barret has not behaved impeccably in respect of the expression of some of her views, particularly when she has been stressed. This is understandable given the pressures to which she has been subject. In my view, of the two parties, she has been the one more open to seeking a compromise and the parent who is more in tune with the children’s emotional needs.
g) The children’s maturity, sex, lifestyle and background
There is no need for the Court to address these matters on any individual basis. In my view, I have considered the salient features of the children’s background in these reasons as a whole.
h) Aboriginal Heritage
This is not a relevant consideration in the case.
j) Family violence
k) Any family violence order
Family violence and the various orders made to protect Ms Barret are amongst the central issues in this case. I am satisfied that Mr Barret has consistently defied the spirit of these orders. Ms Barret is entitled to lead her life free from harassment from Mr Barret. In these circumstances, issues to do with Ms Barret’s personal protection are important matters for the Court, which needs to emphasise to Mr Barret that Ms Barret is not to be subject to low-level harassment or surveillance.
l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
The evident problem in this case is that, after the conclusion of a lengthy hearing, it is apparent that further interventions are needed to repair the relationship between the children and their father. I am satisfied that, if it is possible and practicable to implement, such repair is likely to be in the best interests of the children, as it is likely to be the best mechanism for each of them, including X, to have a meaningful level of relationship with their father.
The problem is compounded by the widely divergent final orders each party seeks, which do not seem to be in accord with the recommendations of Ms D. The mother proposes that Y and Z spend one day a month with their father and he be able to send cards and gifts to them on special occasions.
On any view, given the extremely limited and infrequent time proposed, this will create an extremely truncated relationship and I have difficulty in accepting that it will be in the children’s long term best interests, particularly in the context of the views expressed by Y.
Occasions, such as birthdays and the celebration of Christmas are important to parents and children alike. They provide the opportunity for them to exchange gifts and well wishes, which may reinforce an appropriate sense of relationship.
In these circumstances, it is important, in my view, if there is any prospect of the father’s relationship with X being improved and his relationship with the two younger children being sustained, that Mr Barret be given an opportunity to send cards and gifts to the children on such occasions.
To her credit, Ms Barret agrees that this should occur. However, she does not wish this mode of communication to be abused. In these circumstances, I will make the orders as proposed, by the mother, with the safeguards they contain.
A further aspect of the mother’s position is that the father should be restrained from bringing further proceedings, for at least a period of a year, until he has undertaken a course of treatment, with a psychiatrist, directed towards correcting his aggressive behaviours, which will ultimately involving him acknowledging his past violent behaviours and inappropriate parenting.
Who that psychiatrist should be is unclear and whether Mr Barret would consult such a person. The treatment would not involve any of the children and so would not be in line with what Ms D recommended. In addition, by necessary implication, whether the Court should entertain any further application from the father would depend on the prognosis of the psychiatrist concerned. I am concerned at the nebulous aspects of this proposal, the main advantage of which is that it would prevent further litigation for a period of twelve months.
On the other hand, the father proposes the immediate introduction of an extensive regime of substantial and significant time during the school year; half of school holidays; and a number of designated special occasions. In my view this is not reflective of the reality of the children’s family situation. As such it is not a feasible outcome at this stage and, given what has occurred to date, may never be.
What the parties do agree upon is that X should be given time and space to determine for himself if, and when he will interact with his father. Neither party has sought any specific order in respect of how the children’s relationship, with their father, can be repaired. Essentially, at this stage, neither party, notwithstanding Ms D’s second report has been available for some time, has any proposal to span the gulf between their respective positions other than for the mother’s deferral of the issue until the father has been compulsorily psychiatrically treated.
In these circumstances, it would be naïve for either party to consider that the case can be easily finalised at this stage, without at least some thought being given to how Ms D’s recommendations for therapy can be implemented. However, at the same time, concerns must arise at the potential for the litigation to be prolonged, without any obvious end point, which can only exacerbate tensions and possibly lead to more rather than less division in the family.
It is possible that a continuation of the existing regime, in tandem with an easing of the tensions between the parties and the effluxion of a reasonable period of time, will enable some level of natural repair to occur in the relationship between Y and Z on the one hand and their father on the other, whilst Mr Barret undergoes the quasi-compulsory psychiatric treatment proposed by Ms Barret. However, in my view, this cannot be guaranteed without some form of therapeutic oversight vis-à-vis his relationship with the children.
If a continuation of the current regime does proceed well, Mr Barret is extremely likely to commence a further round of proceedings to extend time, which Ms Barret may well resist. Certainly the prospect of a consensual resolution appears doubtful.
Mr Barret is also likely to feel resentful, if the doorway offered by Ms D’s second report of some overnight time, after therapy, an outcome to which Y is reportedly open, is slammed shut by the making of the final orders advocated by the mother.
However, I am well aware that there is no guarantee that the therapy suggested by Ms D will have the restorative consequences for which she hopes. This is particularly so in the absence of an agreed therapist, or any evidence regarding such a person’s involvement with the children concerned. I am also concerned that the psychiatric intervention proposed by the mother, in the absence of the father’s willing embrace of it, is not likely to be a useful intervention in itself. For it to be useful, in my view, Mr Barret must willingly engage with it.
In all these circumstances, I am concerned that to leave the proceedings, with a final order congruent with the present interim arrangements, would represent unfinished business for the family, given the absence of any effort towards therapeutic repair of the relevant paternal relationships. As previously indicated I do not think this would be in the best interests of the children, notwithstanding the risk of further litigation which it represents.
m) Any other fact or circumstance
The major issue in this case was family violence. At a late stage of proceedings, Mr Barret made significant concessions regarding his past behaviour to Ms Barret. In my view, the stance he adopted in the case has considerably lengthened the proceedings and placed an additional emotional burden on Ms Barret, whom he initially characterised as a person who had lied about what had occurred to her.
This is a factor which militates in favour of the cautious approach advocated by the mother, which involves the father being barred from further proceedings until he has provided the favourable psychiatric report stipulated by her following a period of twelve months of meaningful engagement.
Conclusions
This is a sad and confronting case. It is impossible not to feel some sense of compassion for all the parties involved in it, each of whom continues to feel a sense of hurt and dislocation. This hurt and dislocation has served to drive the conflict between them, which is self-defeating in nature and serves only to postpone the possibility of any reconciliation (or at least the inauguration of a more workable parenting relationship) between them, which will benefit the children in the longer term and enable them to have a more normal relationship with the paternal side of their family.
What is particularly concerning, is the extent of the dichotomy between the parties’ respective positions and the absence of any proposal, from either of them, to resolve it in a child-focussed way, involving an agreed form of therapy and therapist for the children. The tenor of Ms D’s assessment of the family is that, difficult though it may be, Y and Z’s relationship with their father is capable of some level of repair. In my view, it would be derelict of the Court not to consider such an intervention and in lieu thereof reduce the father’s time with the two children.
Ms Barret wants Mr Barret to consult a psychiatrist in what she characterises as ‘being in a meaningful manner’. This would involve his acknowledgement of his behaviour towards Ms Barret and therefore demonstrate insight on his part. I am concerned that any compulsory form of psychiatric treatment, in the form of a Court order, is not likely to be successful unless Mr Barret willingly embraces it. In addition, it was not a topic which was closely examined in the proceedings before me.
The chief advantage of such an order is that it places a bar on further litigation, for a finite period of time, whilst the family attempts to recover. In my view, it is more appropriate for Mr Barret himself to consider whether he needs to seek such treatment. These have been bruising proceedings for all concerned, including Mr Barret, who conceded openly that his life and his relationship with the children was a work in progress.
In my view, it is beyond the remit of my authority to direct specifically how Mr Barret approaches that topic. It remains a matter for him as to the treatment which he seeks for himself, once he has considered the implications of the various findings arising from this judgment. Whether he accepts the findings or not is also obviously a matter for him.
The therapist with whom the children have had the most contact is Dr C. I do not consider that she can provide the therapy advocated by Ms D. As previously indicated, I consider that, in the event the parties cannot agree the therapist, within a period of 28 days of the publication of this judgment, the three sessions outlined by Ms D should be provided by a therapist to be nominated by the Independent Children’s Lawyer.
A balance must be struck between a raft of competing considerations, which can be summarised as follows:
·The obvious benefit entailed in bringing the current round of litigation to finalisation now; as opposed to:
·Y and X maintaining some form of meaningful relationship, with their father, whilst there is some form of therapeutic involvement, as recommended by Ms D , taking place, in circumstances where the form of that therapy is not known; which, in turn must be balanced against:
·The need for time between the younger children and their father occurring in a safe fashion, without the possibility of the children being exposed to either the denigration of their mother or a further volatile outburst from their father of some kind.
In my view, to make the orders sought by Ms Barret tip the balance too far in respect of protective concerns. I am also concerned that to keep the orders as they currently are will not maintain the prerequisite level of meaning in the younger children’s relationship with their father. I am satisfied that at some stage, there must be consideration of a modest advance in the time these children spend with their father. The question being what that advance should be; when should it occur; and the level of risk it entails.
In all the circumstances, notwithstanding the uncertainty about who the therapist concerned should be and the ultimate outcome of the three sessions envisaged by Ms D obviously cannot be known at this stage, I propose making the orders as recommended by Ms D. I am comforted in the move to modest overnight time given Y and Z favour it. It will also enable some modest degree of normalisation of those relationships which will be necessarily entailed in Mr Barret being responsible for bedtimes and an evening meal on one night per fortnight. It will also give the children more opportunity to interact with their paternal family.
The chief deficit of this order is that it defers any consideration of special occasions and school holiday time. As such it is a stop gap measure. There is no answer to this criticism. Rather it is a necessary corollary of how the parties have elected to approach the case. What should be the trigger for further Court involvement, if required, to address these deficits is also unclear. For the reasons already provided, the mechanism proposed by Ms Barret in this regard is not without its problems.
If adopted, it will prevent Mr Barret engaging in further litigation and will provide a high level of protection to the various risks identified. However, it will not provide the therapeutic intervention recommended by Ms D and will leave the children with an extremely truncated form of relationship with their father for an extended period of time, which may lead to the possible extinction of that relationship, which seems to me to be contrary to their best interests in the long term.
In my view, the appropriate response to the risk entailed in this approach is to maintain the appointment of the Independent Children’s Lawyer for a period of twelve months and grant him liberty to re-list the matter on 14 days written notice to address any issues arising in respect of the application of the therapy envisaged by Ms D and to act as a gate-keeper in respect of any further applications which either of the parties may contemplate.
In this context, it needs to be unequivocally stated to Mr Barret that this is not an invitation to him to commence another round of proceedings. The ball remains in his court to demonstrate that his relationship with the children has been repaired and he has been an active and insightful participant in such a process. How he chooses to do that is a matter for him. Necessarily, given the damage these proceedings have caused, the Court must closely consider the application of the principles contained in Division 12A of the Act, which directs that the Court consider the impact of proceedings on any child concerned and protect them from being further exposed to family violence.
My focus must remain on the best interests of X, Y and Z, who are not responsible for the rift in their family. It is not in their best interests to be exposed to the endemic conflict between the parties, which I am satisfied originates more with the father than the mother. This is unacceptable and must cease. The most empathetic way in which to sheet this home is to make the various injunctive orders sought by the mother. I am satisfied that each of the orders individually, and in combination are appropriate for her personal protection.
The presumption of equal shared parental responsibility is rebutted in this case. The parties communicate poorly and whenever they do communicate, even in electronic form, there is always the potential for their communications to descend into recrimination. Decisions need to be made in respect of the children in respect of many issues to do with their education and various special needs. These decisions need to be made promptly and efficiently.
At present the parties have no capacity to make any of these major long-term decisions consensually. This will remain the case for the indefinite future. However, these decisions will still need to be made. In these circumstances, the only realistic option is to confer this responsibility on one parent alone, contrary though this is to the ethos of the Act. Given the mother is the children’s unchallenged primary carer that parent should be Ms Barret.
I acknowledge that Mr Barret remains vitally interested in all issues to do with the children. Given this state of affairs, the proposal of Ms Barret that she inform Mr Barret in writing of any significant issue regarding the children’s health or education and contact him in the event of any serious injury or illness befalling the children or if any of them is admitted to hospital seems to me to be a viable compromise. It is important that Mr Barret know about such matters in a timely fashion.
In addition, it is important that Mr Barret be able to send birthday and Christmas cards, along with appropriate gifts, to the children but only in a manner which does not expose Ms Barret to any potential for harassment. Mr Barret needs to be careful not to abuse this privilege
The issue of the children attending School RR for their secondary education was not an issue closely canvassed in the proceedings before me. However, given the conferral of parental authority for the children it is my view that Ms Barret can select this school, for the children, if she so wishes.
Neither party advanced any proposal for the children to travel overseas at any time in the future. Each party is an Australian citizen, who has lived in this country for the entirety of their respective lives. In these circumstances, I consider it premature to deal with the issue of passports for each of the children.
Arrangements for the exchange of the children are difficult and will remain so for the indefinite future. For the reasons I have hitherto provided, the mother has justifiable and more than ample reasons to be fearful of the father, whom I have characterised as an overweening bully. Ms Barret has a fundamental entitlement to feel secure at all handover involving the children. For these reasons, although it cannot be considered a child focussed location, all handovers must continue to occur at the E Shop.
At the end of these lengthy reasons for judgment, I am well aware that the case has provided no opportunity for the bridging of the deep rift in X, Y and Z’s family. Court proceedings rarely provide such an opportunity. I can only hope that Mr Barret will make good his commitment to do whatever it takes to improve his behaviour so that this rift may, in time, be mended to some degree.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding four hundred and fifty-four (454) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 24 September 2021
2
0