Bevins & Bevins
[2021] FCCA 1802
•16 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Bevins & Bevins [2021] FCCA 1802
File number(s): DGC 2179 of 2019 Judgment of: JUDGE MCNAB Date of judgment: 16 July 2021 Catchwords: FAMILY LAW – parenting – significant breakdown in communication between the parties – father failing to facilitate spend time between the children and mother – significant issues involving school attendance – father has demonstrated that he is unable or unwilling to ensure that the children’s educational and health needs are met – one child has significant unmet needs – where there is a need to make orders to re-establish the children’s relationship with the mother – change of residence Legislation: Education and Training Reform Act 2006 (Vic), Part 2.1
Family Law Act 1975 (Cth), ss 60CA, 60CC, 61DA, 64B, 65AA
Number of paragraphs: 141 Date of last submission/s: 15 July 2021 Date of hearing: 13 – 15 July 2021 Place: Melbourne Counsel for the Applicant: Dr R Alexander Solicitor for the Applicant: Randles Cooper Lawyers Counsel for the Respondent: Mr D McGann Solicitor for the Respondent: Griese Lawyers Counsel for the Independent Children's Lawyer: Ms A O’Connell Solicitor for the Independent Children's Lawyer: Taft Lawyers ORDERS
DGC 2179 of 2019 BETWEEN: MS BEVINS
Applicant
AND: MR BEVINS
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
16 JULY 2021
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Mother and the Father have joint parental responsibility for the children X born in 2008 (“X”) and Y born in 2010 (“Y”) (“the children”), however the Mother have responsibility to make final decisions regarding the health and education of the children after having consulted the father and subject to the Mother informing the Father of the decisions.
3.The children live with the Mother.
4.After a period of three (3) weeks in the Mother’s care the children communicate with the Father by telephone each Monday and Friday between 5:30pm and 6:00pm commencing Friday 2 August 2021 with the Mother to facilitate the call on speaker phone AND the Mother be at liberty to terminate the call if she considers the conversation to be inappropriate or pressuring the children.
5.After a period of 8 weeks from the date of these orders and upon confirmation of the Father’s engagement with a psychologist/counsellor, the children spend time with the Father as follows:
(a)for a period of 8 weeks:
(i)each alternate Saturday from 10:00am until 5:00pm with changeover taking place inside the Town B Police Station;
(b)thereafter:
(i)during school term each alternate weekend from 6:00pm Friday until 3:00pm Sunday with changeover taking place inside Suburb C Police Station;
(ii)half of school term holidays as agreed and failing agreement from 3pm on the middle Saturday to 3pm on the following Saturday with changeover taking place inside Suburb C Police Station; and
(iii)for two non-consecutive one-week blocks in long summer school holidays on dates to be agreed.
6.The Father forthwith attend upon a suitably qualified psychologist or counsellor as approved by the Independent Children’s Lawyer to address the Father’s issues as identified in the Family Report by Ms D dated 25 January 2021, and the father be at liberty to provide the treating professional with copies of the Family Report, the orders made this day and the Reasons for Judgment delivered this day.
7.The Father provide the Mother with written confirmation of engagement with a psychologist/counsellor as provided for in paragraph 5 herein.
8.Y forthwith be enrolled to attend at E School, Suburb F.
9.By 4:00pm on Monday 19 July 2021 the Mother provide E School, Suburb F with the following:
(a)X’s attendance record from the Compass school portal for terms 1 and 2 at Town B Secondary College;
(b)X’s semester 1, 2021 school report from Town B Secondary College;
(c)Y’s attendance record from the Compass school portal for terms 1 and 2 at G School, Town B;
(d)Y’s semester 1, 2021 school report from G Primary School, Town B;
(e)end of year school reports for 2020 for both children from G Primary School, Town B; and
(f)copy developmental assessment report about X by H CYMHS dated 30 April 2014.
10.By 4:00pm on Monday 19 July 2021 the Applicant Mother provide the J School for Autism with the following:
(a)X’s semester 1, 2021 school report from Town B Secondary College;
(b)X’s end of year school report for 2020 from G Primary School, Town B; and
(c)copy developmental assessment report about X by H CYMHS dated 30 April 2014,
AND authorise Town B Secondary College to forward any further relevant information about X.
11.Upon assessment as suitable X be enrolled to attend at E Primary School, Suburb F UNTIL such time as a place becomes available for him at the J School for Autism.
12.In the event that X is not accepted into E Primary School, Suburb F THEN the Mother apply to enrol the child at Suburb F Secondary College UNTIL such time as a place becomes available for him at the J School for Autism.
13.Prior to enrolment of X at Suburb F Secondary School pursuant to order 12, the Mother provide Suburb F Secondary College with the following:
(a)X’s semester 1, 2021 school report from Town B Secondary College;
(b)X’s end of year school report for 2020 from G Primary School, Town B; and
(c)copy assessment from H CYMHS dated 30 April 2014 about the child X,
AND authorise Town B Secondary College to forward any further relevant information about X.
14.The Father, his servants and/or agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the Mother, and
(b)discussing these proceedings,
to or in the presence or hearing of the said children or any of them and from permitting any other person so to do.
15.The Mother, her servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the Father; and
(b)discussing these proceedings,
to or in the presence or hearing of the said children or any of them and from permitting any other person so to do.
16.For a period of 8 weeks from the date of these Orders the Respondent Father by himself, his servants and agents be restrained from:
(a)attending at or being within 100 metres of the children’s schools; and
(b)communicating or endeavouring to communicate with either of the children via telephone, text ; email, social media, on-line game or any other means other than as provided for in these Orders.
17.The Mother keep the Father informed of:
(a)where each of the children attend school;
(b)any significant illness or injury affecting either of the children with full contact details of the treating health professionals; and
(c)the details of the children’s treating psychologist pursuant to these Orders.
18.The Mother do all such acts and things and sign all such documents to request and authorise any school at which the children attend from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitations for parent-teacher interviews and other information relating to the children’s education to both parents at the expense of the Father, if any.
19.The Mother be authorised to keep X’s lap top and school bag for X’s use.
20.The children’s mobile phones be returned to the Father and remain in his possession.
21.The Father provide the Mother with the children’s Laptop passwords and the iTunes accounts and email addresses with passwords within 24 hours of the date of these orders.
22.The Father provide the Mother forthwith with the full names and contact details of X’s current speech therapist and occupational therapist AND details of X’s NDIS case manager/ provider and plan manager.
23.The Mother ensure that X continue with the services of his current speech therapist and occupational therapist if practicable ; and otherwise THEN the Mother engage with X’s NDIS case manager and arrange for replacement speech therapist and occupational therapist.
24.The Mother engage the services of a psychologist in the Suburb F or Suburb K area to see the children to assist in their transition with living in the fulltime care of the Mother AND that the Mother follow all reasonable directions of that psychologist.
25.The Mother re-engage with psychologist Ms L or her nominee for counselling.
26.The Mother continue to engage with M Counsellors and follow reasonable directions about counselling and support services for herself and/or the children.
27.A Family Consultant speak to the children on 16 July 2021 to explain the effects of these orders.
28.The appointment of the Independent Children’s Lawyer’s be discharged after carrying our compliance with Order 6 herein.
29.The children be released from the Child Care Centre at the Melbourne Registry of this Court into the care of the Mother following compliance with Order
30.All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.The Mother has placed the child X on the wait list at the J School for Autism.
B.Mr N who is the brother of the Mother’s partner Mr O is a grade 6 teacher at E Primary School, Suburb F and has indicated to the Mother that he is available to assist the children at that school.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
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 under the pseudonym Bevins & Bevins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Delivered Ex Tempore – Revised From Transcript)Judge McNab:
INTRODUCTION
In this matter the Applicant Mother is 39 years old and is a Student, who works on a casual basis as a tradesperson. The Respondent Father is 38 years old, works part-time as an office worker and is otherwise the primary carer for the children.
The parties commenced their relationship in 2008.
In 2008, the child X was born, and he is now 12 years old. In 2010, the child Y was born, and she is now 10 years old.
In 2012, the parties were married.
In January 2019, the parties separated on a final basis, and the Father left the matrimonial home.
The Mother currently lives in Suburb F with her partner, Mr O, who works as a tradesman running his own business. The Father lives in Town B with the children and with the children’s half-brother, Mr P, who is 20 years old, and is the Mother’s son from a previous relationship. The Father does not currently have a partner.
The primary issues in this case are the fact that the children are currently not spending time with the Mother and attempts at effecting changeover has become problematic, to the extent that the police have become involved on a number of occasions. As is set out below in part, changeovers have been spectacularly unsuccessful on three occasions since 4 June 2021. Another issue in this case is that X is only attending school two half days per week and Y is regularly absent from school.
From the Father’s point of view, the central area of concern is the effect of events involving the Mother in June 2019, whereby a former partner, with whom she was living with the children, subjected her to significant family violence and a serious assault in the presence of the children (“the June 2019 incident”). The Father’s concern is that the Mother has failed to acknowledge the effects of those events on the children or her role in those events.
BACKGROUND
On 9 June 2019, the Mother filed her initiating application seeking final parenting orders, including, amongst other things, the parties to have equal shared parental responsibility for the children, the children to live with the Mother and for the children to spend time with the Father each alternate weekend, half of all school holidays and on other special occasions.
On 8 August 2019, the Father filed his response seeking final parenting orders, including, amongst other things, the parties to have equal shared parental responsibility for the children, the children to live with the Father and for the children to spend time with the Mother as the Court deemed to be in the children’s best interests.
The matter first came before the Court on 9 October 2019, and orders were made by consent for the children to live with the Father, the Mother to spend supervised time with the children once a fortnight and to communicate with them by telephone each Monday and Friday, and for the Mother to undertake drug screens as requested by the Independent Children’s Lawyer. Further orders were made for a s11F child inclusive conference to occur for the purposes of the preparation of a s11F memorandum, the appointment of an Independent Children’s Lawyer, and for the matter to be adjourned to 29 November 2019 for directions.
On 18 November 2019, a s11F memorandum was provided to the Court. By that memorandum, the Family Consultant relevantly recommended that the children live with the Father, the Mother spend supervised time with the children for two hours each fortnight and the children communicate with the Mother pursuant to the interim parenting orders.
On 29 November 2019, the matter returned before the Court, and orders were made by consent for the children to live with the Father, the Mother to spend time with the children for two hours each fortnight, and on other certain days, and to communicate with the children each Monday and Friday. The matter was also adjourned to the Morwell Circuit in the week commencing 4 May 2020.
On 7 May 2020, the matter returned before the Court, and orders were made by consent for, the Mother to spend supervised time with the children once a fortnight and to communicate with them by telephone each Monday and Friday. Orders were also made for a family report to be prepared. The matter was adjourned to the Morwell Circuit in the week commencing 10 August 2020 for an interim defended hearing and to the first Morwell Circuit sittings of 2021, which occurred on 2 March 2021.
On 11 August 2020, orders were made for the Mother to spend supervised time with the children once a fortnight and for the matter to be adjourned to the Morwell Circuit in the week commencing 16 November 2020 for directions.
On 17 November 2020, orders were made by consent for previous parenting orders to be discharged, and for the Mother to spend time with the children on each Saturday in November 2020 and December 2020 for three hours, and commencing on 2 January 2021, each weekend from 10.00am on Saturday to 4.00pm on Sunday. Other orders were also made for the Mother to communicate with the children on Monday and Friday by telephone.
On 17 January 2021, a family report was provided to the Court. By that family report, the Family Consultant recommended, amongst other things, that:
(1)the children live with the Mother,
(2)the children’s spend time with the Father be suspended for the first school term (save for electronic communication), the Father spend time with the children for half of school holidays, and thereafter the Father spend time with the children each alternate weekend from 5.00pm on Friday to 3.00pm on Sunday; and
(3)the Mother provide to the Independent Children’s Lawyer a National Police Check of her current partner, and if the partner is found to be a risk to the children, they not be in contact with him.
On 17 February 2021, orders were made for the matter to be adjourned to the Morwell Circuit in the week commencing on 2 March 2021 for an interim defended hearing, and for the matter to be adjourned to 5 July 2021 for final hearing. A notation was included that the matter was listed for an interim defended hearing on the basis of the views expressed by the Family Consultant in the family report.
On the same day, the Mother filed an amended initiating application, seeking final parenting orders that she have sole parental responsibility for the children and that the children live with her. The Mother also sought that, from the date the children live with the Mother, the Father spend no time with the children for a four-month period, and that the Father then spend time with the children each alternate weekend from 5.00pm on Friday to 3.00pm on Sunday and for half of all school holidays, and to communicate with the children each Monday and Wednesday.
On 2 March 2021, orders were made by consent for the orders of 17 November 2020 to remain in full force and effect, save for the Mother to spend time with the children each alternate weekend from 5.00pm on Friday to 4.00pm on Sunday, on Mother’s Day and for one week of the gazetted term 1 school holidays in 2021.
On 3 June 2021, the Mother filed an application in a case seeking an abridgement of time, for all previous parenting orders to be discharged and for the children to live with the Mother and for the Father to spend no time with the children until the matter was heard at final hearing. The Mother sought orders that the Father be able to communicate with the children each Monday and Wednesday and for the Father to attend upon a psychiatrist nominated by the Independent Children’s Lawyer. The Mother alleged that the Father continued to denigrate her and alienate her from the children, and that the children’s behaviour had declined significantly since 2 March 2021. The Mother alleges that the only intervening factor which would have affected the children’s behaviour is the Father’s behaviour and conversations he had had, or exposed the children to, since 2 March 2021. The Father filed his response on 15 June 2021, and sought orders that the Mother’s application be dismissed, all previous parenting orders be discharged, the children live with the Father and that the Mother spend no time with the children prior to the final hearing, but communicate with the children each Monday and Friday.
On 9 June 2021, the Mother filed a further amended initiating application, seeking final orders that she have sole parental responsibility for the children and that the children live with her. The Mother also seeks, amongst other things, that:
(1)from the date the children live with the Mother, the Father spend no time with the children for a four-month period and the Father does not communicate with the children for a six-week period,
(2)the Father obtain a psychiatric/psychological report in respect of any risk he may pose to the children;
(3)the Father then spend supervised time with the children for 10 sessions, and for a report to obtained as to those sessions;
(4)provided that there is no risk identified in the supervised contact report, or in the psychiatric or psychological report of the Father:
(a)the Father spend time with the children each alternate Saturday from 10.00am to 5.00pm for a 2-month period; and
(b)thereafter, each alternate weekend from 6.00pm on Friday to 3.00pm on Sunday and for half of all school holidays, and to communicate with the children each Monday and Wednesday.
Orders were made by consent on 16 June 2021 for the orders of 2 March 2021 to remain in full force and effect, save for:
(1)the children to spend time with the Mother as follows:
(a)by way of make-up time, from the conclusion of school on Friday 18 June 2021 until 4.00pm Sunday 20 June 2021, and for such purpose;
(b)for the second term school holidays from the conclusion of school on Friday25 June 2021 until 4.00pm on Saturday 3 July 2021;
(2)changeover to occur as follows:
(a)for the commencement of time the Mother collect:
(i)X between 3.10pm and 3.15pm from the carpark near the bus shelters at Town B College;
(ii)Y between 3.25pm and 3.30pm from the front entrance of G Primary School;
(b)for the conclusion of time the Mother return the children to the Father at McDonalds in Suburb Q;
(3)the Father ensure that the children attend their school including on Friday 18 and 25 June 2021;
(4)the Father be restrained from attending the children’s school at the conclusion of school on Friday 18 and 25 June 2021; and
(5)the Mother ensure that X’s laptop computer and school bag are returned with X at the conclusion of the time he spends with the Mother.
As will become apparent, those arrangements were not followed by the Father, the children did not attend school on those days and the Father did not remain away from the school on 18 and 25 June 2021. The events which occurred are set out in some detail in a Department of Family, Fairness and Housing (“DFFH”) (formerly the DHHS) report of 1 July 2021, which is set out in part below.
On 1 July 2021, the Father filed his amended response seeking that he have sole parental responsibility and for the children live with him. He also seeks that the Mother communicate with the children on limited occasions by electronic means and otherwise the Mother spend time with the children according to their wishes.
On 5 July 2021, the matter came before the Court for final hearing but was ultimately adjourned to 13 July 2021 for the filing of further evidence from, amongst others, Ms R, who is a Family Therapist who had seen the parties and the children.
The Final Hearing
The matter returned before the Court on 13 July 2021, and was heard across the course of three days, with each party having Counsel appear on their behalf. On the second day of the final hearing, the Independent Children’s Lawyer made an oral interim application for a change of residence of the children. Whilst no specific submissions (written or otherwise) were made at the time the Independent Children’s Lawyer’s application was made, it seemed that the Mother supported the application and the Father opposed it, presumably wanting the current parenting arrangements to remain in full force and effect until final orders were made.
In respect of that application, on the third day of the final hearing, the Mother provided to the Court a proposed minute of interim parenting orders, which included, inter alia, a change of residence for the children, a change of schools for the children, for the Father to spend no time with the children for a four-month period and for the Father to be able to communicate with the children after a period of three weeks. It was proposed that the matter would then return to Court for a further final hearing.
In the course of discussions between the Court and the bar table, the interim application fell away and Counsel for the Mother ultimately sought final orders be made. Closing submissions were made by all parties on the basis that the orders sought by the Mother were on a final basis. Due to the nature of the matter, as set out below, at the conclusion of the third day of the final hearing, orders were made as follows:
UPON APPLICATION MADE TO THE COURT by Dr R Alexander of Counsel for the applicant, Mr D McGann of Counsel for the Respondent and Ms A O’Connell of Counsel for the Independent Children’s Lawyer, AND UPON THE UNDERTAKING given by the Paternal Uncle – MR S of [address] in Victoria to:
Remain in substantial attendance with the children X born in 2008 and Y born in 2010 this evening and overnight until the children are delivered to Ms T on 16 July 2021.
THE COURT ORDERS THAT:
1. The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 16 July 2021 at 11.15am in person in Court 2J (Level 2), for delivery of Judgment in the above matter.
2. The Paternal Step-Grandmother – MS T deliver the children X born in 2008 and Y born in 2010 (“the children”) to the Child Minding Services on Level 5, at the Federal Circuit Court of Australia at Melbourne by 11.00am on Friday, 16 July 2021, with the children to remain in the Child Minding Services until further order of this Court.
3. The Paternal Step-Grandmother is granted permission by the Court to transport the children to the Court premises at 305 William Street, Melbourne during the present lock down in Victoria.
4. The Father be restrained from discussing these orders and the subject of these proceedings with the children.
5. The Father do all acts and things necessary to provide some of the children’s clothes, their books, school items, mobile phones and personal belongings to Ms T on 16 July 2021, which are to be brought with the children to the Federal Circuit Court of Australia at Melbourne, pursuant to order 2 herein.
6. The paternal uncle – Mr S be in substantial attendance with the father and the children at his home from today, 15 July 2021 until the children are delivered to the Paternal Step-Grandmother in the morning on 16 July 2021.
The following day, oral reasons for judgment were delivered. These are those reasons. On the basis of the reasons that were delivered, orders were made as set out herein, which are substantially in the terms sought by the Independent Children’s Lawyer, save for parental responsibility.
ORDERS SOUGHT
The Mother’s Proposed Orders
As set out above, by way of a minute of proposed final orders provided to the Court on 16 July 2021, the Mother relevantly sought orders as follows:
(1)the Mother have sole parental responsibility for the children;
(2)the children live with the Mother;
(3)after a period of three weeks in the Mother’s care, the children communicate with the Father by telephone each Monday and Friday between 5.30pm and 6.00pm commencing 2 August 2021;
(4)from the date that the children return to live with the Mother for a period of four months the children spend no face-to-face time with the Father;
(5)after a period of four months and upon confirmation of the Father’s engagement with a qualified psychologist or psychiatrist the children spend face-to-face supervised time with the Father as can be accommodated by a professional supervised contact service within a 20 kilometres radius of the Mother’s residence and the Father to be responsible for all associated costs and following ten sessions of supervised time the Father to obtain a report from that contact service and provide a copy of the same to the Mother;
(6)providing that no risk to the children is identified in either the supervised contact service report or in the psychological or psychiatric assessment, the children spend time with the Father as follows:
(a)for a period of two months:
(i)each alternate Saturday from 10.00am until 5.00pm with changeover taking place inside Suburb F Police Station;
(b)thereafter:
(i)during school term each alternate weekend from 6.00pm on Friday until 3.00pm on Sunday with changeover taking place inside Suburb C Police Station;
(ii)half of school term holidays as agreed and failing agreement from 3.00pm on the middle Saturday to 3.00pm on the following Saturday with changeover taking place inside Suburb C Police Station;
(iii)for two non-consecutive one-week blocks in long summer school holidays on dates to be agreed;
(7)Y be forthwith enrolled to attend at the Mother’s local primary school; and
(8)X be enrolled to attend the Mother’s local primary school until he is able to be enrolled at the J School for Autism, at which he will subsequently attend.
The Father’s Proposed Orders
As set out above, by way of his amended response filed on 1 July 2021, the Father sought final parenting orders as follows:
(1)the Father have sole parental responsibility for the children in respect of the children’s health and education, and for the children live with the Father.
(2)the Mother communicate with the children by telephone or other electronic means from 5.30pm to 6.00pm, including:
(a)the second Sunday of each month;
(b)the Mother’s Birthday;
(c)Easter Sunday;
(d)Mother’s Day;
(e)Christmas Day;
(f)at other time as the children choose; and
(3)the Mother spend time with the children according to their wishes.
In giving evidence during the final hearing, the Father stated that he wants the children to continue to live with him in the immediate future and to spend limited time with the Mother, which is to gradually increase to a week-about arrangement (based on the recommendations of professionals who treat/assess the children) and for the children to continue to going to school in the Town B area (noting that the Mother lives in Suburb F, approximately 180 kilometres away). When questioned by Counsel for the Mother and the Bench as to why those terms were not set out in the Father’s amended response, the Father said words to the effect of “I did not express myself very well” (presumably to his legal representatives who assisted in the preparation of his amended response) and that the terms of his proposed orders, as set out in the amended response, were not precise and did not reflect his exact wishes as to future parenting arrangements.
At the request of the Court, a proposed minute of final orders sought by the Father was tendered during the course of the final hearing (see exhibit R1). By that proposed minute, the Father seeks final parenting orders as follows:
(1)the Father have sole parental responsibility for the children, subject to the condition that in relation to the children’s education and health decisions:
(a)the Father would contact the Mother in writing to provide his views about such an issue and consult with the Mother about that issue,
(b)the Mother and Father would make a genuine effort to come to a joint decision about that issue;
(c)if no agreement was reached between the parties within 14 days, the Father would then make a final decision and advise the Mother in writing about the decision;
(2)the children live with Father;
(3)the Mother spend time with the children:
(a)for a period of two months commencing on 17 July 2021, each Saturday from 10.00am until 3.00pm, and that spend time occur within 10 kilometres of Town B McDonalds,
(b)if Ms R assesses the children are ready to proceed with more substantial time after the initial two-month period then:
(i)commencing on 25 September 2021, in Week 1 the Mother spend time with the children each alternate weekend on Saturday from 10.00am until 3.00pm and in Week 2, on Sunday, from 10.00am until 3.00pm;
(ii)commencing 23 October 2021, each alternate weekend, from 10.00am on Saturday until 3.00pm on Sunday;
(iii)for half of each school holiday period commencing in the summer school holiday period of 2021/2022 as agreed, and failing agreement, the first half; and
(c)on various special occasions, for a minimum of four hours, at times to be agreed; and
(d)the parties and the children continue to attend upon Ms R or such other counsellor as agreed in writing for family therapy as often and for a period of as directed by Ms R or other counsellor the parties attend on.
In oral submissions, Counsel for the Father also indicated that the Father was prepared to take steps to engage with a psychologist or a counsellor to assist him, which did not form part of the proposed minute of orders handed up, but I acknowledge was part of his proposal.
The Independent Children’s Lawyer’s Proposed Orders
During the course of making submissions at the final hearing, Counsel for the Independent Children’s Lawyer voiced support for the Mother’s application for final orders. By way of a minute of proposed final orders provided to the Court on the morning of 16 July 2021, the Independent Children’s Lawyer relevantly sought final orders similar to that sought by the Mother, but with some variation as to spend time arrangements, the supervision of that spend time and the length of the moratorium on the Father communicating and spending time with the children. The relevant orders sought are as follows:
(1)the Mother have sole parental responsibility for the children;
(2)the children live with the Mother;
(3)after a period of three weeks in the Mother’s care the children communicate with the Father by telephone each Monday and Friday between 5:30pm and 6:00pm commencing Friday 2 August 2021;
(4)after a period of eight weeks from the date of these orders and upon confirmation of the Father’s engagement with a psychologist / counsellor, the children spend time with the Father as follows:
(a)for a period of 8 weeks:
(i)each alternate Saturday from 10.00am until 5.00pm;
(b)thereafter:
(i)during school term each alternate weekend from 6.00pm Friday until 3:00pm Sunday;
(ii)half of school term holidays as agreed and failing agreement from 3.00pm on the middle Saturday to 3.00pm on the following Saturday;
(iii)for two non-consecutive one-week blocks in long summer school holidays on dates to be agreed
(5)Y be forthwith enrolled to attend at the local primary school in the area where the Moms lives; and
(6)X be enrolled to attend the Mother’s local primary school until he is able to be enrolled at the J School for Autism, at which he will subsequently attend.
EVIDENCE
The Mother’s Evidence
The Mother gave evidence at the final hearing, relying primarily on her trial affidavit filed on 9 June 2021. She also relied on an affidavit filed on 17 February 2021.
I note at the outset that one of the difficulties in this case is that both parties, in some ways, have minimised certain aspects of their evidence which has created issues.
The Mother gives evidence of the history of her relationship in brief terms in her affidavit filed on 17 February 2021. By that affidavit she deposes that there were some difficulties in the spend time with arrangements between the children and the Father following separation. At that time, the Father was, in effect, working four weeks on and one week off, in which he would spend time with the children. The Mother deposes that the children would return from that spend time and would be upset and unsettled.
In respect of the June 2019 incident, the Mother states at [15] – [17] of her affidavit:
15. On 19 June 2019 My ex-partner, Mr U, assaulted me and I was admitted to hospital overnight. The Children stayed with me at the hospital. The Father came to the hospital but the Children, especially X, said words to the effect, that he did not want the Father there.
16. On Thursday 27 June 2019, I was delayed picking the Children up from School, which is out of character for me. The School had attempted to call me to pick the children up. When they could not reach me, they called the Father. The Father picked the Children up from school, but he did not take them to school the following day, which was a school day.
17. That I acknowledge that the incident which occurred between my former partner Mr U and I was serious and I was struggling to understand the family violence that I was being subjected to.
In my view, the Mother has minimised the incident described in those paragraphs and that, to some extent, forms the basis of the ongoing struggle which has played out over a three-day hearing between the parties. What the Mother said about what happened on 27 June 2019 is completely at odds with the reports of what occurred on that day, and in particular, the reports from the DFFH/DHHS relating to that date. As is helpfully summarised in the s11F memorandum dated 15 November 2019 at [8] – [11], the circumstances of what occurred is reported as follows:
8. One report proceeded to protective intervention and was investigated by the Department between June and June 2019 due to concerns for the children’s welfare and safety due to family violence in the home and substance use. The report detailed a serious family violence incident by Mr U towards Ms Bevins whereby he had hit her on the head causing her to be unconscious and proceeded to further assault her by pushing her to the ground and stomping on her chest. When Ms Bevins was interviewed initially she had agreed to work with services and no other immediate concerns were identified and was placed in emergency accommodation with the children.
9. However during the investigation a further report was made whereby a further assault had occurred between Ms Bevins and Mr U and that upon speaking to Ms Bevins she appeared to blame Mr Bevins as he had obtained an IVO against Mr U at that time. The information indicated that although Ms Bevins had advised DHHS that she no longer had contact with Mr U, the department were made aware of an incident on 27 June 2019 whereby the children were not collected by her from school. Subsequently the children were placed in the care of Mr Bevins. Police then attended Mr U’s home and found Ms Bevins hiding naked there and they had sighted methamphetamine pipes and believed Ms Bevins was under the influence of substances. Ms Bevins had told DHHS that she had wanted to reunite with Mr U and have a baby with him. No concerns were identified for the children in Mr Bevins care and Mr U was assessed as a person responsible for harm.
10. Ms Bevins maintained that she had attended Mr U’s home on that day and that she had consumed alcohol and was ‘traumatised’ and ‘stressed.’ She stated she attended his home as she wanted answers as to why he had assaulted her. (Contrary to DHHS information). Ms Bevins stated that Mr U made her hide under the bed due to the IVO being in place. She stated that she regretted going there in hindsight. Ms Bevins denied she had taken any substances although Mr U was using ICE at the time.
On that basis, the Mother, in effect, fails to say in her affidavit that she:
(1)returned to the house where she had been seriously assaulted by her former partner, an incident which was witnessed by the children;
(2)was either drunk or intoxicated by drugs at that time (DHHS suggested that she was affected by substances); and
(3)made a comment to the DHHS workers and the police who attended the property that she wanted to have a child with the former partner.
One wonders what direction this case might have taken had if the Mother had been more frank in her account of those events in her affidavit material. Notwithstanding that observation, there is no evidence to suggest that the Mother was responsible for the events that occurred on 19 June 2019.
However, this matter has got to the stage where the Father is fixating on those particular events and is ignoring the significant body of evidence that is before the Court, which establishes, amongst other things, that the Mother has not, and has never been, a drug addict. There was no cross-examination of the Mother to the effect that she was or had been a drug addict, and that is to the credit of Counsel for the Father, because to do so would have been to pursue a line of questioning for which there was no basis. The Mother has provided numerous drug screens to show that she is not a user of illicit substances. She also gave frank and credible evidence before the Court in relation to the June 2019 incident that:
(1)she had known the former partner for a significant period of time, as his family were family friends with her family and she had grown up with him;
(2)she had not known of the former partner’s capacity for violence or his capacity to mistreat her;
(3)it was a horrifying situation for her to be in, where, in effect, she became completely disempowered and was violently assaulted;
(4)she originally entered into the arrangement with the former partner not long after a long-term relationship had ceased; and
(5)as far as she was concerned, the former partner’s conduct, and the way he started behaving a short time after she had moved in with him, was completely out of character.
The Mother gave evidence to the effect that she still struggles to come to terms with what happened with the former partner and why it happened, and that may, in part, explain why she returned to his residence on 27 June 2019. I accept her evidence in that regard.
It is understandable that the Father was concerned for the children, as they were put in a difficult and potentially dangerous situation from the time they commenced living with the Mother and the former partner. The Father may feel that he did not protect the children at a time when they needed protection and he certainly believes that the Mother did not do enough to protect the children at that time. However, this matter has got to the stage where the Mother is, in effect, being blamed for being the victim of significant violence. As set out above, the Mother’s interests have not been served by the form of the affidavit that was filed setting out her account of those events. It would have better for her purposes to give a full and frank account of what occurred in her affidavit, including the detail she gave in her oral evidence, which was more in line with the narrative set out in the DHHS/DFFH material (as summarised in the s11F memorandum).
The Mother’s position, as set out in her affidavit evidence, is that the Father has systematically failed to cooperate with the operation of Court orders that have been made throughout these proceedings and where some of those orders have been made by consent. For example, in her affidavit filed on 17 February 2021, the Mother deposes to events where arrangements were made for her to spend time with the children over the 2020 Christmas period, in a setting which was in a public area and to be supervised by the Father, but the Father would unilaterally cancel those arrangements. There is evidence that the Father would insist on conditions which were never discussed and not included in Court orders, and the Mother would persist in seeking to see the children, and was consistently rebuffed in curt terms by the Father. I will not set out those matters, as they are set out in copious detail in the annexures to the Mother’s affidavit.
The Mother also makes reference to the Father being frequently late to attend with the children at changeovers, and there were times where the Father simply refused to provide the children for changeover. For example, by way of the Mother’s affidavit filed on 3 June 2021, the Mother deposes to an incident at changeover that occurred on 19 March 2021, whereby the Mother arrived at 4.55pm and the Father arrived at 5.30pm (despite orders of the Court made on 2 March 2021 for changeover to occur at 5.00pm). The Mother goes on to say at [24] – [29] of her affidavit:
24. That when I asked whether the children were ok and whether something had happened X responded “I can’t tell you but dad knows” and Y responded “I don’t want to go because I’m tired”.
25. That I remained at the McDonalds in case there was a change in circumstances and the Father repeatedly approached me in my car and harassed me.
26. The Father initially maintained that the children did not want to go which then changed and stated that I should drive alone and he would follow me with the children to my house.
27. This made me extremely uncomfortable and I did not want the Father to attend my home.
28. That at 7:04pm X got into my car and yelled that “the only reason I’m here is because I dam forced to and if I don’t I’ll be forced by the Court to live with you full time and not see dad. I don’t have a choice and my hands are tied”.
Y became upset and as I was comforting her X left the car and went back to the Father who then left McDonalds with both children.
By way an affidavit filed on 9 July 2021, the Mother sets out a further incident that occurred on 4 June 2021 as follows:
3. That in accordance with the Interim Orders filed by consent on 2nd March 2021, Order Paragraph 3(b) provides that the children are to spend alternate weekends with me from Friday from 5.00pm to Sunday at 4.00pm.
That on Friday 4 June 2021 changeover occurred at the Suburb V Police Station and the Police on duty became involved.
5. That I had requested that changeover take place at the Suburb V Police Station and the Respondent Father had agreed to the Suburb V Police Station being an appropriate venue.
6. That the children were dropped off by the Respondent inside the Police Station with myself and my partner.
7. That the Respondent Father was locked out of the station by the Police and requested to leave.
8. That the Police called for an ambulance but the children were not treated. The Father kept texting X. The Father pretended to leave and hid in the bushes. When I and the children exited the Police Station the Father emerged from hiding and the children saw him and left with him. The Police were not able to enforce the Order.
9. That the children were at the Police Station for several hours and I believe that the children were extremely distressed.
The Mother goes on at [11] – [14]:
11. That the Police Sergeant on duty had been required to call an ambulance for X because he was in such a bad state
12. That the Police locked the doors at the Station to prevent the Father from entering whilst I was inside trying to calm the children down
13. That the Police made several requests that the Father leave and go home however the Father refused and continued to linger around the station.
14. That the Police officers on duty assisted in any way that they could however, they indicated that they were unable to enforce the Court Order.
In his evidence, which I will turn to in due course, the Father denies the Mother’s version of events in respect of the 4 June changeover and, in essence, says that he left the immediate area, in that he was out of sight of the police station where changeover occurred. However, in the course of the final hearing, the Father gave oral evidence that he could still hear everything that was going on in a police station behind locked doors (for example, he could hear X becoming distressed and screaming) when he was sitting some distance away in a car. No matter the version of events, this incident was evidently a highly distressing experience for the children, and not one that children should go through.
The Mother also gave evidence in respect of an incident on 18 June 2021. For context, orders were made by the Court on 16 June 2021, restraining the Father from attending the children’s school at the conclusion of the school day on 18 June 2021. However the Father ultimately attended the school and took the children home, and the Mother was unable to spend time with the children pursuant to orders of the Court. At [17] – [20] of the affidavit filed on 9 July 2021, the Mother states:
17. That the Father attended X’s school at 3.50pm on Friday 18th June 2021 and picked him up. The Father was observed by Y’s school principal driving laps past the primary school entrance and it is my understanding that the Police were subsequently called.
18. That I understand that the Police at Town B were called by the Principal at G Primary.
19. That the Respondent drove to a bus shelter and X subsequently got into his car.
The Father then drove to Y’s school and attempted to collect. The Town B Police spoke with Y, the Mother and Partner as well as the Primary school principal to inspect the Court Orders. Police then requested we attend the Station. Y remained at the school and the Father subsequently dropped X off at home.
20. That we all attended the Police Station and the Sergeant told us she would be keeping the father in a locked room while we went back to the school to collect Y. Officer W attended the school with us and he spoke with Y and recommended that she come home with me and reassured her she was safe to do so, however the Police indicated that they were unable to enforce the Orders. When Y was told that her Father would be coming to collect her, she was affectionate giving me and my Partner hugs in the presence of the school Principal and staff.
The Mother sets out in detail a further incident that occurred on 25 June 2021, in the context of Court orders made on 16 June 2021 which compelled the Father to have the children attend school on that day. The Mother deposes that, in fact, neither of the children attended school on that day and she subsequently spoke to staff at each of the children’s schools, and the Principal of Y’s school telephoned Child Protection and Victoria Police. Child Protection called the Father and informed him that he needed to bring the children to Y’s school. The Father attended the school with the children, and Child Protection spoke to him. The Mother deposes that neither Child Protection nor Victoria Police were in a position to enforce the orders and the Father subsequently left the school with both children, in contravention of Court orders. I also note that the Mother says at [22] that:
22. […] Outside the school both children were affectionate and loving toward me and my partner whilst out of view of the Father. When the children saw the Father, they were startled and appeared scared that the Father had seen the children showing love toward me and my partner. This was witnessed by Y’s Principal, Child Protection and Police.
The Mother’s account of events is, in effect, echoed in Child Protection’s report dated 1 July 2021 and in Victoria Police notes which were referred to in cross-examination of the Father by Counsel for the Mother.
I also note that the Mother’s evidence is replete with examples of the children using adult language to the Mother which mirrors the type of language the Father has sent in text messages to the Mother. For example, one expression is:
You are not being transparent with me. This is systems abuse.
That kind of language, which the Mother alleges the kids have said to her, is not the language of children who are 10 years old and 12 years old.
On that basis, the Mother says that she is in a position where she complied with Court orders (including the provision of clean drug screens), but the Father has not complied with Court orders, some of which were made by consent. The Mother says that she has not spent time with the children since on or about 24 April 2021. I find that, on the evidence, the Father has not cooperated with the Court orders that have been made in this matter prior to the final hearing.
The Mother also raises issues in respect of the Father’s capacity to adequately and appropriately care for the children, in particular, in relation to the children’s education. The Mother gave evidence of the fact that neither of the children are attending school as required and there is significant absenteeism of both children: see, for example, exhibits A5 and A7.
Of particular concern is the Father’s unilateral decision, which was made shortly after the Court event on 5 July 2021, that X would only attend school for two half days per week, which he informed the Mother of by text message. The Mother did not wish that to occur, and made clear to the Father that, in her view, the children should be attending school. When I raised with the Father in Court during the course of the final hearing that there is an Act of Parliament which governs the attendance of children at school, and that, in fact, it is an offence for parents not to have their children attend school without a permitted excuse (see Education and Training Reform Act 2006 (Vic), Part 2.1), he seemed to be surprised by this fact, and I am, in turn, surprised by his reaction. It is not credible to me that a person, let alone a parent, would not know that children have to attended school in the gazetted periods when school is being held, unless there are specific reasons for not doing so. The Mother has also tendered the children’s school reports from this year (see exhibits A6 and A8) and neither of the children are doing well at school.
By way of her affidavit filed on 9 June 2021, the Mother provides a highly detailed Developmental Assessment Report of X dated 30 April 2014 which is in relation to his autism. There was a battery of tests performed on X and the assessment team who conducted the assessment are clearly experts. I note the comment on page 15 of the report that:
X fell in the extremely low range for majority of the skill areas, except for Functional Academics where he scored average and Leisure where he scored borderline. X’s overall adaptive behaviour can be characterised as lower functioning than is typical for his age.
The report also identified some of X’s biggest challenges, which included:
•Communication: including listening, starting and ending conversations, not-interrupting others and nonverbal communication.
•Home living: including cleaning up, doing chores, organizing own belongings.
•Health and safety: including following safety rules, taking caution when needed, avoiding danger and asking for help.
•Self-care: including being able to bath, brush his teeth, dress, groom or keep basic hygiene independently.
•Self-direction: including making choices, starting and completing tasks, following routine and following direction.
•Social: making and keep friends, showing and recognising emotions and social affection.
While I appreciate that this assessment is from 2014, the report concludes that:
In summary, X needs more practice to build his daily living skills and is not able to complete many tasks at a level that is typical for his age.
That report was prepared in circumstances where X was being home-schooled. X has subsequently gone into the mainstream education system, but he does not have a teacher’s aide and there was no detailed evidence given by the Father about his particular needs or the steps that the Father has taken in order to access assistance that he might obtain. As I said during the course of the final hearing, it was heartbreaking to read the both of the children’s school reports, but in particular, that of X.
Mr N’s Evidence
The Mother’s partner, Mr N, gave evidence at the final hearing, relying on his affidavits filed on 11 June 2021 and 9 July 2021.
Mr N presented as a sensible person who was sensitive the complexities of the situation that he has found himself in. He gave evidence that he has been in a relationship with the Mother for approximately 10 months and that he is self-employed in the business. He also gave evidence that it was not practicable for that business to relocate to the Region Z or the Region AA area due to operational set up of the business and the local customer base from which he receives most of his work. I accept that evidence.
He also made plain by his evidence that he was aware of both the Mother’s and X’s health issues. Mr N has no criminal history and there is no evidence that he is or has been a perpetrator of family violence. He gave his evidence in a measured way and it was apparent that he is aware of the sensitivities involved in negotiating arrangements regarding the children between the parties.
Mr N also gave evidence that his brother is a primary school teacher in the local area where he and the Mother live, and his brother would be available to assist in relation to the children’s education if needed.
The Father’s Evidence
The Father gave evidence at the final hearing, relying primarily on his trial affidavit filed on
1 July 2021. He also relied on his affidavits filed on 5 February 2021 and 12 July 2021. As is the case with the Mother, the Father has filed a significant amount of material, and I will not refer to all of it.
The Father expressed concerns in his material about the Mother’s mental health and alleged drug use, but those matters were rightly not pursued by Counsel at the final hearing, as set out above.
The Father’s principle position is that he wishes for the spend time arrangements with the Mother to occur, but that he has real concerns for the safety of the children whilst they are in the Mother’s care. A theme of the Father’s evidence is that he is highly aware it is important for the children to have a relationship with each of the parents, but ultimately, he is concerned about their safety.
In respect of the children’s education, I note that X did not attend on the first day of school of Year Seven at his new school. As at June 2021, there are 29 uncompleted tasks that X had been given and that he would appear to have being absent from school approximately half of the gazetted school period this year. Similarly, Y was regularly absent from school. In that context, by way of his trial affidavit filed on 1 July 2021, the Father states at [24] – [29] that:
24. In particular X has had difficulties adjusting to Year Seven. With the supports currently in place for him including the implementation of an individual education program, attending Occupational Therapist, Speech Pathologist, Psychologist and being assessed for ADD / ADHD, I am focusing on getting the fundamental right, so that he can then start to gain confidence in himself. I have kept Ms Bevins [the Mother] up to date on this.
25. X is excited that his best friends, [name], [name] and [name] are all now attending the same school with him together.
26. Ms Bevins has been withholding X’s laptop, with which he is unable to complete his class work without. I have repeatedly offer to meet Ms Bevins to collect it, but she has not responded to these requests.
27. Accordingly, a specific Court Order was made on 16 June 2021 primarily for the school bag and laptop to travel with X. Ms Bevins has failed to comply with this Order.
28. I say that if the children have days off from school, it is only ever when they are displaying flu-like symptoms, or when there is a consideration for them having COVID like symptoms. Given that X does not have his Laptop, he is currently unable to attend school He is about to school work from home on our family computer.
29. I say that for the most part X and Y’s remote learning prior to separation was assisted by Mr P.
That evidence simply does not accord with the body of evidence before the Court, and the Father, in cross-examination, was taken to email exchanges from X’s school which made it plain that if he did not have a laptop, that the school would make one available for him. The Father’s evidence is also in contradistinction to a decision, which he made approximately seven days after swearing his affidavit of 1 July 2021, that X would only be attending school for two half days per week. Even in the course of the final hearing, the children’s attendance at school was limited and sporadic, and it seemed that on each day of the final hearing, the children only attended school for a period of up to two hours. On that basis, the Father says that, in effect, he has the children’s schooling, as well as other matters, under control. However, in my view, the situation is manifestly not under control. I do not raise that as a personal attack against the Father, it is simply a fact of the matter that the Father is not coping with the care of the children and taking care of their needs, and a course of action must be taken so that the children’s best interests are looked after.
Mr S’s Evidence
Mr S, the Paternal Uncle, gave evidence at the final hearing relying on his affidavit filed on 1 July 2021. He was called to give evidence by the Father.
By his affidavit, Mr Bevins set out that he works as a public servant in Town BB. Mr Bevins’ gives brief evidence that the Father has a positive relationship with the children. He says that, from his observations, the children are responding well with the Father as the primary carer, and that the Father is able to provide them with the care they need. Mr Bevins supports the Father seeking sole care of the children.
In giving evidence at the final hearing and to his great credit, Mr Bevins volunteered to assist the Father with the children on the last night of the final hearing, and I refer to the undertaking that he gave to the Court. Mr Bevins presented as a very sensible person. However, in hearing his oral evidence, I did not get the sense that he had a particularly close relationship with the Father or an especially close relationship with the children. Further, he did not provide any particular insight or evidence in relation to the primary issues in this matter, being the medical and educational needs of the children, the fractious and negative relationship between the parties and why the children are not spending time with the Mother.
This is not a relevant consideration in this matter.
s60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to that child;
In the course of the final hearing, as set out above, it was raised as to whether this might be an appropriate case for interim orders. However, I am of the view that this is a case where final orders should be made and not orders that automatically require the matter to come back to Court. The parties, and in particular the children, are exhausted by this process. The children have seen enough professional and medical practitioners for Court related matters, and by reason of the orders that are, in effect, proposed by all parties (at least in part), there will be ongoing involvement for these children with professionals, including, but likely not limited to, educationalists, paediatricians and psychologists. That involvement should occur outside of the Court process and in a proper therapeutic environment rather than in a court setting where some of the involvement would likely be for the purpose of gathering evidence rather than helping the children.
s60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.
I have discussed the circumstances that are relevant to this matter.
CONCLUSION
For these reasons, I will make orders in the terms primarily sought by the Independent Children’s Lawyer, save for the issue of parental responsibility.
I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 5 August 2021
Key Legal Topics
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Family Law
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Injunction
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Procedural Fairness
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