Blatch & Blatch (No 3)
[2022] FedCFamC1F 492
•11 July 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Blatch & Blatch (No 3) [2022] FedCFamC1F 492
File number(s): SYC 1613 of 2021 Judgment of: SCHONELL J Date of judgment: 11 July 2022 Catchwords: FAMILY LAW – CHILDREN – RECOVERY ORDER – Where the children were spending time with the father in accordance with interim orders – Where the father unilaterally decided to retain the children in breach of court orders – Where it was determined that it is in the children’s best interests that they be returned to the mother’s care – Recovery order made – Recovery order stayed until 4.00 pm to give the father the opportunity to return the children without police involvement. Legislation: Family Law Act 1975 (Cth) ss 60CC, 67Q, 67U, 67V, 69ZL Cases cited: Blatch & Blatch [2021] FedCFamC1F 219
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Division: Division 1 First Instance Number of paragraphs: 51 Date of hearing: 11 July 2022 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Ms Lawson Solicitor for the Respondent: Lander & Rogers Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates ORDERS
SYC 1613 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BLATCH
Applicant
AND: MS BLATCH
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
11 JULY 2022
THE COURT ORDERS THAT:
1.All times for service be abridged to allow this Application in a Proceeding to be heard by this Honourable Court as a matter of urgency.
2.Pursuant to s 67Q of the Family Law Act 1975 (Cth) a recovery order issue authorising and directing the Marshall, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and necessary by force, find and recover the children, X born in 2010 and Y born in 2012 (“the children”) and deliver the said children to the mother, being a person entitled to have the said children with her pursuant to this order SAVE that the order lie in the Registry until 4 pm 11 July 2022.
3.The father be restrained by injunction from:
3.1 removing or causing the children, or either of them, to be removed from the mother’s care except in accordance with orders made on 30 November 2021; and
3.2 discussing parenting arrangements or the nature of this dispute with the children or either of them.
4.The recovery order remains in force for a period of 12 months from this date.
5.In relation to the mother’s application for costs on an indemnity basis:
5.1.the mother is to file and serve written submissions as to costs within 14 days limited to 10 pages; and
5.2.the father is to file and serve written submissions in reply within 14 days thereafter, limited to 10 pages.
I will reserve my decision on the Application for Costs to chambers after the filing of written submissions and will determine it on the papers.
6.This matter is listed at 4.00 pm on 13 July 2022 for mention before me for the purposes of allocation of hearing dates.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blatch & Blatch has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
By Application in a Proceeding filed 5 July 2022, the mother seeks a recovery order in relation to the parties two children, namely, X born in 2010 and Y born in 2012.
On 5 July 2022, a registrar of the Court made orders directing that the matter be listed for hearing before me at 10.00 am on Monday 11 July 2022, directing the mother to serve her Application and supporting affidavit, and directing the father to file and serve any Response and affidavit to the mother’s Application by noon on Friday 8 July 2022.
Each of the mother and father were directed to file and serve a Case Outline in relation to the Application and Response by 4.00 pm on 8 July 2022. The father did not comply with the orders made by a deputy registrar on 5 July 2022, in that he did not file and serve by noon on Friday 8 July 2022 a Response or affidavit, nor did he file and serve in accordance with the directions by 4.00 pm a Case Outline.
The father appeared before the Court this morning and advised that he has filed on the Court portal an application and affidavit, albeit later than the time as directed. He agreed that he had not served the mother or the Independent Children’s Lawyer (“the ICL”) with the documents. A search of the portal by my associate does not reveal the existence of such documents. When advised of this and whether he wanted to provide such documents, he indicated he would rely on his Case Outline.
On 8 July 2022 at 11.47 am, the father forwarded an email to the Court and to the solicitor for the mother. The email carried the subject heading “Request for Extra Time”. The email referenced a number of matters including the following:
Dear Associate,
I can appreciate Recovery hearings are provided urgent status however I consider this case deserves the extension of time to ensure that the childrens best interests are served.
…
I am seeking agreement for an adjournment, until a future date for this case to be heard. I do not believe there is urgent status and such urgent status provides me little time to present my case in the best interests of the children.
…
(As per the original)
It then referred to another paragraph about his mother arriving from Queensland.
The father by email at 4.18 am today forwarded a Case Outline.
The father also raised the issue of a conflict of interest in relation to the mother’s counsel. That counsel did not appear and the mother was represented by alternate counsel. Without determining the merits of the Application, I indicated that I would not read the Case Outline prepared by the mother’s counsel.
The application arises in the context of orders made by Campton J on 30 November 2021, which provide for the children to live with their mother and spend time with their father each alternate Sunday from 9.30 am until 5.00 pm. His Honour’s orders also made provision for the appointment of Mr J as a single expert witness to prepare a report to assist the Court in relation to the proceedings involving the children.
The mother relies upon the following documents:
(1)Application in a Proceeding filed 5 July 2022;
(2)Affidavit sworn 5 July 2022; and
(3)A Tender Bundle.
As I indicated, the father has not filed any affidavit material. I have read his Case Outline and the various emails he sought to tender.
In support of the Application, I have read also the judgment of Campton J delivered 30 November 2021 and the Family Report of Mr J dated 4 April 2022.
Background facts
In Blatch & Blatch [2021] FedCFamC1F 219, Campton J referred at some length to the background facts relevant he determined to the making of interim parenting orders in November 2021. In particular, I note the following from his Honour’s judgment:
36The father initiated parenting proceedings on 8 March 2021. The mother by way of her Response filed on 9 April 2021 sought different orders as to the parenting of the children and orders of a financial character, including by way of period and non-periodic Child Support Departure.
37The parties commenced cohabitation in 2003, married in 2005 and separated within the home at the Suburb K Property between April 2018 (on the father’s evidence) and November 2018 (on the mother’s evidence). The mother and the children vacated the home on 2 December 2018. An Order for Divorce was made on 21 September 2020.
38The mother gives evidence that the father engaged in a pattern of family violence over the course of the relationship including occasioning physical and verbal abuse towards her, monitoring her phone history, and withholding her car keys and phone for periods of time. The mother provides examples of the father throwing or threatening to throw objects at her on at least two occasions, including a bottle opener and her mobile phone. She also alleges that the father wielded his superior financial position to leverage control over her, by restricting her access to funds and by rebuking her for expending monies on, for example, the doctor. The mother gives an evidence as to an occasion when she requested the father not attend a planned holiday with her family, and subsequently receiving a text message from the father stating “make sure your half of the mortgage is there or when you go I will change the locks”.
39The mother alleges that on occasions the father’s conduct occurred in the presence of the children.
40The father directly puts in issue the fact and contents of these allegations. He apportions fault for conflict in the presence of the children to the mother.
41The mother gives evidence as to an exchange between the parties on 2 December 2018. She asserts that on this date and in the presence of the children, the father became verbally abusive towards her while the parties were preparing dinner at their home. She deposes to the father demanding repeatedly that she leave the home, and to him taking her mobile phone and car and house keys. Upon the mother demanding the return of the phone, she deposes to the father “propelling [her] up” and she then falling horizontally straight onto her back, causing her severe pain. She says that she then left the home and reported the incident to police.
42The father’s version of 2 December 2018 is that the parties engaged in an argument, during which he perceived the mother to grab her phone. He says that he was concerned she would begin filming him. He alleges she has done so in the past. The father took the mother’s phone. He denies instigating any form of physical contact with the mother, but rather deposes to the mother pushing him against a wall and grabbing at him in an attempt to retrieve her phone. He says that her doing so caused him “sharp pain” in his ankle. In response to the pain, the father says that he “pushed [the mother] off [him] with [his] left arm”. He agrees that the mother ended up on her bottom on the floor. He did not report her being visibly distressed.
43It is uncontroversial that the children were present during the exchange at the home on 2 December 2018, and that their experience of the exchange was adverse to their best interests.
44The impact on the children of being present and experiencing significant conflict between their parents is yet to be explored or opined by way of any expert evidence.
45The father was charged with a criminal offence of common assault arising from the exchange on 2 December 2018. An Apprehended Violence complaint made by the police on behalf of the mother grounded orders restricting prohibiting the father’s conduct directed to the mother and his contact with her.
46After the mother and the children vacated the Suburb K Property on 2 December 2018 they commenced to reside with the mother’s parents. They have now lived with the maternal grandparents for nearly three years.
47Following the exchanges on 2 December 2018 it is uncontroversial the children spent very limited time with the father. Some limited contact did occur at school or sporting events until the commencement of supervised time on 4 July 2021. Each party blames the other for this limited time spent from late 2018 until mid-2021. The affidavit evidence records a series of exchanges between parties and/or their solicitors as to arrangements for time to be spent over this period. Each set of exchanges progressed and then broke down or failed to crystalise. The cause of these failures cannot be determined in an interim hearing.
48The father was convicted in the Local Court in late 2019 of one count of common assault. An Apprehended Violence Order made restricting and prohibiting the father’s conduct was made for a period of two years.
49On appeal the District Court quashed the conviction and discharged the Apprehended Violence Order.
50The mother gave evidence in her Affidavit as to a continuing pattern of calculated controlling, harassing and what she contended to be inappropriate behaviour by the father from 2 December 2018 until the District Court determinations on 15 October 2020. This evidence includes the father following her home in the car on at least two occasions, loitering in his car around the children’s school and attending the mother’s home without notice or invitation and refusing to leave when asked. The mother gives evidence that on two occasions she was required to call the police to assist with the father’s removal from outside her home, although she says that on each occasion he left of his own volition before police ultimately attended.
51The mother gives evidence that the father frequently engaged in intimidating behaviour at the children’s Saturday sporting events. She describes the father “glaring at [her], taking photos, smirking” and on a number of occasions, approaching her with comments about the ongoing dispute between them, including “you’re damaging those kids”. She deposes to these incidents causing her to feel stressed, anxious and intimidated.
52The mother’s evidence is that the father’s conduct has a similar impact on the children, causing them to feel intimidated and anxious. She records a reluctance expressed by the children to spend time with the father during this period, deposing to remarks made by the children where they identified feeling worried about their father attending social and sporting events and expressing a wish that he not attend. She says she observed the children turn away from their father upon his approach, wiggle out of his embraces, and become visibly upset by his unexpected appearances.
53The mother says that the children have said to her things that indicate they have been informed of matters in these proceedings by the father, for example, X saying that “he told me that it (the assault) wasn’t what I thought it was, or what I had seen. He said that he had a really sore ankle and so that’s why he pushed you away. And he would never do something like that”.
54Of the gifts the mother asserts the father has given the children, one included a smart-watch which had on it a video of the father where he records himself saying, “Don’t listen to them when they tell you I’m not allowed to see you”.
55The father in contrast deposes to the children being excited to spend time with him, and reports the children being comfortable and affectionate towards him on the occasions that he did attend sporting and other social events. He recounts being met with enthusiasm upon arriving at one of the children’s father-daughter events, with the child exclaiming to her teacher “Look! My daddy came!” He provides evidence of conversations he shared with the children where they expressed their desire to be around and spend more time with him, including by saying “I’m so glad you are here dad” and “I want to spend time with you”. The father apportions blame for any inability of the children to spend time with him on the mother, providing descriptions of the mother (for example) taking the children’s hand and pulling them away from him.
56As to the conflict which took place at the children’s sporting events, the father provides a starkly different account of the events to that of the mother. He says that on the majority of occasions he kept his distance from the mother, and that it was she who acted in an openly hostile way towards him. He asserts that on about six occasions, he received calls from police informing that a report had been made about him by the mother, which caused him to feel harassed.
57While finding of fact as to what occurred will await a final hearing, it is uncontroversial the conflict had an adverse impact on children and their interests. The Chapter 7 Expert will be able to discern the children’s observations, experience and perceptions of these events.
58The mother exhibited a letter sent by the father solicitors to her solicitors, dated 6 August 2019. Contained within that letter was a statement that the father “…will not sign any documents for [U School] until he gets reasonable access to his children and has sensible discussions about a property settlement to ensure that he can afford to meet the school fees in the future.”
59This letter was sent on the father’s instructions and with the benefit of legal advice. The undercurrent of intimidation and coercion generates disquiet. It is a window into the father’s attitudes and his incapacity to separate or prioritise the needs of the children from his own.
60The mother gives evidence as to her observations of, and experience of, what she describes as the father’s excessive alcohol consumption over the period of cohabitation, and of the impact his “problematic drinking” had on both she and the children. Her observations and experience of the father’s behaviour after he has consumed alcohol are indicative of an incapacity to regulate his anger and behaviour and a diminished ability to care for the children. They include being unable to drive the car at times where a parent was required to do so, with the mother deposing to two occasions where the burden of driving the children to hospital fell solely on her because the father had been drinking. It also included one occasion where the father was slow or failed completely to react to one of the children running around the home. The mother says that as a result the child injured herself on a coffee table, requiring stitches. The mother drove the child to a medical centre on that occasion.
…
63It was an agreed fact for the hearing of the review that nine CDT tests were requested by the mother pursuant to the Order made 21 April 2021, the requests being made on 5 May, 7 June, 6 July, 23 August, 31 August, 14 September, 20 September, 19 October and 28 October 2021.
64The father undertook the four tests being 6 May, 1 September, 21 September and 29 October 2021, and disclosed the results of such tests on 17 September 2021 (for the tests undertaken on 6 May and 1 September 2021), and 12 October 2021 (for the test undertaken on 20 September 2021) and in the shadow of the Review, the result of the 29 October test.
65The father conceded his non-compliance with five of the nine requests. There was no issue as to his receipt of the requests. His failure to comply for the months of June, July, and August creates an adverse inference. His explanations for non-compliance, including that he had obtained referrals for the incorrect test type, that he was unwilling to attend a testing clinic due to escalating COVID-19 case numbers, that he received a request “too late” to complete a test, and that he had already submitted to testing twice within a one month period, are unconvincing. The father was well aware of the allegations of risk arising from his alcohol consumption at the time of the interim hearing. He had the benefit of legal advice at that time and thereafter. He knew, or ought to have known, that the process of testing and the results produced would be objective evidence indicative of his capacity to limit his alcohol consumption.
66The father submitted that on a consideration of all of the evidence he did not present an unacceptable risk in the event he spent unsupervised time with the children. As to his alcohol consumption he said that he drinks alcohol socially and moderately. He concedes that on occasions, he drinks to excess, but does not see that as presenting a risk to the children. He denied the mother’s characterisation of the occasion where one of the children injured herself on a coffee table. He does not deny drinking on that occasion but says the reason he did not drive the children to the medical centre was because he was comforting the child in the back of the car.
67The father said in his affidavit the CDT results that had been received were higher than the problematic 2.1 per cent level because his “base level would have been higher” and that “significant abstinence has been required to get the base level down, as moderate consumption appears to show elevated CDT levels”. I reject the father’s lay opinion.
68Counsel for the father submitted that the CDT return may vary dependent upon each individual, but properly conceded that the father did not proffer any evidence as to he being likely to produce different CDT returns from the average member of the population.
…
97During the course of the hearing I expressed concern of the attitude of the father in refusing to contribute to the children’s periodic and non-periodic needs.
98The parties determined it was in the best interests of the children to attend U School during the marriage. The father, notwithstanding his superior financial circumstances compared to those of the mother, has refused to contribute to the children’s school fees since August 2019, being the same time as he caused the letter identified earlier in these reasons to be sent to the mother’s solicitors. He would not sign the required documents to allow Y to be enrolled in the U School commencing in Year 3. That enrolment had previously been agreed between the parties. The mother has sold a quantity of shares to pay school fees since this time.
99By way of further compounding conduct, it is uncontroversial that;
(a)The administrative assessment of child support payable by the father to the mother for the children issued on 8 October 2019, and as at 1 November 2021 arrears had accumulated to the amount of $36,743.54; and
(b)That the father had not paid any periodic child support to the mother since March 2021, a period of eight months; and
(c)As set out later in these reasons, he has had a capacity to do so.
100The approach he has taken towards this financial support of the children, and his conduct in using his financial superiority to intimidate and coerce the mother at the expense of the children, does the father little credit. He has had the capacity to prioritise his capital and liquid funds to meet the cost of other endeavours, including his legal fees, in preference to financially supporting the children. He has not done so.
101In my view it is necessary for the father to get some further “runs on the board” so as to ameliorate risk posed by the absence of his capacity to restrict his alcohol intake. I do not accept on consideration of the objective evidence that the father has displayed an ability to control and regulate his consumption of alcohol to date. It is in the interests of the children for the father to objectively demonstrate a sustained reduction in his consumption of alcohol, before they are to spend periods of unsupervised time with him.
In the context of the current Application, the mother in her affidavit identifies various emails from the father to her and others.
At 3.19 pm on 1 July 2022, the father sent an email to the mother as well as to the Court and the Independent Children’s Lawyer (“the ICL”). The subject heading in the email was “Children to stay at my house from Sunday 2nd July for 7 nights – non negotiable”.
I do not propose to address the entire contents of that email save to note that it contained the following:
It is this simple, I believe the childrens interests are best served to spend this week of their holidays with me. So this is what will be happening and if this requires you to send the police and traumatise my children further, then that would be unnecessary, traumatic and abusive of the mother yet again. The police already know what Ms Blatch is doing. It’s written in the subpoena material.
…
Please advise your client to pack bags for the children for the week. They are coming home. I expect the children at the designated venue and the designated time. I warn your client against abusing the children further. The courts might tolerate it, I won’t.
(As per the original)
At 4.36 pm on 1 July 2022, the mother’s solicitor responded to the father’s email to the following effect:
Our client does not agree to the Children spending time with you for one week of the school holiday period because she does not consider it to be in their best interests at the time.
We are therefore instructed to confirm that our client will facilitate the Children’s time with you on Sunday in accordance with the current interim Orders, and she will attend changeover at 5pm on Sunday to collect the Children.
(Emphasis in original)
(As per the original)
On the same day at 5.07 pm, the father responded to the following effect:
It was not a request. Court process has been abused long enough.
The mother has not given any evidence to support her views. The mother lacks mental capacity and to know what is in their interests.
Conversely I have told you and the courts the heightened issue of long-term effects to my children. You all ignored them and so I have no choice but to ignore Justice Campton who quite frankly played games to protect his own chamber members who acted without instruction and have been caught out.
(As per the original)
According to the mother, the children were delivered to the father in accordance with the existing orders on Sunday 3 July 2022.
After the children were delivered into the father’s care, the father at 11.39 am on 3 July 2022 sent an email to the mother’s solicitor, the ICL, and the Court. I do not propose to address the entire contents of that email save to note that it contained the following;
I now have the children in my care
…
It is my intention to breach the orders today by not returning the children. I have had the regrettable position of weighing up what I hope is a short term impact vs long term benefits of my actions of the childrens wellbeing.
I hope this is only necessary for a short period and the mother can consent to share time arrangements as previously requested by me and recommended by Mr J. Preferably before 5pm today and failing that by tomorrow.
I have elected to do this in the holidays to minimise the impact for the children and hope this is a clear message to the mother that there are laws to protect children. I am relying on Section 70NAE of the Family Law Act 1975 and believe I have more than reasonable grounds to contravene an unnecessary and temporary order.
Child X asked me to fight for her and child Y and in the absence of the courts and the ICL, I am doing it no matter the consequence, it is to protect them when the system has not.
Pursuant to the orders, the children were to be returned to their mother by 5.00 pm that Sunday.
The mother’s affidavit makes it plain that the children have not been returned. Nor has the father complied with his own self-imposed deadline of retaining the children for 7 days.
The mother seeks the orders as set out in her Application. Her position is supported by the ICL.
The father opposes the issue of a recovery order and indicated that he seeks orders that the children live with him. I specifically asked him when it was that he thought the children should next see their mother. He responded when there is agreement about the children that respects them.
The father said that he wanted a hearing about changing the children’s residence. I indicated to all parties that I was not hearing such an application and only hearing the mother’s Recovery Application.
I am not persuaded that the father suffers any undue prejudice by refusing that application. He has elected not to comply with directions for the filing of material.
Proceeding with the Recovery Application does not preclude the father from filing an application for variation of the existing orders, which of course was the proper application to have made.
The ICL supported the position of the mother.
I am not persuaded that the interests of justice or the best interests of the children weighed in favour of delaying the hearing of the Recovery Application.
Recovery order
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), I set out in short form my reasons.
This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to the disputed facts of which there are many.
The Court has power to make a recovery order pursuant to s 67U of the Act. Section 67V directs that in deciding whether to make a recovery order in relation to a child, the Court is required to regard the best interests of the child as the paramount consideration. Section 60CC of the Act provides how a Court determines what is in a child’s best interests. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child. Not all of them are relevant in the determination of this Application.
The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties.
I have read the Family Report of the single expert Mr J and observe that he states the following:
87. Mr and Ms Blatch present with all the most obvious features of a high conflict dispute; most notable is the mirroring of allegations. They accuse each other of almost exactly the same shortcomings and behaviour. This type of symmetrical escalation of conflict is common in these fixed disputes and are typically underpinned by significant personality difficulties or vulnerabilities in one or other parent. Characteristic of these disputes is an external locus of control, that is, a justification of their behaviour based on the perceived behaviour of others, and a shifting sand of conflict such that every issue is in dispute. There is inevitably a splitting process such that those involved in the dispute become very quickly defined as either being in full support or not of one parent's position, and so, those who become involved in the dispute are very clearly defined as being all good, or all bad. There is typically little in the way of ambivalence, conflict escalates symmetrically as does blame encounter blame; it is not uncommon for children to be caught very much in the dispute amidst conflicting loyalties, and a state of dissonance as they try to sort each parent’s version of the truth and to determine which parent to believe.
…
91. Both children are aware that their parents dislike each other, are confused by the enduring nature of the conflict, but have come to accept the inevitability and inescapability of their parents’ positions upon them, and I would suggest that this is more likely to have a long-term and enduring impact upon the children; I would also strongly suggest that Mr and Ms Blatch have some control over their future actions and the choices they make in relation to each other, as compared to an over reliance on matters historical about which they have no control. Put differently, it is more likely that the choices made by Mr and Ms Blatch moving forward will impact upon the children significantly and proportionally more than what from the children's perspective is reflective of the distant past about which they have only clouded and hazy memory. Their parents’ relationship and what this means about them, including difficulties with transitions and what must be for the children an untenable emotional middle ground between their parents, is far more likely to correlate in the longterm with ongoing and significant problems.
…
iv. The likely effect of any change in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any person with whom they are living.
The only change contemplated is an introduction of regular time for the children with their father. There is no suggestion that there should be a change in living arrangements. Both girls indicated enthusiasm to spend time with their father, including overnight time, are looking forward to spending holiday time, and to enjoy the benefits that living with their father might provide to them. No doubt they would be aware of their mother's concerns, and I think it extremely likely that despite what the Court decides and what Orders are implemented, that these concerns will continue unabated. My expectation is that there will be no significant negative impact as a consequence of an Order providing for the children to spend time with their father, both during the school week and during school holidays. A testing of evidence and any new information might change this recommendation and opinion considerably.
…
viii. Whether the children are at risk of physical or psychological harm in the household of either parent.
The issue of risk is of lynch pin significance in this dispute. There is no indication that the children are at physical risk of harm in either household.
Notwithstanding the concerns conveyed by Ms Blatch about Mr Blatch and his treatment of her, there is no suggestion that there has been any physical maltreatment of the children.
The question of psychological harm is more complex. Ms Blatch is concerned about the risks to the children historical and future in relation to contact with their father.
Based on this assessment and based on the reports of the children's behaviour, it is difficult to conclude that the children have experienced psychological harm as a consequence of their father's behaviour, or treatment of them. Even the earlier assessments and reports by Ms AA do not in and of themselves identify the children as being symptomatic or having psychological problems. However, there should be no confusing the risk factors for the children of later psychological harm depending on the decisions made by their parents.
Children who are embroiled in conflict, their parents’ separation, and who are continuously exposed to conflicting views of parental reality, are at significantly high risk of having problems of anxiety and depression, drug and alcohol use, and having trouble sustaining satisfactory intimate relationships. The overwhelming finding is that regardless of how the children present, the impact of parental conflict and family discord has a sleeper effect that manifests later in children's lives.
I implore Mr and Ms Blatch to reflect upon the steps they can undertake now to have a very significant, positive and protective impact on their children, and conversely, the extent to which the choices they make moving forward can amplify the risks for the children very significantly.
…
x. Any family violence involving the children or member the children's respective families or households.
It seems extremely likely that the children are exposed to their parents’
conflict and their parents’ physical altercations. The issue of alleged family violence is highly contentious in this dispute. In so far as Ms Blatch’s
presentation, she impressed as continuing to experience the adverse effects of whatever it was that transpired within the relationship, that includes her claims regarding physical and emotional abuse by Mr Blatch. I
note that this is an issue that has been extensively dealt with in the material and has been the subject of considerable court action. For the purpose of this report, it is extremely likely that Mr and Ms Blatch will require Court Orders to ensure the continuous management of the parental relationship, by creating and maintaining clear boundaries and expectations around them and their behaviour.
…
xiv. Any other matters the Court expert considers relevant.
Mr and Ms Blatch present with all the features associated with chronic high conflict. The history of their dispute is significant, and with the passage of time it has endured, and the conflict in some ways has even escalated.
It is not likely that the process of litigation will be of assistance, although,
the making of clear and ambiguous Orders, with clear sanctions and consequences may be the only avenue of assistance available to them.
Regardless of the number of nights that the children spend with their father in a 14 night cycle it is my very strong recommendation to the Court that the children be collected from school and returned to school, and that for school holidays, there be a continuation of the current arrangements, that is, exchange of the children in a public place with the provision of CCTV to offer security to all concerned.
I would also like to draw to the Courts attention not only the children's enthusiasm to spend time with their father but that the social science findings of children's parents who separate, and whose fathers live away from home, but whose fathers are actively involved in around their children school lives, have children who do significantly better socially, emotionally and behaviourally and that this is especially so for girls.
There is an obvious benefit in my view to a clear structured time spent plan. It may be that the introduction of overnight time, each alternate weekend from a Friday until a Monday morning and a night overnight either each week (9:5) or a night overnight only in the alternate week (10:4) with a collection to and from school and half school holidays (10:4)
is a sensible starting point, with a graduated increasing in time to a shared care arrangement at a later date.
For the purpose of this discussion, shared parental care reflects a minimum of 35% of time in the care of one parent, that is, a maximum of 9 nights with one parent and a minimum of 5 nights with the other parent; given this description, equal care is just one type of shared care. One option might be to consider 9/5 and half holidays twelve months after the making of Final Orders.
In applying the primary considerations, the benefit to the children of having a meaningful relationship with both of the parents is subservient to the need to protect the children from the risks and harms identified in the subsection.
Both parties consider it important that the children have a meaningful relationship with the other parent. They just differ as to the way it can occur.
When applying the primary considerations, I am required to give greater weight to the need to protect the children from risk and harm than to the benefit to the children of having a meaningful relationship with both parents.
The father says in his Case Outline that he has witnessed an elevation of the mother’s alienation behaviours since the release of the Mr J’s Family Report. Such assertion is a bald statement unsupported by any evidence and I place no weight upon it.
I place weight on the observations of the single expert to which I have referred, noting that perhaps the greatest risk to these children is the parental conflict. The father’s unilateral actions have only served to exacerbate such conflict. The orders I propose meets the balance required by the primary considerations.
As to the additional considerations, such as are relevant, there is no direct evidence of the children’s views on this Application, but I have had regard to what the single expert has said and to which I have referred above.
I accept that the children have a good relationship with both parents. I note Mr J reports:
ii. The nature of the relationship between the children, each of the children's parents and with any other significant persons.
Child X and Y are very obviously primarily attached to their mother, whom they perceive to be the source of their primary dependency needs being met. However, notwithstanding the fractured nature of their relationship with their father, both their individual presentation, and my observation of them in the company of their father conveyed an obvious affection, comfort and importantly a wish to be with and spend more time with him.
It is not intended by the mother’s orders that there would be a separation of the children from their father.
The father has, by his conduct, not complied with orders and removed the children from their mother’s care. I am satisfied that without Court intervention and orders, the father will only return the children to their mother at a time of his choosing. That is not in their best interests.
Of considerable focus in interim proceedings is a consideration of the factors identified in s 60CC(3)(f) and s 60CC(3)(i), calling into focus the insight and capacity of the parents to place the child’s needs above their own, the attitudes of the parents to the children, and the responsibilities of parenthood. I have significant concerns about the insights of the father in having breached the Courts orders. I note that I have earlier referred to Campton J having had cause to reflect upon the attitude of the father in the past.
The father in his Case Outline says, “I have significant insight into the needs of the children and understand whether the effect of this week is necessary or damaging. The latter it is not” (at page 5). At a final hearing, the Court will no doubt reflect further upon the consequences of the father’s unilateral actions in not complying with orders and whether he has the insight, he professes.
In the event that the father wishes to vary the existing orders, then there is a clear and well-defined process by which that should be carried out, namely, the filing by him of an application to deal with what he contends are changed circumstances arising, he would contend, out of the recommendations of the single expert. I do not propose to express any view about the merits of such application but that is the procedure to be adopted should a party wish to vary orders.
It is not for any party to seek to take the law into their own hands and to fail to comply with court orders.
Conclusion
I am satisfied that requiring the children’s return into the mother’s care is in their best interests. Such concerns as the father may have can be addressed at a final hearing or a further hearing.
For the above reasons, I will make Orders 1 to 3 as sought by the mother. I decline to make Order 4 as sought by the mother but grant her liberty to relist the matter before me on 24 hours’ notice in the event there is a difficulty in relation to the recovery order.
However, in order to give the father the opportunity to not have the children forced back into the mother’s care by the police, I direct that the recovery order lie in chambers until 4:00 pm today but then issue.
The father should clearly understand that if the recovery order issues, then it is entirely a function of his own behaviour and the decisions he makes and not a function of anything done by the mother. It is within his power to ameliorate the consequences of his actions.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 11 July 2022