Blesing & Blesing
[2021] FedCFamC1F 230
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Blesing & Blesing [2021] FedCFamC1F 230
File number(s): CAC 2402 of 2021 Judgment of: GILL J Date of judgment: 26 November 2021 Catchwords: FAMILY LAW – CHILDREN – Interim order – With whom a child spends time – Best interests of a child – Risk – Whether exposure to father’s religious beliefs, views on vaccination and conspiracy theories constitutes risk – Religious beliefs unable to be assessed as indicators of risk – Position on vaccination unable to be assessed on evidence available – Speculative views not anchored in fact potentially productive of harm – Father consents not to discuss certain matters with children – Indicators of likely compliance with orders – Overnight time and communication with father permitted – Family Law Act 1975 (Cth) 68B injunctions imposed – Consideration of interaction between Family Law Act 1975 (Cth) and Family Violence Act 2016 (ACT). Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 68B, 114AB
Family Law Regulations 1984 (Cth) r 19(g)
Family Violence Act 2016 (ACT)
Cases cited: Phillips & Hansford (2019) FLC 93-917
Salah & Salah (2016) FLC 93-713
Division: Division 1 First Instance Number of paragraphs: 59 Date of hearing: 23 November 2021 Place: Canberra Solicitor for the Applicant: Dobinson Davy Clifford Simpson Solicitor for the Respondent: GPG Lawyers Solicitor for the Independent Children's Lawyer: Legal Aid, ACT ORDERS
CAC 2402 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BLESING
Applicant
AND: MR BLESING
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
26 NOVEMBER 2021
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.All previous orders are discharged.
2.The children W (born … 2006), X (born … 2009), Y (born … 2011) and Z (born … 2015) (‘the children’) live with the mother.
3.The children shall spend time with the father as agreed in writing by the parties and absent agreement in the following manner:
(a)Each Tuesday:
(i)During school term time from 4.00 pm until 7.00 pm;
(ii)During school holiday time from 10.00 am until 7.00 pm;
(b)Each alternate weekend commencing on 27 November 2021 from 10.00 am on Saturday until 7.00 pm on Sunday;
(c)From 4.00pm on Christmas Day until 4.00 pm on Boxing Day in 2021
(d)By telephone or FaceTime on one occasion each week as agreed and failing agreement, on Thursday, with the calls to begin and conclude at times between 4.00 pm and 6.00 pm (and which is not to be read as a requirement that the communication is required to continue for 2 hours).
4.Unless otherwise agreed in writing the handover shall take place proximate to the home of the parent into whose care the children are entering and on a without admissions basis the father is restrained from approaching the mother at changeover.
5.Pursuant to s 68B of the Family Law Act 1975 (Cth) the father shall not attend upon the premises at:
(a)B Street, Suburb D;
(b)E School, Australian Capital Territory; and
(c)F School, Australian Capital Territory.
Medical
6.The parties shall inform each other by telephone in the case of serious injury, illness or other emergency involving any of the children and by text message in all other cases, as soon as practicable of any illness, injury or accident involving any of the children and will inform the other parent within 48 hours of any attendances upon any health professional and of the treating practitioner’s details.
7.The parties will inform the other party of any change to the children's medical practice or details of other treating medical professionals within five (5) business days of any change.
8.Both parties are at liberty to obtain copies of the children's medical and dental records at their own costs.
9.That until further Order, neither party will take any steps or cause any third party to take steps to vaccinate, or attempt to vaccinate, the children against COVID-19.
Schools
10.The mother is permitted to do all things to cause the children to attend onsite schooling at either E School or F School.
11.The father is restrained from enrolling the children in any other school and from home schooling the children.
12.Each parent is at liberty to obtain copies of school reports; newsletters; school photographs and other documents and school records at their own cost.
13.Each parent is permitted to provide a copy of these Orders to any of the children's schools.
Communication between the parents
14.Save as provided for in Order 6 above, all communication between the parties shall occur via the Talking Parents Application.
Restraints
15.The father is restrained from discussing any matters relating to the COVID-19 vaccine or any of the vaccines or COVID-19 with the children.
16.The father is restrained from talking to the children about or using language that includes or relates to concepts of:
(a)Prophecy;
(b)Second Coming;
(c)End of Days;
(d)Rapture;
(e)Mark of the Beast; and
(f)Future biblical prophetic events.
17.These restraints do not prevent the father from otherwise being permitted to read scripture, sing hymns, pray with the children and to take the children to church.
Single experts and filing of material
18.The parties shall confer and provide to the Court within 7 days terms of reference for and terms for the appointment as single experts of Dr G for the psychological assessment of the father and Dr C for the assessment of the parents and children.
19.The father is entitled to file and serve a further consolidated affidavit within 14 days which may be provided to the single experts.
20.The mother is entitled to file and serve an affidavit in reply to the above affidavit in a consolidated form within a further 7 days which may be provided to the experts.
21.At the discretion of Dr G the mother is permitted to have contact with Dr G in order to describe her experience with the father provided that to the extent that such is to be relied upon by Dr G and falls beyond the descriptions given in the mother’s affidavit material that such be identified to the father during the interview and assessment process with Dr G.
Occupation of the former family home
22.The mother has sole use and occupation of the property known as and situated at B Street, Suburb D in the Australian Capital Territory (“the Suburb D property”).
23.It is noted that the father will meet the mortgage payments for the Suburb D property.
The ICL
24.On request from the Independent Children’s Lawyer (“the ICL”) the parties shall cause the children to attend upon the ICL.
Further court proceedings
25.The parties or any of them are entitled to approach the Judicial Registrar to seek the relisting of the matter for further determination following the provision of either or both of the single expert’s reports.
26.Should any party contend that a Child Responsive Conference should take place then that party is to approach the Judicial Registrar to seek the further listing of the proceedings to deal with such issue.
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 Blesing & Blesing is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
This judgment concerns the interim arrangements for the four children of the marriage, W (born in 2006), X (born in 2009), Y (born in 2011) and Z (born in 2015) (“the children”). It follows an initial hearing before Senior Judicial Registrar Evans where the father, at short notice, agreed to a suite of orders limiting or preventing his contact with the children and his access to the former family home pending the matter coming on for further interim determination. The current orders are now being considered in a litigation context where it is anticipated that the matter will return for further interim consideration following the preparation of agreed expert material in late March or early April 2022, meaning that the orders from this judgment are to be tailored to that intervening period.
The critical dispute between the parties is as to whether the father presents a risk of psychological harm to the children to a degree that warrants their time with him to be restricted to short day time periods only, and as to the benefits that the children might enjoy from having greater time with the father. They are also in dispute as to the interim allocation of parental responsibility.
Generally put the risk issues arise from concerns as to the father’s pursuit of particular religious beliefs, views in respect of COVID-19 and vaccinations, flat earth beliefs and various conspiracy theories. Those views are alleged by the mother to have been imposed in a pressured and forceful manner upon the mother and children, and lead to further concerns as to the mental health of the father, and as to the adverse impact upon the children. For those reasons the mother pursued orders for limited day time periods for the children with the father in an effort to dilute his influence upon the children.
The father concedes the pursuit of a large number of these matters, but contends that the mother has decontextualised and exaggerated them. He seeks an equal time arrangement, with a fall-back position of the children living primarily with the mother but spending five nights per fortnight with the father.
Although there were other matters pursued by the parties a number had dissipated by the hearing. The parties are (potentially) at odds over the vaccination of the children for COVID-19 as the father opposes such, and the mother is uncertain whether she wishes the children to be vaccinated. The mother has indicated that she will not have the children vaccinated in the interim, removing this aspect of the dispute. Further, an area of concern was whether the father would seek to amend the children’s schooling arrangements. He has agreed not to do so. Further, the father does not dispute the mother’s sole occupancy of the former family home (although there was contest as to the power of the Court to have made such an order).
DOCUMENTS RELIED UPON
The applicant mother relied upon:
(a)Initiating Application filed 5 November 2021
(b)Consolidated affidavit of Ms Blesing filed 22 November 2021
(c)Affidavit of Mr H Blesing filed 18 November 2021
(d)Notice of Child Abuse, Family Violence or Risk filed 5 November 2021
(e)Affidavit of service filed 12 November 2021
(f)Parenting Questionnaire filed 5 November 2021;
(g)Genuine Steps Certificate filed 5 November 2021; and
(h)Case Outline Document filed 22 November 2021.
The respondent father relied upon:
(a)Response to Initiating Application filed 22 November 2021
(b)Affidavit of Mr Blesing filed 22 November 2021
(c)Notice of Risk filed 22 November 2021
(d)Parenting Questionnaire filed 22 November 2021; and
(e)Case Outline Document filed 22 November 2021.
The ICL prepared a Case Outline Document, which was filed on 22 November 2021.
ORDERS SOUGHT
The orders sought by the parties are set out in their respective case outline documents and are annexed in full at the conclusion of this judgment.
The mother seeks the continuation of orders made on 12 November 2021 for the children to live with the mother, for the mother to have sole use and occupation of the former family home (“the Suburb D property”), restraining the father from approaching or contacting the mother or children at their home or schools and for the mother to be permitted to return the children to onsite schooling. The mother seeks sole parental responsibility for the children and, pending the release of the expert report, for the father to spend up to three hours twice a week with the children, in addition to telephone time once per week. The mother seeks that the father make mortgage repayments on the Suburb D property. The mother seeks that the parties engage a single expert to prepare an expert report, and for the husband to meet the expert’s costs. The mother also seeks that the father obtain a psychological assessment and meet the cost of that assessment.
The father does not oppose the mother’s occupation of the former family home and accepts that he will continue to pay the mortgage for that home. The parties also agree to the appointment of a single expert, Dr G, to psychologically assess the father, and to a mechanism for the provision of material and information to her. They will be directed to provide terms of reference and draft orders in relation to her within seven days. Similarly they agree to the appointment of Dr C as a single expert to prepare a report assessing the parties and the children, and will provide terms within seven days. Each of these experts will be able to conduct their assessment by February 2022, allowing the matter to return to court for further interim resolution.
Whereas I had indicated to the parties that a Child Responsive Conference could also be conducted, such is rendered otiose and no order will be made for one given the appointments of the experts. Should a party contend that one is still required they will be at liberty to agitate the matter.
The father seeks the discharge of the 12 November 2021 orders. The father seeks equal shared parental responsibility for the children but agrees to be restrained from enrolling the children in another school or from home schooling the children. The father seeks week-about time with the children or in the alternative for the children to spend overnight time with him. The father also seeks telephone time, time on special occasions and a series of orders relating to communication between the parties and with the children’s schools. The father also seeks restraints upon both parties from making critical remarks about the other party or discussing the proceedings in front of the children and from exposing the children to family violence.
The father offered his consent to orders restraining him from discussing certain matters with the children, exhibited as Exhibit F1 and extracted within these reasons.
PRINCIPLES
The paramount consideration in determining what order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of each of the children. That is to be determined on consideration of the matters set out at s 60CC of the Act and in accordance with the objects and principles set out in s 60B and reasoning process set out at s 65DAA.
The objects and principles contained at s 60B provide that:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It may be readily recognised that the objects and principles do not all necessarily point in the same direction.
In the light of the objects and principles, in order to determine what is in a child’s best interests, the Court is required to consider the two primary considerations and the additional considerations, to the extent that they arise in a case, as set out at s 60CC. In Phillips & Hansford, Strickland, Ainslie-Wallace and Aldridge JJ explained that the considerations in s 60CC are “not a mantra to be recited in every case”.[1] Rather, their Honours said that “[o]nly those that are in issue in the proceedings require detailed consideration”.[2]
[1] (2019) FLC 93-917, [43].
[2] Phillips & Hansford (2019) FLC 93-917, [43].
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest.
Where proceedings are, as here, interim in nature, the Court is not in a position to have the evidence tested before it, and in such circumstances should be wary of making factual determinations in areas of contest. However, this limitation does not detract from the obligation to make orders in the best interests of the children, particularly where contested issues of risk arise.
In Salah & Salah, the Full Court grappled with the limitations inherent to interim proceedings and their significance in considering risks associated with exposure to family violence.[3] There is no reason to think that the principles are any less applicable to other issues of risk. They said:
[3] (2016) FLC 93-713.
36. It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to “the usual pathway as highlighted in Goode & Goode (2006) FLC 93-286”. A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):
68. … the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
37. In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:
18. …that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
38. The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.
39. In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:
100. … Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
40. The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or “conjecture”) and not to “simply ignore an assertion because its accuracy has been put in issue” (see SS v AH).[4]
[4] Salah & Salah (2016) FLC 93-713, [36]–[40].
Accordingly, even absent the capacity to test the evidence the Court is required in interim proceedings to assess the risks presented to the children.
Further, in determining what orders to make the court is to follow the structured decision-making process flowing from s 61DA and s 65DAA. Where an order, as sought here by the father, for equally shared parental responsibility is made, then the court is obliged to consider an order for equal time and if no such order is made, an order for substantial and significant time. While there is a presumption in favor of an order for equally shared parental responsibility, it is not appropriate that it apply in these interim proceedings by virtue of the nature of the factual contest between the parties, and does not apply as there are reasonable grounds to believe that a parent has engaged in family violence. This does not equate to a finding that family violence has taken place but rather that the mother’s evidence, if accepted, provides such reasonable grounds. In any event, it cannot be thought that the parents could comply with the obligations of an order for equally shared parental responsibility as provided for by s 65DAC, given that the exercise of parental responsibility in the realm of long-term decision-making forms the subject matter of much of their dispute. Absent the making of such an order the pathway at s 65DAA is inapplicable.
CONSIDERATION
In this case the parties accepted that the critical tension in the case is between the issues of risk raised by the mother and the benefits to the children of time with the father.
The key issues as to risk identified by the mother flow from matters voiced by the father to the mother the children, and to other persons. Roughly described, the subject matter variously encompassed religious themes involving the end of the world, interaction between government and believers, religious connotations of COVID-19, the vaccine and interactions with people who have had the vaccines, COVID-19 and the vaccines more generally and their interaction with various conspiracy theories, conspiracy theories involving government and the Catholic Church, a flat earth theory, implications of attendances at various schools, and the poisoning of the water supply. This is not intended to be an exhaustive description. The mother describes that the father has pursued these themes in a forceful and unrelenting manner both toward her and the children. In consequence of the father’s various beliefs he opposes vaccination, withdrew the children from their schools and sought to home school the children.
The father accepts that some of the subject matter raised by the mother reflects what he has said in the past, although he asserts that part of what the mother describes is exaggerated. Importantly, he concedes that he has pursued aspects of the subject matter with her more than he should have, and that his withdrawal of the children from a previous school went too far. In pursuing time with the children, he offers to be subject to restraint preventing him from discussing particular topics with the children that the mother has identified as particularly problematic. He maintains that his religious beliefs are mainstream, and that some of the material raised by him does not reflect his own view, but formed, from his perspective, a topic for discussion. It might be thought that whether the father actually adopted the views contained in the material he has promulgated may not lessen the impact upon the children of his exposing the children to such material as their father.
The mother contends that the father’s interactions with the children have led to anxiety on the part of the children, shown in some complaints of fear, either of the father or of the material that he has shared, and shown in the expression of anxiety and fear at being returned to school. The fears in relation to school need to be understood in the context of the father apparently describing schools as a “slaughterhouse” where the children are imperilled physically and potentially spiritually by exposure to vaccines that will alter their DNA, and to persons who have been administered the vaccines. The forceful manner in which the father has pursued matters raises the prospect of the children being fearful and anxious in a manner harmful to their psychological wellbeing, and to having their normal social interactions and activities jeopardised by the adoption of the father’s views.
These contentions call for careful and cautious analysis. Although the parents differ as to their religious views, the children have, since 2019, been raised exposed to the father’s beliefs, and it seems may have taken on a number of the religious views as part of their, and the father’s, culture or background. The principles at s 60B point to the importance of such, although that importance is subject to the best interests of the children. It may also be observed that the religious issues pursued by the father are intertwined with his views on the conspiracy theories, COVID-19, vaccination and other issues.
Absent full analysis of these matters, a Court is sensible to exercise some caution in assessing religious and cultural matters as risk issues. Although potentially not insurmountable, the Court is confronted with grave difficulties in weighing cultural and religious issues, albeit such issues are certainly not off limits in assessing benefits and risks to children. Little assistance is gained either from claims that religious or cultural beliefs are or are not mainstream, religion and culture being diverse by their nature, and neither validated nor invalidated by the mere fact of being or not being mainstream.
These matters point away from heavy reliance upon religious beliefs pursued by the father as indicators of risk. Further, in the absence of evidence as to the efficacy of vaccines and the effects of COVID-19 being led in evidence, the father’s resistance to vaccination does not assist in assessing risk, particularly where the mother also presents an agnostic view as to the benefits of vaccination at present.
However, there are other aspects of the views expressed by the father that more readily lend themselves to criticism, even absent direct evidence as to their credibility or lack thereof.
It may be observed that there are a number of areas in which the father has adopted or promulgated views that at face value appear unlikely to be anchored in fact, and to have their basis in speculation.
These include a number of the matters set out at parts of [12], [19], [30] and [34] of the mother’s affidavit, without any serious contest from the father. They include the assertions that Catholic Priests sacrifice babies on altars around Canberra, the public service and ACT Government worship Lucifer, that the British royal family eat babies and is part reptilian, that COVID-19 is mind control, and that 5G was making them (presumably the family) fight and poisoning them. He has repeatedly described schools as slaughterhouses.
It may be that, if it is important to the resolution of the proceedings, evidence will be ultimately be led as to vaccines, COVID-19 and other matters to enable the Court to assess directly their benefits and detriments. That is not the situation that presently confronts the Court.
The father has presented samples of the material that he has relied upon in forming various views, for the purpose of demonstrating that he has made diligent and reasonable enquiries. A cursory examination was unsupportive of the idea that the father’s enquiries rely on robust analysis although it is not necessary to form a concluded view on this.
Importantly, the father’s conduct toward the children is reportedly having discernible impacts upon the children, seen in Z’s expectation that half of the children at his school would probably be dead, in Z’s expression to the father that he scares him, in Y’s distress, and the children’s fear of returning to school.
Further the father is asserted to have engaged in behaviour directly toward the children and the mother, in pursing the mother in front of the children after receiving correspondence form the lawyers, threatening to and actually exposing the children to the litigation. This is in addition to presenting the children with material that appears to be highly speculative, and likely to be productive of fear.
These matters all point to potentially serious deficiencies in the father’s decision-making concerning the children, and in his capacity to emotionally care for them in a manner that is not productive of fear, and risks compromising their participation at school, or undermines their relationships with the mother. The prospect of psychological or emotional harm is real, even without factoring in the mother’s concerns regarding the exposure to religious ideas.
Despite this the mother does not seek to exclude the father, but merely to dilute his influence by the limitation of time to short daytime periods.
To his credit the father, conceding episodes of poor judgment on his part, offers restraints upon his behaviour, directed to matters raised by the mother as problematic. Specifically, he offers at Exhibit F1:
That the father be restrained from discussing any matters relating to the COVID-19 vaccine or any of the vaccines or COVID-19 with the children.
That the father be permitted to read scripture, sing hymns, pray with the children and to take the children to church, but that the father be restrained from talking to the children about or using language that includes or relates to concepts of:
•Prophecy;
•Second Coming;
•End of Days;
•Rapture
•Mark of the Beast
•Future biblical prophetic events.
(As per the original)
What is particularly significant about this list is that it matches most of the issues identified by the mother as particularly concerning to her. Further, in a context where, particularly in interim proceedings, it is a difficult path for the Court to discern what cultural or religious topics should or should not be promoted to the children, the father’s offering means that the Court can take it as conceded by the father that it is not necessary for the well-being of the children, despite their religious and cultural background, to traverse such matters in the immediate future.
The balance to be struck against these risks relates to the benefits of spending time with the father, with particular controversy surrounding the question of whether the time should extend to overnight time. Until recently the children shared a home with both parents. While there is dispute between the parties as to the extent and quality of the interactions with the children before this point, the evidence is suggestive of broad participation on the part of the father across different aspects of the children’s lives, engaging in play, sporting activities, religious activities and in their schooling. The level of engagement in the past points to something more than the short periods of time proposed by the mother, and to the time incorporating overnight periods as in the mother’s household, so that the children may be able to enjoy the multiple aspects of the relationship with the father.
What potentially tells against this is that those benefits are likely to be undermined should the father engage in pressured and forcefully persuasive interactions with the children. That risk is ameliorated if the father’s proposed restrictions are able to be given weight. That weight is reliant upon the prospect that the father will comply with the restrictions. There is good reason to consider that he will. Firstly, the evidence reveals that by virtue of an ACT Family Violence Order the father was required to surrender his firearms. The evidence indicates that he did so in response to a mere telephone call from the police, even prior to being served with any order. Secondly, the terms of the current s 68B order allow for some ambiguity in the manner in which the father may have contact with the children. Despite being called by the children, and having a strong desire to interact with them, the father took a conservative view and declined to do so to ensure compliance with the orders. Thirdly, the restrictions are the proposal of the father. Fourthly, the period of adjournment is short and encompasses an assessment of the children that, it may be anticipated, would likely uncover pressuring of the children, undermining the prospect of such an arrangement for overnight time continuing. These together are supportive, albeit not definitive, of the prospect that the father will comply with the terms of the restraint, despite the concerns expressed by the mother that have resulted in orders for the father to be psychologically assessed.
In those circumstances it is appropriate that there be overnight time between the children and the father, although not to the equally shared time proposed by him. The balance appropriately struck is for the children to spend regular time, as proposed by the mother on a Tuesday for a period of three hours (and for the full day during school holidays), and an overnight period each alternate weekend from a Saturday morning until Sunday afternoon. This period of time isolates the father from the children’s school experience, in circumstances where he has previously been critical of their school interaction, providing less opportunity for the tainting of that experience. While it may also provide the father with the opportunity to take the children to church should he choose to do so (a matter of concern to the mother), it may be observed that on the mother’s account the father’s previous interaction with churches has been such that they have pushed back against the father’s forceful approach.
As to the allocation of parental responsibility, given the restraints offered by each of the parties as to the exercise of such (eg the mother opting not to pursue vaccination, the father not to interfere with schooling) it is, at present, appropriate that subject to the proffered restraints each party retain joint parental responsibility. The exercise of parental responsibility has been a strong source of contention between the parties in the past, but where each offers limits in the exercise of such the prospects for conflict are reduced. Given that the area of key remaining contest are the cultural and religious aspects of the children’s background, and that the benefits or detriments of either parties’ approach are unable to yet be assessed, there should not be an approach to parental responsibility that undermines either parent in this arena, where the father’s exercise of such will be restrained in the manner that he has identified.
It may be observed that the restrictions on the father are burdensome, and that, particularly with the orders for overnight time, his potential to impact the children is less diluted then proposed by the mother who, despite her concerns, supports the relationships.
On his evidence, and on his offering of restraints, the father appears to demonstrate some insight into the potential detriment of attempts to impose his views on the children and the mother. The genuineness of that insight will be tested by the coming months and assessment processes prior to the matter being returned to the court for further determination, allowing the current arrangements to be revisited to assess whether they remain in the children’s best interests.
Further, while at 15 years of age there is a strong implication that W’s views should be accorded strong weight, an absence of evidence as to such, and as to his maturity means that he should not be the subject of different arrangements to the other children.
The parties pursued similar regimes for electronic communication between the children and the parents. The mother’s orders provide sufficient certainty as to appropriately provide for such contact and should be adopted.
Although the father sought orders permitting attendance at the schools of the children, such orders should not be made at this stage given the father’s previous resistance to their attendance, his views as to schools being a “slaughterhouse” and the impact of his views as to schools on the children. The children’s experience of school should not have to incorporate his attendance at the schools under those circumstances, although he should be entitled to receive information from the schools regarding the children. Accordingly changeovers also ought not occur at the schools.
The father’s proposal regarding exchange of information on medical issues is reasonable.
The father’s proposal that the parents communicate via the Talking Parents app provides a sensible and accountable mode of communication between the parents.
The father’s proposals for Christmas time with the children should also be adopted, other special occasions being able to be adequately dealt with on the parties’ return to court following the expert reports.
It will be noted that the father will continue the payment of the mortgage of the former family home.
SECTION 68B INJUNCTIONS
Although the father agrees to the mother remaining in the former family home, and to him bearing the expense of the mortgage, he contests the injunction made in support of such arrangements, on the basis of orders to exclude him having been pursued under the Family Violence Act 2016 (ACT) disentitling the mother to make an application pursuant to s 68B of the Act by virtue of the operation of s 114AB of the Act.
Section 114AB(1) of the Act provides:
(1) Sections 68B, 68C, 114 and 114AA are not intended to exclude or limit the operation of a prescribed law of a State or Territory that is capable of operating concurrently with those sections.
(2) Where a person has instituted a proceeding or taken any other action under a prescribed law of a State or Territory in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114, the person is not entitled to institute a proceeding under section 68B or 114 in respect of that matter, unless:
(a) where the person instituted a proceeding:
(i) the proceeding has lapsed, been discontinued, or been dismissed; or
(ii) the orders (if any) made as a result of the institution of the proceeding have been set aside or are no longer in force; and
(b) where the person took other action--neither that person nor any other person is required, at the time that the person institutes a proceeding under section 68B or 114, to do an act, or to refrain from doing an act.
Regulation 19(g) of the Family Law Regulations 1984 (Cth) identifies the Family Violence Act 2016 (ACT) as a prescribed law under s 114AB.
The answer to the husband’s contention posed by the mother is that the s 68B application was instituted on 5 November 2021 prior to the Family Violence Act 2016 (ACT) proceedings on 8 November 2021 and that by virtue of this chronology the proceedings under the Family Violence Act 2016 (ACT) do not touch the s 68B application. On the construction of s 114AB(2) this contention should be accepted.
However, the scope of the restraints contained in the s 68B orders as they relate to the communications should be amended to facilitate the operation of the orders to spend time with the father. Given the level of contention previously in relation to schooling and the prior exposure of the children to such, the restraint on the father attending the school should be maintained, there being no practical requirement on the terms of the orders for him to spend time with the children for him to do so.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 26 November 2021
ORDERS SOUGHT BY THE PARTIES
The mother’s orders sought
1.1. The continuation of Orders 8 a, b, c and d of the Orders of 12 November 2021.
1.2. That the wife have sole parental responsibility for the children W (born … 2006), X (born … 2009), Y (born … 2011) and Z (born .. 2015).
1.3. That pending the release of the report foreshadowed in paragraph 1.5 below and further Order, the husband spend time with the children as agreed and failing agreement, as follows:
1.3.1.for up to 3 hours at a time on two occasions each week and failing agreement on each Tuesday and each Saturday between 3.00pm and 6.00pm and
1.3.2.by telephone or FaceTime on one occasion each week as agreed and failing agreement, on Thursday, with the calls to begin and conclude at times between 4.00pm and 6.00 pm (and which is not to be read as a requirement that the communication is required to continue for 2 hours).
1.3.3.The husband pay all instalments of the mortgage to J Bank secured over the title of the Suburb D property, as and when they fall due.
1.4. That the parties do all things necessary to engage a single expert, as agreed, on terms as agreed, to prepare an expert report pursuant to the relevant Rules and the cost of that report be met solely by the husband.
1.5. That the parties do all things necessary to facilitate the husband attending upon an agreed psychologist as soon as practicable after the making of these orders, for the purpose of obtaining a psychological assessment of the husband and for that purpose:
1.5.1.the wife be at liberty to provide to the psychologist a copy of her affidavit filed in these proceedings to assist in informing relevant background for that engagement along with a copy of Orders made about the appointment of the psychologist; and
1.5.2.the psychologist be at liberty to speak with the wife about her relevant experiences with the husband; and
1.5.3.the costs of the report be met by the husband; and
1.5.4.upon the report being available to the husband, he provide a copy of the report within 24 hours of receipt, to the wife and her solicitors.
The father’s orders sought
1.The Orders made on 12 November 2021 be discharged.
2.The Father be granted leave to rely upon his affidavit filed with this Response despite it being more than 10 pages.
3.The Father be granted leave to file and serve a further affidavit of no more than 5 pages and with no more than 1 annexure prior to attending upon the single expert or psychologist and that the mother be entitled to reply to that affidavit no later than 7 days after its filing.
Parental Responsibility
4.Until further Order the parties have equal shared parental responsibility for the children W ("W") (born … 2006), X ("X") (born … 2009), Y ("Y") (born … 2011) and Z ("Z") (born … 2015), (collectively referred to hereon in as "the children") BUT THAT the father be restrained from enrolling the children in any other school and from home schooling the children.
Time and Communication
5.Until further Order, X, Y and Z shall spend time with each party on a week-about basis in both term and holiday time with changeover to occur each Friday at 3:00pm or after school.
6.For the purpose of Order 5 above, changeovers not occurring at school shall occur at the home of the parent into whose care the children are entering and that on a no-admissions basis, the Father be restrained from approaching the Mother at changeover.
7.In the alternate to Orders 5 and 6 above, X, Y and Z live with the Mother and spend time with the Father:
7 .1 In the first week, on Wednesday from after school or 3:00pm until before school or 9:00am the immediately following Thursday; and
7.2 In the second week, from after school or 3:00pm on the Thursday until before school or 9:00am the following Monday or if the Monday is a public holiday, until 5:00pm on the Monday.
7.3 In the first half of each school holiday period.
8.For the purpose of Order 7 above, changeovers not occurring at the children's school shall occur at the home of the parent into whose care the children are entering and that on a no-admissions basis, the Father be restrained from approaching the Mother at changeover.
9.Until further Order, W shall spend time with each of his parents in accordance with his wishes.
10.When the children are in the Father's care, the children communicate with the Mother by telephone or FaceTime:
10.1 On one occasion as agreed and failing agreement, on the mid-point day of their time with the Father, with the calls to occur between 4:00pm and 6:00pm; and
10.2Otherwise in accordance with the children's wishes or request or the wish or request of any one or more child.
11.When the children are in the Mother's care, the children communicate with the Father by telephone or FaceTime:
11.1 On one occasion as agreed and failing agreement, on the mid-point day of their time with the Father, with the calls to occur between 4:00pm and 6:00pm; and
11.2Otherwise in accordance with the children's wishes or request or the wish or request of any one or more child.
Special Occasions
12.Until further Order, the children spend time with the Father on the following special occasions if not already spending time with him:
12 .1 From 4:00pm on Christmas Day until 4:00pm on Boxing Day in 2021;
12.2From 4:00pm on Easter Saturday until 4:00pm on Easter Sunday in 2022;
12.3From 4:00pm on the Saturday immediately prior to Father's Day until 4:00pm on Father's Day in 2022.
12.4On each of the child's birthdays, from after school or 3:00pm until 7:00pm if a school day and from 9:00am until 1:00pm if a weekend day.
12.5On the Father's birthday (27 July) from after school or 3:00pm until 7:00pm if the Father's birthday occurs on a school day and from 9:00am until 5:00pm if a weekend day.
13.Until further Order, the children spend time with the Mother on the following special occasions if not already spending time with her:
13.1 From 4:00pm on the Saturday immediately prior to Mother's Day until 4:00pm on Mother's Day in 2022;
13.2 On each of the child's birthdays, from after school or 3:00pm until 7:00pm if a school day and from 9:00am until 1:00pm if a weekend day.
13.3 On the Mother's birthday from after school or 3:00pm until 7:00pm if the Mother's birthday occurs on a school day and from 9:00am until 5:00pm if a weekend day.
13.4 That at all other times that not provided for in these Orders, the children shall live with the Mother except as agreed between the parties.
Medical
14.The parties shall inform each other by telephone in the case of serious injury, illness or other emergency involving any of the children and by text message in all other cases, as soon as practicable of any illness, injury or accident involving any of the children and will inform the other parent within 48 hours of any attendances upon any health professional and of the treating practitioner's details.
15.The parties will inform the other party of any change to the children's medical practice or details of other treating medical professionals within five (5) business days of any change.
16.Both parties are at liberty to obtain copies of the children's medical and dental records at their own costs.
17.That until further Order, neither party will take any steps or cause any third party to take steps to vaccinate, or attempt to vaccinate, the children against COVID-19.
Communication with the Children's Schools
18.Each parent is at liberty to attend parent-teacher interviews, assemblies, awards ceremonies and other school events that parents would ordinarily attend.
19.Each parent is at liberty to obtain copies of school reports; newsletters; school photographs and other documents and school records at their own cost.
20.Each parent is permitted to provide a copy of these Orders to any of the children's schools.
Communication
21.That all communication between the parties shall occur via the Talking Parents Application.
Procedural
22.That the parties do all things necessary to engage a single expert, as agreed, on terms as agreed, to prepare an expert report pursuant to the relevant Rules and the cost of that report be shared equally by the parties.
23.That the parties be at liberty to provide their affidavit material to the agree psychologist for the purpose of Order 6 sought by the Mother in her Initiating Application.
Restraints
On a no-admissions basis:
24.Each party is restrained from making critical, derogatory or denigrating remarks in relation to the other party to or in the presence of any of the children.
25.Each party shall ensure the children are not exposed to family violence during any times that the children are living with or spending time with them.
26.Each parent is restrained from discussing the family law proceedings or the contents of any documents filed in these proceedings with or within the hearing distance of any of the children.
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