Boulton & Boulton
[2022] FedCFamC1F 295
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Boulton & Boulton [2022] FedCFamC1F 295
File number(s): SYC 1491 of 2021 Judgment of: ALTOBELLI J Date of judgment: 6 May 2022 Catchwords: FAMILY LAW – INTERIM PARENTING – Where parties entered into interim consent orders as to parenting in October 2021 – Where time between the children and the father is not occurring despite the interim consent orders – Single Expert Report available – Limited cross-examination conducted at interim hearing – Finding of family violence – Finding that risk is not unacceptable and can be managed by supervision – Orders made for the children to resume spending time with the father in accordance with the consent orders made in October subject to some variations. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA Cases cited: Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Division: Division 1 First Instance Number of paragraphs: 78 Date of hearing: 31 January 2022, 29 March 2022 Place: Sydney (via videoconference) Counsel for the Applicant: Mr Kearney SC on 31 January 2022 Solicitor for the Applicant: Ms Burreket on 29 March 2022, Broun Abrahams Burreket Counsel for the Respondent: Mr Lethbridge SC on 31 January 2022 Solicitor for the Respondent: Ms Winter on 29 March 2022, Pearson Emerson Family Lawyers Solicitor for the Independent Children's Lawyer: Mr Bourne, Medcalf Grant Lawyers ORDERS
SYC 1491 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BOULTON
Applicant
AND: MS BOULTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
6 MAY 2022
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.Orders 2–13 made by consent on 13 October 2021 are discharged.
2.The children, X born 2010 (“X”), Y born 2015 (“Y”) and Z born 2015 (“Z”) (together referred to as “the children”) live with the mother.
3.The children spend time with the father as follows:
(a)During school term time:
(i)Each Wednesday from after school (or 3pm on a non-school day) until 7pm, NOTING THAT the father is to ensure the children have had dinner and done their homework, and will endeavour to ensure that Y and Z have had their bath, before they return to the mother’s care (unless otherwise agreed between the parties); and
(ii)Each Saturday from 9am to 5.30pm.
(b)During school holiday periods:
(i)Each Wednesday from 9am to 5pm; and
(ii)Each Saturday from 9am to 5pm.
(c)At such other times as agreed between the parties in writing.
4.X may, either instead of or in addition to the time stipulated in Order 3, spend time with the father as follows (unless X and the father agree to a different day and time):
(a)During term time:
(i)Each Thursday from after school (or 3pm on a non-school day) until 7pm, NOTING THAT the father is to ensure X has had dinner and completed her homework, before she returns to the mother’s care (unless otherwise agreed between the parties);
(ii)Each Sunday from 9am to 5.30pm.
(b)During school holiday periods:
(i)Each Thursday from 9am to 5pm; and
(ii)Each Sunday from 9am to 5pm.
5.The time that the children spend with the father pursuant to Orders 4 and 5 is to be supervised by H Contact Service (unless otherwise agreed between the parties), with the cost of the supervision service to be met by the father.
6.On a without admissions basis, the changeovers from one parent to the other are to occur:
(a)where possible at the children’s schools, being E School or G School at present; or
(b)to be supervised by H Contact Service, with the mother to deliver the children to the H Contact Service supervisor at J Park Suburb K at the commencement of their time with the father and the supervisor will deliver them to the father’s place of residence. The father will then deliver the children back to the supervisor at J Park Suburb K and the supervisor will deliver the children to the mother at the Suburb B property at the conclusion of time.
7.The children shall communicate with the father by FaceTime for a period of up to 30 minutes, as follows:
(a)Each Monday at 3.45pm; and
(b)Each Thursday at 5pm,
such FaceTime to be facilitated by the mother calling the father NOTING THAT if the father is unavailable to communicate with the children at the times set out in Order 7 due to work commitments, the mother will facilitate the children communicating with the father within 30 minutes after the call was scheduled to take place subject to the father’s availability and work commitments in that period.
8.The father is permitted to send text messages, emails and instant messages to X between 7am and 8pm. During the time that the children are to spend with the father as set out in Orders 3 and 4 above, the mother is hereby restrained from initiating telephone, FaceTime or text message contact with the children unless otherwise agreed between the parties.
9.The father is permitted to send not more than one parcel and/or letter to each of the children per week and the mother is to pass on the unopened letters and/or parcel to the children.
10.The father be permitted to play online games with the children provided that this does not interfere with their schooling and homework, curricular and extra-curricular activities, mealtimes at home and their sleep routines, and does not occur more than once every second day with a child.
11.The Independent Children's Lawyer is authorised to communicate with any of the persons named in Order 1 of the orders made 13 October 2021 (including any other therapist permitted to receive a copy of Dr L’s Report by subsequent order) for the purposes of confirming the extent of the parents' and children's engagement with those persons and to inform the Independent Children's Lawyer as to the appropriate timing of a meeting between the children (or any of them) and the Independent Children's Lawyer.
12.When requested to do so by the Independent Children's Lawyer, the parents shall facilitate the children meeting with the Independent Children's Lawyer without unreasonable delay.
13.Neither parent shall allow the children (or any of them) to use or view any phone, iPad, tablet or other device (“device”) used by a parent unless email, dating and other communications applications are disabled or secured in such a way that the child/children cannot access those applications or related data EXCEPT WHERE the parent is present and is supervising the child’s use of the device.
14.On a without admissions basis the mother and the father each be restrained from:
(a)Assaulting, molesting, harassing or interfering in any manner with each other;
(b)Physically disciplining, yelling, molesting, harassing or interfering in any manner with each and all of the children;
(c)Discussing with the children, or each of them:
(i)These proceedings or the contents of any documents filed in or intended for use in these proceedings, other than with leave of the Court;
(ii)Dr L or his report;
(iii)Any of the children's treating medical practitioners, including counsellors, school counsellors, psychiatrist or psychologists; and
(iv)Any discussions the children have had with the Independent Children’s Lawyer.
(d)Doing or saying anything to the children, or in their presence or hearing, which is derogatory to the other party or detrimental to the relationship the other party has with each of the children.
15.Leave is granted to the Independent Children’s Lawyer to file consent orders in chambers as to the preparation of an updated Single Expert Report by Dr L.
16.The final hearing of this matter is expedited.
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 Boulton & Boulton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
This case concerns three children, X (“X”) born in 2010 (now 12 years old) and her twin brothers Y (“Y”) and Z (“Z”) born in 2015 (now six years old) (collectively referred to as “the children”). The Court had to decide what orders for the children to spend time with their father were in their best interests. These reasons for judgment explain the orders made, pending the final hearing of this matter which, subject to the readiness of the parties, should take place sometime this year.
BACKGROUND
The Independent Children’s Lawyer produced a very useful chronology in his case outline document, drawing on the affidavits of the parents that had been filed, save for their affidavits of 25 and 27 January 2022. This chronology is reproduced in Schedule A to these reasons, and is summarised below.
Ms Boulton (“the mother”) is the Applicant in the substantive proceedings but is the Respondent in the present interim proceedings. She is 47 years old and describes her usual occupation as being a mother. Mr Boulton (“the father”) is the Respondent in the substantive proceedings but is the Applicant in the present interim proceedings. He is 46 years old, and describes himself as a health professional. They started living together sometime in 2005, or possibly early 2006. They married in 2006. The impression formed is that it rapidly became a conflictual, unhappy relationship, a situation that became worse as the children were born. The mother alleges that the father started to be abusive and violent to her from as early as cohabitation. Her affidavits depose to increasingly controlling and coercive behaviour as time passed. The parents separated in December 2014 and the mother commenced proceedings in the Family Court of Australia (as it was then known). However, they reconciled in 2015 and in early 2015 they discovered that the mother was pregnant with twins. She filed a Notice of Discontinuance in the Family Court proceedings. The conflict between the parents appears to have increased, and the oldest child, X, was exposed to this. On 3 August 2019 the police issued an Apprehended Domestic Violence Order (“ADVO”) which was to be heard on 13 August 2019. The mother withdrew this. In September 2019 the Department of Family and Community Services (as it was then known) became involved with the family, but there was no intervention. Early in 2020 there was another brief period of separation. In mid-2020 the mother deposes to X telling her that she wanted to die, and disclosing self-harm by way of cutting. The mother alleges that the father became increasingly violent towards the children. In early 2021 the police were called as a result of an incident. The parents separated later that month, but continued to live under the same roof. The mother commenced the present proceedings in early 2021. At the same time, the father commenced seeing a psychologist, Ms M (“Ms M”), and H Contact Service became the supervision service provider in respect of the father’s time with the children.
On 22 March 2021 the parents entered into interim consent orders in relation to parenting and maintenance. Relevantly, the orders provided for the father to spend time with the children supervised by N Contact Service or another supervision service as agreed between the parents. Under these consent orders, the father was to spend six occasions with the children on specified dates between 28 March 2021 and 19 April 2021, with each occasion involving time with Y and Z from 9 am to 1 pm, and with X from 1 pm to 5 pm. Thereafter, the father was to spend each Saturday during the school term with the children, again with Y and Z from 9 am to 1 pm, and with X from 1 pm to 5pm. The orders also provided for the father to spend additional time with the children on specified dates, on some days from after school until 6.30 pm, and on others from 9 am to 5pm. Various injunctions were made against both parents, and Dr L was appointed as a Single Expert. His report was prepared on 31 August 2021.
X’s mental health significantly deteriorated after early 2021. In mid-2021 she experienced multiple episodes that resulted in her being hospitalised in relation to her mental health. In late 2021 there was an incident at changeover in which the mother alleges the father threatened to kill her. A few days later the police issued a provisional ADVO in relation to the incident, which was ultimately withdrawn by the police on 24 March 2022.
On 13 October 2021, further interim orders were made by the Court for the children to spend supervised time with the father each Wednesday from after school until 7 pm and each Saturday from 9 am to 5.30 pm during the school term, as well as each Wednesday and Saturday from 9 am to 5 pm during the school holidays. Further orders were made for FaceTime contact and restraining the father from contacting the children.
Notwithstanding these orders, the father has not spend time with X since late 2021. He has had electronic communication with her on at least a sporadic basis. The father’s time and communication with Y and Z have been very limited since late 2021.
On 8 December 2021, the father filed an Application in a Proceeding seeking an urgent listing to consider the variation of interim parenting orders made on 22 March 2021 and 13 October 2021. His request for an urgent listing was denied and on 10 December 2021, the father filed an Application for Review of that decision. The Application for Review came before me on 12 January 2022. I granted it and set the matter down for interim hearing on 31 January 2022. On 23 March 2022, the father filed an Application in a Proceeding seeking to reopen the interim proceedings, in which judgment was reserved, for the purpose of adducing further evidence relating to the withdrawal of the provisional ADVO issued against him on 24 November 2021. This application was granted and submissions on the newly adduced evidence were made on behalf of each parent and the Independent Children’s Lawyer on 29 March 2022.
COMPETING PROPOSALS
By the time that the evidence was concluded, which was after the Court had granted the father leave to reopen and adduce further evidence, the final competing proposals were as follows.
The father proposed that Orders 27, 28, and 29 of the orders made on 22 March 2021 and Orders 2–8 of the orders made on 13 October 2021 be discharged. He proposed that the children live with the mother, and that from the date of the orders until the conclusion of Term 2, 2022, Y and Z spend unsupervised overnight time with him from after school Friday until midday on Sunday in alternate weeks, as well as alternate Wednesdays from after school to 7 pm. From Term 3, 2022 to the conclusion of Term 4, 2022, Y and Z would spend each alternate weekend with him from the conclusion of school on Friday until the commencement of school on Monday, in addition to the time on alternate Wednesdays. From Term 1, 2023 and thereafter, pending further order, Y and Z would spend time with the father from after school on Thursday until the commencement of school on Monday in alternate weeks, plus the time on alternate Wednesdays. On the father’s proposal, Y and Z would spend half the school holidays with each parent, on an alternating week basis.
In relation to X, the father proposed that for a period of six weeks from the orders, she would spend each Saturday from 10 am to 5.30 pm with him, in addition to alternate Wednesdays (on the Wednesdays when the father is not spending time with Y and Z) from after school to 7 pm, with such time to be supervised by H Contact Service. Thereafter, time would become unsupervised and align with the arrangements for Y and Z. Changeovers would happen, if possible, at the children’s schools or by each parent delivering the children to an H Contact Service supervisor at a specified public place in Suburb K, with the supervisor to then deliver the children to the other parent. The father further sought orders in relation to special occasion time, FaceTime contact, orders permitting him to play online games with the children, and various ancillary orders.
The mother proposed that Orders 3, 4, and 5 of the orders made on 13 October 2021 be discharged and that the parties request from Dr L an addendum to his report, assessing the impact of the alleged family violence on the mother and the children. Pending the release of that addendum, the mother proposed that the children spend time with the father supervised by two supervisors at a time from either P Contact Service or N Contact Service, from 9 am to 12 pm each Saturday during term time, and from 9 am to 12 pm each Wednesday and Saturday during school holidays. The mother also proposed special occasion time. She proposed that there be no FaceTime contact pending the release of the addendum, and that the mother have leave to amend her orders sought upon the inspection of recent subpoenaed material and the release of the addendum. For the purposes of changeover, the mother, in effect, proposed that the supervising service collect the children from one parent and deliver them to the other, such that the parents never come into direct contact with each other. She further sought a number of injunctions against the father.
The Independent Children’s Lawyer proposed that the children largely continue to spend time with the father as set out in the orders of 13 October 2021, provided that X not be required to spend time with the father against her wishes. The Independent Children’s Lawyer also proposed that the mother be at liberty to arrange for supervision arrangements to be provided by a service other than H Contact Service, and that changeovers take place at the contact service.
EVIDENCE
In support of his case, the father relied on the following:
(a)Single Expert Report prepared by Dr L dated 31 August 2021;
(b)Application in a Proceeding filed 8 December 2021;
(c)His affidavit filed 8 December 2021;
(d)Notice of Child Abuse, Family Violence or Risk filed 8 December 2021;
(e)His affidavit filed 11 January 2022;
(f)His affidavit filed 27 January 2022;
(g)Case outline filed 27 January 2022;
(h)Application in a Proceeding filed 23 March 2022;
(i)His affidavit filed 23 March 2022;
(j)The transcript of proceedings of the review application hearing on 12 January 2022;
(k)Amended minute of order dated 31 January 2022, marked as exhibit A3 on 31 January 2022;
(l)Various documents tendered and marked as exhibits A1 and A2 on 31 January 2022; and
(m)Various documents tendered and marked as exhibits A1–A3 on 29 March 2022.
In support of her case, the mother relied on the following:
(a)Single Expert Report prepared by Dr L dated 31 August 2021;
(b)Response to Application in a Proceeding filed 25 January 2022;
(c)Her affidavit filed 25 January 2022;
(d)Notice of Child Abuse, Family Violence or Risk filed 27 January 2022;
(e)Case outline filed 27 January 2022;
(f)Response to Application in a Proceeding filed 28 March 2022;
(g)Her affidavit filed 28 March 2022; and
(h)Various documents tendered and marked as exhibits R1–13 on 31 January 2022.
In support of his case, the Independent Children’s Lawyer relied on the following:
(a)Mother’s affidavit filed 4 March 2021;
(b)Father’s affidavit filed 18 March 2021;
(c)Application in a Proceeding filed by the father 8 December 2021;
(d)Father’s affidavit filed 8 December 2021;
(e)Application for Review filed by the father 10 December 2021;
(f)Mother’s affidavit filed 25 January 2022;
(g)Father’s affidavit filed 27 January 2022;
(h)Case outline filed 31 January 2022
(i)Amended minute of order dated 31 January 2022, marked as exhibit ICL3 on 31 January 2022;
(j)Application in a Proceeding filed by the father 23 March 2022;
(k)Father’s affidavit filed 23 March 2022;
(l)Response to Application in a Proceeding filed by the mother 28 March 2022;
(m)Mother’s affidavit filed 28 March 2022;
(n)Father’s case outline filed 28 March 2022;
(o)Case outline filed 28 March 2022; and
(p)Various documents tendered and marked as exhibits ICL1 and ICL2 on 31 January 2022.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(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).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
(Emphasis in original)
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Emphasis in original)
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
(Emphasis in original)
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(Emphasis in original)
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
(Emphasis in original)
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, 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.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
FINDINGS
The following findings are made by this Court notwithstanding that this was an interim hearing. The findings are possible as the Court allowed limited cross-examination of the parents. It must be recognised, however, that these are findings in the context of a circumscribed hearing at which limited cross-examination was permitted in circumstances where the Court felt strongly that a better quality interim decision would result from even limited cross-examination of the parents.
On 13 October 2021 the parents entered into interim consent orders fully aware of all events predating the orders, having had the benefit of a Single Expert Report from Dr L and having had excellent legal representation.
The mother has not complied with the orders in relation to X since the visit on 13 November 2021, and in relation to the boys since 27 November 2021, whether in terms of facilitating in person time, or electronic communication. Indeed, the mother admitted in cross-examination that before 27 November 2021 she had decided that she would not compel X to spend time with her father. None of the evidence before the Court establishes a reasonable basis for the mother’s restriction on any of the children having any form of electronic communication with their father. There is simply no basis for the mother seeking to restrict the children from participating in electronic gaming with the father. Insofar as the mother asserted that the risk of harm to the children from electronic communication was the father’s emotional dysregulation in the form of his anger, and his criticism of the mother, the Court finds that the evidence of this does not establish unacceptable risk.
X has a long history of emotional problems and, consistent with the opinion of Dr L, is at risk of developing a personality disorder. The father in cross-examination accepted that there was at least the possibility that if the supervision of his time with X was lifted, it could cause a further breakdown in her mental health.
The parental relationship is characterised by intractable conflict between the parents which has not abated over time. Both parents manifested in the evidence a critical attitude towards the other parent, including about their parenting capacity. The father described the familial conflict as being “toxic and horrible”. The evidence supports the father’s assessment.
Throughout the parental relationship the mother was the primary carer of the children and it is not part of the father’s case that the children should not live with her.
X believes that her father called her a “bitch” on or about 13 November 2020 during a supervised contact visit. The Court finds that, more likely than not, the father did call her a “bitch”. This is consistent with X’s subsequent communication with her mother to that effect and the records of the supervised contact during which this took place. This was highly distressing to X. When cross-examined about this incident, while he denied calling X a “bitch”, the father admitted that he was frustrated on the day, and that it was a horrible, high conflict day. X has not spent time with her father since that day, but has had electronic communication with him, including recently.
The father accepted that Dr L had legitimate, reasonable concerns about his potential for vindictiveness towards the mother. He did not deny this, whilst having the opportunity to do so. He insisted that he simply wanted to have a relationship with the children.
The mother lacks confidence in the capacity of the current supervised contact service, and its individual supervisors, to manage the father and his behaviour. There is no basis for this from the evidence. The records created about supervised contact are comprehensive and even-handed. The children seemed to have related well with this service, and the supervisors it used. It would be to their disadvantage to introduce a new service, should the Court consider it appropriate to do so.
The father has perpetrated family violence as defined in the Act. The mother characterised this violence as coercive and controlling violence. This finding is partly made on the basis of the father’s own admissions in cross-examination. For example, he admitted that during an argument he took the mother’s telephone, wallet, and keys so that she could not leave the home. He admitted that he slapped the mother on the left cheek on an occasion when the children were present in the home. He admitted that he told X that the mother’s parenting was “pathological and malignant”. The father attempted to communicate with a gentleman who the mother was seeing. The reasons the father gave for doing this in cross-examination were unconvincing. It is more likely than not, the Court concludes, consistent with the mother’s case, that the father’s communication with this gentleman was for the purpose of intimidation.
However, the Court does not accept that the father threatened in the car to kill the mother as alleged by her in late 2021. This finding is based on inconsistencies within the mother’s evidence, inconsistencies between the mother’s assertion and her subsequent action in allowing Y and Z to spend time with their father after this incident. The subsequent drawing made by Y referring to this incident which occurred in his presence does not assist the mother’s case. It is more likely than not that the drawing was influenced by what the mother had told Y. The only other adult present at the time, the supervisor, did not hear the father make the alleged threat. The subsequent withdrawal by the police of the ADVO prior to hearing is another factor that contributes to the Court’s finding.
All of the evidence indicates that any form of changeover that involves the parents coming into physical proximity with each other is strongly contraindicated. For the time being, changeovers will either need to take place at the children’s school, or using a supervised contact service. The Court does not accept the submissions made on the mother’s behalf that school should not be used for changeover purposes. That may well be the case in an ideal world, but the world for these children is hardly ideal.
IMPRESSIONS FORMED
The Court has formed a number of impressions from the totality of the evidence and, as is frequently the case in making interim orders on the basis of limited evidence, these impressions have influenced the Court’s decision. Of course, further evidence may well displace these impressions.
The life trajectories for the children are bleak. The Court’s experience in these cases is that the children will continue to suffer the impact of being caught in the intractable conflict of their parents long after the parents have themselves moved on with their lives. The parents would do well to imagine in their minds that the toxicity which permeates their parental relationship and conflict is like an insidious, poisonous cloud that enshrouds the children’s lives and which will cling to them at every stage of their development into their adulthood. This poisonous cloud has the potential to stunt the children’s emotional development and turn them into psychologically disfigured, distorted and unhappy people. Even now, however, it is possible for the parents to change this trajectory of their children’s lives. All this Court can do is make orders. It is for the parents to change their own attitudes towards each other in order to optimise their children’s opportunities for healthy development.
The professional view of Dr L is, of course, untested. Nonetheless, his opinion is both expert and independent.
Dr L believes that X has almost given up as to whether anyone will listen to her. This is a matter that must be taken into account in determining what weight should be given to any views that she expresses. It is likely that what she says to the mother and father needs to be interpreted through the lens of wanting to please both parents.
Dr L believes that parental conflict throughout X’s life is clearly at the heart of the difficulties that she experiences.
Dr L’s impression about the father is that he does have capacity to turn on his own children. His impression is consistent with the Court’s impression that the father struggles at times to manage his anger, particularly when he experiences frustration. The father is engaged with a psychologist, Ms M, and the Court’s impression is that he is on the road to gaining some insight about his own anger, violence and controlling behaviour. The father is clearly motivated by the desire to resume what he considers to have been the good relationship with his children. He travels on a long and winding road. The journey may well be a long one.
One tentative impression formed by the Court is that an example of the father’s controlling behaviour was his desire to control X’s unrestricted access to the counsellors available at her school. In cross-examination he explained that this was motivated by a desire to avoid X having to discuss family matters with multiple helping professionals. The Court does not accept this in the context of this case. Whilst his concern that the mother could more easily influence the information communicated to those helping X at school is not unreasonable, from the Court’s perspective that issue should be managed in other ways. The vulnerability of X must be self-evident to her parents, as must be the benefits of accessibility to school counsellors for X. Like most children in this Court’s experience, X, Y and Z are likely to experience school as a safe haven.
The impression of Dr L, consistent with the Court’s own impression, is that neither parent has adequate insight into the role that they themselves have played in exposing the children to, and failing to protect them from, their insidious parental conflict.
The mother’s proposal that the children should decide for themselves whether they spend time with their father, or remain with their father is, on balance, unlikely to be in their best interests for the time being. Y and Z are too young to take on this responsibility, and X too vulnerable. The Court has already found that the mother sought to influence Y in the diagram that he drew after the incident on 24 November 2021. The impression formed is that the mother has, whether consciously or unconsciously, directly or indirectly, influenced the children’s perspective on their father. This may well be attributable to her experience of being the victim of family violence, including controlling and coercive violence. Understanding why the mother might behave in this fashion does not, however, justify it. It merely contextualises it.
Related to the above, the Court notes that Dr L has concerns about the mother’s relationship with X, and whether it is an enmeshed one. From the Court’s perspective, there may be a relationship between this hypothesis, the mother’s non-compliance with Court orders to which she consented, and the resist/refuse dynamics exhibited by X.
The ADVO taken out following the events of 24 November 2021 was withdrawn by the police on 24 March 2022. The impression formed from the material before the Court is that the ADVO was withdrawn because the police did not believe that there were reasonable prospects of success.
DISCUSSION
This is a complex case. Subject to one caveat this case needs to be expedited because of the risk to the children of continued exposure to the toxic parental conflict. Provided the parties can be ready for a full hearing on all issues before the end of this year, hearing dates will be allocated. One of the things that will need to be done is the preparation of an updated Single Expert Report by Dr L. Leave will be granted for the Independent Children’s Lawyer to file consent orders to that effect. The caveat referred to above, however, is that deferring the hearing by a few months maximises the opportunity for the children and parents to benefit from the various therapeutic endeavours in which they are engaged.
The Court’s delay in delivering these reasons for judgment and making orders is regrettable. I will not waste words seeking to explain or contextualise, as my words on this issue should mean nothing to these children.
It is common ground between the parents and the Independent Children’s Lawyer that the children should resume spending time with their father. There is considerable disparity between the proposals about how, exactly, that is achieved. The mother wants to reduce the time ordered on 13 October 2021. The father wants to increase the time, and remove the requirement of supervision immediately for Y and Z, and within a short time of resumption of time for X. The Independent Children’s Lawyer proposes that time resume in accordance with the orders of 13 October 2021, subject to amendments in relation to changeover and the supervision service.
The Court is satisfied that a meaningful relationship exists between the children and their parents, including the father. This is reflected in the orders to which the parents themselves consented on 13 October 2021, as well as Dr L’s Single Expert Report, and it is further corroborated by the supervised contact visit reports. The benefits to the children of a meaningful relationship with their father are self-evident. It is necessary to resume the father’s time with the children in order to ensure that his meaningful relationship with them is allowed to grow.
There is a need to protect the children from harm. The greatest risk of harm arises directly out of the intractable and toxic parental conflict. Such conflict is both abusive and neglectful. The parents are directly responsible for exposing their children to the emotional and psychological risks consequent on their behaviour.
The Court is satisfied that there has been family violence to which the children have been exposed. The father has perpetrated this violence. The mother has experienced both physical violence and coercive and controlling violence from the father. Through counselling, the father slowly appears to be gaining insight into the effect of his behaviour on the mother and children. The Court is confident that the risk to the children is predominantly psychological, rather than physical, because of the close scrutiny of pending Court proceedings, and the counselling from which the father is benefiting. The experience of X in being exposed to family violence as well as parental conflict has contributed to her mental health issues and has made her a very vulnerable child. The Court believes that both Y and Z are also vulnerable, but to a lesser extent. The father’s family violence is, in itself, a strong reason to maintain supervision of his time with the children. The Court notes that it has a clearer picture, and is able to make findings about family violence, in contrast to the observations made by Dr L in his report based on allegations. Nonetheless, Dr L was entirely correct in suggesting that the parents have together caused their children to be exposed to significant verbal and emotional domestic violence which has been harmful to all of them, particularly X.
This is not a case where the Court is prepared to place any significant weight on the views purportedly expressed by the children. The younger boys have neither the maturity nor the level of understanding to express a view. X is caught in the crossfire of her parents’ conflict which, in the opinion of this Court, firstly, renders any expression of views unreliable and, secondly, would place her in an impossible loyalty conflict if her views were acted on. For the same reasons, the Court rejects the mother’s proposal which would enable the children, in effect, to decide whether they spend time with their father.
Until the events of November 2021, there were indications that the children had a good relationship with their father. The mother’s cessation of time has inhibited this. X’s relationship with her father is much more complex for multiple reasons including his past behaviour towards her, her individuation, and the emotional problems she experiences. Nonetheless, the only communication that has existed between the children and the father since the mother ceased time is between X and the father. There is room for optimism in terms of re-establishing the good relationship that once existed. As Dr L observed, and as is partly reflected in the orders of 13 October 2021, there is much work to be done in terms of improving the dynamics of this family.
The mother was responsible for not complying with the orders to which she consented on 13 October 2021. The Court suspects, however, that her experience of the father’s family violence including his coercive control might have distorted her perspective of the events that precipitated the cessation of time. This meant that she excluded the father from the children’s lives from November 2021. The Court must acknowledge, however, that the situation in relation to X is more complex. Nonetheless, there is much more the mother could have done even as regards X’s relationship with her father.
As a result of the cessation of time, the children have lost the opportunity to continue to build their relationships with their father. The resumption of time is not a change in their circumstances that will be adverse to them, provided adequate safeguards are put in place.
There are no discernible issues relating to practical difficulty and expense of the children spending time with their father. This family has used the services of professional supervised contact providers and will continue to do so for as long as it is Court ordered. The Court sees no reason to change the existing provider.
Issues abound in relation to the capacity of each of the parents to provide for the emotional needs of the children, and in relation to their attitudes about the children and the responsibilities of parenthood. These reasons for judgment are replete with examples in this regard. The father is engaged in counselling, the effect of which may well assist him to improve his parental capacity, at least in part. He must persist with this in order to maximise the benefits of a loving relationship between the father and the children. His attitude must be that this is something he does for the children, rather than being a box to be ticked along the litigation pathway so as to optimise the chances of securing the orders that he seeks. The mother must likewise continue to engage in her counselling and therapy, not just to recover from her experience of surviving family violence, but to re-orientate her own attitudes about the children’s relationship with their father. The children must also be supported through all of this.
But for the toxic parental conflict that exists, one would have thought that the children should otherwise be given every opportunity to develop to their full potential.
ORDERS IN THE BEST INTERESTS OF THE CHILDREN
It is common ground that the children will continue to live with their mother.
The first contentious issue is whether the children’s time with their father remains supervised as is contended by the Independent Children’s Lawyer and the mother, or whether it becomes unsupervised as proposed by the father for Y and Z, but supervised for X for six weeks. The father’s time with the children should be supervised for the period of at least six months recommended by Dr L in his report at page 76. Specifically, Dr L stated:
Given my concerns about both parents’ parenting and about [X’s] vulnerability, all of whom require counselling therapies tailored to each individual’s needs, I am of the view that professional supervision should not be lifted until all three have been stably engaged in counselling for at least six months, [X] with a focus on mood and behaviour self-regulation, [Mr Boulton] with a focus on attunement to his children rather than his own perceived emotional needs, and [Ms Boulton] on recalibrating the intensity of her relationship with [X] and her capacity to regulate her moods.
(Emphasis in original)
With the greatest of respect to the parents, their polarised proposals placed before the Court, no doubt after consideration of legal advice, do nothing to reassure the Court. The father’s proposal (to increase his time with the children) smacks of entitlement and self-focus rather than manifesting an attunement to the needs of his children. The mother’s proposal (to reduce the children’s time with their father) reflects a possible incapacity to regulate her own moods and feelings about the father, and a lack of understanding about the importance of the children’s relationship with him. Both proposals reflect indifference to, and possible cherry-picking of, Dr L’s report.
At page 75 of his report, Dr L gives four reasons for not lifting professional supervision. Eight months have passed, and hardly anything has changed. X remains emotionally fragile. The mother continues to harbour doubts about supervision, and continues to deeply distrust the father. The children continue to be exposed to a great deal of family instability, and now have not spent time with the father for many months. The father has commenced, but not completed his counselling. He is on the road to improvement, but has some further distance to travel.
The evidence in favour of continued supervision in this case is overwhelming. The Court nonetheless acknowledges that the supervised contact reports are quite positive but, as the Independent Children’s Lawyer submitted, that does not ipso facto mean that unsupervised contact will be positive for the children.
The second contentious issue is whether the children’s time with their father should be varied from the order made 13 October 2021. As foreshadowed above, the mother wishes to limit the time, but the father wishes to increase it. At pages 76–77 of his report Dr L explains how the children’s time should progress from supervised, to unsupervised, and gradually extend time-wise. Specifically, at page 77 he states:
In terms of the length of time the children should spend with their father once supervision is lifted, I suggest it builds up from one full day visit each weekend, to two full days on alternate weekends, to one overnight then two then three then four overnight blocks centring on alternate weekends over the course of the equivalent of about three school terms. The weekday visits could continue for the boys throughout, but weekdays could become discretionary for [X] once she enters Year 8.
Given the events that have transpired since Dr L’s report, there is no room for optimism about progression to unsupervised time, and then overnight time. The parents, but especially the father, need to address the concerns canvassed in the Single Expert Report and these reasons for judgment before overnight time can be considered. The Court had actively considered drafting orders that provided for a finite period of supervised contact, before progressing to unsupervised contact. Regrettably, it has come to the conclusion that there are too many variables pertaining to the children, the parents, and a further report from Dr L, which would contraindicate providing for this at the present stage. Indeed, the progression to unsupervised and overnight time may well need to, on the facts of this case, be determined at a final hearing.
At this juncture, the Court reminds the parents that they would do well to pay close attention to Dr L’s report and his recommendation for both parents and X to engage in, and continue with, their individual therapy. The parents must reflect on the impact their conflict has had on the children, especially X, and carefully consider how to change their attitudes and behaviour so as not to expose to children to further harm. The importance of therapeutic intervention in a high conflict case like this cannot be overstated.
The Court believes that the Independent Children’s Lawyer’s proposal, for time to continue in accordance with the existing orders, is in the best interests of the children for the time being. The Court acknowledges the submissions made on behalf of the father to the effect that merely continuing the existing arrangement is problematic, as it has not worked to date. Respectfully, the submission attempts to simplify and minimise the underlying complexity of this case. When the reasons for the failure of the existing order are explored, it is much more than the mother’s actions in disregarding the same. Her serious allegation that the father threatened to kill her needed to be explored in cross-examination, as it now has been. The cross-examination has given the Court a much deeper insight into the family violence issues and attitudinal challenges presented by both parents. These are not reasons to move away from an arrangement that was recommended by Dr L who, history may well indicate, might not be surprised to hear of developments which postdate his report. Moreover, and with respect to both parents, the proposals they contended for at the interim hearing were hardly better alternatives than the existing order.
There is an issue about the supervision arrangements. Before contact was unilaterally suspended by the mother, supervision was provided by H Contact Service. The mother wishes to change this, and this is supported by the Independent Children’s Lawyer. The Court believes there is benefit to the children in continuing with the same supervised contact provider. The supervised contact reports in evidence create the impression of good relationships between the children and the supervisor. The Court has formed the impression that the mother’s concerns about the existing provider have no basis. Unless all parties agree, H Contact Service will remain the supervised contact provider.
There are differences in each of the minutes of orders about the precise changeover arrangements. The current arrangement is that the father and supervisor travel in the father’s motor vehicle to collect the children from the mother’s residence or the children’s school. This has created difficulties for the mother in getting the children to contact. This difficulty has nothing to do with the supervised contact provider, but everything to do with the mother and the unfortunate family dynamics that are apparent in this case. The Court is very much attracted to the father’s proposal set out in Order 5 of his minute of order. This requires that all changeovers that are not at school take place at a designated changeover venue, but with the mother delivering the children to the supervisor at that location, rather than the reverse dynamic of the children going from their home into the father’s motor vehicle. This means that for the first part of the transition of the children from the mother’s care to the father’s supervised care, they are accompanied by her, in her motor vehicle. The Court hopes that this will ease the transition for the children as they move from one physical and psychological space to another. It may make it easier for the mother to get the children in the car, though the mother must be reminded that it is her responsibility to make this happen. Accordingly, the existing orders will be varied to reflect this changeover arrangement.
The next issue is that both the mother and Independent Children’s Lawyer propose, in effect, but in slightly different ways, that X be able to decide whether she attends supervised time with her father. The Court notes that it has already rejected the contention that Y and Z can do likewise. The focus will be on X. What is known is that X has expressed the view to Dr L that she would like supervised contact to continue. The Court also accepts that she has continued to communicate with her father, even though she does not see him. Dr L deals with X’s views at page 69 of his report. The greatest concern from the Court’s perspective is the risk identified here, namely that X’s views may be influenced by the mother who, at the very least, has shared grievances about the father with her. He noted the “somewhat rehearsed quality” of some of the things X said to him. Whilst the Court accepts that X is very much a vulnerable child, the Court’s fear is that her vulnerability is exacerbated, and not diminished, by empowering her to decide whether she spends time with her father. Her father would do well, however, to consider the special circumstances of the combination of X’s growing individuation, and her emotional health concerns, should X not attend. As will be seen below, however, there may be other ways for the Court to communicate to X that her views do carry some weight in this case.
The father proposed separate orders for Y and Z to spend time with him, as opposed to X. The Court is attracted to this proposal. Of course, it may increase the cost to the father who finances the supervised contact. It may complicate some of the practical arrangements surrounding the children’s time with their father. Such an arrangement, however, may also create opportunities for the development of quality time for children who are at very different developmental stages, and who have different needs. It is interesting to note at page 46 of Dr L’s report that X believes that Z is her father’s favourite. This may suggest an element of competition in the sibling relationship, which is addressed by spending separate time with the father. Dr L’s description of X’s relationship with her father as being ambivalent may well fit in with this. His concern about the mother’s enmeshed relationship with X may well be another reason to attempt to carve out some special time between X and her father. The orders will provide an opportunity for X to choose whether: she spends time with the father at the same time as Z and Y; she spends time with the father on her own; or whether she spends time with her father both at the time her brothers are there, and then on her own. At all times, however, the time must be supervised.
The father proposes in Order 6 of his minute of order, that each parent to be permitted to attend the children’s school, extracurricular activities and social events during the periods the children are in their respective care, other than by agreement in writing that they are not to attend such events when the children are in the other party’s care. The Independent Children’s Lawyer raised a number of concerns about this, and the Court agrees. Firstly, the parents are not capable of reaching a written agreement about when they are not to attend events. Secondly, the Court has found that the father has perpetrated family violence, including coercive and controlling violence, and thus even the slightest opportunity to bring the parents into the same physical space is potentially traumatising for the mother which indirectly adversely affects the children.
Consistent with the Court’s findings and impressions as set out above, the Court will:
·Permit the father to send texts, emails, and instant messages to X in accordance with his Order 8 of his proposed minute;
·Permit the father to send letters and parcels to children as per Order 9 of his proposed minute;
·Permit the father to play online games with the children in accordance with Order 11 of his proposed minute subject to a number of restraints which are consistent with the report of Dr L;
·Continue the orders that provide for FaceTime, contrary to the mother’s proposal;
·Make mutual restraining orders that are consistent with the proposals of both parents; and
·Decline to make the further orders sought by the parents. The Court notes that the issues raised by the mother in Order 16 of her proposed orders were not issues for the Court to determine when the matter came before it.
The Court accepts that these orders do not cover special occasions. Once these orders are satisfactorily implemented, this issue can be revisited.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 6 May 2022
SCHEDULE A
CHRONOLOGY OF INDEPENDENT CHILDREN'S LAWYER
Key:
M2 – Mother's Affidavit filed 4.3.2021
F1 – Father's affidavit filed 18.3.2021
F6 – Father's affidavit filed 8.12.2021
F7 – Father's affidavit filed 11.1.2022
Date
Event
Source
[…] 1974
Mother born
M2_5, F1_5
[…] 1976
Father born
M2_7, F1_4
[Mid] 2005
Mother and Father started living together (Father says [late] 2005/[early] 2006)
M2_10, F1_6
July 2005
Mother reports that Father started verbally abusing Mother
M2_24
28 September 2006
Mother and Father entered into a binding financial agreement
M2_11, F1_7
[…] 2006
Father and mother married
M2_10, F1_8
December 2009
Mother ceased paid employment
M2_6
March 2010
Mother reports that Father’s verbal abuse of Mother escalated after birth of first child
M2_24
[…] 2010
[X] (a.k.a. ['X']) born.
M2_12.1, F1_9, F6_2
September 2010-March 2012
Mother reports that Father addicted to online gaming and played games approximately 14 hours a day, often staying up until 4am
M2_29
Mid 2011
Father and Mother had an argument in the kitchen whilst [X] was sitting in a highchair. Mother reports that Father said to [X]: ‘Say Mummy’s a bitch’. [X] appeared confused and worried
M2_31
Mid 2012
Mother reports that Father began to view online pornography frequently
M2_29
Mid to late 2012
Mother reports that Father said to Mother: ‘I could kill you, you know. No one would ever know because I can make it look like natural causes. I could inject it in your eyeball or in between your toes. No one would ever find out.’
M2_32
5 January 2013
Mother discovered that Father had been using escorts
M2_33
5 January 2013
Mother reports incident occurred where ‘[Mr Boulton] then picked me up, threw me down on our bed and lay down on top of me.’ ‘[Mr Boulton] came into our bedroom…He then pushed me hard on my right shoulder…shaking my head whilst I was holding [X].’ Incident not reported to police
M2_34
May 2013
Mother reports that Father followed Mother around the house videoing her. He also hit himself on the head
M2_36
27 May 2013
Mother reports that Father elbowed Mother on chin and neck. It became inflamed and bruised
M2_37
[Mid] 2013
Mother sought legal advice.
M2_40
2 August 2013
Mother asked Father to move out. Father left the home for a few days
M2_41
September 2013
Father commenced weekly counselling
M2_42
January 2014
Mother reports that Father threatened to kill Mother; ‘if you ever tell [X] I slept with hookers.’
M2_43
Early 2014
Mother became aware that Father was booking hotel rooms and sending emails to prostitutes
M2_44
Early 2014
Mother underwent IVF
M2_44
May 2014
Mother suffered a miscarriage
M2_45
November 2014
On holiday in [Country O] Father took Mother’s passport and threatened not to return it so that she would be unable to return home
M2_47
December 2014
Mother reports that Father behaved ‘aggressively’ towards Mother on several occasions
M2_53
December 2014
Father listened to and recorded Mother’s conversations. Mother found surveillance equipment all over the house
M2_63-64
2 December 2014
Mother went to [Suburb Q] Police Station and was advised she could apply for an ADVO. Police officer observed finger marks on Mother’s hands
M2_54
3 December 2014
Father took Mother’s laptop and phone and left the house. Father eventually returned them but had accessed and deleted all text messages
M2_55
4 December 2014
Father contacted mother’s ex-partner [Mr R] and left ‘10 abusive voice messages’
M2_56
7 December 2014
Mother and Father separated after Father took photos of Mother’s naked breast while she was sleeping with [X] next to her
M2_57
[Late] 2014
Father attended a rehabilitation clinic
M2_58
18 December 2014
Mother’s lawyers sent a letter to Father’s lawyers asking him to cease his conduct after he had withdrawn funds from their joint bank account leaving Mother without money for herself and [X]
M2_60
22 December 2014
Mother commenced proceedings in the Family Court.
M2_62
January 2015
Mother reports that Father ‘aggressive’ to mother, ‘sexually and otherwise’. Father refused to leave the home and ‘harassed’ Mother daily to drop court proceedings.
Mother overheard Father talking to [X] about it: ‘Mummy wants to take a lot of Daddy’s money…I have to go [X], do you understand?’
M2_66-67
[Early] 2015
Mother and Father reconciled
M2_71
[Early] 2015
Mother found out she was pregnant with twins
M2_72
24 March 2015
Mother filed a Notice of Discontinuance in the Family Court proceedings
M2_73
[…] 2015
[X] cared for by father after birth of the twins. Mother concerned about how Father was caring for [X] as [X] appeared tired and sick
M2_76-77
[…] 2015
[Y] ([Y]) born
M2_12.2, F1_9, F6_2
[…] 2015
[Z] ([Z]) born
M2_12.3, F1_9, F6_2
6 January 2015
Father reports that Mother punched him
F1_85
30 September 2016
Mother and Father renewed vows
M2_83
June 2018-September 2019
Mother saw a psychiatrist, [Dr S], approximately 5 times
M2_114
January 2019
[X] got into trouble from her Father and threatened to leave home. Father did not go after her
M2_89
May 2019
Father became angry with [X] on holiday because [X] didn’t want to go to the deck with him. Father threw [X’s] belongings out of the cabin Father was sharing with [X] and said, ‘It is no longer your cabin’.
M2_92
July 2019
[X] was playing with her father’s phone and a message popped up with a picture of a partially naked woman. Mother said [X] looked confused and scared. [X] spoke to her school counsellor about the incident who advised, ‘I am having significant concerns about [X’s] deteriorating mental wellbeing.’
M2_93
July – August 2019
Mother asked Father to leave home on at least five occasions. He refused
M2_94
August 2019
Mother discovered [X] was hiding her phone and keys after witnessing her Father taking her Mother’s belongings
M2_95
3 August 2019
[X] became distressed witnessing an argument between Mother and Father which resulted in Father beginning to pack a suitcase and slapping Mother. [X] was crying and said: ‘I am sorry mummy, I love you, I was so scared, I heard the slap and didn’t want you to get hurt.’ Mother called the police. Father left with the police
M2_96-106
3 August 2019
Police issued an apprehended domestic violence order
M2_107
3 August 2019
Father stayed in a hotel for a few days then returned home
M2_109
10 August 2019
Mother spoke to a domestic violence counsellor via the police for approximately 1.5 hours. Expressed her concerns that she did not see a way of financially providing for the children without Father
M2_110
13 August 2019
AVDO set to be heard before [Suburb T] Local Court. Father said to the children: ‘have a nice life, Daddy loves you. I might see you again.’
M2_109, M2_112
13 August 2019
Mother withdrew AVO
9 September 2019
Father reports that Mother ‘grabbed [Y] by both his arms, pulled him and shook him’
F1_47
September 2019
FACS issued report and did not recommend removal of children. Caseworker said: ‘I am very concerned…This is not a good situation for them’
M2_116
September 2019
The day after FACS issued their report Mother observed Father ignoring [X] and going out of his way to avoid her. [X] cried the whole way to school and said, ‘I wish I hadn’t told them anything. Daddy hates me. I told you he doesn’t love me’
M2_119
12 October 2019
Father reports that Mother was screaming at Father in front of the children and smashed a plate
F1_47
November 2019
Mother and Father had an argument and Father threatened to throw Mother out of the rental property. Father filmed her crying in front of the children
M2_128
25 November 2019
Father packed the car and left home in front of the children after Mother received a birthday present from someone else. Children were visibly upset. Returned later that evening
M2_131
December 2019-December 2020
Mother reports that Father began to call Mother ‘incessantly’ on her mobile phone and verbally abused Mother if she did not answer right away
M2_134
7 December 2019
Father took photos of Mother asleep
M2_132
January 2020
Mother reported that the children were ‘becoming increasingly on high alert…and were easily upset even over small amounts of conflict'
M2_139
2 January 2020
Father was screaming at Mother and children, Father said that it was doubtful [X] was his daughter as he had never seen a DNA test. [X] began to cry and Father videoed Mother trying to comfort her. Father stopped when Mother called 000
M2_135
5 January 2020
Mother reports that Father’s verbal abuse of Mother began to escalate. Police called and Father advised to leave home for the night
M2_136
[Early] 2020
Father completed a stay at a treatment facility in [City U] to treat his sex addiction
M2_8
[Early to mid] 2020
Mother and Father had a brief period of separation. Father then returned to the home but Mother began sleeping in the spare room
M2_141, F1_39
[Mid] 2020
[X] said to her mother: ‘I don’t want to live anymore, I want to die. I want to hurt myself Mummy, I’ve been cutting.’
M2_145
Mid 2020
Mother reports that Father’s threats and abuse towards [X] escalated. Father threatened to wipe [X's] phone and stop paying her school fees on multiple occasions
M2_145
4 July 2020
Father reports that Mother hit [X] on the head very hard
F1_47
1 August 2020
Father hit [X] hard across her stomach and ribs. Mother called the police
M2_148
August 2020
[X] disclosed to the school counsellor that [X] was having dark thoughts and wanted to end her life and hurt herself with a knife
M2_151
8 November 2020
Father slapped [Y] in the ribs
M2_154
January – February 2021
Mother reported that [Z] and [Y] had begun wetting the bed again and waking from nightmares sobbing
M2_175
30 January 2021
Father pushed Grandmother. The police were called, and Father was arrested and charged with assault. An interim ADVO was issued
M2_162
30 January 2021
Father reports that Mother hit Father during an argument
F1_52
February 2021
Mother reported Father was videoing her every day
M2_176
12 February 2021
Mother was unable to buy things [X] needed for a school camp as Mother had no access to cash or cards. Father came shopping and paid
M2_168
16 February 2021
Father and mother finally separated but living under one roof
M2_14, F1_10
16 February 2021
Mother’s solicitors confirmed to Father that she wanted to separate by email. Mother moved with children to Grandmother’s home
M2_169
1 February 2021
Mother called the police after Father woke her in the night and threatened to cut off money and stop paying the mortgage
M2_164
4 March 2021
Mother commenced proceedings
F6_19
21 March 2021
Father began seeing psychologist [Ms M]
F6_23
22 March 2021
[H Contact Service] became the supervision service provider for supervising the children’s time
F6_6
22 March 2021
Mother and Father agreed on interim orders relating to parenting arrangements, maintenance, and the preparation of an urgent family report
F6_19
6 April 2021 – May 2021
Father reports that [X’s] mental health significantly deteriorated
F6_61
May 2021
Mother called the police and ambulance when she was unable to control [X’s] behaviour at home. [X] was admitted under s22 of the Mental Health Act
F6_60
3 September 2021
Report released by [Dr L]
F6_22
Early November 2021
Father reports that [X] has shown reluctance to come on contact visits with him
F6_74
26 November 2021
Father served with provisional ADVO regarding an incident on 24 November 2021
F6_11
27 November 2021
Father reports that the children have not spent any time in his care since this date (no time with [X] since 13 November 2021)
F6_4, F7_5
8 December 2021
Father filed Application in a Proceeding and requested that it be listed urgently. Application in a proceeding was list for directions hearing on 11 March 2022
F7_11-12
10 December 2021
Father filed Application for Review of registrar's decision
F7_13
29 December 2021
Father logged into [V Online] and interacted with [Z] via avatars. Police contacted Father in the afternoon about this, and suggested that Father should 'unfriend' [Z] on [V Online]
F7_16-21
31 December 2021
Father had text communications with [X]
F7_23-24
9 January 2022
Father had text communications with [X]
F7_39
Note: This chronology has not been updated to include new information from the parents most recent affidavits filed 25.1.2022 and 27.1.2022.
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