Bozic & Bozic
[2021] FedCFamC2F 697
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bozic & Bozic [2021] FedCFamC2F 697
File number(s): PAC 2674 of 2021 Judgment of: JUDGE MURDOCH Date of judgment: 30 November 2021 Catchwords: FAMILY LAW – CHILDREN – Interim parenting proceedings – ex tempore reasons for Judgment – where the Father pled guilty to a charge of an act of indecency – where the Father was later charged with a domestic violence related offence which was dealt with under the Mental Health Act – where a Final Apprehended Domestic Violence Order was issued for the protection of the Mother and children which has now expired – where the Father had engaged in various therapies and courses – allegations that the Father has perpetrated family violence upon the Mother and children – where the children have not seen the Father for some 3 years – one of the children has special needs – where there is an unacceptable risk that supervised time would potentially traumatise the children – Orders made for the children to live with the Mother and spend no time with the Father. Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAC, 69ZL
Mental Health (Forensic Provisions) Act 1990 (NSW), s.32Cases cited: B & B (1993) FLC 92-357
Goode and Goode (2006) FLC 93-286
Lovett & McGregor [2019] FamCAFC 253
Marvel & Marvel (No 2) [2010] FamCAFC 101
Mazorski v Albright [2007] FamCA 520
MRR v GR [2010] HCA 4
Salah and Salah (2016) FLC 93-713Division: Division 2 Family Law Number of paragraphs: 87 Date of hearing: 30 November 2021 Place: Parramatta Counsel for the Applicant: Mr Todd Solicitor for the Applicant: One Law Group Pty Ltd Solicitor for the Respondent: Mr Guede as agent Solicitor for the Independent Children's Lawyer: Ms Rutkowska and later Ms Khalil as agent ORDERS
PAC 2674 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BOZIC
Applicant
AND: MS BOZIC
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
30 NOVEMBER 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The children X born in 2011, Y born in 2014 and Z born in 2016 (“the children”) shall live with the Mother.
2.There be no time between the children and the Father.
3.Pursuant to section 68B of the Family Law Act 1975 (Cth) the Father, is hereby restrained by inunction from:
(a)approaching or contacting the children or the Mother and/ or causing any third person to do so on his behalf;
(b)assaulting, threatening, stalking, harassing or otherwise intimidating the children and the Mother and/ or causing any third party to do so on his behalf;
(c)attending, entering or remaining at any place that the children or Mother may live, attend school, pre school, play group or day care and/ or causing any third party to do so on his behalf;
AND THIS IS an order for the personal protection of the children and the Mother.
4.For the purpose of communicating information about the children to the Father, the Mother shall communicate with the Father in writing by way of email to the Father’s email address and the Father shall provide to the Mother his email address to the Mother’s legal practitioner within 7 days of the making of these orders.
5.In the event any of the children suffer an urgent medical emergency requiring urgent medical attention, the Mother is to notify the Father as soon as practicable with such notification to include full details of the nature of the emergency and the medical practitioner and the medical facility upon which the children attended for such medical emergency.
6.These Orders provide authority for each parent to make arrangements at the children’s school and after school care to obtain the following information and documents at their own costs:-
(a)A copy of all school reports and school photo order forms for the children; and
(b)Notification of parent teacher nights noting that the Father will make the appropriate arrangements to attend such parent teacher nights at a different time to that which may be arranged by the Mother.
7.By consent of the Father, the Father is to regularly provide reports from his treaters regarding his mental health to the Independent Children’s Lawyer.
8.All outstanding interim applications are otherwise dismissed.
9.The matter is adjourned for the Evatt Second Court Event at 11:30 am on 11 February 2021.
10.Leave is granted to the parties to forward to Chambers any proposed terms of settlement with respect to the appointment of the Court Expert noting that the Family Consultant recommends that such expert be a child and family physiatrist or a clinical forensic psychologist with experience in assessing high conflict separated parents.
AND THE COURT NOTES THAT:
A.Order 3 is an order to which a power of arrest without warrant attaches provided the provisions of section 68C(1)(b) of the Family Law Act 1975 are satisfied.
B.In the event terms as to the appointment of the single expert are forwarded to Chambers, so as to progress the substantive proceedings as quickly as possible Trial Directions will issue from Chambers, the further Directions date will be vacated and the matter will be listed for a compliance hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bozic & Bozic has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPOREJUDGE MURDOCH
INTRODUCTION
This matter relates to interim parenting arrangements for the children;
(a)X born in 2011 currently 10 years of age;
(b)Y born in 2014 currently 7 years of age; and
(c)Z born in 2017 currently 4 years of age.
Proceedings were commenced by the Father on 18 May 2021 seeking both interim and final orders.
The Applicant seeks Orders in accordance with the Case Outline filed 3 November 2021; in summary that:
(a)the children live with the Mother;
(b)on a without admissions basis, the Father shall spend time with the children for not less than two hours per week at C Contact Centre or such other Contact Service in the Sydney Metropolitan area nominated by the Father;
(c)the Father to be responsible for the associated costs of such supervised time;
(d)the parties attend a post-separation parenting course
(e)each parent permit and assist the children to contact the other parent by telephone at any time the children express a wish to do so; and
(f)that the Father have telephone time with the children on at least 3 occasions per week, failing agreement every Monday, Wednesday and Friday between 4:00 pm -4.30 pm.
The Applicant Father relies upon:
(a)the Initiating Application filed 18 May 2021;
(b)the Affidavit of Mr Bozic filed 18 May 2021;
(c)the Affidavit of the Paternal Grandmother, Ms B filed 3 November 2021;
(d)the Notice of Child Abuse, Family Violence or Risk filed 18 May 2021;
(e)the Child Inclusive Conference Memorandum dated 9 August 2021 marked as Exhibit A; and
(f)the Father’s Case Outline filed 3 November 2021.
The Respondent Mother seeks Orders in accordance with the Response filed 27 October 2021, in summary that:-
(a)the Mother have sole parental responsibility for the children;
(b)the children live with the Mother and spend no time with the Father;
(c)the Father be restrained by injunction from contacting the Mother or the children by any means unless through the Mother’s legal representative; and
(d)the Father complete an anger management course and domestic violence course.
The Respondent Mother relies upon:-
(a)the Response filed 27 October 2021;
(b)the Affidavit of Ms Bozic filed 29 October 2021;
(c)Notice of Child Abuse, Family Violence or Risk filed 29 October 2021; and
(d)Case Outline filed 29 October 2021;
The Independent Children’s Lawyer filed a proposed minute of Order and that was contained within her Case Outline. In summary, the Independent Children’s Lawyer seeks orders that:
(a)the children live with the Mother;
(b)that the children spend time with the Father for a minimum of 2 hours per fortnight supervised by a contact centre; and
(c)the Father is to regularly provide reports from his treators regarding his mental health.
The Independent Children’s Lawyer relies upon:
(a)the Child Inclusive Conference Memorandum dated 9 August 2021;
(b)the Case Outline filed on 2 November 2021; and
(c)the Independent Children’s Lawyer’s tender bundle.
BACKGROUND
The Mother was born in 1983 and is currently 38 years of age.
The Father was born in 1986 and is currently 35 years of age.
The parties met in 2009 and commenced cohabitation upon marriage.
In November 2010 the Father was charged with committing an “act of indecency.” The Father reported to the Family Consultant that this act of indecency occurred in front of a man in a public toilet who was urinating into a urinal at the time. It is agreed between the parties that the Father pled guilty. The COPS entry tendered during the course of the interim hearing reports that with respect to this incident when being interviewed by the Police the Father stated to the them “I did masturbate after I went to the toilet I was a bit aroused. I know what I did was wrong and I am sorry.”. The Father reports to the Family Consultant that he had “misunderstood what he claimed had been the sexual signals the man had sent him because the man was aroused and he had assumed the man wished to engage in a sexual act with him.” The Father asserts and submitted today that the Mother supported the Father during that time and assisted him in preparing the documents for sentencing. The Mother denies that she assisted in the preparation of those documents.
After the incident in 2011 the Father attended upon Dr E as directed by the Court for a mental health assessment plan and a treatment plan to attend therapy which the Father submits to the Court that he has complied with.
In tao2011 the parties’ first child, X was born. He has been diagnosed with Autism and is non-verbal with global developmental delay. It does not appear to be in dispute that X requires ongoing care including assistance with eating, taking medication, getting dressed, showering and toileting. X requires various therapies including Occupational, Physical, Speech, and behavioural therapy and is in receipt of NDIS funding.
Y was born in 2014.
Z was born in 2017.
The parties agree that the relationship began to deteriorate in approximately 2017.
From 4 August 2018 to 25 August 2018 the Father undertook the “Men and Relationships” course through C Counsellors.
The Mother vacated the home on 20 November 2018 due to an incident between the parties. The parties are in dispute as to the events that occurred on this date. Both parties agree that the Father has not had any contact with the children subsequent to this time.
Ultimately, the events of 20 November 2018 resulted in the police apprehending the Father. The Police took the Father to F Hospital for a mental health assessment and he was released approximately 4 hours later and taken to Suburb G Police Station.
On 23 November 2018 an Interim Apprehended Domestic Violence Order was issued against the Father protecting the Mother and the children.
On 26 November 2018 the Father was charged with Stalk/Intimidate Intend Fear Physical etc Harm – Domestic Violence Related. There is no evidence as to the outcome of this charge before the Court. It appears to be agreed between the parties that the Father was dealt with pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) and a Community Correction Order was imposed upon the Father for 18 months.
After the interim Apprehended Domestic Violence Order was issued the Father attended upon Dr H and it is his evidence that he complied with his treatment plan.
From 10 December 2018 to 8 October 2019 the Father attended upon Dr J for regular therapy sessions at Suburb K. He then engaged in counselling sessions with Ms L, a Couple and Family Counsellor through C Counsellors Suburb M.
On 4 April 2019 a Final Apprehended Domestic Violence Order was issued against the Father protecting the Mother and children for a period of 18 months. That Apprehended Domestic Violence Order expired on 8 October 2020.
The Father to his credit has undertaken several post separation parenting programs.
On 8 March 2021 the Father resumed sessions with Dr J who provided a letter dated 23 March 2021 and this is annexed to the Father’s Affidavit. That letter reports that the Father was administered the Depression, Anxiety and Stress Scale which assesses levels of psychological distress in the preceding week returning normal results for depression, anxiety and stress. The Father was also administered the Kessler 10 which assesses psychological distress in the preceding 4 weeks returning a normal range for such distress. The report notes that the Father’s symptoms appeared to be consistent with a provisional diagnosis of Adjustment Disorder relating to the “custody issues”.
The Father commenced proceedings on 18 May 2021 seeking to spend time with the children.
THE CONDUCT OF INTERIM HEARINGS
In deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.[1] The children’s best interests are ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC of the Family Law Act 1975 (Cth) (“the Act”).
[1] Family Law Act 1975 (Cth) s 60CA.
The Full Court in Salah and Salah [2] affirmed the now well settled pathway with respect to interim hearings as enunciated by Goode and Goode.[3] It also affirmed that the procedure for making interim orders would continue to be a truncated process in which the Court should avoid making findings based on contested facts, but rather look to agreed facts and issues not in dispute, whilst still following the legislative pathway.[4]
[2] Salah and Salah (2016) FLC 93-713.
[3] Goode and Goode (2006) FLC 93-286.
[4]The High Court in MRR v GR [2010] HCA 4 affirmed those principles.
Despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of the responsibility to determine risk.
The Court must also consider the Full Court’s statement in Marvel & Marvel[5] namely, that where risk is alleged in interim proceedings, a conservative approach is warranted.
[5] Marvel & Marvel (No 2) [2010] FamCAFC 101.
As this is an interim hearing I may give my reasons is short form and I am only required to address the relevant considerations as presented by the parties through the evidence and presentation of their case.[6]
[6] Family Law Act 1975 (Cth) s 69ZL, Lovett & McGregor [2019] FamCAFC 253 at [72].
PARENTAL RESPONSIBILITY
As the Court is being asked to make orders as to parenting, the first question to be determined is whether the presumption in the Act that it is in the best interests of the children that the parents have equal shared parental responsibility is rebutted as either:
(a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence (s. 61DA(2)); or
(b)the proceedings are interim and the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order (s. 61DA(3)).
If the presumption is found to apply, it may further be rebutted by evidence that equal shared parental responsibility is not in the best interests of the children.[7]
[7] Family Law Act 1975 (Cth) s 61DA(4).
Pursuant to section 65DAC of the Family Law Act 1975 (Cth), an Order for equal shared parental responsibility requires the parents to make together (and jointly) decisions about major long-term issues affecting the children.
Whilst each of the parties sought orders as to parental responsibility in their respective applications before the Court, no submissions were made by either party today or by the Independent Children’s Lawyer with respect to this issue.
The Father was charged with a count of stalk/intimidate intend fear harm – domestic violence related. There has been an Apprehended Domestic Violence Order between the parties restricting the behaviour of the Father and for the protection of the Mother and the children. The Mother makes very serious allegations as to family violence being occasioned upon her by the Father. This, coupled with the apparent lack of a cooperative relationship between the parties leads me to find that I am satisfied that it is not appropriate in these circumstances for the presumption to be applied when making an order as to parental responsibility at this stage of the proceedings.
In circumstances, however, where as I have stated no party made any submissions as to the issue of the allocation of parental responsibility and there being no evidence before the Court that there is an issue that requires any major long term decisions to be made at this stage, I am satisfied that no order as to the allocation of parental responsibility should be made on an interim basis.
As no order has been made as to parental responsibility the Court is therefore to make such orders in its discretion that are in the best interests of the children as a result of consideration of one or more of the matters in s60CC of the Act.
SECTION 60CC CONSIDERATIONS
The Primary Considerations: s60CC(2)
The primary considerations as set out in s60CC(2) 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.
In applying these considerations, the Court must place greater weight on the need to protect the children from harm than on the benefit to them of having a meaningful relationship with both parents.
“Meaningful relationship” is not defined in the Act, but has been interpreted as “one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.”[8]
[8] Mazorski v Albright [2007] FamCA 520 Brown J concluded at [26].
The Father and paternal grandmother assert that the children have a close and loving relationship with the Father. The Mother alleges that the Father did little to care for the children during the relationship. The Mother alleges that the children are scared of the Father. At paragraph 24 of her Affidavit the Mother deposes that X was “exposed to significant domestic violence” including the witnessing of the Father attempting to suffocate the Mother. She asserts that the violence often occurred in front of the children and that the Father would grab her by the arms and shake her violently causing bruising, he would then pin her to the ground and drag her and attempt to suffocate her. The Mother deposes that the children would often intervene saying “Please stop hurting mummy!” and “Stop it daddy, get off mummy let her go” The Mother alleges that on one occasion whilst the Father was being physically violent towards the Mother by attempting to suffocate her, X was screaming and hit a window so hard that it broke over his hands requiring him to be taken to Suburb G Medical Centre. It is unfortunate that the Mother did not tender any material from Suburb G Medical Centre during the course of this interim hearing.
The Mother says that the Father would lock her and the children in the house or in the car as a means of control.
It is the Mother’s evidence that the children have received medical assistance with respect to their mental health and wellbeing as a result of the family violence that was inflicted upon the children by the Father. The Mother asserts that the children are only now starting to stabilise from the trauma imposed upon them by the Father’s behaviour. Again, it is unfortunate that the evidence of such medical treatment or assistance as asserted by the Mother is not before the Court.
The Father submits today that there is no evidence to support the submission of the Independent Children’s Lawyer that the children would not have a meaningful relationship with the Father. Whilst the parties differ as to the relationship the children had with the Father during the course of the relationship, of more significance in this interim hearing is the weighing up of the relationship the children have now and the benefit of any future relationship between the children and the Father pending a final hearing as against the risk factors that may flow from such a relationship.
The children have not seen the Father for 3 years, subsequent to the parties’ separation. That is a significant amount of time having regard to the young age of all three children.
The risk of harm to the children in the care of the Father is a central issue in this case. In determining whether that risk is unacceptable in the terms of the parenting orders proposed by each party, I am required to engage in a balancing exercise between the risk of detriment to the children from abuse or harm and the possibility of benefit to the children from parental access, and specifically, whether that risk of harm to the children in having access with a parent outweighs the possible benefits to them from that time.[9]
[9] See B & B (1993) FLC 92-357 at 79,778.
The Father without admissions, embraces the difficulties for the Court in a circumscribed interim hearing and proposes on a without admissions basis that the children spend professionally supervised time with him for at least 2 hours per week.
The Mother submits that the risks to the children are such that they cannot be ameliorated by supervision.
The Independent Children’s Lawyer in her Outline seeks an order that the children spend supervised time with the Father. I accept the Father’s submission that the Independent Children’s Lawyer did not formally abandon this position today, but made submissions as to her concerns with respect to the effect on the children, having regard to the long period of time in which they have not seen the Father and X’s special needs, being placed into the care of strangers to see their Father who they have not had a relationship with for some three years.
The risks alleged in this matter are multi-faceted, all of which are serious and concerning to the Court.
The drafting of the Mother’s Affidavit, with respect to her legal practitioner, makes it difficult to read. Whilst this is an interim hearing and thus the Court should be circumspect in making finding of facts, I would have been assisted by more detail in the Mother’s Affidavit than has been provided by her.
Mental Health
The Mother reports to the Family Consultant that she has been diagnosed with PTSD due to the Father’s treatment of her and continues to attend counselling. Again, there is no evidence of this before the Court.
There appears to be no dispute that the Father is living with mental health issues. What is in dispute is the manifestation of such issues and the potential risks that flow from such manifestation to the children.
At paragraph 36 of her Affidavit the Mother alleges that the Father “often made treats to kill himself, the Mother and the children”.
The Father denies that he has a history of attempts at self-harm.
A COPS entry dated 21 November 2018 reports that during the month of October 2018 the parties were in the car with X on their way to a medical appointment. The parties became engaged in an argument during which time the Father is reported as having said “X is already suffering, I should just drive to the train station and kill us all.”
Sometime after this incident (it does not state when) it is reported that the parties and all the children were in the car when the Father started yelling at the mother “I am going to kill us all.”
The COPS entry states that three weeks prior to 21 November 2018 the parties were again in the car with all three children when the Father said “if you divorce me I’m going to kill myself.” The Father is reported as getting out of the car and attending inside the home. Upon the Mother locking the car doors it is reported that the Father came out of the home with a kitchen knife, holding it with his right hand against his neck, and his left hand over his right hand in a motion that he would push the knife towards himself. It is reported that the children started to cry as they saw the Father attempt to hurt himself.
Discharge notes produced under subpoena and tendered during the course of the hearing report the Father presenting to the emergency department in November 2018 after being brought in by the Police “on a section 22 threatening self harm, post a marital dispute –he reported that the threats were made in a hope to save his marriage.” This admission appears to have arisen out of an interaction between the Police and the Father on 21 November 2018 where the Police COPS entry states that whilst speaking to the Father in relation to the earlier incident that day between the parties, he made a comment in relation to self-harm which raised concerns for the Police. The Father is reported as being referred for follow up subsequent to his discharge from hospital. This follow up did not occur as the service were unable to contact the Father despite numerous attempts to do so.
The Father has a vastly different account of the events on 20 November 2018. It is the Father’s evidence that the paternal grandmother picked up a call from the Mother to the Father’s phone and the Mother began shouting “I’m going to bash your mum”. Once home, the Mother shouted names at the Father such as “liar” and proceeded to assault the Father and ripped the cross from his neck and locked the Father inside the home. The following morning the Father was apprehend by police. The Father recalls he says the police saying that he was trying to kill himself and he threatened to kill everyone else which the Father denies. He was taken to F hospital for a mental health assessment and released 4 hours later and taken to Suburb G Police station where he was handed the Court attendance notice.
The Report of Dr H of N Psychology Services dated 2nd April 2019 reports with respect to a risk assessment of the father that “he denied ever thinking about suicide but did mention that there were times during their 8 years of marriage that he threatened to hurt himself if she left him and he wasn’t allowed to see his children.” Even if the Father did not intend on acting on this threat, if such a report is true it would appear to be the Father engaging in controlling behaviour by making such threats.
Family Violence
Both parties make allegations that the children are at risk in the care of the other party. The Father seeks on an interim basis an order that the children live with the Mother and I therefore can only proceed on the basis that the Father implicitly does not have concerns that the children are at risk in the Mother’s care. Thus the focus of the hearing today is any potential risk to the children in the Father’s care.
The Mother deposes that the Father occasioned family violence upon her. She deposes that this commenced in November 2010 subsequent to the Father being charged with the Commit Act of Indecency. Upon his return home, the Mother alleges that the Father was angry that he had been charged by the Police and threw the Police Report at the Mother. At paragraph 49 of her Affidavit she deposes that the Father’s anger escalated to the point where he ripped off his shirt then followed the Mother and jumped on the front of her car as she tried to escape. The Mother deposes that the paternal grandparents intervened and physically forced the Mother back inside.
It is the Mother’s evidence that during parts of the relationship, the parties slept in separate rooms. It is the Mother’s evidence that “on many occasions the Father would rape me while my children laid in the bed with me. It was often an occurrence, the Father opened the door and would start touching my legs and abused me in front of the children.”
The Mother provides evidence that when Y was approximately 12 months old, Y, X and the Mother were sleeping and Z was in her room, the Father returned in the evening “angry and loudly talking to himself.” Z started to cry and the Father went to her crib and started to yell at her “SHUT UP! BE QUIET!” The Mother deposes that the Father held a pillow in his hands. The Mother alleges that when the Mother asked the Father to leave he started to scream at her “If you leave, I am going to kill you and the kids.”
The Mother alleges that the Father was physically violent towards her during the course of the relationship. Such violence included the Father screaming at the mother, grabbing her by the arms, shaking her violently causing bruising, pinning her to the ground and attempting to suffocate her. The Mother gives an example in her Affidavit of Y seeing this on one occasion and beginning to cry and saying “Please stop hurting mummy.”
The Mother says the Father was also violent towards her parents including grabbing the maternal grandmother and shaking her causing bruising.
The Family Consultant reports that the Father conceded to her that he had been verbally abusive towards her (being the Mother) on occasion.
There is an overtone in the Mother’s material that the children are at risk of sexual abuse in the Father’s care although no submissions were made in this regard at the interim hearing. The Mother deposes that the Father would comment on X’s appearance including saying “X is so handsome…so attractive” and expressed to the Mother that he wanted X to pull his foreskin back to expose his penal gland when bathing.
In paragraph 65 of her Affidavit the Mother alleges that towards the end of the parties’ relationship the Father was watching homosexual porn with “older men having sex with very young boys.” The Mother estimated to the Family Consultant that she estimated that the boys were approximately 12 years of age.
The Mother’s gives further evidence that on one occasion in 2018, the Father had suggested the Mother take a shower. After she returned from the shower she discovered that the Father and children had left the home. After two hours, the Father returned with the children. The Mother deposes that X was crying and running away from the Father. The Mother’s deposes that X’ behaviour to change after that incident.
The Mother says she quit her work in 2017 or 2018 so that she could protect the children due to her concerns.
The Child’s Special Needs
X has been diagnosed with Level 3 autism and is non-verbal. He attends a specialist school for children with high needs and receives NDIS funding.
The Mother alleges that the Father would only attend therapies for X on the odd occasion and on the occasions that he did, the Father would make the therapists uncomfortable and inform the Mother they did not want him there.
The Father deposes that from approximately 2014 until separation he took X to all of his therapies including speech pathology and occupational therapy.
RECOMMENDATIONS OF THE COURT CHILD EXPERT
The Family Consultant recommends that that the children spend no time with the Father until the Court determines whether the children will be at unacceptable risk of harm in his care.
If the Court was minded to make an order for supervised time on an interim basis, then, given the Mother’s concerns, the Family Consultant recommends that such time occur at a children’s contact service because at least two workers would be required so that one could accompany the children to the toilet should this be required.
DISCUSSION
This matter raises serious risk issues. The question for me to determine is whether the risk issues raised by the Mother will be sufficiently ameliorated by the children’s time with the Father being supervised.
It has been a significant period of time since these children have seen the Father, some 3 years in their very short lives. There is no independent evidence before the Court as to the children’s relationship with the Father. The Mother alleges that the children have witnessed serious acts of physical and verbal abuse by the Father upon the Mother. The Mother alleges that the children are scared of the Father. X has high needs and it would appear would not be able to articulate his concerns or fears in any event.
The Independent Children’s Lawyer raised an important issue during the course of her submissions. The Father’s proposal is that these three young children, one of whom has high needs, would be taken by their Mother to a place they had never seen before and placed into the care of two strangers and their Father whom they haven’t seen for three years. There is no evidence as to how best to re-introduce the children to their Father should the Court find that this was in their best interests. There is no evidence before the Court as to what effect such a situation would have on them. I am satisfied that there is an unacceptable risk that time supervised in such a manner would potentially traumatise these children and subject them to psychological trauma. Those risks outweigh the possible benefit to the children in spending time with the Father in circumstances where such time has now not occurred now for three years.
This is an interim hearing and as such I must act conservatively having regard to the risk issues ventilated. My decision today is in no way a finding of fact with respect to the allegations raised by the Mother. It is a balancing of the potential risks flowing from the uncontested allegations against a relationship that has not seen any contact between the children and the Father for three years. It is in the children’s best interests that there be the appropriate social science and medical expert evidence before the court and the testing of the allegations prior to the children coming into contact with the Father again.
The Mother made orders with respect to other issues such as that she be at liberty to travel interstate and overseas with the children and that she be permitted to obtain any travel documents with respect to the children. No submissions were made in that regard and I therefore decline to make any such Orders having regard to that.
The Father consented during the course of the interim hearing to several of the orders proposed by the Mother and by the Independent Children’s Lawyer and I will make those orders having regard to the Father’s concession.
I therefore make the following Orders.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Murdoch. Associate:
Dated: 17 February 2022
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