BRADY & BRADY
[2020] FCCA 3283
•3 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRADY & BRADY | [2020] FCCA 3283 |
| Catchwords: FAMILY LAW – PARENTING – parenting proceedings concerning three children aged 13, 16 and 17 at the time of hearing – where the father last spent time with the children four years ago – where the mother proposes no time – the father seeks supervised time progressing to unsupervised time and eventually returning to the arrangements under the 2012 consent orders – best interests of the children. |
| Legislation: Family Law Act 1975 (Cth), ss. 4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, Pt VII |
| Cases cited: Goode & Goode (2006) FLC 93-286 M v M (1988) 166 CLR 69 Napier v Hepburn (2006) FLC 93-202 Mazorski & Albright (2007) FamCA 52 Champness & Hanson [2009] FamCAFC 96 Tait & Densmore [2007] FamCA 1383 R v R: Children’s Wishes (2000) FLC 93-000 |
| Applicant: | MR BRADY |
| Respondent: | MS BRADY |
| File Number: | NCC 2157 of 2012 |
| Judgment of: | Judge Costigan |
| Hearing dates: | 12, 13 & 14 August 2020 |
| Date of Last Submission: | 14 August 2020 |
| Delivered at: | City K |
| Delivered on: | 3 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wilkinson |
| Solicitors for the Applicant: | Craney Family Solicitors |
| Counsel for the Respondent: | Mr Duane |
| Solicitors for the Respondent: | Gianacas Argiris McDonald |
| Counsel for the Independent Children's Lawyer: | Ms O'Rourke |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
That all previous orders are discharged.
That the mother has sole parental responsibility for the children X, born 2003, Y, born 2005 and Z, born 2007 (“the children”).
The children shall live with the mother.
When exercising parental responsibility for the children the mother must:
(a)Notify the father of any long-term decision she intends to make regarding the children and request input from the father within 7 days;
(b)Consider the father’s input when making her decision in relation to parental responsibility; and
(c) Notify the father of the decision that she has made.
The father may forward to an address that is indicated by the mother, any gifts, letters or cards for the children and the mother must ensure they are forthwith provided to the children.
The mother must forthwith notify the father of any change to the address in order 5 herein.
The mother shall notify the father of any medical emergency, illness or injury suffered by the children whilst in her care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the children.
The mother shall authorise and request the principals of any schools attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.
IT IS NOTED that publication of this judgment under the pseudonym Brady & Brady is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2157 of 2012
| MR BRADY |
Applicant
And
| MS BRADY |
Respondent
REASONS FOR JUDGMENT
Introduction
These parenting proceedings concern the best interests of three children: X born 2003 (‘X’), Y born 2005 (‘Y’) and Z born 2007 (‘Z’) collectively (‘the children’).
The applicant father Mr Brady (‘the father’) seeks that the children be ordered to spend time with him while the mother is resistant to any time occurring. The mother says that this is a reflection of the children’s wishes, while the father says the children have been influenced by the mother. The father says that historically he has had a close and loving relationship with the children, Y and Z in particular.
For the reasons that follow I have concluded that the orders sought by the Independent Children’s Lawyer, and adopted in the course of submissions by the mother, should be made.
Background
The father is 51 years old. He lives in Town A with his partner Ms B. He is in receipt of a disability support pension as a consequence of a workplace injury and a diagnosis of Post-Traumatic Stress Disorder. The paternal grandmother lives in Town C and the father sometimes stays at her home to provide her with ‘support and assistance.’
The mother is 45 years old. The mother lives in Town D and is in a relationship with Mr D but they do not cohabit. Mr D has 3 children from a previous relationship, 2 of whom live with him on a full-time basis. The mother is employed as a healthcare worker working one day a week at employer E and also as an office worker (2 days a week) for her family’s business at Town F.
The parents commenced a relationship in 1998 and married in 1999. They separated for a period of around 6 months following the birth of Y.
X was born in 2003, Y in 2005 and Z in 2007.
The parents separated on a final basis in March/April 2010. Police applied for an apprehended violence order against the father for the protection of the mother on 9 March 2010.
On 8 August 2012 the parties entered into consent orders with respect to parenting and property issues. The parenting orders provided for the parties to have equal shared parental responsibility, the children to live with the mother and a spend time regime with the father on alternate weekends (Friday/Sunday), half school holidays and on special occasions.
In November 2013 the father was discharged from employer G with a diagnosis of PTSD.
The parties divorced on 6 September 2014.
The weekend of 11 September 2016 was the last time that the father spent time with the children. The 2012 consent orders remained in place until the father filed an Initiating Application on 14 August 2018. In his application the father sought orders for the children to live in an equal time arrangement with each parent.
Orders made on 26 September 2018 provided for the appointment of an Independent Children’s Lawyer and the preparation of a Family Report.
In her Response to the Initiating Application filed on 21 September 2018 the mother sought sole parental responsibility, for the children to live with her and spend no time with the father.
The father has had no face to face contact with the children since September 2016 save for a brief attendance at Y’ sports match on 29 November 2016. The children refused to participate in the observation session with the father during the Family Report process.
The Family Report prepared by Mr H was released to the parties on 16 January 2019.
On 13 February 2019 the matter was listed for final hearing on 11 December 2019 allocating three days. Trial directions were made.
The matter was re-listed on 1 October 2019 at which time the Court was advised that the father was scheduled to have a surgical procedure under general anaesthesia on 5 December 2019 and would be ‘unfit for work’ from 5 December 2019 to 12 December 2019.[1]
[1] See Exhibit A tendered on 1 October 2019 being a letter from Surgery I.
By consent the December 2019 hearing dates were vacated and the matter adjourned to a call-over on 28 January 2020.
On 28 January 2020 the matter was listed for final hearing on 12 August 2020 allocating three days.
On 10 August 2020 the final hearing was conducted using the Microsoft Teams platform in accordance with the ‘Practitioner and Litigant guide to virtual hearings and Microsoft Team’. The parties were represented by Counsel: the father by Mr Wilkinson and the mother by Mr Duane. Ms O’Rourke, solicitor advocate appeared on behalf of the Independent Children’s Lawyer. The hearing ran for three days and at the conclusion of evidence and submissions, I reserved my decision.
Competing applications
The father sought orders set out in his Case Outline[2] as follows:
[2] Exhibit A
1.That X, born 2003, Y, born 2005 and Z, born 2007, (“the children”), live with the mother.
2.That the parents have equal shared parental responsibility.
3.That the children spend time with the father as agreed between the parties in writing and failing such agreement as follows:
a.X shall spend time with her father in accordance with her wishes.
b.Y and Z shall spend time with their father:
ii)On four occasions on alternate Saturdays supervised by an employee of Contact Service J City K. On the last of these occasions the father’s partner, Ms B, will attend.
iii)On four occasions on alternate Saturdays, in the presence of Ms B, between 10 AM and 2 PM.
iv)On four occasions on alternate Saturdays, in the presence of Ms B between 10 AM and 6 PM.
v)On two occasions on alternate Saturdays, in the presence of Ms B, between 2 PM on Saturday and 12 noon on Sunday.
vi)On two occasions on alternate Saturdays, in the presence of Ms B, between 10 AM on Saturday and 6 PM on Sunday.
vii)Thereafter, the orders of 10 August 2012 will recommence.
The mother sought orders set out in her Response as follows:
1.That all previous parenting orders dated 10/8/2012 be discharged.
2.That the mother have sole parental responsibility for the children X born 2003, Y born 2005 and Z born 2007.
3.That the father spend no time with the children.
4.That the father pay the mother’s costs of and incidental to the Application.
The Independent Children’s Lawyer reserved her position until the conclusion of the hearing and in the course of submission tendered her Minute of Order, which was adopted by the mother. The Minute of Order read as follows:
1. That all previous orders are discharged.
2.That the mother has sole parental responsibility for the children: X, born 2003, Y, born 2005 and Z, born 2007, (“the children”).
3.The children shall live with the mother.
4.When exercising parental responsibility for the children in order 2 the mother must:
a. Notify the father of any long-term decision she intends to make regarding the children and request input from the father within 7 days;
b. Consider the father’s input when making her decision in relation to parental responsibility; and
c. Notify the father of the decision that she has made.
5.The father may forward to an address that is indicated by the mother, any gifts, letters or cards for the children and the mother must ensure they are forthwith provided to the children.
6.The mother must forthwith notify the father of any change to the address in order 5 herein.
7.The mother shall notify the father of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the children.
8.The mother shall authorise and request the principals of any schools attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.
Issues
The issues which have arisen for determination are as follows:
·If there is an unacceptable risk to the children in the father’s care?
·What time, if any, should the father spend with the two younger children?
Evidence of the father
The father relied on the following documents at the final hearing:
·His Amended Initiating Application filed 8 July 2020;
·His affidavit filed 15 July 2020; and
·Affidavit of Ms B filed 7 August 2020.
The father tendered into evidence the following documents:
·His Case Outline (Exhibit A);
·Photographs of the father and the child appearing at annexure E of his affidavit filed 14 August 2018 (Exhibit E); and
·The mother’s witness statement to Police dated 13 February 2014 (Exhibit F).
The father relied upon his affidavit filed 15 July 2020 and was cross-examined. As a former police officer, presumably trained in giving evidence in court proceedings, it was surprising the number of times the father referred to counsel for the mother as ‘mate’. The father gave his evidence at times in a belligerent manner, peppered with heavy sighs when he disapproved of a question. By way of example:
a)when asked by counsel for the mother what he understood family violence to mean he said: ‘I will help you out my friend.’
b)When asked by counsel for the mother about the allegation with respect to Y which resulted in police involvement the father respondent that the charge had been dismissed and “I could’ve taken police for costs.”
At other times I found the father’s evidence to be at odds with other evidence from independent sources, which persuaded me that I should exercise some caution in relation to the father’s credibility. For example, documents produced under subpoena by NSW Police contained a COPS entry for the 30 March 2019 which referenced an incident between the father and another man (victim). The entry states that both the father and the victim were out walking their dogs and notice the other staring at them. The victim returned home and was in his front yard when the father walked up and started questioning him about what he was staring at. An argument followed in which the father called the victim and his wife ‘a cunt and other words similar.’ The victim’s wife called the police and the father said “Call the cops, I am the cops.” The argument continued but the father left before police arrived. Police spoke with the father a few days later at which time the father gave a different version to that of the victim. He denied telling the victim ‘I am the cops’ and told police he had actually said “I am an ex cop, call the cops if you want. I will speak to them”[3]
[3] Tender Bundle, page 258
In cross-examination with counsel for the mother, the father said that the victim was ‘looking suspicious’ but later learnt that he had cancer and was concerned for his welfare. He decided to speak with the victim to make sure he was ‘all right’. When asked about his conversation with police the father said,
‘Didn’t call to my house, mate’
When asked if there had been a verbal argument, the father sought to minimise his behaviour saying ‘we exchanged words.’
Ms B
Ms B relied upon her affidavit filed 7 August 2020 but was not required for cross-examination. Ms B and the father have known each other since school. Due to health reasons, she is not currently working. She deposes to being a victim of significant family violence in a previous relationship but denies any family violence in her relationship with the father. She deposes,
‘Mr Brady has taught me to [sic] able to trust people again, and how to live in safe and happy environment as a family.’[4]
[4] Affidavit of Ms B filed 7 August 2020 at [6]
Ms B and her two younger sons live in Town A with Mr Brady. She says that all three of her sons have a close relationship with him. She deposes,
‘I have not observed any behaviour by Mr Brady which has given me concerns about either my, or my children’s safety around him. I have not observed any behaviour from Mr Brady which would make me think his children were in danger if they were to spend time with him.’[5]
[5] Affidavit of Ms B filed 7 August 2020 at [13]
Evidence of the mother
The mother relied on the following documents at the final hearing:
·Her Response filed on 21 September 2018; and
·Her affidavit filed 9 July 2020.
The mother tendered into evidence the following documents:
·Her Case Outline (Exhibit B); and
·Transcript of interview between the Police and the child X on 22 September 2016 (Exhibit D).
The mother relied on her affidavit filed 9 July 2020. She presented as a credible and convincing witness. She did not try to hide her disregard for the father. She answered directly the questions put to her including ones against interest.
Independent Children’s Lawyer
The Independent Children’s Lawyer tendered into evidence the following documents:
·Case Outline (Exhibit C); and
·Tender Bundle of Subpoenaed Material (Exhibit H).
Family Consultant
The Regulation 7 Family Consultant Mr H prepared the Family Report in relation to these parties on 2 January 2019. The interviews were conducted on 20 December 2018. It was a limitation of the report that the mother’s partner Mr D was not interviewed. Nor was Ms B interviewed but she and the father were not in a relationship at the time.
By the time of the interviews, the father’s position had changed and he told the Family Consultant that he ‘wants some contact.’[6] He denied any family violence during the parties’ relationship.[7]
[6] Family Report at [18]
[7] Family Report at [21]
The mother described incidents of slapping and pushing and verbal denigration by the father. She conceded mutual ‘verbal conflict and name calling’[8] and to an incident where she grabbed the father’s shirt.
[8] Family Report at [22]
It was the evidence of the Family Consultant that there had been a significant breakdown of the father’s relationship with the eldest child X. The Family Consultant hypothesised that the two younger children may have taken their lead from X. The mother told the Family Consultant that,
‘…….whilst X had the greatest resistance about spending time with her father, that the two youngest children also commenced not wanting to spend time with the father when she decided to cease the children’s contact with Mr Brady “with their consent”’.[9]
[9] Family Report at [56]
Certainly the children refused to participate in observations with the father. The Family Consultant reported,
‘…………..When I asked the children individually, X became distressed, and was clear to say that she did not wish to spend time with the father and gave no reason to the Family Consultant. Both Y and Z looked at their sister for a response with Y telling the Family Consultant that his father was mean, whilst Z stated that she felt uncomfortable about spending time with her father.’[10]
[10] Family Report at [92]
Both parties agree that the children were exposed to verbal conflict between the parents during the relationship, and following separation, at changeovers.
At paragraphs 94-99 of the report under the hearing ‘Evaluation’ the Family Consultant wrote:
94. It would appear that the family violence issues in these proceedings bear relevance since the parents’ final separation and would appear to relate primarily to several factors, both with regards to the father’s denigration of the mother to the children and secondly the father’s emotional and psychological abuse of the children which appears to have been exacerbated by the father striking both X and Y.
95. Mr Brady demonstrated minimal insight into the impact of what he has said to the children over a number of years with regards to their mother, and whilst the mother also does not appear to be blameless in this regard, it is reasonable to suggest that Mr Brady was somewhat consistent in denigrating Ms Brady, her partner, and as well making threats to harm Ms Brady’s partner. Certainly, X recounted this in an open manner.
96. The father’s PTSD has undoubtedly impacted on much of his decision making, and his inability to discern appropriate behaviours with regards to the children. Whether Mr Brady has made any manifest changes in how he would approach the situation remains specifically unknown.
97. Whilst Ms Brady would appear to have respected X’s decision to cease her time with her father during 2016, it also seems that her decision was then automatically made with regards to the two younger children given her concerns that they were continually being exposed to the father’s negativity and denigration of her. Whilst there is obviously some legitimacy to the mother’s decision in September 2016, it would also appear to be the case that the two youngest children also whilst having memories of their father’s denigration retain a level of psychological confusion with regards to their individual relationships with him.
98. Y and Z may well require a forum to express their level of confusion with regards to their relationship with their father, but at this point in time it is not conceivable to suggest that they could spend unsupervised time with Mr Brady.
99. Whilst it remains evident that no Orders would be made with respect to X, it remains difficult to see as to how Y and Z could re-establish a relationship with the father prior to being engaged in a program such as parenting program M. However, prior to this possibility being implemented, Mr Brady would need to engage as a matter of priority in a parenting after separation program, in order that he can reflect upon his behaviours with regards to the children, including his physical chastisement, but as significant, his denigration of the mother and her partner to the children. Whether this can be achieved remains specifically unknown at this point in time.
The Family Consultant went on to recommend:
100. No Orders to be made with respect to the child X.
101. If the Court accepts that it is in the best interests of Y and Z to consider some relationship with their father, then a referral will need to be made for both children to parenting program Mparenting program M with L family counsellors.
102. If the Court accepts that the above intervention may be further divisive of the sibling relationships, then a No Contact Order should be implemented.
103. Ms Brady could well have provided the Family Consultant with some inaccuracies, particularly with her relationship with Mr D, so this issue in itself creates some element of doubt about other aspects of the mother’s integrity. It is however reasonable to assume that her decision to cease the two youngest children’s time with the father was primarily based on the children’s best interests, in that she no longer wanted them exposed to the father’s threatening and denigratory behaviour.
Mr H gave evidence on the third day of hearing. He was provided with copies of the parties’ trial affidavits, the affidavit of Ms B and the father’s minute of order prior to giving evidence. The following are some of the more notably aspects of the Family Consultant’s evidence:
·Having read the additional material he did not seek to change his recommendations.
·If the children had recently expressed the view that they do not want to resume their relationship with the father, it would be a relevant consideration given their ages with Y now 15 and Z now 13.
·There has been a longstanding dynamic between the eldest child X and her younger siblings. X has probably had a significant influence on the two youngest siblings. However, with the effluxion of time, the two youngest children are now of an age where, if forced to spend time with the father, problematic issues may emerge. The children are old enough to make their own decisions in this regard and if they were forced to go, they may act with their feet or there may be a need for on-going counselling.
·If the father wished to focus on any renewal of his relationship with the children then the offer of an apology for his behaviour and his words might be a useful starting point.
The Law
The Court must have regard to Part VII of the Family Law Act 1975, and the significant sections are section 60CA, which provides:
“In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.”
The Court must then consider, in determining a child’s best interests, the matters set out in section 60CC, and there are two primary considerations:
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents.
(b) The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
There are a number of additional considerations in section 60CC(3) to which the Court must have regard insofar as they are relevant. Section 60B, sets out the objects of Part VII and the principles underlying those objects, and section 61DA, provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child’s parents to have equally shared parental responsibility for the child.
The relevance of the presumption of equal shared parental responsibility, when it does apply or is found to apply, is that the Court is then obliged to consider making an order, if it is consistent with the best interests of the child and reasonably practicable, for the child to spend equal time with each of the parents. If equal time is not in the best interests of the child or reasonably practicable, the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents.[11]
[11] Section 65DAA
I now wish to consider the primary and additional considerations under section 60CC (2) and 60CC(3) of the Family Law Act 1975 (Cth). In this matter the considerations which are most likely to be determinate of the dispute will be the evidence with respect to the children’s wishes and whether those wishes are freely formed and without influence, the capacity of each of the parents to attend to the children's physical, psychological and emotional needs, and also the father's contention that the mother is seeking to disrupt his relationship with Y and Z.
The Primary Considerations
Section 60CC(2)(a) - the benefit of the child having a meaningful relationship with both of the child’s parents.
Whilst the Court must consider the best interests of the children of having a meaningful relationship with each parent, this benefit must be weighed against all other factors, in determining orders which have the children’s best interests as the paramount consideration: Champness & Hanson [2009] FamCAFC 96 at [103].
In Tait & Densmore [2007] FamCA 1383 Cronin J considered the concept of ‘meaningful’ and said
“To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. The responsibilities of parents are to give the children a chance to be part of a family albeit in two households where they can have a feeling of being wanted and appreciated.”
The children clearly have a meaningful relationship with their mother. The Family Consultant observed that,
Ms Brady certainly presented in a positive manner in her interactions with the children and it was quite evident that Z had a very close relationship with the mother.[12]
[12] Family Report at [93]
However, the Family Consultant also observed that in relation to Y and Z,
‘…….. it would appear that they have aligned themselves to their elder sibling and in all likelihood to the mother.’[13]
[13] Family Report at [34]
The father’s relationship with the children has deteriorated since September 2016 and is now completely fractured. This is a result, in my view, of the actions and behaviours of both parents. Their parenting relationship has been beset by such rancour and hostility that they have been unable to focus on their children’s emotional needs.
I am satisfied that the mother has involved her children, X in particular, in the conflict. The mother told that the Family Consultant that she,
‘…………could not identify any positives for the children in having a renewal in their relationship with their father.’[14]
[14] Family Report at [68]
The Family Consultant opined,
‘Whilst Ms Brady would appear to have respected X’s decision to cease her time with her father during 2016, it also seems that her decision was then automatically made with regards to the two younger children given her concerns that they were continually being exposed to the father’s negativity and denigration of her. Whilst there is obviously some legitimacy to the mother’s decision in September 2016, it would also appear to be the case that the two youngest children also whilst having memories of their father’s denigration retain a level of psychological confusion with regards to their individual relationships with him.’[15]
[15] Family Report at [97]
The dominance of X’s views within the sibling triad, coupled with the mother’s tacit if not overt support of those views, has meant that Z and Y, who may have been more kindly deposed towards the father, [16] have now rejected completely any possibility of resuming a relationship with him.
[16] In conversation with the Family Consultant, Z who could not recall why her time with the father ceased and Y said that he ‘missed him [the father] occasionally’.[16]
The father on his part, has to accept responsibility for the schism in his relationship with the children. The Family Consultant observed,
‘Mr Brady demonstrated minimal insight into the impact of what he has said to the children over a number of years with regards to their mother, and whilst the mother also does not appear to be blameless in this regard, it is reasonable to suggest that Mr Brady was somewhat consistent in denigrating Ms Brady, her partner, and as well making threats to harm Ms Brady’s partner. Certainly, X recounted this in an open manner.
The father’s PTSD has undoubtedly impacted on much of his decision making, and his inability to discern appropriate behaviours with regards to the children. Whether Mr Brady has made any manifest changes in how he would approach the situation remains specifically unknown.’[17]
[17] Family Report at [96] & [96]
The father blames the mother, and in cross-examination with counsel for the mother was unable to take any responsibility for the breakdown of his relationship or his behaviour around the time of separation or subsequently. His obsessive-like focus on the mother and her relationship with Mr D was merely a distraction from the crucial problem which was his parenting style and the manner of his engagement with his children.
Although I am satisfied it would be in the best interests of Z and Y to have a meaningful relationship with their father, the reality is that, given the current circumstances, Court orders are unlikely to achieve the father’s desired outcome of facilitating a relationship.
The children’s attitude to spending time with their father has hardened. They refused to see him for the Family Report interviews and X at least is resistant to any form of family therapy.
I accept the submission of the Independent Children’s Lawyer that in these unhappy circumstances, finalisation of litigation is the best outcome for these children which may afford them an opportunity to reflect upon their own wishes, free of the influence of their sister and mother, for their relationships with their father.
While there may be a theoretical benefit to the children in having a meaningful relationship with the father as well as the mother, the Court is required to protect the children from physical or psychological harm and from being exposed to family violence. I am satisfied that the orders proposed by the Independent Children’s Lawyers (adopted by the mother) address that consideration and pursuant to s.60CC(2A), this latter consideration is to be given greater weight.
Section 60CC(2)(b) - the need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
This is an important consideration for the Court and pursuant to section 60CC(2A), I must give greater weight to section 60CC(2)(b) as against section 60CC(2)(a).
Family Violence
The parents disagree as to the existence of family violence during their relationship. The mother told the Family Consultant that,
‘………….when X was a baby and she was in her arms, that the father slapped her whilst she also identified that when Y was a baby that the father pushed her over. The mother also described the father denigrating her, while she acknowledged that both parents were responsible for the verbal conflict and the name calling.’
The father denies there was any family violence by which I assume he means physical abuse as both parents agree that the children were exposed to verbal conflict both during the relationship, and following separation at changeovers.
The mother obtained an apprehended violence order against the father for the protection of her and the children on 9 March 2010 following an incident at the time of separation where she told police that the father tried to grope her. She said that when she resisted he
‘stood in the personal space of the PINOP and placed his clenched left fish [sic] in front of the PINOPS face and said “Don’t you fucking touch me or I will smash you.”[18]
[18] Tender Bundle at page 29
On 23 July 2010 the mother attended Town F Police Station to report ongoing harassment and abuse including an incident where she says the father stopped her in the street and took
‘her daughters against her wishes.’ She alleged that the father said to her, ‘this is nothing, you wait till you see what I’ve got in store for you, what’s coming around the corner.’[19]
[19] Tender Bundle at pages 28-29
On 23 October 2010 the mother made a further statement to police alleging verbal abuse at changeovers and the interim AVO was extended from 31 August 2010 to 8 February 2011.[20]
[20] The father denies. See father’s affidavit filed 15 July 2020 at [27]
On 25 May 2011 a final apprehended violence order was made for a period of 9 months. The father says that the AVO was for the protection of the mother but the children were not named.[21]
[21] Father’s affidavit filed 15 July 2020 at [29]
Subpoena material indicates an escalation in the parental conflict during 2013 and 2014 played out in the presence of the children, with both parents reporting the most trivial of incidents to police. The Index to Tender Bundle prepared by the Independent Children’s contains the following summary:
Date
Incident
5 April 2013
Event Reference No. …09 – father’s report of a domestic incident at the hospital when Y had a surgical procedure (2 narratives).
28 January 2014
Event No: …26 – mother’s report to police regarding the father’s telephone conversation with X and threats to harm Mr D (5 narratives).
10 February 2014
Event Reference No: …97 – mother’s report to police regarding an incident with X.
17 February 2014
Event Reference No: …07 – mother’s report to police regarding phone calls between the father and the children. Record only.
14 March 2014
Even Reference No: …87 Report to police regarding incident at school (open school day) between the father and ex sister in law. Police take no action.
22 June 2014
Event Reference No: …62 - Report to Town A police regarding the father’s failure to return X & Z. Both parties remained in vehicles.
26 June 2014
Event Reference No: …69 – mother’s report to police regarding the father’s threats to Mr D (4 narratives).
26 July 2014
Event Reference NO: …11 – Mr D report to police regarding the father’s complaint that he was caring for the children at his place of work.
In 2016 and 2017 the number of reports to police increased with both parties insisting that multiple welfare checks be conducted at the other’s home. On 21 September 2016 the mother made a further statement to police in relation to the father’s behaviour at changeovers and the children’s reports of threats made by the father against her partner Mr D. The mother deposes to X saying,
‘Dad’s made threats against Mr Brady……Dad’s saying I could easily have killed Mr Brady by now if I wanted to. Dad said that he could use tradesman’s knives and then acted out how he would throw them at Mr Brady.’[22]
[22] Mother’s affidavit filed 9 July 2020 at [36]
In cross-examination the father denied making any threats against Mr D. However, in documents produced by his psychologist there is a telephone session note dated 21 September 2016 in which Dr N records,
‘Another ct matter – in relation to threats against ex-wife’s boyfriend – apparently made threats whilst talking to his daughter In response to comments daughter made about the boyfriend not being nice and them now wanting to, be around him – “throw away comment about ‘tradesman’s knives’. [23]
[23] Tender Bundle page 91
The father’s evidence was that he did not recall making the telephone call to Dr N. He conceded in cross-examination that he no longer considered Mr D posed any risk to the children.
An apprehended violence order was made against the father and he was subsequently charged with contravene AVO when he attended Y’s sports match. On 30 September 2016 the matter was dealt with in the Local Court and the father was found guilty but discharged without conviction pursuant to section 10.[24]
[24] Crimes (Sentencing Procedure) Act 1999 (NSW)
During 2016 the mother continued to question X about her and the children’s safety whilst in the care of the father and reports X as saying,
‘He [father] does hurt us all the time. He wacks us across the head and kicks us in the bottom. He’s always so angry and becomes uncontrollable. She then spoke in a high-pitched voice, mimicking her father’s words “that’s just my post–traumatic stress disorder” as his excuse for being angry. She said, “I don’t want to go any more.”[25]
[25] Mother’s affidavit filed 9 July 2020 at [36]
The father says that 29 November 2016 was the last time he saw the children in accordance with the 2012 orders.
On 26 April 2017 the father was charged with intimidation with respect to X but the charge was dismissed.
Also in April 2017 Mr D obtained an AVO against the father for a period of 12 months and the mother’s AVO was extended for a further 12 months which included an order that the father not contact the mother or children or approach within 100 metres of her residence.
On 6 May 2018 the father was again charged with contravene AVO following his attendance at Y’ sports match on 29 April 2017.
The various charges were dealt with at Suburb O Local Court on 11 September 2017 and were dismissed pursuant to section 32 of the Mental Health Act 2007 (NSW).
The AVO expired on 25 April 2018 and the father attended Y’ sports match where he took photos of both children, copies of which are annexed to his affidavit filed 14 August 2018.[26]
[26] Exhibit E
The Family Consultant noted that both parents appear to have physically chastised the children (which could not be categorised as abuse) during the relationship. However, the Family Consultant went on to say that,
‘following the parents’ separation aspects of the father’s treatment of at least the two eldest children would be viewed as abuse.’[27]
[27] Family Report at [24]
The mother deposes that when Y returned from spending time with the father on 6 December 2013 he complained that his father had punched him in the face and knocked him over. Documents produced by NSW Police contain the following COPS entry created on 6 December 2013:
‘The VIC (Y) and two witnesses while having breakfast with their mother on the 06.12.2013 stated that during the last trip to their fathers the VIC had a fight with WIT2 (his little sister). During this altercation the VIC has slapped the WIT2 across the face causing her to fall over and cry. At this time the VIC and two WITS have informed their Mother that the POI has walked into the room and slapped the VIC across the back of the head between 1 and 3 times. The WITS has then stated the POI “punched” the VIC in the rear of the head. The VIC has then run from the room crying.’ [28]
[28] Tender Bundle, page 26
The entry goes on to say that the mother witnessed no injuries or bruising on Y. Police attended the children’s schools and spoke with X who provided a similar version to that of the mother. Police advised the mother to retain the children in her care if she had concerns for their safety. The mother is reported to have told Police:
‘…………..the children have no fears about spending time with the POI and in fact are looking forward to spending the weekend away The mother will think about her options over the weekend before deciding if she will bring the children to the station to be interviewed .’
The mother says that Y and X were interviewed and made a statement to police on 17 December 2013. She says that the father was initially charged with common assault but those charges were subsequently dropped on 10 June 2014. An apprehended violence order was made by consent and without admissions against the father on 19 November 2014 for the protection of Y.
The father denies punching Y in the head and denies ever physically assaulting the children.[29] He alleges, however, that X reported to him that the mother’s partner Mr D had grabbed her by the arm.[30]
Father’s Mental Health
[29] Father’s affidavit filed 15 July 2020 at [34]
[30] Father’s affidavit filed 15 July 2020 at [36]
In 2013 the father was diagnosed with post-traumatic stress disorder (PTSD) from his employment as a police officer and public servant and exposure to workplace trauma. It seems likely that he had been experiencing the effects of that condition since at least 2008 following his attendance and involvement in a fatal incident.
The tender bundle contains a report dated 18 February 2017 from Dr P, Consultant Psychiatrist. Dr P initially saw the father in 2015 for the purposes of his workers compensation claim. Dr P notes that the claim was ‘declined on grounds he was malingering after he hadn’t admitted he was working as a tradesman.’[31] He postulated that the father had sought the appointment in part for the purposes of a section 32[32] application for the AVO proceedings and intimidation charge. Under the heading ‘Opinion’ Dr P wrote,
‘As far as I can tell, Mr Brady suffers PTSD. Mr Brady reports extreme severity of symptoms. He emphasises his problems so much, but comes for help so rarely, that I find it difficult to form a reliable view on this.’[33]
The father was prescribed clonidine to ‘assist with hyper-reactivity and hyper-arousal and reduce the risk of further aggressive offending behaviour.’
[31] Tender Bundle at page 77. It appears that the claim was reaccepted on May 2020 – see Tender Bundle page 217 (General Practitioners Notes)
[32] Mental Health Act 2007 (NSW)
[33] Tender Bundle, page 78
The father’s psychologist Dr N provided a report dated 2 April 2017 for the Local Court proceedings. Dr N was of the opinion that the father met the DSM-5 criteria for Post-traumatic Stress Disorder and Major Depressive Disorder, single episode, secondary to PTSD. He stated that the father had been treated with exposure therapy and Cognitive Behaviour Therapy in ‘44 sessions in the past 3 years and 11 months.’[34]
[34] Tender Bundle, page 81
Dr N continued to see the father under a Better Access to Mental Health Plan and in his report dated 23 April 2018, noted the father’s sessions scores for depression, anxiety and stress remained at the ‘extremely severe’ level.[35] He wrote,
‘Mr Brady continues to struggle with the pressure placed on him by his ex-wife and the subsequent lack of contact with his children. He is now also struggling with what appears to be a dysfunctional relationship with his new partner. Neither Mr Brady nor his partner appears able to engage with one another without being dismissive of one another or flippant. No doubt this is how each of them manages a somewhat vulnerable ego, but added to the stress with his ex-wife, unemployment and legal pressure associated with his workplace injury, Mr Brady is experiencing suicidal ideation. Mr Brady denies a specific plan and has a paramedic friend living with him a few nights each week, so he does have someone to talk to and who will watch over him.’[36]
[35] Tender Bundle, page 85
[36] Tender Bundle, page 86
The father annexed to his trial affidavit a letter dated 24 June 2018 from Dr N in which he confirmed his earlier diagnosis but noted that
‘treatment has been somewhat irregular, largely it seems because Mr Brady is self-funding treatment and he cannot afford to pay for treatment more often.’[37]
[37] Father’s affidavit filed 15 July 2020, Annexure A
On 5 March 2020 the father was referred by his general practitioner to Dr Q psychiatrist, for an opinion in relation to work related psychiatric problems, specifically
‘one related to chronic pain –low back injury the other related to public service PTSD and an incident .’ [38]
[38] Tender Bundle, page 253
The father deposes that he is currently prescribed Lexapro (anti-depressant), Minipress (alpha blocker) and Catapress in relation to his PTSD and Panadeine Forte and Valium for back spasms and anti-inflammatories for his back problems. He says that he is medication compliant.[39]
[39] Father’s affidavit filed 15 July 2020 at [125] & [128]
In cross-examination the father often referred to various incidents ‘heightening his PTSD’. He appears to have paid an extraordinarily high price for his years as a police officer and public servant. Despite the father’s repeated denials, I am satisfied that his work related mental health issues have manifested in a variety of different ways and significantly impacted his personal relationships and most importantly his relationship with his children.
Children’s Well-being
Between 2011 and 2014 X and her mother were engaged with psychological services including Better Futures in relation to X’s aggressive behaviour and anxiety issues associated with the parental separation.
The mother reported to the Family Consultant that X was sexually assaulted by a boyfriend in May 2017. She said that X,
‘…..saw an adolescent health counsellor this year but only attended three sessions as there were many occasions when she refused to go. Ms Brady stated that she attended twice without X, but that X has remained steadfast in not participating in any sexual assault counselling.’ [40]
[40] Family Report at [65]
X’s counselling records from City K CAMHS were included in the Tender Bundle. They note,
‘X has experienced a sexual assault by a same age peer from her school approximately 12 months ago and has only recently disclosed to a teacher at school. This was then reported to JIRT. X was upset that this teacher had to break her confidence. She has been interviewed by JIRT and has decided not to take the matter further. Her mother was not aware of this sexual assault until she was contacted by JIRT’[41]
[41] Tender Bundle, page 159
In May 2018 X was referred by JIRT to the Youth Health Team who run a clinic at High School R with respect to
‘daily thoughts of not wanting to be alive anymore’ and ‘self-harming by cutting on and off for the past month.’[42]
[42] Tender Bundle, page 152
X is reported to have told counsellors that she was ‘scared’ of her father and that he has been
‘sending text messages, making threats and turning up at her sibling’s sporting event. X is under the impression that another AVO cannot be taken out until her father does something else. This is causing much anxiety and distress for her.’[43]
[43] Tender Bundle, page 160
The notes also record X having a
‘strained relationship with her mother for a number of years and states that she would not confide in her. X appears to take on a protector role with her siblings.’[44]
[44] Tender Bundle, page 160
X is reported to have told the Family Consultant,
‘……that her father would swear at the children as well as recalling that he slapped her across the head and that he made threats to “snap her neck”. [45]
[45] Family Report at [71]
At paragraph 77 of his report, the Family Consultant noted,
When I asked Z what her recollections were in spending time with her father prior to the cessation of her time with him, she described having fun weekends with Mr Brady. However, at the same time Z stated that she saw her father “punch Y”, whilst confirming that her father denigrated her mother to her whilst she spent time with Mr Brady.
At paragraphs 85 of his report, the Family Consultant wrote,
Y had mixed emotions about his previous time with his father, at times describing it as being fun and other times “he was mean sometimes”. When I asked Y to give me an example, he clearly indicated that his father punched him in the head, and he recalled that his father was charged with this offence, but that Mr Brady had allegedly told him not to tell anyone, but despite this he did tell his mother.
School records for X and Y included a large number of incident reports ranging from using a phone in class without permission, failure to follow instructions of the teacher, disruptive behaviour in class, fractional truancy, banning from the science labs for misusing equipment and being unsafe (Y) through to X suffering panic attacks in class. In his most recent school report (Semester 1 2020) the majority of outcomes for Y were ‘basic’ and ‘sound.’ For X, the Year 11 Semester 1, 2020 report outcomes were mostly ‘high’ and ‘outstanding.’
The issue for determination then is whether the children spending face-to-face time with the father presents an unacceptable risk to them of physical and/or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no cogent evidence that the father has ever physically abused Z. Certainly all 3 children reported to the mother and the police that the father had slapped and punched Y on 6 December 2013. The father was charged with common assault but the hearing did not proceed (it appears there was reluctance on the part of the children to give evidence) and the charge was dismissed.
The father continued to spend time with the children until September 2016 and when the children saw the Family Consultant in January 2019 Y and Z reported being confused as to why the time had stopped. O the available evidence I am not satisfied that the children would be at risk of physical harm if they were to spend time with the father.
The risk of psychological or emotional harm to the children is more complex. The evidence of the children returning from spending time with the father very unsettled and with stories of exposure to threats made by the father against the mother and Mr D and also of direct involvement in the parental conflict at changeovers.
Z told the Family Consultant, ‘that her father denigrated her mother to her whilst she spent time with Mr Brady’ [46] Y reported to the Family Consultant,
‘…………that his father would swear both at him and X, but it was clearly Y’ view that X “copped the worst”. He recalled that the father had said to X “not to come back”. These kinds of behaviours clearly has made Y “feel uncomfortable” around his father. He further stated that his father has placed pressure on him on a number of occasions by asking him questions about the family dynamics at the mother’s home, whilst also asking Y has he been protecting his sisters.’[47]
[46] Family Report at [77]
[47] Family Report at [86]
The father has denied most of the allegations against him including the threats against the mother’s partner Mr D. He blames instances of poor, impulsive or threatening behaviour on his diagnosis of PTSD but the medical evidence suggests he has failed to engage consistently in therapeutic interventions. He has shown no remorse, rather he sees himself as the innocent party deserving of sympathy. The children’s views have remained consistent, that is, they do not wish to pursue a relationship with the father at this stage. To force contact is likely to involve trauma and distress for the children on each occasion they are required to see him. To require their time to be supervised by a professional agency would make these adolescents the uncomfortable object of public attention and engender feelings of self-consciousness, anxiety, even shame.
The combination of these findings causes me to conclude that the children would be at risk of psychological harm if they were required to spend time with their father that cannot be ameliorated by supervision.
I now turn to the additional considerations.
Additional Considerations: Section 60CC(3)
Section 60CC(3)(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.
The children refused to participate in an observation with the father at the Family Report interviews. Their views could not have been expressed more clearly and appear to have become more entrenched over time. In relation to the eldest child X the Family Consultant reports,
X made it clear to the Family Consultant that she wants no relationship with her father, which appears to be the result of a range of historical factors relating both to the father slapping her and, on many occasions, allegedly saying to her “don’t come back, wish you weren’t born”. It was X’s view that her two younger siblings have made up their own mind with regards to their relationship with Mr Brady. [48]
[48] Family Report at [75]
Z was reported to say,
Z acknowledged that her mother has denigrated her father to her. Z told the Family Consultant that she has seen her father at her sports games, whilst indicating that he has not been abusive, and has been affectionate with her. Despite this, Z stated that she didn’t want any relationship with her father but she was unable to say why. [49]
[49] Family Report at [83]
And Y,
When I asked Y what he wanted to do about his relationship with his father he too indicated that he wanted no contact with him and when I asked him why he indicated it was primarily because his father might get angry and place further pressure upon him with regards to questions about his mother. Y acknowledged that his father has previously denigrated the mother’s partner to him.[50]
[50] Family Report at [91]
In her Case Outline Document filed 10 August 2020[51] the Independent Children’s Lawyer writes,
‘….the views most recently expressed to her are consistent with those reported by Mr H in paragraph 75 of the Family Report.’
[51] Exhibit C
While the father’s poor behaviour is clearly the major contributing factor, there can be no doubt that the mother has enflamed the children’s distrust and fear of their father. X has also, as the Family Consultant observes, placed pressure on her siblings to adopt her negative views of the father.
For whatever reason, the children have expressed their determination to have no contact with their father. To force them to do so will be even more damaging for their psychological and emotional well-being and this is a matter to which I give, in the circumstances, very considerable weight.
Having said that, I accept the submission of the Independent Children’s Lawyer that the Court should not make orders which would thwart any desire on the part of the children to reach out to their father if they should seek to communicate or spend time with him in the future.
Section 60CC(3)(b), the nature of the relationship of the child with each of the child's parents
As the Family Consultant observed,
‘Whilst the mother reported X’s anger issues following the parents’ separation, it remains evident that she has been the child who has been mostly impacted by her relationship with her father and has presented ongoing challenging issues for the mother as well.’ [52]
[52] Family Report at [33]
The father appears to accepts this, and the order he seeks is that time occur in accordance with X’s expressed wishes.
In relation to Z and Y they have a warm but somewhat enmeshed relationship with their mother. Both children report their father’s denigration of the mother and their concerns for her welfare. Their relationship with their father is, unfortunately, totally fractured.
The evidence of the Family Consultant was that at the time of the Family Report interviews, X presented as an adolescent with ‘a lot of unresolved issues’. Both Z and Y had reported bullying behaviour by X, which raised concerns for him with respect to the sibling relationship.
All three children report a good relationship with Mr D.
The mother refers to some on-going contact between the children and a paternal aunt, Ms S.[53]
Section 60CC(3)(c) - the extent to which each of the child’s parent has taken, or failed to take, the opportunity to participate in making decisions about major long- term issues in relation to the child; and to spend time with the child; and to communicate with the child.
[53] Mother’s affidavit filed 9 July 2020 at [62]
There can be no doubt that the father has made very extensive efforts to participate in making decisions about the children and to spend time and communicate with them.
However, the manner in which the father has gone about seeking time, which resulted in apprehended violence orders and a contravention charge in 2017 that was dealt with under the Mental Health Act 2007 (NSW), have failed to resolve the issue.
Section 60CC(3)(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.
The mother says that the father is not currently assessed to pay any child support for the children but does pay $50.94 per fortnight towards the arrears which as at the 9 June 2020 total $33,143.13.[54]
[54] Mother’s affidavit filed 9 July 2020 at [8]
The father says that the arrears accumulated as a result of overtime that he was paid while working for employer T that caused his taxable income, and therefore his child support liability, to increase.[55]
[55] Father’s affidavit filed 15 July 2020 at [132]
From the available evidence, it is clear that the mother has carried the principal responsibility for the financial costs of the children.
Section 60CC(3)(d) - the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
I am satisfied that any attempt to force the children to see their father is unlikely to be successful.
Section 60CC(3)(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.
The father lives in Town A and the mother in Town D a distance of approximately 41km (35 minutes driving time).[56]
[56] Google maps
There is no significant practical difficulty and expense related to the children spending time with the father, other than the children’s refusal to do so.
Section 60CC(3)(f) - the capacity of 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.
The mother has the capacity to provide for the needs of the children. She is their primary carer since separation and their sole carer since 2016. Her capacity to provide for the emotional needs of her children is questionable given her dislike of the father and her inability to conceal those views from the children.
The father’s capacity to provide for the emotional needs and intellectual needs of his children is compromised by his lack of insight and failure to address his mental health issues which appear to be the central cause of his poor behaviours.
Section 60CC(3)(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.
X is in Year 11 at High School R in Suburb U. She has several close girlfriends from school with whom she socialises and goes to the gym. She has a part-time job at a local business working one afternoon during the week and one day on the weekend. She also has a boyfriend who lives in Suburb V.
Y also attends High School R. He enjoys sport and plays sports for Town F sports club.
Z attends Primary School W. She plays sports and enjoys spending time with her close friend C.[57]
[57] See mother’s affidavit filed 9 July 2020 at [96] – [98]
When the Family Consultant asked the children individually whether they wanted to spend time with the father he noted that,
Both Y and Z looked at their sister for a response with Y telling the Family Consultant that his father was mean, whilst Z stated that she felt uncomfortable about spending time with her father. [58]
[58] Family Report at [92]
It is perhaps not surprising that as the younger children would be influenced by opinions expressed by their older sister X, especially if the opinions reflect that of the mother. Z and Y are also aware of the father’s negative view of the mother.
I am satisfied that both parties have demonstrated limited insight into their own behaviours and attitude and the likely impact of this on the children’s relationship with the father. Whilst, the mother has genuine concerns about the children spending time with their father, she and X have a strong influence on the children.
Section 60CC(3)(h) - if the child is an Aboriginal child or a Torres Strait Islander child:
This is not a relevant consideration.
Section 60CC(3)(i) - the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
I have already dealt with this factor in my earlier consideration of matters affecting the best interests of children.
Section 60CC(3)(j) & (k) -any family violence involving the child or a member of the child’s family.
Family violence is a very important consideration in this matter but has already been dealt with sufficiently above.
As I understand, there are no current family violence orders relevant to the children or either party.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
These proceedings have been on foot since August 2018 and it is in the interests of all parties that it comes to an end. Given the history of these proceedings and the views expressed by the children, I find that the father’s proposals which involves the recommencement of time to be supervised initially by a professional agency and progressing to unsupervised time, is likely to lead to further litigation. It is highly likely that the children will not comply with orders that do not coincide with their wishes and increase the risk of contraventions or applications to vary orders. I am satisfied that the Independent Children’s Lawyer and mother’s proposal are least likely to result in the institution of further proceedings.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
There are no other facts or circumstances that I consider relevant to these proceedings.
Parental Responsibility
The Independent Children’s Lawyer and the mother both propose orders that the mother have sole parental responsibility for the children. The father proposes that there be equal shared parental responsibility for the children.
While I do not dismiss the concerns and allegations raised around the issue of family violence, I am satisfied that the presumption as to equal shared parental responsibility[59] would not be in the children’s best interests and is rebutted in this case.
[59] Section 61DA(1)
Since separation the children have lived with the mother who has always been their primary carer. The father has spent no time with the children since 2016 and otherwise had limited communication with them. The mother has been the parent who has made the major long term decisions for the children and ensured that their needs are met, such as psychological treatment for X and the children’s schooling.
The children appear to have confidence in the decisions made by the mother. X whose relationship with the mother was somewhat difficult in 2017/2018 told the Family Consultant in January 2019 that she,
‘viewed her mother as being “good”, and when I asked her why, she indicated that she was a protective parent and “reasonably” fair, whilst also commenting “she wants the best for us”. [60]
[60] Family Report at [73]
Z
‘gave her mother a ten out of ten rating as a parent, primarily because she “cares about us, she’s fun to be with”[61]
and Y was
‘generally positive about his mother describing her as “nice and friendly”. He indicated that she will discipline him by removing his tech privileges.’ [62]
[61] Family Report at [79]
[62] Family Report at [87]
The children are at an age where they will want some input into joint decisions made by the parties and as the evidence stands they do not currently have a relationship with the father that would support such an exchange of views.
The children’s views of the father have certainly been influenced by his lack of insight and past behaviour. There is also no doubt that there has been family violence perpetrated by the father within the definition contained in section 4A of the Act such that an order for equal shared parental responsibility is both impractical and unfeasible.
It is manifestly clear from the available evidence that these parents are incapable of engaging in consultation involving a genuine effort to come to a joint decision about long term issues affecting the children.[63]
[63] Section 65DAC(3)
Accordingly, I will make an order that the mother have sole parental responsibility for the children with reporting and consultation requirements, including finally advising the father of any particular decision taken.
As a consequence I am now not required to consider firstly, whether it is in the best interest of the children and is reasonably practicable for the children to spend equal time with both parents and, if so, whether an order for equal time should be made.[64]
[64] Section 65DAA(1).
Spend Time With Orders
The Independent Children’s Lawyer and the mother propose that there be no order in relation to the children’s time with the father as opposed to a no contact or no communication order, leaving it open to the children to contact the father if they so wished. The likelihood of that occurring, it must be said, is remote given the mother’s evidence that while she would not discourage any overtures by the children to see or speak with their father she would not encourage it. In cross-examination with Ms O’Rourke for the Independent Children’s Lawyer the Family Consultant said that in January 2019 when he wrote the report, the two younger children were equivocal and unclear as to why the time with their father was ceased by the mother. If the mother was not supportive of the children resuming a relationship with the father, it would make it more difficult for the children if they wish to contact their father and a ‘no time or no communication order’ was made.
X is 16 (almost 17), an age where it is appropriate to enable children to spend time with the non-resident parent in accordance with their wishes.
For Y at 15 and Z at 13, in the circumstances of this case which include the strong influence of their older sister, it is less satisfactory that they should determine the time they spend with the father and indeed the evidence of the Family Consultant is that there should be no obligation on the children to make such decisions.
The father proposes that he commence spending supervised time with the children and progress to unsupervised time, underpinned by family therapy. At paragraph 101 of his report, the Family Consultant recommended a referral to the parenting program M at L family counsellors ‘If the Court accepts that it is in the best interests of Y and Z to consider some relationship with their father.’ The mother’s evidence in cross-examination was that she had registered with L family counsellors but the father did not, so the course was not commenced.
Given the period of time that has passed in which the children have spent no time with their father, it is likely that the family therapy process will be a lengthy one whenever it commences. It is also likely that it would be extremely detrimental to the children and their relationship with their father to commence this process only to have it cease due to financial constraints or lack of commitment. There is no guarantee that the younger children will consent to family therapy taking place and so far as X is concerned she has expressed a resistant and will shortly be an adult and not the subject of orders.
The Independent Children’s Lawyer’s proposed orders do not include a specific no contact order rather the orders are silent on the issue. The rationale being that the current evidence is insupportable of a finding of physical abuse and with respect to the risk of psychological abuse any findings would be outweighed by the children’s firm views.
The Independent Children’s Lawyer’s proposed orders to provide for the father to send the children cards, letters and gifts on a reasonable basis and that the mother provide them to the children once they are received.
Having considered the evidence and the submissions I find that it is in the best interests of the children that the orders proposed by the Independent Children's Lawyer and supported by the mother be made. I appreciate that this decision will come as dreadful blow to the father. Although I have been critical of both parties, there is really little to be gained in attempting to apportion blame. The passage of time and the lack of any meaningful engagement with the father has seen the children’s attitude towards him harden and that reality cannot be disregarded or go unheeded by the Court.
The orders proposed by the Independent Children's Lawyer will be made.
I certify that the preceding one hundred and sixty nine (169) paragraphs are a true copy of the reasons for judgment of Judge Costigan
Date: 3 December 2020.
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