Breton & Breton

[2020] FCCA 2608

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRETON & BRETON [2020] FCCA 2608

Catchwords:
FAMILY LAW – Parenting – interim application by the mother for change of residence for two of three children – high conflict family – father made a threat to kill the mother – alleged that the father has been alienating the children from the mother – concerns for the emotional and psychological being of the children in the care of the father – orders made for the two youngest children to live with the mother and the oldest child to remain living with the father – two youngest children to spend supervised time with the father.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC, 60CC(2A), 67Z, 69ZW

Cases cited:

Eaby v Speelman [2015] FamCAFC 104
Franklyn & Franklyn [2019] FamCAFC 256
Goode & Goode [2006] FamCA 1346

Applicant: MS BRETON

Respondent: MR BRETON

File Number: MLC 7028 of 2019

Judgment of: Judge Blake

Hearing date: 2 September 2020

Date of Last Submission: 2 September 2020

Delivered at: Melbourne

Delivered on: 8 September 2020

REPRESENTATION

Counsel for the Applicant: Ms Damon

Solicitors for the Applicant: V M Family Lawyers

Counsel for the Respondent: Mr Howe

Solicitors for the Respondent: RRR Lawyers

Counsel for the Independent Children's Lawyer: Ms Jenkinson

Solicitors for the Independent Children's Lawyer: Altavilla Family Law

ORDERS

1. Orders 2 to 12 of the orders made on 30 August 2019 be discharged.

2. Orders 3 to 4 of the consent orders made on 29 January 2020 be discharged.

3. Orders 2 to 9 of the consent orders made on 28 May 2020 be discharged.

4. The children X born in 2008 (‘X’) and Y born in 2014 (‘Y’) live with the Mother.

5. The child Z born in 2005 (‘Z’) live with the Father.

6. The Father deliver X and Y to the child minding service on level 5, Commonwealth Law Courts, 305 William Street, Melbourne at 2pm today.

7. The Father be restrained from bringing or allowing Z to attend the child minding service at 2pm today.

8. The Father and anyone accompanying him immediately leave the Commonwealth Law Courts and its surrounds after delivering X and Y to the child minding service.

9. The Mother attend the child minding service on level 5, Commonwealth Law Courts, 305 William Street, Melbourne at 2.45pm today to collect X and Y.

10. In the event the Father does not attend the child minding service on level 5, Commonwealth Law Courts, 305 William Street, Melbourne at 2pm today with X and Y, a recovery order shall be issued for the return of them to the Mother.

11. The Mother’s solicitor have liberty to apply by contacting Chambers by email in the event the Father does not comply with order 6 herein.

12. The Father and Z spend time with X and Y for 2 hours each week supervised by the Family Contact Service, at the Father’s sole cost, at such times and places as are nominated by the Family Contact Service, and the parties do all acts and things and sign all such documents to engage with Family Contact Service.

13. The parties are to follow all reasonable directions of the professional supervisor.

14. The Father is to obtain a report from the supervisor of any time spent with X and Y pursuant to the orders herein, and file and serve a copy of this report by 26 January 2021, the costs of such report to be met by the Father.

15. The time between the Father and Z, and X and Y pursuant to order 12 commence four weeks from the date of these orders.

16. Both parties, their servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the children: 

    Z born in 2005;

    X born in 2008; and

    Y born in 2014

    from the Commonwealth of Australia.  This Order ceases to have effect 2 years after the date on which it is made.

17. The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders.

18. The Court requests that the Australian Federal Police place the names of the children on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia in breach of these orders.  This Order ceases to have effect 2 years after the date on which it is made.

19. The Mother, and the children, including Z, engage in therapeutic family counselling with an organisation or professional as nominated by the Independent Children’s Lawyer.

20. The Mother engage with services for herself and the children as recommended by the Department of Health and Human Services (‘DHHS’).

21. The Independent Children’s Lawyer be at liberty to, liaise with DHHS as to services they have recommended to the Mother and/or the children, and to provide a copy of these orders to DHHS.

22. The Mother do all things necessary to obtain an appointment for X with CAHMS (Child and Adolescent Mental Health Services) for an assessment, and further engagement with CAHMS in the event that they assess their services are appropriate

23. The parties attend upon a suitably qualified professional for the purpose of receiving Cognitive Behavioural Therapy as recommended in the psychological report prepared by Mr C, Psychologist, filed on 20 May 2020, or such other treatment as may be recommended by such professional, and produce evidence of attendance and treatment to the solicitors for the other party and the Independent Children’s Lawyer.

24. The Father, his servants and agents, be restrained by injunction from going to or remaining within 200m of the Mother and/or X or Y or any place where they attend school, live, work and/or study, save for time spent in accordance with order 12 hereof.

25. Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATION:

A.The Father is not to attend the child minding service today on level 5, Commonwealth Law Courts, 305 William Street, Melbourne with any other person save for X and Y.

B.The Mother is to attend the child minding service today on level 5, Commonwealth Law Courts, 305 William Street, Melbourne with a support person.

C.Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment.

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 under the pseudonym Breton & Breton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7028 of 2019

MS BRETON

Applicant

And

MR BRETON

Respondent

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

Introduction

1. The Court has before it an Application in a Case filed by the Mother on 24 August 2020 (‘application’).  The Mother seeks interim orders that two of the three children of the relationship commence living with her immediately.  That application is supported by the Independent Children’s Lawyer (‘ICL’).  The application is opposed by the Father. 

Background

1. The background to this matter may be summarised as follows, and the relevant agreed or non-controversial facts are set out below. 

2. There are three children of the relationship, Z, born in 2005 (‘Z’) who is aged 15 years,  X, born in 2008 (‘X’) who is aged 12 years,  and Y, born in 2014, (‘Y’) who is aged 5 years,   (collectively, the ‘children’).

3. The parties physically separated in mid-2018.

4. Following separation, the children lived with the Mother and spent time with the Father. 

5. In around October 2018, X commenced living with the Father. 

6. Subsequently, Z and Y commenced living with the Father.  By April/May 2019, all of the children were living with the Father.

7. Proceedings were first commenced in this Court by the Mother on 26 June 2019 seeking, among other things, final parenting orders.  Proceedings were commenced in circumstances where the children had, as I have indicated, gone to live with the Father. 

8. Following the conduct of a child inclusive conference pursuant to section 11F of the Family Law Act1975 (‘Act’), I made orders on 30 August 2019 that the children live with the Father.  I also made orders that:

   a)Z spend time with the Mother according to his wishes; 

   b)X and Y commence spending time with the Mother on a professionally supervised basis for up to two hours per week at times to be nominated by the supervisor;

   c)Y spend additional time with his Mother commencing with attendance at kindergarten once per week and progressively building up to a period of one night per week on a Tuesday.

9. These orders were broadly consistent with the recommendations in the 11F report.  It is important to record that supervised time with the Mother was ordered consistent with the 11F report, and ‘…not necessarily in relation to risk, but more so to manage the re-introduction of spend time with the Mother, ensure the Father complies with any spend time arrangements, and to assist the Court by providing a report to the Court.’ (11F report dated 30 August 2019)

10. The matter was next before me on 29 January 2020.  At that hearing, it became apparent that the supervised time contemplated by my orders of 30 August 2019 had not yet commenced.  Part of the reason for this was the Father’s delay in completing the relevant intake forms.  His explanation for that was that he had experienced technical issues with his email.  I was not satisfied with that explanation and I ordered that he file an affidavit explaining the issues he had experienced.  I also made orders by consent increasing Y’s time with his Mother.  The orders for supervised time with X remained in place. 

11. On 28 May 2020, the matter came before me again where further orders were made by consent.  Those orders, among other things, provided for Y to spend five nights per fortnight with the Mother.  The orders also provided for X to spend supervised time with the Mother progressing to unsupervised daytime contact each Sunday.  The orders also expressly provided that Z was not to be brought by the Father to any changeovers involving X or Y.  This order was based on observations made by the family contact service that Z’s presence at changeover had not been helpful. 

Legal principles

1. I now turn to deal briefly with the legal principles.  The orders that I am asked to make are interim orders pending the trial which is currently scheduled to take place on 9, 10 and 11 March 2021.  In Goode & Goode [2006] FamCA 1346, the Full Court set out at paragraphs [81] – [82] the approach that courts should take in relation to making interim decisions, which are as follows:

   ‘[81] In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   [82] In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.

2. I intend to follow the approach set out by the Full Court. 

3. The Full Court recognised that interim cases can be difficult as there are often conflicting facts, little helpful evidence, and disputes between parties as to what constitutes the best interests of the children. 

4. The Court cannot determine factual issues in dispute in an interim hearing.  That does not mean, however, that the Court ignores allegations as to risk if they are plausibly made.  The Court, at an interim stage, must assess the risk for the child as best as it can with the limited information available to it.

5. In Franklyn & Franklyn [2019] FamCAFC 256, a Full Court discussed the approach, at paragraphs [72] – [73] of its reasons, to be taken in relation to serious allegations made at an interim hearing. The Full Court stated as follows:

   ‘[72] True enough, the primary judge had to remain alert to any potential risk of harm to the youngest child, since the evidence was not tested at the interim hearing. Serious allegations cannot be ignored at interlocutory events simply because they have been put in issue (see Salah & Salah (2016) FLC 93-713 at  [33]-[45]; Eaby & Speelman (2015) FLC 93-654 at [18]-[19]), but remaining astute to potential risk is not the same thing as assuming the truth of and reacting impulsively to everything the mother alleged without regard for other evidence and the wider context.

   [73] In interlocutory hearings, to the extent it is possible, judges are enjoined to make decisions about interim orders based on agreed facts, less contentious evidence, and inferences which fairly arise (see Goode and Goode (2006) FLC 93-286 at [68]), but decisions must still be made despite contentious evidence.  Judges are obliged to act on the strength of the evidence presented and, if it is relatively weak, are entitled to treat it so. Contrary to the inherent premise of the mother’s submissions in support of Ground 2(c), judges are not required to treat all untested evidence as bearing the same weight.’

6. I also observe that similar comments to those above were made in a case of Eaby v Speelman [2015] FamCAFC 104. 

7. In determining interim parenting matters, section 60CA of the Act provides that I must have regard to the best interests of the children as being the paramount consideration.

8. In determining the best interests of the children, there are two primary considerations and several additional considerations that I am required to take into account by reference to section 60CC of the Act.

9. The two primary considerations are:

   a)The benefit to the children of having a meaningful relationship with both parents; and

   b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence. 

10. I am required, pursuant to section 60CC(2A) of the Act, to give greater weight to the second of these two primary considerations, being the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence.

The competing proposals of the parties

1. It is appropriate to record that this is a matter in which there are competing allegations of family violence made by the parties.  Reports that the Court received from the Department of Health and Human Service (‘DHHS’), which are discussed in greater detail below, outline the history of reports to that organisation.  DHHS observed in a 67Z report to the Court dated 1 September 2020:

   ‘…historically, both parents have behaved in a manner that was not conducive to promoting positive emotional wellbeing for the children.’

2. There have been numerous interventions by the police, Intervention Order (‘IVO’) applications and various applications in this Court, as noted above.  This is a high-conflict family and the situation is volatile.  It is also a case in which the family dynamics are complex.  There seems little doubt that the children have been exposed to much of the acrimony. 

3. The Father has made a range of allegations against the Mother, including allegations of physical abuse of the children, assaults of the children, and exposing them to people who have sexually abused or assaulted them. The Mother asserts that the Father has engaged in physical abuse of her and controlling behaviours during the relationship. 

4. The Mother’s case in this Court has all along been that the Father has actively undermined the children’s relationship with her, to such an extent that they stopped living with her and went to live with him.  In light of this and because of recent events which I will come to, the Mother seeks, among other things, an immediate change of residence for X and Y.  She seeks that each child come to live with her and spend professionally supervised time with the Father. She accepts, with regret, as she has throughout the proceedings, that Z has expressed a strong wish to live with his Father and that he is old enough such that he cannot be forced to live with or spend time with her. 

5. The Father’s case all along has been that the children were subjected to violence from their Mother, that he has attempted to facilitate time, that the children refuse to see their Mother to varying degrees, and that their wishes should be respected. The Father has alleged sexual abuse of Y by members of the Mother’s family or from those with whom she associates with. The Father seeks that the orders of 28 May 2020 remain in place and that the application be dismissed. He proposes that an urgent section 11F conference take place and that the children variously attend counselling.

6. The ICL supports the orders sought by the Mother. 

The professional reports and the 11F conference

1. Both parties attended for psychological assessment by Mr C.  Mr C did not make any formal diagnosis for either parent.  Both parents were assessed as presenting moderate risk in terms of parenting. 

2. The Court then has before it three reports from DHHS and the report of the 11F conference conducted on 30 August 2019.  It is appropriate to have regard to those reports which are from third party sources in circumstances where there are competing narratives from the parties. 

3. The first DHHS report was received under section 67Z from the Department and is dated 26 August 2019. That report recorded an investigation into the family. The report writer expressed, among other things, the following:

   a)There was a pattern of ongoing parental conflict regarding separation, child care, and custody.

   b)There were 13 family violence incidents to which police have responded.  However, there has been limited evidence of violence upon police attendance and thus, limited ability to substantiate factual information.

   c)Information gathered indicated the Father persistently made efforts to discredit the Mother and that the Father appears to have aligned the children to himself and alienated the children from their Mother.

   d)The Mother admitted using physical chastisement as a form of discipline historically, although denied recent significant use.  The Father denied physical chastisement of the children, although X reported that his Father hits him.  X expressed genuine fear of the Father, however he subsequently retracted his statement and indicated this was historical only.

   e)The report writer directly observed, during a home visit, the Father speaking negatively about the Mother.

   f)The Father had received a recent warning from X’s school about the Father’s inappropriate behaviour toward other adults at the school grounds.

   g)The Father was proactive in seeking supports.

   h)Z and X reported physical chastisement, verbal aggression, and poor parenting whilst in their Mother’s care, both historically and recently.  Both children appeared to idolise their Father and made no disclosures of any significant harm perpetrated by the Father towards them.

   i)DHHS planned for contact to occur between X and the Mother as a regular occurrence.  Those plans failed to commence, with the Father initially stating he misunderstood the plans but then later saying he was scared the Mother would not return the children.

   j)It was reported Z and X had both displayed aggression at school, with the report writer observing that the use of aggression appears to have increased since the children have resided in their Father’s care fulltime.

   k)There was clear evidence to support the children’s exposure of verbal abuse.

1. In terms of conclusions in the first DHHS report, the report writer stated:

   a)There is clear evidence to support the children’s exposure of verbal abuse of the Mother.

   b)The Father admitted to withholding contact of the children from the Mother, thus directly preventing a meaningful relationship with the children and the Mother.

   c)The Father’s constant belittling of the Mother has occurred in front of the children, which has further increased Z and X aligning with their Father’s beliefs.  This is indicative of a likelihood of emotional harm towards X and Z.  However, it was very difficult to evidence given their presentation and how they portray their relationship and memories of their Mother.

   d)There have been no direct concerns regarding the Father’s contact with his children, and the elder children spoke positively of him.  It remains unclear whether Z’s and X’s beliefs and memories of their Father were factual or accurate.

   e)There was evidence that the Father portrays a strong negative image of the Mother which may have been pivotal in the children’s strong beliefs and their wish not to have contact with their Mother.

   f)There was confidence in the Mother’s ability to engage positively with any services or assessments in the best interests of the children.

   g)There was evidence of indicative family violence between the parties during the relationship.  Corroborative proof to substantiate this was limited. The Father’s presentation to a number of professionals belittling the Mother, and recent threats made towards the Mother are highly indicative that the Father is the perpetrator of violence.  Furthermore, X’s and Z’s observation of more outward aggression in their nature at school since residing with their Father full time.

   h)The Father clearly loves his children, however, was unwilling or unable to prioritise their needs or wishes at times.

   i)The Mother has greatly engaged in the investigation process and reports from professionals indicate she was positive with a consistent theme of prioritising the needs and wishes of the children independently.

   j)It was recommended that the Mother’s time with Y and X should be progressed as soon as possible, with the time with X requiring initial supervision.

   k)Significantly, there was no evidence of concerns regarding the Mother which would prevent appropriate increasing contact, including unsupervised, overnight, or shared care arrangements.

2. Following the DHHS report outlined above, Consultant Ms E conducted a Child Inclusive Conference under section 11F of the Act and provided a report dated 30 August 2019. Consultant Ms E reported the following in her report:

   a)She concurred with the DHHS assessment.

   b)The Father presented as heightened, had difficulty focusing, and his communication style could be construed as controlling.

   c)The Mother presented as pleading and more subversive in her communication style, but also with an ability to elaborate in her storytelling.

   d)Z’s presentation was of some concern and he gave a litany of complaints about his Mother and spoke in terms of ‘we’ and ‘us’, describing a siege-type mentality as between the Father and his brothers against the Mother and her family.

   e)X also spoke in terms of ‘we’ and ‘us’, which the Consultant described as ‘…indicative of children experiencing influence or repeated exposure to a narrative about relationships in the family.’

   f)Z refused to see his Mother.  X ‘appeared conflicted’, but ultimately sat next to his Mother and talked to her.

   g)Y responded warmly to the Mother’s hugs, smiles and warmth.

   h)Significantly,  ‘the observations, although limited, raise concerns that if X is to spend time with his Mother, his older brother, Z, may seek to undermine this.’

   i)Ultimately, Consultant Ms E made recommendations, which included the following:

   ‘•  The children live with the father.

   •   Z lives with and spends time with ether of his parents in accordance with his wishes

   •   X and Y spend supervised time with their mother, not necessarily in relation to risk but more so to manage the re-introduction of spend time with the mother, ensure the father complies with any spend time arrangements and to assist the Court by providing a report to the Court. Additional spend time for Y may be established utilising kindergarten as a changeover venue. Initially this is daytime, reviewed and if going well moves to overnight time.’

3. A further report from DHHS was then received on 25 May 2020 pursuant to section 69ZW of the Act. That report recorded the various interactions between the family and DHHS. The report, relevantly:

   a)Traversed the various reports received by DHHS.

   b)Noted that in respect of the period 25 March 2019 to 15 October 2019, while the Father appeared to have aligned the children to himself and alienate the Mother, there were no direct concerns noted regarding the Father’s care of the children.

   c)Recorded a current open report relating to concerns raised by the Father that Y had been sexually abused by the Mother’s partner.  The content of the report concerned a comment made by the Mother’s partner to Y about genitals.  It was noted in the report that the Father had presented with Y to the hospital and multiple police stations with information that was inconsistent, vague, and with no disclosures of sexual abuse.  There was insufficient evidence of sexual harm and the report was closed.

   d)Noted that the Mother had engaged with supports but that it was unclear whether the Father had accessed support.

   e)Child Protection investigation between March and October 2019 assessed that the children were not at risk of significant harm in the care of either parent and that the matter was appropriately addressed by this Court.

   f)It was recommended that the children have contact with their Mother.

4. There is then the most recent report received from DHHS on the day prior to the hearing of the current application.  This report records the following:

   a)A report received in relation to X’s behaviour, which includes ongoing aggression toward other students at school that led to police involvement, reports of cyberbullying, and inappropriate social media use.

   b)X and the Father were both interviewed in relation to the incidents concerning X.  Both X and the Father demonstrated little or no insight into the concerning behaviours.

   c)The Father made a further report to persons unknown that Y had been sexually abused by the Mother’s new partner.  The allegation was that Y had seen the partner’s penis.  It seems that this is a different report to that recorded in the May 2020 DHHS report, given the content of the report, although it is not clear.  The reported concerns were not substantiated.

   d)The Father had refused to engage with counselling and other support services.  This includes failure to engage with services to assist him with parenting as well as failure to follow through on recommendations for support services for the children’s mental health.

   e)The Father had made threats to a professional counsellor to kill the Mother if Y was placed into her care fulltime.  The Department recorded in respect of that:

   i)The Father denied making the threats and said the professional who reported this had made it up.

   ii)Both Z and X believe the Father would never make threats to harm the Mother, and that the Mother had made up threats.

   iii)A full exclusionary IVO for the Mother against the Father had been granted because of the threats.

   f)Both Z and X had been privy to adult information that appears to have been provided by the Father. 

   g)The Father presented with a fixated view on portraying the Mother in a negative light and exposes the children to this frequently.

   h)The Father demonstrates limited insight into the negative impact of his violent and controlling behaviour towards the Mother.  Child Protection recorded that it was highly concerned over the vilification of the Mother by the Father and the negative impact this was having on the children’s relationship with the Mother, as well as the impact on their mental health and social development.

   i)Child Protection were very concerned that the Father was not able to regulate his emotions in front of the children and that this was having a negative impact on the children’s mental health and their sense of identity and their confidence in their own understanding of reality.

   j)Child Protection held concerns that the Father was not able to demonstrate insight into the impact of his behaviours on the children.

   k)Child Protection held significant concerns that the Mother does not have regular contact with Z and X which is impacting their ability to build positive relationships.

   l)Child Protection concluded that while ‘the children are not at significant risk of harm in the care of [the Father], Child Protection are concerned about the likelihood of emotional and psychological harm without support services and therapeutic intervention.’

Consideration

1. I now move to consider the competing submissions of the parties in the context of the best interests considerations under the Act.

2. The present application is an application for interim parenting orders that is being made in the context of a highly volatile family situation with competing allegations of a very serious nature made by both of the parties.  That necessitates a carefully considered approach.  The present application adds a competing layer of complexity.  I am being asked to consider a change of residence on an interim basis.  Further, I am being asked to change the residence of two out of three children in the sibling group.  These are not matters to be embarked upon lightly in any hearing, let alone at an interim hearing where the evidence is incomplete and has not been tested. 

3. I now turn to deal with each of the significant risk factors and other factors which have emerged from what I have set out above. 

The threat to kill

1. The catalyst for the present application is a threat made by the Father.  That threat was made by the Father to a support worker employed by F Contact Service following a session that F Contact Service conducted with the Father.  The threat, recorded in an email from the ICL, said that the Father made threats to kill the Mother and her partner.  The Father apparently said ‘I will do it.  I will do it’ and that he did not care about the consequences.

2. The Father’s response to this allegation has been inconsistent and unconvincing.  DHHS recorded in their most recent report that the Father denied making the threats when interviewed by them.  By the time the Father came to file his affidavit in this Court on 28 August 2020, he accepted that he said something to the effect as noted by the ICL but that it was greatly exaggerated.  By the time of the hearing, his counsel put forward a different version.  Counsel told the Court that the threat was a qualified threat.  Counsel said that the threat was to the effect that he, the Father, would kill the Mother and her partner if they were sexually abusing the child.  I note that this latest iteration did not appear in the Father’s affidavit. 

3. There is little doubt that the Father has been evasive in his responses and that a threat to kill was made. 

4. A threat to kill a current or former domestic partner is a matter of the utmost seriousness.  There has been well publicised examples throughout the year of family violence, including of death, regrettably.  The threat is significant, and I give significant weight to it. 

5. The threat is not the only matter of concern.  The Father’s evasiveness about the threat and his explanation is also cause for concern.  In his affidavit material, he seeks to minimise the threat of violence, effectively shifting the blame to what he says was the pestering nature of the counsellor.  His counsel re-agitated that matter.  I cannot make any finding as to what the circumstances were of the counselling session.  However, the Father in his affidavit material does not accept any responsibility for it nor demonstrate any insight into the nature of the threat.  The submissions during the hearing that the threat was qualified only serve to underline that the Father apparently does not understand the gravity of what he has done and seeks to minimise his actions and responsibility for it. 

6. The Father submitted in respect of his threat that it did not relate to the children.  That submission must be rejected.  It may be that there was not a direct threat to kill a child, but there was clearly a threat to kill the children’s Mother.  How it can be said that the threat did not relate to the children or would not affect them, when their very own Mother was the subject to the threat, is beyond me.

7. I pause to observe that this is a threat that was made in the presence of an independent third party.  It is of some significance that the threat was made in the presence of a third party.  If the Father is prepared to issue those threats in the presence of a counsellor, it raises a real question as to what the Father is saying to the children about the Mother behind closed doors.  I note in this respect the frequent observations of DHHS about the Father belittling or undermining the Mother. 

The Father’s threat to take Y back to Country G

1. The next aspect of the Father’s conduct are the statements to F Contact Service that he would take Y back to Country G.  The Father in his material says that this allegation is ‘not completely false’. He claims that what he said has been taken completely out of context.  He explains his future plans.  Nowhere does he offer a direct account of what he said took place in relation to the threat to take Y back to Country G.  There is no clear denial of the alleged threat.

2. It is important to say something about the circumstances of the threat to remove Y, which the Father does not deny.  Y is the youngest of the children and is the only child spending regular time with his Mother. 

3. Among other things, the threat (not denied) means that an order should be made placing all of the children on the Airport Watch List. 

The Father’s claims in relation to the sexual abuse of Y

1. The Father has ventilated concerns for some time that Y is being sexually abused in the Mother’s care.  The Father raised concerns that the children were being sexually assaulted by the Mother’s family to the 11F report writer.  More recently, the F Contact Service worker who reported the threat to kill advised the ICL that, among other things, the Father was ‘absolutely of the opinion Y is being sexually abused in the Mother’s care.’ The Father sought to rely on this concern at the hearing to justify the threat to kill.  It was implicit, if not explicit, that the Father also relies on his concerns to justify his withholding of Y.  It seems to be the case, although it is not entirely clear, that DHHS has been twice apprised of different reports of concerns held by the Father that Y is being sexually abused. 

2. The alleged sexual abuse of a child is not a matter to be dismissed lightly.  This is not a case, however, where there is no independent review of those allegations.  DHHS have looked into matters.  As I have noted above, both apparent concerns of the Father to which DHHS have become aware in the last years have been dismissed.  There is no ongoing investigation into the Mother or her partner.  There is no evidence from the observations of Y, conducted by DHHS, that he has been harmed sexually in any way. 

3. Further, DHHS have supported the Mother spending overnight, unsupervised time with the children.  DHHS has continued to express concerns about the lack of contact between the Mother and the children. DHHS would not advance these views if there was any legitimate basis for the Father’s concerns. 

4. It is a curiosity in the Father’s position that he comes to this Court in response to the Mother’s application seeking that the recent parenting orders of the Court made in May 2020 not be suspended.  Those orders, made by consent, provide for Y to spend five nights per fortnight unsupervised with the Mother, as well as for progression to unsupervised time with X.  No explanation is offered as to how this position can be reconciled with the Father’s apparently unshakeable and persistent view that the children, especially Y, are at risk of sexual abuse or sexual assault in the Mother’s care.  

The claims that the Mother has physically abused the children

1. The Father claims that the Mother has physically abused the children.  The two elder children have made claims supporting this.  The Father relies on these matters to submit that the children are best off in his care. 

2. The Mother has admitted to DHHS physical chastisement of the children during the relationship, but not in recent times, as recorded in its first report to the Court.  Clearly, the Mother ought not to have engaged in physical chastisement.  Such acts present a serious risk to children. 

3. Against that though, the following needs to be said.  First, the Mother denies any recent physical chastisement.  Second, the only reports of physical chastisement in recent times come from X and Z, whom DHHS note as presently aligned with the Father.  Third, the Mother has engaged with appropriate supports as recorded by DHHS.  Fourth, DHHS, having assessed the risk, are of the view that the two younger children need to have contact with their Mother and they support a progression of time to unsupervised time overnight.  Such views would not have been offered if DHHS were of the view that there was a serious risk to the children. 

4. Finally, in assessing this matter, regard should be had to the observations of the 11F report writer.  Y engaged with his Mother.  X, under the watch of his older brother, was reluctant to engage with his Mother but eventually did so. 

The Father’s alleged alienation or lack of support for the children’s relationship with the Mother

1. The Mother has claimed throughout the proceedings to this point that the Father has either alienated the children from her or engaged in behaviours that were designed to undermine the relationship with the children.  The Father has stridently denied this and has consistently said, including in his most recent affidavit, that he supports the children seeing the Mother. 

2. The Father’s claims to support the Mother/child relationship bear close observation in light of the following matters. 

3. First, the Father’s protestations that he supports the children having a relationship with the Mother are almost always predicated on them wanting to have a relationship with her.  That may be appropriate for a child of Z’s age.  It is certainly not appropriate for Y, who is aged five.  I harbour significant doubt that it is appropriate for X, a child who the 11F report writer recorded as being conflicted and who is likely to be influenced by his older brother.  The Father knows what is in the 11F report but nevertheless persists, including in his most recent affidavit, with the notion that it is up to the children as to whether they want to see their Mother.

4. Second, the various professional reports to which I have referred in some detail above, all describe the Father as having aligned, certainly the older two children, with his views. 

5. Third, there are the various behaviours of the Father recorded in the reports that I have referred to above.  Those behaviours are not consistent with the claims to support a relationship between the children and their Mother.  These include:

   a)What DHHS describes as the constant belittling of the Mother in front of the children, which they have personally observed.

   b)The Father’s delays in completing the paperwork for supervised time to commence.

   c)The Father’s withholding of Y, which is noted in the DHHS reports.

1. In respect of the withholding of Y, it appears that some of it coincided with the commencement of the COVID-19 pandemic.  The Mother alleges that the Father was aware of the statements made by the Chief Judge of this Court in relation to parenting arrangements during the pandemic, but ignored them.  The Father, in response, does not deny that.  He simply says that he has concerns about his health and the health of the children and his parents.

2. In considering the issue of the Father’s support for the younger children’s relationship with the Mother, it is also necessary to say something about Z.  Z is 15 years of age.  The 11F report writer described him as a pseudo adult who was protective of his younger brothers.  He has strong views about not seeing his Mother.  For that reason, he is not the subject of the present application.  He, however, expresses, and more importantly, appears to be permitted by the Father, to express his strong negative views about his Mother toward the other children.  Z’s views were noted by the 11F report writer.  They were also noted by DHHS where Z communicated his views in the presence of X. Indeed, the parties themselves recognised that Z’s influence may be unhelpful in establishing a bond between the younger children and the Mother, when they consented to an order in May 2020 that Z not be brought by the Father to any changeovers involving X and Y.  That order came about because of a suggestion from the relevant family contact service. 

3. Despite that order, the Father appears to have permitted Z to continue to influence his brothers.  In her affidavit, the Mother recounts a conversation that occurred on 21 August 2020.  In that conversation, Z abused the Mother in front of Y and X.  He also supported X in apparently not wanting to see his Mother.  The Father did nothing to intervene.  The account is not contested or denied by the Father. 

4. The Mother also recounts a situation where Y was with her and the Father asked for a telephone call.  The Father then permitted the two older brothers to speak to Y and they both told him that they missed him.  The Father does not deny that interaction in his affidavit.

5. The actions that I have outlined above, in my view, place significant doubt on the Father’s statements that he supports the Mother having a relationship with X.  The Father appears to be telling the Court what he thinks it wants to hear, while actively behaving in a different way outside of Court. 

6. In my view, there is a significant risk that if the current situation subsists, X will become, if he is not already, alienated from his Mother and adopt views similar to his older brother.  There is also a significant risk that if the current situation continues, Y’s relationship with his Mother will be placed in jeopardy.  There is a significant risk that both Y and X will experience potentially significant emotional harm if their relationship with their Mother is placed under any further strain. 

The apparent deterioration in X’s behaviour

1. On the material, the child who seems to be the person most suffering in the present situation is X.  On the material, I am very concerned about X’s welfare, development, mental state. 

2. The 11F report writer noted in August last year that each of the boys presented as polite.  X was described as conflicted.  Nevertheless, he was observed to sit with his Mother and interact with her. 

3. The first DHHS report in August last year commented on X’s displays of aggression at school, with DHHS noting that the aggression appeared to have increased since the children resided in their Father’s fulltime care.

4. By the time of the second supervised contact visit in March 2020, the material indicates X was refusing to get out of the car to see his Mother.  By the time of the most recent DHHS report a few days ago, X’s behaviour appears to have deteriorated significantly.  He appears to be engaging in a range of behaviours that have brought him into conflict with others and, significantly, brought him to the attention of the police.  The deterioration in behaviour has happened on the Father’s watch, with DHHS commenting that the Father has failed to implement boundaries and appropriate discipline.

5. I am of a view that X appears to be at serious risk of emotional and psychological harm, and that this risk appears to have increased during the time he has been in his Father’s care, given the comments in the DHHS material. 

Separating siblings

1. The Father submits that one of the reasons the Court should dismiss the Mother’s application is that it would result in the siblings being separated.  He submits they share a close bond. 

2. I accept separating siblings is a significant step, especially in the context of a volatile parental situation.  In such a situation, sometimes the only, or perhaps best support children receive is from each other. 

3. The prospect of separating the siblings and placing Y in the care of his Mother is something that I raised with the 11F report writer at the time she gave her report in August 2019.  The 11F report writer at that time stood by the recommendations in her report that the children remain with the Father, recognising that it was a more softly, softly approach.  Her approach was supported by the ICL at that time.  The 11F report writer did not deny that separating Y from the others could work.  However, she also stated that it could fracture the relationship.  The Court ultimately, at that time, made orders that all of the children live with the Father. 

4. In that context, it is relevant to ask what has changed between August 2019 and August 2020.  In my view, the following has taken place:

   a)The Father’s actions described as above are not actions that have supported the relationship between the Mother and Y and X, respectively.

   b)According to DHHS, X’s behaviour is of serious concern.  There seems no doubt on the DHHS reports that his behaviour has deteriorated.

   c)DHHS says that the Father has not placed boundaries around the children and has limited insight into X’s behaviour and the reasons for it.

   d)X appears more resistant to spending time with his Mother than he was a year ago, as can be seen from the report from the family contact service.

   e)The Father has threatened to kill the Mother.  Two things flow from that.  First, the children are aware of the threat.  Second, it gives rise to a real concern about what the Father is saying in the home to the children, given his preparedness to articulate that threat to a third party.

   f)The ICL now supports the two younger children living with the Mother.

5. To the above may be added the following.  X is now 12 years age.  The window of opportunity for him to develop a relationship with his Mother in the environment in which he finds himself in is closing fast.  There appears to have been a deterioration of the relationship with his Mother in the time this matter has been in this Court.  Waiting until judgment is delivered after a trial in March 2021 may well be too late to save this relationship.  It may also be too late to arrest the deterioration in his aggressive behaviours, noting that DHHS has identified those behaviours have escalated while he has been in the fulltime care of his Father.

6. Insofar as removing Y is concerned, while he has a good relationship with his Mother, it seems clear on the material that there is a real risk of this being undermined by his brothers and that the Father is not intervening to stop this.  Conceivably, one could wait for trial to determine whether Y should be removed.  However, I am not convinced that this is the best course. The Father appears firm in the view that Y is being sexually abused in the Mother’s care, despite professionals and DHHS investigating such concerns and not substantiating them. By doing so, he continues to involve Y unnecessarily with DHHS personnel, police personnel and medical personnel.  That is noted by DHHS.   Constantly, placing Y in front of such professionals without a proper basis for doing so is a risk to his development and emotional welfare.  It also has the effect of undermining Y’s trust in his Mother.  The Father’s threats to remove Y also need to be weighed. 

7. Under the Mother’s proposal, Z will remain with the Father.  He is 15 years old.  He has expressed strong views.  Significantly, however, in the context of separating siblings, he appears to have been permitted by the Father to undermine the relationships that the two younger children have with their Mother.  Ideally, both younger brothers should be able to rely on a protective older brother for support at a time such as this.  The Father’s apparent inability, however, to appropriately guide Z’s behaviours in front of his younger brothers has led to a situation where, it would seem, at least for the moment, that a separation of the siblings is necessary to ensure the overall health and welfare of the younger children.  None of this should be taken to mean, however, that the two younger brothers will not miss Z.  Clearly, any change is going to impact them. 

8. Finally, in considering the issue of separating the children, I have considered the structure of the Act. The Act sets out that one of the primary considerations the Court must have regard to is that the children enjoy a meaningful relationship with each parent. While relationships that siblings have with each other is important, the Act describes that matter not as a primary consideration, but as an additional consideration.

The apparent recommendation of DHHS

1. The Father placed significant emphasis on the fact that whatever DHHS presently says, it expressed the view that the children were not at significant risk of harm in the care of the Father.  While the recent report does say that, the following matters need to be borne in mind. 

2. First, the finding relied on by the Father is qualified.  That finding is:

   ‘While it is currently assessed that the children are not at significant risk of harm in the care of [the Father], Child Protection are concerned about the likelihood of emotional and psychological harm without support services and therapeutic intervention.’

3. As can be seen from the above, Child Protection have expressed concern about the likelihood of emotional and psychological harm without support services and therapeutic intervention.  DHHS itself makes clear that the Father is not accessing those services.  It needs to be said that it is not exactly clear which services are not being accessed by the Father.  For example, he was attending F Contact Service, so he was accessing some services.  However, given the DHHS’ comments, clearly the Father is not accessing all supports, however, the Mother appears to be.  The position, therefore, if matters are not attended to, is that there is more than a likelihood of the children suffering emotional and psychological harm, in DHHS’ view, given the Father’s failure to access these supports.  In my view, there is no other way to read the DHHS report.

4. Second, the DHHS report is made in a context where the Father denied the threat to kill the Mother.  He has now admitted that threat.  The manner by which he comes to that admission is evasive and does him no credit.  Had DHHS known that this threat was admitted, its ultimate recommendation may well have been different. 

5. For the above reasons, I do not place significant weight on what the Father says is the ultimate recommendation of DHHS. 

The orders sought by the Father and the Mother

1. It is appropriate to say something about the other orders sought by the Father, having already mentioned the inconsistency between his views as to the risk of sexual abuse of the children by the Mother yet his support for orders that sees Y spend five nights per fortnight unsupervised with her. 

2. The Father submitted that the proper orders were for the Father to continue to have the children live with him and for there to be orders for therapeutic counselling.  Therapeutic counselling is clearly necessary in this case.  I am not satisfied, however, that such counselling would take place under the watch of the Father.  First, because there is a real question given what I have outlined above as to the support he has for the children having a meaningful relationship with their Mother, and secondly, the DHHS’ reports are clear the Father has not engaged with all supports available to him and refuses to do so.  It is therefore somewhat disingenuous for the Father to propose counselling but not to have engaged with the relevant services available, according to DHHS.

3. The Father also submitted that another option available to the Court is to ask for another urgent child inclusive conference to gauge the opinion of X.  I would not embark upon that course.  The previous 11F report makes clear what the dynamics within this family are and the fact that X is conflicted.  That his relationship with his Mother may be undermined was a matter that was foreshadowed by the 11F report writer at the time.  Ordering another 11F now will not advance the Court’s views as to X’s preferences or what is in X’s best interests.  X is 12 years old, and there are indications noted above that the Father is not supporting his relationship with the Mother, and I would therefore not give any significant weight to his views, even if they were stated by an 11F report writer.

4. In my view, when all of the above matters are considered, X and Y are at risk from psychological harm in the care of their Father.  I am also satisfied that there is a risk that if nothing is done, the children, and in particular X, may lose the ability to have a meaningful relationship with their Mother given the conduct of the Father, which I have outlined above.  If changes are not made, I am concerned that X’s relationship with his Mother would be compromised. 

5. There is a question as to what time Y and X should spend with their Father and Z. 

6. DHHS have recorded the inability of the Father to regulate his emotions in front of the children.  I have outlined other actions of the Father earlier in these reasons that are not consistent with supporting a relationship with the Mother.  Given those matters, the threat to kill, and the risk of emotional harm to the younger children, it is regrettably not appropriate to consider any time other than supervised time at this point.  The younger children and the Mother need an opportunity that enables them to build a relationship together without encountering behaviours that detract from that outcome. 

7. Previous parenting orders up to this point have provided for Z to spend time with his Mother as he wishes.  There is a question as to whether this should continue, and it is not a matter that I was addressed on by any counsel.  I have little doubt that Z will miss his brothers and that they, in turn, will miss him.  The presence of the younger brothers in the care of the Mother may well act as a spur to Z going to see his Mother, which might be regarded as a positive. I am of a view, however, that for the moment, regrettably, previous orders permitting Z to spend time with his Mother need to be suspended.  Reports indicate the strong negative views Z has of the Mother.  The material indicates the real risks of him discouraging the relationship between the younger brothers and their Mother.  Permitting him to see the Mother at this time, when he has not made any real or consistent effort to do so over the course of the last year, simply risks creating a situation where he visits his Mother and then behaves in a way that undermines the relationship between the Mother and the younger children.  This is a position I have come to after much thought and with a great deal of regret.  It is to be hoped that the other orders I will make regarding therapeutic counselling will soon mean that this situation can be changed.  However, for the moment, I regard it as being in the best interests of Y and X, at this time for the reasons above, particularly in circumstances where Z has, as I have said, not made any real efforts to engage with his Mother over the last year. 

8. There was a question as to whether telephone time should occur between the Father and Z and X and Y. For the reasons which I have articulated earlier, and in particular, what the material indicates has occurred during telephone time, I regard it as not being in the children’s best interests that telephone time occur at this time. 

9. Given the various matters and risks to which I have referred above, time should be permitted between the Father and Z and X and Y, but such time should be supervised.  It is also appropriate that any time between the Father and X and Y be suspended for a period of four weeks to enable them to adjust to living with their Mother without the distraction of seeing the Father and Z. 

10. One matter I am required to consider is the likely effect that the change in circumstances will have on the children.  I have endeavoured to deal with that throughout these reasons.  I expect that any change will be significant for both children, but particularly X.  A period of difficulty is to be expected.  This applies equally for Z, who, whatever his motivations or actions, appears to be protective of his brothers.  To aid with the difficulty for X and Y, I will make appropriate orders in relation to counselling and therapy. I understand from submissions received from the ICL that DHHS also stands ready to assist.  It will be important that the Mother engage with these services to maximise the chances of rebuilding a relationship with both children, and in order to minimise any adverse effects the change in circumstances are likely to have. 

11. Finally, the Mother sought an order the Father attend cognitive behavioural therapy as recommended in the psychological report prepared by Mr C, psychologist.  I note that both parties were ordered to attend such counselling.  For completeness, I will make an order that both parties attend such therapy. 

12. For all of the reasons that I have articulated above, I am satisfied that the Mother has capacity to care for the children.  I regard the risks of X and Y living with her as being less than the risk they face in the care of their Father.  I intend to make orders changing the residence of X and Y, and I regard those orders, having considered them carefully, as being in the children’s best interests.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date: 18 September 2020