Breton & Breton (No 2)
[2023] FedCFamC2F 1157
•6 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Breton & Breton (No 2) [2023] FedCFamC2F 1157
File number: MLC 7028 of 2019 Judgment of: JUDGE BLAKE Date of judgment: 6 September 2023 Catchwords: FAMILY LAW – Parenting – split siblings – where two older children live with father – where youngest child lives with mother – where both parties have committed family violence during the relationship – where the father has made threats to kill the mother post relationship – where father has denigrated the mother openly post relationship including to the two older children such that they have no relationship with her – where there is evidence the older children have adopted the father’s views – where there is evidence the older children seek to persuade the younger child to the father’s views – where the father purports to seek orders that the youngest child live with him and spend time with the mother unsupervised but the evidence shows he is not supportive of the child’s relationship with the mother – where the mother says the youngest child should spend no time with his father and brothers – where the youngest child is settled after years of upheaval – where father’s proposed orders will lead to more conflict – HELD orders made for the youngest child to spend no time with father and brother. Legislation: Evidence Act 1995 (Cth) ss 140, 140(1), 140(2)
Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3), 60CG, 61DA, 65DAA(1), 68B, 68C, 69ZW
Cases cited: A v A (1998) FLC 92-800
Briginshaw v Briginshaw (1938) 60 CLR 336
Fitzwater v Fitzwater (2019) 60 Fam LR 212
Breton & Breton [2020] FCCA 2608
Isles & Nelissen [2022] FedCFamC1A 97
Keane & Keane [2020] FamCA 99
M v M (1988) 166 CLR 69
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Re W(Sex Abuse: Standard of Proof) (2004) FLC 93-192
Division: Division 2 Family Law Number of paragraphs: 171 Date of hearing: 6, 7 & 8 June 2023 Place: Melbourne Counsel for the Applicant: Ms Damon Solicitor for the Applicant: V M Family Lawyers Counsel for the Respondent: Mr Burns Solicitor for the Respondent: Creative Family Law Solutions Counsel for the Independent Children's Lawyer: Ms Theoharopoulou Solicitor for the Independent Children's Lawyer: Trapski Family Law ORDERS
MLC 7028 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BRETON
Applicant
AND: MR BRETON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
6 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the child Y born in 2014 (‘Y’).
2.The father have sole parental responsibility for the child X born in 2008 (‘X’).
3.X live with the father and spend time with the mother in accordance with his wishes.
4.Y live with the mother.
5.Y spend no time and have no communication with the father.
6.In the event X wishes to spend time with the mother, all changeovers which do not occur at X’s school take place in the foyer of the Suburb H Police station.
7.The mother and the father each be permitted to liaise directly with the children’s school(s) to obtain any necessary information about the children’s progress and copies of all reports, notices, information, newsletters, photographs, invitations for parent teacher interviews, and these orders act as an authority for same.
8.The parties shall inform each other of any serious medical injury or illness sustained by the children whilst in their respective care as soon as reasonably practicable.
9.Pursuant to section 68B of the Family Law Act 1975 (Cth) (‘the Act’) the father, his servants and/or agents, be and are hereby restrained from approaching, contacting or communicating with the child Y or coming within 200 metres of Y’s home, school or extra-curricular activity.
10.Pursuant to section 68B of the Act the father, his servants and/or agents, be and are hereby restrained from approaching, contacting or communicating with the mother or coming within 200 metres of the mother’s home or place of employment or Y’s school and from harassing, molesting, stalking or physically harming or threatening to harm the mother, and it is noted that this order is an order made for the personal protection of the mother to which section 68C of the Act applies and any police officer made aware of these orders and who on reasonable grounds believe that such orders and injunctions have been breached by the father by either harassing, molesting, stalking or physically harming or threatening the mother may arrest the father without warrant.
11.The father, his servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal or attempted removal of the child Y born in 2014 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing Y on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child Y’s place on the Airport Watch List until 2032.
12.The mother be and is hereby permitted to remove the child Y born in 2014 from the Commonwealth of Australia notwithstanding that the consent of the father has not been obtained and the consent of the father be dispensed with unconditionally.
13.Order 11 of these Orders applies only to the child Y born in 2014 and his departure from the Commonwealth of Australia with the father, his servants and/or agents, and pursuant to Order 12 of these Orders, Order 11 shall not apply to the child Y born in 2014 and his departure from the Commonwealth of Australia with the mother, her servants and/or agents.
14.For the purposes of section 11 of the Australian Passports Act 2005 (Cth) (‘Passports Act’) this order expressly permits the issue of a passport or travel documents (within the meaning of the Passports Act) for the child Y born in 2014 upon application by the mother and without requiring the consent of the father to the child Y born in 2014 travelling outside the Commonwealth of Australia or his signing passport or passport renewal application.
15.The mother be permitted to provide a copy of these Orders to:
(a)Any school, after school care provider or extracurricular activity provider that Y attends from time to time;
(b)Any medical or allied health professional upon whom Y attends from time to time;
(c)Any government or non-government agency in relation to any matters concerning:
(i)Parental responsibility;
(ii)The care of Y;
(iii)The personal protection of Y and/or the mother;
(iv)Applying for and obtaining passports for Y; and
(v)Y travelling outside the Commonwealth of Australia.
16.The parties, their servants and/or agents be and are hereby restrained by injunction from:
(a)Denigrating each other or their family to or in the presence and/or hearing of the children and from permitting anybody else to do so;
(b)Discussing these proceedings with the children in their presence and/or hearing and from permitting anybody else to do so;
(c)Exposing the children or either of them to any form of family violence; and
(d)Permitting the children or any of them to read or be exposed to any documents filed or produced in these proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
This is a long-running and difficult case. When it was commenced over four years ago, the dispute concerned the parenting arrangements for three children: Z born in 2005 (‘Z’), X born in 2008 (‘X’) and Y born in 2014 (‘Y’). In the intervening years, there have been multiple Court appearances, involvement of the then Department of Health and Human Services (‘DHHS’), the children have at various times moved between the homes of each of the parents, there have been three family reports and at least five unsuccessful attempts to have the matter proceed to final hearing. Each of the three children have suffered greatly because of the entrenched dispute between the parents. By the time the matter came on for final hearing before me, Z was no longer a child, and X had self-placed and elected to live with the father. The parents are no longer in dispute as to the living arrangements for the two elder children. The remaining substantive dispute between the parties is about where Y should live.
For the reasons that follow, I have decided that Y should live with the mother, spend no time and have no communication with the father (and by extension, Z and X). This is a highly regrettable outcome, but one that is in Y’s best interests.
BACKGROUND
The parties helpfully prepared a Statement of Agreed Facts. What follows is taken largely from that document.
The parties married in 2000. The mother migrated to Australia from Country G in the years that followed. Z was born in 2005. X was born in 2008. Y was born in 2014.
In 2013, the father suffered a serious injury as a result of a workplace accident. He has not been able to work since.
On 16 July 2018, the parties separated. In October 2018, X commenced living with the father. On 22 April 2019, Z commenced living with the father. At some point shortly thereafter, Y also began to live with the father.
On 26 June 2019, the mother initiated proceedings in the then Federal Circuit Court.
On 30 August 2019, following a Child Inclusive Conference (‘CIC’), orders were made for the children to live with the father and for X and Y to spend supervised time with the mother. An order was made permitting Z to spend supervised time with the mother in accordance with his wishes.
On 29 January 2020, the matter returned before the Court. It became apparent that the mother’s supervised time had not commenced because the father had failed to complete the relevant intake forms.
In January 2020, the father commenced a Men’s Behavioural Change program (and in the same year completed a Parenting Orders Program).
On 28 May 2020, orders were made that, among other things, increased the time between the mother and Y to five nights per fortnight and for the mother’s time with X to progress to unsupervised. The Court also made an order that Z was not to be brought to changeovers by the father.
On 8 September 2020, the matter returned before me. Orders were made following a contested hearing that X and Y live with the mother, following allegations that the father had told a worker employed by F Contact Service that he would kill the mother and throw her body in a gutter. Child Protection were notified. Orders were made for the father to have supervised time with X and Y, and for the children to be placed on an Airport Watch list for a period of two years.
On 23 February 2021, a Family Report was prepared in this matter by Ms J (‘First Report’).
Between July 2021 and September 2021, the father commenced counselling with Mr K. He subsequently attended several appointments.
On 8 January 2022, a Family Report prepared by Ms L was released (‘Second Report’).
On 15 February 2022, orders were made for the father to complete a further three supervised visits with Y and X at M Contact Service, communicate with X and Y by Skype each Sunday, and upon meeting certain conditions, progress to unsupervised time with X and Y from after school Thursday until 5.00 pm Sunday in week one, and overnight on the Thursday in week two.
On 16 March 2022, M Contact Service wrote to the mother confirming that the father had completed eight supervised visits with Y and X. Despite this, the father did not spend regular face to face time with X or Y.
In late 2022, the paternal grandfather passed away. The next day, the police attended the mother’s home for a welfare check. Six days later, the mother permitted X and Y to attend the grandfather’s home for the last rites with the paternal aunt in attendance. X and Y also attended their grandfather’s funeral with the father and the father’s family.
On 17 October 2022, a final hearing scheduled in this matter did not proceed as the father had become unrepresented.
On 18 October 2022, the paternal aunt collected X from school without the mother’s consent.
On 21 October 2022, orders were made for the father to return X to the mother’s care that evening, and for X to spend time with his father each alternate weekend and every alternate Thursday.
On 24 October 2022, the father presented X to the Melbourne Registry for the orders to be explained to him and for him to be returned to the mother’s care. X became aggressive (including punching the wall in the child-minding Room) and escaped from the Court building. X was apprehended by the Police who would not release him to either parent without an order of the Court. Orders were eventually made by consent for X to live with the father.
On 28 November 2022, the paternal aunt along with Z and X, attended at Y’s after school care program and left after being told they were not permitted to take him.
On 12 May 2023, a further Family Report was prepared in this matter by Ms N (‘Third Report’).
THE CARE ARRANGMENTS OF THE CHILDREN SINCE SEPARATION
A review of the Statement of Agreed Facts, along with the unchallenged affidavit evidence of the mother, discloses the following care arrangements of the children since the parties separated:
Child
Periods spent living with the mother since separation
Periods spent living with the father since separation
Z
From 16 July 2018 to 22 April 2019.
Since 22 April 2019 to present.
X
From 16 July 2018 to October 2018.
From 8 September 2020 to 18 October 2022.
From October 2018 to 8 September 2020.
From 18 October 2022 to present.
Y
From 16 July 2018 to 22 April 2019.
From 8 September 2020 to present.
From 22 April 2019 to 8 September 2020.
ISSUES AND POSITION OF THE PARTIES
The mother seeks the orders set out in her Further Amended Application filed 13 January 2023. She seeks, among other things:
(a)that the father have sole parental responsibility for X, that X live with the father and spend time with her in accordance with X’s wishes;
(b)that she have sole parental responsibility for Y and that Y spend no time and have no communication with the father (and by extension, with his brothers); and
(c)various injunctions restraining the father, his servants or agents from approaching or communicating with Y, and from approaching or coming within 200 metres of her home or place of work.
The mother’s case essentially boiled down to the following propositions. First, the father presents an unacceptable risk of harm to Y. It was submitted that the father has a predisposition to anger, cannot control his emotions, and has committed family violence. Second, the father, despite his evidence, will not or is not capable of promoting a meaningful relationship between Y and his mother. Any contact that Y has with the father will undermine the relationship Y has with his mother. Third, Y is settled and doing well. There is stability for him at present. That stability would be disrupted if he went to live with his father, or indeed if he had any contact with his father and his brothers.
The father seeks the orders set out in his Amended Response to the Initiating Application filed 27 January 2023. He seeks, among other things, that:
(a)he have sole parental responsibility for X and Y;
(b)X spend time with the mother in accordance with his wishes; and
(c)Y spend time with the mother each alternate Saturday from the conclusion of her work until the commencement of school on Monday, for periods during each school holidays and for other special occasions.
The father’s case is essentially that all of the children are close and should live together. He contended that the mother was seeking to alienate Y from all of the paternal side of the family, and that he held concerns for the safety of Y with the mother. While he says he holds concerns for Y, he also said he supports Y seeing his mother, including on an unsupervised basis.
The Independent Children’s Lawyer (‘ICL’) submitted a minute of orders to the Court. In that minute, the ICL seeks orders, among other things, that:
(a)the father have sole parental responsibility for X and that X live with the father;
(b)the mother have sole parental responsibility for Y and that Y with the mother;
(c)X spend time with the mother and communicate with her in accordance with his wishes; and
(d)Y spend time with the father and his brothers on four occasions each year, with such time to be professionally supervised by M Contact Service.
Ms Damon, Counsel for the mother, informed the Court that the mother agreed to all of the orders proposed by the ICL except those proposed orders that permitted Y to spend supervised time with his father and brothers. Ms Damon also informed the Court that if the Court was persuaded not to make the orders sought by the mother that Y spend no time with his father or brothers, then the mother’s alternative position was as proposed by the ICL, i.e that Y spend supervised time with his father and brothers.
It can be seen that the orders proposed by the mother would have the effect of completely isolating Y from his father, his brothers and the paternal side of his family. At the other end of the spectrum, the father’s proposal allows for Y to spend time with both sides of the family, and significant time with his two brothers.
EVIDENCE
The mother relied on her Further Amended Application of 13 January 2023, her trial affidavit filed 2 May 2023, her case outline filed 23 February 2023, and documents tendered during the trial (which comprise records obtained under subpoena from Victoria Police).
Despite being given the opportunity to do so, the father did not file an updated trial affidavit. He relied on his Amended Response filed 27 January 2023, a trial affidavit he prepared for the aborted trial on 27 February 2023 that was filed on 7 February 2023, an affidavit of Ms O of 7 September 2021, an affidavit of Mr C filed 20 May 2020, three reports from DHHS dated August 2019, May 2020, and September 2020 respectively, his outline of case document filed 24 February 2023, and the three Family Reports.
The ICL relied on her case outline filed 1 June 2023, the Second Report and the Third Report, as well as the affidavit of Ms O filed 7 September 2021, attaching a report of supervision sessions between the father and X and Y.
The mother’s trial affidavit was extensive. Despite that, she was subjected to only a short cross‑examination. She was not challenged on large aspects of evidence, and many aspects of the father’s evidence were not put to her. She was rigid in her view that the father had manipulated the two older children against her. She was adamant that the father would manipulate Y if Y came to be in his care. She was teary and emotional, and at times argumentative. Aspects of her evidence left me with the strong impression that the mother was more concerned about ensuring that Y remained with her, rather than her considering what was in Y’s best interests. Despite these shortcomings, however, she appeared to be an honest witness and she demonstrated some insight. She admitted she had not been a perfect parent. She said she had hit her children on their ‘bums’, but she now understood the error of those ways. Her decision not to pursue her application for X to live with her, while clearly difficult for her, demonstrated some insight and an ability to put his wishes and welfare over her own.
The father’s affidavit was comparatively short. Despite that, he was subjected to cross‑examination for over a day. He gave his evidence rapidly. At times it was tangential and difficult to follow. At times he was brutally honest, for example, when he clarified that he did not threaten to slit his mother-in-law’s throat, but instead threatened to chop her head off. At numerous times, however, he was evasive, for example:
(a)he failed to answer questions directly about the threat he made to kill the mother in front of a worker from F Contact Service;
(b)he was unable to clearly answer how he would encourage the children, but in particular Y, to spend time with the mother, despite the fact that the father proposed an order that he would use his ‘best endeavours to encourage the children to spend time with the mother’;
(c)he sought to avoid answering questions as to whether it was true that the two older children don’t wish to see their mother; and
(d)when he was asked about the existence of a girlfriend in Country P.
The father’s evidence was also at times inconsistent. For example:
(a)he told the Court that he thought the children should spend time with their mother (which reflects the position in his Response that the children should spend time with their mother and that he would encourage them to do so). In his affidavit, he also claimed to encourage the older children to call their mother. However, he also told the Court that the mother’s name is never mentioned in his house, and that he never told X to return to the mother’s care in October 2022; and
(b)he told the Court that the law was important, but then admitted he had failed to comply with the orders of the Court during the Covid-19 lockdowns (in circumstances where he had read the statement of the Chief Justice as to what was to occur during lockdowns).
In addition to the matters set out above, the father gave evidence to the effect that he was the victim of a conspiracy. The father stated under cross-examination that he had been ‘demonised’, and ‘well played’. Asked what he meant by this, the father said, effectively, that he had been played by his various lawyers, the mother, and others.
The various matters that I have set out above means that I have treated the father’s evidence with a great deal of caution. He was an unreliable witness.
THE LAW
The Family Law Act 1975 (Cth) (‘Act’) sets out the matters that the Court must have regard to in making a parenting order. Section 60CA of the Act provides that in deciding whether to make a particular parenting order, a Court must regard the best interests of the child as the paramount consideration.
Section 61DA of the Act contains a presumption in parenting matters that parental responsibility is to be equally shared. Where parental responsibility is shared, section 65DAA(1) of the Act requires a Court to consider whether the children are able to spend equal time with each parent. Where parental responsibility is shared and the Court does not make an order for the children to spend equal time with each parent, the Court is required to consider whether the children can spend substantial and significant time with the non-resident parent.
Section 60CC of the Act then sets out those matters that the Court must have regard to in ascertaining what is in the children's best interests.
The primary considerations in relation to what is in the children’s best interests are set out in section 60CC(2) of the Act. Subsection (2)(a) provides that a primary consideration is the benefit to the child of having a meaningful relationship with both of the child's parents. Subsection (2)(b) provides that a primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. By subsection (2A), the Court is to give greater weight to the consideration set out in subsection (2)(b).
Finally, section 60CC(3) sets out the additional considerations that a Court must have regard to in considering what is in the child’s best interests.
This is a matter in which both parties make serious allegations against the other. In so far as it is necessary to make findings, section 140 of the Evidence Act 1995 (Cth) (‘Evidence Act’) deals with the standard of proof in civil matters. Subsection (1) provides, among other things, that the Court must find the case of a party proved, if it is satisfied that the case has been proved on the balance of probabilities. Further, subsection (2) sets out the matters that the Court may take into account in deciding whether it is so satisfied.
In Neat Holdings PtyLtd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, the High Court discussed how clear evidence is required to prove a serious allegation against a party. The High Court stated at pages 449 – 450:
‘The ordinary standard of proof required of a party who bares the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.’ (citations omitted)
(see also, the statement of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (‘Briginshaw’))
This is also a matter in which the mother contends the father presents an unacceptable risk to Y. In Isles & Nelissen [2022] FedCFamC1A 97 (‘Isles’), the Full Court noted the distinction drawn by the High Court in M v M (1988) 166 CLR 69 (‘M & M’) between proving allegations [in that case, of sexual abuse] according to the civil standard of proof and on the other hand, establishing the risk of the feared [sexual abuse] occurring in the future. The Full Court noted that in respect of the first issue, the High Court stated that a Court should not make a positive finding that an allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw. The Full Court noted that in respect of the second issue, the High Court did not elaborate on how the alleged risk might be established on the evidence before the Court. In Isles, the Full Court considered how the Court is to approach that aspect of its task. Among other things, the Full Court:
(a)stated risks, like all prospective events, are capable of classification in only one of three mutually exclusive categories: possibilities, probabilities or certainties. Once it is accepted courts should react to dangers in the form of risks of harm which may merely be possibilities, it is an oxymoron to expect such possibilities to then be forensically proven on the balance of probabilities according to the civil standard of proof (at [7]);
(b)rejected the proposition that a finding of unacceptable risk needs to be made according to the civil standard of proof, and expressly endorsed the comments and approach of Austin J in Fitzwater v Fitzwater (2019) 60 Fam LR 212 at [132]-[142] (at [50]-[51]);
(c)noted that the Act in its present form is more comprehensive than what it was when M v M was decided (at [58]), and that the terms of the Act are pre-eminent and the provisions within section 60CC and 60CG are wide enough to embrace most, if not all, assertions of an unacceptable risk of harm to children, and so it is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Act; and
(d)stated the assessment of risk is an evidence-based conclusion and is not discretionary, and that the finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. The Full Court went on to state it is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations set out in section 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one (at [85]).
I note the following:
(a)the principles above are applicable to all allegations of risk of harm, including family violence, and are not confined to allegations of risk by reason of sexual abuse: see A v A (1998) FLC 92-800 at 84,994 – 84,995; and
(b)the process of evaluating whatever allegations are made must be conducted vigorously as the termination of a relationship between a child and the allegedly abusive parent is generally to be the course of last resort: see Keane & Keane [2020] FamCA 99 at [77] referring in turn to the Full Court in Re W(Sex Abuse: Standard of Proof) (2004) FLC 93-192 at 79,217-8.
BEST INTEREST CONSIDERATIONS
The need to protect the children from physical or psychological harm, etc
This is a case in which there are risks to the children from both parents. In the Third Report, Ms N stated that ‘the three children were and still are at significant overall emotional risk in the care of either parent’. It is difficult to quibble with that assessment, as will be seen from what follows.
The father’s allegations about the mother
The father alleged that he was subjected to verbal abuse from the mother, including being called ‘useless’, ‘disabled’, ‘worthless’, and ‘good for nothing’, and that these insults occurred in front of the children. These allegations were made generally, without any particulars or context.
The father alleged the mother physically assaulted the children as follows:
(a)in around mid-2018, the mother pushed X hard enough for him to hit his head;
(b)at the end of 2018, the mother hit X in her bedroom and threatened to kick X until he died;
(c)the mother physically assaulted Z and would grab him by the throat and push him against the wall;
(d)in around early 2019 the mother refused to feed Z; and
(e)that the mother told Z she would get her new partner to ‘bash him up’.
Z made an allegation to Ms N. This occurred during interviews for the Third Report, in the lead up to trial. Z told Ms N his mother struck him on the back of the leg with a heavy object.
The father has consistently made allegations that Y has been, or is at risk of being, sexually abused in the mother’s care. The father alleges that:
(a)in around late 2018, Y developed a habit of pulling his pants down;
(b)in mid-2020, Y said to the father words to the effect that he should not put his penis in his mouth because he will get sick. Questioned about this, Y apparently told the father that he had heard those words from his uncle (who I understand to be a friend of the mother’s or the mother’s partner); and
(c)in mid-2020, Y told his brothers that the mother had said to an uncle words to the effect that Y’s penis tastes very nice.
The father deposes that following the events above, he contacted Child Protection.
The allegations by the mother about the father
The mother in turn makes a number serious allegations of family violence against the father, detailed at paragraphs [17]-[56] of her affidavit. The allegations include that during the marriage the father regularly slapped the mother around her head and body, punched her face with a closed fist, punched her arms and stomach, pulled her hair, grabbed her throat, choked her, would throw and smash her belongings, threatened to cut her throat, accused her of sleeping with other men, forced her to have sex on two occasions around the time of separation, prevented her from having a relationship with her family, stated to the mother that her father had molested her and [the mother’s] sister, and verbally abused her, including by calling her names such as ‘bitch’ and ‘slut’. These allegations were made generally, without any particulars or context.
The mother also gave the following specific evidence.
(a)that in 2005, the father accused her of having sex with her own father, and that the father told her that he thought Z was the result of that relationship with her father. When she denied this, the father abused her and called her a ‘bitch’ and a ‘slut’;
(b)that in late 2006, she arrived home late from work. The father accused her of having an affair, hit her, slapped her across the face, punched her in the arms and stomach, and dragged her by the hair in front of Z. The mother applied (but ultimately did not pursue) an application for an intervention order in late 2006. That application contains a description from the mother of the assault the father perpetrated upon her. The assault occurred in the presence of Z;
(c)that in early 2014, she and the father began arguing, and the father grabbed the phone out of her hand and hit her over the head with it. She grabbed an object to try to defend herself and the father grabbed her by the throat and pushed her against the wall. This occurred in the presence of Z and X. The mother applied (but ultimately did not pursue) for an intervention order in early 2014. That application contains a description from the mother of the father hitting her in the head with a phone and pushing her in the throat. That the assault occurred in the presence of Z and X;
(d)that in late 2016, the father called his mother-in-law in Country G and got in a heated argument with her. The father threatened to kill the mother, telling his mother-in-law that he was sharpening his knife. Police attended the home. A safety notice was issued against the father to protect the mother and the children. The mother applied for an intervention order. That application discloses allegations that the father had threatened to kill his mother-in-law in Country G, which he admitted, but said that the threats were not serious; and
(e)that in mid-2018, the father attended her home, accused her father of sexually abusing her sister, told her she was a bad mother, accused her of having sex with other men, and called her a ‘bitch’ and a ‘slut’. This all occurred in the presence of other persons including the children. The police told the mother to apply for an intervention order, which she did.
Surrounding or corroborating evidence
The Reports from DHHS
There are three reports from DHHS. These reports were prepared in the period from August 2019 to September 2020. They cover incidents occurring from late 2006 to September 2020. I previously summarised these reports in Breton & Breton [2020] FCCA 2608 (‘Breton (No 1)’), and I have drawn from that summary.
The first DHHS report is dated August 2019. 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 a number of 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 towards 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 full-time; and
(k)there was clear evidence to support the children’s exposure of verbal abuse.
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] to the children which has been observed by a number of professionals and I’;
(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; and
(k)significantly, there was no evidence of concerns regarding the mother which would prevent appropriate increasing contact, including unsupervised, overnight, or shared care arrangements.
The second report from DHHS was 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. The report writer notes 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)highlighted a Child Protection investigation between March 2019 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; and
(f)recommended that the children have contact with their mother.
The third report from DHHS is dated September 2020. The report recorded 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. The reported concerns were not substantiated;
(d)the father had refused to engage with counselling and other support services. This included 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 full-time. The Department recorded 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 Intervention Order (‘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, 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 did not have regular contact with Z and X which is impacting their ability to build positive relationships; and
(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’.
There are no reports from DHHS after September 2020.
The statements from the children
The children have made the following statements:
(a)Z told Family Consultant Ms E (who conducted the CIC Report) that his mother pushed him against the wall, and would not let him eat her food. He also told the writer of the First Report that his mother had denied him food;
(b)Y told the writer of the First Report that his mother smacks him;
(c)X told the writer of the First Report that his mother yells at him, and has a bad temper;
(d)Z told the writer of the First Report that his mother had hit X, and he hit his head on the bedhead, and that she told X to ‘f*ck off to your Dad’;
(e)Z told the writer of the First Report that his mother threatened to get her boyfriend to kill him;
(f)Z told the writer of the First Report that his mother had ironed Y’s face;
(g)X told the writer of the Second Report in response to a question about discipline in the mother’s house, that ‘I get slapped, but not like full on slapped, or I get my phone taken’; and
(h)as noted earlier, X and Z told DHHS prior to their report in August 2019 of inappropriate physical chastisement and verbal aggression in the mother’s care.
The statements of the children are concerning. Their statements need to be weighed, however, having regard to views of various professionals in this matter that the children’s views or statements may be compromised. For example:
(a)Ms E stated that while the children were likely to have some lived experiences of rejection by their mother, they present as so on the father’s side that their views are likely compromised. She noted that Z and X used words like ‘we’ or ‘us’ and that it was difficult to unpack what was genuine, or what had been rehearsed, or was part of a narrative;
(b)the writer of the First Report considered that Y had been coached. She also considered that:
(i)some of the children’s views and feelings would have derived from lived experiences when Ms Breton had been heavy handed in her attempts to discipline and guide them;
(ii)that the father has reinforced any views the children express about the mother that match his own;
(iii)Z’s negative views of the mother have likely stemmed from his lived experience of difficulties with his mother and views that had been cultivated by the father;
(iv)that Z used words such as ‘we’ and ‘us’ as though he and his father were one entity, and that Z was aligned with the father;
(c)the writer of the Second Report stated ‘No doubt X and Y are influenced by their older brother’s attitude’;
(d)DHHS in its report of August 2019 noted that:
(i)X and Z appear to ‘idolise their father’;
(ii)the children have been exposed to the father’s verbal abuse and denigration of the mother and that has resulted in them being further aligned to their father’s beliefs;
(e)DHHS in its report of September 2020 noted that:
(i)the father is fixated on presenting a negative view of the mother and exposes the children to this frequently;
(ii)the father demonstrates limited insight into the negative impacts of his violent and controlling behaviour towards the mother on the children; and
(iii)Child Protection is highly concerned over the vilification of the mother by the father, and the negative impact this is having on the children’s relationship with the mother.
Findings in respect of family violence
The evidence demonstrates the marriage between the parties was volatile. It was characterised by physical violence, threats and derogatory taunts. The allegations by the parties against each other became more pronounced at the time of separation, and in the aftermath of separation once these proceedings were commenced.
I am satisfied the parties regularly engaged in derogatory taunts or insults toward each other during the marriage. Given the evidence of the volatile nature of the marriage, I accept, notwithstanding the lack of particulars given by both parties, that the mother abused the father calling him ‘worthless’, ‘good for nothing’ and ‘useless’. I am satisfied the father called the mother names such as ‘bitch’ and ‘slut’, and that he accused her of sleeping with other men.
I am satisfied the children were exposed to verbal abuse during the marriage. I also find that the parties have yelled at the children, and raised their voices at the children as a form of chastisement. DHHS noted there was evidence to support the children’s exposure to verbal abuse.
I find that during the marriage, the parties physically chastised the children as a form of discipline. The mother admitted to physical discipline of the children from time to time. She confirmed that she had hit the children on the ‘bum’. The mother told DHHS prior to their report in August 2019 that both she and the father used physical chastisement as a form of discipline. The children have made statements that both parents have physically disciplined them (noting that X ultimately withdrew the allegation he made against the father).
I find that the mother did not strike Z with a heavy object. That allegation is not made by the father in his trial affidavit. It was only made by Z for the first time during his interview for the Third Report and was not mentioned by him previously to any other professional, despite the numerous interactions he has had with Court Child Experts and officials from DHHS.
I find that the mother did not iron Y’s face. This is a serious allegation with limited particulars. The proof is inexact. The father did not raise these matters in his affidavit. There is no corroborating medical evidence.
There is insufficient evidence to enable me to make a finding that:
(a)the mother pushed X causing him to hit his head, or threatened to kick him until he was dead. The father made this allegation when applying for an intervention order in early 2019. The application discloses, however, that the father claimed at that time that the incident occurred in late 2018, some five months earlier. He clearly took no action at the time. Moreover, the application made by the father in early 2019 occurred in a context where the mother brought her own application for an intervention order against the father.
(b)the mother told X to ‘f*ck off’ back to his father. X does not recount his mother saying this to him, despite the various professionals he has spoken to during the course of the proceedings, and despite his willingness to criticise the mother;
(c)the mother physically assaulted Z and grabbed him by the throat;
(d)the mother refused to feed Z; and
(e)the mother told Z she would get her partner to bash him up.
The father has not proved that Y has been exposed to sexual abuse in the care of the mother. I dealt with the allegations of sexual abuse against the mother in Breton (No 1) at paragraphs [27], [34(c)], [35 (c)], [49], [50], [52] and [78]. In those reasons, I noted, among other things, the lack of evidence corroborating these allegations, the non-involvement of DHHS and Victoria Police in the matter despite DHHS being apprised of the allegations, and the inconsistency in the father’s position in on the one hand, making the allegation, but on the other hand, not seeking to suspend X and Y’s time with the mother under the then existing orders. Not much, if anything, has changed since that time. There is no evidence before me that corroborates the father’s very serious allegations. There is no involvement of DHHS with this family. There has been no investigation by Victoria Police. There is no corroborating medical evidence. Mr Burns, Counsel for the father, did not even cross-examine the mother on this issue. I find Y has not been sexually abused in the mother’s care.
In assessing the very serious allegations the father makes about the mother, I have taken into account that the father comes before the Court seeking orders that permit the mother to have unsupervised time with Y. Any parent who makes allegations of the type made by the father would not come to this Court and propose that the parent responsible spend unsupervised time with the child.
I find that during the marriage, the incidents alleged by the mother in late 2006, early 2014, October 2016 and July 2018 occurred. The mother raised these matters at the time they occurred, whether with the Police or otherwise. The mother produced contemporaneous accounts of what occurred by way of the applications for IVO’s and other similar documents.
I am satisfied that during the marriage, the father would push the mother when they were disagreeing about something. He admitted doing so in the witness box, but sought to qualify it by saying that she pushed him first.
I find that the father made a threat to kill the mother on or around late 2020. The father admitted to making the threat, though sought to explain it by saying that he thought Y was being sexually abused.
I find that the father threatened to chop off the head of his mother-in-law in or around late 2016. He admitted to making the threat in the witness box.
I find the father has abused and belittled the mother during the marriage, but also after the end of the marriage. The DHHS reports confirm this, as do the various Family Reports.
I had the opportunity to observe the father both in the witness box, and more generally in the Court. In the witness box, the father at times became very agitated. At times he was argumentative. During the course of the proceedings when in the gallery, he left the courtroom on at least two occasions in a heightened state, with his barrister telling the Court on one occasion that his client was ‘too stressed to remain in court’ but that he would return tomorrow. In short, during the course of the hearing, the father appeared to me to be unable to regulate his emotions.
Considering all the evidence, I also find that the father is prone to anger and aggression. He struggles to control himself, his actions or emotions. He has little or no insight into his behaviour or the impact it has on others, including the mother and the children, and has been unable to change. I have come to that view having regard to the following:
(a)he threatened to kill the mother in the presence of an independent third person who was most likely to report that threat to an appropriate authority. The presence of that person did not prevent the father from making the threat;
(b)the father has either belittled or spoken negatively about the mother in the presence of representatives from DHHS. The presence of those persons has not stopped the father from speaking negatively about the mother;
(c)the father repeatedly sought to explain his actions by saying that he was either angry or upset at the time of his behaviour. The father uses his emotional reactions (which he cannot control) to excuse his behaviour;
(d)the father was unable to regulate his emotions before me both in the witness box, and in the courtroom generally during the course of hearing;
(e)X told the writer of the First Report that his father could not control his temper (at [74] of the First Report); and
(f)the father’s failure to continue with any form of counselling, despite Court orders to do so.
In reaching the finding above, I am conscious that the father attended on Mr C for psychological evaluation on 15 November 2019. Mr C noted an absence of significant indicators to suggest the father could not continue to care for the children. The following should be noted about that assessment:
(a)Mr C notes the limited scope of the assessment, including that personality testing was not conducted;
(b)parenting skills were not formally assessed; and
(c)it was recommend the father undertake Cognitive Behavioural Therapy for at least 12 months. That treatment, which the father has not undertaken, was to assist with relationship discord.
When these matters are considered, Mr C’s report does not alter the findings I have made about the father set out above.
Meaningful relationship with both parents
X would appear to have a meaningful relationship with his father. Y has a meaningful relationship with the mother. There is evidence in the Third Report that Y also enjoys a good relationship with his father.
The mother seeks orders that Y spend no time with his father or brothers. The father proposes orders that would see Y live with him and spend time with the mother. On its face, that position reveals the father to be supportive of Y having a relationship with the mother, but the mother not to be supportive of a relationship between Y and his father and brothers respectively.
The mother gave evidence that since separation, the father has significantly undermined her relationship with the children and acted in a manner designed to alienate the children from her. Her evidence was, among other things:
(a)when Z and X were living with her and returned from spending time with the father, they would blame her for throwing the father out of the house and breaking up the marriage;
(b)Z refused to eat meals she prepared and would call her names such as ‘bitch’ and ‘slut’. Z’s language towards her mirrored the insults the father directed towards her;
(c)the father bought X and Y gifts in an attempt to influence them;
(d)Victoria Police repeatedly conducted welfare checks on her home at the request of the father;
(e)the father has frustrated her ability or opportunity to spend time with the children including:
(i)in August 2019, interim orders were made that included an order permitting the mother to visit Y at kindergarten. The father subsequently refused to take Y to kindergarten;
(ii)the father failed to complete intake forms to permit the mother to spend supervised time with X and Y following interim orders made on 30 August 2019;
(iii)the father withheld Y from her, and did not permit her to spend time with Y during the initial stages of the Covid-19 pandemic;
(iv)the father, Z and X being in the background whenever she was to have FaceTime calls with Y;
(f)the father was not willing, and did not convince Y at times in 2020 to spend time with her, and instead told her that she should respect Y’s wishes (Y was aged approximately six years old at the time); and
(g)Z intervened in disputes between the parents as to whether Y should spend time with his mother. The mother alleges that Z told her to ‘shut up’ when Y did not want to go with her. The mother alleges that the father failed to do anything to stop Z.
The father presented a contrary picture. In his affidavit, he stated ‘I can confirm that if the children are in my care, I would encourage them wherever possible to have a meaningful relationship with [the mother], whilst also respecting their wishes, particularly the eldest two children given their levels of maturity’. He deposed that he encouraged the children ‘to answer calls from [the mother] on their mobiles whenever she calls, despite the conflict between [the mother] and I’. The father largely stood by this evidence in the witness box.
I do not accept the father’s evidence. I accept the mother’s evidence on these matters. There is clear, strong and consistent evidence that corroborates the mother’s account of what the father has done to drive a wedge between the children and her. That evidence includes what follows.
First, the father has frustrated and sought to minimise the mother’s time with the children. Examples abound, and include the following. On 30 August 2019, I made orders that X and Y spend supervised time with the mother. When the matter returned before me on 29 January 2020, supervised time had not yet commenced. The reason for that was the father’s delay in completing the relevant intake forms for supervision to commence, which the father attributed to deficiencies with his email. I was not satisfied with that response then and I am not satisfied with it now. Another example occurred around the time Covid-19 emerged in Australia. The father admitted in the witness box that he was aware of the communication from the Courts that parenting arrangements were to continue. The father nevertheless made a decision to stop time, on the basis of what he said were his concerns about the situation. At no time did he bring an application to the Court to vary the orders. A more recent example occurred in October 2022. At that time, there were orders that X live with the mother and spend time with the father. Following an adjournment of the final hearing that had been scheduled for 17 October 2022, the father’s sister collected X from school in contravention of the existing orders.
Second, the father was asked during cross -examination how he would go about encouraging Y to spend time with his mother if Y lived with him. He was unable to provide any satisfactory explanation, and was evasive.
Third, there is evidence of a clear lack of respect for the mother in the father’s home. In his affidavit, the father said he supports the children having a relationship with their mother. Under cross-examination, however, the father stated that the mother’s name is never mentioned in his home.
Fourth, the father has aligned Z and X to his point of view, and the effect of that is they do not wish to see the mother. For example:
(a)the CIC Report prepared 30 August 2019 records the following in relation to Z:
He gave a litany of complaints about his mother and wanted to explain all the incidents which led him to a fixed a clear position that he did not want anything to do with her, and that his brother’s should not have anything to do with her. He spoke in terms of “we”, and “us”, describing a seize type mentality as “us” (his father and brothers) against the mother and her family. He described the mother pushing him against the wall and then him pushing her away, and her calling the police and saying he had abused her. He says she would not allow him to eat her food. These are the same issues and accounts of incidents raised by the father.
(b)the CIC Report also records the following in relation to X:
[X] much like his older brother he wanted to describe a list of things his mother has done wrong and that he did not feel safe with her. He too spoke in terms of “we” and “us”, language that is often indicative of children experiencing influence or repeated exposure to a narrative about relationships within the family.
(c)The DHHS report prepared August 2019 records the following in relation to Z and X:
I feel that [Mr Breton]'s constant belittling of [Ms Breton] has occurred in front of the children which has further increased [X] and [Z] aligning with their father's beliefs.
(d)The DHHS report of September 2020 records the following:
Child Protection is highly concerned over the vilification of [Ms Breton] by [Mr Breton] and the negative impact this is having on their children’s relationship with [Ms Breton] …
Fifth, the father has denigrated and undermined the mother, including in front of DHHS officers.
The father has influenced or aligned Z and X to his point of view to such an extent that not only does each not want to see their mother, but each of them is prepared to excuse their father’s threat to kill their mother. For example, in the First Report, when X was asked about his understanding of the decision by the Court in September 2020 for him and Y to live with their mother, ‘X understood it was “because my Dad threatened to kill my mum. What you expect after all those years? He’s still angry. I would say the same thing if it was vice versa”’. Z, too, excused the threat saying ‘You gotta understand where he’s coming from’.
A consideration of the evidence over the period this matter has been in this Court also shows that when X lives with the father, he adopts the father’s narrative of events (including negative views of the mother). However, when X is with his mother, he has a more balanced view. I observe the following:
(a)I have noted earlier the views Z and X expressed in the CIC Report in August 2019. They had been living with the father prior to that report. They were highly critical of the mother;
(b)By the time of the First Report in February 2021, X had been living with the mother for approximately four months. The First Report records the following:
In relation to the current parenting arrangements, [X] was okay about spending time with his mother and acknowledged that his relationship with his mother had “kind of changed, but we still fight. I don’t hate her as much now. I used to; I didn’t even want to call her Mum before. My relationship was bad.” However, [X] still maintained that he has more of a relationship with his father, asserting: “I need to see my Dad more. I spent more than 3 years with my Dad, he was always there, my Mum worked.” [X] quickly defended that this was because of his father’s workplace injury.
(c)By the time of the Second Report in January 2022, X and Y had been living with the mother for approximately 15 months. Asked by the report writer how he wanted to interact with his parents, X gave a more balanced view:
In relation to his parents he says he wants to do 'mix mix'. He wants to see his father for more than an hour and a half. He wants to see his father for a couple of days a week. It makes him feel bad about his life because he can not. He sees most people with their mother and father and he is the only one who sees their father for an hour or so, supervised at a DFFH office in [Suburb Q]. He wants to have some days at his mother's and some days at his father's.
(d)The Third Report from Ms N is dated 12 May 2023. X had, by that stage, been back living with his father for some months. X told Ms N that his mother ‘acts all nice and friendly in front of other people but on your own she doesn’t speak nicely’. He described his relationship with his father as ‘a hundred million times better than my relationship with mum’. He told Ms N that he wanted to ‘live with his father and make his own decisions about seeing his mother which at the moment he does not want to do’.
At least the following emerges from the evidence above. First, when the children spend sustained time with their father, they no longer wish to see their mother. Second, it also highlights that the children have a more balanced view of both parents when they live with the mother. That leads to a further conclusion that it would appear that the mother is not undermining the father when the children live with her.
None of this is to say that the mother is an innocent victim in all of this. Her treatment of the children, particularly during the relationship and around the time of separation about which I have made findings, has likely provided a basis for the children not to like or trust their mother. It is equally clear, however, that the father has actively built on the children’s feelings about their mother in order to separate them from her.
It is not just the father who acts to undermine X and Y’s relationship with their mother, but also other members of the family aligned to the father.
The evidence suggests Z has influenced his younger brothers. The writer of the CIC Report said as much during the interim hearing on 30 August 2019. I was so concerned about Z’s adoption of his father’s views, his other behaviours and the risk that posed to his younger siblings that when I changed the residence of X and Y in September 2020, I made an explicit order restraining the father from bringing, or allowing Z to attend the child-minding service at the Court. Z resides with his father and if Y is placed there, he will be exposed to Z’s views.
The paternal aunt has also acted to undermine the relationship between the mother and her children. It was the paternal aunt, who in October 2022, collected X from school, after which he did not return to his mother. In her affidavit, the mother recounts what the paternal aunt told her by phone in the presence of X. The paternal aunt told the mother in relation to X that ‘legally he is allowed to do what he likes and you can’t stop him’. She told the mother ‘What kind of human being are you? We are sick and tired of you’. She also abused the mother stating ‘You’re a bitch, you think you can do whatever you like, you sleep with every Tom, Dick and Harry’. I note that the father did not attempt to refute this evidence, and he gave no evidence of any attempts to reign in the paternal aunt. I accept the mother’s evidence about these matters. That the paternal aunt was prepared to say those things directly to the mother in the presence of X, in my view, provides some insight into the type of environment and attitudes toward the mother that exists in the father’s home, and amongst the paternal family.
Finally, I note on these issues that there is no evidence that the father has taken any steps to address his attitude toward the mother. He has not attended Cognitive Behaviour Therapy as recommended by Mr C. The father was ordered by Judge Forbes on 15 February 2022 to recommence counselling with Mr K to address the issues of the father’s manner of interaction with the children, and his attitude toward the mother. There is no evidence of the father’s continuing attendance on Mr K. Indeed, the father said in the witness box that it had not occurred.
When all of this evidence is weighed, I find as follows. The father speaks negatively about the mother in the presence of the children. He criticises her and belittles her to the children. He did so during the marriage, and he has continued to do so post separation. By doing so, he has undermined, and continues to undermine the relationship between the children and the mother. He is unable to control himself in this respect. The father’s actions have produced the result that X no longer wants to see his mother. There is a real risk that if Y is placed with the father, he too will eventually not wish to see his mother. The existence of Court orders will not alter the behaviour of the father, as he has not adhered to them in the past. I am therefore satisfied that the father is unwilling or unable to promote any meaningful relationship between the mother and Y.
I am satisfied that the mother is capable of promoting a meaningful relationship between Y and the father based on the evidence I have set out above, including the fact that when X was in the mother’s care, he held balanced views about each parent. While the mother has the capacity to provide a meaningful relationship between Y and the father, I note that she does not seek orders that promote a meaningful relationship between father and child because of the risks she has identified in the course of this proceeding.
Section 60CC(3)(a) - Views expressed by the child, etc
In the Third Report, Ms N notes that Y was positive about the mother and did not identify any negative aspects about living with her. Y told Ms N that he would feel ‘fine’ about spending time with the father. Y was observed to be comfortable with both the father and the mother.
The ICL spoke to Y in February 2023. Y told the ICL that he was scared both of his brothers would try to hurt his mother, and that he did not wish to see them. He also told the ICL that he did not wish to spend time with his father. The ICL notes that Y was unable to explain in any significant depth the reasoning behind his views. Notwithstanding the statements to the ICL, however, Y got on well with his brothers and father during the interviews for the Third Report.
Y is only nine years old. I give his views limited weight.
Nature of the child’s relationship with each of the parents and other persons
Ms N notes in the Third Report that Y was comfortable with each of his parents. Ms N recorded that Y and the father ‘were very happy to see each other’. Ms N also records that Y enjoyed the time he spent with his brothers, noting there was lots of hugging and kissing between them.
As matters presently stand, Y has no contact with relatives on the paternal side of the family.
Extent to which each of the child’s parents has taken or failed to take the opportunity to spend time or communicate with the child, or participate in making decisions
The mother has availed herself of the opportunities she has had to spend time with the children and in particular, X and Y. Where she has not been able to spend time with them, that has arisen because of the conduct of the father in seeking to frustrate her time with them.
During the course of these proceedings, the mother has abandoned her attempts to spend time with Z and X. This is not a failure by the mother to grasp the opportunities available for her to spend time with Z and X. Rather, it reflects the acceptance by the mother that she cannot require children of the ages of Z and X to spend time with her when they do not wish to.
The father has also taken his opportunities to spend time with the children. He has encouraged the children to live with him, and Z and X have elected to do so. The father has been less willing, however, to spend time with the children when that time has been subject to supervision. The mother’s evidence was that:
(a)following the making of the interim orders in September 2020, the father did not initiate supervision with the Family Contact Service and as a result, did not spend any time with X and Y for several months after they came into her care;
(b)on 26 October 2020, the father’s solicitors advised that he was unable to pay for private supervision and requested that supervised time occur with M Contact Service, which the mother almost immediately agreed to; and
(c)notwithstanding the above, the father then spent only limited time with X and Y on four occasions being 2 May 2021, 13 June 2021, 27 June 2021 and 11 July 2021.
There is some evidence that supports the mother’s account of the father failing to spend time with the children when that time is supervised. For example, on 15 February 2022, Judge Forbes made an order that the father complete the three visits remaining out of a total of eight supervised visits with the children so that his time could become unsupervised. The father failed to do this. Further, during cross-examination, the father gave evidence that he spent some supervised time with the children, but then spent no time with them because he was upset about Court ordered supervision. He also told the Court that he did not need to beg anyone to see his children, that he was not spending $150.00 for two hours to see them, and that he chose not to see them. The conclusion to be drawn from this evidence is that the father does not like supervision, and has chosen not to see his children at times.
The father gave inconsistent evidence as to whether he would see Y under supervision. On one hand, he told the Court supervision was not required and he would not see Y under supervision. At other times, he told the Court that he was unable to pay for supervision.
Given the evidence before me, I find that the mother has availed herself of the opportunities to spend time with X and Y whenever possible. I find that the father has not availed himself of all the opportunities to spend time with X and Y, particularly where his time is supervised. The strong impression I formed of the father is that he does not see a need for his time to be supervised, and therefore is unlikely to attend regular supervised time, should it be ordered.
The extent to which each of the child’s parents has fulfilled or failed to fulfil their obligations to maintain the child
There is little evidence about this issue. As matters presently stand, Z and X live with the father. I infer that he provides for them. Y lives with the mother. I infer that she provides for him.
There have been periods of time when X and Y have lived either with the father or the mother. I infer that when one or both of the children were living with a particular parent, that parent provided for that child, or the children.
The likely effect of any changes in the child’s circumstances, etc.
The children have experienced various changes of residence since this matter has been in this Court. This has been unsettling for all of them. Z, while no longer a child, went through a difficult period including involvement with Child Protection authorities. X has had issues at school that both parents acknowledge.
Against this backdrop, as things presently stand, Y appears happy and settled. That is certainly the evidence of the mother and it is corroborated by Ms N. In the Third Report, Ms N stated that ‘[Y] is happy and well cared for by [the mother] in regard to day-to-day emotional needs, intellectual needs, health needs and practical needs’. In cross-examination, Ms N repeatedly stated that Y was ‘settled’.
Placing Y with the father raises the question of whether Y will remain in a settled state. Y has lived with his father and brothers before, so on one hand, it may be the case that he will quickly adjust to his new surroundings. Ms N’s observations of Y with his brothers suggest that there will be plenty of love and affection for Y from his brothers in his father’s home.
On the other hand, the following needs to be considered:
(a)making the orders sought by the father will mean that Y will need to transition between the parents in order to spend time with the mother. The overwhelming evidence in this case is that there is conflict between the parents whenever a transition occurs. That conflict can take many forms, including, as has occurred in the past, the father withholding Y. There is every prospect that Y will be exposed to such conflict and every prospect that such conflict will unsettle him; and
(b)a notable feature of this case is that Z and X have both had issues with aggression that have led to troubles at school, and with the authorities. This has occurred predominantly while both Z and X have lived with the father. It is a matter reported on by DHHS. There is some prospect of this pattern being repeated.
There is also the question of whether Y’s emotional needs would be met by the father and in the father’s house. Y is close to his mother. If he goes to live with his father, he will be placed in an environment that, in my view, is hostile to his mother. It is very likely that he would be encouraged one way or another to cease seeing his mother. That situation is very likely to lead to emotional upheaval, and emotional harm, for Y. Ms N is of the view that Y’s emotional needs would not be met by the father, and I share that view given the findings I have made earlier about the way in which the father conducts himself and his levels of insight.
When these matters are considered and weighed, I find that Y is presently settled living with his mother. There is significant risk that if Y’s residence were changed, or if Y had to transition between parents as part of any suite of parenting orders, he would experience emotional harm and become unsettled.
Practical difficulty and expense of the child spending time with and communicating with a parent, etc
There is no suggestion of any practical difficulty arising from geography or distance that would prevent Y from living with his mother and regularly seeing his father, or vice versa. The parents live close enough to each other to enable such an arrangement to work.
While there is not any tyranny of distance between the parties, the evidence discloses the following difficulties with Y spending time with one parent or the other:
(a)the father’s evidence, at one point, was that he cannot afford to pay for supervised time with Y, should that be ordered. If he lacks capacity to pay, that will affect his ability to spend time with Y if supervised time is ordered;
(b)the mother’s evidence is that when she attempted to have video calls with Y, the father and Y’s brothers were always in the background. I accept this evidence and accept that her time with Y was interrupted; and
(c)there is a high probability that Y will be discouraged from seeing his mother at all if he goes to live with his father and his brothers.
The capacity of each of the child’s parents and other persons to provide for the needs of the child
I am satisfied that both parents have the capacity to provide for the physical needs of Y. The father does not, in my view, have the capacity to provide for Y’s emotional needs. The mother is currently providing for Y’s emotional needs.
The mother is currently providing for Y’s intellectual needs. I have doubts about the father’s capacity to provide for Y’s intellectual needs. There is evidence that the father has struggled to encourage both Z and X to attend school. Both boys have had difficulty, and behavioural issues at school. There is evidence that Z undertook Year 12 over two years because he was not able to cope. There is evidence of X’s poor behaviour at school while living with the father. There is also evidence (albeit in a kindergarten context) of the father not taking Y to kindergarten when Y was to see his mother. These matters lead me to conclude that the father has a poor record when it comes to encouraging his children to meaningfully participate in school.
The maturity, sex, lifestyle and background, etc of the child and the child’s parents
In the Third Report, Ms N states ‘[Ms Breton] and [Mr Breton] have tragically set an example of adults being unable to develop a co-operative relationship as separated parents; they have not even been able to communicate effectively, leaving their three children in insidious positions where they are unable to meet up as siblings’. I agree. Both of these parents have set a poor example for the children. Each has at times demonstrated a lack of maturity, and a lack of ability to place their children’s best interests ahead of their own interests.
The attitude to the child and to the responsibilities of parenthood, etc
I rely on my earlier observations and findings.
Family violence
I rely on my earlier observations and findings.
The order least likely to lead to further proceedings
I refer to my earlier findings that the father has breached the orders of the Court. It is highly likely, in my view, that the father will continue to breach Court orders if he does not agree with them and accept them. Given this fact, the following matters arise.
It is highly probable that if I make the orders sought by the father, the father will either frustrate, or not facilitate time between the mother and Y. That will inevitably lead to further proceedings, and Y will be caught up in those proceedings. It is highly desirable in a case such as this that proceedings end now, and that the issues not be re-agitated given the length of time this matter has been in Court, the poisonous relationship between the parents, and the significant effects this has had on each of their children.
If I make the orders sought by the mother, Y will lead a separate life with his mother, while X will lead a separate life with the father and Z. There will be no opportunity for crossover between them under the mother’s proposed orders. Adopting this set of orders would, in my view, reduce the prospect of there being further proceedings, though it naturally comes with grave consequences for the development of the relationship between Y and his father, and between Y and his older brothers.
The ICL’s orders provide, among other things, for supervised time to occur between Y, his father and his brothers. Given the history of this matter, it is probable that making such an order would lead to further proceedings. I have found that the father is unable to control his actions and his emotions. I have also found that he consistently breaches Court orders. It is not difficult to envisage a situation where, for example, the father chooses not to attend supervised time, or attends supervised time with Y but then speaks negatively of the mother. That situation may well lead to the re-institution of further proceedings.
When these matters are considered, the orders sought by the mother are the orders least likely to lead to the institution of further proceedings.
IS THE FATHER AN UNACCEPTABLE RISK TO Y?
Having regard to the above, the question in this case is the existence and the extent of risk that Y may face in the future if he is to have contact with his father, and whether the extent of that risk is so great as to make it an unacceptable risk to take. This question is to be answered having regard to the findings I have made above, and all other relevant matters. In undertaking this task, the Court is undertaking a predictive exercise and making a projection.
I have made findings that both parents engaged in physical violence and derogatory taunts during the course of the marriage and in the lead up to separation. I have found that such conduct has occurred during the marriage, and at the time separation, and occurred in front of the children. The fact that the parties have separated has reduced, in particular, the father’s opportunity to engage in physical violence against the mother.
More concerning and relevant to the predictive task the Court is required to undertake are other behaviours of the father that have occurred post separation. The father has continued to undermine and denigrate the mother. He has done so in front of DHHS officials. He thinks so little of the mother that he has threatened to kill her. He has denigrated the mother to the Family Report writers. He has also clearly denigrated the mother to the children.
The relentless and persistent denigration and verbal undermining of the mother to, or in front of the children, in particular Z and X, has had serious consequences for them. They have adopted their father’s views or narrative about their mother. They have no relationship with their mother. They have each experienced behavioural problems at school, and problems with aggression. Each has also come into contact with the authorities. Each sees or has seen counsellors for mental health support. In short, each has suffered significant emotional harm or turmoil because of the continuing actions of the father post separation.
Of course, the father has not only relentlessly verbally undermined and denigrated the mother in the period since separation. He has threatened to kill her and has produced a situation where Z and X have excused that threat. He has levelled very serious allegations (of sexual abuse) against the mother and continues to assert them without any foundation. He has disobeyed and sought to frustrate Court orders that permitted the mother to spend time with the children, with the children being caught in the middle of that conflict. He has caused the police to conduct a series of unwarranted welfare checks on the mother.
In my view it is highly probable, if not certain, that if Y lives with or spends time with his father, Y will be subjected to the father’s relentless denigration of the mother. I have no confidence that the father could control himself, his actions or emotions. The father, combined with relentless denigration of the mother, will use every means at his disposal to bring about a situation where Y no longer wants to see his mother. Those means will include some of the means already deployed by the father, and discussed throughout these reasons. It is highly probable that in that situation, Y will be subjected to a serious risk of emotional harm. It is highly probable that Y will become unsettled.
I am fortified in my view that the father will cause emotional harm to Y, by the Third Report of Ms N. Ms N stated plainly that the children are at significant overall emotional risk in the care of either parent. She also stated that the father is not capable of meeting Y’s emotional needs. DHHS have continually expressed concerns about the impact of the father’s behaviour on the emotional development of the children.
The issue that then arises, is whether the risks I have referred to, could be mitigated by supervision of the father’s time. Given one of the primary considerations in section 60CC of the Act is the benefit to a child having a meaningful relationship with both parents, I have given the question of supervision the most serious consideration. Regrettably, I have come to the view that supervision will not effectively mitigate the risks to which I have referred, for the following reasons.
The father has behaved inappropriately during supervision. For example, at a supervised visit with X and Y on 27 June 2021, the father questioned X about care arrangements for Y with the mother, asking what time Y goes to bed, and telling X to ‘Make sure there’s no matches in the kitchen. No knives. All the electrical stuff, just keep an eye on him okay’. In making these statements, the father can be taken as expressing in front of the children no confidence in the mother’s ability to care for Y. On the same day, the father was also critical of the mother in front of the children, telling them ‘So, it’s okay for a stranger but not the father’ to come to the house. At a visit on 11 July 2021, Mr Breton engaged in a discussion with X about whether the mother was selling certain possessions. Cautioned by the worker not to continue that conversation, the father questioned the position of the worker in front of the children.
When it comes to the denigration of the mother (and for that matter more broadly), the father is unable to control himself. I have outlined instances of the father’s inability to control himself earlier. He has done nothing to address his impulses or his inability to control himself. He was unable to control himself in the Court. He disregards authority. If he is prepared to disregard the orders of the Court, there is less prospect of him complying with the instructions of a supervisor.
I am also not convinced he will commit to supervision given his evidence. These circumstances mean that I regard it as probable that supervision (should it ever occur regularly, which I doubt given the father’s attitude) will not act as a break on the father’s impulses to, among other things, denigrate the mother.
In all the circumstances, I am satisfied that the father presents as unacceptable risk of harm to Y. It is highly probable that if the father comes into contact with Y, he will inflict emotional harm, perhaps significant emotional harm, upon him. Supervision of his time does not reduce that risk.
CONSIDERATION OF ORDERS
Live with and spend time orders
The conclusions that I have reached above mean, regrettably, that Y must live with his mother, and spend no time and have no communication with his father.
There is then the question of what time, if any, Y may spend with his brothers. This is another difficult issue. Ideally, Y should be able to see his brothers without supervision. Regrettably, given the extent of influence that the father has over Z and X, and the risk that Z and X will denigrate the mother to Y and seek to influence their brother to leave his mother, that cannot occur. There is, in my view, a real risk that Y would suffer emotional harm if he spent unsupervised time with his older brothers.
The question then becomes whether supervision would provide a safeguard against any inappropriate behaviour by the brothers. There is not sufficient evidence before me to conclude that Z and X would not behave appropriately in a supervised setting. In other words, supervised time may ensure that Z and X behave in an appropriate manner, and do not denigrate the mother in front of Y.
While supervision may act to reduce the risks to Y during the time he is with his brothers, there are other matters that need to be considered. It will be incumbent on the father to arrange and facilitate the supervised time occurring (Z is 18, but I have no evidence before me that he would be ready or willing to facilitate supervision, for example, by being able to get to the supervised centre). For the reasons given previously, I am not confident the father would commit to supervision or be able to fund it. If there is no commitment to supervised time from the father, then there is a real risk that such time will not occur. That creates its own issues. The mother would be responsible for preparing Y for supervised time. There would then be the prospect of that time not occurring, and the mother then needing to explain the situation to Y and manage his emotions. That course of events runs a real risk of causing emotional harm to Y. It runs the risk of creating issues between Y and his mother. It will also unsettle Y. Y has been through much these past few years. He is now settled. It is not in his best interests to embark upon a course where it is probable he will become unsettled.
Regrettably, all of this means Y should spend no time with his brothers.
PARENTAL RESPONSIBILITY
There is a statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. Furthermore, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Y
Both parties came to Court seeking an order for sole parental responsibility for Y. Neither submitted that the statutory presumption applies.
I have made findings that the father has committed family violence against the mother. The statutory presumption therefore does not apply.
I have made a finding that the father constitutes an unacceptable risk to Y and that the father should spend no time with Y. In those circumstances, it is in the best interests of Y for his mother to have sole parental responsibility for him.
X
The parties are in agreement that the father should have sole parental responsibility for X. As matters presently stand, X lives with the father and spends no time with the mother. The agreement reached by the parties reflects the reality of the position and the evidence that the mother has no current role in X’s life. In all the circumstances, it is in X’s best interests for the father to be given sole parental responsibility for him.
OTHER ORDERS SOUGHT
The mother sought a number of other orders in her Further Amended Application. These orders were not the subject of any argument before me. Nor was I necessarily directed specifically to evidence in support of the orders being made. Given that context, what follows is necessarily brief.
The mother sought an order regarding changeover in the (seemingly unlikely) event that X wishes to spend time with her. The order sought was that the changeovers that do not occur at school, take place at the Suburb H Police Station. The making of that order was not expressly opposed by the father. I was not addressed on this order during the hearing. It is desirable and in the best interests of X to include this order in the event he ever chooses to spend time with his mother as it will reduce opportunity for conflict between the parents.
The mother sought an order that both parents be permitted to liaise with the children’s schools to obtain information. The father sought a similar order. I will make the order in the form sought by the mother.
The mother sought an order that the parties inform each other of any serious medical injury or illness sustained by the children while in their respective care as soon as reasonably practicable. The father sought a similar order, but in slightly broader terms. I was not addressed on the differences between the orders. I intend to make the order sought by the mother. It places clear obligations on the parties and will therefore likely reduce the scope for conflict between them.
The mother sought injunctions under section 68B of the Act in the following terms:
12.Pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) the Father, his servants and/or agents, be and are hereby restrained from approaching, contacting or communicating with the child [Y] or coming within 200 metres of [Y]’s home, school or extra-curricular activity.
13.Pursuant to section 68B of the Act the Father, his servants and/or agents, be and are hereby restrained from approaching, contacting or communicating with the Mother or coming within 200 metres of the Mother's home, school or place of employment and from harassing, molesting, stalking or physically harming or threatening to harm the Mother, and it is noted that this order is an order made for the personal protection of the Mother to which section 68C of the Act applies and any police office made aware of these orders and who on reasonable grounds believe that such orders and injunctions have been breached by the Father by either harassing, molesting, stalking or physically harming or threatening the Mother may arrest the Father without warrant.
I was not addressed by either party on whether these injunctions should issue.
The making of the orders above is discretionary. The Court can only make an order, however, if it considers it appropriate for the welfare of the child. In this matter, given all of the evidence and the findings that I have made, I am satisfied that it is appropriate for the welfare of Y that I make the orders sought. The father is an unacceptable risk to Y. There is a history of family violence perpetrated towards the mother. There is evidence of the father, or members of his family attending upon Y’s school. There is the evidence of the paternal aunt collecting X from school. These matters, and others in my view, mean that the injunctions in the terms sought by the mother should issue.
The mother also sought airport watch list orders in the following form:
14.The Father [MR BRETON] born [in] 1974 his servants and/or agents be and is are hereby restrained from removing or attempting to remove or causing or permitting the removal or attempted removal of the child [Y] born [in] 2014 (“the child”) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all pointes of arrival and departure in the Commonwealth of Australia and maintain the said child's name on the Watch List until 2032.
15.The Mother be and is hereby permitted to remove the child [Y] from the Commonwealth of Australia notwithstanding that the consent of the Father has not been obtained and the consent of the Father be dispensed with unconditionally.
16.Order 14 of these orders applies only to the child [Y]’s departure from the Commonwealth of Australia with the Father his servants and/or agents, and pursuant to order 15 of these orders, paragraph 14 shall not apply to the child [Y]’s departure from the Commonwealth of Australia with the Mother, her servants and/or agents.
17.For the purposes of section 11 of the Australian Passports Act 2005 (Cth) this order expressly permits the issue of a passport or travel documents (within the meaning of the Passports Act) for the child [Y] upon application by the Mother and without requiring the consent of the Father to the child [Y] travelling outside the Commonwealth of Australia or his signing passport or passport renewal application.
The orders sought were not the subject of submissions before me. Both parties migrated from Country G when they were younger. The father has a history of withholding the children and frustrating the mother’s time with the children. There is also a history of the father or members of his family attending upon the children at school to collect them when they ought not be there. There is some evidence in the mother’s affidavit, which I accept, that at one point the father threatened to take Y back to Country G to live. There are also existing interim orders where the children have been placed on the airport watch list. In all the circumstances, I regard it as appropriate to make the orders sought. It is also appropriate for the orders to explicitly provide that the mother can travel internationally with Y, given she has sole parental responsibility for him.
The mother next sought an order to the effect that the Commonwealth grant to Y a passport upon application, and that the consent of the father not be required. I was not addressed on this issue, but note I have made an order that the mother have sole parental responsibility for Y, and that the father have no contact with Y. In the circumstances, and given the history of conflict between the parties, I regard it as appropriate to make the order.
The mother sought an order that she be permitted to provide a copy of the Court’s orders to, inter alia, schools, medical authorities and other agencies. I was not addressed on this order. I regard it as appropriate to make that order in circumstances where the mother has sole parental responsibility for Y.
Both parents sought injunctions that they be restrained from, among other things, abusing or denigrating each other, or discussing the proceedings in the presence of the children. The mother’s proposed orders are broader than the orders proposed by the father. I will make the orders proposed by the mother, noting that both parties have agreed that an order in some form or the other should issue dealing with this subject matter.
The father sought orders that the passports of the children be held by the parties solicitors until there is an agreement that the documents be released. It is unnecessary to make such an order. The father has sole parental responsibility for X and the mother has sole parental responsibility for Y. In my view, the parent who has responsibility for that child should hold the passport for that child.
CONCLUSION
This has been a difficult and long-running case. The evidence suggests that great emotional harm (at the very least) has been visited upon each of Z, X and Y. The litigation and the conflict must stop. I have made orders that I consider will assist in minimising the conflict between these parties. The parties need to move on with their lives, or it is the children that will continue to suffer.
I have stepped back to consider these orders as a whole. I am satisfied that they are orders that are in the best interests of X and Y.
I certify that the preceding one hundred and seventy-one (171) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 6 September 2023
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