Brochard & Chaucer
[2024] FedCFamC2F 370
•26 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Brochard & Chaucer [2024] FedCFamC2F 370
File number(s): MLC 10838 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 26 March 2024 Catchwords: FAMILY LAW – parenting – unjustified allegations of medical neglect – allegations maintained despite no evidence – lack of insight into children’s emotional needs – risk of emotional and psychological harm – greater the time the greater the risk – balancing of competing considerations – overseas travel – equal shared parent responsibility Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D
Cases cited: Adamson & Adamson [2014] FamCAFC 232
Carlson & Fluvium [2012] FamCA 32
Grella & Jamieson [2017] FamCAFC 21
Masson & Parsons [2019] HCA 21
Division: Division 2 Family Law Number of paragraphs: 127 Date of last submission/s: 8 February 2024 Date of hearing: 16 to 17 November 2023 and 8 February 2024 Place: Melbourne Counsel for the Applicant: Ms Lane Solicitor for the Applicant: DCM Lawyers Counsel for the Respondent: Mr Duckett Solicitor for the Respondent: Ascot Solicitors ORDERS
MLC 10838 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BROCHARD
Applicant
AND: MR CHAUCER
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
26 MARCH 2024
THE COURT ORDERS THAT:
1.The parents have equal shared parental responsibility for X born in 2011, Y born in 2013 and Z born in 2016 (“the children”).
2.The children live with the mother.
3.The children spend time with the father as follows:
(a)During school terms:
(i)In week 1 from the conclusion of school (or 5:00pm on a non-school day) on Friday until the commencement of school (or 5.00 pm on a non‑school day) on Monday; and
(ii)In week 2 from the conclusion of school Wednesday until 7.30 pm.
(b)For one half of the term 1, 2 and 3 school holiday periods as agreed between the parents and in default of agreement for the first half in even numbered years and the second half in odd numbered years with the school holidays deemed to commence at the conclusion of school on the final day of school for the child that finishes school last;
(c)In the long Christmas school holiday period as agreed between the parents and in default of agreement, for the first, fourth and fifth weeks of the holidays in even numbered years and the second, third and sixth weeks in odd numbered years with the school holidays deemed to commence at the conclusion of school on the final day of school for the child that finishes school last;
(d)As otherwise agreed in writing between the parents.
4.The children spend time with the parents during special occasions as follows, and to the extent that this order is inconsistent with any other orders then this order shall prevail:
Christmas
(a)With the mother on Christmas Eve from 12:00pm until 12:00pm on Christmas Day in odd numbered years;
(b)With the father on Christmas Day from 12:00pm until 12:00pm on Boxing Day in odd numbered years;
(c)With the father on Christmas Eve from 12:00pm until 12:00pm on Christmas Day in even number years;
(d)With the mother on Christmas Day from 12:00pm until 12:00pm on Boxing Day in even numbered years.
New Years
(e)With the mother from 12:00pm on New Year's Eve to 12:00pm on New Year's Day in 2024/2025 and alternate years thereafter;
(f)With the father from 12:00pm on New Year's Day to 12:00pm on 2 January in 2024/2025 and alternate years thereafter;
(g)With the father from 12:00pm on New Year's Eve to 12:00pm on New Year's Day in 2025/2026 and alternate years thereafter;
(h)With the mother from 12:00pm on New Year's Day to 12:00pm on 2 January in 2025/2026 and alternate years thereafter.
Easter
(i)With the mother from the conclusion of school on Easter Thursday until 12:00pm on Easter Saturday in even numbered years;
(j)With the father from 12:00pm on Easter Saturday to 12:00pm on Easter Monday in even numbered years;
(k)With the father from the conclusion of school on Easter Thursday until 12:00 pm on Easter Saturday in odd numbered years;
(l)With the mother from 12:00 pm on Easter Saturday to 12:00 pm on Easter Monday in odd numbered years.
Mother’s Day/Father’s Day
(m)With the mother from 9:00 am until 5:00 pm on Mother's Day;
(n)With the father from 9:00 am until 5:00 pm on Father's Day.
Birthdays
(o)With the mother on the mother's birthday from 9:00 am until 8:00 pm on a non‑school day or from the conclusion of school until the commencement of school (or 9:00 am on a non-school day) the following day.
(p)With the father on the father's birthday from 9:00 am until 8:00 pm on a non‑school day or from the conclusion of school until the commencement of school (or 9:00 am on a non-school day) the following day.
(q)On each of the children's birthdays, with the parent who is not otherwise caring for the children from 10:00 am until 4:00 pm on a non-school day or from the conclusion of school until 7:00 pm on a school day.
Other special events
(r)For other special events, (being specifically immediate family member's birthdays, funerals, weddings, baptisms, holy communions, first reconciliations and confirmations) the children may spend time with the parent who is not already caring for the children, as agreed upon by both parents. The requesting parent provide the other parent with the following information as soon as practical:
(i)The date of the event,
(ii)The location of the event.
(iii)Times the children are to be picked up and dropped off.
(s)For other special events for the children not listed in the preceding paragraphs, including holy communions, first reconciliations and confirmations, the parents are at liberty to attend any such special events.
Changeover
5.Changeover occur by the parent whose time with the children is commencing collecting the children from school where changeover coincides with the commencement/ conclusion of school, and otherwise:
(a)By the mother and/or her nominee delivering the children to the Hungry Jacks at Suburb B at the commencement of the father's time with the children; and
(b)By the father and/or his nominee delivering the children to the Hungry Jacks at Suburb B at the conclusion of the father's time with the children; or
(c)As otherwise agreed in writing between the parents.
Travel
6.Each parent is at liberty to travel interstate with the children during the time they ordinary spend with the children pursuant to these orders.
7.Each parent shall be permitted to take the children overseas (provided that such travel does not include countries listed by the Australian Government's Smart Traveller website as "do not travel") for the period of time specified in this order and to facilitate the overseas travel the following provisions shall apply:
(a)both parents shall do all acts and things and sign all such documents necessary to obtain and/or renew the children's passports from time to time;
(b)either parent wishing to travel with the children must first provide the other parent with (unless a shorter period is agreed) not less than 60 days' notice in writing of their intention to travel with the children;
(c)each parent shall provide not less than 30 days' notice in writing of (unless compliance with this order is not reasonably practicable, then the parent shall comply as soon as reasonably practicable):
(i)their intended travel dates with the children;
(ii)their intended travel destinations and itinerary;
(iii)the particulars of the addresses, phone numbers and other contact information for the accommodation in which the children will stay during such travel;
(d)the travel shall not impact upon the children's time with the other parent during any of the special occasions referred to in these orders unless agreed in writing between the parents;
(e)the parent wishing to take the children overseas shall physically accompany the children during such travel;
(f)if either parent wishes to travel during the school holiday time that the other parent would ordinarily spend with the children then the travelling parent shall provide make-up time to the non-travelling parent during the next school holiday period equal to the amount of time missed by the non-travelling parent and such make-up time shall be agreed between the parents at the time that the notice of the proposed travel is proposed.
(g)the parents are only permitted to travel with the children for a maximum of two weeks respectively each calendar year, unless agreed in writing between the parents.
Information sharing and communication
8.Each of the parents shall:
(a)immediately notify the other of any medical emergency, serious illness or injury experienced by the children or either of them, requiring medical treatment or hospitalisation whilst the children are in their care respectively;
(b)forthwith inform the other of any medical, dental or other health practitioner with whom either of the children are scheduled to consult with or have consulted with and authorise the other parent to make all reasonable enquiries of such practitioner(s) in respect of matters considering the children's health save that the father be restrained from being physically in attendance at any medical, dental or other health appointments for the children at which the mother is in attendance;
(c)forthwith provide the other with copies of any reports or records provided to them respectively by any medical, dental or other health professional attended by the children or either of them;
(d)be and are hereby authorised to provide a copy of these orders to any medical, dental or other health professional attended by the children;
(e)make available to the other parent within 7 days of a request any identity documents; medical documents; or other documents relating to the children.
9.Neither parent denigrate the other, their respective partners, family or friends directly or in the presence or hearing of the children and that each parent use their best endeavours to ensure that no one else does so and remove the child/ren from any environment where denigration is occurring.
10.Each of the parents do all acts and things that may be required to ensure that they are each authorised to:
(a)receive information, notices, reports, class lists and photographs directly from any school, kindergarten and/or provider of childcare, extra-curricular or sporting activities attended by the children;
(b)attend all events parents are invited to and permitted to attend, including but not limited to, open days, concerts, parent teacher interviews, sports days and like events; and
(c)provide a copy of these orders to any school, kindergarten and/or provider of childcare, extra-curricular or sporting activities attended by the children.
11.Either parent be at liberty to contact the children whilst the children are not in their care.
12.The parents will inform each other of any changes to their mobile phone number or address within 24 hours of the change being made.
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 JENKINS:
This is a matter that concerns the parenting arrangements for three children: X age 13, Y age 11 and Z aged seven (“the children”).
The children currently live with the mother and spend alternate weekends with the father from Friday to Monday and on the alternate Wednesday after school.
The mother seeks a continuation of that arrangement.
The father proposes that the children remain living with the mother and that they spend time with him for five nights each fortnight, with his preference being for this to occur in one block from Thursday to Tuesday.
Save for the issue of fortnightly time, the parties have for the most part agreed to the remaining orders, save for arrangements during the long summer holidays, overseas travel, changeover and attendance at medical appointments.
BRIEF BACKGROUND
The parties married in 2009 and separated on 22 January 2022.
The mother was the primary carer of the children throughout the relationship. After separation the children remained living with the mother and spent time with the father every second weekend and on special occasions.
The parties each reside with their respective parents. At the home of the maternal grandparents, when the children are in the mother’s care, they reside with the mother, and the maternal grandparents. At the home of the paternal grandparents, when the children are in the father’s care, they reside with the father, the paternal uncle and his wife, and the paternal grandparents.
In September 2022 the father had the children in his care for the Father’s Day weekend. It was agreed that the father would take the children to Town C and that they would likely return the following Monday or Tuesday. However, as Y was unwell, the father decided not to continue the trip but returned to his parent’s house. The father then contacted the mother and requested that the children remain in his care for the week. This was opposed by the mother. The father then texted the mother “as far as I know we made no such arrangements on which days of the week or weekend where/whom the kids will be staying with. You have no rights on this. Thank you”. [1] The father then, without notice to the mother, attended upon the mother’s residence with X to collect her things. This resulted in a confrontation in which the father alleges he was assaulted by the mother and received a cut lip.
[1] Joint exhibit 3, page 55.
Following this incident, X remained at the mother’s home. The mother tried to contact the younger children however the father refused to allow her to speak with them.
In September 2022 the father attended a medical clinic to have his alleged injuries documented. Y also had an appointment at the clinic as he was still unwell. The mother consequently received a notification about Y’s appointment and attended the clinic. Following an encounter in the waiting room of the clinic, the father removed the younger children and attempted to leave the clinic. The mother sat in front of the father’s car, but he was ultimately able to reverse away.
In late 2022 the mother attended Court and obtained an intervention order (“IVO”) listing herself and the children as protected persons.
The younger children remained in the father’s care until the mother was able to collect them from school in late 2022.
In late 2022 the father was granted an IVO against the mother including the children as protected persons. This was served on the mother 3 days later. As a result, all three children were placed in the father’s care.
In late 2022 the mother obtained a variation to the father’s order to remove the children from the order, so that the children could be returned to her care. The police then facilitated the mother collecting the children from the father’s home.
On 29 September 2022 the mother initiated these proceedings.
On 3 November 2022 the parties agreed to orders that the children live with the mother and spend time with the father every second Saturday, commencing Saturday 12 November 2022 from 1.00 pm until 5.00 pm with the paternal grandparents to be in substantial attendance.
In late November 2022 the parties and children attended for a Family Report with Mr D. He subsequently prepared a report dated 15 December 2022 (“the Family Report”).
On 19 December 2022 the parties agreed to orders that the father’s time be extended to alternate weekends from Saturday morning until Sunday afternoon, and each Wednesday subject to the time being supervised by the paternal grandparents. Other orders made included for the father to undergo a psychiatric assessment however, I understand that upon producing a letter from his psychologist the parties agreed to dispense with this requirement.
In February 2023 the parties attended mediation and reached further agreement which provided for the father’s time to be extended on alternate weekends to from Friday to Monday as well as time on alternate Wednesdays and removed the requirement for supervision. This was formalised in orders on 19 April 2023. The father has spent time with the children pursuant to those orders since that date without any major disruption.
THE EVIDENCE
It has not been possible to include every aspect of the evidence in these reasons. However, I have taken all the evidence into account. While I may not mention something specifically in these reasons, that does not mean I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
In this matter the mother and her two brothers gave evidence. The father gave evidence however his brother’s evidence went in unchallenged. Otherwise, the parties were content to submit the Family Report by agreement without requiring Mr D to be cross-examined as well as the limited evidence of a police officer.
In regard to the parties, I found the mother to be an honest and forthright witness. As with most witnesses, there were a number of inconsistencies in her evidence however these were likely due to her own perspective of events rather than any deliberate attempt to mislead the court. I also accept, in regard to the incident at the medical clinic for example, that she was highly emotional and that as she said, it occurred “in a blur”. It was put that the mother was constantly manipulating the facts so as to paint herself in the best light. I do not accept that as the mother made a number of concessions against her own interest. Furthermore, whilst there were differences between the mother’s application in the IVO proceedings and her evidence in this court, there were similar inconsistencies between the father’s family law affidavits and the documents he prepared. However, the differences were minor, and do not persuade me that I ought to make any findings about the credit of the parties based on same.
However, regarding the father’s evidence, I was urged to make findings that the father intentionally lied about a number of key matters.
The court usually refrains from making specific adverse credit findings if the legitimate disposition of the case can be achieved otherwise.[2] However, I was urged to do so on the basis that the father had repeatedly made false assertions in IVO proceedings, to the police, and to the Department of Families, Fairness and Housing (“DFFH”). It was argued the mother could present such findings to the authorities if the father continued to do so. In the circumstances of this case I accept this as a legitimate basis for making a credit finding although I do not believe it is necessary to make findings about each of the matters raised by counsel for the mother.
[2] Adamson & Adamson [2014] FamCAFC 232 at [89]-[90], quoting Carlson & Fluvium [2012] FamCA 32 at [165]-[169].
In this case, having had the benefit of all of the evidence, including text messages between the parties, reports to police, and reports from the medical clinic, I find on the balance of probabilities the father lied about the following:
·That during the relationship the mother either intentionally or recklessly caused injuries to the children;
·That the mother was negligent about Z’s medical care;
·That in September 2022 the mother punched him in the lip and caused him an injury and;
·That in September 2022 the mother grappled and squeezed Z causing her bruising to her back and hand.
As a consequence, where the father’s evidence differs from the mother, and is otherwise uncorroborated, I prefer the evidence of the mother.
THE ISSUES IN THIS CASE
·The father alleges the mother neglected Z’s medical care leading to Z being admitted to hospital in mid-2022;
·The father alleges the children were at risk in the mother’s care in September 2022 following the incidents;
·The mother alleges the children are at risk in the father’s care because he has little insight into their emotional needs; and
·The mother alleges the children are at risk because of the father’s temper.
WHAT ARE THE LEGAL PRINCIPLES THE COURT APPLIES IN DETERMINING WHERE A CHILD SHOULD LIVE?
Pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”) the best interests of a child are the paramount consideration for the court when making a parenting order.
Section 65D of the Act directs the court to make such parenting orders as it thinks proper. The court may therefore use its discretion to determine what is "proper". In this regard the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 has said at [18]:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
HOW DOES THE COURT DETERMINE WHAT IS IN THE CHILDREN'S BEST INTERESTS?
Section 60CC of the Act sets out the matters to be taken into consideration when determining the children’s best interests.
There are two primary considerations. The first of which is the need to consider the benefit to the children of having a meaningful relationship with each of their parents. Secondly, I must consider the need to protect the children from harm.
If there is conflict between those two considerations, then greater weight must be given to the need to protect the children from harm. In addition to the primary considerations there are a number of additional considerations under s 60CC(3). I have considered each of the matters under s 60CC(2) and (3) however I will only specifically refer to them to the extent that they are relevant to my decision in this matter.
In this case the parties concede that the children would benefit from having a meaningful relationship with each parent. Indeed, it would appear the children have been able to maintain a meaningful relationship with the father, with far more limited time than the father is currently having. At the time of the Family Report, he was only spending an afternoon on alternate Saturdays with the children. In the observations of the children and the father in the Family Report Mr D noted, “there was fun and laughter”[3] and “there was a warm and reciprocated rapport between [the father] and the children”. [4]
[3] Family Report prepared by Mr D, paragraph 67.
[4] Family Report prepared by Mr D, paragraph 68.
However, pursuant to the High Court decision in Masson & Parsons [2019] HCA 21 at [8] the court has the responsibility of:
Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
THE ISSUES IN THIS CASE
Allegations that the mother neglected Z’s medical care
The father claims in his amended outline of case, which he stood by in the witness box, that the mother has “neglected caring for [Z]’s health conditions which resulted in her being hospitalised.”[5]
[5] Father's Amended Outline of Case filed 15 November 2023 , paragraph 30.
It is common ground that for about 12 months prior to separation Z had been having ongoing medical issues. It had been assumed by medical practitioners that her symptoms were allergy related or related to some form of infection. It was not until Z’s general practitioner (“the GP”) noticed a trend that she suspected Z may have a medical condition. Z was then referred to a specialist clinic which she was to attend upon in late 2022.
It was also common ground that the mother had been primarily responsible for taking Z to her medical appointments and indeed, it would appear the father had little knowledge about same. When cross-examined, the father was unclear of the events that led to the specialist clinic being booked in.
In August 2022 Z was in the care of the father when she became unwell. The father text the mother and the following exchange took place:
Father to the mother at 9.00 pm
Btw, [Z] has [symptoms], and keeps waking up every hour.
Father to the mother at 9.01 pm
What’s happening with her hospital appointment? This is urgent.
Mother to father at 9.02 pm
Her specialist appt [sic] is on the […]. Take her to the gp tomorrow and see what they say. They will have all her recent results on their system.
Mother to father at 4.15 am
Is [Z] ok? My dad is thinking I should take her to the hospital. But if she’s sleeping. I can wait until the morning.
Father to mother at 6.03 am
She is ok for now. Sleeping. Just wait till[sic] later. [6]
[6] Joint exhibit 3, pages 41 – 42.
Despite this exchange, and that the mother had been Z’s primary carer and had all of the historical information about Z’s care, the father took Z to hospital without notifying the mother. Indeed, it was only upon being unable to provide that information himself to the hospital that the mother was eventually contacted by the hospital.
The father gave varied reasons for this lack of communication with the mother. He variously said the following:
·They had had lost communication between about June and August 2022;
·That he had been reluctant to communicate because she would report a breach of the IVO;
·They had not been communicating “that day”; and
·They had only been communicating by text.
However, it became clear as a result of the bundle of text messages compiled by the father and produced when the matter returned in February, that the parties had been having ongoing text communication, including in relation to Z, up and until 6.00 am that morning. It therefore beggars belief that the father did not text or call the mother when he decided to take Z to the hospital. Especially since it was common ground the mother had all of the medical history. In addition, she was Z’s primary carer and Z being unwell was likely to need her mother for comfort. Indeed, once the mother was contacted, she attended the hospital and remained there throughout Z’s two-day admission and it was during that admission that Z was finally diagnosed with a medical condition after further testing.
Until this point, the father does not accuse the mother in any communication of neglecting Z’s medical care. Indeed, in a text sent to the mother in August 2022 the father says:
…I appreciate you have taken all the relevant test[s] you needed for [Z].[7]
[7] Joint exhibit 3, page 45.
Rather what follows is a series of text messages which when read as a whole, suggest that the father wishes to reconcile with the mother, with expressions of love for her and suggesting marriage counselling. For example:
I love you and the kids soo [sic] much that i have put everything here on the line.
Like I said im not expecting miracles but pls [sic] keep an open mind[8]
[8] Joint exhibit 3, page 49.
The mother responds:
…The sooner you accept that we are getting a divorce, the better and the easier it will be for everyone to move on and adjust.[9]
[9] Joint exhibit 3, page 49.
Despite this the father’s later texts saying:
Can we still try out marriage counselling together?[10]us t
[10] Joint exhibit 3, page 50.
The mother response includes the following:
Please try to understand and accept this because you are just making it harder for yourself.
I DO NOT want to try marriage counselling.
I DO NOT want to be married to you or be with you.
I DO want to try to be civil for the sake of the kids. But I can’t while you are still hoping that there is a chance that we’ll get back together, because there is no chance.[11]
[11] Joint exhibit 3, page 50.
The father emphatically denied wanting to reconcile and said that the marriage was long over and that the mother had misinterpreted his messages. Nonetheless, it is notable that he does not seek to correct the misunderstanding if that was the case.
Then in September at 9.33 am in preparation for the Father’s Day weekend away, the father texts the mother as follows:
We’ll be away from Saturday afternoon for an overnight only and be back on Monday.
I need her [Z’s] medication instructions aswell [sic] please.
Is the medication once a day only?
Urine test once a day?[12]
[12] Joint exhibit 3, pages 51 – 52.
The mother provides the following information at 9.38 am
Medication:
[medication] in the morning with food
[another medication] in the morning with food.
[Z] knows.
Just catch her morning wee in a cup and dip the dipstick in it and check the colour of the protein line. It should show up as negative now.
You’ll need to bring scales with you to weigh her in the morning.
I’ll give you the booklet to record the date, protein result from her wee, and weight.
It’s fine to take them away for the weekend but just don’t over exert them please because […] is sick and [Z] can get tired easily.[13]
[13] Joint exhibit 3, page 52.
The mother later adds:
If you don’t already have some, please get nurofen and paracetamol (don’t get the Panadol brand).[14]
[14] Joint exhibit 3, page 53.
The father responds:
Please drop off and get Nurofen b [sic] paracetamol
Thanks[15]
[15] Joint exhibit 3, page 53.
It appears that not only is the father still reliant on the mother for all the treatment information at this point, but he also expects her to drop off medication that could be purchased over the counter at a pharmacy or even a supermarket.
Indeed, the father does not raise the issue of neglect until September 2022, and it was only after the mother refused his request to have the children in his care for the week. At that stage, at about 12.01 pm he sends the mother a text which included the following:
…If you had waited for [Z]’s scheduled appointment, [Z] would have suffered and would have been in an agonising pain, and god forbid possible [illness] causing death!
You were irresponsible not taking her directly and urgently to the hospital, even when you knew that she had the symptoms months back!
You jeopardised her life, health and well-being![16]
[16] Joint exhibit, page 55.
There is however no evidence whatsoever that the mother ought to have done anything different with respect to Z’s care. Indeed, Z’s health practitioners did not diagnose Z until she was admitted to hospital and underwent further testing. Furthermore, the father only raised this as an issue after the mother made it clear that she did not want to reconcile, and then did not allow him extended time with the children.
Risk to the children in the mother’s care after the events of September 2022
It is common ground the mother had been the children’s primary carer for their entire lives. Since separation, the father had been spending regular time with them on alternate weekends. Despite this, in September 2022 at 6.09 am the father sent a message to the mother which included the following: e
I want the kids to stay with me during the week all the time. I never chose this arrangement. I am more than happy [to] have the kids with me fulltime.[17]
[17] Joint exhibit 3, page 53.
Then the following day, the father sent the following text to the mother at 12.01 pm:
…as far As [sic] I know we made no such arrangements on which days of the week or weekend where/whom the kids will be staying with.
You have no rights on this. Thank you[18]
[18] Joint exhibit 3, page 55.
Shortly after sending this text, the father attended the mother’s home, with X, to collect some of X’s things for the week. He did so without notifying the mother because he says he contacted the maternal grandfather, who was the owner of the property and that “she [the mother] did not have a say in it”.
The mother’s evidence is that the father turned up to collect ‘X’s things’ and given his earlier messages, the mother thought he meant all of X’s belongings. The father later conceded to his doctor that the mother “probably mistook the message as going to take kids forever.”[19]
[19] Mother’s exhibit 9, page 1.
The mother says the father tried multiple times to gain access to the home. She said she asked the father to stop and had no choice but to push him away because he was not listening. The father says she punched him in the face two or three times and cut his lip. She denies this and says she pushed him only once. She denies striking him to the face or causing any injury.
The mother’s brother, Mr E, gave evidence which largely corroborates her version of events. He says the mother was in the doorway of the home and held her hand out so the father would not go in. He describes it as more of a block than a push.
The police attended the residence after the incident. They record the mother’s actions as a push rather than an assault. The mother was recorded as the aggrieved family member and the father requested to leave the premises. The email from one of the attending officers confirms that the father did not report an injury and nor did he sight any physical injury. Rather the father attended the police station the following day. He describes the father’s report of the incident as follows:
[the father] disclosed that; while attempting to enter [the mother’s] address he was told to stop and that he could not enter 3 times, as [the father] ignored [the mother] and walked towards her, [the mother] used two open hands on [the father’s] shoulders, to as [the father] described is “tried to move me out and block me.”
This was assessed to not constitute and [sic] assault, it was noted in the police report but no criminal investigation was required.[20]
[20] Mother’s exhibit 8, page 1.
The police constable notes that after being told that police were not going to be involved, the father reported the mother for assaulting him about a year or so prior. The father denied this however, and as he did not seek to cross-examine the police officer, this evidence was not challenged.
In any event, for reasons already stated, I prefer the mother’s evidence on this issue. I find that the father attended the home, without informing the mother, and attempted to gain access despite being told multiple times not to enter. I find the mother blocked him from entering but did not otherwise punch him or cause him an injury. I find that the father’s actions resulted in X being exposed to confrontation between the parties, noting that X thereafter decided to remain with the mother.
Nonetheless, the father then chose to use this incident as a basis for withholding the two younger children and to prevent the mother from communicating with them.
The mother’s evidence is that she attempted to speak to Y on the phone after the incident but that the father removed the phone from him. This was confirmed by Y in the Family Report.[21] The father initially denied this in his evidence but then conceded that he possibly did take the phone from Y.
[21] Family Report prepared by Mr D, paragraph 59.
In response to the mother’s request to speak to Y and Z the father just says “NO” and then sent the following text:
Please do not make contact with me.
I am afraid, traumatised, scared for my life and kids’s [sic] well being and safety, by your physical and emotional abuse towards me.
You have made [X] witness your physical and verbal inflicting abuse on your own husband.
She and I will be forever be [sic] scarred, afraid and traumatised by you for the emotional and physical abuse you have inflicted towards me.
Please do not make contact with me.[22]
[22] Joint exhibit 3, page 55.
The following day, the father attended a medical clinic to have his alleged injuries documented. He took the children with him as Y also had an appointment. Upon being notified of same, the mother attended the clinic to see the children. This resulted in an incident in the clinic waiting room. Each of the parties gave competing evidence about what occurred. In short, the mother says that she was hugging Z and that the father ripped her away and screamed abuse at her. The mother says the father would not allow Y to approach her. She says the father then forcibly removed the children from the clinic. The father says the mother was grappling and squeezing Z which caused Z to “cry out in pain” and resulted in her being injured to her back and hand.
A video of the incident was played to the court. I have reviewed the video a number of times. Although it does not line up precisely with either parties’ version of events, it accords more with the evidence of the mother. The video confirms that Z ran up to the mother and that the mother and Z had a long and warm embrace. Z appears to be affectionately touching her mother’s face and hair, actively puts her arms around the mother, and the mother at one stage rubbing Z’s back. It does not show the mother grappling and squeezing Z, save in an affectionate manner. Indeed, at one stage it shows the mother standing back from Z as if to say, “let me look at you”. There is nothing in the encounter which indicates the mother was using excessive force or that Z was resistant to the cuddle or otherwise in pain. Having viewed the video, I am not of the view it could have caused the injuries alleged by the father and documented by him in photographs. [23]
[23] Mother’s exhibit 12, pages 1 -3.
The video does however show the father grabbing hold of Z’s upper arm and in my opinion, aggressively removing her from the mother. He continues to hold Z’s arm as he directs her out of the clinic. Regarding Y, the video shows that at the commencement of the scene, upon Z running to the mother, the father physically guides Y around the mother and Z, towards the payment counter. The mother gestures to Y to come over to her but he is on the other side of the father’s body. It is not known what is being said as there is no audio. As such I do not know if the father was yelling at the mother although he did admit in his evidence to accusing the mother of jeopardising Z’s life in a “firm tone” and saying to the maternal grandmother who was also present, “look what kind of daughter you have raised”.
It is common ground that outside of the clinic, which is not recorded, the father put the children in the car and that the mother sat on the ground in front of the car to stop the father from driving off. She admits the children were crying and distressed. The mother says the father began driving towards her and she feared for her life. The father denies this. In any event, he was eventually able to reverse out and leave the location.
I find that whilst the mother’s actions in sitting in front of the car would likely have caused distress to the children, this occurred in circumstances where the father had just physically removed Z from the mother’s arms, had not permitted them to say goodbye to each other, and was otherwise unjustifiably withholding the two younger children from the mother’s care and refusing to allow her any communication with them. I accept the mother was very distressed and acting out of desperation.
Having assessed all the evidence I find that it was the father who was the antagonist in the incidents that occurred in September 2022 and that it was his actions in both cases that led to the children being exposed to the conflict between the parties, not the mother.
Risk to the children due to the father’s lack of insight into their emotional well being
It is apparent on the evidence that the father made the decision to withhold the children from the mother and cease all communication following the incident in September 2022. However, having heard the father’s evidence I do not believe that he thought the children were at risk in the mother’s care then, or at any time following these events. Despite maintaining that he needed to protect the children, at no stage during these proceedings has he sought orders for the children to be removed from her care. Indeed, when the father filed his response in October 2022, only about a month or so after the incidents in question, he proposed the children remain living with the mother.
The only conclusion to be reached as a result of this finding, is that the father was motivated by other matters, other than risk, when he withheld the children from their mother. Having read the text exchanges between the parties, it appears his motivation was twofold; firstly, the mother had made it clear she did not want to reconcile or try marriage counselling, and secondly, she did not agree with the father taking the children for the week.
It appears the father was under some sort of misguided notion that it would assist his case for more time with the children and set about gathering evidence against the mother. This included the following:
·Reporting his injuries to the police in September 2022;
·Attending a doctor the same day to have his injuries documented;
·Taking Z to the GP four days later to have Z’s injuries documented;
·Obtaining an IVO against the mother in late 2022; and
·Reporting the mother to DFFH in September 2022.
It would also appear that the father did not want the mother speaking to or in any way influencing the children during this period. His evidence he did not want “any information leaking out to the children” or for Y “to be contaminated with the mother’s views”. Although he also gave other reasons such as “why would I allow her, she assaulted me” and “why would I put myself in that situation and the kids”.
The mother sent multiple texts in September 2022 requesting to be able to speak with the children and she received no response from the father. The only response she gets is to a question about a music lesson to which the father responds:
Leave [music] book and their school bags at mailbox area. Do not enter pass [sic] mailbox. Do not [sic] our property.
Do not enter our property. [24]
[24] Joint exhibit 3, page 57.
There was nothing in the father’s evidence that showed he understood the impact on the children of having no contact with the mother. This is all the more alarming given Y was unwell and Z had been admitted to hospital the week before. Nor did he seemingly have any regard for the impact on the children of being separated from their siblings. In the Family Report Y said he was worried when the father returned without X:
[Y] became anxious and worried when his father came back without [X] and stated, “I got a bit worried when dad came back without [X]. He looked upset, and the next day dad took the phone off me when I was talking to mum. He asked me what I was talking about, I was really worried, and then he told the principal not to let mum pick us up from school. I was really worried at the time.”[25]
[25] Family Report prepared by Mr D, paragraph 59.
I also find on the evidence the following:
·Although denied by the father, it is more likely than not that the younger children were present in the doctor’s surgery when he explained that the mother assaulted him. It seems highly unlikely he would have left Y and Z in the waiting room during his appointment;
·The father concedes he asked Z to take her clothes off so he could photograph her alleged injuries; and
·Although denied by the father, it was the father who told the doctor how Z received her injuries, in front of Z, not the other way around.[26]
[26] Mother’s exhibit 13, pages 1 -2.
Furthermore, when asked under cross-examination what the father might have been able to do differently, he said “maybe not be assaulted”. He did not resile from any of his actions in the following week, nor for obtaining an IVO that resulted in all three children being placed in his care, noting the younger children had only just returned to the mother’s primary care the day before.
Although it was submitted that the matters raised against the father are largely historical, there are some more recent examples of his lack of insight.
The mother alleges that in late 2023 the father trapped Z in a bathroom and interrogated her about a conversation she had with his girlfriend about the mother which made Z feel uncomfortable and scared. The father conceded he had chosen to have that conversation in the bathroom but said it was the only private place. This fails to acknowledge the likely impact on Z of the situation.
Another example is on or about late 2023 X texted her father asking if her grandfather or uncle could drop off Z’s reader. The Father responded with:
[X].
Never message and/or communicate us any correspondence[s] regarding such things. Such [sic] as relaying information to us.
This is NOT your duty or job, is not your responsibility and duty.
Do not communicate such information, you are not responsible for such things…[27]
[27] Mother's exhibit 1, page 3.
The mother says, and I accept, this would have been quite upsetting for X given the abrupt nature and tone of the message. It would have been particularly so given it is evident that the father had a history of making similar requests. For example, “[X] can you pls [sic] bring [Z]’s backpark [sic] keychain and […] [Y’s] if he has one”.[28]
[28] Mother’s exhibit 5, page 7.
However, the biggest concern about the father’s lack of insight is the fact that he continued to maintain that the mother was negligent and a risk to the children throughout these proceedings. Under cross-examination the father maintained that the children were at risk in the mother’s care, despite this being entirely inconsistent with the orders he was seeking. The father stood by his affidavit in which he says “[The mother’s] neglect of [Z] and her condition could have had terrible consequences”[29] and also his paragraphs 93 and 94 in which he alleges the mother neglected Z by not taking her to the GP as soon as she showed symptoms of chicken pox. The father agreed that he held the mother entirely responsible for the neglect.[30]
[29] Father’s trial affidavit, paragraph 52.
[30] Father’s trial affidavit filed 3 November 2023, paragraphs 93 – 94.
The father also stood by his concerns as set out in his amended outline of case, that the children were “at risk and have been present and victims of the mother’s anger problems and violent outbursts”[31] and said he would continue to take necessary action to protect the children from harm. Indeed, after the trial was adjourned part-heard in November, the father made an application for a new IVO in which he sought for the children to be placed in his care. When asked what had occurred since the last hearing to justify such a change, he said the mother was always probing the children trying to extract information which damaged them psychologically.
[31] Father's Amended Outline of Case filed 15 November 23, page 3.
However rather than have his lawyers bring this concern to the mother’s attention, the father believed a change of residence was justified.
This demonstrates that the father has developed no understanding into the impact on the children of their removal from the mother’s care in the past, and shows that if he believes it is necessary, he would likely remove them again. I consequently find the children are at risk of emotional and psychological harm in the father’s care.
Risk to the children because of the father’s temper
The mother alleges the father has a short temper and that he has exposed the children to same. Her evidence contains multiple examples of the father yelling at her and others. In addition to the incidents in September 2022, the mother says on or about mid-2023 the children reported that the father became “furious” and started yelling at his parents in front of the children when they forgot to pick up the children from school. Z told the mother this scared her and she went to her bedroom. The father denies having an issue with his temper and says that his evidence should be preferred to the mother due to inconsistencies in her evidence.
In any event, there do not appear to be multiple examples of the father’s temper being an ongoing concern. It also does not appear to be an issue for the children in the Family Report who were observed to be “relaxed and at ease in their fathers care.”[32]
[32] Family Report prepared by Mr D, paragraph 68.
The mother argues that an increase in time may expose them to a greater likelihood of the father's temper; however, she also proposes they spend block periods in school holidays with him. Whilst I understand her argument that she is trying to balance a number of factors, including the desire of the children to spend time with the father, I do not believe she would propose a week at a time if she thought this was likely to expose the children to repeated angry outbursts.
OTHER RELEVANT MATTERS UNDER SECTION 60CC
The views of the children
The only independent evidence of the children's views is contained in the Family Report; however those interviews were conducted in November 2022 and despite the Family Report writer recommending an updated Family Report, this has not occurred.
Therefore, the only evidence of the children’s current views is what is reported by the parties. The mother says that although at times the children have said they do not want to go to the father’s, they are for the most part happy with the current arrangements. The father’s evidence is that “the children are always open and happy to spend all time with me and have frequently requested to spend more time with me”. [33] However, even if I accept the parties’ evidence, I am of the view I can place limited weight on what the children are alleging. The evidence shows that the children have not only been directly exposed to the conflict, both parents have involved the children in inappropriate discussions about the other parent.
[33] Father’s trial affidavit filed 3 November 2023, paragraph 111.
I note that in the Family Report it came to light that the mother had discussed with Z the allegation that her father had pinched her back. As noted in the Family Report Z said “I told mum, and she explained that dad had done the bruise to get her into trouble”.[34] In regard to the father, he concedes that he said to the children words to the effect of “that someone in the family is not allowing him to spend time with them and keeps taking him to court and that they should live with him for two weeks at a time”.
[34] Family Report prepared by Mr D, paragraph 65.
Accordingly, the children would have a clear understanding about how the parents feel about each other and may well be telling each of them what they want to hear.
Does each parent have the capacity to meet the children's needs?
I have already discussed at length the allegations the father raises with respect to the mother’s neglect of Z. However, I note that the mother has also alleged that at times the father has been negligent in attending to the children’s health needs. In particular, the mother alleges that the father failed to seek treatment for Z when she had chicken pox and to provide X with an inhaler when she had bronchitis.
In regard to chickenpox, the mother’s complaint is that when Z was returned to her care she seemed lethargic and generally unwell and had some sores around her body. However, I note that the mother herself did not realise at the time they were chickenpox. She also conceded there were not many sores as Z only had a mild reaction. In circumstances where the mother, who is a health care worker, did not immediately recognise that the rash was chickenpox it is hard to understand how the father could be criticised for not identifying the illness.
In regard to the inhaler, the mother’s evidence was that X called from the father’s home because she was having trouble breathing and had a sore chest from coughing and that her father had refused to buy her a Ventolin inhaler. The father says he did not need to buy her an inhaler as he already had one. In any event, X has never been diagnosed with asthma and on this occasion it was later determined she had bronchitis. There was no suggestion that the failure to provide Ventolin would have put her health at risk.
In any event, these isolated incidents would not be sufficient for the court to draw the conclusion that the father is unable to attend to the medical or other health needs of the children.
Practical difficulties
The parties live relatively close to each other. Each resides with their parents and each party relies to varying degrees on their family to assist them with caring for the children.
The mother is a health care worker and the father is a tradesperson but each of the parties has seemingly taken on roles which allow them some capacity to work from home.
In addition, the father says that his employment is flexible and provides a letter from his employer to this effect. [35] The mother argues that the employer is not on affidavit and as such that evidence cannot be tested. However, I am not troubled by whether or not the father is able to physically collect the children and to be present to care for them before and after school. It is common ground his family have been assisting him and although there was one occasion where his parents forgot to collect the children and another where they were not available, this was not of real concern to the mother.
[35] Father's exhibit 6, page 1.
The mother also argued that the lack of communication between the parties was likely to lead to ongoing practical issues, such as the children having the right sporting equipment. However, the father argues that he took the children to sports for over six months and no such issue arose. Whether or not this was the case, there is no evidence that this has been an ongoing issue between the parties. Furthermore, although at times their communication has been poor and they have communicated through X or other family members, there have been significant periods where the parties have been able to text directly to make arrangements for the children.
Attitude to the responsibilities of parenthood
Part of the responsibilities of parenthood is encouraging a relationship between the children and the other parent. The father argues that the mother has not done so. He says after separation that the mother always dictated and controlled his time with the children. However, this seems inconsistent with what he told Mr D in the Family Report which was that “we always had flexibility.”[36] This flexibility also seems to be reflected in the texts the parties were exchanging in the first half of 2022. [37]
[36] Family Report prepared by Mr D, paragraph 29.
[37] Joint exhibit 3, page 1.
Nonetheless, the father also argues that the mother did not allow him any time with the children between the children being returned to the mother in September 2022 and when orders were made in this court, some seven weeks later. However, given the father’s actions at around that time, I accept the mother would have had every reason to be concerned about sending the children back to the father without court orders.
Furthermore, I note the mother agreed to orders at mediation which were in excess of those recommended by the Family Report.
It was also put that the mother had unnecessarily reported the father for breaches of the IVO which the police assessed as communications about parenting. However, there is no evidence that the mother has continued to do so.
Having heard the mother give evidence, I accept that she just wants the father to move on from the relationship, to stop being angry, and enjoy his time with the children. It seems likely that if the father is able to do that, that the mother would facilitate more time, regardless of any orders made in this court.
WHAT ARE THE ORDERS THAT ARE IN THE CHILDREN'S BEST INTERESTS?
At paragraph 72 of the Family Report Mr D sums up the parties as follows:
[The mother] presents as highly organised, with a focus on structure and routine. She is conservative in her values and holds those around her to the same standards she sets for herself. [The mother] demands transparency and accountability in her relationships, and has the propensity to be reactive when her values and expectations are not met. In the alternative, [the father] struggles with open and authentic communication in circumstances that conflict with his perceived interests. He can be impulsive and reactive in his decision-making and responses and avoidant and ambiguous when challenged around his behaviour.
Mr D goes on to say in paragraph 76:
[The father] appears to have reacted impulsively to a variety of stressors relative to his adjustment to the separation and has overheld the children. He has attempted to manage his feelings of disempowerment and loss by imposing his will on the arrangements, and has acted impulsively and without due regard for the children's feelings. ln these circumstances, it is recommended that [the father] pursue a GP-referred mental health plan and engage in supportive counselling to assist with his adjustment to the separation.
These two paragraphs are entirely consistent with my assessment of the evidence of the parties.
Furthermore, although the father has had the benefit of the Family Report and some assistance from a psychologist it would appear he has a long way to go in terms of his insight into his own behaviour and the impact that has had, and will continue to have, on the children if it continues.
It concerns me greatly that the father continues to accuse the mother of neglect, and to assert the children need protection, to bolster his own case. Indeed, I accept the submission that the father’s attitude towards the mother in this regard is quite “extraordinary”. To suggest for example that the mother would purposefully slam the children’s fingers in the doors and leave them unattended is quite preposterous. The allegations are not only completely without substance but are completely inconsistent with the orders he seeks. Furthermore, the fact that the father has only recently attended Court to have the children placed in his care shows that he continues to have no insight into the impact on the children of being removed from their primary carer in the past. Adding to this is that the father conceded he sought the IVO, not because he was in fear, but because he wanted the mother to stop discussing matters with the children. Again, this appears to be a strategically based concern rather than one relating to the children’s best interests.
I have therefore found that the I find the orders that are in the best interests of the children are those proposed by the mother.
The orders proposed by the mother provide for substantial and significant time as defined in the Act, in that they will enable the father to have weekend and midweek time, and to be involved in the children’s school and some extracurricular activities if he is available. I am confident the father will be able to maintain a meaningful relationship with the children with this apportionment of time, as he has done so with far less time in the past. I am likewise confident that the mother will continue to foster that relationship going forward.
I will also make the orders as sought for equal shared parental responsibility which the parties asked the court to make by consent. Whilst the parties have had times where they have been unable to communicate effectively, the bundle of texts during 2022 show that they have at times been able to work together for the benefit of the children.[38]
[38] Joint exhibit 3
Having made such an order, the court must then consider whether it is in the children's best interests to spend equal time with each of the parents and/or substantial and significant time and whether in either case, such arrangements are reasonably practicable. Although I am not asked to make orders for equal time, I have considered and rejected this as not being in the children’s best interests given the findings I have made in regards to risk. However, as already stated, the mother’s proposed orders provide for substantial and significant time. For completion I have also considered each of the matters in s 65DAA(5) of the Act including the distance between the parties and the impact on the children and find that the orders would be reasonably practicable.
In regard to the orders otherwise proposed by the parties, there remained the following discrete issues:[39]
·School holidays;
·Overseas travel periods;
·Location of changeover; and
·Attendance of the parties at medical consults.
[39]Joint exhibit 2.
In regard to the long summer holidays the mother proposed week about, unless the children were travelling overseas when it could be two weeks. The father proposed one week followed by two weeks each and then another week. The mother argued that this proposal was not in the interests of the children to have such long periods but acknowledged the inconsistency between regular long summer holidays and her proposal for overseas travel. It was submitted on the mother’s behalf that this was a balancing act given the children have extended family overseas and the longer period would enable the children to visit them.
Nonetheless, it would appear that if the children can handle two weeks overseas they could otherwise manage up to two weeks if they remain in Australia and half of each term holiday. Furthermore, the children had a block of time in August 2023 of five nights as well as extended time in the long summer holidays prior to trial without any significant concerns being raised. In terms of the long summer holidays I propose to make orders sought by the father which were referred to as a “1,2,2,1” arrangement. I was not addressed as to what should happen for the remainder of the holidays but in my view the children should remain in or return to the mother’s care at that time so she can start preparing them for the new school year.
In regard to periods of travel overseas, the mother proposes these be for up to two weeks and the father proposes three weeks. I am of the view given all of the evidence that the mother is best placed to determine what is in the best interests of the children’s emotional wellbeing. The father has demonstrated little if any understanding in this regard. I accept the submission put by the mother’s counsel that the evidence demonstrated that the mother was “empathetic, nuanced, child focused and made concessions against her interest”. The mother believes that it would not be in the best interests of the children to spend three weeks away from her and I accept that evidence.
In terms of changeover, I note that for the most part changeover will occur at school. Where it does not, the mother proposed that it occur at Hungry Jacks whilst the father proposed it occur at the parties’ residences. Although there has been no ongoing conflict between the parties at changeover the mother says she is still concerned about the father’s hostile attitude to her. The mother believes this indicates the father has not moved on from the end of the relationship and that he may well use changeover as an opportunity to further harass her. The mother points to the strange incident in the Family Report in which the father was observed by an admin officer to be lying at the back of the mother’s car with his head “partially obscured under the rear bumper”.[40] The father’s version of events is that during a break in the assessment he just happened to accidentally drop his phone and keys and was looking in the bush for them.[41] Although I am unable to ascertain exactly what the father was doing, I can understand why the mother would remain concerned about the father’s actions.
[40] Family Report prepared by Mr D, paragraph 69.
[41] Family Report prepared by Mr D, paragraph 70.
Furthermore, I accept the submission that the father’s trial affidavit and oral evidence demonstrated an attitude towards the mother that was “toxic, hostile and unrelenting”. I find there is a real possibility as a result that the father could use changeover as an opportunity to further harass the mother.
Accordingly, changeover shall remain at Hungry Jacks which is a public place and likely to have CCTV cameras. For the same reasons I am going to restrain the father from attending any medical or allied health appointments of the children at which the mother is in attendance.
Otherwise, I will make the remainder of the proposed orders of the parties by consent.
For all the aforementioned reasons, I make the orders as set out at the beginning of this judgment.
I certify that the preceding one hundred and twenty-seven (127) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 26 March 2024
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