Brodgen and Brogden - [2019] FamCA 666

FAMILY COURT OF AUSTRALIA

BRODGEN & BROGDEN

[2019] FamCA 666

FAMILY LAW – REVIEW OF SENIOR REGISTRAR DECISION – Where the mother seeks orders for time with the father to be suspended – Where father seeks, without admissions, supervised time with the children – Where documents produced indicate the children have a sustained and serious fear of the father – Where risk of psychological harm is too high in his care – Where that risk and their fear has not previously been ameliorated by being in the company of trusted adults – Where supervised time is therefore not appropriate – Orders made for suspension of children’s time with the father.

Family Law Act 1975 (Cth) s 60CC(2)
APPLICANT:	Mr Brogden

RESPONDENT:

Ms Brogden

INDEPENDENT CHILDREN’S LAWYER:

Ark Law Lawyers

FILE NUMBER:

SYC

2521

2019

DATE DELIVERED:

17 September 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

6 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gillies SC

SOLICITOR FOR THE APPLICANT:

Rivera Legal

COUNSEL FOR THE RESPONDENT:

Mr Givney

SOLICITOR FOR THE RESPONDENT:

Mcgrath Dicembre & Company

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ark Law Lawyers

Orders

IT IS ORDERED, PENDING FURTHER ORDER

That all orders providing for the father to spend time with the children X born … 2007 and Y … January 2010 are suspended.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brogden & Brogden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2521 of 2019

Mr Brogden

Applicant

And

Ms Brogden

Respondent

REASONS FOR JUDGMENT

Mr Brogden (“the father”) and Ms Brogden (“the mother”) are the parents of X born in 2007 and Y born in 2010.
The parents separated in January 2012 and the children have since lived in the primary care of the mother.
On 24 April 2019 the mother filed an application to suspend the children’s time with the father, alleging family violence towards her and violence in the presence of the children.
On 8 May 2019, Senior Registrar Campbell, on the application of the mother, suspended the time the children spent with the father and appointed an Independent Children’s Lawyer (“ICL”) for them.
On 20 June 2019, the Senior Registrar made interim orders continuing the suspension of the children’s time with the father.
The father has filed an application to review the decision of the Senior Registrar. That application is opposed by the mother and by the ICL.
The matter proceeds as a hearing de novo on the papers before me without cross-examination. Where there are issues of fact it may not be possible for them to be finally determined.

BRIEF HISTORY

The father and the mother married in 2006.
X was born in 2007 and Y in 2010.
The parents separated in 2012.
The mother formed a relationship with Mr B. The mother and Mr B have a child, Z.
The father and Ms C commenced a relationship in 2013. Ms C has two children, W aged 11 years and Q aged almost nine years. Ms C’s children lived with her and the father for eight nights a fortnight.
The father and Ms C separated in 2019.
At the time the proceedings were instituted, the children spent time with the father each Wednesday from after school until school on Thursday; each alternate weekend from Friday afternoon until Monday; for half of school holidays and on special days. That time was spent in the home where the father, Ms C and her daughters lived.

THE HEARING

The father relied on two affidavits sworn by him on 7 May 2019 and 4 September 2019 and two affidavits sworn by the paternal grandmother sworn on 7 May 2019 and 2 September 2019.
The mother relied on three affidavits sworn by her on 18 April 2019, on 18 June 2019, and on 3 September 2019 and an affidavit of Ms C sworn on 18 June 2019. Ms C is the father’s former partner.
The father denies the mother’s allegations in relation to violence. It is his case that the children and he have a loving relationship and that the children are happy in his care and enjoy their time with him. He tendered video recordings of the children, made by him, showing the children as relaxed and enjoying his company. I accept that they depict the children appearing relaxed and happy in the father’s care.
The father denies the mother’s allegations of violence towards her or in her presence. He also denies Ms C’s allegations of violence towards her both when the children were present and when they were not.
It is not possible, in an interim hearing, to determine what occurred in relation to each alleged incident. However, if it is ultimately found that the father was violent, as the mother and Ms C allege, serious concerns are raised about the appropriateness of the children’s being in his care.
Records produced by the police indicate that the father was convicted of the offences of stalking/intimidating with the intent to cause fear in relation to the mother, and of entering enclosed land. Those convictions were confirmed on appeal. Those convictions arose out of an incident at the mother’s home on 7 September 2017.
Also arising out of the incident, an Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the mother after defended proceedings.
Further charges have been laid against the father in relation to the events of 29 January 2019 when Ms C alleges that the father pushed her causing her to fall down the stairs. An ADVO has been made for the protection of Ms C. Those matters are listed for hearing in December 2019.
Relevantly, the primary consideration expressed in section 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse or family violence.
With the exception of an incident on 7 September 2017, I will not attempt to summarise the allegations and counter allegations made by the parents. Rather, I propose to set out the evidence that is available from the documents produced by the police, the children’s psychologist Mr D, and the children’s school.
In relation to the incident on 7 September 2017, there is, in addition to the affidavit evidence of the parents, a video recording of part of the incident which was tendered in the mother’s case. That incident commenced with text exchange which started in the afternoon. The father wanted to pick up the children from school and have them overnight. 7 September 2017 was a Thursday and not a day when the children should have been in the father’s care pursuant to the relevant orders. The text exchange, which is set out in full in the mother’s affidavit, clearly shows that the mother did not agree. The mother asserted that she had agreed that the father could have the children on Father’s Day (the previous weekend) in exchange for her having them on her birthday on …. The exchange concluded:
Mother: ...Phone is going off. Do not come to my house.
Father: Tutoring is fine. I’ll get them after. Thanks.
Mother:[Mr B] will be home and i am very clearly telling you not to come to my house. It was fathers day and it was my birthday. One day swapped for another. stay with your wife. Do not come to my house.
(As per the original)
The father arrived at the mother’s house accompanied by the paternal grandfather. They entered the house uninvited. The mother was holding baby Z. The mother asserts that she attempted to film the incident and the paternal grandfather knocked the phone from her hand. She stumbled and fell. The paternal grandfather pinned the mother against the wall and put his hands around her neck. When he let her go, the father put his hands around her neck. Mr B took Z and the mother picked up her phone and started recording.
The mother called the police on her land line. The records produced by the police state that during the call, the father was yelling loudly enough for the operator to hear and the mother is heard crying.
The father and the paternal grandfather were arrested and charged.
The father deposed that he received the text messages set out above but went to the mother’s home with his father to collect the children. He deposed:
Realising the children would not be made available to spend time with me, I became highly distressed and upset. [The mother] has included video footage of the incident occurring that night. [X] and [Y] did not see the incident as they were at the back of the house. I feel highly embarrassed about my behaviour on that occasion, now reflecting and watching the video again...I was immediately remorseful and regretted my actions as it was out of character. I recognise that I was highly emotional in the situation, and at the time my response was over the top.
The recording made by the mother was tendered. It shows the father and the paternal grandfather inside the mother’s home. The paternal grandfather is attempting to calm the father who is screaming uncontrollably at the top of his voice at Mr B holding baby Z. His suggestion that the children could not have heard him is highly improbable.
The footage shows the father pushing past the paternal grandfather who twice succeeds in removing the father from the house, the father pushes his way back into the house to scream at Mr B at the top of his voice. The mother is audibly distressed on the phone to police.
It is reasonable that any one witnessing the incident, or hearing it, would have been very frightened.
On 20 September 2017 the school records note:
[Y] told me that she was frightened of visiting her father as he was very angry. She told me (about the incident on 7 September 2017) and also that her father always screams at them about their mother and they have to go to their rooms at the father’s place. She said when it is a thunderstorm [he] pushes her outside so she “toughens up”. She often complains of a stomach ache and comes to the office to sit with the office staff. [Y] is doing the Peaceful Kids Program… for her anxiety. [X] has already completed this program. Both the girls have been referred to the school psychologist [Mr D] for anxiety.
In September 2017, both children were referred to Mr D, who is a psychologist, by their general practitioner pursuant to a mental health plan. In relation to both children the reason for the referral was for management of anxiety in the context of a history of domestic violence / family conflict.
Mr D’s notes record that on 22 September 2017 Y told him that she was a little bit scared about seeing dad because she was unsure of what he was going to say this time. Mr D noted that Y said there was yelling between the father and Ms C every time they are there. Y recalled an incident where the father and Ms C were fighting and the father pushed the door on Ms C’s toe and it started bleeding. Y said that her father had smacked her three times and locked her in her room two times but that he had not smacked her for a long time.
In relation to his consultations with X Mr D noted that on 22 September 2017 X told him that she had seen the father on Wednesday for an overnight visit. X thought that her father loved them but was not sure. X told Mr D that she felt that her father had not done the wrong thing and she wanted to give him one more chance. Mr D noted:
-…they just want him to stop
-They just want him to act appropriately…
-Thinks that Dad does not love them because you are not [scared] of someone that loves you
-Does not think he is going to change
-Thinks that he will change if he recognises that he has the wrong thing
-Has done it her whole life.
(As per the original)
X told Mr D that two or three years ago her father had slapped her face because she said she wanted her mother. Mr D noted that X makes a lot of justifications about the father’s behaviour and that there are points where she is protecting him. Mr D noted “expressed that she loves her Dad but…”
Mr D noted that he gave X strategy of telling her father how she feels instead of telling him to stop. He noted “Needs to be confident with being able to say it to her Dad but feels a little scared to do it because of what he has done in the past.”
Mr D noted that X feels safe at school, at home and in public because she knows that her father will not do anything but she is scared when they go home because they are going to get yelled at.
On 27 October 2017 Y and X attended a session with Mr D together. Mr D noted:
-Dad is calling mother the ‘c’ word in front of the children.
-Dad was making threats to the children that he would smack them if they did not call him, children would be afraid that they would be locked in their room.
-Behaviours of locking the children in the room and smacked them over 10 times
-Y smacked really hard on the bottom last year
-Smacked across the face in Suburb F] o G Street] two years ago, smacked on the hand.
-Children do not want to go to father’s house anymore.
-On the weekend of the 23rd of September overheard him talking to Grandmother on the phone saying “kill the bitch”.
(As per the original)
On 4 November 2018 a teacher noted that Y was upset during her mathematics class. The teacher recorded:
[Y] said that she was upset because her and her sister were forced to write positive things about their father so he could prove to [Y’s] grandmother [the maternal grandmother] that both [Y] and [X] wanted to stay with him. [Y] said that her father threatened her and X and said he would hit them if they didn’t write the letter. When asked if he did hit either of them, [Y] said no. This incident occurred on Sunday 4th November when [Y] and [X] were staying with their father.
On 14 November 2018 both parents attended a parent teacher interview at the children’s school in relation to Y. The teacher recorded that the father interrupted and talked over the top of the staff members about how he wanted to have custody of the children.
On 24 November 2017 Mr D saw the children together. They told him that although they had not called the father a few times he had been “ok with that”. Mr D noted that X does not feel that the father is controlling her, she has been happy that he has not reacted negatively when he was not called.
Mr D noted that the children had said that the father is calling their mother very inappropriate names. They said they felt protected because they have people around like Mr D, their mother, Ms C and the school. X said that she was feeling more confident and sticking out for herself more and that she felt that her father had made improvements with his behaviour.
On 22 February 2018 Mr D saw the children together. They reported that there had been no yelling at dad’s and that he was not talking about their mother. Y told Mr D that she was still a little bit scared of the yelling. X said that their father was still arguing with Ms C which highlighted to X that although their father had made some changes it was still possible that he could be aggressive towards Ms C.
On 9 March 2018 Mr D noted that both of the girls are struggling with their father doing what he wants to do and not so much what they want and he reminded them to speak out for themselves telling them that Y needs to use her words more and telling dad how she feels.
On 31 May 2018 the school counsellor recorded that X had been sent to the office in an extremely distressed state the day before suffering from stomach cramps crying and distressed. The counsellor noted:
She kept saying she wanted her father to stop.
She said her father wanted “even time” with her mother and she was scared of her father. Her father keeps calling her mother the “C” word and she doesn’t like it. She asked her father why is he getting so angry all the time?
[X] reported that her father said he’s not going to stop until he gets what he wants. [X] said he gets angry when they are away with their mum at the weekend and the girls don’t call their father. She said she’s frightened of her father because he tried to strangle her mum. She said that [Y] and I are really scared. One time my dad slapped me across the face for no reason. Another time he got really mad when driving the car (this was the Sunday before the NAPLAN) and he put his head on the steering wheel and closed his eyes and kept screaming. [X] said she was so scared of crashing that she took hold of the wheel with one hand which made him even angrier. She was crying when telling me this and said “What was I supposed to do I’m just a kid and I cant [sic] drive a car and the way he was driving I thought we would all be killed”.
[X] said she just wants to be a kid and didn’t want to worry about this all the time. Every other kid doesn’t have to worry about a father like hers.
[X] repeated that she is sick of her father’s behaviour towards and she also has to protect her little sister. She said her father treats his partner disgustingly, making her sit on the floor and the kids sit on the bed.
She said they were always fighting and screaming.
She said she spends a lot of time in the toilet with cramps and anxiety. She is worried what will happen this weekend with the first Holy Communion. She knows dad is undecided on whether to take her sister or not and said to just bring the f ---dress. [X] doesn’t want her sister to make her communion like this. She doesn’t want her mother or grandmother to have to go through being called the names her call them [sic]. Her father rings her mother from the partner’s phone and abuses her mother. She cant [sic] ring her mother when she is distressed because her father checks her phone all the time and get really angry if she is caught ringing her mum.
[X] said her mum is also really scared and she just wants to be a kid and not have to deal with all this. [X] was inconsolable. She wasn’t sure if her father was picking her up in the afternoon or not. She didn’t want me to tell anyone because it would make things worse for her and her mother.
(As per the original)
On 7 June 2018 a teacher recorded that Y:
…came up to me in the playground today looking very said and said “Dad filmed them this morning and she didn’t like it”. He asked, Did mum take the phone I gave you off you?” She didn’t want to say anything because she loves her mum and didn’t want to get mum into trouble.
Dad said, “You have to do this it’s for your own good. You have to do what I say.
[Y] said she just stood still then started to cry. Dad said, “I’m the best daddy in the world” Always remember this day and what I did. Remember the day I’m the best supper daddy in the whole entire world. Remember why your mum is so bad.”
[Y] said, “I’m scared of my dad I don’t know what he is going to do. I have to go to his house otherwise he gets so mad he will come to my mum’s door and try to strangle my mum like he did before when she was holding baby [Z]. If [Mr D] calls him I’m worried he will get really really angry and I don’t know what to do.”
(As per the original)
On 7 December 2018 the deputy principal recorded:
[Y] and [X] both arrived at the swimming carnival with their mother… and little sister. I saw [X] near the marshalling area duringf [sic] the early races of the carnival and asked her which races she would be participating in. She told me she would like to participate in the 50m events however her dad had not arrived yet and he would be angry if he missed her race. Instead she was going to participate in the 25m events later on.
[The father] arrived in time to watch both [X] and [Y] participate in their events. He appeared in a good mood and was hugging and congratulating them after their races. [The mother] was there too and although [the parents] did not sit together they appeared to be getting along.
I was sitting near the canteen area during the final races of the carnival. I observed [the father] walking towards the exit holding [Y’s] hand on one side and [X’s] on the other. [The mother] was following at a distance with the younger sister. [The mother] stopped near the wading pool and was beckoning with her hand for the girls to come back to her. As [the father] walked past I noticed that he was holding the girls tight using his hand and forearm. [Y] was trying to turn around and go back to her mother. She looked at me as she walked past with a frightened look on her face. I asked [the father] if everything was ok. He replied “Yes, the girls are coming outside to say goodbye to me at the front. [The mother] will catch up to us”. I noticed that []X had tears on her cheeks. He was still holding them tightly and leading them outside.
I looked over and saw [the mother] stopped over at the wading pool. I walked over and asked if everything was ok. She said that it wasn’t, that it had been a good day but now he has ‘turned’. [The mother] said the girls are supposed to go home with her today but [the father] is taking them out the front and wants her to follow. She said she will not go out there to him because it would put her youngest daughter in a dangerous situation as there had been violence in the past. I offered to walk to the entrance with her and see where [X] and [Y] were.
We walked to the entrance of the complex. [The father] was at the bottom of the stairs with the girls. [The mother] and I stayed at the top of the stairs. When he saw us, he said “Come down here… so I can say goodbye”. She said “No, I’ll wait up here. Girls, say goodbye and come back inside. We’re not going yet.”
[The father] then looked at me and said, “I don’t care, document what you want.”
He then gave both of the girls a hug and kiss. He put his mouth near Y’s ear and said loudly “Don’t listen to what your mum says, I love you with all my heart.”
The girls stood at the bottom of the stairs not sure what to do. They looked up at their mother and she repeated “Come on girls. Everything’s alright”. As they walked up the stairs [the father] called out approximately 3 times “Don’t listen to what your mum tells you, I love you with all my heart”.
[The mother] and the girls walked around the corner and out of sight. [X] began crying and [Y] had her head down with a worried expression. [X] said that her father had their ribbons that they had won in the swimming races and would not give them back because he wanted them for his house.
(As per the original)

On 11 February 2019 Y’s teacher noticed that Y was withdrawn and asked her at recess if everything was all right. Y said:
I’ve been at my dad’s this weekend and my dad and my step mum are fighting a lot and I don’t like it. I am also missing my mum because I’m not allowed to call her or text her or speak to her when I’m at my dad’s.
On 19 February 2019 [Y’s] teacher recorded that she was nervous and reluctant to go to her reading group and [Y] told the teacher that reading brought back bad memories of when she did her NAPLAN last year and she got bad results and her dad called her dumb and told her that she needed to repeat year 3.
On 6 March 2019 Y’s teacher recorded that Y had been crying. Y said to her teacher, inter alia, “my dad doesn’t care about [what’s happening with] my nanna because she just hates [the maternal family]”. Y said “I just wish my mum and dad where together again because then all the fighting would stop”. She said “my dad blames us for him and my step mum splitting up and now we have to do all the shopping and the cleaning”. And “last year my dad hurt my baby sister when he came to our house and banged through the door”.
The teacher noted that Y was still unsettled at lunch time. The teacher noted:
She said that “there’s lots of stuff going on with my family and no one really knows what happens when we go home from school”. [Y] said to the girls that her Dad sometimes gets angry and shouts and that she is afraid of him. [Y] said she went to talk to her sister at lunch time because she is the only one she can speak to because her Dad doesn’t listen and just gets mad.
[Y] said that she did not want to go to her Dad’s house this afternoon because she felt scared of him.
Y’s teacher noted:
[Y] also said that she knew there was a “law” that her dad isn’t allowed to pick her up from school, only opposite Wednesdays. She said “I am afraid that he’s going to do something”. She said “I sometimes see my dad at my Nonno’s house and I always see him places and I am afraid that he is going to come and just grab me one time.
On 8 March 2019 Y told her teacher that she was afraid of her father and didn’t want to go home. Y said that her father blamed the children for the split between Ms C and him.
On 13 March 2019 X told a member of school staff that she was frightened to go to her father’s place as her step mum was no longer there to protect her. X said that her father had pushed her step mother down the stairs and her stepmother had packed up and left.
On 18 March 2019 Mr D wrote a report to the general practitioner stating:
[Y] initially presented with concerns and worries about her Father’s behaviours when she visits him. Many of [Y’s] concerns appear to mimic those of her sister [X’s]. [Y] would express that she was scared of her Father when he yells. Discussions around not visiting her Dad occurred but [Y] would worry about how he would react and how he would blame their mother for them not wanting to go. I worked with [Y] on her protective behaviours also and doing what is in her best interest. [Y] was not willing to be more resilient or assertive with her Father. [Y’s] sister [X] appears to protect [Y] when they visit by telling her Father not to yell or say inappropriate things.
On 18 March 2019 Mr D wrote a report to the general practitioner in relation to X stating:
[X] initially presented with anxiety and concerns regarding contact with her father. [X] reported that her father would get angry and yell at her, she also reported that he would say inappropriate things about their Mother. [X] was never fearful about going to her Father’s home but more concerned about him getting angry. I helped [X] with developing protective behaviours and talking to her Father about how his behaviours impact on her. I worked with [X] on becoming more resilient and assertive.
Unfortunately I feel that []X has a habit of protecting her Father and thinking that he is going to change his behaviours and history has shown he has not been able to do this.
I did not complete a helpline report as [X] and her sister were not as [sic] significant risk of harm. [X] was concerned how her Father would react if I put in a helpline report. I had explained to [X] that if I was not [sic] put a helpline report it in [sic] would be to keep her safe and how her Father reacts should not be her concern.
On 19 March 2019 Y’s teacher recorded that Y approached her looking anxious and said she was worried about not going to surf awareness because she and her sister were having a meeting with Mr D. Y said that she was worried because “my dad doesn’t like it when we don’t go to surf awareness and he’s going to get mad if we tell him we didn’t go”.
On 19 March 2019 a member of school staff spoke to X. The staff member recorded:
[X] spoke about the fact that she loves her dad and if it wasn’t for him and her mum she and [Y] wouldn’t be there. She stated that when dad wasn’t angry he was a good person.
She then went on to say that if [Y] didn’t go with him, he would be really angry and could take it out on her or her mum. [X] said that she and [Y] would talk together away from her mum at home about how they were scared for their mum’s safety.
[X] then recounted a time last year when dad came to their house and attacked their mum and about how scared they were. [X] stated that her grandfather was with her dad and that her father gets his anger issues from his dad and that her grandfather has no respect for women. She confided that he spent a few hours at police station but was released. The next time she saw her dad, he picked her up from school. She said he was all smiles in front of the school community but then started tightening his grip on the girls’ wrists, when they got closer to the car.
[X] explained that she makes sure she greets her dad with a big smile so he won’t get angry. She said she thinks his outbursts are in patterns, she was concerned that he was ready for another outburst this weekend. [X]was going to netball this afternoon with [another child’s mother] and she was worried that her father would be angry about this.
On 19 March 2019 Y told Mr D that her father had separated from Ms C and that she was a bit more stressed because Ms C was not there. The notes record:
Dad is screaming.
Does not feel safe at Dad’s.
Is seeing visions of her Dad around the school, worried that he knows that she no longer wants to see him.
Feels that [X] is falling into the trap of yelling back like [Ms C] used to
“[X] wants to make him better”.
Will say yes to dad just to make him happy so that he does not get angry.
“If you girls don’t give me even time” “I always get what I want”
On 19 March 2019 Mr D noted that X told him that the father had pushed Ms C down the stairs because she stood up to him. Mr D noted that X was totally confused about what to do and recorded “Not scared of Dad when he is good but scared of his [sic] when he gets angry Has been good for a while now and now that [Ms C] is gone I think he won’t be as angry anymore”.
On 19 March 2019 Mr D made a report to the Department of Family and Community Services (“DFCS”) in which he stated:
Both the girls reported that their father pushed his ex-partner [Ms C] down the stairs after and [sic] altercation and [Ms C] has now left the relationship and is in hiding in fear of what he might do. Both the girls have reported to me that their father would consistently yell at [Ms C] and them and they have seen other forms of physical abuse towards [Ms C]. [X] reported to me that someone [sic] they will be huddled in the corner and their father would be 1cm from their face screaming at them. They reported that their father has broken down doors and “trashed” their room. There were reports of the children being locked in their rooms when their Father was angry. [Y] reported to me yesterday that she does not want to see her Father anymore because she does not feel safe. [X] is still willing to see her Father but feels that she can still help him. She has expressed that he is fine when he is happy but scary when he is angry. Although [X] witnessed [Ms C] being pushed down the stairs she is still willing to see her Father because he has never physically harmed her like that. [X] is convinced that her Father would never do that to her but she has been conditioned to think that his aggressive and violent behaviours are ok because he goes through periods of being “ok”.
Mr D reported to DFCS:
Both children are suffering from anxiety and trauma. [Y] is having visions of her Father at school because she believes he already knows that she does not want to see him anymore. [Y] is convinced that her Father will come after her if she does not go.
I am providing counselling support for [X] and [Y]. However their Father is not aware that I’m seeing them due to concerns they have if he was to find out. Both children are scared of their Father when he gets angry.
On 20 March 2019 Y’s teacher found a note in Y’s maths book on a Wednesday when she was due to go to her father’s house, the note read “I want my mum please before I cry I need my mum please that’s all I want. Please please please”.
On 22 March 2019 one of Y’s teachers noticed that she appeared to be quiet and said to her “What is wrong, I want to help you”. Y wouldn’t tell her teacher what was upsetting her and said to the teacher “You can’t help me, no one can help me”. The school noted that 22 March 2019 was a day when Y was due to go to her father’s home for the weekend.
On 27 March 2019 the school recorded that Y told her teacher:
I don’t want to go to my dad’s house because I am scared of him.
My dad is never nice with us he always yells at us. I am scared to not go to his house because [X] might still go and I don’t want her to get into trouble.
On 28 March 2019 the school recorded:
[Y] came up to [her teacher] and apologised for not doing her nightly reading for the previous night. She said “Sorry I couldn’t do my reading last night because my dad went spastic at us”… [Y] said that her dad had yelled at them (her and [X]) calling them “devils” and “troublemakers” because they told their Mum… that last time they were at their dad’s house, their grandfather had come into the bathroom while they were taking a shower and that her grandfather is weird and has “weird friends”. [The teacher] reminded [Y] that she has a right to feel safe. [Y] said that she had spoken to her mum and that she isn’t going to her dad’s house on Wednesdays anymore.
On 3 April 2019 Y told her teacher that she was frightened to go to her dad’s house that afternoon. The teacher said to Y that if she felt unsafe or her father did anything to her that she needs to get to a safe place and call for help. Y said that wouldn’t work because “dad puts child locks on the house doors so she can’t get out and takes X’s phone off her so she can’t call the police”.
On 9 April 2019 the school prepared a report in relation to the incident on 4 April 2019. The report states:
[The deputy principal] was walking down to the cricket nets when she saw [Y] and [X] talking to their father through the large black gate at the bottom playground. [The father] was speaking in an animated way that appeared aggressive and the girls had concerned looks on their faces. When [the deputy principal] approached, he started smiling at the girls and saying loudly, “My beautiful girls, I love you so much’ then looked at [the deputy principal] and said “It’s my birthday. I just wanted to see the girls for my birthday”. [The deputy principal] replied “happy birthday. Are the girls ok?” He said they were fine. [The deputy principal] instructed them to say goodbye and go back to playing.
[The deputy principal] moved a short distance away and [the father] appeared to speak loudly again. She overheard him say, “Tell your mother …” She went immediately back over and saw that the girls were both visibly crying. [Y] ran away very distressed. [X] stayed to talk to him until [the deputy principal] said the bell has gone you need to move up to class now.
[Y] had run up to her classroom and was in deep distress and crying with [the teacher]. She was crying so much she had trouble catching her breath. [The deputy principal] asked her to come down to the office to talk about what had happened. [X] came too.
In the office [Y]said the following:
-Her father was yelling at them but started speaking nicely when [the deputy principal] came over
-He saw her on the playground and beckoned her to come over by saying “Hi my beautiful girls”.
-He asked why he wasn’t picking them up from school or netball this afternoon because it was his birthday
-He said that your mum is doing this and it is the work of the devil
-He said he didn’t want to have dinner with them because why would anyone want to be with them when they don’t stick up for him with their mother
-He said that they should stick up for him because that is the right thing, that’s God’s work but they are doing the devils [sic] work
[The deputy principal] asked [X] what had happened but she said everything was fine and she didn’t know why [Y] was upset. [The deputy principal] pointed out that she was also crying. [X] responded “I don’t want to tell you because it will only make it worse. I need to keep him happy because he is my dad and I love him”. She moved to the sick bay where she sobbed loudly. [Another staff member] spent some time talking with her to calm her down.
(As per the original)
On 12 April 2019 the school records note that whilst Y was walking with her teacher, holding the teacher’s hand, and her class in the street another student told Y “your dad is over there [Y]”. The teacher observed the father on the opposite side of the road walking with two other men. He continued walking and was watching Y. The teacher recorded “Upon seeing her father, Y froze in her place and began to cry saying she was scared and that she had seen her dad last night when she was out to dinner with her mum and sisters. She said that they had to abandon their dinner plans because her mum was scared that her dad was going to grab her and X.”
On 6 May 2019 X spoke to Mr D about the events on her father’s birthday. Mr D noted:
They called Dad and sing him happy birthday.
Face time - Talking but in a mean way towards [Y] and [X]. [Y] doing the face that she about to cry.
Mum ended the call.
Dad came to the school during recess or lunch and started talk in a mean way.
Saying things about mum.
“What your Mum is doing what is wrong.”
“You girls should be seeing me on my birthday.”
Wasn’t as scared because there was a gate in the way.
Think that Dad would yell but didn’t because other kids were around.
[X] and [Y] crying so much they went to the office.
“He would have just screamed at us” - expresses in such a way that it is normalised and ok.
X told Mr D that after they had had dinner they left the restaurant and the father took the girls to his car telling them that he would take them to their paternal grandmother’s home. X told Mr D that she was afraid and started to think that their father was going to kidnap them. X said she was trying to signal to Y not to get in the car. Mr D noted:
Started to talk about always having to talk in those situations while her sister does not say anything. Does not want to be the one that always has to talk in those situations when she is so scared.
Feels pressured to lie to Dad in those situations.
Dad wanted to take the girls home and the girls did not want to go.
[Ms H] turned up in her car and the girls went home.
[Ms H] pressuring the girls to see their Dad.
On 6 May 2019 Y told Mr D that she feels that she can’t go anywhere in the local suburb because she doesn’t feel safe in case she sees her father. Y reported to Mr D that she sees her father’s car and his bike during her lunch time and she is scared and worried that he is stalking her. Y said that she did not feel safe at school and would rather be in her classroom during recess and lunch because her father can’t come. Mr D noted in relation to Y:
Is becoming paranoid about seeing her Father. Wondering if someone else is using her Dad’s car.
Can’t think about her work, looking out the window, when will she see her Dad again, what will he do.
Teacher will look at her and someone will have to tap her on the shoulder because she did not notice it was happening because she was looking out the window thinking about her behaviour.
Is becoming hyper-vigilant - seeing bald men walking around wondering if it is her Dad.
Is telling herself to stop looking out the window, is pinching herself when she wants to but now the pinching is hurting.
Is seeing Dad in her dreams.
Visualisations don’t appear to be working, [Y] expressing that Dad comes into the visualisations and she can’t re-focus.
Even at home not feeling 100% safe because Dad is outside and will follow them.
Dad speaks inappropriately about younger sister [Z].
Thinking is consumed with her Dad and impairing her functioning at home and school.
On 15 May 2019 X told Mr D that a part of her “feels a little guilty and she does not like feeling guilty” (I infer because she is not seeing her father). X feels “bad for [her father]”.
X said she was having trouble concentrating at school because she’s focusing on something else which is generally how she is feeling and that she had really bad thoughts such as that if her mother died she would have to live with her father and her father would belt them. X told Mr D “every single dream that I have has Dad in it, it turns into a nightmare –Mum and Dad fighting”.
X told Mr D of an occasion when her father was yelling at her and saying inappropriate things about her mother and she walked into the street crying. X told Mr D that she has thoughts about sometimes kicking her father and then worries about her father being stronger and hurting her and kicking her down the stairs and killing her. Mr D noted his concerns about the level of trauma which is being experienced by X.
On 15 May 2019 Y reported to Mr D that she was not looking out the window anymore and he noted her hypervigilance was lower however Y was still having dreams about her father. Mr D noted that Y was happy because she did not have to see her father anymore. Mr D noted that Y had a lot of questions that cannot be answered including whether she would have to see her father again.

DISCUSSION

There has been no opportunity for any expert evidence or the appointment of a single expert in relation to the children. No doubt, when the matter comes to trial, such evidence will be available and will afford assistance to the trial judge in examining and interpreting what the children are saying to their school and to Mr D.
However, at this time, and in interim proceedings, it appears that the children are expressing views and fears to both their school and to Mr D in relation to time with their father. I am not in a position to determine why that is so. One explanation is that they have, in fact, experienced him as frightening and violent towards their mother and towards Ms C.
The need to protect the children from psychological harm caused by exposure to family violence is a primary consideration and to be given greater weight than the benefit to the children of having a meaningful relationship with their father.
At the present time, the children’s expressed wish is not to spend time with him.
The nature of the children’s relationship with their father will be the subject of expert evidence in due course. The evidence available to me, gleaned from what they have said to third parties, is that they experience him as frightening. X experiences her father as a person whom she needs to protect and to placate.
I accept that the children love their father and that they enjoy activities with him. However, the effect on them when he is angry, with another adult or with them, is such that it is not in their interests, at this time, to spend time with him.
On behalf of the father, senior counsel submitted, without admissions, that the contact should be professionally supervised. I do not accept that, at this time, the children’s concerns could be allayed by the presence of a person who is a stranger to them. Whilst I accept that it is likely that the father will behave appropriately towards the children if he is being supervised and the supervisor is providing reports, supervision will not alleviate X’s need to be responsible for her father’s behaviour or Y’s fears. On 12 April 2019 when Y saw her father, as described in paragraph 71, she was with her teacher who is, presumably, a person whom Y trusts but her reaction nevertheless was to freeze and cry.

The orders which provide for contact between the children and the father are suspended.

I certify that the preceding eighty six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 17 September 2019.

Associate:

Date: 17/09/2019