Brogden & Brogden
[2022] FedCFamC1F 218
•7 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Brogden & Brogden [2022] FedCFamC1F 218
File number(s): SYC 2521 of 2019 Judgment of: HARPER J Date of judgment: 7 April 2022 Catchwords: FAMILY LAW – PARENTING – Final parenting orders – Where final orders had been made by consent in 2012 – Where the father began agitating for more time with the children soon after consent orders made - Mother has been primary carer since 2012 – Where orders were made by senior registrar suspending time with the father – Orders were confirmed on review – Children have not spent time with the father since April 2019 – Mother seeks sole parental responsibility and no contact – ICL supports order for sole parental responsibility and children to spend time with father in accordance with their wishes – Family violence – Finding made that father has perpetrated family violence – Where children fear the father – Finding that the father has subjected children to psychological abuse by causing psychological harm – Father previously found guilty of intimidation, although no conviction entered – Where father demonstrates obsessive and narcissistic personality traits – Father demonstrates inadequate insight into the extent to which his own behaviour has been unacceptable – Where father believes mother has forced children to express a false narrative about him – Where father’s next partner also makes allegations of family violence – Where father relied on evidence by two treating psychologists – Where both psychologists advised unsupervised contact was appropriate – Advice was given from the perspective of the father – Neither psychologists have the expertise to express an opinion on the question of supervision – Limited weight given to evidence given by father’s treating psychologists – Intractable conflict between the parents not conducive to order for equal shared parental responsibility – Order for sole parental responsibility to the mother – No dispute the children should continue to live with the mother – Although father’s domestic circumstances less complicated, risk to children continues – Risk that father may relapse into angry or abusive past behaviour – No order for time made – Children to spend time with the father in accordance with their wishes – Family therapy ordered. Legislation: Family Law Act 1975 (Cth) Div 12A, Pt VII, ss 4, 4AB, 31, 60CA, 60CC, 61C, 61DA, 65D(1), 65DAA, 65DAB, 69H, 69ZT
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 8, 9, 25, 51, 149
Cases cited: Alam & Sayid [2021] FamCA 564
Blaze & Grady (2015) 54 Fam LR 172; [2015] FamCA 1064
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Brogden & Brodgen [2019] FamCA 666
Brogden & Brogden [2021] FamCA 642
Champness v Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208
Damiani & Damiani (No 2) [2009] FamCAFC 215
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Hazeldell Ltd v Commonwealth (1924) 34 CLR 442; [1924] HCA 36
Hoggard & Hoggard [2022] FedCFamC1F 98
Jess & Garvey [2018] FamCAFC 44
M v S (2007) FLC 93-313; [2006] FamCA1408
Maldera & Orbel (2014) FLC 93-602; [2014] FamCAFC 135
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall v Clark (2009) FLC 93-405; [2009] FamCAFC 92
New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26
Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398; [2012] HCA 25
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Vallans & Vallans (2019) 60 Fam LR 193; [2019] FamCAFC 260
Division: Division 1 First Instance Number of paragraphs: 200 Date of hearing: 17–21 January 2022 Place: Sydney Counsel for the Applicant: Mr Givney Solicitor for the Applicant: McGrath Dicembre & Company Counsel for the Respondent: Mr Jackson Solicitor for the Respondent: Rivera Legal Counsel for the Independent Children's Lawyer: Ms Goodchild Solicitor for the Independent Children's Lawyer: Ark Law ORDERS
SYC 2521 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BROGDEN
Applicant
AND: MR BROGDEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
7 APRIL 2022
THE COURT ORDERS THAT:
1.X born 2007, and Y, born 2010 (“the children”) shall live with the mother.
2.Ms Brogden (“the mother”) shall have sole parental responsibility for the children.
3.The mother shall consult with Mr Brogden (“the father”) about decisions to be made in the exercise of her sole parental responsibility as follows:
(a)The mother will advise the father in writing via email of long term decisions to be made for the children and all related information;
(b)Within fourteen (14) days, the father will respond to the mother in writing via email, providing his views and input, which the mother will genuinely consider; and
(c)The mother will advise the father in writing via email of her decision and the reason behind the decision.
Spend time with the father
4.The children may spend time with the father in accordance with their wishes.
5.For the purposes of Order 4, the parties are to take all necessary steps to facilitate time between the children, or either of them, and the father, in accordance with their wishes.
6.The children may contact the father by electronic means, including mobile device or email, in accordance with their wishes.
Family therapy
7.The father shall engage the services of a family therapist psychologist (“the family therapist”) to conduct family therapy for the parties and the children. Such family therapist is to be agreed between the parties and, failing agreement, to be nominated by the Independent Children’s Lawyer (“ICL”).
8.For the purposes of the family therapy pursuant to Order 7:
(a)The mother and father shall attend appointments requested by the family therapist;
(b)The mother shall do all things necessary to facilitate, encourage and deliver the children, to all appointments as required by the family therapist;
(c)The costs of the family therapy be paid by the father;
(d)The mother shall authorise the psychologist to contact the child’s psychologist Mr D should the family therapist wish to so;
(e)The family therapist be provided with a copy of the transcript of the evidence of Dr J, in addition to his Honours judgement.
Information
9.The parties provide to the other not less than 28 days’ written notice of any proposed change to their respective living arrangements including but not limited to any proposal for a person to commence living in the same residence as the mother or father and the children, whether that person be a friend, relative, partner, tenant or any other person.
10.Each party notify the other of any serious illness suffered by either child (and provide a medical certificate), and immediately it is practicable to do so, of any emergency admission to hospital or injury suffered by either child whilst in the care of the other party.
11.The mother shall forthwith provide the children’s school with a written authority that permits the school to provide the father with all information that it provides to parents in accordance with the school’s policy.
12.The mother shall forthwith provide the children’s treating doctors with a written authority that permits such medical provider to forward to the father all medical information referable to that child.
13.The father be permitted to contact the school that the children attend to request copies of any school reports, school circulars or notices which parents would ordinarily be expected to receive.
Restraints
14.Each party be restrained from denigrating the other party to, or in the presence or hearing of the children, or allowing any other person to do so.
15.The father be restrained from approaching within ten (10) metres of the mother.
Discussing court proceedings and disclosing court documents
16.The father be restrained from discussing the Court proceedings with, or in the presence or hearing of the children, or disclosing to the children any of the Court documentation, or allowing any other person to do so.
Travel and issue of passports
17.The mother have liberty to remove the children from the Commonwealth of Australia at any time, and to that end, the necessity for the consent of the father to the issue of passports to the children be dispensed with.
18.The costs associated with the issue of passports for the children be met by the mother.
Gifts and cards
19.The father be permitted to provide a gift and/or cards to the children for special days such as the children’s birthday, Easter, and Christmas, with such gifts and cards to be sent to the mother at a nominated post office box or provided to the children in the event they make contact with the father in accordance with these orders.
Other
20.Within seven (7) days of the date of these orders:
(a)The ICL shall explain the meaning of these orders to the children; and
(b)The mother is to take all necessary steps to make arrangements with the ICL for the purpose of enabling the ICL to explain these orders to the children, at a time and place nominated by the ICL.
Costs
21.In the event any party seeks an order for costs, application in the appropriate form supported by affidavit is to be filed and served within 28 days of these orders. Thereafter, if no application is made, there will be no order as to costs, and the provisions of s 117(1) of the Family Law Act 1975 (Cth) shall apply.
THE COURT ORDERS IN CHAMBERS THAT:
22.The document emailed to chambers on 20 January 2022 by the Independent Children’s Lawyer entitled “[Brogden] Parenting Orders (ICL Proposal)” be marked Exhibit “ICL2”.
23.The document emailed to chambers on 21 January 2022 by the Applicant Mother entitled “MOTHER’S PROPOSED MINUTE OF ORDER” be marked Exhibit “Q”.
24.The Respondent Father’s email to chambers on 21 January 2022 at 2.57pm be marked Exhibit “5”.
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 the pseudonym Brogden & Brogden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These are parenting proceedings between the Applicant Mother, Ms Brogden (“the mother”), and the Respondent Father, Mr Brogden (“the father”), in relation to the children of the relationship, Y, born 2010, and X, born 2007 (collectively: “the children”). As can be seen, X is presently 14 years old, turning 15 in 2022, while Y is 12 years old.
The parenting dispute and resulting litigation have a long history. The parties originally agreed final consent orders on 30 November 2012 (“the consent orders”). These orders finalised the parties’ property disputes, and provided for parenting orders and a binding child support agreement.
Since 2012, the children have lived in the primary care of the mother. The consent orders provided, in summary, for the children to spend a total of five nights each fortnight with the father, half of school holidays, and time on special occasions.
On 18 April 2019, the mother commenced proceedings in the Federal Circuit Court of Australia (as it then was), seeking discharge of the original parenting orders, sole parental responsibility, and for the children to have no contact with the father. The mother alleged verbal abuse and family violence by the father towards her and in the presence of the children, and that the children were fearful of their father.
The children’s time with the father was suspended on 8 May 2019 following an interim hearing before a senior registrar. An Independent Children’s Lawyer (“ICL”) was appointed on this date.
A review of this decision, heard by Rees J and delivered on 17 September 2019, confirmed the suspension of time: Brogden & Brodgen [2019] FamCA 666 (“the review judgment”). As will be explained more fully later in these reasons, Rees J’s review judgment was based, in part, on a substantial consideration of evidence of an incident on 7 September 2017, and the records from the children’s school between 2017 and 2019 containing evidence that the children feared their father because of his angry and abusive behaviours.
By consent, Dr J was appointed as the single expert on 14 April 2020. He produced a report dated 3 July 2020.
On 5 August 2020, the father filed an application in a case seeking interim orders for time with the children. The application was dismissed on 12 October 2020 by a senior registrar.
The father then filed a review of this decision on 20 October 2020. The matter came before me for interim hearing on 15 January 2021, where I made orders for the proceedings to be expedited.
The matter was listed for a final hearing in September 2021, however on 23 August 2021, I made orders vacating the September dates. This was due to ongoing lockdowns in the Greater Sydney Area caused by the Delta strain of the Covid-19 virus. In Brogden & Brogden [2021] FamCA 642, I explained that by reason of the nature of allegations of family violence made by the mother, an electronic hearing would be deficient in permitting a clear and fair assessment of the father’s evidence. The proceedings were relisted for five days commencing on 17 January 2022.
The children have not spent time with their father since April 2019, save for occasional chance meetings, and for the purposes of interviews with a court appointed expert in 2020, discussed at greater length later in these reasons.
In summary, the mother seeks, on a final basis, a continuation of no time with the father, whilst the father seeks a re-introduction of time with the children, beginning with supervised time, increasing ultimately to alternate weekends and every Wednesday night during school terms, and approximately half of school holidays. In her final proposed minute of order, the ICL proposes for the children to spend time with the father in accordance with their wishes.
BRIEF BACKGROUND
The parties commenced cohabitation in 2005, married in 2006, and separated on 30 January 2012. A divorce order was made on 17 August 2013.
From 2012 until April 2019, the children lived primarily with the mother, and spent time with the father in accordance with the consent orders.
The mother presently works as a part-time professional, working 30 hours per week. The father is a self-employed health professional. His business continues to trade successfully.
The mother commenced a relationship with Mr B in 2014, which continues and appears stable. Mr B is involved in the construction industry. In 2016, their daughter, Z, was born.
The father commenced a relationship with Ms C in 2013. This relationship ended in February 2019. It was common ground that although the father and Ms C went through a ceremony of unspecified form in City K in 2013, they never entered into a marriage recognised under Australian law. Ms C has two children with her ex-husband; W, aged 13, and Q, aged 11. During the relationship, W and Q resided with the father and Ms C for eight nights per fortnight. The evidence showed W and Q formed a close relationship with the children due to their similar ages.
It is unnecessary to detail more of the background here. The parties have been separated for a decade. The relevant history between 2012 and 2019, and then up to trial is most relevantly dealt with below under the statutory considerations set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
JURISDICTIONAL MATTER
The Federal Circuit and Family Court of Australia Act 2021 (Cth) (“new Act”) came into operation on 1 September 2021. The new Act continues in existence this Court, formerly the Family Court of Australia, as Division 1, and the Federal Circuit Court of Australia as Division 2 (ss 8 and 9). Section 25 of the new Act gives original jurisdiction to this Court by transfer from Division 2 (ss 25(1)(a) and (b)) or as “conferred…by any other Act” (s 25(1)(c)). Section 31 of the Act used to clearly confer jurisdiction in matrimonial causes and parenting proceedings under Pt VII. However, Pt IV of the Act has been repealed, including the former s 31, and the terms of s 69H in Pt VII have been amended to refer only to Division 2. This has created some lack of clarity, where none previously existed, as to the jurisdiction of this Court (Division 1) in matters filed in the Family Court prior to 1 September 2021. It is long established that it is the “first” duty of the Court to consider whether it has jurisdiction: Hazeldell Ltd v Commonwealth (1924) 34 CLR 442 at 446; Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398 at [54]; New South Wales v Kable (2013) 252 CLR 118 at [34]. Consequently, and bearing in mind this judgment will result in orders affecting the lives of children, I should express a view about jurisdiction.
First, I note that on 24 March 2022, orders were made pursuant to s 25 of the new Act transferring the proceedings from this Court, Division 1, to the affiliated court, Division 2, and back to Division 1 pursuant to ss 51 and 149 of the new Act. These orders may be made on the initiative of the Chief Justice of Division 1 and Chief Judge of Division 2. They may not be appealed. Although the position is not free from doubt, in the absence of any appellate decision from the Full Court providing clearer or different guidance, I presently accept this is a sufficient basis to be satisfied this Court continues to have jurisdiction in these proceedings.
Secondly, I have also had the benefit of reading the reasons of Aldridge J in Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208 at [6]–[37]. I note those reasons are consistent with the decision of Carew J in Hoggard & Hoggard [2022] FedCFamC1F 98 at [3]–[12], with regard to the effect of the Explanatory Memorandum to the amending legislation as an expression of the intention of the federal legislature. I respectfully adopt the reasoning of Aldridge J and his conclusions. In short, despite the absence of clear wording, having regard to terms of s 25 of the new Act, in light of the intention of the legislature as disclosed in the Explanatory Memorandum, and the approach to statutory construction in the earlier decisions relied upon in Cirillo, I embrace the conclusion of Aldridge J at [28]
…words should be implied into s 25 of the Federal Circuit and Family Court of Australia Act so as to make it clear that Division 1 acquired the jurisdiction in respect of matters filed in it prior to 1 September 2021, as was previously conferred by s 31 of the Family Law Act. The same result could be achieved by reading Sch 1, Item 36 of the Consequential Amendments and Transitional Provisions Act, which repealed s 31 of the Family Law Act, as being read subject to the words, that the repeal did not apply to matters currently before the Court.
CURRENT CIRCUMSTANCES
The mother and Mr B reside with Z, Y, and X in Suburb F, Sydney.
There is no evidence that the father has formed a new relationship since separating from Mr C. In April 2021, he moved out of the former matrimonial home into a new property, also in Suburb F. The parties thus all reside in the same area. The father has seen and approached the children several times in public at chance meetings. No incidents have arisen from this.
The parties maintain a binding child support agreement. The father currently pays $354.87 per week to the mother.
PROPOSALS AND ISSUES IN DISPUTE
In her Initiating Application filed on 18 April 2019, the mother seeks the following:
1.That Orders 22, 27, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42 made on 30 November 2012 be discharged.
2.That the mother shall have sole parental responsibility for the children [X] born […] 2007 and [Y] born […] 2010 ("the children").
3.That the father shall not be permitted to spend any time with the children.
4.That the father be restrained from approaching and/or contacting in any way the mother and the children.
5.That the father be restrained from approaching within 100 metres the mother's place of residence, any place where she works and the children's school.
6.The father pay the mother's costs of this Application.
In his Case Outline filed on 10 January 2022, the father seeks the following:
1.That the Final Parenting Orders made by Family Court of Australia on 30 November 2012 be discharged.
Parental Responsibility
2.That the parties have Equal Shared Parental Responsibility for the children, [X] born […] 2007 and [Y] born […] 2010.
Live with Orders
3.The Children live with the Mother
Spend Time Orders
4.Father spend time with the children, [X] born […] 2007 and [Y] born […] 2010:
(a) For the first three months from the date of the Orders every Saturday from 9.00am until 6.00pm, to be supervised by
(i) For the first six weeks, the professional supervising service [Contact Centre M] or in the alternative.[Contact Centre N], to be funded by the Father, and thereafter for the balance of the three month period
(ii) By the Father’s mother, [Ms O], thereafter.
(b) For four weeks, every Friday after school (3:00pm during holidays) until Saturday 6:00pm, thereafter;
(i) every Wednesday after school (3:00pm during holidays) until Thursday before school (9:00am during holidays); and
(ii) for two alternate weekends from Friday after school (3:00pm during holidays) until Saturday at 6.00pm, thereafter;
(c) For a further two alternate weekends from Friday after school (3:00pm during holidays) until Sunday at 6.00pm;
(d) Thereafter:
(i) During School Terms: Every alternate weekend from Friday after school (3:00pm during holidays) until Monday before school (9:00am during holidays); and every Wednesday night from after school on Wednesdays and concluding on Thursday morning
(ii) During School Holidays:
i. For Terms 1, 2, and 3 of the School Holidays for the first week of each holiday period from 3pm on the Friday of the last day of the school term, until 5pm on the second Monday of such School Holidays
ii. In Term 4 of the School Holidays for the first half of each Term 4 School Holiday in years ending in an even numbered year, and the second half of each Term 4 School Holidays in years ending in an odd numbered year,
oThe midpoint day of the Term 4 School Holidays shall be 8th January.
(iii) Children’s’ Birthday -from 2pm until 6pm if a weekend; and 3pm to 7pm if a weekday
(iv) Christmas Day- Where the children are spending Term 4 School Holidays in the first half of such holidays, the other parent shall spend time with the Children from 6pm on Christmas Eve until 2pm on Christmas Day
(v) Father’s Day, in the children are otherwise in the care of the Mother from 6pm the night before Father’s Day until the Monday immediately after Father’s Day before school
1. The children will spend time with the Mother on Mother’s Day if otherwise in the care of the Father from 6pm the night before Mother’s Day until the Monday immediately after Mother’s Day before school
Changeover venue
5.The changeover venue shall be the children’s school on weekdays, and [Handover Location L, Suburb F] on weekends and during school and public holidays.
Communication
6.That the Father and Mother henceforth provide to the other party all proper particulars of his/her residential address, mobile telephone, phone, email, contactable Skype details, and further that each party henceforth provide to the other party not less than 28 days' written notice of any change of residential address.
Notifications
7.That the parties provide to the other not less than 28 days' written notice of any proposed change to their respective living arrangements including but not limited to any proposal for a person to commence living in the same residence as the mother or father and the children whether that person be a friend, relative, partner, tenant or any other person.
8.That each party notify the other of any serious illness suffered by either child (and provide a medical certificate), and immediately it is practicable to do so of any emergency admission to hospital or injury suffered by either child whilst in the care of the other party.
9.That other than in the event of an emergency, the parties shall communicate with each other in relation to any variation of contact arrangements to the other not less than 48 hours prior to the scheduled contact.
10.The Mother shall forthwith provide the children’s school with a written authority that permits the school to provide the Father with all information that it provides to parents in accordance with the School’s policy.
11.The Mother shall forthwith provide the children’s treating doctors with a written authority that permits such medical provider to forward to the Father all medical information referable to that child.
Non denigration
12.That each party be restrained from denigrating or criticising the other party in the presence of either child.
Family Therapy
13.That the Independent Children’s Lawyer within 21 days nominate a family therapist to engage in family therapy for the (parent) parties and the children.
14.That the parties do all things necessary to participate in family therapy, such a family therapist be nominated by the Independent Children’s Lawyer.
15.The parties share on an equal basis the costs of family therapy
The ICL’s ultimate proposal, contained in Exhibit ICL 2, was as follows:
Where the children live
1. The children [X] born […] 2007 and [Y] born […] 2010 (hereinafter referred to as “the children”) will live with the mother.
Parental Responsibility
2. The mother has sole parental responsibility for the children.
Contact arrangements with the father
3. Any contact the children wish to have with the father will be determined by their wishes.
Family Therapy
4. The father is to engage the services of a family therapist psychologist to conduct family therapy for the parties and the children. Such family therapist is to be agreed between the parties and failing agreement nominated by the ICL.
5. That for the purposes of the family therapy pursuant to Order 4:
i.The mother and father shall attend appointments requested by the psychologist;
ii.The mother shall do all things necessary to facilitate, encourage and deliver the children, to all appointments as required by the psychologist;
iii.The costs of the family therapy is to be paid by the father.
iv.The mother authorises the psychologist to contact the child’s psychologist [Mr D] should the psychologist wish to so;
v.The psychologist is to be provided with a copy of the transcript of the evidence of [Dr J], in addition to his Honours judgement.
Educational information
6. The father is permitted to contact the school that the children attend to request they provide him with copies of any school reports, school circulars or notices which parents would ordinarily be expected to receive.
Denigration of the mother and the children
7. The father is restrained and an injunction is hereby granted restraining him from denigrating the mother to or in the presence or hearing of the children or allowing any other person to do so.
8. The father is restrained and an injunction is hereby granted restraining him from denigrating the children to or on the presence or hearing of the children or allowing any other person to do so.
9. The father is restrained and an injunction is hereby granted restraining him from approaching within 10 metres of the mother.
Discussing Court proceedings – Disclosing Court documents
10. The father is restrained and an injunction is hereby granted restraining him from discussing the Court proceedings with or in the presence or hearing of the children or disclosing to the children any of the Court documentation or allowing any other person to do so.
Travel Permissions & issue of passports
11. The mother has liberty to remove the children from the Commonwealth of Australia any time and to that end, the necessity for the consent of the father to the issue of a passport to the said children be dispensed with.
12. To facilitate the orders made herein, the necessity for the consent of the father to the issue of a passport to the said children be dispensed with.
13. The costs associated with the issue of a passport for the children referred to in the preceding orders herein be met by the mother.
Gifts and cards
14. The father is permitted to provide a gift and/or cards to the children for the special days such as the children’s birthday, for Easter and for Christmas such gifts and cards to be sent to the mother at a nominated post office box or provided to the children at a contact visit.
Accordingly, what remains to be determined is the following:
(a)Whether there should be sole parental responsibility for the mother, or equal shared responsibility;
(b)Whether any orders should be made for the father to spend time with the children; and
(c)If so, what these orders should be.
EVIDENCE
The mother relied on the following documents:
(a)Case Outline filed 13 January 2022;
(b)Application for Final Orders filed 18 April 2019;
(c)Mother’s affidavit sworn 12 August 2021;
(d)Mother’s affidavit sworn 17 December 2021;
(e)Affidavit of Ms C sworn 18 June 2019;
(f)Report of Dr J dated 3 July 2020;
(g)Final consent orders dated 30 November 2012;
(h)Orders of Rees J dated 17 September 2019;
(i)Brogden & Brogden [2019] FamCA 666; and
(j)Tender Bundle emailed 13 January 2022.
The father relied on the following documents:
(a)Case Outline filed 10 January 2022;
(b)Father’s affidavit sworn 22 December 2021;
(c)Affidavit of Ms O sworn 11 January 2021;
(d)Affidavit of Ms O sworn 16 December 2021;
(e)Affidavit of Mr P sworn 20 August 2021;
(f)Affidavit of Mr R sworn 20 August 2021; and
(g)Tender Bundle filed 11 January 2022.
Both parties were cross examined. The mother appeared as a witness via Microsoft Teams. She mostly answered questions directly, but also at times used her answers as an opportunity to make speeches. I note there were occasions when she appeared to be unable to answer simple questions directly, but this may have been, partly at least, a result of the deficiencies in the technology and fragmented connections. The mother was compelled at times to disconnect and reconnect with the hearing. Counsel and the witness often spoke over each other. I observed the mother closely as she gave evidence. She may have exaggerated some of her evidence about the father, but I found the mother to be generally reliable and credible.
The father and the paternal grandmother were cross examined in the witness box in court. I had the opportunity to observe them closely. The father had considerable difficulty answering simple questions directly. He continuously used answers as an opportunity to make speeches about his merits as a father, refute misconceptions that he believed the mother or the Court were labouring under, and to repeat his contention that the mother had coached the children to lie about him. I found it necessary several times to direct him to answer questions, with more focus, rather than use his answers as an opportunity to advocate for his case. As explained in more detail later in these reasons, he maintained, almost to the bitter end, implausible positions about his own conduct, and a refusal to accept the children feared him because of anything he had done. I am unable to accept the father as a reliable witness. Unless otherwise stated, where his evidence diverged from the mother’s evidence, and where necessary, I prefer the mother’s evidence.
Perhaps more importantly, as explained more fully later, despite his statements in oral evidence that he has learned from past mistakes and that he will not repeat hysterical and dysregulated behaviour exhibited in September 2017, I am not persuaded the father has insight into his own conduct, which has taken place over many years, and which has caused the children to be fearful of him.
The paternal grandmother also did not impress me as a reliable witness. For example, she denied suggesting to the father’s lawyers at a Local Court hearing in early 2020 that she feared the father might self-harm, despite those same lawyers citing in open court that very opinion, held by her, as the basis for an adjournment. As explained later in these reasons, she made glowing statements about the father as a loving and doting father, who never to her observation did anything to concern her in his conduct towards the children. She held to this position even when confronted with the evidence of her own text messages sent to the mother on the day after an incident on 9 April 2019 in which she agreed the father needed help. I am satisfied the paternal grandmother was partisan in favour of the father, and this bias undermined her evidence. I treat her evidence with caution.
The following documents were received into evidence:
Exhibit Label Document Tendered by ICL1 ICL’s tender bundle ICL ICL2 Minute of order ICL 1 Pages 122–138 of father’s tender bundle: text messages between father and children R/F 2 Pages 1–15 of father’s tender bundle: police interview with Ms C R/F 3 Pages 31–98 of father’s tender bundle: transcript of Local Court proceedings R/F 4 Annexures to father’s trial affidavit R/F 5 Email from father's solicitor dated 21 January 2022 with comments on proposed minutes R/F A Letter from mother’s solicitor to father’s solicitor dated 2 August 2021 A/M B Text messages between mother and Ms O A/M C Annexures to affidavit of Ms Brogden sworn 4 August 2021 A/M D Photos of family at a religious ceremony for Y A/M E Pages 164 – 206 of the mother’s tender bundle. Text messages and emails between the parties from 2013 to February 2019. Pages marked HC that refer to religious ceremony A/M F Flyer from the father’s business, with X and Y in swimsuits A/M G Letters from mother’s previous solicitors dated 25 May 2016 and 1 June 2016
Response from father’s previous solicitors dated 30 May 2016A/M H Two letters from father’s solicitor’s dated 23 January 2020 and 8 September 2020. A/M I Text messages between parties in February 2019 A/M K Subpoena material from Organisation S A/M L Documents from Dr T relating to mental health claims A/M M Facebook posts made by father’s company A/M N Records and reports from Mr D A/M O Report of Mr D dated 16 April 2019 A/M P Transcript of Local Court proceedings dated early 2021 A/M Q Minute of order emailed 21 January 2022 A/M Expert evidence
Dr J was appointed as the single expert in this matter. His report, dated 3 July 2020, was based on the material filed by the parties so far in the proceedings, some documents produced on subpoena, reports by the father’s therapists, Mr R and Mr P, and interviews with the parties, children, Mr B, and the paternal and maternal grandmothers.
Dr J made recommendations at [179]–[181] of his report as follows:
179. Any other matters you consider relevant:
180. Should the mother's allegations that she had been a victim of family violence perpetrated by the father be substantively upheld by the Court, I would recommend that her application for sole parental responsibility be upheld. Should she have been a victim of the family violence as alleged, her capacity to maintain co-parenting relationship with the father would be severely limited.
181.Alternatively, should the father be successful in his application for the criminal findings against him to be quashed and/or should the Court find that he had not been abusive and controlling as alleged, it would be beneficial for him to maintain shared parental responsibility. Under such circumstances the girls would benefit from the immediate re- establishment of contact supported by family therapy with the gradual reintroduction of unsupervised contact.
Dr J gave oral evidence on the final day of the hearing and was cross examined by both parties and the ICL.
I will refer to the content of Dr J’s report and his oral evidence as necessary during the course of these reasons.
On his own initiative, the father commenced counselling with Mr R, a clinical psychologist in July 2019. According to the evidence, he continues to attend once per fortnight, aiming to deal with the trauma of separation, and the grief and loss of contact with the children. In October 2019, the father also commenced therapy with Mr P of Organisation AA and continues to have ongoing sessions. Both Mr R and Mr P gave reports concerning the father’s mental and treatment, which were received in evidence without objection. They both were cross examined at the final hearing.
Mr R
Mr R provided an affidavit in support of the father’s case. He set out his qualifications as a registered psychologist. He annexed written reports dated 26 February 2020, 2 October 2020, and 2 March 2021. He maintained through each report his opinion that the father presented as of stable character, was genuinely remorseful for his behaviour in the incidents on 7 September 2017 and 9 April 2019, and was suffering stress and grief at the loss of contact with his children.
The reference to “prior actions and events” in this report is a reference to the incidents on 7 September 2017 and 9 April 2019, which are discussed below in more detail under s 60CC(2)(b).
Prior to his report dated 2 March 2021, by order of the Court, Mr R was provided with additional information, being copies of the review judgment, records produced from the children’s schools, and the report of Dr J. In his report of 2 March 2021, Mr R commented:
Review of documents
The review of these three documents highlights a number of issues. In particular it stands out that there is extensive parental conflict which has impacted on the ongoing negative relationship between both parents. This issue has been raised in counselling since the initial sessions in 2019 and therefore has been an integral part of the process of therapy for [Mr Brogden].
There are various allegations by [Mr Brogden’s] ex wife as to [Mr Brogden] displaying acts of verbal aggression towards her and towards their two children. Whilst the accuracy of these allegations cannot be clarified one way or another, [Mr Brogden] has described and acknowledged this negative dynamic between him and his ex-wife throughout the counselling sessions. It has been an important part of [Mr Brogden’s] therapy to understand his actions and emotions when he experiences stress and frustration. He is well aware of the significant incident that occurred on 7 September 2017 and has expressed regret and remorse for turning up at his ex-wife’s residence on that day. [Mr Brogden] however disputes certain allegations during that day including stating that it was his belief that he was not physically aggressive towards anyone including his ex-wife during that incident. In any case, the severity of this incident specifically as well as other incidents has been highlighted during therapy to assist [Mr Brogden] in understanding his thoughts, actions and behaviours when under stress.
The document pertaining to the judgment of Justice Rees gave further detail about certain allegations from [Mr Brogden’s] ex-wife however there appeared nothing of significance that seemed vastly different as to these allegations based on what [Mr Brogden] has generally described to me during therapy sessions. In Justice Rees’ discussion (No. 79) he states that there had been no opportunity for expert evidence or the appointment of an expert witness at that stage.
The various records produced by [Organisation A] also highlighted various issues that [Mr Brogden] was not aware of regarding his daughters as there appears to have been no contact made with him, or rare contact, from the school. Although there is a lot of detail and reports by staff as to their opinion of how [Mr Brogden’s] daughters were dealing with certain problems and issues, it remains obvious that the parental conflict was impacting greatly on both daughters. It very likely would have been beneficial for [Mr Brogden] if [Organisation A] attempted to make more contact with him as part of their duty of care for his daughters. During counselling sessions with [Mr Brogden] since 2019 it became obvious that this added to his grief and loss issues with not knowing how his daughters were progressing at school. Reviewing this documentation highlighted this ongoing concern for [Mr Brogden] and his daughters.
The expert family report of [Dr J] was important in clarifying various details. It was clearly highlighted that parental conflict was of concern and that the reinstatement of [Mr Brogden] being able to see his daughters was important not only for [Mr Brogden] but for his daughters as well. The opinion of [Mr Brogden] having obsessional personality structure and narcissistic tendencies was raised in this report by [Dr J]. These tendencies have been discussed during ongoing counselling sessions as one overall aim has been to build [Mr Brogden’s] awareness of himself in order to understand the meaningfulness of interactions with other people, including his children and his ex-wife. The report of [Dr J] overall is an important factor in the progression of family therapy and reinstatement of contact between [Mr Brogden] and his two daughters. The report also highlighted the need for an understanding between both parents to enable this family plan to work, with an emphasis on family therapy and the role of a professional family therapist to assist with this process.
Mr R concluded in this report as follows:
Recommendation
It is my professional opinion that the information in previous reports (dated 26/2/2020 and 2/10/2020) is hereby supported with this current report. [Mr Brogden] is of stable character. [Mr Brogden] has shown genuine remorse for prior actions and events of the past that have led to the current situation of him having no contact with his two daughters, as described previously. There appears no threat for [Mr Brogden] to have unsupervised contact with his daughters. Even though various allegations have been made by his ex-wife, the expert family report and findings of [Dr J] must be relied upon as evidence to progress with a parenting plan and family therapy.
There appears no requirement for supervision for [Mr Brogden] to see his daughters. There appear no safety risks whatsoever for [Mr Brogden’s] daughters having unsupervised contact with him. Having this process implemented and authorised through the family court with a structured parenting plan will enable [Mr Brogden] the chance and ability to rebuild his positive father and daughter relationship between him and his two daughters. [Mr Brogden] has continued to deal as positively as he can with his counselling and therapy as well as his consistent daily routine and exercise to be the best person he can be. His goal is to be the best father he can be for both of his daughters. It continues to be very important for the psychological health of [Mr Brogden’s] daughters to have happy, healthy and ongoing contact with their father.
It is therefore my professional opinion that [Mr Brogden] is given the opportunity to have a planned and structured parenting plan for unsupervised contact with his two daughters. It is also my professional opinion that family therapy will be beneficial for [Mr Brogden] and his ex-wife to assist with the process of maximising their positive parenting for both of their daughters with a continued understanding and respect of each other as parents.
Mr R did not interview the children for the purposes of this report, or indeed any of his reports. In forming his views, he relied entirely upon the self-reporting of the father. Self-reporting is always a reason for caution as the basis for expert views. Here, there is good reason for caution because, as Dr J said, the father is a bright, persuasive, and forceful personality adept at presenting his world view.
All of Mr R’s reports, therefore, were given from the perspective of the father. He confirmed this in cross examination. One remarkable aspect of Mr R’s last report is his willingness to express the opinion that the children, whom he never met, should spend time with the father without supervision, and what, in his view, would be important to the psychological wellbeing of the children. His report betrays an apparent failure to engage with the possibility, clearly raised by the review judgment and the school material provided to him, that the father’s pattern of behaviour over a number of years had caused the children to fear him. He appeared to take the view that, since there had been no findings about the allegations that the children feared the father, he could ignore the possibility. Rather, Mr R limited his focus to the two incidents in 2017 and 2019, apparently satisfied with the father’s expression of remorse about them. In cross examination by the mother, he was specifically taken to [40] of the review judgment (set out below at [87(b)]), and said he was not troubled by what was in the judgment because such factors arose from a complex situation. He agreed the matters referred to in the judgment would have an effect on the children but his focus was on his client and “moving forward”, and he saw no threat in unsupervised contact between the children and the father by reason of his overall assessment. He told counsel for the ICL that he had discussed with the father his intimidating behaviours over a three year period, but could not recall what was said.
I do not accept Mr R has the expertise to express an opinion on the question of the children’s time with the father or the matter of supervision. Even if he did, his reports and oral evidence disclosed a partisan attitude towards the father, and his reports stray at times into advocacy of the father’s case. While I accept the view of Dr J that it would be hard for a therapist to work with the father’s personality and his determination to deny the past, this partisan attitude, together with the self-reporting of the father and failure to recognise the possibility, at least, of psychological harm to the children by the father’s behaviour, renders his report of little utility to the questions I must decide. I give little weight to the reports of Mr R.
Mr P
Mr P also provided an affidavit in the father’s case. He annexed two reports dated 1 May 2020 and 2 March 2021. He also, for the purposes of the March 2021 report, was provided with additional material, being copies of the review judgment, records produced from the children’s schools, and the report of Dr J.
In his first report Mr P recorded:
[Mr Brogden] strongly asserts that the children’s lack of contact with him over such an extended period of time, is likely to be causing them great distress and possibly emotional and psychological harm. He is concerned about how his sudden absence in the children’s lives has been explained to them, and he is worried that [Ms Brogden] has brainwashed the children into believing he poses an unsatisfactory risk to their safety. [Mr Brogden] points to the children expressing fear that he may “kidnap” them, after their time in in his care stopped.
[Mr Brogden] is extremely concerned that the children are under duress from [Ms Brogden]. He advised that he recently saw the children in the car with [Ms Brogden] and the children immediately looked pleased to see him, however, turned away from him. He believes that [Ms Brogden] wants him completely out of the children’s lives.
Mr P also mentions the incidents in 2017 and 2019, recording that the father said the 2017 incident “was completely out of character and underpinned by a recent bereavement combined with emotional and physical exhaustion”. The report continues:
[Mr Brogden] argues that there is no justifiable reason for the children’s time with him to have been stopped. He asserts that he has never placed the children at risk and nor has he behaved in a way that has intentionally exposed the children to harm.
Mr P concluded:
… There has been nothing in [Mr Brogden’s] presentation to date that would give me pause for concern about the children resuming time in [Mr Brogden’s] care as had previously been occurring.
In his second report, Mr P repeated this conclusion after reviewing the additional material.
While I accept Mr P’s expertise would support an expression of opinion about the father’s parenting, again, he never met the children, and appears to give no credence to the possibility of psychological harm to the children by the behaviour of the father which caused them to fear him. As he made clear in his reports, he expressed a view based upon the presentation of the father. He confirmed this in his oral evidence. For these reasons, again I receive little assistance from the reports of Mr P. I give little weight to them.
The children
Y currently attends BB School. X attends CC School. Both children have been raised in the Christian faith.
The evidence showed both children are doing well at school and developing within a normal range. They have suffered some psychological difficulties, which will be explained in detail later in these reasons.
In about September 2017, the mother arranged for the children to commence seeing a counsellor, Mr D. Mr D was recommended by the school counsellor after the children has spoken to their teachers about incidents at the father’s house. This was originally on a fortnightly basis, before shifting to monthly. The children saw Mr D until March 2018, before recommencing in March 2019. X then ceased seeing Mr D in late 2019, whilst Y ceased in March 2020.
X had previously attended a psychologist in 2015, however stopped because of scheduling difficulties.
In her affidavit sworn 4 August 2021, the mother describes X as more academically inclined, whilst Y focuses on music and art. Their school results are said to have improved significantly over the past few years, and the mother has observed greater confidence and self-esteem.
LEGISLATIVE FRAMEWORK
Part VII of the Act deals with parenting orders. Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions under ss 61DA and 65DAB. The intent of Pt VII is to focus on “the rights of children, on the one hand, and the duties, obligations and responsibilities of parents on the other”: Vallans & Vallans (2019) 60 Fam LR 193 at [39]; Blaze & Grady (2015) 54 Fam LR 172 at [101].
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for them. The operation of this presumption is important, and to explain the relevant principles, it is sufficient to repeat and adopt what I have written in Alam & Sayid [2021] FamCA 564 at [112]–[119]:
112. The presumption conditions the Court's power to make parenting orders, including the engagement of s 65DAA: MRR v GR (2010) 240 CLR 461; (2010) FLC 93-424; (2010) 42 Fam LR 531; [2010] HCA 4 (“MRR”) at [21]; Cox & Pedrana (2013) FLC 93-537; (2013) 48 Fam LR 651; [2013] FamCAFC 48; ("Cox & Pedrana") at [16] and [17]. Where the presumption applies, the weight of authority in this Court holds that it is required to make an order for equal shared parental responsibility: Damiani & Damiani (No. 2) [2009] FamCAFC 215 ("Damiani") at [133] and [134]; Marvel & Marvel (2010) 240 FLR 367; (2010) 43 Fam LR 348; [2010] FamCAFC 101; at [104]; Froth & Schneider [2011] FamCA 378 at [226]; Heath & Hemming (No 2) [2011] FamCA 749 at [89].
113. The presumption does not apply if there are reasonable grounds for the Court to believe that:
a) a parent of the children, or
b) a person who lives with a parent of the children,
has engaged in abuse or family violence: s 61DA(2) of the Act.
114. The Full Court has made clear that any finding of family violence satisfies the expression “reasonable grounds to believe” in s 61DA(2), preventing the application of the presumption. If the presumption does not apply for this reason, there is no residual discretion to apply it: Robertson & Sento [2009] FamCAFC 49 at [13]; Boyce & Boyce [2015] FamCAFC 60 at [21].
115. The presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the children for their parents to have such equal shared parental responsibility: s 61DA(4) of the Act. In Dundas & Blake [2013] FamCAFC 133, the Full Court held, in considering the operation of s 61DA(4), that s 61DA is mandatory in requiring application of the presumption "until a level of satisfaction on the evidence is reached that it would not be in the interests of the child for it to apply" (at [57]); there needs to be "explicit and cogent reasons why the presumption should be rebutted" (at [61]). Those reasons are to be found in the consideration and discussion of the factors in s 60CC(2) and (3) of the Act.
116. As the Full Court pointed out in Cox & Pedrana at [19] (following MRR at [7]), if the presumption does not apply or is rebutted, the consequence is that the power to make parenting orders pursuant to s 65D is "at large" (albeit subject always to the best interests of the subject children being the paramount consideration: s 60CA; s 65AA.)
117. The decision in Goode & Goode makes clear, even if the presumption is not applied or is rebutted, the Court is to make such orders as it deems are in the best interests of the child, as a result of consideration of one or more of the factors set out in s 60CC of the Act.
118. Moreover, even if the presumption of equal shared parental responsibility is inapplicable, a parenting order may still be made that deals with the allocation of parental responsibility for a child: s 64B(2)(c). It may also deal with "the form of consultations [parents] are to have with one another about decisions to be made in the exercise of that responsibility": s 64B(2)(d). Such an order could provide that the parents have equal shared parental responsibility. However where the presumption of equal shared parental responsibility did not apply because of abuse or family violence, it may be a very unusual case where it was in the best interests of a child that an order be made that the parents have equal shared parental responsibility: Damiani at [140] and [141].
119. In Jess & Garvey [2018] FamCAFC 44 ("Jess & Garvey") the Full Court said at [24]:
There is nothing anomalous about a judge finding that it would “not be appropriate” to apply the presumption in favour of equal shared parental responsibility, while going on to make an order for equal shared parental responsibility. A rebuttable presumption such as that in s 61DA(1) is nothing more than the means by which a party can seek to establish a fact without proof, thereby shifting the burden of proof to the other party. In circumstances where a presumption does not apply, the court must arrive at its conclusion about the existence of the fact by reference only to the evidence. In the present case, after reviewing the evidence…her Honour found it was in the best interests of the children to order equal shared parental responsibility.
The mother seeks an allocation of sole parental responsibility to her. The ICL supports such an order. Thus, they contend the presumption either does not apply, or is rebutted in the best interest of the children. The father seeks equal shared parental responsibility. However, in submissions the father accepted there had been family violence. I discuss the evidence for this finding below under s 60CC(2)(b). Accordingly, the presumption does not apply, and to obtain an order for equal shared parental responsibility, the father must satisfy me that I make such an order in the absence of the presumption by reason of a finding of family violence. As made clear in Damiani & Damiani (No 2) [2009] FamCAFC 215, this would be unusual but open to the Court (Jess & Garvey [2018] FamCAFC 44 (“Jess & Garvey”)), and would require the conclusions that such an order was in the best interests of the children, despite the family violence.
I will express my conclusion about the allocation of parental responsibility later in these reasons. It is first necessary to make findings and express conclusions on the question of the best interests of the children.
The best interests of a child are the paramount consideration (s 60CA of the Act). They are to be determined by an examination of the considerations as set out in s 60CC of the Act. In Tibb v Sheean (2018) 58 Fam LR 351 (“Tibb”) at [74]–[78], the Full Court made clear that while the Court must “consider” each of the primary and additional considerations in s 60CC, express discussion is not necessary. I have considered each of matters in ss 60CC(2) and 60CC(3), but I will primarily discuss those which have been given prominence by the manner in which the parties and the ICL conducted the final hearing.
The best interests of a child are to be determined by an examination of the considerations set out in ss 60CC(2) and (3) of the Act, weighed and applied within the ambit of the objects and their underlying principles set out in s 60B of the Act. These provide context, indicate the legislative intention or purpose of Pt VII, and otherwise aid the construction of Pt VII and the Act: Maldera & Orbel (2014) FLC 93-602 at [74]–[75].
I turn then to the relevant considerations.
PRIMARY CONSIDERATIONS
In order to determine the child's best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act which are:
(a) The benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying these considerations, the Court is to give greater weight to the consideration in subsection (b) (see s 60CC(2A) of the Act).
Section 60CC(2)(a), “meaningful relationship”
The Full Court of the Family Court of Australia in Sigley & Evor (2011) 44 Fam LR 439 endorsed the following propositions concerning s 60CC(2)(a):
(a)A “meaningful relationship” is one which is “important, significant and valuable to the child”: (citing Mazorski v Albright (2007) 37 Fam LR 518 and McCall v Clark (2009) FLC 93-405 (“McCall”));
(b)A “prospective approach” is the preferred approach to s 60CC(2)(a), requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall at [118]–[119]; and
(c)The legislation aspires to promote a meaningful relationship, not an optimal relationship: M v S (2007) FLC 93-313; Godfrey v Sanders (2007) 208 FLR 287; Champness v Hanson (2009) FLC 93-407.
By the close of the evidence, there did not appear to be any real dispute that the children would benefit from a meaningful relationship with both parents. They clearly have a meaningful relationship with the mother.
They also clearly had a meaningful relationship with the father until May 2019. I accept this has now been compromised. The expert evidence, discussed below, suggests this loss itself is likely to be a detriment for the children. The question was whether and how a meaningful relationship with the father could be restored and rehabilitated prospectively. The answer relies upon weighing and balancing all the relevant considerations, but especially in this case, upon a consideration of issues of aggressive or abusive conduct by the father, the unchallenged fact that the children both presently fear their father, and whether orders can be crafted to protect the children from psychological harm in the future, while also allowing the relationship with the father to return.
Section 60CC(2)(b), “abuse” and “family violence”
A central area of dispute concerns allegations of the father’s behaviour constituting abuse and family violence, and the question of any risk he may pose to the children.
It is necessary here to set out some statutory definitions. The terms “abuse” (see s 4) and “family violence” (see s 4AB(1)) are defined in the Act as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) …
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include, but are not limited to:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
A child is exposed to family violence if the child “sees or hears family violence, or otherwise experiences the effects of family violence”: s 4AB(3) of the Act.
The mother made allegations of consistent abusive and intimidating conduct by the father during the period after 2012 until May 2019, which caused her to be fearful of the father. She alleges that the children were exposed to this behaviour and this caused them psychological harm by making them also fearful.
The mother states that soon after the consent orders were made in 2012, the father began to agitate for equal time with the children. When the mother refused, she states that he would become abusive and aggressive. She also states that the father was very protective of his time with the children and refused to involve the children in social events that they were invited to, if they conflicted with his time. For these reasons, she contends there should be no orders for the children to spend time with the father.
The father denied the conduct alleged. While conceding that he may have shouted at times, he maintained the mother’s allegations were part of a long running campaign to vilify him and spread an entirely false, negative narrative about him. This, he argued, has affected the children, and any negative views or fears they express about him are the result of the mother’s malign influence, not his behaviour. Other than this, the father did not allege the children were at any risk in the mother’s care.
I have considered all the evidence carefully. It is unnecessary to discuss every incident or allegation of risk. Several examples from the evidence will suffice to demonstrate the nature of the allegations against the father and the reasons for my conclusions.
The mother deposes to an incident in early 2015 where X required a medical procedure. The father was fully aware and attended hospital with X, however the following weekend whilst in the father’s care, X began to bleed. The father blamed the mother, however when she visited X, the father slapped her in the face with slippers.
In September 2017, the father and paternal grandfather, Mr DD attended the home of the mother and Mr B at around dinnertime and attempted to enter the property. The father states that this stemmed from a disagreement where the mother withheld the children despite plans to swap nights due to her birthday. Mr Brogden knocked the mother’s phone out of her hand when she attempted to record this, and also caused her to fall against a wall whilst holding Z. She states that the he then put his hand around her neck for ten seconds before letting go, after which the father did the same thing. Records produced by the Department of Community and Justice (Exhibit ICL1) record that Y and X were around a corner when this happened. Part of the incident was recorded by the mother on her mobile phone. The recording was played in Court and was annexed to the mother’s affidavit sworn 12 August 2021. The footage shows the father and paternal grandfather aggressively interacting with Mr B and the mother, who is holding Z. The father can be seen to be highly agitated while shouting in a very heightened manner and pacing back and forth.
The Police attended and the mother obtained a Provisional ADVO protecting the three children, Mr B, and herself. The father and Mr Brogden were also charged with assault, intimidation, and harassment. The matter went before a Local Court in 2018, where the father and Mr Brogden were convicted of entering enclosed lands without a lawful excuse, and stalking and intimidation with intention to fear physical harm. They were ordered to pay a fine. The Court also made a Final ADVO for the protection of Mr B, and herself. The father appealed the conviction.
It should be noted that the children’s time with the father continued despite this incident.
The father’s former partner, Mr C, swore an affidavit in the mother’s case. She gave evidence of a pattern of aggressive and abusive conduct by the father throughout her relationship with him (from 2013 to February 2019). She said she and the father separated on 12 occasions during the relationship, causing her to leave the house with her children. She states the father regularly called her a “cunt” or a “slut” in front of the children. For example, she described an incident on Anzac Day 2018 when the father used such language towards her, as a result of which she left the house for several days.
She also states the father shouted at the children aggressively and abused them, had difficulties with temper control, and lost his temper regularly each week. She observed the children crying and shaking as a result of the father’s conduct. She also gave evidence of several times she had to intercede with the father when he was shouting at the children in a threatening manner. Ms C gave detailed evidence of an incident on 28 January 2019. She heard the father yelling at the children “I told you to ask your fucken mother for more time” while the children were crying hysterically. Her own children began to cry. When Ms C interceded to ask the father to calm down, an altercation ensued which resulted in the father pushing her down the stairs in their home. Ms C tried to protect the children who had become locked in a bedroom with the father.
After observing and hearing Ms C in the witness box, I found her to be a reliable witness. I generally accept her evidence. Where the father’s evidence denies or diverges from her evidence, I prefer the evidence of Ms C.
The records and reports of the children’s schools (called “Student Chronicle”) and their counsellor, Mr D, are in evidence (Exhibits K and N). It is instructive to set out in some detail the contents of that evidence, which is admissible in parenting proceedings by reason of the provisions of Div 12A of Pt VII of the Act.
In the period from May 2017 until early 2019:
(a)Mr D recorded (as part of Exhibit N) that in a session on 22 September 2017, after an overnight visit with the father, X said she was not sure the father loved the children because “you are not scared of someone that loves you”. 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 also 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
(b)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] (sic) smacked really hard on the bottom last year
- Smacked across the face in [Suburb L] 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)
(c)In late May 2018, Y was to spend a Wednesday in preparation for a religious ceremony. The children were to spend time with the father on this Wednesday. This became a point of conflict. The mother claims the father refused to take Y to her preparation. On 31 May 2018, the school notes recorded that X had been sent to the office in an extremely distressed state the day before, suffering from stomach cramps, crying, and distressed. It was recorded:
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 [religious ceremony]. 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 [religious ceremony] 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)
(d)On 7 June 2018, a teacher recorded that Y:
…came up to me in the playground today looking very sad 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 mum to get 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)
(e)On 4 November 2018, her class teacher noted that Y was upset during mathematics. 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.
(f)On 7 December 2018, when the parents and the children had been at a swimming carnival and the girls had won some ribbons, the deputy principal recorded the following observations:
… [The father] 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.
(g)On 11 February 2019, Y’s teacher noticed that she 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 am at my dad’s.
(h)In his notes of a session on 6 May 2019, Mr D recorded that X spent a lot of the session “telling me the history of her dad” and that on the occasion of the father’s birthday in April 2019, she became fearful of possible kidnapping by him, she resented having to continue dialogue when she was so scared and Y said nothing, and she felt pressured to lie to her father.
On 22 February 2019, the mother received a phone call from Ms C, who explained that her relationship with the father had ended. They arranged a meeting on 11 March 2019, during which Ms C made allegations of family violence against the father. The material from the children’s school contained further relevant material in the period March to May 2019:
(a)On 6 March 2019, Y’s teacher recorded that Y had been crying in the morning, and had said the following: “I just wish my mum and dad were together again because then all the fighting would stop”; “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 barged through the door”. Y was still unsettled at lunch time, and her teacher noted Y 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”, “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.
(b)On 13 March 2019, X told a teacher 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 stepmother down the stairs and her stepmother had packed up and left.
(c)On 18 March 2019, Mr D wrote two reports to the children’s General Practitioner concerning Y and X respectively, which stated the following:
[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.
…
[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.
(d)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”
(e)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”.
(f)On 19 March 2019, a teacher recorded the following:
… [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.
(g)Once aware of the incident with Ms C, Mr D on 19 March 2019 also made a report to the Department of Family and Community Services 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 someones [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 rooms. 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”.
…
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 am seeing them due to concerns they have if he was to find out. Both children are scared of their Father when he gets angry.
(h)On 27 March 2019, Y’s school recorded that she 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.
(i)On 28 March 2019, the school recorded Y had not completed 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”. … [Y] said that she had spoken to her mum and that she isn’t going to her dad’s house on Wednesdays anymore.
(j)On 3 April 2019, Y told her teacher that she was frightened to go to her dad’s house that afternoon. In response to the teacher’s suggestion that Y go to a safe place, Y said that would not 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”.
X is 14 and Y is 12. As already noted, X will be 15 in 2022. I accept their expressed views have been influenced, to some extent, by their mother’s negative views of the father. Specifically, I accept that the views expressed by X about supervised contact are likely to have been influenced by the mother in discussions with her. I also accept it is likely that X may have raised the idea of supervised time because, at some level, she would like to have contact with her father.
However, I also accept that the father’s own conduct has caused the children to fear him. As discussed already, the evidence is clear, in my view, that the children have been fearful of their father since at least 2017, and certainly by April 2019 when they ceased spending time with him. The views they expressed to Dr J are consistent with this. I refer to the discussion under s 60CC(2)(b). I find these views are reasonably based on the children’s lived experience of their time with the father. They have found their father’s behaviour very unsettling and difficult to cope with over a number of years. Both children, but X in particular, are old enough to form and express their own views about how and when to interact with their father.
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
I am satisfied the children have a warm and loving relationship with the mother. I am satisfied their relationship with the father is compromised and they fear him, although in the past their relationship with him has been at times warm and loving, as already explained. I also accept the children still love their father and miss him. Dr J reiterated in his oral evidence that the father was greatly excited to see the children, while he could not identify any hypervigilance, distress, avoidance, or freezing in the children; rather they were happy to meet him. I infer that they would be favourably disposed to some interaction with the father, but they remain wary of him.
(ii) other persons (including any grandparent or other relative of the child);
The children have a positive relationship with their grandparents, and their extended family on both sides.
They also have a close relationship with Mr B, with whom they live. It can be assumed that they also have a close relationship with Z, their step-sibling. Y was described as “enthusiastic” when speaking of her experiences with Mr B.
The mother gave some evidence that she has maintained contact between the children and cousins on the father’s side. I accept the view of Dr J that the children would benefit from a resumption of exposure to the extended paternal family.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
I am satisfied both parents have taken the opportunity to participate in making decisions about major long-term issues for the children. Whilst there is clear evidence that the parties are engaged in intractable conflict with one another, it does not actually appear, from the evidence before me, that this conflict has stemmed from failures to agree upon major long-term issues such as schooling.
(ii) to spend time with the child; and
The father has pursued, for many years, a relationship with the children. Relatively soon after the parties’ made consent orders in 2012, he began to agitate for equal time with the children. Whilst such a request was denied, the father continued to make repeated requests in the following years for more time with the children.
It is not necessary to set out each of these circumstances, however for example, Dr J describes “uncontained” excitement exhibited by the father during his observations. He immediately “rushed to hug the girls, exclaimed and laughed as he greeted them” (at [105] of his report). The father engaged the girls in activities, spoke to them about their schooling, and showed them photos. It is clear on the evidence that the father is taking any opportunity available to spend time with the children, although such attempts have often resulted in conflict and verbal abuse towards the mother.
(iii) to communicate with the child;
As with the above, the father has consistently attempted to communicate with the children, whether that be in person or via electronic means. Again, it is not necessary to set out each of these circumstances. It is clear, and there was evidence presented in the form of screenshots of text messages between the children and the father, that he has made consistent attempts to speak with the children.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The mother has raised issues with respect to the father’s payment of child support, school fees, and private medical fees. She claims that he has not paid the CPI increase for the last three years and, contrary to their binding Child Support Agreement, failed to meet the children’s school fees, nor has he taken out private health insurance to cover the children. The father deposes that he has a direct debit set up which presently sends the mother $354.87 each week, in accordance with CPI increases, without fail.
I do not need to resolve these differences. Overall, I am satisfied both parents have fulfilled their obligations to maintain the children.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
As noted by the ICL, the evidence shows the children to be happy and healthy. They are presently thriving at school and are involved in extracurricular activities. They also appear to have close and loving relationships with the mother and Mr B.
In 2019, when the children were spending time with the father, the mother reports the children would return home “distressed, crying, irritated and withdrawn,” suffering sleep disturbance and requiring co-sleeping with the mother.[2] She compares their presentation then to the present time, where they are now sleeping better, doing better at school, and are visibly less distressed and irritated. I accept this evidence. It is consistent with the evidence discussed above at length under s 60CC(2)(b) for the period between January and May 2019.
[2] Mother’s affidavit filed 17 December 2021, paragraph 15.
The primary possible change to be considered in the children’s present circumstances would be a reintroduction of time with the father. The mother argues that she does not have the capacity to encourage the children to have a relationship with their father, as the reintroduction of time would cause both herself and the children great distress. She maintained this position in her oral evidence. As already discussed, I have found the father lacks insight, and at trial held fast to the idea that he has simply been a victim of lies and the mother’s negative narrative. When interviewed by Dr J, X said that “we can’t live in that environment. He was just screaming at us most of the time. We couldn’t live like that…I can’t go back to that yelling. I can’t go back to being scared again.” Y reported bad nightmares about the father chasing her, and as recorded above at [87(h)], expressed fear of being kidnapped by him.
Despite the positive feelings about the father displayed by the children in their text messages in early 2019, and taking account of my conclusions about the evidence of Messrs R and P, I accept that a reintroduction of time with the father, at least if compelled by court order, carries with it the risk that the children’s current stability and positive development may be disrupted or derailed.
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children presently also reside with Mr B and their step-sister, Z. There is no suggestion this should change. This factor is not relevant.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The parties live proximate to each other and have occasionally run into each other in a public setting. Neither party pointed to any practical difficulties or expenses.
(f) the capacity of:
(i) each of the child's parents, to provide for the needs of the child, including emotional and intellectual needs
The mother’s capacity as a parent is not in doubt. She has cared for the children alone since May 2019. The evidence is clear that both children are doing well at school and generally thriving.
I refer to the discussion and findings above under s 60CC(2)(b). There is a long history of the father exposing the children to aggressive and abusive behaviour. I accept that he loves the children, but I also find that he has been unable to gain a satisfactory perspective on his own conduct over the period between 2013 and May 2019. This has compromised his capacity to provide for the children’s emotional and intellectual needs. His behaviour lead to the children to fear him.
The more difficult question is whether this has changed since May 2019.
I accept the father’s conduct between 2013 and May 2019 was partly a reaction to the pressure he felt in trying to manage a blended family with his children, and Ms C and her children. The evidence shows he felt financial pressure. However, those pressures are now gone. The father lives a life of much less complicated domestic circumstances, and has done so since May 2019.
I also take account of the fact that he has sought counselling with Messrs R and P. I have set out above the reasons why the opinions of these counsellors do not carry weight. But the fact alone that the father has sought help from two professionals could support an inference that he has learnt from his past behaviour and is resolved to behave better.
However, as discussed under s 60CC(2)(b), the father has obsessive and narcissistic personality traits. Dr J expressed the view that the father’s personality produced a propensity to deny the past and could motivate him to undermine and “gaslight when he did not get his own way.” I was not impressed by the father’s oral evidence. He said many times in the witness box that he had learnt from past mistakes. But, I formed the view that he did not really accept or understand the extent to which his own behaviour has been unacceptable, and had intimidated and scared the children in the past. His obdurate adherence in the witness box to the untenable position that the children had been inveigled by the mother into lying and promoting a false narrative about him showed he continues to lack insight into his parenting deficits and has been unable to free his mind from the belief he has been the victim of a biased system and the mother’s malice, rather than responsible for his own angry and frightening behaviours.
I conclude the father’s parenting capacity remains diminished for these reasons.
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The children have a close relationship with Mr B, with whom they live. On the evidence, Mr B is supportive of the physical, emotional, and intellectual needs of the children. The mother describes Mr B as an excellent role model and has observed a close, comfortable, and loving relationship. The father expresses at [244] of his affidavit of 22 December 2021 that he has “no issues” with Mr B concerning their co-parenting of the children. Dr J identified Mr B to be a “supportive parental figure” for the children (at [146] of his report).
The children also maintain a relationship with the paternal grandmother, Ms O. As explained earlier, I did not find her to be a credible witness. She demonstrated a clear partisan attitude in favour of the father and appears unwilling to acknowledge that his parenting has caused distress for the children. In cross-examination, she denied ever having concerns about his behaviour, noting instead that “All I have seen has been…a hands-on dad, a really wonderful father.”[3]
[3] Transcript 19 January 2022, p. 255 lines 41–43.
This appeared at odds with previous communications she had with the mother. Text messages in April 2019 showed the paternal grandmother expressing that the children’s welfare was more important than the father’s interests. During cross-examination, the mother’s counsel put that this would suggest that the paternal grandmother had made some observations of the father over an extended period that would prompt her to write such a text message. In response, she merely commented that it was the fault of the mother, through changing times for drop-offs and reneging on spend time with arrangements, that had caused the father stress. She further denied that the stress was affecting his relationship with the children.
During her interview with Dr J, X said at [83], concerning the paternal grandmother:
It’s sort of like she encourages his behaviour. He didn't smack us last year but she knew everything. On the night of his birthday, she was supposed to be looking after us. But she left us with him while they went to get the car. And he tried to take us home with him. She swore that she was going to be looking after us. I wasn't that surprised because she's done that a lot. She told us to 'calm down, calm down, calm down,' and then she left and he came back.
Through her dismissal of the father’s behaviour, and thus implicitly dismissing the children’s concerns, I have concerns about the paternal grandmother’s ability to support the children’s emotional needs. I am not satisfied that she has the necessary insight into the father’s behaviour.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
There are no other factors asides from the ones already set out above which are relevant.
Section 60 CC(3)(h) is not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child's parents;
Whilst I accept that the father loves the children and wishes to spend time with them, it is equally clear that he does not have an adequate grasp of the responsibilities of parenthood.
There is evidence, which I accept, that the father has refused to cooperate with arrangements for timing, meeting places, or ensuring the children were appropriately prepared for handovers. There appears to have been deliberate attempts to circumvent previous parenting arrangements, with the father taking the children to movies at times when they were supposed to be returned to the mother’s care. Pursuant to court orders, the father was to spend time with the children during the 2018/2019 Christmas/New Year school holidays, with the children returning to the mother’s care two days prior to school commencing. The mother notes that the night before they were due to be returned, the father informed her that he would not be returning the children and would instead take them directly to school. It was only until the paternal grandmother intervened that the children were returned.
I am satisfied that in many instances, the father’s actions do not prioritise the children. Rather, he adopts a rights-based attitude to his time with the children, which results in inflexibility, and as pointed out above at [59], does not accord with the provisions of the Act. He has failed to put the children first and demonstrated a predisposition to protect what he perceives as “his time” with the children. The mother notes that as a consequence, if any social events the children were invited to fell within his allotted time, he did not allow them to go. This included birthday parties, playdates, and Y’s classes for her religious activities, which occurred … after school.[4]
[4] Mother’s affidavit filed 4 August 2021, paragraph 33.
During her interview with Dr J, X stated that “When we used to call our Mum, [the father] used to tell us what to say. He got us to write cruel messages to our Mum, Nannie and her husband.”
There was also evidence that in mid-2018, the father created a petition which he placed on a noticeboard at his place of work. This petition, titled “Support a great dad for more nights with his daughters. [Mr Brogden], fun, smart, disciplined and driven to be the best dad ever for [X & Y]” was signed by the children. The mother reports that the children were extremely upset by this as it was embarrassing, and the father had forced them to sign it.
In late 2019, the mother became aware of a flyer that the father was using to promote his business. The children were featured on the flyer in their swimming costumes, and the father had not consulted the mother nor the children prior to distributing these flyers.
Such actions are concerning and demonstrate misconceived notions of parenthood which confuse what the father sees as his rights, which are not the focus of the Act, with the responsibilities and duties of parents which around which the Act is structured. His failure to see how such actions would be embarrassing for the children, together with his attempt to involve them in the conflict between himself and the mother, indicates that he does not appreciate the emotional impact of his decisions and behaviours. Although the father now expresses remorse, having received advice and therapy, I am not satisfied this is a true reflection of his attitude. As noted already, in cross-examination he continued to allege that the mother had “set him up” and was reinforcing a false narrative.
The father has stated that
I want to ensure as much as possible the children aren't caught in the middle of our parental conflict, but this will be particularly difficult if one parent is objecting to time with the other parent and not supportive of the children's relationship with the other parent.
(Father’s affidavit filed 22 December 2021, paragraph 270).
Whilst expressing an intention to keep the children away from the conflict as much as possible, it is clear that the father has failed to take responsibility for his actions, whilst routinely taking the opportunity to place the blame on the mother. I am not convinced by his expressions of intent to carry on the co-parenting relationship with the mother in a positive manner in the future.
The mother has, for her part, denied the father the opportunity to spend time with the children since 2019. However, I am satisfied that she had reason to do so, in light of the concerns expressed by the children, as well as her own experiences of family violence when interacting with the father. At [14] of her affidavit of 4 August 2021, she notes that
I appreciate that all children should be encouraged and have love and caring relationships with each of their parents. As such, often notwithstanding children's wishes they should be encouraged and on occasions made to see both parents.
I accept that up until early 2019, the mother attempted to foster an ongoing relationship between the father and children. During cross-examination, the mother explained that from approximately 2014 to 2016, the children expressed a wish to cease seeing the father, yet she continued to make them go. Furthermore, despite the September 2017 incident, the mother continued to facilitate spend time with arrangements. It was not until 2019 that she ultimately made the decision to cease contact between the children and the father. The orders of the Court made in May and September 2019 entrenched this position.
(j) any family violence involving the child or a member of the child's family;
I have nothing further to add beyond the discussion above in connection with s 60CC(2)(b). Section 60CC(2)(k) is irrelevant, there being no current family violence orders in place.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is preferable to make orders which are least likely to lead to the institution of further proceedings. In light of my findings about entrenched parental conflict, and the father’s inability to take responsibility for his own behaviour, an order allocating sole parental responsibility to the mother would assist in this outcome. As explained below, an order for the children to spend time with the father in accordance with their wishes would also assist in achieving this outcome. The children are close as siblings and will be used to spending time with the father together.
(m) any other fact or circumstance that the court thinks is relevant.
I have nothing to add here.
PARENTAL RESPONSIBILITY
As already pointed out, there was a dispute between the parties and the ICL about the allocation of parental responsibility. Section 61C of the Act makes clear that, unless displaced by Court order, the parties’ parental responsibility may be exercised either jointly or severally: Goode & Goode (2006) FLC 93-286.
I have found that the presumption of equal shared parental responsibility does not apply (above at [61]).
In addition and separately, I also find it would not be in the best interests of the children for there to be an order for equal shared parental responsibility in the absence of the presumption. The evidence discussed and findings made under s 60CC(2)(b) weigh strongly against equal shared parental responsibility. Also, the bitter conflict between the parents, from which they cannot shield the children, their clear inability to co-parent constructively, the father’s refusal to take responsibility for his abusive behaviour, and the mother’s evident distress at the prospect of dealing with the father, combine to persuade me that sole parental responsibility should be allocated to the mother. She has been the primary carer for the children in the last several years and there is no dispute that they should continue to live primarily with her. The father can be involved in decision making, but the ultimate decision should rest with one parent alone, in this case the mother.
For the same reasons, contrary to the father’s submission, I am unable to conclude that an order for equal shared parental responsibility should be made despite the absence of the presumption, although this is possible, as the Full Court held in Jess & Garvey.
LIVE WITH
There was no dispute that the children should continue to live with the mother.
TIME WITH THE FATHER
The most difficult question in this matter is whether orders should be made for the children to spend time with the father. Given that no order will be made for equal shared parental responsibility, s 65DAA of the Act is not engaged. The father does not seek equal time in any event, although he seeks substantial time, both during school terms and school holidays.
The ICL put to the mother possible orders that the father should be allowed to attend school functions. The mother was initially resistant to any order to that effect. But eventually, she accepted orders could work which allowed the father to attend school functions which a prohibition on approaching within any more than a set distance of the mother and with the children able to approach him according to their wishes.
The mother argues that that the inability of the father to acknowledge his past behavioural problems precluded the possibility of any contact between the children and their father. She pointed out in her oral evidence that the children are thriving with no contact with their father. She emphasised the lack of insight of the father. When asked by counsel for the father about the issues she still has with the father, she answered:
What are the issues I have? I have his temper. I have – that’s number one. I have that he only refers to all of this evidence in all of these pages as one incident that he has been abusive. One. That he also has been found guilty, but he dismisses as not being guilty because he was acquitted of convictions. And every single other abuse and complaint of the girls to the school, to their counsellor, to numerous peoples that have seen them, he doesn’t – he says we’re making it up. He says that everything that happened with [Ms C] while they lived there, [Ms C’s] making it up. The children are making it up. The kids are making it up.
(Transcript 17 January 2022, p. 28 lines 6–14.)
The findings I have made above under s 66CC(2)(b) are consistent with the mother’s evidence in this regard.
However, the problem with the mother’s proposal is that it would deny to the children any opportunity to receive the positive benefits of a relationship with their father. The nature of their residual affection for him, mentioned several times in the course of these reasons, and in particular under s 60CC(3)(a) and (b), persuade me that a total prohibition on contact between the children and the father would not be in the children’s best interests.
As already noted above, Dr J observed a positive and loving interaction between the children and their father. He was clear that the children had many positive experiences with the father up to May 2019, often based around activities. He saw benefit to the children in re-establishing a meaningful relationship with their father, while avoiding as far as possible the risk of exposing them to his narcissistic, abusive and aggressive behaviours.
I am mindful of the fact that the father no longer lives in a relationship with Ms C or any other regular partner. The period in which the behaviours causing so much fear in the children took place was also substantially the period during which the father was in the relationship with Ms C. This means is his domestic circumstances now are less complex than they were when he manifested behavioural problems, and many of the pressures which I accept contributed to his poor conduct between 2013 and 2019 have likely been removed. Despite the limited weight which I give to the reports of Messrs R and P, I have accepted that the father has attempted to receive some professional help in relation to his behaviour. I accept he is highly motivated to resume a relationship with the children. For these reasons, I conclude that the risk of the children being exposed to conduct from the father which would cause them fear him is less than it was prior to May 2019.
However, the risk has not disappeared. As already noted several times, I am not persuaded that the father accepts that his conduct scared his daughters or contributed to their fearful perception of him. As set out above under s 60CC(2)(b), contrary to the father’s submission, I have found that he engaged in regular and consistent conduct up to 2019, which included abusive and controlling behaviour towards the mother, violent and aggressive behaviour in the household with Ms C, and similar behaviour at times towards the children, resulting in their fear of him and psychological harm. In cross examination he said a number of times that he recognises that he should “do better”. But these statements were not tied to any specific conduct and are hard to reconcile with the fact that he maintained, to the end, his entirely unconvincing contention that the children were simply infected with the mother’s negative, but entirely untrue narrative about him, and had not only been coached by the mother to tell lies and keep repeating them, but were prepared to do so.
This means I cannot conclude the father has any, or any adequate, understanding of and insight into his pattern of behaviour, which was consistent over several years and not limited to the incidents in 2017 and 2019, and which he does not appear to accept actually took place. As Dr J observed in his oral evidence, there is a risk the father’s behaviours could re-emerge; he would have to tolerate the children not viewing him as “superdad”, something he could not accept even at trial. Consequently, I cannot be satisfied that the father would not relapse into angry or abusive behaviours towards or in front of the children, renewing the fear they felt towards him in the past. I recognise the father is a powerful personality and skilled in motivating people to comply with his wishes. While this is often a positive attribute, when combined with a narcissistic personality, it can be a risk factor for children already damaged psychologically. These are considerations which I must bear in mind in determining whether there should be Court orders to bring about the reintroduction of time with the father.
There are also the questions of how any reintroduction could take place in a manner which does not cause anxiety or damage to the children. The debate centred around the possibility of supervised time in conjunction with family therapy.
Neither the mother nor the ICL supported supervision. The father proposed supervision with professional supervisors, then by the paternal grandmother. Dr J was clear that professional or formal supervision at a contact centre was not appropriate, given the age of the children. He also rejected a family member such as the paternal grandmother, particularly because the children express resistance at being supervised by her. I accept the paternal grandmother would not be appropriate as a supervisor. For these reasons, I am not persuaded supervision is appropriate.
In his oral evidence, Dr J was asked how he thought a reintroduction of the children to the father could, in a practical sense take place. He was clear that family therapy would be an essential part of such a process, stating:
If there was going to be a reintroduction, I would think that that should occur in the context of where a family therapist saw all the parties separately and where the girls then were seen with their father in the therapist’s office much like they did with myself.
(Transcript 20 January 2022, p. 275 lines 1–4.)
Dr J then opined that if the girls were willing to attend further sessions with a therapist, that should happen. He referred to the fact that Mr P was from Organisation AA, and despite the mother’s reservations about Organisation AA for that reason, Dr J recommended:
There are experienced family therapists who are psychologists and social workers at the [Organisation AA] who are very adept in addressing such circumstances. In my view, it would be beneficial to the family for another practitioner at the [Organisation AA] to facilitate such an intervention, because they would then be able to – in a professional manner, to have a systemic intervention which would facilitate the integration of the – the – and feedback to the father from his own therapist.
(Transcript 20 January 2022, p. 275 lines 9–15.)
The evidence and findings made under s 60CC(2)(b) above, mean that the foundation of any family therapy ordered by the Court would be affected by structural defects, in that the father clearly still believes his children are, or have been, liars, and sees little in his behaviour which he needs to modify or for which he needs to apologise. In cross examination, the mother gave these factors as reason why she was not interested in family therapy (see above at [173]).
The father’s counsel submitted that even if these defects existed, a properly qualified and skilful therapist could move beyond them. That may be so. But as pointed out during the course of these reasons, the father manifests a powerful personality and clearly believes he can motivate others to subscribe to his views. In his oral evidence, Dr J foresaw problems with family therapy. He pointed out that the father would find it difficult to accept orders which were inconsistent with his world view, in light of his narcissistic personality. But, on balance, Dr J said family therapy was his preference because the father was desperate to re-establish and maintain a relationship with the children, loved them deeply, and they had shared many positive experiences.
Whilst I can accept that family therapy may result in progress in the rehabilitation of the relationship between the father and the children, I accept that equally it may founder on the father’s refusal to follow recommendations from the therapist, or his refusal to engage with the therapy on the basis that his past behaviour was reprehensible and must be changed. Nonetheless, since it has been supported by the father, the ICL, and Dr J, I am persuaded that it should be ordered as a process which has potentially positive outcomes for the children, whatever it may actually achieve, including helping the children become more motivated to spend time with their father over time.
I have given close consideration to possible orders to the effect that, until X reaches the age of 15, the children spend the last Sunday of each month with the father between 10.00am and 5.00pm, outside the father’s home, and within a radius of five kilometres from the father’s home. In tandem with this contact, family therapy could take place. Thereafter the children could spend time with the father in accordance with their wishes.
The only other viable order is that proposed by the ICL, namely, that the children simply spend time with the father in accordance with their wishes, in tandem with family therapy, from the date of this judgement.
Both proposals carry the risk that the children may fall under pressure and influence of the father. He could choose to agitate a negative narrative about the mother, the injustices of the system and in particular the unfairness to him, and thereby use guilt to pressure the children to spend time with him and undermine them. A countervailing consideration is that the children will also remain under the influence of the mother, who, in light of her clear pejorative attitude towards the father, may actively seek to prevent the children seeing their father even if they want to. I have also taken account of the possibility that court orders for the children to spend time with the father may give them some comfort, in the sense that they can simply follow the orders irrespective of what either parent wants.
I have not lost sight of the anxiety that any contact between the children and the father may cause the mother. However, I am not persuaded that such contact would so undermine her parenting capacity that no contact with the father should be ordered for this reason.
There is clearly no outcome which can address every potential problem or satisfy both parents. But, in any event, that is not the primary focus. The Court must act in the best interests of the children, as the paramount consideration.
On balance, I have come to the view that permitting the children to spend time with their father as they wish, as the ICL proposes, carries less risk overall and is in the best interests of the children. It gives the children discretion, without the compulsion of a court order and attendant risks of allegations of contravention, which would place the children in the middle of further litigation and parental conflict. I do not accept that an order for any time between the children and their father to take place in accordance with their wishes would be “meaningless”, as the father’s counsel argued. Implicit in this argument appeared to be the assumption that the children could not exercise their will in accordance with their own views, and that the real enemy was the mother who dominates through her malign control. As pointed out numerous times in the course of these reason, this has been the consistent view of the father, and I do not accept it as correct.
But on the contrary, if family therapy successfully takes place, and bearing in mind the residual love and positive memories the children have of their father, they are likely to be motivated to spend time with him, despite the influence of the mother and even if she tries to intervene. This has more prospect of working well because the children will only decide to spend time with the father if they feel comfortable doing so. Under an order that the children spend time with the father in accordance with their wishes, if family therapy is not successful, the children will be under no obligation to spend time with the father, nor is the mother obliged to make the children available to spend time with him, if they do not want to. I have already pointed out that some of the stress factors in the father’s domestic circumstances have been removed since he separated from Ms C. The children live in close proximity to the father, and as pointed out, have come across him in the local neighbourhood. X particularly is at an age when she can make a decision whether or not to see her father. If she chose to do so, it would be appropriate for Y to join in. The children are close, and nothing in the evidence suggests it would be appropriate to compel Y, but not X, by court order, to spend time with her father, that is, alone and without X present. No party suggested this should happen. I do not consider it appropriate to order Y to spend time with the father on her own, if X does not wish to see him, although Y may choose to do so.
I will permit contact from the father by gifts and cards. There is the further question whether there should be more expansive orders, permitting contact between the children and the father my additional means such as mobile phone and email. This contact will assist the children in determining when and how they may wish to see their father. I will order that the children may contact the father by mobile device or email, again in accordance with their wishes.
The mother and father must accept and promote the orders to the children, and there will be orders restraining each parent from denigrating the other.
The ICL proposed a restraint upon the father coming within 10 metres of the mother. In light of the history of these proceedings, and the father’s record of angry behaviour, I consider this to be appropriate.
It would also be beneficial for the ICL to explain the Court’s orders to the children, emphasising that they may spend time with the father if they wish to do so, and irrespective of the mother’s wishes.
COSTS
My inclination is to make no order as to costs in these proceedings. However, if either party wishes to make an application for costs, I will order such application to be made within 28 days.
The ICL made no application for costs.
CONCLUSION
For all the foregoing reasons, I am satisfied the orders set out at the commencement of these reasons should be made.
I certify that the preceding two hundred (200) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 7 April 2022
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