Byrne & Byrne (No 2)
[2023] FedCFamC1F 436
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Byrne & Byrne (No 2) [2023] FedCFamC1F 436
File number: PAC 2882 of 2019 Judgment of: BRASCH J Date of judgment: 31 May 2023 Catchwords: FAMILY LAW – CHILDREN – Where the father admitted to many acts of family violence and abuse – Whether the pattern of such acts amounted to coercive control – Where the mother is the unchallenged residential parent – Where consideration of the impact on the mother and her parenting from the admitted family violence and abuse – Where the mother also alleged the father covertly filmed her on a cruise – Where orders relating to older child largely agreed - Where dispute over younger child concerned limited time orders, or, time graduating to alternate weekends – Limited time orders made. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3)(a)-(m), 61DA, 65D(1), 65DAB, 102NA
Cases cited: Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222
Cotton & Cotton (1983) FLC 91-330
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
G & C [2006] FamCA 994
Hickson & Matthew [2022] FedCFamC1A 161
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
In the Marriage of Hall (1979) FLC 90-713
In the Marriage of N and S (1996) FLC-655
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A
Jones & Dunkel (1959) 101 CLR 298
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69; [1988] HCA 68
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Byrne & Byrne [2022] FedFamC1F 343
R & C [1993] FamCA 62
Re Andrew (1996) FLC 92-692
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 289 Date of hearing: 9-13 May 2022 and 27-31 March 2023 Place: Sydney Counsel for the Applicant: Mr Daniel (9-13 May 2022) Solicitor for the Applicant: Galluzzo Lawyers (9-13 May 2022) Counsel for the Applicant: Mr Duc (27-31 March 2023) Solicitor for the Applicant: Ark Law Lawyers (27-31 March 2023) Counsel for the Respondent: Ms Wheeler Solicitor for the Respondent: Matthews Folbigg Pty Ltd Counsel for the Independent Children's Lawyer: Ms Hayward Solicitor for the Independent Children's Lawyer: Legal Aid NSW Sydney Central Family Law ORDERS
PAC 2882 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BYRNE
Applicant
AND: MS BYRNE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BRASCH J
DATE OF ORDER:
31 MAY 2023
THE COURT ORDERS THAT:
1.Y born … 2017 spend supervised time with the father for up to four (4) hours per visit for four (4) non-consecutive times per year, being:
(a)On a date to be nominated by the mother in writing to the father each year, as close as possible to Easter;
(b)On a date to be nominated by the mother in writing to the father each year in July;
(c)On a date to be nominated by the mother in writing to the father each year, as close as possible to Y’s birthday;
(d)On a date to be nominated by the mother in writing to the father each year, as close as possible to Christmas;
(e)When nominating dates, the mother is to consult with the contact centre or the supervision service (as the case may be) to select dates where the centre or service (as the case may be) have availability;
(f)Save as set out in Order 1(g), in January of each year, the mother is to provide the father with the dates for the time in Orders 1(a) and 1(b) above;
(g)For the July 2023 time in Order 1(b) above, the mother is to notify the father of the time as expeditiously as possible;
(h)In June of each year, the mother is to provide the father with the dates for time in Orders 1(c) and 1(d); and
(i)The father is at liberty to provide this order to his employer for rostering purposes.
2.For the purposes of Order 1:
(a)The mother and father shall do all acts and things and sign all documents necessary to enrol at B Contact Centre (“the contact centre”); and
(b)In the event B Contact Centre is not available, the mother is to provide three (3) contact centres to the father and the father shall select one (1).
3.Thereafter, from the start of 2026 until the child turns 14 years, Y’s time with the father shall then be:
(a)Supervised by a supervision service namely F Contact Centre (“the supervision service”); and
(b)Y’s time with the father is to follow the same frequency, duration and conditions as Order 1.
4.For the purposes of Order 3:
(a)The mother and father shall do all acts and things and sign all documents necessary to enrol in the supervision service; and
(b)In the event F Contact Centre is not available, the mother is to provide three (3) supervision services to the father and the father shall select one (1).
5.For the purposes of Orders 1 and 3, the father shall solely pay the costs associated with the contact centre and supervision service.
6.Save as provided in this order, the father is restrained and an injunction issues restraining the father from approaching Y at any time including but not limited to at his school and/ or any of his extracurricular activities, unless as agreed by the parties in writing or in compliance with Court orders.
7.The father is at liberty to provide Y and X with a gift each when Y spends time with the father as referred to in these orders.
8.The mother, by this order, permits the children G, J and K to attend the contact centre or supervision service (as the case may be) for time arranged between Y and the father that occurs near to Christmas.
9.The father, by this order, is permitted to bring the paternal grandparents to attend the contact centre or supervision service (as the case may be) once per year, to be nominated by the father, when Y is spending time with the father, but not the Christmas time.
10.Upon Y turning 14 years of age, the child spend time with the father according to the child’s wishes.
Provision of information
11.The mother is to provide the father a copy of Y’s school reports by email as soon as they are available to her.
Provision of information to professionals
12.Pursuant to s 121 of the Family Law Act 1975 (Cth) the father may provide to any treating medical practitioners, therapists and/or allied health professionals consulted by him about or related to the children, or in relation to the outcome of these proceedings:
(a)A copy of these orders and Reasons;
(b)The Child Inclusive Conference Memorandum of Ms D dated 5 November 2019;
(c)The Family Report of Ms D dated 16 September 2020; and
(d)The Updated Family Report of Ms D dated 19 January 2023.
13.That in addition to material set out in Order 14 of the orders of 31 March 2023, the mother may provide these Reasons to the people listed in that order.
Communication
14.In the event Y expresses he would like to speak with the father over FaceTime or other similar electronic or telephone call means, then:
(a)The mother shall advise the father in writing via email of Y’s expression within 24 hours;
(b)The mother shall nominate to the father in writing via email three possible times in the following week that Y is available to call the father;
(c)If the father chooses to take Y’s call, the father will choose one of those times within 24 hours of receipt of the mother’s notice by responding in writing via email; and
(d)The mother will facilitate the call between Y and the father if the father chooses to take Y’s call.
Discharge of Independent Children’s Lawyer
15.Upon the Independent Children’s Lawyer (“the ICL”) explaining, or causing these orders to be individually explained to each of the children, the ICL is discharged.
THE COURT NOTES:
A.On 31 March 2023 the following orders were made:
BY CONSENT IT IS ORDERED:
1. That all previous parenting orders with respect to the child [X] born on […] 2014 (“[X]”) be discharged.
Parental Responsibility
2.That the mother shall have sole parental responsibility for the children [X] born on […] 2014 (“[X]”) and [Y] born on […] 2017 (“[Y]”).
Names of the Children
3.That notwithstanding Order 2 herein, the children’s names or either of the children’s names [X] and [Y] shall continue to be named as:
3.1 [X]
3.2 [Y]
and the mother shall not change the children’s name.3
Provision of Information
4.That the mother shall provide to the father via email within 24 hours in the event that the children, or either of them, require emergency medical treatment. Such notice shall include the details of the condition, treatment and as to the contact details of the health care professional.
5.That the mother provide the father a copy of [X’]s school reports by email as soon as they are available to her.
Residence
6. That the children shall live with the mother.
Contact
[X]
7.That [X] shall spend no time with the father save and except for the following:
7.1should [X] request that she would like to attend family therapy with the father then the mother will facilitate such request by contacting [Dr C] within 48 hours of such request (the family therapist who has already seen the children and provided a report to this Court) to arrange such family therapy; and
7.2invite the father to attend such therapy with [X] in writing via email and request the father make contact with [Dr C] to arrange for suitable times after school during the week for he and [X] to attend such therapy without affecting her extracurricular commitments.
8.That in the event [X] expresses she would like to speak with the father over FaceTime or other similar electronic or telephone call means, then:
8.1the mother shall advise the father in writing via email of [X’s] expression within 24 hours;
8.2the mother shall nominate to the Father in writing via email three possible times in the following week for [X] that [X] is available to call her father;
8.3if the father chooses to take [X’s] call, the father will choose one of those times within 24 hours of receipt of the mother’s notice by responding in writing via email; and
8.4the mother will facilitate the call between [X] and the father if the father chooses to take [X’s] call.
9.That in the event [X] expresses a wish for face-to-face visit(s) with the father, then
9.1the mother shall advise of the father in writing via email of [X’s] expression; and
9.2the mother and father shall do all things and sign all documents necessary to enrol at [B Contact Centre] for at least one supervised visit and or more at [X’s] request.
10.That otherwise the father be restrained by this Order from approaching [X] at any time including but not limited to at her school and/ or any of her extracurricular activities, unless as agreed by the parties in writing or in compliance with Court orders.
Travel
11.That the mother be permitted to remove the children from the Commonwealth of Australia for the purposes of overseas travel.
12.That pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth), the mother be authorised to solely apply for passports the children [X] born on […] 2014 and [Y] born on […] 2017.
Non-denigration
13. That neither party shall:
13.1Denigrate the other party or a member of their family in the presence of or within the hearing of either child;
13.2Allow any other person to do so in the presence of or hearing of either child and shall use their best endeavours to ensure no other person does so; and
13.3Publish or disseminate in any form, electronic or otherwise, any information with regard to these proceedings with respect to the children.
Provision of Reports
14.That by this Order leave be granted to the mother to provide a copy of the Family Report prepared by [Ms D] dated 16 September 2020, the updated Family Report prepared by Family Consultant [Ms D] dated 19 January 2023 and the Child Inclusive Conference Memorandum prepared by [Ms D] with respect to interviews of 24 October 2019 and dated 05 November 2019 to [Ms E] and [Ms H] and or any other treater for the Mother and or [X] and or [Y].
Other
15.That pursuant to s 62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
16.That pursuant to s 65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
THE COURT FURTHER ORDERS:
17.That the father would like [X] to have his mobile phone number programmed in her phone so she can contact him.
18. That after Orders 7.1 and 7.2 above, the following Order is made:
18.1the father shall advise [Dr C] and the mother in writing via email of his availability to attend or whether or not he will agree to attend such therapy and then such therapy shall commence and shall be at the father’s sole expense.
19. That after Order 9.1 and 9.2 above, the following Orders are made:
19.1 the costs of such visits shall be at the father’s sole expense; and
19.2if the father does not wish to take up this option then he shall advise the mother in writing via email.
20.That the mother and the father shall within six (6) months of the making of these orders, pay to Legal Aid NSW a sum of $11,714.25 each.
THE COURT NOTES THAT:
A.The Independent Children’s Lawyer will explain these orders to each of the children separately and as soon as possible.
B.It is a matter for the Independent Children’s Lawyer’s discretion, whether she has a further meeting with the children when the disputed final orders are determined.
C.So the parties have one document containing all orders, this Order will be referred to in a Notation when the disputed final orders are determined.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
INTRODUCTION
These are final parenting proceedings, concerning two children, X (born in 2014) (“X”) and Y (born in 2017) (“Y”) (“the children”). When the matter first came before me in May 2022, X had not spent time with the father pursuant to Court orders since December 2021.
Mr Byrne (“the father”), was born in 1980, and Ms Byrne (“the mother”), in 1987.
The mother and father (“the parties”) met in 2010 and married in 2012. The parties do not agree on the final date of separation. The mother says 6 March 2014, when the father assaulted the maternal grandfather and moved out of the former matrimonial home.
For a considerable period after March 2014, the father came and went from the former matrimonial home. The father considered they were still together but living in separate residences. The mother said they were separated and he attended at the home without any regard to her.
Notwithstanding the mother saying separation occurred on 6 March 2014, the parents and children (when born) went on cruises and holidays together in April 2016, January 2017, April 2017 and April 2018 staying in the one cabin or hotel room, as the case may be. On one trip in January 2019 the father slept separately.
The cruise in April 2016 is of particular moment in this matter. The mother alleges the father covertly took videos of her and X showering naked. She took screenshots of the video thumbnails said to be on the father’s phone, which she accessed when he was asleep. The screenshots are in evidence before me. It is accepted by all that there is no vision of the child in any of these screen shots. The father denies taking or causing these videos to be taken. The provenance of the video thumbnails assumed a significant focus in the trial.
The father says separation occurred in July 2018 when, following an argument between the parties, the father realised their relationship would not mend. He used this date for the Application for Divorce.
I do not need to determine when separation occurred; all counsel agreed that was so. Whatever the status of the relationship when the father moved out in March 2014, the parties maintained intertwined lives until the father assaulted the mother at a changeover in 2019. The father entered a plea of guilty to common assault. A conviction was recorded and he was fined $800. His appeal against the severity of sentence was dismissed.
After the 2019 changeover assault, the holidays together ended and the mother stopped the children’s time with the father until he agreed to supervision. The first visit occurred on 11 July 2019. The parents’ relationship deteriorated.
The father initiated these proceedings by filing an Initiating Application for Final Orders on 21 June 2019. The mother filed her Response on 6 September 2019.
On 6 November 2019, Court orders were made by consent reflecting the supervision arrangement. The children’s time with the father has continued as supervised time for three hours per week, as well as telephone calls twice a week. It is common ground that X was not a frequent attender for time with the father.
Subsequently, on or about 22 February 2021, the mother again unilaterally suspended the children’s time with the father after the report of Dr L was received (a digital forensic Single Expert). That Report indicated, as far as the mother was concerned, that the father had taken covert videos of the mother and X in the bathroom when on the cruise in April 2016.
The children’s time with the father resumed after orders were made by Senior Judicial Registrar Crawford on 2 September 2021.
In or around December 2021, X ceased spending time with the father however Y’s time with the father continued.
Issues in dispute in Phase 1 of the trial: May 2022
The final hearing in this matter was listed for five days, commencing 9 May 2022. The mother sought orders that the children have no contact with the father and sole parental responsibility in her favour.
The father sought equal shared parental responsibility and a graduated time regime that would ultimately see the children spending time with him on alternate weekends from the conclusion of school Friday to the commencement of school Monday, afternoon time once a week, various block holiday times and a range of specific issues orders.
It quickly became apparent that the trial would not conclude in those five days. On the fourth day, the father gave notice he would bring an Application in a Proceeding for reportable family therapy to occur when the matter went part heard. The father’s application was supported by the Independent Children’s Lawyer (“the ICL”). The mother brought an Application in a Proceeding too, which proposed the father attend upon family violence therapy. The parties also agreed to suspend that part of the 2 September 2021 Order which provided for X to spend supervised time with her father.
On 13 May 2022, I made an order for non-reportable therapeutic counselling, but for the counsellor to provide an Outcome and Future Directions Report. I also indicated the father could attend family violence therapy, at his election. I gave ex tempore Reasons, which ought be read in conjunction with this Judgment (Byrne & Byrne [2022] FedFamC1F 343). When the matter came back before me, the father had chosen not to engage with any further form of family violence therapy.
The part heard period
The trial went part heard with the mother, unfortunately, under cross-examination. The mother’s counsel’s cross-examination of the father went much longer than anticipated. This was an unfortunate but unavoidable consequence. On 23 November 2022, the Court received the Outcome and Future Directions Report prepared by Dr C (“the family therapist”). The report (Exhibit B) detailed that X had become increasingly anxious about seeing the father, and as a result, the family therapist made the decision to pause therapy.
The father became self-represented. At the ICL’s request, I listed the matter on 17 February 2023 and made a s 102NA order prohibiting the father from personally cross-examining the mother. Orders were also made for all parties to be provided with the transcript for the 2022 hearing to assist any practitioner engaged by or allocated to the father.
I had a compliance check in March 2023. The father had obtained s 102NA representation. I required the mother and father to circulate a preliminary minute of order prior to trial so all parties understood their cases. This was in circumstances where X was not seeing the father and the non-reportable therapy had been suspended. Y was still spending time with the father.
Narrowing of issues in dispute prior to the trial resuming
In her preliminary minute, the mother maintained her no contact case for both children.
In his preliminary minute, the father no longer sought orders for specific time with X but proposed a process where time and communications would be facilitated if the child sought it and appropriate supports were put in place. The father still sought specific time in relation to Y, being a graduated schedule of time, culminating in alternate weekends from the conclusion of school on Friday to the commencement of school on Monday. In addition, the father proposed half holidays and special occasion time on Y’s birthday, Father’s Day and Christmas. The father sought other specific issues orders with respect to travel, extracurricular activities and non-denigration. The father proposed that the mother have sole parental responsibility and that the children live with her.
A further narrowing of issues in dispute in Phase 2 of the trial: March 2023
On the final day of the hearing, the parties handed up a signed consent order (Exhibit J). The consent order provided the mother have sole parental responsibility for the children, and that the children live with the mother. It further provided orders that X spend no time with the father unless she expressed a wish to do so. Various specific issue orders were also made, including that the children retain the father’s last name, and that the children may travel with the mother outside of the Commonwealth of Australia. I made those orders.
So the parties have one document containing all orders, I have included those consent orders in a notation to the orders made today.
The final issues in dispute
At the end of evidence, the ICL handed up a proposal for Y (Exhibit I), which the mother largely adopted. It proposed Y:
·Spend time with the father for four non-consecutive times per year as close to Easter as possible, in July, as close to Y’s birthday as possible and as close to Christmas as possible with each time to be nominated by the mother in writing;
·For the years 2023, 2024 and 2025 the time between the father and Y be supervised at the B Contact Centre;
·Thereafter time be supervised by a supervision service for a period of four hours with the father to meet the sole expense of all supervision; and
·In submissions, the ICL proposed that from the age of 14, Y could spend time with the father in accordance with his wishes.
In submissions, the mother proposed that the time would continue four times per year. However, at 14 years Y could decide whether that time be supervised or not. The mother said she would accept some provision being made for paternal cousins to attend supervised time once a year. She was steadfast in her view that the paternal grandparents could not attend.
The father maintained the position proposed in his preliminary minute of order.
By the time of submissions, all parties agreed that if I found the father an unacceptable risk of harm to the children, then, I ought make the orders proposed by the ICL and mother.
DOCUMENTS RELIED UPON
The applicant father relied upon the following documents, as set out in his Outline of Case Document filed 5 May 2022:
·Amended Initiating Application filed 29 April 2022;
·Affidavit of Mr Byrne filed 29 April 2022;
·Affidavit of Ms O filed 15 June 2020;
·Affidavit of Mr O filed 15 June 2020;
·Affidavit of Ms M filed 14 April 2021;
·Affidavit of Ms P filed 15 June 2020;
·Affidavit of Ms N filed 4 September 2019;
·Affidavit of Mr R filed 15 June 2020; and
·Affidavit of Mr S filed 15 June 2020.
Ms P, Mr R, Ms M and Mr S were not required for cross-examination (Transcript 12 May 2022, p.345 lines 26-29). That meant their evidence came before me unchallenged. Ms P deposed to her positive, yet historic, observations of the father at the mother’s business and with X. Mr R gave a report as a forensic document examiner as the father maintained his signature on a contract in 2013 was not his. No one pursued this signature issue with any vim. No submissions of consequence, if any, were made about it either.
Ms M supervised a number of visits between the children and father in the second half of 2020. She described the time as “always” very positive. She deposed that the father showed “positive parenting techniques and has a healthy relationship with both the children, providing a safe, comfortable and engaging environment”. Her material was historical in nature and not terribly helpful for the matters before me now.
Mr S is an accredited mental health social worker. In his report, he spoke of his five sessions with the father over November 2019 to March 2020. He also met with the mother during this time and was provided with a range of family law material, including the family consultant’s report. Mr S’s engagement with the father was at a time when the father was half way through completing a men's behaviour change program through Q Family Services. The therapist noted:
[Mr Byrne] did show a capacity to take some responsibility, yet tended to shrink his contribution in the conflict. Furthermore, he identified himself as being the victim of a control dynamic within his relationship with [Ms Byrne]. Although this may or may not be accurate, it is of interest that [Mr Byrne] chose to repeatedly focus on the behaviour of others, rather than to focus on his behaviour during initial discussions. …
Over the course of counselling, [Mr Byrne] has been observed to make positive changes in relation to his willingness to discuss his behaviour and to recognize key points where he could have redirected events in a way to minimize conflict. He has shown an improved capacity to consider his role in the experienced conflict with [Ms Byrne], and in some of the examples discussed, he has assumed responsibility for his contributions.
A clear progression has been noted by [Mr Byrne's] increased motivation and engagement in therapeutic discussions aimed at improving future outcomes. [Mr Byrne] has been less focused on past concerns and more so on discussing current matters.
(Annexure A to the affidavit of [Mr S] filed 15 June 2020, p.5-6)
The respondent mother relied upon the following documents as set out in her Outline of Case Document filed 6 May 2022:
·Affidavit of Ms Byrne filed 20 May 2021;
·Updating Affidavit of Ms Byrne filed 5 May 2022;
·Affidavit of Mr T filed 20 May 2021;
·Affidavit of Ms E filed 20 May 2021 (for reasons I do not understand, but do not matter, one affidavit from this witness was listed in the mother’s case, and a second in the ICL’s case);
·Affidavit of Ms U filed 20 May 2021 (limited to paragraph 37);
·Affidavit of Ms V filed 20 May 2021;
·Affidavit of Mr W filed 20 May 2021;
·Affidavit of Dr Z filed 4 May 2022; and
·Consolidated/Updated Affidavit of Ms AA filed 5 May 2022.
The mother also relied upon the court experts, Ms D and Dr L, but I have listed their material under the ICL documents.
Mr W was not required for cross-examination (Transcript 9 May 2022, p.41 lines 1-2). That meant his evidence came before me unchallenged. Mr W, an IT professional,deposed to assisting the mother on 9 November 2019 in recovering an email, with attached screenshots, that had been deleted from the mother’s phone. This is the cruise video issue.
Counsel for all parties reached a consent position that Ms U was not required for cross-examination and her affidavit would be admitted into evidence limited to paragraph 37 only. In that paragraph, Ms U deposed the father had a video of her, to which she had not consented. The father denied non-consensual videoing.
The ICL relied upon the following documents, as set out in her Outline of Case Document filed 5 May 2022:
·Child Inclusive Conference Memorandum filed 5 November 2019;
·Family Report of Ms D dated 16 September 2020;
·Updated Family Report of Ms D dated 19 January 2023;
·Affidavit and Report of Ms E filed 9 June 2021;
·Report of Dr L filed 8 February 2021; and
·Outcome and Future Directions Report of Dr C dated 23 November 2022.
The parties had also produced tender bundles, but I indicated to counsel at the very start of the trial that I would not receive those bundles into evidence. Rather, counsel would tender documents in the usual way as the trial progressed.
In total, 26 Exhibits came into evidence.
The standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
PARENTING PROCEEDINGS – LEGAL PRINCIPLES.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 65D(1) of the Act provides that this court may make such parenting orders as it thinks proper, subject to ss 61DA (equal shared parental responsibility) and 65DAB (re parenting plans and thus irrelevant here). Section 60B of the Act sets out the objects and principles of Part VII as follows:
The objects are to ensure that the best interests of children are met by:
•ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted at [8] that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
However, the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
Further, if the presumption does apply, then it may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Whilst the father commenced the trial in 2022 seeking equal shared parental responsibility, he concluded it by agreeing with the mother and ICL that the mother have sole parental responsibility.
Exhibit J is the signed consent order, which I made for the brief reasons given at the time. Suffice to say, the father’s admitted family violence towards the mother rebutted the presumption. Further, the complete breakdown in communications between the parents meant it was not in the children’s best interests that they be exposed to the parents attempting to make equally shared major long terms decisions.
I made the sole parental responsibility order in the mother’s favour. That means I am not mandated to follow s 61DA of the Act which would otherwise require I consider equal time, and significant and substantial time. In short, my consideration is “at large”, albeit conditioned by the relevant considerations in Part VII of the Act.
Best interests of the child
Section 60CA of the Act provides that “[i]n deciding whether to make a particular parenting order in relation to the children, a court must regard the best interests of the children as the paramount consideration”.
The best interests of a child are determined by an examination of the considerations set out in s 60CC of the Act. In Tibb & Sheean (2018) 58 Fam LR 351 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. The relevant considerations are determined by the way in which the parties presented their cases.
The primary considerations set out in s 60CC(2) of the Act are, as follows:
•the benefit to the child of having a meaningful relationship with both of the child’s parents; and
•the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b) of the Act.
Section 60CC(2)(a): a meaningful relationship
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held at [169]:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
In Loddington Cronin J further added at [173] that an assessment of the benefit to the child must be made according to “the peculiar facts of what the parents are offering”.
In Cotton & Cotton (1983) FLC 91-330 (“Cotton”), Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
… that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
In McCall & Clark (2009) FLC 93-405 (“McCall”) at 83,476, the Full Court said at [122]:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents will be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
Section 60CC(2)(b): protection from harm
The second primary consideration in determining a child’s best interests is set out in
s 60CC(2)(b) of the Act. That is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.The Appeal Division of the Court in Isles & Nelissen (2022) FLC 94-092 (“Isles”) summarised the authorities on unacceptable risk since M v M (1988) 166 CLR 69 (“M v M”). The Appeal Division said that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.
The five judges of the Isles Court also said of the decision in In the Marriage of N and S (1996) FLC-655 at [12]:
12.Fogarty J stated it is necessary for a trial judge to give real and substantial consideration to the facts of the case and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child (at 82,713-82,714) and, furthermore, the qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm (at 82,714)...
The Isles Court at [35] went on to quote Tree J in Bant v Clayton (2015) 53 Fam LR 621:
171.Risk assessment involves determining firstly, the degree of the likelihood of the postulated event, and secondly, the prospect and magnitude of harm that may flow if the event occurs. The weighing of those two considerations – even accepting they may be imprecisely expressed within parameters – will inform whether the risk is adjudged to be acceptable or not. However that conclusion cannot be made in the abstract.
The Isles Court agreed with and adopted Austin J’s judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter [2007] FamCA 350; (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
In Hickson & Matthew [2022] FedCFamC1A 161, Deputy Chief Justice McClelland said this of Justice Austin’s analysis at [39]:
39.Additionally and relevantly for the purpose of this appeal, I would expand upon that insightful analysis by Austin J with the following guidance that emerges from authorities:
(1)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A[1998] FamCA 25; (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
(2)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
(3)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page[2007] FamCA 1235; (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(4)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”
There is no question that the children need to be protected from any form of harm at the hands of the mother. I have made an order by consent that the children live with her.
The mother and ICL approached the issue of harm on two bases:
The videoing
(a)If I found the father had surreptitiously filmed the mother and child naked in the shower when on a cruise together, then:
(i)Because the father denied it and no context could be given to such filming (for example, was it for his sexual gratification or some other reasons); then
(ii)I would find the father an unacceptable risk to the children;
(iii)I would be unable to assess the risk into the future because I cannot identify what that risk actually is; and
(iv)I would also be unable to assess the ability to mitigate the risk, because the denial and consequent lack of context meant I could not identify the actual risk to consider mitigation; so
(v)I would make the orders the ICL and the mother proposed; then
(vi)It would be unnecessary for me to consider the risks from the father from his admitted violence and abuse because the videoing issue constituted such a violation of boundaries that it would ‘trump’ all.
The admitted family violence and abuse
(b)All parties accepted the father made the many admissions he did. The question is what do I make of that:
(i)The mother and ICL submitted the father’s actions constituted coercive control and thus an unacceptable risk to the children of physical or emotional harm; and
(ii)Allied to this is the mother’s R & C [1993] FamCA 62 / Re Andrew (1996) FLC 92-692 case, where I am asked to look at the impact of the father’s violence and abuse on the parenting capacities of the unchallenged residential parent – the mother. I will consider that under s 60CC(3).
The father denied any involvement in the videoing. As for family violence, the father said he was not an unacceptable risk and had learnt much from his time with professional Mr S and his men’s behaviour change program. His counsel submitted the admitted violence and abuse was situational not coercive and controlling.
Should I find unacceptable risk – either from the videoing and/or the family violence - then I must consider whether such risk can be mitigated. Ms D gave evidence that if I found the father was responsible for the videoing, then her recommendation would be no contact and added:
…without knowing the purpose of doing so, it’s difficult to try and ascertain what the associated risk is – whether it’s risk of potential sexual harm, whether it’s risk associated with coercive control and family violence. And, therefore, if the risks are unknown, it’s very difficult to ameliorate those risks and, therefore, if the court were to determine the children are at unacceptable risk of harm, my recommendation would be no time. And I couldn’t make any suggestions in terms of ameliorating the risk because the risk, the actual risk, is unknown because his motivation and intention for doing so is unclear because he has made no concessions that that had occurred.
(Transcript 30 March 2023, p.12 line 43 to p.13 line 4)
If I found the father had engaged in coercive control, then Ms D’s recommendation was that:
[MOTHER’S COUNSEL]: …Now, I just want to clarify this with you. Is what you’re saying that if her Honour finds that there was family violence, including coercive controlling behaviour by [Mr Byrne] through the relationship and after, that that – you say that that – he should be having no contact?
[MS D]: That would be up to her Honour to determine whether or not – what the associated risk of harm is. But I would have concerns about the children’s safety and wellbeing if they were to spend time with their father if her Honour accepted that there was an aggressive controlling dynamic throughout the relationship, and that had continued post-separation because of the potential risks to the children associated with spending time with a coercive controlling family violence perpetrator.
(Transcript 30 March 2023, p.28 lines 11-20)
I am, of course, not bound by the expert’s recommendations and ultimately must make orders which I consider to be in the children’s best interests on the totality of the evidence (In the Marriage of Hall (1979) FLC 90-713).
I will deal with the video allegations and family violence and abuse allegations in turn.
The videos
As part of a trip to the United States of America, the mother, father, X and members of the maternal family went on a cruise during April 2016. The mother, father and X shared one cabin notwithstanding the mother said the parties separated in March 2014. During the cruise, the mother alleges the father took covert videos of her and X whilst they were in the bathroom and shower. The mother alleges the father was acting oddly during the cruise, would enter and exit the bathroom before her, and, would send X in to the bathroom to shower with her mother. The father denied all.
The father said he took his mobile phone with him on the trip, but it had no international roaming. This was the phone referred to as ‘phone one’ in the trial. He said that phone one remained in the safe for the majority of the cruise. He said the parties also had a mobile with a US SIM card. The mother had her personal mobile with her too.
After the cruise, the parties flew to City EE for several more days and then returned to Australia.
When in City EE, the mother deposed that she examined the contents of the father’s phone whilst he was passed out from alcohol use. She said she came across the videos on the father’s phone. The father denied he was passed out. I do not need to resolve whether the father was passed out or was just asleep. It does not matter.
The father accepted the mother had access to his phone as “the hotel room we stayed at in City EE had one power point which is located on her side of the bed, and that was where the phone was plugged in of the evening” (Transcript 10 May 2022, p.182 lines 39-42). He said he had not changed the passcode to the phone, which meant the mother would be able to access it (Transcript 10 May 2022, p.182 lines 44-45). And she did. That is common ground.
The mother says she watched all the videos said to be on the father’s phone in relation to the covert filming and tried to airdrop them to herself. However, the files were too large so she said she took screenshots of what she said was on the father’s phone and emailed the gallery of the video thumbnails to herself.
Annexure C to the mother’s affidavit of Evidence in Chief are the screenshots the mother says she took of the father’s phone and then emailed to herself on 28 April 2016. The screenshots in Annexure C include nine pixelated thumbnails of videos of the mother in the bathroom. The thumbnails have a movie camera symbol on them and records the duration of each video. There is no evidence in those thumbnails to show that X was also present, but I only have the thumbnails not the videos themselves. The Single Expert said a thumbnail is usually the first frame of a video.
Larger, un-pixelated reproductions of those thumbnails became sealed Exhibit D, to be opened only by me. The parties and legal representatives had seen them, but handed their copies back to the mother’s lawyers. The thumbnail videos vary in length from 25 seconds to 2 minutes and 18 seconds.
The father was taken to each of the thumbnails and accepted that each showed the mother and accepted that the surroundings looked like the cabin bathroom.
The mother says that the father deleted the files from his device/s and deleted them from the mother’s device/s. The father denied this and maintained in cross-examination that the images had never been on his phone (Transcript 11 May 2022, p.281 lines 43-45). He added that he had never seen those images on his phone (Transcript 11 May 2022, p.282 line 6-9). He said it was (and is) his practice to delete blurry photos or those accidentally taken from his gallery (Transcript 11 May 2022, p.283 lines 1-3).
The mother said the father had the opportunity to delete the material on her phone, and in particular, the email with the screenshot attachments when she took X to the toilet and left her phone on the table at breakfast the day after she had viewed the videos. The father denied the mother left her phone on the table at breakfast and said she never left her personal phone unattended when he was around (Transcript 10 May 2022, p.186 lines 25-29). The mother also said when she came back from the toilet, the father was holding her phone. The father denied that.
The mother said she confronted the father about the videos later that day. She said he denied taking the videos. The mother said the father told her amongst other things, “you have no proof, no one will believe you, you stupid bitch”. The father denied this aspect of the conversation but agreed that the mother did confront him, but with respect to some texts the mother had seen on the father’s phone between the father and another woman. The father accepted he had been texting with this other woman.
The mother said she then took a “submissive approach” to the 2016 videos and to keep the peace said to the father “…let’s just move on” (Mother’s affidavit filed 20 May 2021, paragraph 121). The parties then went on a number of holidays together in January 2017, April 2017, April 2018 and stayed in the same room or cabin until a holiday in 2019.
After the father commenced these proceedings, the mother consulted a data recovery expert in November 2019 to have the email and attached images recovered.
Dr L was appointed as the Single Expert in the matter on 7 December 2020. Dr L was appointed to examine the devices owned by the father and the mother. Dr L’s report dated 8 February 2021 became Exhibit C2, and included the following with respect to the father’s laptop:
7.7 When a digital camera device, be it an actual camera or mobile phone takes a photo or video, it allocates the photo or video a unique file name and in this case, prefixed with ‘IMG_’, and are in ‘jpg’ format for photographs and ‘mov’ format for movies.
7.8 The file numbering is strictly sequential and the numbering is sheared [sic] in sequence between the photographs and videos.
7.9 Any gaps in the file numbering are due to those specific photographs or videos having been deliberately deleted.
7.10 For the date range in question, 35 photographs or videos have been deliberately deleted.
(Exhibit C2, p.10)
In cross-examination the father did not dispute 35 photos or videos had been deleted. In cross-examination, Dr L accepted that the photographs or videos could have been accidentally deleted. His report about the father’s laptop continued:
7.11 None of the photos or videos present, are those that the Mother, alleged were taken of her and her daughter near the shower.
(Exhibit C2, p.10)
With respect to the father’s iPhone, the Expert said this:
7.17 The photos were created on an iPhone 6 and been migrated to this iPhone presumably when he upgraded his phone to a new model.
…
7.19 However, as the photographs and videos were not taken on the phone examined it was not possible to attempt to recover deleted files.
…
7.23 For the date rang [sic] in question 38 photos or videos have been deliberately deleted.
…
7.28 None of the photos or videos are those that the Mother, alleged were taken of her and her daughter near the shower.
(Exhibit C2, p.11-12)
With respect to the mother’s laptop, Dr L said at paragraph 7.32 that none of the photos on the laptop matched those on the father’s devices and were not part of the same thread of photos.
With respect to the email of 28 April 2016 wherein the mother sent the screenshots to herself, Dr L opined:
7.36 The email header has been reviewed and all aspects of the header reveal it is genuine and was sent on the date and time listed and was sent from an iPhone.
(Exhibit C2, p.13)
Dr L continued:
7.40 Annexure L5 is a screenshot of the 20 thumbnails images that were photographs or videos and is the same screenshot presented by the mother. Warning this contains some nudity.
…
7.42 Annexure L5, has the file name ‘IMG_0779.PNG’ and is the same screenshot provided by the Mother, which she alleged is evidence she had of the photographs and videos on The Father’s phone of her and her daughter naked near the shower.
7.43 The metadata in the raw file indicates it was created on ‘2016-04-27T13:42:04’, UTC, which in the Australian time zone as per The Mother’s phone was set to equates to ‘27 April 2016 at 11:42 PM’.
7.44 All the meta data suggests this screen shot is genuine.
7.45 From the top left, seven of the thumbnails are present on The Father’s iPhone as shown in Annexure I and matches the following images: [being IMG_3315.JPG to IMG_3317.JPG and then IMG_3320.JPG to IMG_3323.JPG]
…
7.47 Reviewing Annexures I and J, between the image present IMG_3323 and IMG_3331 there is a gap of seven missing files and after IMG_3331 and the next file IMG_3340, a further gap of eight missing files. A total of 15 missing files that have been deliberately deleted.
7.48 Therefore, based on the information supplied by the Mother, that she observed these photos and videos there is a gap in the file sequence for them to have existed.
(Exhibit C2, p.13-14)
The parties flew back to Sydney from City EE in April 2016.
The mother said she called a police hotline about the footage but took the matter no further. That was despite the fact the mother maintained the father took the videos of her and X for his own sexual gratification. The mother did not get an incident number for her call to the hotline. As worried as the mother said she was about the filming, the mother did not take the matter up with child safety officers. She did not stop X spending time with the father. She agreed that after the cruise the father would continue to come to her house and would sometimes be alone with X. She agreed that the father would be around children at her business. They went on more holidays together and shared a room/cabin.
There were no further allegations that the father filmed either or both of the children or the mother when in the bath, the shower, bathroom, or toilet. The mother agreed the father continued to shower with X and then Y. She required him to wear bathers. When asked why she did not stop that, she said she had no choice. Objectively, the mother did have a choice, for example, to stop time, or take the matter up with child safety or file in this Court. She did not do any of those things. The mother contends her acquiescence or submissive approach was consistent with her approach to the father’s wider controlling and coercive conduct.
With respect to the mother’s iPhone, Dr L said at his paragraph 7.53 that “none of the photos on the iPhone, matched those on the father’s devices and were not part of the same thread of photos”.
Dr L then responded to specific questions in his report as follows:
8.1.1.1 There is no direct evidence the videos or photographs were taken on the Father’s mobile phone, however there are gaps in the file number sequence, where photos were present but have been deliberately deleted and the original mobile phone they were taken on, has not been presented for examination.
…
8.1.2.1.1A screenshot was located on the Mother’s laptop and is the same screenshot in her possession and there is no evidence to show it has been altered.
…
8.1.2.2.1This screenshot has no evidence to show it is not genuine and therefore appears to be a contemporaneous shot of the Father’s mobile phone gallery.
…
8.1.2.3.1The videos and photographs missing are in the same chronological order as the photographs and videos that are still present. This is when it is suggested the offending photographs and videos were supposed to have been taken, as shown in the screenshot at Annexure L5.
…
8.1.2.4.1None of the videos or photographs were taken on the Mother’s phone…
(Exhibit C2, p.15-16)
Dr L concluded that there were missing files on the father’s devices that have been deleted, in the sequence of files around the same time as the alleged recordings were said to have occurred. He also concluded that the original email with the screenshot attachments taken by the mother was genuine. None of this though assists me in determining who took the videos.
The father did not present phone one for examination by the Expert. However, given the passage of time between the cruise in 2016 and the Expert being engaged in December 2020, I am not critical of the father upgrading his phone and disposing of the old one in the intervening time.
Dr L was cross-examined. Relevantly, he said he could not determine on whose phone the videos were taken. He confirmed there was no direct evidence they were taken on the father’s phone.
Dr L also agreed the gap in the sequencing could have been any photos and not at all related to the bathroom photos.
With respect to the mother’s email to herself and attached screenshots, the expert also agreed to a question from the ICL’s counsel “how are you able to ascertain it’s a contemporaneous shot of the father’s mobile phone gallery as opposed to something else?”. He answered:
Yes to be fair it could have come from any device.
(Transcript 29 March 2023, p.19 lines 46-47)
In his Case Outline, the father submitted:
The father has consistently denied that he had been involved in or taken any photos/videos as the Mother alleges. Some points to note about the alleged photo gallery are as follows;
a) It beggars belief that if the mother was so concerned for [X’s] well being, then why then did she voluntarily go on further cruise ship trips overseas with the father on similar cruises, in 2017 and 2018 where the parties shared the same room and bathroom facilities with the children.
b)[X] cannot be seen in any of the bathroom gallery pictures presented in the Mother’s evidence.
c)The mother has made inconsistent statements in the affidavit relating to the incident the correct version of previous evidence relating to confronting the father.
d) [Dr L’s] expert evidence clearly states there is no evidence that the Father’s phone at that time took the said pictures.
e)The gallery pictures presented of the mother and nude pictures and are not of a pornographic nature.
f) The pictures have never resurfaced in any format in the public arena.
g)Parties have attended further cruises in 2017-2019 and shared the same cabin -- and it seems peculiar that the Father has only chosen one occasion to take nude pictures of his daughter with the Mother, his then wife in 2016.
(Father’s Outline of Case Document filed 5 May 2022, p.4)
By the time of submissions, the father did not pursue the suggestion that the mother, her brother, or her mother could have air dropped the photos to him. Rather, the father focused on why I could not find, on the balance of probabilities, that the father took the videos. In other words, his case was that the mother had not discharged the onus upon her in making the allegations she did about the father. There was no suggestion that X or a third party took the videos.
The father also submitted that the mother had failed to overcome the hurdle mounted by s 140 of the Evidence Act. The father stressed in submissions what Dr L said at 8.1.1.1 and in oral evidence, that there was no direct evidence the videos were taken on the father’s phone.
It was said by the father that it was not physically possible for the father to take the videos. It was also said that when the videos started, the father would have to have been near the phone to turn it on, but there was no evidence he was. A contradiction in the mother’s evidence was highlighted, being at one point she said the father stood at the door to film, but at another point, the camera was hidden in the bathroom. I do not accept her evidence was the stark contradiction the father would have me accept. Rather, the mother was giving possibilities about how the filming could have occurred. The father added there was no evidence of the device being remotely controlled. It was also highlighted that: Dr L’s evidence was the deleted files could have been of anything; there was no reflection of the father or a camera in any of the screenshots; and, the first screen did not show the father having just pressed play.
It was also submitted that after the videos were taken, it was completely anomalous of the mother to continue holidaying with the father, to allow unsupervised time and let the father shower with X in swimmers. It was said the mother plainly did not consider the father was an unacceptable risk at the time, and that she did not go to the police in any formal sense and did not go to child safety. Yet she was able to stop time when Dr L’s handed down his report, but not when the videos were apparently taken.
The ICL submitted that it was more likely to be the father who took the recordings than the mother. The problem with that process of elimination is that it switches the onus; that is, if it is not the mother, then it must be the father. I prefer the father’s approach to this issue and not risk switching the onus onto the father to disprove it was him.
The mother largely adopted the ICL’s approach. A submission in reply was made by the mother’s counsel with respect to the proposition that the first screen on the thumbnail ought have been a picture of the father after pressing play. The mother submitted that the first frame of the thumbnail, showing the father after turning the video on, could have been edited. The same would have to apply for pressing stop. But the expert was not asked about that. The mother did not depose she saw any vision of the father turning on and turning off the device when she inspected the father’s phone. I would be guessing if the deleted files on the father’s phone included such edits.
Analysis and disposition of the video allegations
Two issues arise: (1) am I satisfied on the balance of probabilities the videos were on the father’s phone, and (2) who took the videos.
Can I be satisfied the videos were on the father’s phone
With respect to the allegation that the videos were taken on the father’s phone, some critical matters fell from the Expert in cross-examination:
(a)There is no direct evidence the father’s phone was used to take the videos;
(b)The gap in the sequencing could be from the deletion of any photos; and
(c)The mother’s screenshots of the alleged videos could have been taken of any device.
Further, both parties could access the father’s phone. There is no evidence before me to support the mother’s submission in reply that vision of the phone being turned on and turned off could have been edited.
Accordingly, I cannot be satisfied on the balance of probabilities that the videos were taken on the father’s phone.
There is no evidence that the videos were taken on the mother’s phone, but that does not mean I can conclude it was the father’s device. That would switch the onus to the father to disprove the allegation.
However, there are screenshots of the mother before me, taken on a device I cannot ascertain. The next question is who took them.
Can I be satisfied who took the videos?
In cross-examination the father was steadfast in his denials with respect to the videos being on his phone, and equally steadfast in his denial that he had taken them in the first place.
At one point in her evidence the mother thought the father would keep the door open to film but at another point agreed that at least on the thumbnails the bathroom door was closed. The mother was speaking of possible modes of action, but her evidence highlights the uncertainty in relation to this matter. On the thumbnails that are in evidence before me, there is no reflection showing the father’s image, nor is there any reflection from a camera light. Of course, where the person stood when filming would determine if their reflection was captured. Equally, it would depend on what camera setup was used to take the videos for there to be a reflection of the camera’s light. These too add to the uncertainties attendant upon this issue.
The father focused his submissions on why I could not be satisfied on the civil standard that it was the father. He did not press for a finding that the mother took the videos. Instead, he focused on whether the mother had discharged her onus in making the allegations against the father as she did.
I accept the mother has told different versions of events about confronting the father the next day as set out in the father’s affidavit at paragraph 58, but none of that helps me determine who took the videos in the first place.
Similarly, a curiosity in all of this is that if I accept the expert’s evidence that a thumbnail is usually the first frame of the video, then it would be expected to see the recorder of the video being seen in the first screenshot, having just turned the phone on. There was no suggestion by the parties that the recordings were made by anything other than a mobile. The mother submitted that the first screen could have been edited, but the expert was not asked if this was a probability.
I also do not understand why the mother would leave her phone, containing this evidence, unattended with the father the next morning.
No one suggested the recording was done by any remote means. The parties’ concentration was on mobile phones, with both parties being able to access the father’s phone.
I am simply left guessing whether it was the father. A guess is not reasoning. A guess does not support a finding on the balance of probabilities. Accordingly, I cannot find it was the father.
That finding means I do not need to consider whether the father poses an unacceptable risk to the children from the alleged videoing in April 2016.
The father’s family violence
The father made many admissions of family violence and abuse towards the mother (and wider family members), some of which were in the presence or hearing of a child or children. The father is to be commended for his admissions, but that does not excuse or absolve him. Nor does it take away from the fact that the mother (and some family) experienced all he had admitted. The father’s admissions are one side of the coin. The other is the mother (and children when present) as the recipient/s.
In her Outline at paragraph 5(a), the mother said I need not look at all the allegations made by the mother with respect to family violence, as the convictions and admissions were sufficient to establish the fact of family violence. I agree; I need not delve into all of the many other allegations made.
I will however now give some examples of the father’s admissions, but also the context so focus is not lost on the mother and children as the recipients of the father’s conduct.
Punched his father when 16 in 1996
The father accepted that in 1996 he punched his father and that it caused a black eye. The father contended that this action was in self defence (Transcript 9 May 2022, p.37 lines 5-6). The paternal grandfather was cross-examined about this event and readily accepted the father gave him a “shiner”. The paternal grandfather deposed “[w]e do not condone violence and are not a violent family” (Affidavit of Mr O filed 15 June 2020, paragraph 7).
The paternal aunt was also cross-examined about this event and freely agreed it occurred. However, she maintained her belief that the father is not a violent person.
I will not take into account the actions of a 16 year old. I do not because at 16 years, the father was likely at an age when he was still immature (by adult standards), engaging in individuation from his family, and engaged in maladaptive, juvenile ways to challenge the authority of his father as an adult and father figure. That is not to condone his violence, but to understand it for what it was at that time. The same cannot be said of the father’s violence and abuse as an adult.
Punched the mother’s brother in 2011
Having seen both Mr T and the father give evidence, it comes as little surprise that these two males would have, to use the vernacular, butted heads.
Mr T was a non-responsive witness, keen to make his point irrespective of the questions. He was argumentative and loud. He impressed as someone who had a view, was not afraid to share it, and unlikely to compromise.
In cross-examination, the father was mainly calm and made many concessions. Yet, he too was non-responsive with some answers. However, he became quite agitated at times when sitting behind his lawyers, for example, when the costs of the ICL were being discussed. Equally when a submission was made by the mother’s counsel about his parents not being able to attend supervised visits, he was audibly heard to say ‘disgusting’. I have no doubt that he thought the submission was disgusting for casting aspersions on his family, but he was unable to contain himself in the solemn setting of a court.
Accordingly, it comes as no surprise that when the parties, Mr T and the father’s parents were watching a soccer game at the pub one night, the two men came to blows. The father alleged Mr T said to the mother a number of times “[y]ou’re nothing but a fucking slut” (Father’s affidavit filed 29 April 2022, paragraph 223). Mr T conceded that he did call the mother a ‘slut’ or a ‘bitch’ during the argument. That was entirely inappropriate on his part. The father admitted to punching Mr T once, whereas Mr T said the father punched him three times. All parties agreed that following this incident, Mr T was left with a black eye. I do not need to determine if it was one punch or three. It is common ground the father assaulted Mr T.
No charges were laid against the father as a result of this assault (Transcript 9 May 2022, p.63 line 27). The father conceded the attack was “horrendous” (Transcript 9 May 2022, p.68 line 17). The father said he had apologised but agreed that apology “absolutely” does not wipe away the incident (Transcript 9 May 2022, p.68 lines 23-30). Mr T accepted that the father had apologised to him.
The father’s conduct was completely inappropriate. By this time, he was an adult and his assault cannot be understood as maladaptive, immature teenage conduct. Resorting to physical violence for dispute resolution is not acceptable. Provocation is no defence to violence. This assault also showed the mother that the father was capable of physical violence.
March 2014 Assault on maternal grandfather
In March 2014, an argument arose between the parties when the maternal grandmother was giving medication to X. The father said the maternal grandmother was forcing the medication into the child. He felt the maternal grandparents were overstepping into parental responsibilities.
The following day, the maternal grandfather and father had an argument about this. The father deposed that the maternal grandfather was banging on the bathroom door and saying “[y]ou have a fucking problem with us, get out here and sort it out like a man” and the father responded “[g]et the fuck out of my house. I have nothing to say to you” (Father’s affidavit filed 29 April 2022, paragraph 42). The father accepted in cross-examination saying words to the effect of “how dare you come into my house, threatening me”.
The father accepted that he pushed the maternal grandfather (Transcript 10 May 2022, p.125 line 13). The police were called and the father was charged. He plead guilty to common assault (Transcript 10 May 2022, p.128 lines 19-20). The agreed facts (Annexure A to the father’s affidavit filed 29 April 2022) said:
The accused has opened the bedroom door in a matter of seconds, taken a few steps towards the victim and has pushed him to the chest with both arms using open hands and stiff straight arms.
The father agreed this was correct (Transcript 10 May 2022, p.131 lines 33-36). The Fact Sheet went on to say:
As a result of the push, the victim states he fell backwards.
The victim also has minor pain to the lower back region where his back hit the corner of the desk.
(Annexure A to the father’s affidavit filed 29 April 2022)
The father agreed that this was a fair summary although he noted he “probably should have read the facts a lot more carefully before pleading guilty” (Transcript 10 May 2022, p.132 lines 15-16).
The maternal grandfather was not called to give evidence. Counsel for the father submitted I ought draw a Jones & Dunkel (1959) 101 CLR 298 inference. I agree, but it matters little because in this instance the father stood convicted of assault on the agreed facts.
Of this incident, the father said in cross-examination “[i]t was the wrong reaction to have” (Transcript 10 May 2022, p.127 lines 43-44). I agree, but it is a second example of the father resorting to violence when in dispute with someone. This assault again showed the mother that the father was capable of violence to resolve disputes.
Following the incident, the father moved out of the former matrimonial home.
The 25 January 2019 cheese incident
The father admitted he threw a packet of grated cheese in the mother’s direction, very close to her (Transcript 11 May 2022, p.214 lines 19-21 and p.215 lines 38-39). The father gave evidence he was not aiming at her, however he accepted from the mother’s perspective there would be no difference whether he was aiming at her, or not (Transcript 11 May 2022, p.218 lines 15-29). The father conceded this incident occurred with Y in the room.
In cross-examination the father accepted Y heard him arguing with the mother. The father gave evidence he regretted his actions, appreciated the effect of those actions upon the mother and that he took “full responsibility” for this incident (Transcript 11 May 2022, p.220 lines 38-40).
However, this incident needs to be understood in the wider context of the father also agreeing that during the relationship he would yell and scream at the mother, had snatched the mother’s phone out of her hands, raised his voice at the mother to intimidate her and verbally abused the mother throughout the relationship. It was thus not a one-off situational response but part of a wider pattern “using a variety of different tactics, including threats, intimidation, psychological abuse, denigration…” as Ms D described (Transcript 30 March 2023, p.24 lines 20-21).
The father’s assault on the mother at the June 2019 changeover
In 2019, the father attended the mother’s business in Suburb BB to pick up the children. The children were due to spend time with the father. Afterwards, the children were to return to the mother’s business for an activity. It was the mother’s evidence that when the father arrived X did not want to go with the father; the father was not present for this conversation (Transcript 11 May 2022, p.226 lines 41-44). The mother deposed in her affidavit that the father spoke to X in a “loud and angry manner” and said “X get in the car now otherwise I won't bring you back. Get in now and stop it” (Mother’s affidavit 20 May 2021, paragraph 69).
In cross-examination, the father denied that he said this and gave evidence that he was trying to explain to X she was coming back for the activity but if she did not behave, he would not bring her back. In cross-examination, the father said he meant he would not bring her back for the activity. He did not mean he would not bring her back to the mother (Transcript 11 May 2022, p.227 lines 12-16). In cross-examination, the father said he could see how X would have misunderstood what he meant. He accepted that from X’s perspective, his comments would have made it worse for her (Transcript 11 May 2022, p.227 lines 18-24), thinking she would not come back for the activity and back to her mother.
It was put to the father that he chased X around the carpark; the father denied this. Instead, he said X was running about and he picked her up and carried her to the car (Transcript 11 May 2022, p.228 lines 22-25).
Both children have a primary relationship with the mother and she is their primary carer. It is important for the children that I not prejudice that relationship.
The father told Ms D the parties could wear body cameras at changeovers as a way to address the mother’s fears of him. That showed a lack of understanding on the father’s part about the impact of his behaviour on the mother and as Ms D said, it:
…shows that he’s not willing to take the responsibility of having behaved in that way previously. He wasn’t saying, “I would never behave in that way” before. It was, “We would wear body cameras so there’s evidence of what has occurred” was my understanding of what he was saying…as I said, it was concerning in terms of his insight.
(Transcript 30 March 2023, p.29 lines 42-47)
I agree with Ms D’s observation. The use of body cameras was more about the father being able to prove his innocence from any allegations at a changeover, than demonstrating an understanding of the impact of his many past behaviours on the mother. It sounded more like some kind of insurance for the father. It also contemplated the parties affecting changeovers together. That did not respect in any way the mother’s desire to keep away from the father.
Similarly, the father required X to attend supervised time only for her to sit in the car whilst waiting for Y’s three hours of supervised time to end. This was not child focused. This was the father putting his desire to see X ahead of the child’s emotional needs. It was, as the father himself conceded, selfish on his part.
The mother has engaged supports for X. I have no doubt that the mother would engage similar supports for Y if she deemed it necessary. The mother has also engaged an array of supports for herself.
Whilst the mother accepted Y had a good relationship with the father, the mother said it was very difficult for her and she struggled with supervised time. She said she had been unable to think about final orders for Y to spend time with the father for “fear for my children”. The mother’s psychiatrist described the mother’s fears as irrational fears. By that she meant that even though nothing had happened to the mother for some time, the mother still had a fear the father would do something to her or the children.
For example, the mother was of the view that the current supervisors would not stop any untoward conduct by the father to Y. She spoke of there being collusion between the father and the current supervisors and they would not keep the children safe. With respect, the mother’s explanations made no rational sense. Professional supervisors are being used and I do not accept, as a matter of fact, what the mother has to say. Rather, it demonstrates the mother’s irrational fears. I accept her fears whilst irrational, are genuinely held.
Similarly, the mother was also unreasonably critical of the questions the father or his family had asked the children. These questions included whether X had opened her presents, or, whether Y wanted the paternal grandparents to come to school. These are just normal day-to-day questions. It shows though that the mother’s mind irrationally sees negative when it comes to the father and his family.
The mother also gave evidence that she still has “not unpacked his coercive control”. Ms V has been seeing the mother for almost 10 years. She obviously has a therapeutic alliance with the mother, which is perfectly understandable. Yet, that means her sources of information are largely those from the mother directly. For example, she did not know that between 2016 to 2019 the children were spending time with the father at the mother’s house. Ms V did have two or three sessions with the father but took it upon herself to include in her report an impression she had that the father had cluster B personality type problems. She accepted that she had reached that impression on the two or three sessions with him and the rest was from the mother. She agreed she had added the cluster B reference to “bolster” the mother’s case. I do not put much weight on her evidence as objective, but that is a consequence of the therapeutic alliance she has with the mother.
The mother’s psychiatrist, Dr Z, diagnosed the mother with Post Traumatic Stress Disorder (“PTSD”) with anxiety based on the DSM-5 criteria. In her report, Dr Z outlined the mother’s presenting criteria that supported a diagnosis of PTSD:
Criteria A- exposure to life threatening incidents where she felt her life was in
danger
Criteria B- recurrent intrusive dreams, flashbacks of assault and physiological
reactivity
Criteria C- persistent avoidance, , inability to recall certain aspects of assault
and abuse , decreased interest in activities, restricted range of affect
Criteria D- insomnia, irritability, difficulty with concentration, startled responses
Criteria E- lasting for more than a month
Criteria F: Causing significant distress
(Affidavit of Dr Z filed 4 May 2022, p.24)
The mother has previously been prescribed antidepressants. Dr Z gave evidence that if the Court were to order time, the mother would need further treatment including EMDR to help with her fears. I accept her opinion. Dr Z is an expert and was not challenged about this in any significant way in cross-examination. I accept her evidence and in particular, her
DSM-5 criteria applicable to the mother.The Family Report writer opined that preserving the mother as the primary parent is of the utmost importance to the children (Transcript 30 March 2023, p.14 lines 37-39). Ms D went on to say she would remain concerned about the “indirect risk to the children associated with the impact on the mother, and what that then does to the parenting – her parenting and their relationship with her” (Transcript 30 March 2023, p.15 lines 33-34). I accept that to be so. It is common sense.
The mother indicated she would be able to cope with time four times a year. That must be so given she adopted the ICL’s proposed minute for Y to spend some time with the father, as opposed to the no time the mother had long been presenting. If regard is had to all the father has admitted, it is no wonder the mother needs respite from the father.
Ms AA was an impressive witness. She was focused on the children and the children’s needs. She was sensible. She agreed that Y had expressed no fears or worries about his father nor had he expressed any fears or worries about the other paternal family members. When asked how she would feel if the Court made orders for Y to spend time with the father, she said would be worried after seeing what X had been through. However, she understood I would undertake a risk assessment for Y and if I formed the view there was no unacceptable risk to Y from the father, she would facilitate time. She said they would support Y and make it work for him. Ms AA described that she and her husband had facilitated the children having time with the father by driving the children to supervised time. I have no doubt that Ms AA will continue being a support for the mother and the children and will assist in facilitating Y’s time with the father.
The orders I will make will allow Y the benefit of some time with his father, but in a safe and structured environment for several years. I have formed the view that the father has the capacity to provide for the child in such an environment whilst protecting the child from the father undermining the mother, exerting control over the child, or screaming and yelling at the child, or any of the other harms I have identified. In not bringing the parents together, the child will also be protected from incidents that have occurred between the parents in the past.
I have also formed the view that the mother will cope with this time and will support X to accept it too.
(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;
On the evidence before me, this consideration does not arise.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
This subsection does not arise.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child's parents;
The mother is plainly a responsible parent. I say that because it is clear on the reports of Ms D and is the implication of the father’s consent to orders that the children live with the mother. Ms D described the mother to be:
…enthusiastic and animated in her interactions with the children, who eagerly engaged in the play; [Y] was loud and animated in response, whereas [X] appeared more reserved. The children appeared relaxed and comfortable in their interactions with [the mother] and each sought her attention at times, which she was largely responsive to while also dividing her attention between the children.
(Exhibit A, paragraph 48)
The Family Report noted Y recalled a time when:
…[X] commented “Dad, you chased me around the car” and [Mr Byrne] denied this. [Y] said that he told [Mr Byrne] “you did” and [Mr Byrne] told him to “shut up”…
(Exhibit A, paragraph 44)
Ms D was cross-examined on the contents of this paragraph and gave evidence that it was “indicative of parenting deficits associated with coercive control” and that the father was “not willing to listen to the children’s views and their experiences, and just wants them to conform with his perceptions” (Transcript 30 March 2023, p.27 lines 29-30 and 31-32). I agree. It is completely inappropriate for father to tell a young child to shut up. I accept Ms D’s opinion that this fits within the pattern of coercive control.
With respect to the father’s attitude towards X, the Family Report notes:
…To his credit, [Mr Byrne] demonstrated insight that [X’s] relationship with him may be beyond repair and he appeared willing to tolerate the possibility that spending time with him may not be in [X’s] best interests….
(Exhibit A, paragraph 61)
However, whilst the father has accepted the outcome that his relationship with X is beyond repair, I have already discussed that I am not persuaded that the father has actually taken responsibility for his violence and abuse and his role in the cause of the breakdown of that relationship.
I otherwise repeat what I have said about s 60CC(2) and capacity to parent in s 60CC(3). The mother is a responsible parent. Those findings, especially with respect to family violence and abuse, reflect poorly on the father’s parental responsibility.
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
I have considered these factors and made extensive findings of family violence under the primary consideration s 60CC(2)(b).
The father mounted a case in his material that it was the mother who was the coercive controller. For example, she demanded access to his bank accounts and passwords. He was not to play soccer on what she determined would be a family day. He was limited in what he could spend on his bucks party. I do not need to determine whether this is so or not, in circumstances where the father proposes orders that the children live with the mother and she have sole parental responsibility.
There was evidence before me about the circumstances of Y’s conception. No one asked me to make a finding about that and I will not. The mother said she will “never” share her concerns with the children. It is not something I need to determine.
(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;
I have no doubt that the father will be disappointed by these orders, but that is a product of the Court’s focus on the best interests of the children.
As the parties have been engaged in proceedings since 2019, it is important that finality is reached for all parties involved but most importantly, the children. The proceedings have caused significant anxiety for X. The Family Report writer opined X needs to be told the outcome to relieve her anxieties - “any relief for X, in terms of the anxiety that she – that I’ve observed that she has been dealing with, it would be preferable to have that information [about the final orders] provided sooner rather than later” (Transcript 30 March 2023, p.7 lines 21-23). The Family Report writer said:
My concern, in terms of telling her sooner, is that orders in relation to [Y] [sic] are still up in the air. And that may, potentially, create some difficulties for both [Y] [sic] and [X] in that they’re not certain what is happening.
(Transcript 30 March 2023, p.7 lines18-20)
The children need finality.
(m) any other fact or circumstance that the court thinks is relevant.
I turn now to what I can do to mitigate the unacceptable risk of emotional and psychological harm posed by the father to the children.
The unacceptable risks I have identified are challenging to mitigate. That is because they rest on the father’s beliefs about the mother, his inability to actually understand his role in relationship breakdowns and continuing to blame the mother as recently as the 2023 Family Report. His views in the 2023 Report come after he did the men’s behaviour change course and attended upon Mr S.
I accept Ms D’s opinion that if there was to be growth in the father’s insight and understanding, it would have come after those interventions. Whilst the father said the right things in cross-examination in 2022, he reverted to type in the recent 2023 Family Report.
The only realistic way I can protect Y from the father saying or doing something harmful to the child is to impose professional supervision. That provides boundaries and the ability for a supervisor to intervene if the father is, for example, imposing his views on the child contrary to the child’s opinions, or is undermining the mother.
It may also help X to know Y’s time is not only supervised, but supervised by entities agreed to by the mother. Four times a year should not cause X undue distress; the mother adopted this so much be of the view she (the mother) will cope and so will X.
Specific issue orders
I make the orders largely proposed by the ICL and adopted by the mother. However, I make, or vary the following orders for the reasons given.
Duration of 2023-2025 time and frequency of time from 2026 to child turning 14 years
Perhaps an oversight, the ICL’s minute did not set out a duration of time for the four supervised visits between now and 2025. I have provided for four hours. The child is already spending three hours with the father. Four hours is consistent with what the ICL proposed for the 2026 time until Y turns 14 years.
Similarly, the time from 2026 to the child turning 14 years had no frequency of visits. I have adopted the four times per year as for the 2023 to 2025 hours. This is for consistency.
Mother to consult contact centre/supervision service when selecting dates
Although implicit in the ICL’s proposal, I have made it clear that the mother must consult the contact centre or supervision service before selecting dates. That is, she is to advise the father of dates which the centre or service can actually provide.
When the mother is to advise the father of her time nominations
The ICL’s proposal was silent on when the mother is to advise the father of time. The last thing I want is for the mother to tell the father, say the morning of time, but he is already working. I have simply divided the year into two halves and require the mother to advise the father of the two times in the first half of the year in January, and the two visits in the second half of the year in June. I have made specific provision for the July 2023 time, as that cannot fit in the timing for notification of time by the mother to the father.
I have also added an order that the father may give the orders to his employer for rostering purposes. The father has had difficulties appearing before me on short notice due to his work commitments.
Gifts
The ICL proposed an order that the father be able to give Y a gift when they see each other. I have extended that to X. If Y came home with a gift and there was nothing for X then she would in all likelihood feel that Y was the favoured child. That would not be helpful.
A public place
The ICL proposed the supervised time from 2026 to the child turning 14 years be in a public place. I have no idea why. I will not fetter the professional supervision service and tell them how to do their job. I will not make that part of the ICL’s proposed order.
Restraints on approaching Y
I have made the restraint proposed on the father approaching Y outside of this order consistent with the wording for X; that means I have added the clause “unless as agreed by the parties in writing or in compliance with Court orders” at the end of Y’s restraint order.
Paternal family attending supervised visits
The mother was steadfast in her view that the paternal grandparents should not be at liberty to attend the supervised visits. Counsel for the mother submitted this was a result of the level acrimony between the two families. Appropriately, the mother and the ICL recognised the relationship between Y and his parental cousins. The specified cousins will be at liberty to attend the supervised visit at Christmas.
In making an order that the paternal cousins G, J and K may attend the father’s supervised visit with Y at Christmas time, Y will retain the paternal family relationship he has formed with the other children of his extended family over his life.
However, I will make a further order that the paternal grandparents be at liberty to attend one visit per year. I accept there is high acrimony between the two families, but the time will be in a supervised setting. If usual contact centre and supervision service arrangements apply, the mother will not even see the paternal family, and vice versa. I do not accept the mother’s criticisms of the paternal grandparents; the questions they asked were entirely appropriate. One visit a year will be a physical reminder to Y of his paternal grandparents, and that they love him and have not abandoned him.
I will order this time to occur at a different time to the cousins. I do so because that gives the child two wider paternal family experiences a year. It may also be that the father, the cousins and the paternal grandparents all attending the one session would be too overwhelming for the child. I also do not know if the contact centre or supervision service could accommodate so many people.
Y’s time with the father in accordance with his wishes
Upon receiving the proposed order of the ICL (and adopted by the mother), I raised with counsel how long the supervision would occur for. The ICL proposed that an order could be made that from the age of 14, Y could spend time with the father in accordance with his wishes as Y would have developed some protective capacity by that age.
In submissions, the mother proposed that at 14 years, Y could decide whether that time be supervised or not. I do not consider it appropriate for the child, even at 14, to conduct his own risk analysis to determine whether time should be supervised or not. I agree with the ICL that by 14 the child would have developed protective capacities.
Provision of information
The consent order with respect to X requires the mother to email the father X’s school reports as soon as they are available to her. There is no reason why the same should not apply to Y and his reports. I will so order.
Communication
The parties agreed to an order that X communicate with the father according to her wishes. The father sought, essentially, weekly calls with Y.
Given my findings about the mother’s ability to cope with frequent parenting arrangements with the father, and my concerns for X, I will not make the communication orders proposed by the father. Instead, I will make the same communication orders for Y as I made by consent for X. This is an arrangement that the mother must be able to support.
Travel and other orders
The father sought orders, for example, for interstate and international travel. I will not make those orders as they are inconsistent with what I have determined to be in Y’s best interests. Other orders, for example non-denigration and extra-curricular activities, have been overtaken by the consent order or other orders I have made.
I certify that the preceding two hundred and eighty-nine (289) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 31 May 2023
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