Channing & Channing (No 4)
[2024] FedCFamC2F 1287
•19 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Channing & Channing (No 4) [2024] FedCFamC2F 1287
File number(s): PAC 5460 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 19 September 2024 Catchwords: FAMILY LAW – PARENTING – Both parents with limited capacity to act in best interests of children – Findings of family violence – Weight given to views of Children – Leaving door open for children to have relationship with the other parent Legislation: Family Law Act 1975 (Cth) as at 5 May 2024 ss 4AB, 60CA, 60CC, 60CG, 61DA, 65DAA
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) rr 3, 4, 8
Cases cited: Banks & Banks [2015] FamCAFC 36
Beckham & Quarrington (No 3) [2024] FedCFamC2F 74
Carter & Wilson (2023) FLC 94-129
Isles v Nelissen [2022] FedCFamC1A 97
Johnson & Page [2007] FamCA 1235
Leventis & Leventis [2024] FedCFamC1A 141
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 235 Date of hearing: 23-25 October 2023; 21 March 2024; 8 April 2024; 24 April 2024 Place: Parramatta Counsel for the Applicant: Mr Batey Solicitor for the Applicant: Hikma Legal Counsel for the Respondent: Mr Gardiner Solicitor for the Respondent: V Lawyers Counsel for the Independent Children's Lawyer: Dr McConaghy Solicitor for the Independent Children's Lawyer: Legal Aid NSW
Table of Corrections 27 November 2024 Citation “Leventis & Leventis (No 7) [2024] FedCFamC1F 143 at [15]” at [144] amended to “Leventis & Leventis [2024] FedCFamC1A 141 at [15]”. ORDERS
PAC 5460 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CHANNING
Applicant
AND: MR CHANNING
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
19 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The applicant mother shall have sole parental responsibility for Z born in 2012.
2.Z shall live with the applicant mother.
3.Z shall spend time with the father in accordance with his wishes.
4.The respondent father shall have sole parental responsibility for Y born in 2009.
5.Y shall live with the respondent father.
6.Y shall spend time with the mother in accordance with his wishes.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
While all parenting cases that come before this Court are difficult, some are more difficult and complex than others. This was one of those more difficult and complex cases.
It concerns two children, Y and Z (collectively ‘Children’). At the time of publication of these Reasons for Judgment, Y is 14 and Z is 12.
Y and Z are the children of the applicant, Ms Channing (‘mother’), and the respondent, Mr Channing (‘father’). The Children have two older siblings, Ms W, and Ms X.
The parties separated approximately seven years ago and parenting proceedings have been on foot for approximately three years. The proceedings have a lengthy and complex procedural history, including appeal proceedings.
Despite interim parenting orders of February 2022, which have remained in force until now and which provide for both Y and Z to live with the mother and spend supervised time with the father, the parties have not complied with such orders.
Y is living with the father and not spending time with the mother. Z is living with the mother and not spending time with the father.
Ms W and Ms X are now both adults. They remain living in the mother’s home.
At present, the three siblings who live in the mother’s home have little to no contact with their brother Y. Both parents are responsible for this, although not equally.
As will be evident from these reasons, since the parties’ separation different arrangements have been in place for the Children, meaning that they have had little stability and much conflict in their lives, including after interim orders were made.
The reality for the Children is that their parents are highly likely to continue not taking responsibility for their own actions, and are highly unlikely to gain the requisite insight to ensure that the Children’s best interests are met. This is particularly so where the father is concerned.
The orders which the Court makes here should not be seen as a justification for either party as to their actions, nor be seen as a win. There are no winners in parenting proceedings. The very fact that the parties have chosen to litigate is a loss for the Children. The very fact that the four siblings have lived in different and at times separate households since the parties’ separation is a loss for the Children.
In all of the circumstances, it is in both Y’s and Z’s best interest that each of them remain living where they currently are, and that the Children do not live together in the one household. It is also in the Children’s best interests that the only orders for time with the parent with whom they are not living, be in accordance with their wishes.
The Court is well aware that the reality of the orders after three plus years of bitter litigation is likely to be difficult for everyone involved for different reasons. The Court is also well aware that these orders will of themselves pose some risk to Y, noting the father’s parenting style, behaviour and lack of insight. However, to make orders other than these is to place the Children at even greater risk of harm, which is both unacceptable and which can be avoided.
LEGAL PRINCIPLES
The primary task of a judge is to apply the law, not to recite it.[1] However, for the benefit of the parties, the Court sets out a brief summary of the relevant legal principles it has applied.
[1] Beckham & Quarrington (No 3) [2024] FedCFamC2F 74 at [50].
These proceedings commenced to be heard and determined prior to the commencement of the Family Law Amendment Act 2023 (Cth). As such, these proceedings are determined in accordance with provisions of the Family Law Act 1975 (Cth) as they were prior to 6 May 2024.
The central enquiry is for the Court to determine the outcome that will be best for each child who is the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Act. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[2]
[2] See Slater & Light [2011] FamCAFC 1 at [45].
While all relevant primary and secondary considerations have been considered, not each of the considerations has been discussed in the reasons. The reason for this is that discussion does not mean consideration.[3]
[3] Banks & Banks [2015] FamCAFC 36.
In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the child of having a meaningful relationship with both of their parents.
A meaningful relationship ‘is one which is important, significant and valuable to the child’.[4] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[5]
[4] Mazorski & Albright [2007] FamCA 520 at [26] (cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121] (‘McCall’)).
[5] McCall at [122].
Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]
[6] MRR v GR [2010] HCA 4 at [13].
The ‘provisions of ss.60CC and 60CG of the Act are wide enough to embrace most, if not all, assertions of an “unacceptable risk” of harm to children and so it is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Act.’[7] The assessment of risk is an evidence-based conclusion. [8] In assessing whether the risk of harm is unacceptable, the Court is not merely evaluating whether the risk will occur, but also the potential consequences of the risk being realised.[9]
THE PROCEEDINGS
[7] Isles v Nelissen [2022] FedCFamC1A 97 at [59].
[8] Ibid at [85].
[9] See for example the discussion in Johnson & Page [2007] FamCA 1235 at [62]-[74].
Procedural History
On 14 December 2018, final property adjustment orders were made by consent, following an application for property adjustment orders by the mother in April 2018.
On 14 October 2021, the mother filed an initiating application for parenting orders, commencing these proceedings.
On 20 October 2021, final parenting orders were made by consent in respect of Ms W and Ms X.
On 8 December 2021, the father filed his response to the mother’s application for parenting orders.
On 15 February 2022, interim orders were made by consent in respect of Z for him to live with the mother and spend supervised time with the father. Judgment was reserved in respect of where Y was to live.
On 18 February 2022, interim orders were made for Y to live with the mother and spend supervised time with the father.
On 4 July 2022, the single expert report prepared by Dr B dated 29 June 2022 was released to the parties and the Independent Children’s Lawyer (“ICL”).
On 12 August 2022, the mother filed an amended initiating application.
On 15 December 2022, orders were made listing the matter for final hearing on 17, 18 and 20 April 2023.
On 29 March 2023, the hearing dates were vacated following discussions with the parties and the matter was re-listed for final hearing with priority for 23, 24 and 25 October 2023. The Court was advised on that occasion that the proceedings would likely be concluded in two days.
The final hearing was commenced on 23 October 2023 and continued for three days. It was marked part heard on 25 October 2023 and listed for continuation of hearing on 21 and 22 March 2024.
On 20 February 2024, the father filed an Application in a Proceeding which, inter alia, sought recusal of the judge hearing the matter on the basis of apprehended bias (‘recusal application’).
On 1 March 2024, the recusal application was heard and judgment was reserved.
On 7 March 2024, the recusal application was dismissed.[10]
[10] Channing & Channing [2024] FedCFamC2F 293.
On 12 March 2024, the father filed a Notice of Appeal in respect of the orders made on 7 March 2024 (‘recusal appeal’).
On 13 March 2024, the father filed an Application in a Proceeding that the proceedings be stayed pending the recusal appeal (‘stay application’).
On 18 March 2024, the mother filed an Application in a Proceeding seeking that the father pay his portion of the Single Expert’s fees and the mother’s costs of the application (‘expert fee application’).
On the morning of 21 March 2024, and prior to the final hearing re-commending, the stay application was heard and judgment was delivered.[11] During the lunch adjournment, the father sent for filing an Application in an Appeal for these proceedings to be stayed pending the outcome of the recusal appeal, that application being filed on 26 March 2024. Leave was granted to the father to make an oral application to stay the proceedings, and judgment was then delivered dismissing the oral application for a stay.[12]
[11] Channing & Channing (No 2) [2024] FedCFamC2F 413.
[12] Channing & Channing (No 3) [2024] FedCFamC2F 414.
Due to the non-availability of the expert, orders were also made vacating the hearing day of 22 March 2022, relisting the hearing for 8 April 2024, and directing the parties to file and serve any material in relation to the mother’s application for costs of the mother’s fee application and the father’s recusal application.
On 26 March 2024, the father’s Application in an Appeal filed 26 March 2024 was dismissed by Austin J.
On 3 April 2024, the father filed a Notice of Appeal in respect of the order of 21 March 2024 dismissing the father’s stay application (‘stay appeal’).
On 8 April 2024, the proceedings were adjourned due to counsel availability until 24 April 2024. Orders were made for the father’s solicitor to file the costs disclosures on behalf of the father, and orders were made by consent for the father to pay the fees of the Single Expert, and the mother’s costs for the fee application in the amount of $2,750.
On 16 April 2024, the recusal appeal and the stay appeal were consolidated, to be heard together.
On 23 April 2024, the mother filed a Contempt Application, but such application was not served personally on the father.
On 24 April 2024, the hearing concluded, judgment was reserved, and the issue of costs of the recusal application and the ICL were reserved to be listed after delivery of these Reasons for Judgment.
On 17 June 2024, the recusal appeal and the stay appeal were heard by Campton J.
On 24 June 2024, the stay appeal was withdrawn and dismissed and the recusal appeal was dismissed.
Between the time of the conclusion of the hearing and the date of delivery of judgment, the trial judge hearing the matter was away from the Registry and not sitting for a period of six weeks. As such, while every care has been taken to deliver judgment within three months of judgment being reserved, in the circumstances of a pending appeal and the trial judge’s absence, judgment was delivered outside of that benchmark.
Documents relied upon
At hearing, the mother sought orders that she have sole parental responsibility for Z and Y, that they live with her and spend no time with the father. In the alternative, should the Court determine that Z and Y should spend time with the father, the mother sought that this time be supervised at a contact centre. The mother relied on the following documents:
(a)Amended Initiating Application filed 12 August 2022;
(b)The mother’s Affidavit filed 30 November 2022;
(c)The mother’s Affidavit filed 20 October 2023; and
(d)Single Expert Report prepared by Dr B dated 29 June 2022.
The father sought orders that the parties have equal shared parental responsibility, that Z and Y live with him and spend time with the mother from 5pm Friday until 5pm Sunday each alternate week. The father relied on the following documents:
(a)Response to Initiating Application filed 8 December 2021;
(b)The father’s Affidavit filed 1 December 2022;
(c)Single Expert Report prepared by Dr B dated 29 June 2022; and
(d)The father’s Update to his Affidavit dated 23 October 2023.[13]
[13] Exhibit 2.
The Independent Children’s Lawyer’s (‘ICL’) case was that the parent with whom a child lives have sole parental responsibility for that child, and that Y and Z communicate and spend time with the parent they do not live with in accordance with their wishes.[14] The ICL relied on the Single Expert Report prepared by Dr B dated 29 June 2022.
[14] Exhibit 24.
Exhibits
The exhibits, as tendered in this matter and relied upon by the parties, were as follows:[15]
[15] Exhibit 10 was not relied upon by any party.
·Exhibit 1 being the four videos of early 2020.
·Exhibit 2 being an update to the father’s Affidavit of 23 October 2023, but only in relation to [3], [4], [5] and [8].
·Exhibit 3 being photograph of Z after father ‘flicked’ him with an object.
·Exhibit 4 being Conditional Release Order s.9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 dated 12 April 2022.
·Exhibit 5 being entire interview between the father and police dated late 2021.
·Exhibit 6 being statements of witnesses Z of 21 September 2022 and 9 October 2021, and Y of 9 October 2021.
·Exhibit 7 being notes of Ms C, clinical psychotherapist 18 June 2023, 24 July 2023, 9 August 2023, and 22 August 2023.
·Exhibit 8 being contact report of D Contact Service for 14 May 2022, and the contact report from D Contact Service for 28 May 2022.
·Exhibit 9 being notes from E School (Subpoena sleeve 7) dated 19 October 2019.
·Exhibit 11 being the mother’s statement of proof of evidence in reply with [1](e) and (f) being a joint statement.
·Exhibit 12 being the father’s tender bundle together with the index to that bundle and items 1, 2, 3, 4, 5, 6, 8, 10, 11, 14, 16, and 17 as referred to in that index.
·Exhibit 13 being the school reports of Y for January 2022 to December 2022.
·Exhibit 14 being documents referred to in the aid memoire handed up by the ICL together with the aide memoire.
·Exhibit 15 being the recording referred to at Annexure D of the affidavit of the mother filed 30 November 2022.
·Exhibit 16 being Annexure G to the mother’s affidavit filed 30 November 2022 being a letter from Hikma Legal to V Lawyers dated 9 September 2019.
·Exhibit 17 being a letter dated 30 August 2019 from Hikma Legal to V Lawyers.
·Exhibit 18 being a letter from Hikma Legal to the school.
·Exhibit 19 being three text messages between the parents to appear to have been sent 25 September 2019 being annexure K to the mother’s affidavit of 30 November 2022.
·Exhibit 20 being, from Ms F to the mother, email dated 29 September 2021.
·Exhibit 21 being text messages between the mother and Y dated 8 December 2021, 13 December 2021 and 14 December 2021.
·Exhibit 22 being Text message from mother to Y dated 2 April 2022 being Annexure I2 and text message dated 7 July 2022 from the mother to Y being Annexure J2 referred to in [112](a) and (b) of the mother’s affidavit filed 30 November 2022.
·Exhibit 23 being Email from Mr G to Hikma Legal and Ms H dated 30 May 2022.
·Exhibit 24 being ICL’s proposed minute of order.
Witnesses
The mother was the sole witness in her case, and similarly, the father was the sole witness in his case. Both parties and the ICL cross-examined the report writer Dr B.
THE EVIDENCE
Background
The father was born in 1972 and is currently 51 years of age.
The mother was born in 1973 and is currently 50 years of age.
The parties met in 2001 and in 2002 they were married.
In 2004, Ms W was born, she is currently 20 years old.
In 2005, Ms X was born, she is currently 18 years old.
In 2009, Y was born, he is currently 14 years old.
In 2012, Z was born, he is currently 12 years old.
In early 2017, the parties separated on a final basis.
In mid-2017, the mother and the children moved out of the former matrimonial home, where the father remained living.
In May 2018, the mother commenced property proceedings, which were finalised by consent in December 2018.
In mid-2018, the mother and all four children moved in with her parents in Suburb J.
In mid-2018, the mother sought an apprehended violence order (‘AVO’) against the father. No order was made.
In early 2019, the mother took Ms W and Ms X on holidays to Country K. The Children remained with the father. The mother did not tell either Z or Y that she was taking their sisters on an overseas holiday.
In mid-2019, there was an event involving Y and the maternal grandfather. Following this occurrence, Y stayed with the father and did not spend any time with the mother or his siblings, for about two months.
Between September 2019 and September 2021, the Children lived with the father and spent alternate weekends with the mother.
In around September 2019, the father changed the Children’s school enrolment.
The parties were divorced in late 2019.
In early 2020, Z refused to go to the father’s home from the mother’s home, and was very distressed. The mother ended up on the ground during the struggle to get Z into the father’s car. The matter was reported to the Police, with the mother, Ms W and Ms X all providing statements.
In late 2021, Z told the mother that the father hit him and Y. The matter was reported to the police, and Z interviewed. Z has not spent any time with the father since September 2021.
The father was arrested in late 2021.
In late 2021, a provisional Apprehended Domestic Violence Order (‘ADVO’) was made against the father, for the protection of both Y and Z. The father was charged with an assault charge relating to Z, and another assault charge relating to Y.
The Children remained with the mother between September and October 2021. There are a number of welfare checks conducted by the Police in the mother’s home during this period.
In late 2021, the father sought a variation of the ADVO and bail. An interim ADVO was made against the father protecting the Children, but with no restrictions preventing the father from seeing them. The father then attended the mother’s home and Y returned to live with the father, while Z remained living with the mother.
The mother then commenced parenting proceedings on 14 October 2021, with respect to all four children.
Final parenting orders were made in relation to Ms W and Ms X on 20 October 2021. Those orders provide for the mother to have sole parental responsibility for them, for Ms W and Ms X to live with the mother and to spend time with the father in accordance with their wishes.
Y did not spend any time with the mother between about October 2021 and February 2022.
Interim parenting orders were made on 15 February 2022 for Z to live with the mother and to spend supervised time with the father.
The mother changed Z’s school in about February 2022.
Further interim parenting orders were made on 18 February 2022 for Y to live with the mother and spend supervised time with the father.
Following the orders of 18 February 2022, the mother attended Y’s school to collect him. As described in detail further in these reasons, Y ran away and was subsequently returned to the father’s home, where he has remained living since.
In early 2022, the father’s criminal matter was listed for hearing at Local Court. The charges with respect to Y were withdrawn, and the father entered a plea of guilty with respect to the charges relating to the assault on Z. The father received a good behaviour bond, and no conviction was entered.
On 8 May 2022, by agreement between the parties, Y spent time with the mother and his siblings at L Shopping Centre.
Currently, Y lives with the father in a house in Suburb M. In general, Y does not communicate or spend any time with the mother.
Currently, Ms W, Ms X, and Z live with the mother in a house in Suburb N. In general, the children in the mother’s household do not communicate or spend any time with the father.
Care of the parties’ children during the relationship
The mother claimed that during the relationship, she was the primary carer for the children, that she was responsible for all of the household chores, that the father refused to assist her, that the father would criticise everything she did, and that the father was controlling and did not consult her about decisions.[16]
[16] Affidavit of the mother filed 20 November 2022 at [14]-[20].
The father claimed that, during the relationship, the parties shared the care of the children, that the mother was responsible for the home duties, and that he ‘assisted’ the mother with the children by feeding and changing them, helping with their homework, and taking them to shops, family events, movies, playcentres and school events.[17] The father later claimed, in the same affidavit, that he assisted the mother as much as he could on account of his work hours with all household tasks, including mowing the lawns and maintaining the gardens, that he consulted the mother regarding all major decisions, that the parties discussed and made decisions concerning the children jointly, and that all assets were in the mother’s name.[18] The father claimed that he was the ‘breadwinner for the family’, that he worked long hours, paid all the family expenses and provided the mother with $600 to $700 for personal expenses and groceries.[19]
[17] Affidavit of the father filed 1 December 2022 at [5]-[7].
[18] Affidavit of the father filed 1 December 2022 at [104]-[108].
[19] Affidavit of the father filed 1 December 2022 at [21].
It is more likely than not that the mother was the children’s primary care giver during the parties’ relationship and that the father was not overly involved in their care. Rather, to use his own words, the father ‘assisted’ the mother with child rearing duties, indicating that he considered such matters to be her responsibility and domain.
It is also more likely than not that the father took the view that as he was the bread winner, he was also the decision-maker, and that his word was to be final. The Court does not accept the father’s evidence that the parties made all major decisions jointly in the sense that they were made equally, but rather that the father asserted his will over that of the mother. Such a misogynistic attitude prevailed during the parties’ relationship and home and influenced the way the children were brought up.
The Court accepts the mother’s evidence that she often observed the father to be in a bad mood while she and the children were around, and that he was short tempered and would regularly scream at the children. While but a single point in time, the recording of the father berating Ms W and his ranting and raving at small incursion into his authority[20] is a very concerning example of the father’s parenting style. The same observation is made in respect of the father disciplining Z with an object, which ultimately resulted in the father pleading guilty to assault.
[20] Exhibit 15.
Parenting after Separation
There is significant dispute between the parties as to where the Children lived for the couple of years post separation. Each of them gives a different account of the arrangements. That very fact leads the Court to conclude that the first few years after separation were turbulent for the Children, with different living arrangements at different times, with turmoil arising from their parents’ separation coupled with the uncertainty of where they were living and with whom.
For example, the mother says that the Children spent one week with her and one week with the father, between July 2017 and September 2019. The father says that the Children spent 3 nights each week plus the weekends with him.[21] However, he also said that from around August 2018, the Children were living week about with each of the parents.
[21] T:87 line 43; see also Affidavit of father filed 1 December 2022 at [27].
In early 2018, the father took all four children on a trip to Queensland. The mother claimed that they were unwilling to go but that the father insisted it would be a time for them to ‘bond’, and that, when they returned, Ms W and Ms X refused to spend any further time with the father.[22] The father said that there was no particular event that he could point to that might have caused Ms W to stop talking to him.[23]
[22] Affidavit of the mother filed 30 November 2022 [32].
[23] T:85 line 27 to 86 line 37.
The father says that he consented to the final property orders in December 2018 because he was desperate to see the children and spend time with them.[24] From the date of the property orders, being 14 December 2018, until Y and Z commenced living with the father, the father says that he spent time with Y and Z in accordance with an agreement between the parties for alternate weeks but that, despite the agreement, he did not spend any time with Ms W or Ms X as the mother ‘withheld them’, and the mother prevented all the children from seeing the father on Father’s Day, birthdays, Christmas, and New Years if they were spending time with the mother on those days.[25] During cross-examination, when it was put to the mother that she was not prepared to negotiate parenting until after property orders were in place, the mother stated that if the father did not get what he wanted with the kids they would never have settled the property, and she denied ‘enticing’ the father to settle in respect of property by telling the father that he would have time with the children.[26]
[24] Affidavit of the father filed 1 December 2022 at [39].
[25] Affidavit of the father filed 1 December 2022 at [43]; Exhibit 12.
[26] T:10 lines 25-46.
In early 2019, the mother took Ms W and Ms X to Country K for a holiday. The mother stated that she did not ask the father for permission to take Y and Z because she believed the father would have refused, and that she did not tell Y and Z because she did not want them to feel left out.[27] During cross-examination, the mother stated that it would have been ‘so much of a headache’ to approach the father and she wanted to spare the boys the disappointment.[28] The father stated that this trip occurred when the boys were supposed to spend time with the mother.[29]
[27] Affidavit of the mother filed 30 November 2022 at [47].
[28] T:43 line 35.
[29] Affidavit of the father filed 1 December 2022 at [14].
It is safe to say that on both parties’ evidence in the first few years post separation, the Children were living between the households, they were spending sporadic time with their sisters and there was much conflict between the parents about where the Children were to live and their arrangements in general. Indeed, both parties’ evidence is such that the Children were caught in a constant tug of war between them.
For reasons which are not entirely clear despite a lengthy hearing, between September 2019 and September 2021, it seems the Children lived with the father and spent alternate weekends with the mother.
In or around September 2019, Y and Z were enrolled by the father into O School. The father made the unilateral decision to change the Children’s school enrolment, and he informed the mother of this change over text message. The father told the mother he would be enrolling the boys in O School after it became clear to him that the mother ‘did not want to mend the relationship’ with Y.[30]
[30] Affidavit of the father filed 1 December 2022 at [69].
In early 2020, Y called the mother in distress and asked her to collect him from the father’s house. While the mother was speaking to Y on the phone, the father started talking on the line before a woman by the name of ‘Ms P’ started speaking to her. Ms P told the mother that Y had caught her and the father ‘in the act’. As the mother started to drive over, but before she arrived, Y called back and told her he was staying.[31] During cross-examination, the mother added that she spoke to the father after that and that the father said he was organising counselling for Y.[32]
[31] Affidavit of the mother filed 30 November 2022 at [58].
[32] T:48 line 46.
In March 2020, the father attended the mother’s residence to collect the Children after they had spent the weekend with the mother. Z was very reluctant to go with him. After a significant struggle with the child by both parents, and the mother at one point falling to the ground, the father left with Z. This event resulted in the police being called, and is the subject of detailed discussion later in these reasons at [149] to [164].
In September 2021, when Y and Z were in the mother’s care, Z showed the mother bruising on his leg and told her some things. That night, at around 9:30pm, the mother reported the father to the Police. The father was later charged with offences against both Y and Z, and ultimately pleaded guilty to assault in respect of Z. A provisional ADVO was made in late 2021. These matters are discussed in more detail later in these reasons at [165] to [177].
Following the assault on Z by the father in September 2021, both Z and Y lived with the mother for a period of approximately one month, after which time Y returned to live with the father and Z remained living with the mother.
Since September 2021, Z has not spent any time with the father and has only had very limited communication. The father has had some contact with Z through Y when the boys are playing computer games together, and he has had short conversations with Z when Y was speaking to Z on the phone in November 2021 and for 15 minutes on the iPad in January 2022.
Between September and October 2021, the Police attended the mother’s residence on a number of occasions to conduct welfare checks. The mother felt harassed by the father on account of these checks, and she emailed the Police about her concerns. The Police replied that ‘[the father] is making fictious reports and for future police to take his calls with a grain of salt’ but that the father’s conduct does not constitute harassment. The father says he called the Police to conduct welfare checks during this period as he was unable to contact anyone to see if the Children were okay. During cross-examination, the father stated that he asked for the welfare checks because he was concerned for the boys that the mother was alienating them, and that he did not see it as a form of harassment of the mother and that ‘it’s my only form of contact’.
In late 2021, the father attended court and sought a variation to the ADVO. An interim ADVO was made against the father protecting Y and Z but without restrictions preventing the father from seeing the children.[33] Y then returned to the father’s home, but Z refused to.
[33] Exhibit 14.
Following October 2021, Y did not spend any time with the mother until May 2022. The mother has made multiple offers for Y to spend time with her and his siblings, but such offers were not taken up.
On 20 October 2021, final parenting orders were made in relation to Ms W and Ms X. There was some puzzling oral evidence by the father about these final orders, to the effect that he was not aware that final orders were made in respect of the two older children in October 2021.[34] To the extent that the father made that assertion, the Court does not accept it.
[34] T:219-221.
In late 2021, the mother received an email late in the day, by way of the parties’ solicitors, inviting her to attend Y’s Confirmation the following day. The mother was unable to attend because the other children did not wish to see the father, but she told Y that it was because they had made plans that could not be rearranged.
From around December 2021, Y stopped answering the mother’s calls completely. She then made attempts at talking to him when he was speaking to his siblings.
In 2022, Y commenced high school, attending O School.
In or around February 2022, the mother changed Z’s school enrolment, without consulting the father.
At some point in February 2022, Y was suspended from school. The father did not tell the mother anything about this.
On 18 February 2022, following interim orders being made for Y to live with the mother, the mother attended Y’s school to collect him. She was informed that Y was not at school as he was suspended and, thereafter by way of the parties’ solicitors, it was organised for the father to bring Y to school for the changeover. After waiting for a period, the mother sought an update and was informed that Y had run off, that the father had run after him, and that the Police had been called. The Police told the mother that Y did not feel safe with her but that he felt safe with the father. The father’s evidence is that, after locating Y, he walked Y back to school to effect changeover, that the Police spoke to Y, and that the Police told him that they would not force Y to go with the mother.
During cross-examination, the father stated that he told Y about the orders for him to live with his mother on 18 February 2022 and that Y ‘went into a rage’ and that, on the way to the school, Y was screaming that he was going to run away. When asked whether he had told Y about the order for Y to spend supervised time with the father, the father stated that he could not recall, that he probably did, and that he did explain it to him but it was not something Y was happy about.[35] The father also stated, when questioned in relation to what was said to the Police, that he thought the school had told the Police that there was a court order, and that he was emotional at the time and was not thinking.
[35] T:160 lines 26-46.
During her oral evidence the mother said that there were two other occasions when Y had run away when the father had told him to.[36] It is the mother’s view that if there was an order that the father have no contact with Y for a time, and that Y live with her, that he would be too scared to run away and that he would stay with her. It is the mother’s belief that the father put in Y’s head that the mother had rejected him over and over and over again.
[36] T:55 line 44 to 56 line 26.
The mother said that she did not file a Contravention Application because she ‘was fearful of the pressure it would place on [Y]’.[37] However, after 18 February 2022, she proposed numerous options to enable Y to transition into spending time with her, but there was no agreement. The mother then sought urgent family therapy with Dr Q. She attended two sessions by herself, Ms W, Ms X, and Z attended one session separately, and Y attended one session. The mother understood from Dr Q that therapy will not work, and indeed it did not result in any changes to Y’s relationship with the mother.
[37] Affidavit of the mother filed 30 November 2022 at [98].
Since 18 February 2022, the mother has made attempts at contacting Y by sending him text messages, however, she now sends messages less frequently as she has not been receiving any replies. Y is however in communication with his siblings intermittently.
In April 2022, the mother proposed Y spend time with her with the father responding, through his solicitor, and proposing L Shopping Centre.
In early 2022, the father pleaded guilty to assault and was issued a conditional release order without proceeding to conviction in respect of Z. The charges in relation to Y were withdrawn. The father stated that he had, as a result of the assault proceedings, realised that it was not right for him to discipline the Children and strike them with an implement. A final ADVO was issued for the protection of Y and Z for a period of two years, which expired in early 2024.
On 27 April 2022, the mother further proposed Y spend time with his siblings at her residence but received no response. On 29 April 2022, the mother again requested Y spend time with his siblings, but that this time she agreed that the time be spent at a venue nominated by the father.
On 8 May 2022, Y spent time with the mother and his siblings at L Shopping Centre. This was the first time that Y had spent time with the mother and his siblings since 12 October 2021. Despite the mother requesting the father not approach or try to communicate with the mother or children, the father made his presence at the changeover a condition of the time being spent. When Y and the father arrived, the mother began to cry and hugged Y and the father then asked if he could wish her a happy Mother’s Day. On the mother’s evidence, the father then hugged her and kissed her forehead, she was crying and she felt forced to return his hug as Y was watching. On the father’s evidence, when he dropped Y at L Shopping Centre the mother broke down, he asked if he could hug the mother, and the mother said ‘yes’. Either way, the father had no business hugging the mother or offering to hug her. It was not a gesture of good will. It was manipulation and gaslighting of the mother and all of the children, and the Court further notes its findings at [197].
At the conclusion of the time, the father approached the mother and the children when they were leaving the shopping centre despite an agreement that they would conduct changeover outside of a supermarket. Since this date, Y has not spent any time with the mother, except for time at Christmas in 2023.
On 14 May 2022, the mother took Z to D Contact Service for him to spend supervised time with the father in accordance with orders dated 18 February 2022. Time did not occur. When the mother arrived with Z, he refused to get out of the car. The supervisor and Y both talked to Z but could not convince Z to leave the car.
On 28 May 2022, the mother took Z to D Contact Service a second time for him to spend supervised time with the father, but time did not occur as Z again refused to leave the car. The mother became concerned about pressuring Z and made the decision to discontinue future attempts, and she then instructed her solicitor to notify the father of this decision on 7 June 2022.
It is the father’s view that it is the mother who is responsible for Z not spending time with him.[38]
[38] See also [197] below.
In June 2023, Z attended a therapy session with a Ms C, and then further sessions on 24 July 2023, 9 August 2023, and 22 August 2023.[39] The mother’s evidence is that Z became visibly distressed and anxious whenever the conversation about him seeing his father was raised.
[39] Exhibit 7.
At the time of hearing and since 30 November 2022, Y has had limited contact with Z and that, for Y to speak to Z, they must be on the PlayStation.
During cross-examination, the father agreed that he had not encouraged Y to contact his mother because it is not what Y wants, and that the importance of Y having a relationship with his mother is not enough to overcome Y’s wishes at the moment.
The father said in his oral evidence:
[Y] knows his mother is trying to seek custody of him. And he knows that, if that happens, he will never speak to me again. He’s fully aware of that.
And later:
[Y] understands if there’s a court order in place and he goes to his mother’s and spends times [sic, I think that he will feel safer that way knowing that he’s not going to be stuck there … and not be able to communicate with me at all.
On Christmas day in 2023, Y spent time with the mother, his siblings and members of the maternal extended family. Y received a Christmas and birthday gift from the mother.
There has been no face-to-face or other form of communication between Z and the father, and the father has not provided any gifts to Z.
Allegations of Violence
The mother’s evidence is that, during the relationship, her and the children were subjected to physical, verbal, emotional, and psychological family violence perpetrated by the father.
The mother claimed the following as incidents of this violence in respect of which she was cross-examined:[40]
[40] Affidavit of the mother filed 30 November 2022 at [27].
(a)In mid-2002, during an argument between the parties, that the father smashed his fist into the windscreen of the car which shattered;
(b)In 2013, at Ms W’s birthday party, the mother stated that she observed Ms W crying hysterically and hyperventilating, and that Ms W told her the father had hit her on the back of her head and called her ‘a bloody twit’;
(c)In mid-2016, when the father told the children to go play outside, Ms W declined and the father stood in front of Ms W, put his face a centimetre away from hers, and shouted. The mother said that she asked the father to stop and then started recording. When Ms W asked why she could not stay in her room and draw, the mother claimed that the father continued to yell, and when the mother told the father to stop again that the father pushed her roughly against the door. The recording of the father yelling and carrying on is before the Court;[41]
(d)In late 2010, the mother claimed that the father killed Ms W’s pet;
(e)That, on more times than the mother could count, the father would punish the children by forcing them to kneel on the concrete floor with their hands on their head for over two hours, or by pulling them by their ears or hair across the floor and hit them with an open hand over their heads;
(f)That, when the mother stood up to the father when he was ‘punishing’ the children, the father would push her away forcefully or grab her arm with a firm grip;
(g)The mother claimed that the father had access to her phone’s password and would use it to access her phone;
(h)The mother claimed that she had no control over her finances and that, after she ceased working in 2004, the father would only give her $600 a week for family expenses, that this was insufficient, and that she would regularly be held up at registers as the card would be declined for insufficient funds. The mother stated that, when she would ask the father for additional money, he would become angry and question the mother about what she needed it for; and
(i)The mother claimed that she would sign any paperwork the father gave her without question as she was fearful of him, providing an example that she was not aware that the parties had a joint bank account until after separation.
[41] Exhibit 15.
In relation to the mother’s allegations of family violence, the father stated that he is not a violent person, that he had raised his voice towards the mother and the children, and that aside from the criminal offences detailed below he did not hit the children.[42]
[42] Affidavit of the father filed 1 December 2022 at [127].
During cross-examination, the father denied the mother’s claims, stated that the only discipline used on the children was ‘naughty corner’ or ‘time out’,[43] and that he did not access the mother’s phone but felt he had the right to check the mother’s emails on the company email account.[44]
[43] T:69 line 26.
[44] T:75 line 16.
The father, in reply to the mother’s allegations, also stated the following:[45]
(a)That in mid-2016, the father did raise his voice to Ms W after she refused to come outside to play with the other children. The father claimed that the mother was undermining him by telling Ms W to stay inside;
(b)That he has never directed the children to kneel on concrete floors for hours and that the parties jointly used the ‘naughty corner’ only ever 5-6 times; and
(c)That he has not monitored or governed the mother’s finances or placed her under duress relating to finances.
[45] Affidavit of the father filed 1 December 2022 at [130]-[133].
Did the father perpetrate family violence during the relationship?
Family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.[46] Examples of behaviour that may constitute family violence include an assault, repeated derogatory taunts, intentionally damaging or destroying property, and so on. As recently reiterated by the Full Court in Leventis & Leventis[47] it is not enough if one of the behaviours identified falls within the examples given in s.4AB(2) of the Act, what is required is an analysis of how such behaviour coerces or controls a member of the person’s family or causes the family member to be fearful and a subsequent finding of it doing so. Context is important.[48] It has been noted that the two concepts of ‘coerces or controls’ are closely related, together forming an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command, in the context of conduct that was not inherently violent or threatening.
[46] Family Law Act 1975 (Cth) s 4AB.
[47] [2024] FedCFamC1A 141 at [15].
[48] Carter & Wilson (2023) FLC 94-129 at [17].
Exhibit 15 is a recording of the father chastising Ms W. He can be heard yelling at her in a loud voice, shouting in general and the child can be heard crying while doing what she was ordered to do by the father. The father’s behaviour is clearly threatening and the child was fearful as a result of it.
The Court accepts the mother’s evidence that the father was a harsh disciplinarian of the children, that he would punish them by forcing them to kneel with their hands on their heads for prolonged periods of time, that he would slap them on the back of the head, and pull their ears and their hair. Such behaviour was not only violent and threatening, it frightened the children, and it also had the effect of forcing them to behave in a manner dictated by him.
The Court also accepts the mother’s evidence that the father was financially controlling of her, in that he limited the amount of money she had access to. The Court accepts that the father acted in an authoritarian manner towards the mother and the children.
In all of the circumstances, the Court finds that the father was a perpetrator of family violence during the parties’ relationship.
Incident in early 2020
In early 2020, the father attended the mother’s residence to collect the Children, after they had spent the weekend with the mother. Z was very reluctant to go with him. After a significant struggle with the child by both parents, and the mother at one point falling to the ground, the father left with Z. This event resulted in the police being called.
The police obtained CCTV footage from across the street. There are two such short video recordings. The scene depicted in the video recordings is without sound.
The two videos recorded from across the street showing the scene of the pick-up were tendered in the proceedings, as was the police notebook which recorded the mother’s statement to the Police and video recorded statements of Ms W and Ms X. The parents gave their own accounts of what occurred in evidence in these proceedings.
In summary:
(a)By the time the father arrived at the building where the mother lives, she was already outside the building with Y and a struggling Z;
(b)Z was reluctant to go with the father and he was eventually forcefully put in the car by the father. The mother was also involved and during the father’s struggle with Z, the mother fell to the ground; and
(c)The mother reported the incident to the Police that same day, the Police attended the mother’s residence and interviewed the mother, Ms W and Ms X, and later that day the father attended Suburb R Police Station to talk to police.
In her evidence in chief to this Court,[49] the mother describes the incident as follows:
[In] or around 2020, [the father] attended my house to collect the boys after their weekend with me. [Z] was hanging onto me and saying to me words to the effect “Please don’t send me back Mum.” He was dragging his body on the floor and kicking and screaming very loudly. I observed that [Z] could barely breathe, he was so distressed. I said to [the father] words to the effect “[father] leave [Z] with me because you can see how distressed he is”. [The father] refused and then grabbed [Z] off me roughly and forced him into the car and held him down with force. I observed [the father] press his fingers into [Z]’s arms. I said to [the father] words to the effect “[father] stop you’re hurting [Z].” [The father] kept pushing me away from the rear passenger’s door as I tried to console [Z] and plead to [the father] to leave him. Eventually I fell to the floor. I am not sure if I fell because I was exhausted or if [the father] pushed me as everything happened so suddenly. I felt defeated and backed away. I reported the incident to the Police. They chose not to issue an ADVO against [the father].
[49] Affidavit of the mother filed 30 November 2022 at [57].
During cross-examination, the mother said that she was 100% sure the father pushed her, and that she was ‘pushed continuously’.[50]
[50] T:29 line 7 to 30 line 5.
In his evidence in chief to this Court,[51] the father’s focus on this incident is in the context of his relationship with Ms X and Ms W, his allegation that the mother had influence over them and that ‘she was able to influence them and tell them things they did not believe’. In fact, he does not describe the incident at all, nor is there any appreciation of the distress it must have caused not only Z but also Y and the girls. His evidence about what occurred is almost entirely limited to his conclusions as to the mother’s alleged wrongdoing. His focus is on what the Police concluded, based on their opinion as to what the video footage showed and what the father said to them, including a conclusion that Ms X is not in the location. The focus of the cross-examination of the mother was likewise to do with her alleged manipulation of the older children.
[51] Affidavit of the father filed 1 December 2022 at [143].
While the video footage was tendered in these proceedings in the father’s case, neither the mother nor the father gave any narrative as to what was shown in the two videos, both of which were filmed from across the road; one showing a front on view of the lot in front of the unit block and the other showing a view of the same lot but from the side of the premises across the street. Neither video is clear and it is very difficult to determine what is actually depicted in the videos. Consequently, after the conclusion of the father’s cross-examination, the Court asked the father a number of questions as to what the video showed at particular points in time. Such questioning in part resulted in an application for recusal and ultimately was a point of an unsuccessful appeal.
What is apparent from the video footage is that when the mother came out of her building with the Children to walk them to the father’s car, Z was already pulling away and struggling. She tried to get him to go into the father’s car, but did not manage to do so. The mother then stood a short distance away from the car struggling with Z, with Y having already entered the car, and the father then exited the car, walked over to Z and the mother, picked Z up and carried him to the car. The mother followed. A further struggle with Z occurred while he was being put in the car. By this stage Ms W had also come out of the building and was watching. During the struggle to get Z in the car, the mother is seen falling to the ground, just as Y is coming around out of the car to the side where the mother, father and Z are. Ms W also walks over to the car. It is possible, although not evident, that another person had also come out of the building and was standing at the very top of the ramp. The father says in any event, that nothing could be observed from the top of the ramp. The mother and Ms W both walk away, then stand observing from the bottom of the ramp, then walk to the car again, and then back away (although not simultaneously at all times). Eventually, the father manages to get Z in the car, Y says goodbye to his mother and then the father leaves with Y and Z. The distressing event takes at least about six and half minutes.
The father says that he did not push the mother. Having been informed by the Police that Ms W and Ms X were witnesses and had provided statements, the father claimed that, at his interview with the Police, ‘one of the girls were not present [sic] and the only one who saw anything was [Y].’
The father said in his oral evidence that he attended Suburb R Police Station with his solicitor and Y, so that if the police needed to speak to Y, he was available.[52]
[52] T:106 line 27 to 107 line 11.
Much of the father’s case on this point concentrated on proving that the mother was telling a deliberate lie and that she had deliberately set out to have Ms X and Ms W collude and lie to the police. Such focus is telling of the father’s attitude and need to prove that he did not do anything wrong and that it was the mother who was to blame for the fiasco. There was nothing in the father’s evidence that even remotely paid attention to the effect of this event on all four children, that it might have reinforced the view of the older children about the authoritarian way the father parented, or that indeed even cast a shadow of self-doubt over the father’s own actions.
It is impossible to conclude from viewing the videos what actually happened.
Having regard to all of the evidence however, it is more than likely than not, that in the struggle to get Z in the car, the father did push the mother, causing her to fall. It is more likely than not, that such push was not an intentional act which sought to cause harm to the mother, but rather to move her out of the way.
Having viewed the video numerous times and having regard to all of the evidence in respect of this event, it is clear that the incident was distressing to both parents and all of the children who were present, that tempers had flared, that distress and annoyance were present, and that neither parent had full control of their emotions or of what was happening. Had both parents been fully in control (or even simply more in control), and had both parents really had the Children’s best interests at heart, the situation would not have escalated the way it did, including to the point of the mother calling the Police and making the complaint she did. She was not asked in cross‑examination why she thought it was appropriate to call the police, and why the fact of her falling to the ground during the combined parents’ struggle to get Z to go with the father, was the focus of her attention.
It is clear that Z did not want to go to the father. He was physically struggling and pulling away from both of his parents. He had to be carried to the car and forcefully taken by the father. This was not conducive to a meaningful relationship with his father. It spoke volumes about his feelings and the need to be respected by his parents. It was a missed opportunity by the parents, but the father in particular, to show that he was capable of meeting Z’s needs and putting them above his own.
Incident in late 2021
In late 2021, when Y and Z were in the mother’s care, Z showed the mother bruising on his leg, and told her it was from the father who had chased him, grabbed him, and hit him with an object because he did not clean his room properly (‘late 2021 incident’). Z said that he did not want Y to hear him telling his mother about what happened as Y would then tell the father, and Z would get into even more trouble. Z also asked the mother not to mention it to the father or report the matter to the Police.
Despite her stated fears of the father, that night, at around 9:30pm, the mother reported the incident to the Police.[53]
[53] Affidavit of the mother filed 30 November 2022 at [60]-[64]; Exhibit 3.
The following day, Z was interviewed by the Police in the mother’s home.[54] The mother stated that, later that night, the Police attended the mother’s residence to conduct a welfare check at the father’s request and that, while Z was being interviewed, Ms W heard Y on the phone to the father and that the father told Y to call ‘000’ and that the father would add his acting solicitor to the call to tell Y exactly what to do.[55] The father stated that he received a call from Y while Z was being interviewed, that Y was upset, and that he told Y that he needed to hang up so the father could call the Police to find out what was going on and to call his solicitor.[56] At around 10pm, after speaking to the Police, the father stated that he attended the mother’s residence and, after some confusion, was arrested.[57]
[54] Exhibit 6.
[55] Affidavit of the mother filed 30 November 2022 at [68].
[56] Affidavit of the father filed 1 December 2022 at [80].
[57] Affidavit of the father filed 1 December 2022 at [79].
The next day, the father was interviewed by Police early in the morning, charged with an assault charge in relation to Z and another assault in respect of Y, released from custody on bail, and a provisional ADVO was made against the father for the protection of Y and Z.[58] The Police also attended the father’s residence and removed the father’s registered firearms. The father stated that, while the Police were at his residence, Y called in distress, the Police spoke to Y, and that the Police had made arrangements for a welfare check on Y.[59]
[58] Exhibit 5 and 14.
[59] Affidavit of the father filed 1 December 2022 at [82]; Exhibit 12.
A month later, the mother took Y and Z to Suburb S Police Station, Y was interviewed, and Z was interviewed a second time about the incident.[60]
[60] Exhibit 6.
Three days later, the father attended court and sought a variation to the ADVO. An interim ADVO was made against the father protecting Y and Z but without restrictions preventing the father from seeing the children.[61] The father attended the mother’s home that same day to take Y and Z. Y went with the father but Z refused to go. After the interim ADVO was made the father spoke to the Police to assist with the ‘handover of the boys’. The father stated he then attended the mother’s residence and, when the Police arrived, that Y ran out the door to him but that the mother would not allow Z to leave the house or speak to the father or the Police.[62]
[61] Exhibit 14.
[62] Affidavit of the father filed 1 December 2022 at [88]-[90].
The father does not address the incident of late 2021 in his evidence in chief at all. While the father’s, Z’s and Y’s police interviews are before the Court, they were tendered in the ICL’s case.
At the commencement of his interview with the Police in late 2021, the father was shown Z’s interview. When he was asked about the living arrangements for the Children, the father went into a very long explanation about how Y had been rejected by the mother, alleging that the mother had abused and threatened the psychologist whom the father had organised Y to see because he was ‘in a bad way’. The father then attempted to introduce into the conversation, in answer to the question ‘what happened this week’, the following: ‘OK. So you know about the false charge she put on me?’ and was redirected back to the alleged assault of Z on the Friday before. The father then gave the following answers to the Police:
Q26 [Ms F]: We’re not worried about that today ok
A26 [father]: Boys are generally pretty food, umm discipline is ah It’s it’s not hitting put it that way this is one off occurrences if I have to smack the boys right. Umm disciplines normally other stuff, take stuff off them, put them to bed early or whatever it is. Started from the last couple of weeks not having their room clean and was forever at em at em at em at em. So like same thing all the time just expect one thing from them in the house just keep your room clean and I don’t want to come in see your socks under the bed … Too lazy to go put in the dirty clothes they hid them and stuff, so they’re boys so it’s just a couple of weeks of this. And Right I don’t want to hit them, it’s not that I’m that type of person but always pull out the [object] when it gets to that point when I raise my voice and I’m like. And they are like ok dad we’ll do it. So I never have to. And we just got through weeks and weeks of this night before I had to send [Z] to bed early for lying And then that morning we were up early And I was going to drop them off that day to their mums. First, think I said in the morning right you’re not here for the weekend, you go to go to your mum’s make sure that room spotless. I said go in now before you log on for school work for the school.
Q27 [Ms F]: Yeh, yea home learning
A27 [father]:: So they went in and they start fighting So I was about to yell at them and I thought you know what, I called them out of the room “Boys back here down here…Going to pay you the respect ok you’re going to go clean your room this what’s happening I’m sick of it I don’t want to raise my voice anymore. It’s a simple as this, you go in there, you do it, [Y] leave him alone, [Z] stop tormenting him and follow through with them. I said go down you got five minutes, it’s a 5 minute job go clean your room Alright, I said if it’s not done. Then you get one each with a [object]. They went in and I got busy with work I’ve got a home office I was working from there. Then it was time to go, went out they were playing outside, went to go check their room quickly. It’s not done so, so right back in in and said you know what you guys aren’t listening to me so you’re going to get one each with the [object]. And that was it. [Y] got his, Now [Y]’s one he obviously like dad dad please give us another punishment. I said No you don’t listen, you know so I’m going to give you one with the [object] [Y] got his and he like took it right there but I think he realized when you he got it that I didn’t do it hard so he was like ok bit he didn’t wanna let on that it didn’t hurt, but [Z] was kicking up a stink so with [Z]. I don’t know if it was a little harder or not, but he kept putting his hand, there, so tried to get him before because I didn’t want to hit his hand. So I’m trying to move his hand I wanted to give him a flick and from where did a bit faster than what I should have. That’s where we’re at.
(errors in original)
The Police then suggest to the father that the Children were being naughty, he had the right to lawfully chastise the Children, that he has done the right thing at the leg, ‘but it’s gonna be a hand… You can’t use an implement’. The father then says out of the blue ‘You know I’m sure she’s made out as if I’m something I’m not…’. The Police then offer the opinion that the mother seeing the bruises on Z was ‘too much’ and that even though from the police officer’s point of view it is an assault, he understood that the father ‘didn’t do it to hurt him’ but rather to ‘chastise him’. The father and the police officer then had an exchange about the father being charged, about an AVO being issued against the father and the terms of the AVO. The father is then asked some more questions about the assault on Z. The father said to the police that he used an object, which was about 30cm long. He said that he hardly uses physical discipline on the Children, but that he has used the object before. The father and the police officer then had the following exchange:
Q65 [Ms F]: How many times. Did you do to [Z] on Friday?
A65 [father]: ahh Well, I don’t know if I got him. I want to go flick him and I stopped because he put his hand, there,
Q66 [Ms F]: yeh, so potentially you could have him.
Q66 [father]: Twice, it, yeh, I don’t think I don’t know if I did, but I remember I went to go [Z] take your hand I don’t wanna hit your hand it’s meant [Z] I wasn’t even meant to [Z]’s softer than [Y]. [Y] doesn’t care he’s like whatever, and [Z] was just meant to get a touch really but he was like for ten minutes and every time I went to go do it he put his hand there so I was like trying to move his hand and then go again and then I saw an opportunity and went crack
Q67 [Ms F]: Where were you in the house
A67 [father]: in his bedroom,
Q68 [Ms F]: his bedroom [Z]’s bedroom
A68 [father]: They share a bedroom.
Q69 [Ms F]: They share a bedroom. OK
Q70 [Officer T]: Can you explain like when when you actually went to smack him? What how like how did does he bend over or what or what was he lifting up his shorts how did that happen
A70 [father]: No he was umm
Q71 [Officer T]: you said it was 10 minutes to
A71 [father]: well arguing he’s like Give me something else like arguing with me for another punishment or do something else.
Q71 [Officer T]: So you’re in his room and were they just standing up normally or did they have to go into any kind of position? Before
A71 [father]: yeh, they just have to face the bed,
Q72 [Officer T]: standing up normal didn’t do anything with the hands.
Q73 [Officer T]: And they’re wearing shorts at the time or what was the.
A73 [father]: ahh, Yeah, actually.
Q74 [Ms F]: So did as the [officer] said before did they have to pull up their shorts or we just do it over the sorts yeh.
A74 [father]: no no, I wasn’t doing it to hurt them I was doing it to. You know what sometimes the thought of it that you’re going to do that is more than the doing and that’s what I was my intention was. Not so much to inflict pain was more to the thought of it. When I speak and say go clean your room or whatever and mind you After that, then I pulled them both to the dining table, We sat down the 3 of us and then we spoke about it and I said to them and you can interview he boys, said to them right. I got why is it going to be like this mean I gotta whole talk or do you think I want to hit you? Well no obviously not that I don’t want to have to pull out the [object] to give you up a back out of your room after you were fighting. And I paid you the respect and I asked you to go in there and be responsible and do it without fighting without anything. So I wouldn’t have to scream at your so I could just ask you and you do it. You know, and then have a chat with them about that, you know what? Yeah. Sorry dad No worries that that was the end of it.
Q75 [Ms F]: And how did he react after you made contact?
A75 [father]: like he cried first and then I called him out of the room right come sit down by the time we walked come sit down. He stopped
Q76 [Ms F]: did you see the marks? Have you seen him?
A76 [father] he down me yet so
Q77 [Ms F]: And what did you think
A77 [father]: No, he kinda showed me proudly hey dad look at these
Q78 [Ms F]: what did you think of that.
A78 [father]: I looked and it’s not worth my attention, but
Q79 [Ms F]: So he said that you asked you. Ask them for their hands on the table and set their bums out and when he didn’t you
A79 [father]: on the bed
Q80 [Ms F]: on the bed ok you put him upside down and hit him with the [object]
A80 [father]: No he wasn’t upside down
Q81 [Ms F]: so he was standing.
A81 [father]: When I went to go flick him the first one, which I don’t think I got then he’s like no squirmed on the floor and then as I was picking him up and flick and that was it
Q82 [Ms F]: So he cried. Did he say it hurt?
A82 [father]: No I don’t think so. No he didn’t say anything. He just cried at first
Q83 [Ms F]: Do you know how long he cried for?
A83 [father]: By the time I walked out put the [object] back in the drawer and then [Y] come up to me and said sorry I said ok its alright I called him to come sit down so I don’t know not even a minute 30 seconds 40 seconds yeh
Q84 [Ms F]: A couple of minutes
A84 [father]: Not even, by the time he sat at the table he had stopped crying
Q85 [Officer T]: Was any fort of first aid or medical attention done to?
A85 [father]: No,…its…he’s just got a sting form that
(errors in original)
During cross-examination, the father stated that Z was crying at the time of the incident, that Z had to put his hands on the bed, that he was ‘flicked two times’, and that Z was crying when the father left the room but had stopped within 30 seconds.[63] The father also stated that, when Z ‘squirmed’ and dropped to the floor, he ‘picked him up by the arms’ and that he ‘helped him up and said, “get back up and put your hands on the bed.”’[64] The father also claimed in cross‑examination that, after Z stopped crying, he sat down with Y and Z and had a ‘family meeting’ and that the father spoke to the boys about the punishment and apologised.[65] During cross-examination, the father stated Z was lying and had made up the story that the father had picked him up and hit him, and that it would be physically impossible.[66]
[63] T:162 line 1 to 166 line 30.
[64] T:170 line 44 to 171 line 5.
[65] T:177 line 30 to 178 line 1.
[66] T:168 line 46 to 169 line 7; T:170 line 15; T:173 lines 1-37.
The mother was asked a number of questions about her actions in reporting the matter to the Police by the father’s counsel during cross-examination. Those questions, clearly being put on instructions, are indicative of the father’s attitude and his lack of acceptance of any wrongdoing. For example, the mother was asked questions such as:[67]
Did you think of raising it first with the father in order to get to the bottom or at least understand what his position was…?
And you accept the police involvement, that is the charges, the arrest, the guilty plea, would not have happened if you didn’t make the call and inform the police?
…I’m suggesting to you… is that although the discipline was wrong, although it occurred, might have been some better way of dealing with it than involving the New South Wales Police Force?
[67] T:3426-34
When asked if there might have been a better way of dealing with this than involving the Police, the mother said in her oral evidence ‘I wish there was, but [the father]… doesn’t respect me, and doesn’t listen to me, and does what he wants.’[68]
[68] T:34 line 32.
Z was hit hard enough by the father that he bruised. The father’s behaviour was not only violent but threatening. It was an assault occasioning actual bodily harm. The father perpetrated family violence.
Y
Y has been living with the father since he was 9 years old. He is now 15. He is close to the father but estranged from his mother and his siblings. It would have been a miracle had it been otherwise given that he has been living with his father and not his mother and siblings, and that he has had very little positive interaction with them, for the past six years. The father has, whether covertly or overtly, managed to have and keep Y on side. The mother has, through probable aversion for conflict with the father or otherwise, managed to have only a tenuous connection with Y. It is a tragedy for Y that he is so separated from his siblings and his mother. The Court is well aware that children have different experiences of their parents, that they in general have different relationships with their parents to one another, that even in intact families there are differing strengths of relationships and attunement and that in general, in layman’s terms, not everyone gets along all the time. Y’s relationships or lack thereof, go beyond that.
The incident with the Paternal Grandfather
In mid-2019, there was an incident between Y and the maternal grandfather in respect of which the father claims that the maternal grandfather grabbed Y, Y was pushed to the ground and hurt his hand, and the maternal grandfather yelled and called Y names.
The mother says that Y had been on the phone to his father, that he had been told to get off by his sister, was then told by his father that he did not need to listen to anyone and that after the phone call, Y started acting out, including laying on the ground kicking and shouting. The maternal grandfather told Y to stop, and he ‘helped’ him up off the floor, holding him by the arm.
Y was told by the mother that he would be going to his father’s house until he apologised.
In mid-2019, the father collected Y and Z from school.
Y refused to apologise and the end result was that he remained with the father. Until this time, all of the children had been living with the mother. The father, in essence says, that this is when the mother rejected Y. The mother, in essence says, that the father manipulated the situation and Y.
There were subsequent discussions between the parties about the incident, the involvement of the maternal grandfather and the Children. Nothing was resolved, and each parent remained deeply entrenched in their views.
The father says that he said he was happy for Y to live with him, but that Z had to as well ‘because the boys are inseparable’.
Y did not spend any time with the mother for the next two months, but Z it appears, remained living with the mother and spent time with the father. It is unclear on the evidence how after late 2019, both of the Children came to live with the father.
Y’s engagement with Dr U
The father says that he was concerned for Y’s wellbeing and mental state following the incident with the maternal grandfather that he engaged the services of a child psychologist for Y, a Dr U, educational and developmental psychologist.[69]
[69] Affidavit of the father filed 1 December 2022 at [66]-[67]; Exhibit 12.
However, Y presented for an initial clinical interview with Dr U in March 2019 in the context of the father deciding Y needed psychological and educational support.
There is no other information available as to when precisely the father and Y saw Dr U, nor how many times each of them spoke to Dr U.
Dr U wrote a report on 30 September 2021. This was shortly after the father was charged with assault occasioning actual bodily harm in relation to Z and common assault in respect of Y. Dr U’s report was referred to by Dr B, the single expert, who noted that the report was sourced from the Local Court file.
The mother was not consulted prior to the father engaging Y with Dr U, and indeed it is the father who provided the background to Dr U and the mother had very little to no engagement in the process.
Dr U’s report[70] records as follows:
[The father] provided some background information about his family as he believed it would assist in ascertaining the origins of [Y]’s current problems. [The father] commented that the marital separation as what he called “disastrous” as his former wife became extremely angry and went into what he considered “vindictive rampage” because of his decision to lev the family home. [The father] stated that he believed that she had alienated him from both his daughters who were refusing to meet nor talk to him. He commented that he struggled with this situation and went to great lengths to entice his daughters to reconnect including his attendance of numerous face to face and telephone meetings with the girl’s school principal and school counsellor with the hope of mediation between him and the girls. According to [the father], his attempts were found to be unsuccessful as he believed the girls were strongly influenced by their mother who may have warned them against maintaining contact with their father, but he reported never giving up.
To the contrary, [the father] reported that both his sons were happy and willing to maintain a positive relationship wit their father and would regularly meet and stay with him. Because of these recent contact with the boys and regular communication with the boys’ school that [the father] was made aware of [Y]’s difficulties at school.
[…]
A case meeting was called with both parents. Due to [the mother’s] unavailability [the father] only attended whilst [the mother] was eventually able to meet with me to discuss the findings at a later date. Recommendations were provided to both parents. I understand [the father] showed frustration about what he noticed to be the lack of support from his former wife in following those recommendations with [Y] at home. This together with [Y]’s reports of conflict with his mother who had advised him she no longer wanted anything to do with him triggered [the father] to take on the boys full time. At the time I was of the opinion that both boys would benefit living together as there were concern that [Y] and [Z]’s relationship (due to the conflict between the girls and [Y] regarding their father) would drift apart if the boys were separated. It was recommended the boys should remain together and change schools to give [Y] a fresh start with learning and friends.
[…]
During the therapy sessions, [Y] would disclose his disappointment about his mother and older sister [Ms W]’s behaviour towards him. [Y] mentioned the ongoing abuse and the dear about staying with his mother and sisters and grandparents. [Y] exhibited signs of trauma, he [sic] problems sleeping, somatic systems, panic attack, problems with regulating his emotions, sense of hopelessness and would often relive the ongoing fear he experienced whilst living with his mother. He reported the constant fear of being taken away by his mother and never being allowed to see his father again. He stated that he had begun to develop the confidence to communicate his feeling to his mother about the need to stay with his father. According to [Y], his mother had become extremely disappointed in him about his stand in supporting his father and had decided not to talk to him. [Y] showed great distress that his mother was punishing him by rejecting him. Counselling sessions were continued, and it was evidence [Y] was struggling emotionally trying to navigate all the family politics. [Y] was adamant that he did not want to go back to his mother nor his sisters for fear they would not allow him to ever see his father again. [Y] expressed extreme fear of this and expressed symptoms consistent with anxiety and depression with thoughts of self-harm.
[70] Exhibit 12.
Y stopped seeing Dr U in February 2022.
The Father’s Conduct and Attitude
Mr G, the father’s solicitor, is a friend of the father’s. He is Y’s godfather[71]. When these matters were raised in Court, Counsel for the father assured the Court that his instructor did not have any conflict in the matter and that he could and would continue to act for the father. The Court accepted this assurance.
[71] T:98.36. The father, through his Counsel later referred to the father’s solicitor to as Y’s confirmation sponsor at T:110.23-43.
Solicitors act on instructions. Indeed, they have a professional obligation to follow a client’s lawful, proper and competent instructions.[72] Their duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.[73] A solicitor must avoid any compromise to their integrity and professional independence.[74]
[72] Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 8.
[73] Ibid r 3.
[74] Ibid r 4.
The Court also accepts that everything which the father’s solicitor did while acting for the father was done on instructions, including, communicating with the mother’s solicitors and personally speaking to Y.
The tenor and content of some of the communication from the father’s solicitor was not only provocative but also inflammatory, and no doubt resulting in increased conflict between the parties:
Regarding speaking to Y directly:
(a)On 29 August 2019, in an email to the mother’s solicitor, the father’s solicitor wrote that he had been contacted by Y ‘direct’ who had expressed concerns regarding the breakdown of communication with the mother.
(b)The mother instructed her solicitor to reply with ‘With respect, it is not appropriate for [Y], the 9 year old child of the marriage to give you any instructions in relation to his time with the Mother’.
(c)The father’s solicitor replied with ‘The writer is not instructed by Master [Y] but contacted and it was a request of the writer to arrange a without prejudice conference in order for your client to address the matters raised by Master [Y] and/or our client.’[75]
[75] T:114.38-40.
(d)During cross-examination[76] the father said that his solicitor is a good friend, that his solicitor spoke to the Children after the father complained about his difficulties in seeing the Children, and that his solicitor is ‘in our life; he speaks to the children all the time, the children being both [Y] and [Z].’
[76] T:97.5-6; T:98.14-18, 22-24.
(e)Even as early as mid-2019, Y was being embroiled by the father in the parenting dispute.[77] Y was 9 at the time. The father’s actions in permitting Y speaking to the father’s solicitor about the parenting dispute shows a significant lack of insight by the father and were not child focused.
[77] Ibid; see also T:115.12-T:116.28.
Regarding time between Y and the mother in May 2022:
(a)On 30 May 2022, in an email to the mother’s solicitor, the father’s solicitor wrote:
I also note that despite a barrage of emails to this office confirming that your client was fearful of our client, she did on that day, hugged [sic] our client twice. I am instructed that this was captured on the CCTV of the shopping centre and the security also witnessed this occurrence.
(emphasis added)
(b)The father, through his solicitor, referring to correspondence as a ‘barrage of emails’ is inappropriate. It is entirely dismissive of any concerns which such emails might have raised. The father infers that the mother is being dishonest. On instructions, the father’s solicitor is essentially posing the question ‘how could someone who is frightened of another person possibly hug them?’ This is part of the gaslighting and manipulation referred to earlier at [128]. The fact that the father has not only made enquiries of security guards[78] but also instructed his solicitor to assert that there was CCTV footage to demonstrate his point speaks strongly about the father’s dismissal of the mother’s point of view and the need to prove that he is in the right (and she in the wrong).
Regarding Z not spending time with the father:
(a)The same email of 30 May 2022, also contained the following:
I refer to the above and note that once again [Z] did not leave the mother [sic] motor vehicle on the weekend, resulting in the father and [Y] not spending anytime [sic] with [Z]. I note that our client has had to incur two supervisory fees for [D Contact Service] to date…
In addition, and prior to our client engaging [D Contact Service] for the next proposed visit, can you confirm that your client will actually cause [Z] to spend time with the Father and his brother?
(emphasis added)
(b)There is no evidence that the father, through his solicitors, sought from the mother an explanation as to what occurred. The father assumed that the mother was ‘not encouraging nor assisting in [Z] leaving the motor vehicle’. The basis of that assumption is not apparent from the correspondence. The father does not offer any suggestions through the correspondence as to how Z might be assisted in spending time with him. The time which was to be supervised was, of course, in accordance with consent orders made on 15 February 2022 which required the father to pay for the costs of the supervision. The father was, no doubt, well aware at the time of what the issues concerning Z were, yet it appears that he entirely blames the mother for Z not spending time with him. The same attitude is demonstrated by the evidence in respect of Y not spending time with the mother, that is, the father lays the blame for this at the mother’s feet.
[78] In his oral evidence the father said that after 8 May 2022, he told his solicitor about the meeting, that his solicitor had advised the father about getting the CCTV footage, and that he did not recover any video footage but had a conversation with the security guard at T:118.26-T:119.5.
The Case Outline Document,[79] prepared on behalf of the father for final hearing contains the following:
Make no mistake, it is the Father’s contention that the Mother has poisoned the relationship between the children who are living with her and the Father which underscores her inability to foster a meaningful relationship with their Father going forward. She simply will not do it.
[H]er evidence is suggestive of a level spite towards the father that has resulted in her sequence of false allegations.
The father contends that the mother continually has caused the children to lie to the police…
[79] Sealed 20 October 2023.
Without a doubt, such outline was prepared on instructions. It contains the father’s case at final hearing. The father’s view was at all relevant times, and continues to be, that the mother is a liar, that she makes false allegations, that she is causing the children to lie and that she has actively sought to, and succeeded in, distancing the children from the father.
The father maintained throughout the hearing that he has not harmed the children. At [105] of the Expert Report it is noted he said he has ‘never assaulted [Z]’. This is despite a plea of guilty to a charge of assault occasioning actual bodily harm in respect of the late 2021 incident, being found guilty of such offence and being issued with a conditional release order, albeit without proceeding to conviction. The father said to the Single Expert that Z had lied to the Police about being assaulted.
EVIDENCE OF SINGLE EXPERT
Pursuant to orders dated 16 March 2022, a Single Expert Report was prepared by Dr B dated 29 June 2022 and which was released to the parties and the ICL on 4 July 2022.
In the report, Dr B summarised the background to the relationship and set out the perspectives and opinions of the mother, father, and the four children. Each of the children were interviewed separately by Dr B and with no one else present.
When detailing the interviews and presentation of the parents, Dr B described the mother as ‘punctual, polite and cooperative’, and noted that she was able to regulate her emotions without requiring a break during the interview.[80] In relation to the father, Dr B described him as ‘punctual, polite and generally cooperative’, that he tended to give long and convoluted answers requiring Dr B to remind him to answer the question, and that the father rushed off camera and appeared distressed when he returned at least three times.[81] Later in the report, Dr B described the father as presenting ‘emotionally labile at interview’.[82]
[80] Single Expert Report of Dr B dated 29 June 2022 at [86].
[81] Single Expert Report of Dr B dated 29 June 2022 at [102].
[82] Single Expert Report of Dr B dated 29 June 2022 at [137].
Adult Relationships
In the report, Dr B considered the parent’s relationship and noted that there were significant issues pertaining to trust and communication between them, which would make it difficult for them to co-parent the children. Dr B stated, if the parents were required to communicate, that they would be assisted by a Parenting App together with ‘adhering to a digital communication protocol’.[83] Dr B stated that the parents had an acrimonious relationship that hindered their ability to co-parent.[84] During cross-examination, Dr B stated that ‘there are no indications that they’re able to co-parent at all’.[85] When asked about the mother’s capacity to facilitate Y spending frequent time with the father if he were to live with her, Dr B said that she thought it would be difficult for the mother due to trust issues and the level of animosity, and that the mother would struggle with giving him permission.[86]
[83] Single Expert Report of Dr B dated 29 June 2022 at [125].
[84] Single Expert Report of Dr B dated 29 June 2022 at [127].
[85] T:325 line 24.
[86] T:322 lines 20-27.
Family Violence
In the report, Dr B followed a ‘PPP screening tool’, assessing risk according to the three factors of potency, pattern, and primary perpetrator.[87] Following her consideration of a number of questions, Dr B stated that the classification which seemed to best fit was ‘Coercive Controlling Violence’. Dr B stated that this type of violence focuses on control and does not always involve physical harm, and that, according to the screening tool, the father appeared to be the primary perpetrator.
[87] Single Expert Report of Dr B dated 29 June 2022 at [130].
Dr B identified static risk factors, those that are historical and do not change, as the parties’ cultural practices and issues with each parent’s family of origin. Dr B stated that, if the father was indeed abused and was raised in a culture where harsh physical discipline is accepted, that this could influence the father’s parenting practices and, unless his views change, that there would be an ongoing risk he will continue to behave in this way, that he will model this behaviour for his children, and perpetuate a cycle of violence.[88] When asked about the father’s physical discipline in cross-examination, Dr B did not think it was good for Y but she suspected this has changed as Y has become older, that they are more friends, and that she does not think it is the case of the father parenting Y as such.[89]
[88] Single Expert Report of Dr B dated 29 June 2022 at [156].
[89] T:328 lines 12-19.
Dr B identified the dynamic risk factor, factors that are changeable, as insight. Dr B noted that the father had not appeared to have taken any steps to address his behaviours other than commence a parenting course, of which Dr B noted appeared to have been a waste of time given the father’s belief he does everything right. Dr B stated that the father appeared to have limited insight into the impact of his behaviour on the mother and children.[90]
[90] Single Expert Report of Dr B dated 29 June 2022 at [157].
Dr B identified the father as posing a risk of harm to the mother and the children.
The Children’s Relationships & Needs
Following her interviews and observations of the children, Dr B, in her report, noted that the children living with the mother had a close and loving relationship with the mother and each other, but were ‘very wary of [Y]’. Dr B noted that Y, for his part, felt like an outsider and was wary of sharing information with his siblings as well.[91]
[91] Single Expert Report of Dr B dated 29 June 2022 at [210].
The current situation – that the children living with the mother reject the father, want no relationship with him, and have provided reasons for this – was described by Dr B as Realistic Estrangement. The situation concerning Y – the inconsistencies between what he is saying and how he behaves in relation to spending time with his siblings and mother –Dr B suggested the following:[92]
One hypothesis to explain the inconsistency between what [Y] is saying and how he behaves, is that [Y] is being influenced by his father in order to assist [the father] to obtain primary care of the boys. At this point in time, [Y] is being aligned and encouraged to reject the mother and those siblings who have rejected the father; however, he has not quite reached the point of becoming alienated from them.
[92] Single Expert Report of Dr B dated 29 June 2022 at [212].
When considering the children’s developmental needs, Dr B considered Y’s situation in detail. Noting the concerns raised about Y taking on his father’s views, including in relation to physical discipline and attitudes towards women, Dr B stated that it would seem likely these views would become more entrenched overtime. Dr B considered that, leaving Y in his father’s primary care is less likely to result in him strengthening his relationship with his mother and siblings, and that if he were to spend time with the father whilst living with the mother, he would continue to be subjected to loyalty demands.
When considering Y’s perspective, Dr B stated, ‘[Y] is fast reaching the age where he will refuse to remain in the mother’s care and may place himself at risk if he were to leave of his own accord.’[93] During cross-examination, Dr B stated her view that Y was reaching the age where it would be very difficult to make him do anything he did not want to, and that, considering his stated wish to be with his father, that ‘he will definitely self-place with his father, and in doing so, that could put him into a tricky position or a dangerous position, particularly if he was out on the streets on his own’.[94] Later, Dr B stated that she did not think moving Y into his mother’s care would make Y’s life easier, rather it is going to make everyone else’s life much harder.[95]
[93] Single Expert Report of Dr B dated 29 June 2022 at [217].
[94] T;322 lines 1-10.
[95] T:327 line 29.
Contemplating Y’s relationship with his mother and siblings, Dr B warned of the risk of Y becoming permanently estranged from his mother and siblings if left in the father’s care when the Court decides the weight to be place on Y’s wishes. During cross-examination, when asked about the likely impact of continued separation of Y and Z’s sibling relationship, Dr B stated that the sibling bond may not be as strong:[96]
They will have very few shared experiences to draw back on, and different views on each parent. So there’s likely to be a negative impact on their sibling relationship, at least until they reach a point in time … when they’re able to sit down and discuss things differently.
[96] T:320 lines 30-35.
When considering Z’s developmental needs, Dr B stated that for Z to recover from his trauma, he needs to feel safe and secure, and that the mother appears to be well-placed to ensure his needs are met. Dr B stated that Z had made his wishes quite clear and that the Court would need to consider the risk to his emotional and psychological well-being, as well as his physical safety, before compelling Z to spend any time with the father.[97] During cross-examination, when asked of the risks to Z if he were to live with the father in circumstances where Z’s counsellor observed him suffering severe anxiety at the thought of spending time with his father, Dr B stated that Z’s anxiety would be intensified.[98] Further, when asked if Z were to receive support in some way, either from a counsellor or from either of the parents, to better equip or adjust to a change in circumstance were he to live with the father, Dr B did not agree and stated that placing Z into a situation that he found traumatic and was firmly opposed to would not improve Z’s mental health.[99]
[97] Single Expert Report of Dr B dated 29 June 2022 at [220]-[221].
[98] T:322 line36.
[99] T:345 lines 19-26.
Evaluation
In her evaluation of the issues for consideration as directed in the orders of 16 March 2022, Dr B found, inter alia, the following:
(a)That the children’s relationships with Y have been impacted from living in separate households;
(b)That there are no doubts that Y’s siblings love and care about him, and at the same time are very wary of him, understanding that his loyalties lie with the father. The siblings do not wish to stop seeing Y, but Dr B noted that if the siblings continue to be separated, it is likely to impact on their relationship going forward;
(c)Z would not cope with having to spend time with the father, and Y would find it very hard to be separated from the father;
(d)That the mother appears well-placed to meet the physical, emotional and intellectual needs of the Children, and the father presents with some deficits, including his own emotional regulation and parenting capacity;
(e)That, unless the father develops insight to the impact of his behaviour on the Children and changes his parenting practices and approach to women, he will continue to model inappropriate behaviours for Y;
(f)That the abuse experienced by the children has resulted in significant trauma, that each child would benefit from individual therapy, but it is up to each child to decide when and if they are ready and willing to engage with therapy;
(g)That the Children are very aware of the parental conflict, that they worry about the outcome of these proceedings, and that Z is quite fearful of the father;
(h)That this matter is not suited to family therapy;
(i)That this matter is not suited to a shared-care arrangement, and that the arrangement which would best suit the Children would be one where they live primarily with one parent;
(j)That Y’s views appear to be influenced by his alignment with the father, and that Z’s views are in accordance with his experience of having been abused by the father; and
(k)That all the children of the parties’ relationship have been traumatised as a result of exposure to family conflict and the father’s abusive behaviour.
Recommendations
Dr B made three recommendations in her report, each depending on the Court’s findings:[100]
(a)Firstly, if the Court were to find that the mother deliberately alienated the father, Dr B recommended that Y and Z live with the father, spend alternate weekends and half school holidays with the mother, and that the parents have equal shared parental responsibility. However, during cross-examination, Dr B agreed it would be harmful to disrupt the current arrangements for the children, and that the ‘small window of opportunity for things to be different’ has since closed;[101]
(b)Secondly, if the Court were to find that the father had perpetrated family violence, Dr B recommended that the children live with the mother, that the mother have sole parental responsibility, and that any time the children spend with the father be at the sole discretion of the mother. However, during cross-examination Dr B agreed that the risk of family violence needed to be weighed against the disruption or difficulty for Y. Dr B also stated that, as Y was getting older and bigger, it would probably place the mother and other children at risk if Y were to act out because he wished to live with his father;[102] and
(c)Thirdly, if the Court were to find that it would be in Y’s best interests to live with the father, Dr B suggested that this occurs with the proviso that Y spend alternate weekends and half school holidays with the mother and his siblings.
[100] Single Expert Report of Dr B dated 29 June 2022 at [236]-[238].
[101] T:323 line 1-13.
[102] T:323 lines 15-29.
During cross-examination, Dr B moved from her recommendations to:[103]
(a)Z lives with the mother and that the mother have sole parental responsibility for Z;
(b)Y lives with the father and that the father have sole parental responsibility for Y;
(c)That there be no order for Y and Z to spend time with the parent with whom they do not live; and
(d)If the children are able to access professional therapy, at some future point, they may wish to spend time with the parent with whom they do not live.
[103] T; 325 lines 12-35.
DETERMINATION
The determination below must be understood in the context of the Court’s findings above.
By the time the final hearing in this matter had concluded, and at the time these Reasons for Judgment are delivered, the parties have been separated for over seven years. The Children have been living in separate households for over three years, and Y has been living with the father for over five years.
Each of the Children expresses very strong views about where each wants to live and they are able to articulate the reasons why this is so. The reality of the situation is that Y is now almost 15 and Z is 12. Y, particularly, is of an age where his views ought to be given significant weight.
The father has perpetrated family violence while the parties were together, and he has perpetrated family violence since separation. While his violent conduct may not be of a most extreme or even serious nature, it is still conduct which has impacted the mother and all four children. The difficulty is not the conduct so much, but rather the father’s denial of its impact, and his denial of any wrongdoing. It is like he has blinkers on, and he is only able to see a very limited picture of what is around him. While not easy, he could, if he so wanted to, take the blinkers off and learn to appreciate the full view. Had he done so years ago, his relationship with his four children would, no doubt, be much healthier. Had he done so, Y’s relationship with the mother and his siblings would likewise no doubt, be healthier.
The Court accepts the evidence of Dr B in respect of the role the father has had to play in regards to the difficult relationship Y has with his mother, and the Court accepts Dr B’s evidence about the likely and significant risk that would come to not only Y, but also the mother and the rest of the siblings in her household if an order was made for Y to live with her.
The mother does not have the capacity to deal with Y’s difficult behaviours and oppositional attitude.
Both parents love Y very much.
Both parents love Z very much.
Both parents wish the Children the best.
The parents are however themselves of limited capacity, and while they may have the wish to do so, they do not both have the capacity to do what is best for the Children. Had the father had the necessary capacity and insight, he would not have pampered to Y’s whims, and he would not have at any point in time insisted that the Children live separately from their sisters. He would have done what was best for them, and not put his own needs above those of the Children’s. He has not done so. For that matter, neither did the mother, but to a much lesser degree.
Each of these parents has been so focused on the parental conflict that in the fighting each other their children have suffered and have been the heavy casualties. The battle lines were drawn long ago, the children have after a while taken refuge on one side or the other, and have stayed there since.
While Y in particular may have strong feelings and views about his immediate future (and indeed his future at large) he is still an impressionable teenager who is not yet capable of making mature decisions which will impact the rest of his life. However, the risks of him running away, putting himself at danger, of fighting with the mother and siblings and the subsequent distress to all, are all such that they outweigh the risks to him of him staying in the father’s home, where he will no doubt continue along the current trajectory of an emotionally stilted and misogynistic upbringing.
It is in Z’s best interest that he remain living with the mother. He is not only strongly resistant to living with the father, but to spending time with him. The father has not shown any capacity to understand and appreciate why Z feels the way that he does, except through the lens of the mother manipulating him, which the mother did not do. The father is dismissive of Z’s views, of the mother’s views, and of his daughters’ views. The likely change for Z if an order was made for him to live with the father would be significant, not only in terms of being separated from the mother and his sisters, but also in terms of living with the father of whom he is fearful and who he does not have a meaningful relationship with at present. The father does not have the capacity or insight to build a meaningful relationship with Z, nor to deal with the difficulties which Z would face if he was to live with the father.
It is highly likely that the mother will provide Z with the emotional permission to have a relationship with the father in the future. While unlikely, it is still possible, that the father will provide Y with the emotional permission to have a relationship with the mother in the future.
It is important that the door for both Children be left open, so that if in the future, they feel they want to have a relationship with the parent with whom they are not living, that they are able to do so and that they feel free to be able to do so. It is for that reason that an order will be made for the Children to spend time with the parent with whom they do not live in accordance with their wishes.
The evidence strongly supports an order that the parent with whom the Children live, have sole parental responsibility.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
The Court so orders.
I certify that the preceding two hundred and thirty-five (235) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 19 September 2024
11
2