Clayton & Clayton (No 2)
[2023] FedCFamC2F 1385
•7 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Clayton & Clayton (No 2) [2023] FedCFamC2F 1385
File number: SYC 8412 of 2019 Judgment of: JUDGE LIOUMIS Date of judgment: 7 November 2023 Catchwords: FAMILY LAW – CHILDREN – Interim proceedings – Where the mother ceased the father’s time with the children – Whether the father poses an unacceptable risk to the children – What time the children should spend with the father – Allegations of family violence – Impact on the children of parental conflict Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 69ZL
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.04
Cases cited: Bant v Clayton (2015) 53 Fam LR 621
Deiter & Deiter [2011] FamCAFC 82
Isles & Nelissen (2022) FLC 94-092
M v M (1988) 166 CLR 69
Marvel v Marvel (2010) 43 Fam LR 348
SS & AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 117 Date of hearing: 28 September 2023 Place: Sydney Counsel for the Applicant: Mr Roberts of Counsel Solicitor for the Applicant: Dimocks Family Lawyers Counsel for the Respondent: Mr O’Reilly of Counsel Solicitor for the Respondent: Barkus Doolan Winning Counsel for the Independent Children's Lawyer: Ms Dalrymple of Counsel Solicitor for the Independent Children's Lawyer: Farah Lawyers, Solicitors & Barristers ORDERS
SYC 8412 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CLAYTON
Applicant
AND: MR CLAYTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE LIOUMIS
DATE OF ORDER:
7 NOVEMBER 2023
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.Orders 1, 2, 3, 4, 5 & 6 of the Orders dated 19 April 2023 are suspended.
2.The children X born in 2011, Y born in 2015 and Z born in 2019 (“the children”) live with the Mother.
3.The children spend time with the Father for no less than three hours each Saturday and Sunday, with such time to be supervised by a professional supervisory service.
4.In order to spend time with the children, the Father shall nominate two professional supervisory services to the Mother and the Mother shall, within 48 hours of receipt of the Father’s nominations, choose one of the services.
5.Each party shall within 24 hours following the Mother’s election pursuant to Order 4 herein, complete all intake forms and pay equally such deposits as the supervisory service requires.
6.Each party shall thereafter:
(a)Follow all intake processes, including intake sessions and interviews; and
(b)Follow the reasonable directions of the supervisor at the commencement, during and at the conclusion of the children’s time with the Father.
7.Each party shall pay in equal shares the costs of the supervisory service.
8.The parties may agree in writing to the children’s time with the Father being supervised by another person.
9.Each party is injuncted from:
(a)Discussing the criminal or family law proceedings with or in the presence of the children, or from permitting any other person to do so; and
(b)Denigrating the other parent or members of the other parent’s family in the presence of the children, or from permitting any other person to do so.
10.Both parents shall forthwith enrol in, attend and complete a Parenting After Separation course.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings relate to interim parenting arrangements for the three children of the marriage, namely X born in 2011, Y born in 2015 and Z born in 2019 (collectively “the children”).
The parties commenced cohabitation in or around 2006 – 2007, were married in 2007, and separated under the same roof in or around May 2018.
It is clear from the documents filed by each party and the Single Expert Report by Dr B dated 20 December 2022 (“Single Expert Report”) that there has been a substantial, intractable conflict between the parents.
On 28 July 2023, the mother instructed her lawyers to write to the father’s legal representatives of that time advising of the mother’s intention to cease the father’s time with the children. The father says he has not spent any time with the children since 26 July 2023. On 3 August 2023, the mother filed the Application in a Proceeding currently before the Court.
The matter is listed for final hearing before me on 26, 27, 28 & 29 February 2024.
ISSUES
The issues before the Court are:
(a)Whether the father poses an unacceptable risk to the children;
(b)If so, what orders will ameliorate the risk(s) identified; and
(c)What time the children should spend with the father as a result.
EVIDENCE
The Applicant mother relied on her Outline of Case Document filed 4 September 2023 and the following documents:
(a)Application in a Proceeding filed 3 August 2023 and sealed 14 August 2023;
(b)Affidavit of Ms Clayton filed 3 August 2023;
(c)Affidavit of Ms C filed 28 August 2023;
(d)Affidavit of Ms D filed 28 August 2023; and
(e)Notice of Child Abuse, Family Violence or Risk filed 3 August 2023.
The Respondent father relied on his Outline of Case Document filed 27 September 2023, including Annexure A “Chronology”, and the following documents:
(a)Response to Application in a Proceeding filed 21 August 2023;
(b)Affidavit of Mr Clayton filed 21 August 2023; and
(c)Affidavit of Mr Clayton filed 2 September 2023.
The Independent Children’s Lawyer (“ICL”) relied on their Case Outline filed 4 September 2023.
Each party also relied on the Single Expert Report.
Each party was represented and provided both written and extensive oral submissions. I have had regard to the documents filed and the documents marked and tendered as exhibits during the course of submissions.
BACKGROUND
The parties married in 2007.
The mother contends that in 2016, the father was arrested and charged with an offence.
The mother alleges that throughout the relationship and subsequent to separation, the father engaged in petty criminal activity. She further alleges that this has occurred in the presence of the children.
The parents separated under the same roof in or around May 2018. The mother says the parents attempted to rekindle their relationship until late 2019.
The parties divorced in 2020. The children have lived with the mother since separation.
On 10 February 2021, the mother filed an Initiating Application seeking final property orders.
On 28 July 2021, the father filed a Response to Application for Final Orders in which he sought, among other orders, interim parenting orders for the children to live with him and spend time with the mother four nights a fortnight as well as time on special occasions.
On 2 September 2021, the father filed an Application in a Case in which he sought interim orders for the parents to hold equal shared parental responsibility for the children, and for the children to live with the mother and spend time with him on six nights a fortnight.
On 17 September 2021, the mother filed a Response to Application in a Case in which she sought interim orders that the children live with her and, until the conclusion of the father’s criminal proceedings, that the father spend supervised time with the children three times a week. The paternal grandmother was nominated by the mother as the supervisor.
On 10 December 2021, the mother filed an Amended Response to an Application in a Case to include provision for the children to spend time with the father during the school holidays. The time proposed by the mother was to be supervised by the paternal grandmother.
On 15 December 2021, Senior Judicial Registrar Conlan made interim Orders that inter alia provided for:
(a)The children to live with the mother;
(b)The children to spend time with the father, supervised by the paternal grandmother, as follows:
(i)During school terms, each Tuesday and Thursday between 3.00 pm and 7.00 pm, and each Friday from 3.00 pm to 7.00 pm Saturday.
(ii)During school holidays, each Tuesday from 8.30 am to 7.00 pm, and each week from 3.00 pm Thursday to 7.00 pm Saturday.
(a)The parents to complete hair follicle testing.
On 10 May 2022, Orders were made pursuant to rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for a Single Expert to prepare a report in relation to parenting issues.
In mid-2022, the father stood trial in the Local Court for assault charges, and one breach of Apprehended Domestic Violence Order (“ADVO”). The father was convicted of an assault on the mother dated late 2014 and the ADVO breach, and was placed on a good behaviour bond. An ADVO was issued for the protection of the mother for a period of 12 months. The father alleges that during judgment in the Local Court, the mother was found to be to be an unreliable witness.
In January 2023, the Single Expert Report of Dr B was released.
In early 2023, the mother’s car was set alight. No-one has been charged with this offence.
In March 2023, the parties attended a mediation and agreed to a change to the interim orders. This change is captured in the Orders of 19 April 2023. The mother now says that she felt pressured to agree to change these orders. I will discuss this shortly.
On 19 April 2023, the parties agreed to interim consent Orders which provided inter alia that:
(a)From the last day of Term 1 2023, the children spend time with the father:
(i)In Week 1: on Tuesday and Thursday from after school until 7.00 pm, and from after school on Friday to 7.00 pm on Saturday;
(ii)In Week 2: on Tuesday and Thursday from after school until 7.00 pm, and from after school Friday until 10.00 am on Sunday; and
(b)For the purpose of the above Orders, the father was to remain residing in the paternal grandmother’s home.
In mid-2023, the mother was advised by NSW Police that they found on the father’s phone 175 screenshots of the mother’s diary and calendar, screenshots of emails between the mother and her current and former legal representatives, and photos of the mother’s fire-damaged car.
In mid-2023, the father was charged with offences and breach of ADVO.
In mid-2023, the mother’s cousin Ms C alleges that she was at a venue in Suburb E when she was approached by the father who yelled out her name multiple times. Ms C says that the father was accompanied by an unknown male and a female who she understood to be his partner. She says the father asked “why are you trying to cause problems for me?” and became agitated and aggressive as Ms C began taking photos of him. Ms C says the father followed her and the group she was with as they left the venue, and that he said to her “you fucking fat slut … you bitch.”
On 28 July 2023, the mother’s legal representatives wrote to the father’s legal representatives of that time advising of the mother’s intention to cease time between the children and the father.
On 6 September 2023, this Court heard the mother’s application that the father’s solicitors be restrained from continuing to act on his behalf. That restraint was made on the basis that the father’s solicitor had received from the father email correspondence between the mother’s legal representatives and the mother. The father’s solicitor’s failure to disclose those emails before being asked by the mother’s legal representatives, and their continuing failure to provide adequate disclosure in relation to this inadvertent disclosure, was a significant factor in reaching that decision.
On 28 September 2023, the matter came before me for interim hearing on the competing interim parenting applications.
COMPETING APPLICATIONS
The mother’s case
The mother alleges that the father poses an unacceptable risk of harm to the children. That risk is based on the father’s previous and continuing conduct which allegedly exposes the mother and the children to his coercive behaviour. The mother says that this results in:
(a)The children being exposed to the father’s negative views of her;
(b)The children being at risk as the father’s behaviour escalates, as demonstrated by his use of her personal information to attempt to gain information from third parties such as doctors and intimidate her; and
(c)A detrimental impact to the mother’s mental health.
The mother alleges that throughout the relationship, the father exhibited violent and dysregulated behaviour towards herself and the children, including:
(a)Assaulting the mother in early 2013 by punching and kicking her after she confronted him about his alleged drug use;
(b)Assaulting the mother when she was pregnant with Y in 2014 by hitting her in the head and stomach, and threatening to kill the mother if she told the Police what had happened;
(c)Slamming the mother’s head into a wall in mid-2015, resulting in a bloody nose and scratches to the mother’s face;
(d)Pulling the mother’s hand behind her back and pushing her into a wall in late 2017;
(e)Threatening to kill the mother, saying “I will kill you before I lose my kids”;
(f)The father’s drug use and dealings, resulting in the mother finding a bag of white substance under the tallboy in Y’s bedroom in early 2020; and
(g)Slapping Y on two occasions in mid-2020.
It is the mother’s case that the father has continued to engage in conduct which is coercive and controlling post-separation. The mother contends that subsequent to the signing of the consent orders, the father has engaged in behaviour which is intended to and has caused fear in the mother.
It is the mother’s case that the father has used information retrieved from her email account and calendar to stalk and intimidate her.
In early 2023, the mother was scheduled for surgery and contends that she did not tell the father of this. A medical secretary at the doctor’s practice Ms D says she received a call from a male, who claimed to be the mother’s psychologist, enquiring as to the mother’s surgery. The mother also alleges that on the morning of the surgery, she received an SMS from the father wishing her well for the upcoming surgery. This is denied by the father.
On 14 April 2023, the mother contends that when speaking to the child Y by telephone, she heard the father say:
ask her what she is doing…Oh she is going out, she is going to fuck 100 guys, she has STI’s, I gave them to her when I was married to her. She has had lipo suction and nose jobs.
The mother says that when she attended her surgery for a post-operation appointment, she was told that “two burly looking men” attended the surgery to enquire about face lifts. The mother says she showed a photo of the father to the secretary who identified him as one of the men. It is part of the mother’s case that the father has criminal associates that he is using to intimidate her.
In around mid-2023, the mother contends that during the course of an argument the father said:
I know you bought your car from the […]. I know everything about you. You do not need to lie to me. I know you had surgery with [Dr F] and I know your psychologist is [Mr G] from [H Clinic]. I know all the lies you have written about me in your reports. Wait until we go to family law court, I have got everything. I know you hang out with [Ms J]… I subpoenaed all your paperwork I am going to ruin you in the family court.
The mother contends that at the time this was said, there had been no subpoenas issued by the father in relation to that information.
It is after this conversation that the mother says she contacted the High Risk DV Liaison Officer and Police and was advised to change her passwords. In doing so, the mother contends that she discovered an Android phone had been attached to her Gmail account since December 2020. The mother contends that she has never owned an Android phone.
In mid-2023, the mother contends that the father said to her, “[d]rive safe [Ms Clayton], you are going to need it” while mimicking a wheelchair movement with both his hands by his side.
In July 2023, the mother’s legal representatives wrote to the father’s legal representatives to ascertain whether they had received privileged communication between the mother and her legal advisors. That issue was dealt with by me in my judgment of 6 September 2023. While no further details have been made available by the father’s previous or current legal team in relation to this issue, it is clear that the father forwarded privileged communication between the mother and her legal representatives to his legal team. The only rational reason for doing so must have been to gain a forensic advantage over the mother.
The father’s case
The father’s position is for the mother’s application to be dismissed and for the Orders of 19 April 2023 to recommence in relation to time arrangements in the school terms. The father also seeks additional orders in relation to school holiday time with the children.
The father in submissions placed significant emphasis on the Local Court findings as to the mother’s credit. There were limited submissions as to the finding of guilt arising from the hearing in 2022. This finding was in relation to a physical assault by the father on the mother which was witnessed by a person unknown to both parties.
The father contends that during the relationship the mother was physically and verbally abusive towards him.
The father says that since he has spent unsupervised extended time with the children, he has been able to organise and facilitate the children attending at extra-curricular activities. He says that during his time with the children, he ensures that he organises enriching experiences for them such as outings to the zoo, beach and sports events.
It is the father’s case that the children would be distressed at the abrupt cessation of time with him, and that he ensures that he prioritises the children when they are in his care.
The father contends that the mother also had access to his email account and that she used that account to communicate with his lawyer in 2021 and represent herself as the father without his prior knowledge or consent. The mother says that this occurred with the father’s consent.
The father’s evidence is limited as to when he had access to the mother’s personal emails, diary and calendar events, why he had access, and what use he made of that information. I understand that the father is facing criminal charges in relation to those events and accept he has made forensic decisions about what to disclose at this stage of these proceedings. No explanation was provided by the father as to why there are screenshots of the mother’s emails on the father’s personal mobile device.
The father contends that the mother’s witness Ms C is a cousin of the mother. The father denies that he followed Ms C and says that he is concerned about his children being in contact with Ms C because of her online posts and drug use.
There is no evidence that the children have seen or been involved in Ms C’s private online account/s. On an interim basis, I do not make any finding that the children have been exposed to risk by being in contact with Ms C and as a consequence, I decline to make injunctive orders.
The father also denies the contents of the affidavit of Ms D filed 28 August 2023, and says he has evidence from his work attesting to his presence until at least 4.30 pm.
The father does not in his material demonstrate some insight into the inappropriateness of his conduct in downloading and retaining information from the mother’s accounts. The father demonstrates no understanding of why this conduct could cause fear and apprehension in the mother.
The ICL’s case
The ICL supports the reinstatement of the Orders of 19 April 2023, and seeks for the father to enrol in a Men’s Behaviour Change course.
I agree that it would be beneficial for the father to enrol in a Men’s Behaviour Change course and I leave it to the father to make arrangements if he so chooses. I will order that both parents attend a Parenting After Separation course on the Court’s own motion, based on my discussion of the Single Expert Report recommendations below.
The ICL acknowledges that the mother’s allegations are serious and if found to be accurate, could ground a finding that the father has acted within the definition of family violence,[1] while also providing a legitimate reason for the mother’s concerns.
[1] Family Law Act 1975 (Cth) s 4AB.
On balance, the ICL relies on the Single Expert Report to support a reinstatement of the Orders of 19 April 2023.
ORDERS OF 19 APRIL 2023
The Orders of 19 April 2023 were made following the parties attending mediation. The mother says her consent was reluctant as she was not able to disclose that the Police were investigating the fire involving her motor vehicle.
No charges have been laid in relation to this event. The mother in her material is clear that she believes the father is responsible for the event. The father denies that he was responsible. I cannot, on the evidence, make any finding in relation to this matter.
When completing the application for Consent Orders, the mother filed an Annexure to Proposed Consent Parenting Order on 18 April 2023. In Part B of the document, the mother noted that:
a child concerned in the proposed order is at risk of being subjected to or exposed to abuse, neglect or family violence, AND all risk issues have been adequately addressed, as set out in Part C herein.
The mother swore that the risk included child abuse or neglect or risk of child abuse or neglect, family violence or risk of family violence, mental ill-health, and drug or alcohol abuse.
At Part C of the form, the mother noted that these risk issues are addressed by the proposed Orders which require the father to live at his mother’s home when the children are in his care, place injunctions on the father, require the father to submit to random drug testing, and provide for changeovers to be in a public place. I reiterate that these orders were filed prior to the mother being advised by Police of the screenshots which were on the father’s phone.
The father also filed an Annexure to Proposed Consent Parenting Order on 14 April 2023. At Part C, the father noted that the risk issues identified had been addressed by the parties living separately, the fact that his overnight time with the children had not included any incidents which would cause concern, the protracted period of supervised time, the fact that the “vast majoirty [sic] of these allegations were brought before the Criminal Court and were dismissed,” the fact that the children had been removed from the ADVO, and the father consenting on a without admissions basis to injunctions. The father also noted that there was an ADVO in place for the protection of the mother.
SINGLE EXPERT REPORT
The Single Expert Report predates the current criminal charges. It is agreed that the Single Expert Report will be updated prior to the final hearing of this matter.
During the interviews with the mother, Dr B opined that:[2]
Overall, it was clear that [Ms Clayton] presented as an individual who had experienced considerable trauma with which she was currently very preoccupied. She had difficulties in reflecting on events or providing a coherent chronological account, largely reflecting, in my opinion, her difficulties in managing her emotional distress and reflecting on the events. She was at times, difficult to follow.
…She does however, present with features of high levels of anxiety and traumatic preoccupation [sic] She demonstares [sic] marked emotional dysregulation. It appears that these issues of emotional reactivity pre-date the conflict with her former husband, but they appear to have contributed in a significant way to the issues she has experienced in the relationship with him in a similar manner to the way in which his behavioural dyscontrol and dysregulation have contributed to their relationship breakdown and ongoing conflict.
[2] Single Expert Report pages 6-7.
The mother alleged to Dr B that the father was “provoking and distressing the children by saying bad things about her” and that he taunted and denigrated her both to and in front of the children.[3]
[3] Ibid page 6.
Dr B also interviewed the father. During the interview, the father appeared to have been open about his previous involvement in criminal activity which resulted in periods of incarceration. The father raised his assertions that the mother was emotionally dysregulated during the relationship, and denied the mother’s contentions that he had been provoking the children or denigrating the mother to them or in their presence.
In relation to the children, during the assessment with Dr B, X was observed to have difficulties with self-regulation and perseverate on disruptions to his routine. X has been diagnosed with Autistic Spectrum Disorder and his behaviour was observed to be well managed by the mother.
Dr B observed that Z was unable to tolerate separation from the mother and that she appeared to be “very demanding of her mother’s attention”.[4] Similarly, Z was observed to have separation anxiety and fear of separation from the father.[5]
[4] Ibid page 13.
[5] Ibid page 14.
Y was described by Dr B as follows:[6]
On direct questioning when his mother and sister were not in the room, [Y] [sic] stated that he was ‘pretty happy’ with the arrangements to spend time with both parents but he would not elaborate on what could change in his view. He became noticeably anxious at this time. Overall, he impressed as a child who attempts very clearly to distract himself by keeping busy and wanting attention and reassurance from both his parents in this situation.
[6] Ibid page 13.
Dr B was concerned that Y was having difficulties at settling at school and that he had “features of anxiety in the relationships with both his parents and places himself in the position of caring and responsibility for his siblings”.[7]
[7] Ibid page 14.
In relation to the children’s specific needs, it was the recommendation of Dr B that X needs routine and that his specific vulnerabilities need to be considered.[8] Z was assessed to exhibit features of Separation Anxiety Disorder and it was the opinion of Dr B that she enjoys contact with both of her parents.[9] Y was assessed to have “high levels of anxiety” and that he has “taken [it] upon himself psychologically to attempt to maintain peace and to limit contact”.[10]
[8] Ibid page 15.
[9] Ibid.
[10] Ibid page 16.
Dr B opined in relation to the children that:[11]
Overall, I am of the opinion that the children’s special needs and emotional states are pivotal in discussions and I have indicated to both parents that, in my view, there is a need to consider the impact of the ongoing tension between the parents on the emotional development of the children and the potential risks involved.
[11] Ibid.
I note that the children had a short period where their time with the father was increased. They have spent no time with the father since 26 July 2023. The children at the time of the Single Expert Report were assessed as being emotionally and psychologically damaged by the ongoing conflict between the parents, and each child was exhibiting attachment-related anxiety as a consequence of their experiences in the family unit.[12]
[12] Ibid page 20.
Both the ICL and the father drew the Court’s attention to the following opinion of Dr B:[13]
In my view, the children would be negatively impacted by changes in current arrangements that reduced the amount of contact that they have with each parent. However, it may be a more appropriate option to focus on attaining some clarity around weekends, holidays and special events in a way that the children have some understanding of what is likely to occur for them and that they can be appropriately reminded of these arrangements going forward.
[13] Ibid.
The parties were able to agree on interim arrangements subsequent to the Single Expert Report. These arrangements have now broken down and the children have not spent time with the father for a considerable amount of time.
Regrettably for the children, the recent events have exposed them to parental discord and must as a consequence have been disruptive to them. I am concerned that the children have been negatively impacted by the change to the current arrangements.
THE LAW
I must have regard to Part VII of the Family Law Act 1975 (Cth) (“the Act”) and make parenting orders in which the best interests of the children are the paramount consideration.[14] I must also be guided by section 60B of the Act which sets out the objects of Part VII and the principles that underpin it.
[14] s 60CA of the Act.
The best interests of a child are determined by a consideration of the relevant matters set out in section 60CC of the Act.[15]
[15] Ibid s 60CC(1).
In balancing the primary considerations in section 60CC(2) of the Act, section 60CC(2A) prescribes that the Court give greater weight to the need to protect children from harm from being subjected to, or exposed to, abuse, neglect or family violence.
Despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of the responsibility to determine risk. The Full Court in SS & AH [2010] FamCAFC 13 stated at [100] that:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Thus, the assessment of risk requires the consideration of two elements: the consideration of whether it is likely that some harmful event will occur, and then a consideration of the severity of the impact caused by such harmful event.[16] I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[17] The assessment of unacceptable risk is thus a predictive exercise, postulated from known facts and present circumstances, bearing in mind of course the inherent limitations of an abridged hearing.
[16] Deiter & Deiter [2011] FamCAFC 82 at [61].
[17] M v M (1988) 166 CLR 69.
It is to be observed that the reference to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect children from that risk. It is clear that, in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.[18] In that way, where risk is alleged in interim parenting proceedings, a conservative approach or “one which is likely to avoid harm to a child” is warranted.[19]
[18] Bant v Clayton (2015) 53 Fam LR 621 at [99].
[19] Marvel v Marvel (2010) 43 Fam LR 348 at [120].
As for risk, or unacceptable risk which is at the heart of both parties’ cases, the Full Court clarified in Isles & Nelissen (2022) FLC 94-092 (“Isles”) that past allegations of violence and abuse are to be determined by reference to section 140 of the Evidence Act 1995 (Cth). The Full Court in Isles added that the assessment of unacceptable risk cannot be measured by the civil standard of proof.[20] Rather, I look to realistic possibilities.
[20] Isles & Nelissen (2022) FLC 94-092 at [86].
As this is an interim hearing, I may give my reasons in short form,[21] and I am only required to address the relevant considerations as presented by the parties through the evidence.
[21] s 69ZL of the Act.
RISK ANALYSIS
The allegations by the mother that have led to the criminal charges against the father are extremely serious. It has included accessing the mother’s personal correspondence, attending places where the mother has received medical treatment and attempting to obtain information regarding her treatment, and attempting to use confidential and privileged information to gain a forensic advantage over the mother and intimidate the mother. I cannot make findings in relation to this behaviour. Findings of fact in relation to these allegations will clearly be at issue during the final hearing.
If the father has conducted himself in the way that the mother asserts, he has engaged in behaviour which has caused fear, anxiety and apprehension for the mother. The mother’s evidence, supported by Dr B, is that her beliefs about the father’s conduct has impacted on her capacity to parent the children.
If the allegations raised by the mother are found to be factually based, it would be open to the Court at a final hearing to conclude that the father has engaged in coercive conduct which has been intended to control the mother and cause her to be fearful[22] over a lengthy period of time.
[22] Ibid s 4AB(1).
As discussed above, the father has placed limited evidence before the Court as to why he provided information from the mother’s personal emails to his solicitors. He has provided no evidence as to why, or if, he had screenshots from the mother’s email account saved onto his phone.
The father has denied attending on the mother’s medical practice and says that the affidavits filed in support of the mother should not be given weight because the deponents have connections to the mother.
The father also submitted that the mother was found to be a witness of limited credit in the Local Court proceedings, but I note that this did not relate to the current allegations. Further, in relation to the Local Court proceedings, the father was found guilty to at least one of the charges.
The mother presented as dysregulated and anxious (though not to a clinical level) when assessed by Dr B. Some of the allegations in these proceedings relate to events that occurred subsequent to Dr B’s assessment. I am mindful of the particular presentation of the children and the high level of parenting intervention that they require on a daily basis. I also take into account that the ICL will be making enquiries with Dr B as to her availability to prepare an updated report prior to the final hearing of this matter.
The father is facing serious criminal charges and as a consequence, there is a risk that the children will be drawn into further conflict between the parents. This includes the children being told about the proceedings, hearing criticism about either parent or taking it upon themselves to take sides.
If the mother’s evidence is accepted at final hearing, it also poses a significant risk to the children that the father has engaged in such conduct. There is a history in this matter which is not disputed of the father previously engaging in anti-social, criminal and violent conduct. It was submitted that Dr B accepted that the father’s conduct was in the past and that he had demonstrated insight into his previous offending. If the Court determines that the father has continued to engage in criminal and violent behaviour, that is a significant current and ongoing risk to the children’s emotional, physical and psychological wellbeing.
The children have, as a consequence of the interruption to their time with their father, also been placed in a difficult position. It is clear that the ongoing parental conflict has had a profound effect on the children, and they remain vulnerable to the parental dispute. It was the clear recommendation of Dr B that the children’s needs would be met by a cessation in the parental dispute and a reduction of the pressure the parental dispute places on the children.
The impact of these allegations, if proven, on the children would include:
(a)The children being exposed to parental dispute;
(b)The children being exposed to the father’s alleged negative views of the mother;
(c)The father posing an ongoing risk to the safety of the mother; and
(d)The father’s alleged behaviour negatively influencing the mother’s capacity to parent the children in circumstances where the children have been identified to have high needs.
I must balance the risks to the children as each parent asserts in reaching my determination of what orders meet the children’s best interests pending the final hearing.
On an interim basis, I am obliged to take a conservative approach to the matter. This is particularly so when there is significant contest on the factual matters before the Court. Assessing the evidence, I find that the father poses a risk to the children and that such a risk is unacceptable.
I make this assessment considering the criminal charges brought against the father and the alleged conduct of the father subsequent to the making of the interim orders in April 2023.
ADDITIONAL CONSIDERATIONS
The children X and Z are of tender years, and I do not find their wishes determinative. For Y, his views are impacted by his need to be the peacekeeper. I therefore do not place significant weight on the children’s views.
The children were assessed by Dr B of having a positive relationship with both of their parents.
The parents’ capacities to meet the emotional and psychological needs of the children has been significantly compromised by the ongoing parental dispute. I am also concerned that the children have been affected by the changes to the father’s time in April 2023 and then by the cessation of time in July 2023.
The orders I make will be a change to the children. This is in addition to the changes the children experienced in relation to time with the father in April and July 2023. I accept that Dr B recommended against changes for the children. In the current circumstances however, I find that a change is necessary for the protection of the children from exposure to harm.
I have discussed family violence in my assessment of risk above. This is a significant factor in this matter. I am particularly concerned in ensuring that pending final hearing, the children are protected from exposure to the conflict between the parents, including conflict over the competing allegations in both the family law and criminal law proceedings.
CONCLUSION
In considering a pathway forward for the children, I must balance the competing risks and consider what orders will ameliorate the risks identified.
The children must be shielded from the parental dispute. They must also be shielded from further allegations and disruptions to their time with each of their parents.
In this matter, the mother’s counsel conceded that professionally supervised time would ameliorate the risks of the children being exposed to the alleged views of the father and to any pressure from the father in respect of the upcoming criminal and family law proceedings.
While the father and ICL seek a return to the April 2023 interim Orders, I am not satisfied that those Orders appropriately protect the children from psychological and emotional harm from being exposed to the parental dispute.
I find that it is appropriate for the children’s time with the father to be supervised to ensure that the children are protected from the father’s negative views of the mother, his intrusion on the children’s home with the mother, and his outbursts in relation to the mother’s decisions about her medical treatment. I find that supervised time will ameliorate the risk of:
(a)Harm to the children posed by the father’s conduct;
(b)Further allegations being aimed towards either party; and
(c)Any further disruption to the children’s time with the father.
I am not satisfied that the paternal grandmother can appropriately supervise the father’s time given the nature of the current allegations. She was not proposed by the father as a supervisor, and I have no evidence before me as to her attitude towards the current allegations, nor as to her understanding of the risks to the children.
I find it is appropriate for the children’s time with the father to be professionally supervised. The orders I make will require a professional supervisor to be appointed, and it would be preferable for the same supervisor to be used. I will allow for the parties to reach agreement as to any other supervisor, including the paternal grandmother, pending final hearing.
On an interim basis, I find it is appropriate for the children to recommence spending time with the father for regular periods. I make this decision considering the untested evidence in the Single Expert Report of the children’s apparent relationship with the father and in ensuring the Court meets its obligations to maintain meaningful relationships while ensuring the children are protected. The orders I make do not provide for an optimal relationship, but I am satisfied based on Dr B’s observations of the children and the father that the orders will provide for time which is meaningful and valuable to the children.
I therefore make the above Orders.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lioumis. Associate:
Dated: 7 November 2023
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