Clayton & Clayton (No 3)
[2024] FedCFamC2F 994
•27 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Clayton & Clayton (No 3) [2024] FedCFamC2F 994
File number: SYC 8412 of 2019 Judgment of: JUDGE LIOUMIS Date of judgment: 27 August 2024 Catchwords: FAMILY LAW – CHILDREN – Whether the children should spend time with the father – Allegations of family violence, including coercive and controlling family violence – Exposure of the children to family violence – Drug use – Where the father made concessions as to falsifying negative drug test results – Where the father made concessions as to falsifying evidence in criminal proceedings – Where the father made concessions as to falsifying medical records – Where the father made concessions as to falsifying financial records – Alcohol use – Where findings are made that the father poses an unacceptable risk of harm to the children and the mother as a result of family violence – Where findings are made that the father’s drug use poses an unacceptable risk of harm to the children – Where findings are made that an order for no time is not in the children’s best interests – Where orders are made for ongoing supervised time between the father and the children, with such time to be supervised by a professional supervised contact service Legislation: Evidence Act 1995 (Cth) ss 128, 140
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CG, 65D, 65DAA, 68B, 68C, 68P, 68Q
Surveillance Devices Act 2007 (NSW) s 7
Cases cited: A & A (1998) FLC 92-800
Adamson & Adamson (2014) FLC 93-622
Amador & Amador (2009) 43 Fam LR 268
B & B (1993) FLC 92-357
B & K [2001] FamCA 880
Bant & Clayton (2019) FLC 93-924
Clayton & Clayton [2023] FedCFamC2F 1375
Clayton & Clayton (No 2) [2023] FedCFamC2F 1385
Blinko & Blinko [2015] FamCAFC 146
Deiter & Deiter [2011] FamCAFC 82
Hedlund & Hedlund (2021) 64 Fam LR 458
Isles & Nelissen (2022) FLC 94-092
Keane & Keane (2021) 62 Fam LR 190
Keating & Keating (2019) FLC 93-894
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Lainhart & Ellinson [2023] FedCFamC1A 200
M v M (1988) 166 CLR 69
Marvel & Marvel(No 2) (2010) 43 Fam LR 348
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Ramzi & Moussa [2022] FedCFamC2F 1473
Shelbourne & Shelbourne [2017] FamCA 761
Whisprun Pty Ltd v Dixon [2003] HCA 48
Zuen & Lhao [2020] FamCAFC 84
Division: Division 2 Family Law Number of paragraphs: 480 Date of hearing: 26, 27, 28 & 29 February 2024 Place: Sydney Counsel for the Applicant: Mr Mathews of Counsel Solicitor for the Applicant: Dimocks Family Lawyers Counsel for the Respondent: Ms Fisken 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:
27 AUGUST 2024
BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
1.The Mother have sole parental responsibility for the children X born in 2011, Y born in 2015 and Z born in 2019.
2.The children live with the Mother.
ON A FINAL BASIS THE COURT ORDERS THAT:
Spend time with
3.The children spend time with the Father as follows:
(a)On the third Saturday of February, April, June, August, October and December each year for a period of up to four hours.
4.The Father’s time in Order 3 shall be supervised by a professional supervised contact service nominated by the Mother within 7 days of the date of these Orders.
5.Each party shall forthwith do all things and sign all documents as required by the nominated professional supervised contact service.
6.Each party shall follow all reasonable directions of the nominated professional supervised contact service, including in relation to changeovers.
Overseas travel
7.The Father, Mr Clayton born in 1978, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children, X born in 2011, Y born in 2015, and Z born in 2019 (“the children”), from the Commonwealth of Australia.
8.It is requested that the Australian Federal Police give effect to Order 7 above by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until the Court orders its removal.
9.Despite Orders 7 & 8 above, the Mother, Ms Clayton born in 1978, shall be permitted to remove the said children, X born in 2011, Y born in 2015, and Z born in 2019, from the Commonwealth of Australia at any time with no restriction and without the consent of the Father, Mr Clayton born in 1978.
Personal protection orders
10.Pursuant to section 68B(1) of the Family Law Act 1975 (Cth), the Father, Mr Clayton born in 1978, be and is hereby restrained from:
(a)Assaulting, harassing, or molesting the Mother in any way;
(b)Forwarding, sending, or initiating any communication in any form with the Mother;
(c)Approaching or being within 250 metres of the Mother;
(d)Entering or being within 250 metres of the Mother’s home or any place where the Mother works or lives.
11.Pursuant to section 68C of the Family Law Act 1975 (Cth), Order 10 is an injunction for the personal protection of the Mother.
12.Pursuant to section 68C of the Family Law Act 1975 (Cth), if a police officer believes, on reasonable grounds, that the person, Mr Clayton born in 1978, against whom the injunction at Order 10 is directed, has breached the injunction by:
(a)Causing, or threatening to cause bodily harm to the protected person; or
(b)Harassing, molesting or stalking that person;
the police officer may arrest Mr Clayton without warrant.
13.Pursuant to section 68P and section 68Q of the Family Law Act 1975 (Cth), to the extent of any inconsistency, any other family violence order is invalid.
14.Pursuant to section 68B(1) of the Family Law Act 1975 (Cth), the Father, Mr Clayton born in 1978, be and is hereby restrained from the following:
(a)Assaulting, harassing, or molesting the children in any way;
(b)Forwarding, sending, or initiating any communication with the children;
(c)Causing any third parties, from forwarding, sending, or initiating any communication in any form with the children on behalf of the Father;
(d)Entering or being within 250 metres of the children’s home;
(e)Entering or being within 250 metres of the children’s school/daycare centre or any other extra-curricular activities that the children are enrolled in; and
(f)Being within 250 metres of the children unless otherwise specified in these Orders.
15.Pursuant to section 68C of the Family Law Act 1975 (Cth), Order 14 is an injunction for the personal protection of the children.
16.Pursuant to section 68C of the Family Law Act 1975 (Cth), if a police officer believes, on reasonable grounds, that the person, Mr Clayton born in 1978, against whom the injunction at Order 14 is directed has breached the injunction by:
(a)Causing, or threatening to cause, bodily harm to the protected person; or
(b)Harassing, molesting or stalking that person;
the police officer may arrest Mr Clayton without warrant.
Ancillary orders
17.The parties shall:
(a)Not denigrate or insult the other parent, the other parent’s partner or the other parent’s family in the presence or hearing of the children and shall use their best endeavours to ensure that others do not do so; and
(b)Will not discuss the family law dispute or show the children any court documents.
18.During the time the children are with either parent, that parent will:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent; and
(b)Speak of the other parent respectfully.
BY CONSENT BETWEEN THE RESPONDENT AND THE INDEPENDENT CHILDREN’S LAWYER THE COURT ORDERS THAT:
19.Within 28 days of the date of these Orders, the Father shall pay to Legal Aid New South Wales the sum of $7,183.82 being half of the costs of the Independent Children’s Lawyer in the proceedings between the parties and such cost is to be paid directly to Legal Aid New South Wales.
THE COURT ORDERS THAT:
Written submissions
20.Within 21 days of these Orders, the parties are to file and serve written submissions of no more than 10 pages to show cause as to why the Father should or should not be referred to the Director of Public Prosecutions.
21.Upon the last filing of material in conformity with Order 20, the decision in relation to whether the Father should be referred to the Director of Public Prosecutions stands reserved.
22.Leave is granted to the parties to approach chambers by email (…@...) if they wish to supplement their written submissions with oral submissions.
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
INTRODUCTION
This matter relates to the parenting arrangements for X born in 2011, Y born in 2015 and Z born in 2019 (collectively “the children”).
The Applicant mother is Ms Clayton (“the mother”).
The Respondent father is Mr Clayton (“the father”).
The parties married and commenced cohabitation in 2007. The parties initially separated in May 2018 yet remained living together in the former matrimonial home until 2020. The parties’ divorce order took effect in early 2020.
Pursuant to interim Orders made 7 November 2023, the children live with the mother and are to spend supervised time with the father for no less than three hours each Saturday and Sunday. In early 2024, the mother suspended the father’s time with the children due to her concerns that the father falsified negative hair follicle test results.
On the second day of final hearing, final orders were made by consent in relation to all outstanding property issues. The final hearing was therefore contained to the outstanding parenting applications.
By the final day of hearing, the parties agreed for the children to live with the mother and for the mother to hold sole parental responsibility for the children. The parties remain in dispute as to what obligations, if any, the mother should have to notify the father in relation to decisions made regarding the children.
The main dispute between the parties focuses on the time the children shall spend with the father. The mother seeks orders that the children spend no time with the father. The father seeks time with the children in four stages, graduating from supervised to unsupervised time as the father produces a cumulative number of consecutive negative hair follicle test results, culminating in a block of four nights a fortnight during the school term and half of each school holiday period. The Independent Children’s Lawyer (“ICL”) seeks orders for the children to spend supervised time with the father each alternate Saturday for a period of no less than three hours, with such time transitioning to unsupervised time after a period of 24 months provided the father produces eight consecutive negative hair follicle test results.
The parties are also in dispute as to a range of specific issues including drug testing, overseas travel, personal protection orders, the father’s engagement in drug and alcohol counselling, and the ICL’s costs.
This matter has an extensive and complicated history, in which significant allegations have been raised against each party. Both parents allege that extensive family violence has been perpetrated by the other, and significant concerns were raised in relation to each parent’s credit and honesty throughout these and previous Court proceedings.
Concerns were also raised as to the extent of the father’s drug use and the risk posed by such use. The father, in his oral evidence, admitted that over a period of two years he has falsified previous negative drug test results that had been used in this Court to show he was drug-free.
There are also concerns relating to the significant parental conflict in this matter and the risk posed to the children by exposure to such conflict.
As a consequence of the findings outlined in these reasons for judgment, the orders I will make are that the children will spend supervised time with the father six times per year.
ISSUES
The issues requiring the Court’s determination are as follows:
(a)Whether the mother, in exercising sole parental responsibility for the children, should be obliged to notify the father of any decisions made and if so, the nature of such an obligation;
(b)The time, if any, the father should spend with the children;
(c)Whether the father should be required to participate in a drug testing regime and if so, the particulars of such a regime;
(d)The father’s engagement with a drug and alcohol counsellor;
(e)Whether the children should be permitted to travel overseas with either or both parents, and/or whether the children should be placed on the Family Law Watchlist;
(f)Any restraints placed on either party, including injunctions for the personal protection of a party and/or the children;
(g)Ancillary parenting orders, including orders relating to communication between the parents and information sharing; and
(h)Whether either or both parents should be responsible for meeting the costs of the ICL in these proceedings.
EVIDENCE
The mother relied on her Outline of Case document filed 23 February 2024 and the following documents:
(a)Initiating Application filed 10 February 2021;
(b)Amended Reply filed 17 January 2024;
(c)Affidavit of Ms Clayton filed 17 January 2024;
(d)Affidavit in Reply of Ms Clayton filed 15 February 2024;
(e)Affidavit of Mr M filed 17 January 2024;
(f)Affidavit of Ms C filed 17 January 2024;
(g)Affidavit of Mr G filed 5 February 2024;
(h)Affidavit of Dr N filed 30 January 2024; and
(i)Financial Statement filed by the mother on 17 January 2024.
The father relied on his Case Outline (for parenting matters only) filed 23 February 2024 and the following documents:
(a)Affidavit of Mr Clayton filed 17 January 2024;
(b)Affidavit of Mr Clayton filed 12 February 2024; and
(c)Affidavit of Ms O filed 17 January 2024.
The ICL relied on their Outline of Case document filed 25 February 2024.
Both parties and the ICL also relied on the following documents:
(a)Single Expert Report of Dr B dated 20 December 2022 (“the Single Expert Report”); and
(b)Updated Single Expert Report of Dr B dated 16 February 2024 (“the Updated Single Expert Report”).
I have read and considered all evidence tendered and marked as exhibits.
Whilst I have read and considered all material relied upon by the parties and the ICL in these proceedings, I do not propose to traverse all of the evidence in these reasons, but rather address the evidence that grounds the reasons for my decision: Whisprun Pty Ltd v Dixon [2003] HCA 48.
BACKGROUND
The mother was born in 1978 and was 45 years of age at the date of hearing.
The father was born in 1978 and was 45 years of age at the date of hearing.
In 2007, the parties married and commenced cohabitation.
In 2011, the parties’ first child X was born. X was diagnosed with autism spectrum disorder around 2 – 3 years of age.
The mother alleges that the father overdosed twice on illicit drugs in 2011.
In 2013, the mother alleges that she observed the father to be smoking something in a pipe. She says that upon confronting the father about his drug use, he chased after her and punched and kicked her.
In late 2013, the father was charged with several offences related to illicit drugs. The father was imprisoned for a period of time in late 2013 before being granted bail.
Following these charges, proceedings were brought against the father by the New South Wales Crime Commission in the Supreme Court of New South Wales. These proceedings were resolved by consent in late 2014.
In 2014, the mother deposes that the father drove frantically, yelled at her and hit her, including on her heavily pregnant stomach, during an argument in the car. The mother says the father pulled over and exited the car before hitting the mother on the head with her handbag. The mother says she ran from the car, but that the father drove after her before grabbing her and throwing her into the passenger side of the car.
The father alleges that the following day, the mother called the paternal grandmother “an inbred mole,” “a slut” and a “lying dog cunt.”
In 2015, the child Y was born.
In mid-2015, the mother alleges that the father slammed her head into the wall, causing scratches on her face and a bleeding nose. The father denies this occurred. The mother attended on her general practitioner and said that the injury was caused by an inadvertent hit by one of the children.[1]
[1] Exhibit F9.
In early 2016, the father was charged with illicit drugs offences and another offence. The father was imprisoned.
In early 2017, the mother received correspondence from the child X’s school raising concerns about the father’s “methods of disciplining and communicating with [X]” which were described as “a lot more forceful than is acceptable in a public primary school”.[2]
[2] Affidavit of Ms Clayton filed 17 January 2024, Annexure D.
In mid-2017, the mother alleges that the father became enraged during an argument and used an object to hit the mother while she was on the floor. The mother says the father only ceased hitting the mother when the child X, who was six years of age at the time, ran to the father and said “No, No, No”.
The mother alleges that the father took the children to City P to spend time with his family in December 2017. The mother says that the father did not invite the mother to attend the trip or allow her to speak to the children while they were away. When the father returned five days later, the mother says that she asked him why he did not let her speak to the children during Christmas and in response, he grabbed her hand and pulled it behind her back and pushed her into the wall. The mother says she sustained injuries.
The mother alleges that during the parties’ relationship, the father told her at times, “I will kill you before I lose my kids.” The mother says the father has also threatened to kill himself and the children and claims they are not her children. The mother deposes that on one occasion, the father told her, “I am going to disappear with the kids and you won’t know if we are dead or alive. I will kill myself and the kids before you take them.” The mother says that he often told her that he will bury her with her dad.
The father alleges that the mother was “prone to aggressive outbursts” during the relationship and post-separation, and that she was verbally and physically abusive towards the father, sometimes in the presence of the children. The father deposes that the mother at times directed her outbursts towards the children by physically pushing them and calling them names such as “you little cunts” and “you little fuckwits.”
In mid-2018, the father was convicted of drugs offences. The mother provided a character reference and gave evidence at the District Court in relation one of the father’s charges. An Intensive Correction Order was made in mid-2018.
The parties initially separated in May 2018 yet remained living together. The mother says the parents attempted reconciliation by attending marriage counselling in late 2019. The father says that the mother has repeatedly communicated a desire to resume the parties’ relationship.
In mid-2018, the father was charged with a criminal offence. It was conceded that X was with him. In late 2018, the father was convicted of the offence and sentenced to a Community Correction Order.
On 3 July 2018, the father commenced proceedings in the Federal Circuit Court (as it was then known) seeking parenting orders.
The mother says that at the time of being served with the father’s application, she told the father she was going to stay with her mother for a few nights and in response, he shoved her against a wall. The mother, who was pregnant at the time, left the former matrimonial home after this incident for a few days. She reported this incident to Police and an Apprehended Domestic Violence Order (“ADVO”) was issued for her protection. The father says that after the mother was served, she became irate and screamed at him. He says that he attended Suburb Q Police Station and told the officer “in case [the mother] makes a report” that she was claiming the father had abused her after being served divorce documents. The father says that when he arrived home, the mother and children were not there. He says the mother called him and said she was going to report him to Police for assault and that she was going to take the children interstate so the father could not contact them. The father says he was arrested for assault when he returned to the former matrimonial home again later that night but was not charged.
On 10 July 2018, interim Orders were made by consent for the children to spend time with both parents prior to the next listing date. The father says the mother returned to the former matrimonial home with the children on about 11 July 2018.
The father discontinued the parenting proceedings on 12 July 2018. The father contends that the mother wrote, without his consent, to his lawyer from his email account instructing them to discontinue the proceedings on this occasion. In cross-examination, the father, upon being taken to one of his previous affidavits, conceded that it was him who instructed his former lawyers to discontinue these proceedings.
The father recommenced proceedings in the Federal Circuit Court (as it was then known) in September 2018, which were discontinued in October 2018. The father says the proceedings were discontinued at the mother’s “direction” as the mother told him the following:
If you don’t discontinue your family law application, I will go to the police and will make up some stories to have you charged with breaching the AVO so you end up in jail [sic].
The father also alleges that the mother wrote to his former lawyers pretending to be the father, without his knowledge or consent, on 26 October 2018 regarding outstanding costs owed by the father.
In late 2018, the mother alleges that the father was using illicit drugs at the former matrimonial home with a friend. The mother says the child X approached the area and the mother took photos of the father while telling X to leave the room, before taking X to another room. The mother says the father would often consume drugs openly in the former matrimonial home when the children were present.
In 2019, the child Z was born.
The mother says that in early 2020, she found a bag of white substance under a tallboy in Y’s bedroom and upon confronting the father, he took the bag from her and said he had “lost that ages ago” and had been looking for it. It is the mother’s evidence that the father was lying and had been going into that bedroom for no reason. The father said in oral evidence that this account is not accurate.
In early 2020, the parties’ divorce order took effect.
The father deposes that in around April 2020, following receipt of correspondence from the father’s lawyers at the time regarding proposed parenting arrangements, the mother screamed at him:
Fuck you … watch what’s going to happen … I will have you thrown back in jail [sic] … I will set you up to breach the terms of your ICO.
The father says that in mid-2020, the mother became verbally abusive towards him in the presence of the children and hit him on the face with an open hand twice.
In mid-2020, the father alleges that during an argument between the parties in the presence of the children, the mother said, “I would be happy if you were dead.”
In mid-2020, Y was complaining of a sore ear. The mother says the father picked up Y and pinned him in the corner of the room to extract something from his ear, yelled at the child, and slapped the child on the face.
In mid-2020, the mother attended the house of Ms R whom she believed to be romantically involved with the father. The mother concedes that she called Ms R a “bottom feeder” and “fucking slut” in the presence of Ms R’s two children while her children remained in the car. The mother concedes that she said to Ms R words to the effect that her daughter “is going to become a slut just like you.” The mother was later arrested and charged with offences, and an ADVO was issued against the mother for the protection of Ms R and her two children.
The father also deposes that in mid-2020, the mother smashed a glass object and caused numerous chips and cracks on the bedside table in her room where Z was sleeping, by smashing these objects with another object. The father says Z woke up and began crying, and the mother continued to scream and swear loudly at the father, resulting in the father taking the children for a drive.
The father deposes that in mid-2020, the mother threw a used nappy at his head which exploded all over him.
In mid-2020, the mother alleges that Y picked up an object belonging to the mother in the loungeroom and the father grabbed it off him. The mother says she heard a slap from another room and when she asked Y whether the father had hit him, he said “yes.”
On 29 July 2020, the mother received correspondence from the father’s lawyers at that time requesting that she vacate the former matrimonial home.
On 31 July 2020, the mother alleges that her lawyer received a telephone call from the father’s lawyers despite the mother not instructing her lawyer to communicate with the father’s lawyer as to his being on record for the mother.[3]
[3] Affidavit of Ms Clayton filed 17 January 2024, Annexure G.
On the same date, Police issued a provisional ADVO for the protection of the mother and the children which included a restriction on the father attending the former matrimonial home. The father therefore vacated the former matrimonial home and commenced residing with the paternal grandmother. It is the mother’s evidence that the parties agreed for the children to spend time with the father every Tuesday and Thursday from 3.30 pm to 6.30 pm, overnight time every Friday, and for the father to attend the children’s sports program every Sunday. The father’s time with the children was to be supervised by the paternal grandmother.
In mid-2020, the mother alleges that the father entered the former matrimonial home after midnight while she was asleep and told her she had to “sign a letter saying I can be here to see the children.” The mother says the father was “extremely agitated” and she felt afraid of what he would do if she did not comply with his request. The mother alleges the father told her to tell the Police that she left the signed document on his car. The mother says the Police subsequently charged the father with a breach of the provisional ADVO. The father denies that he forced the mother to sign the letter.
In mid-2020, the provisional ADVO was formalised into an interim ADVO.
In August 2020, the mother says she received a call from the paternal grandmother asking to see the children. The mother says she facilitated time between the children and paternal grandmother upon being assured by the paternal grandmother that the father would not be present. It is the mother’s case that when she collected the children from the paternal grandmother’s residence, the father approached the mother, entered her car, and said, “I don’t give a fuck about the AVO” and that he wanted to reconcile.
On 10 February 2021, the mother filed an Initiating Application seeking property orders on a final basis.
It is the mother’s evidence that in mid-2021, the father’s time with the children on Sundays ceased due to the cancellation of the sports program during the COVID-19 pandemic. She says the children spent time with the father for about an hour on two occasions during the COVID-19 outbreak and thereafter spend supervised time with the father every Tuesday and Thursday from 2.30 pm to 7 pm, and Friday from 9 am until Saturday 7 pm.
On 28 July 2021, the father filed a Response seeking final property orders and interim parenting orders including for the children to live with him and spend time with the mother four nights a fortnight and on special occasions.
The father filed an Application in a Case on 2 September 2021 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 six nights a fortnight.
On 17 September 2021, the mother filed a Response to Application in a Case in which she sought interim parenting orders. These orders sought by the mother included that the children live with her and spend time with the father, supervised by the paternal grandmother, three to four times a week until the conclusion of his criminal proceedings. On 10 December 2021, the mother filed an Amended Response to an Application in a Case to include provision for the father to spend time with the children, supervised by the paternal grandmother, during the school holidays.
On 15 December 2021, interim Orders were made that the children live with the mother and spend time with the father every Tuesday and Thursday from 3 pm to 7 pm, and every Friday from 3 pm to 7 pm on Saturday during the school term, with such time to be supervised by the paternal grandmother. These Orders also required both parents to undergo random chain of custody hair follicle screening for the detection of drugs of abuse upon notice from the ICL, and restrained the father from being present at changeovers which were to occur between the paternal grandmother and the mother.
The mother alleges that in January 2022, the father and his brother hid behind the front door of the paternal grandmother’s home and yelled out at the children as the mother collected them at changeover.
In January 2022, the mother alleges that the children disclosed to her that the father spent time with Z and Y at a venue without the supervision of the paternal grandmother.
In January 2022, the mother says Y told her that the father took him for a bike ride while X and Z stayed with the paternal grandmother.
On two occasions in February 2022, the mother alleges that Y told her that the father took the children to Ms R’s house without the supervision of the paternal grandmother. The mother deposes Y said, “Daddy told me not [to] tell you”.
It is the mother’s evidence that in February 2022, the paternal grandmother collected Z from her home while the child X remained in the car. The mother says the paternal grandmother told her that Y was still with the father at sports practice.
The mother deposes that in April 2022, Z told the mother’s sister in the presence of the mother, “Daddy says you are a pig”.
On 10 May 2022, Orders were made for the preparation of a Single Expert Report in relation to parenting issues.
In June 2022, the mother says that on two occasions, the father stood at the door of the paternal grandmother’s residence and requested that the mother collect the children from him directly. The mother says that on the second occasion, she insisted that this would be in breach of the interim Orders and the father responded, “Fuck the Orders, you […] ([swear word in a foreign language])” in the presence of the children.
In mid-2022, the father stood trial for several charges and a breach of ADVO. The father was convicted of an assault on the mother in late 2014 and the ADVO breach, and received a good behaviour bond. An ADVO was also made on this date for the mother’s protection for a period of 12 months. The father contends that during judgment in the Local Court, the mother was found to be an unreliable witness.
In mid-2022, the mother was admitted to T Hospital for a period of seven days. It is her evidence that a nurse told her, “a male has called and asked if you have been admitted to the hospital.” The mother says this caused her to message the father, “stop stalking me and having your slags call the hospital.” She says she did not disclose to the father that she was in hospital.
The mother alleges that during the Christmas period in 2022, she attended the paternal grandmother’s home to collect the children and was confronted by the father and members of the paternal family. She says the father’s brother said, “[Ms Clayton], the fucking slut is here” and the father said, “Look at the bitch, she has had liposuction. She has had about ten nose jobs” and called her a “fucking rat.” The mother says this occurred in the presence of the children. The mother says the father also approached her car and stopped her from driving away. She says the father told X that he would pick him up on Boxing Day, despite the Orders directing the children to be in the mother’s care on that date, which caused X distress.
In January 2023, the Single Expert Report of Dr B was released.
In early 2023, it is the mother’s evidence that the father pushed past her to put Z into her car at changeover and forced himself into the car, shoving the mother into the door. The mother says the father yelled, “you elbowed me I have witnesses.” The mother reported this incident to Police.
In early 2023, the mother says that upon her receiving a message from a medical clinic during a telephone call with the children, the father said, “she is fucking 100 guys, she has STI’s.”
In early 2023, in the early hours of the morning, the mother’s motor vehicle was set ablaze. This incident was investigated by Police, and the mother says she was told by Police that the father was a suspect and to not disclose the incident to him. The mother says that in early 2023, Police issued the mother with a panic button due to concerns for her safety.
Following mediation in March 2023, the parties entered into interim consent Orders on 19 April 2023. These Orders progressed the father’s time with the children as indicated in bold below:
2. That until further order, the children shall live with the mother and spend time with the father as agreed between the parties in writing, but failing agreement as follows, commencing from the last day of Term 1, 2023:
2.1 Week 1:
2.1.1 Tuesday from after school or 3PM (on a non-school day) to 7PM.
2.1.2 Thursday from after school or 3PM (on a non-school day) to 7PM.
2.1.3 Friday from after school or 3PM (on a non-school day) to Saturday at 7PM.
2.2 Week 2:
2.2.1 Tuesday from after school or 3PM (on a non-school day) to 7PM.
2.2.2 Thursday from after school or 3PM (on a non-school day) to 7PM.
2.2.3 Friday from after school or 3PM (on a non-school day) to Sunday at 10:00AM.
(emphasis added in bold)
While the requirement for the father’s time to be supervised was removed by these Orders, Order 3 stated that:
3. For the purposes of Order 2 above, and at all other times when the children spend time with the Father pursuant to the orders made in these proceedings, the father shall continue to reside at the paternal grandmother’s residence while the children are in his care and ensure that the children shall sleep and reside at the paternal grandmother’s residence.
These Orders also restrained the father from approaching or entering the mother’s car at changeover and required him to remain at least five metres away from the mother at changeover, which was at a public location. It is the mother’s evidence that she did not feel comfortable agreeing to any modification of time; a discussion of which can be found at paragraphs 62 – 67 of my judgment in Clayton & Clayton (No 2) [2023] FedCFamC2F 1385 (“Clayton & Clayton (No 2) [2023]”).
It is the mother’s evidence that in early 2023 when she called the children at her scheduled time, she heard the father whisper to Y “ask her what she is doing.” The mother says she responded, “I am just getting ready to go out and do something,” to which the father responded in the presence of the children, “…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 3 nose jobs.”
In early 2023, the mother was scheduled for surgery. The mother says that approximately five days before her surgery, a secretary at the surgery called her and said she had received a phone call from the mother’s “psychologist” enquiring about when the surgery was occurring and what kind of surgery it was. The mother says the secretary told her that she considered this to be “very odd,” however the mother responded that her psychologist is “very proactive.” The mother says that on the morning of her surgery, she received a message from the father saying, “I hope everything works out for the better today and you recover well from your operation.” The mother says this made her feel startled and anxious as she did not disclose her surgery to the father or the children.
The mother alleges that during an argument with the father approximately a week later, he told her, “I know everything about you” and then repeated information about her that had not been disclosed to him by herself or by way of subpoena. The mother says that the comments made her feel concerned for her safety and she contacted the High Risk DV Liaison Officer and attended upon the Police station at Suburb S to make a report, where she was advised to change her password on her email account. The mother says that she later discovered that an Android phone had been attached to the list of devices in her email since late 2020, despite the mother never owning an Android phone.
It is the father’s evidence that he and his former partner Ms R separated in mid-2023.
In mid-2023, both parties attended hospital for Z’s surgery. The mother says that as the father was leaving, he told her, “Drive safe [Ms Clayton], you are going to need it” while mimicking a wheelchair movement with both hands.
In mid-2023, the mother was advised by Police that they found 175 screenshots of the mother’s diary and calendar, screenshots of emails between the mother and her legal representatives, and photos of the mother’s fire-damaged car on the father’s phone. An interim ADVO was granted for the protection of the mother and the father was charged with multiple offences and breach of ADVO.
On 28 July 2023, the mother’s legal representatives wrote to the father’s then legal representatives advising that the mother intended to cease time between the children and the father. The father says he did not spend time with the children from 26 July 2023 to 7 November 2023.
In July 2023, the mother says her cousin called her and said that the father was following her. It is the mother’s evidence that her cousin said she saw the father with his new partner and another man and that she began filming them, and that when she left, they followed her to the carpark and she felt scared.
The mother filed an Application in a Proceeding on 3 August 2023 (which was sealed on 14 August 2023). This Application sought injunctive relief restraining the father’s solicitors at that time from acting for the father, as well as interim parenting orders including for the father to spend no time with the children.
On 6 September 2023, the Court heard the mother’s application that the father’s solicitors be restrained from continuing to act on his behalf. An Order was made restraining KK Lawyers by its solicitors and employees from acting for the father. My reasons were provided ex tempore, and the parties were later provided with the settled reasons for judgment on 27 October 2023: Clayton & Clayton [2023] FedCFamC2F 1375 (“Clayton & Clayton [2023]”).
The matter was listed for a further interim hearing on 28 September 2023 in relation to the outstanding interim parenting issues, and judgment was reserved. On 7 November 2023, interim parenting Orders were made as extracted below, and written reasons for judgment were delivered and released to the parties: Clayton & Clayton (No 2) [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.
Orders were also made on this date listing the matter for final hearing in February 2024 with priority, and directions were made to prepare the matter for trial.
It is the father’s evidence that he spent supervised time with the children from November 2023 to 21 January 2024 in accordance with the interim Orders of 7 November 2023. The father says the mother unilaterally ceased time between the father and the children on 21 January 2024 and that he has not spent time with the children since this date.
On 2 February 2024, the parties attended interviews with the Single Expert Dr B for the preparation of an Updated Single Expert Report. This Report, dated 16 February 2024, was filed on 22 February 2024.
The final hearing proceeded on 26, 27, 28 & 29 February 2024.
CREDIBILITY OF THE PARENTS
Both parties make allegations that the other has perpetrated serious family violence, including in the presence of the children.
Generally, the Court is reluctant to make adverse findings in respect to a party’s credit in parenting proceedings: Adamson & Adamson (2014) FLC 93-622. In this matter, however, the evidence in support of such allegations is predominately that of each party. Issues of credit are therefore critical to the ultimate determination of the issues in this matter.
It was said by the plurality in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [62] that:
Witnesses are supposed to answer questions put by counsel responsively: they are supposed to give a full answer, but no more. It is one thing to say that a witness was not asked the right questions. It is another thing to say that a witness did not answer the questions that were asked. And it is an even more serious thing to say that a witness was “reluctant” to answer. The duty of a witness is to tell the truth, the whole truth, and nothing but the truth so far as the questions asked seek it. The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call), but also a positive duty (to proffer all material within the witness’s knowledge for which the question does call).
The father’s evidence fell far short of this. On being uncovered as a result of subpoena records, the father belatedly made concessions that he had falsified evidence to secure a favourable outcome in parenting proceedings, including amending results of drug tests and medical records. I find that he has filed material before this Court in which he included evidence that he had falsified.
The father was charged with a number of historical offences. In mid-2022, he was found guilty of the assault on the mother and entered a plea of guilty to a breach of ADVO. The father sought to use in these proceedings adverse credit findings made against the mother in the Local Court. One of the findings that contributed to the adverse credit finding on the mother involved records from T Hospital which the father fraudulently amended so as to remove references to drug use. The father then provided the falsified material to his counsel for use in the Local Court criminal proceedings where the mother was the alleged victim. The purpose of using this material in the Local Court was to undermine the mother’s credibility and bolster his own credibility.
The father repeatedly lied to this Court. The father also fabricated evidence in relation to the property issues so as to secure a more favourable outcome for himself. This included fabricating trust account receipts and receipts from the sale of his motor vehicle.
A number of concessions made by the father came only while being questioned and when faced with incontrovertible evidence undermining the reliability of his documents. The concessions which came were when the evidence against his position was overwhelming.
He was an untruthful, unreliable, and self-serving witness. His explanations, for example, on the altering of multiple documents presented to the Local Court and this Court by “a work colleague [Mr U]” lacked any detail. It was not credible that the father had no knowledge of the level and detail of deceit that he perpetrated in this Court.
In respect of the mother, I accept that she also at times made admissions as to untruthful evidence. I accept that the mother is to be criticised for lying to the District Court in relation to statements and evidence she gave in support of the father during his sentencing hearing. I find, however, that in making admissions, she was forthcoming and accepted responsibility for having told falsehoods to the District Court.
I found the mother to be truthful in her admissions of her behaviour which, as I will find below, was at times volatile and aggressive. She was candid about her failures to protect the children from her own distress and her own extremely poor view of the father. I find that in making those admissions, the mother was truthful and given that the admissions were made against interest, I have no difficulty in accepting them.
Having observed the parties, considered the material before me, and having regard to the manner in which the parties gave evidence, I am satisfied that where the father’s evidence conflicts with the mother’s, it is appropriate to prefer the evidence of the mother.
THE CHILDREN
The children have been subject to a series of arrangements since the parties’ separation. This has included supervised time, unsupervised time, and periods of extended breaks in their time with the father.
For reasons that will become apparent below, the children have experienced the extreme hostility and volatility in their parents’ marriage and post-separation.
X was 13 years of age at the date of hearing. He has been assessed as having significant autistic spectrum disorder. He is a child who is easily anxious and when observed by Dr B, displayed typical autistic behaviour.
Y was 9 years of age at the date of hearing. Y was assessed by Dr B as being a child who has taken it upon himself to be the “leader” and “spokesperson” for the children.[4]
[4] Single Expert Report of Dr B dated 20 December 2022, page 16.
Z was 5 years of age at the date of hearing. Z was assessed by Dr B as having marked separation anxiety and fears of abandonment from each of her parents.
THE LAW
Section 65D of the Family Law Act 1975 (Cth) (“the Act”) compels the Court to make such parenting orders as it considers proper. Section 60CA of the Act 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. This is confirmed in s 65DAA of the Act.
A child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act. Section 60B specifies that:
(1) The objects of the Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
…
Section 60CG of the Act imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Primary considerations
The primary considerations as set out in s 60CC(2) of the Act are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, the Court is to give greater weight to the need to protect the children from harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2A). Having regard to the serious nature of the allegations in this matter, considerations of protecting the children from harm loom large.
I am conscious of the serious consequences of the orders sought by the mother that there be no time between the children and the father. As stated by the Full Court in Blinko & Blinko [2015] FamCAFC 146 at [30]:
…Whilst s 60CC(2A) demands that greater weight be given to the consideration in s 60CC(2)(b) – something entirely consistent with the approach of the Courts since the commencement of the Act – the particular facts and circumstances of each individual case nevertheless require a careful evaluation and balancing of Considerations, and all the more so when what is at stake is the potential for a child to never know their parent.
Meaningful relationship
A meaningful relationship is not measured simply by the amount of time a child is spending with a parent, but the quality of the relationship between them: Mazorski v Albright (2007) 37 Fam LR 518. This is an important consideration in this case given the length of time it has been since the children have spent time with the father.
The Full Court in McCall & Clark (2009) FLC 93-405 at [118] – [119] adopted what is described as the “prospective approach” with respect to considerations pursuant to s 60CC(2)(a) so that the Court:
… should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
The Full Court continued at [122] that:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The parties reached agreement that the children live with the mother and the mother hold sole parental responsibility. The father seeks orders that the children spend increasing periods of time with him, culminating in alternate weekend overnight time, which would mean that the children would share a meaningful relationship with both parents.
The mother’s proposal is that the children spend no time with the father, which would mean that the children would have no relationship with the father.
Family violence
Family violence is defined in s 4AB(1) of the Act as “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.”
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence. This non-exhaustive list of examples includes assault, stalking, repeated derogatory taunts, intentionally damaging or destroying property, preventing the family member from making or maintaining connections, and unlawfully depriving the family member of their liberty.
A child is exposed to family violence if they see or hear family violence or otherwise experience its effects: s 4AB(3). This may include seeing or hearing an assault of a family member by another family member, comforting or providing assistance to a family member following an assault, being present when police attend an incident involving the assault of a family member, or overhearing threats of death or personal injury by a family member to another family member: s 4AB(4).
A party does not require their evidence as to family violence to be corroborated before it can be accepted by the Court: Keating & Keating (2019) FLC 93-894. As the Full Court stated in Amador & Amador (2009) 43 Fam LR 268:
[79]… To the extent that it is submitted that the mother’s allegations of “horrific domestic violence” could only be accepted if objectively corroborated, we do not find that any such requirement exists. Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition.
…
[81]The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted. Clearly if they do so it is evidence which may assist the court in determining an allegation.
The standard of proof with respect to making such findings is the balance of probabilities: Evidence Act 1995 (Cth) s 140. Findings should be made in relation to family violence if “they are available and necessary to determine what is in the best interests of the child”: Amador & Amador (2009) 43 Fam LR 268 at [88].
Where it is not possible to positively reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable: M v M (1988) 166 CLR 69.
Each aspect that directs towards a finding of unacceptable risk need not be proved on the balance of probabilities. The Court may reach a conclusion of unacceptable risk from the accumulation of factors, none or only some of which are proved to that standard.
The mother asserts that there should be no time between the children and the father as she says there is an unacceptable risk of harm. This assessment of risk requires the consideration of two elements: firstly, 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: Deiter & Deiter [2011] FamCAFC 82 at [61].
The Full Court in Isles & Nelissen (2022) FLC 94-092 (“Isles & Nelissen”) drew a distinction between the fact-finding exercise and the determination of risk. It confirmed that a positive finding of abuse can only be made on the balance of probabilities according to the civil standard of proof. However, the Full Court observed at [85] that:
The assessment of risk is an evidence-based conclusion and is not discretionary … Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.
The assessment of unacceptable risk is thus a predictive exercise, postulated from known facts and present circumstances. It is not required to be proven on the balance of probabilities: Isles & Nelissen. The concept of “unacceptable risk” falls within the broader issue of determining what is in the children’s best interests and to which the resolution of the existence of an “unacceptable risk” is subservient: see M v M (1988) 166 CLR 69; B & B (1993) FLC 92-357.
In matters concerning the welfare of a child, family violence and the effect of exposure to family violence must be considered and given weight: Zuen & Lhao [2020] FamCAFC 84 citing B & K [2001] FamCA 880.
I am thus required to consider whether such unacceptable risk of harm to the children could be ameliorated sufficiently by other orders that can be made, such as orders that the children spend supervised time with the father. I must be mindful that any steps I take to ameliorate the risk are proportionate to the risk identified: A & A (1998) FLC 92-800 at [3.29].
A consideration is any anxiety the mother, as the uncontested resident parent, may suffer from the children spending any time with the father where such anxiety is likely to impact on the mother’s ability to parent: see the Full Court in B & B (1993) FLC 92-357. The Full Court in Keane & Keane (2021) 62 Fam LR 190 stated at [81] that:
Importantly, the Full Court in Marra held that not only is it necessary for the court to determine whether a parent has a genuine concern about the welfare of the child in the care of the other parent but it is also necessary to determine whether the concerned parent’s parenting capacity will be “discernibly impaired”. ‘Discernibly’, or similar expressions that have been used in the relevant authorities to which we have referred, means no more than being an evident or detectable impairment in parenting capacity such that there is an unacceptable risk that the child’s welfare will be adversely impacted.
RISK ASSESSMENT
The risks in this matter have been identified by the parties as:
(a)Family violence, including coercive controlling violence;
(b)Exposure of the children to family violence and the parties’ negative views of one another;
(c)Drug use; and
(d)Alcohol use.
Family violence
The father alleges that at times, the mother’s conduct was aggressive and that she was violent towards himself and the children. His case is that there was no family violence perpetrated by him towards the mother. He does agree that he had “heated arguments regularly” with the mother and that his language was offensive at times. It is the father’s case that the mother has manufactured family violence allegations and threatened to raise false allegations in relation to his violence and drug use in order to achieve her aim of removing him from the children’s lives.
The father chose to give no evidence in relation to the mother’s allegations of post-separation violence, stalking and harassment, which she says would lead the Court to find that the conduct is coercive and controlling of her. The father repeatedly declined a certificate under s 128 of the Evidence Act 1995 (Cth) and following legal advice, determined that he would not give evidence in relation to those matters.
The mother alleges that there has been a pattern of conduct by the father which fits the definition of family violence. Her case is that the father has been physically and verbally abusive of her in front of the children. Subsequent to separation, it is the mother’s case that the father has engaged in conduct which is coercive and designed to cause her fear. The mother contends that the father’s violence is an unacceptable risk to her and the children. The mother agrees that at times the parties argued but denies that she has been physically violent towards the children or the father.
Her Honour Judge Beckhouse in Ramzi & Moussa [2022] FedCFamC2F 1473 said the following in relation to coercive and controlling violence:
[145]Generally, coercive control is understood as a course of conduct aimed at dominating and controlling another person, including a family member.
[146]In Illgen & Yike [2018] FamCA 17 at [123]-[125], Gill J analysed the terms “coerces or controls” in the section 4AB(1) definition of family violence in the following manner:
123. Coerce is defined in the 7th Edition of the Macquarie Dictionary relevantly as:
1. To restrain or constrain by force, law or authority; force or compel, as to do something.
2. To compel by forcible action
124. Control is defined in the 7th Edition of the Macquarie Dictionary relevantly as:
1. To exercise restraint or direction over; dominate; command
125. The phrase ‘coerces or controls’ is expressed disjunctively. However it may be seen that the two concepts are closely related. Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command
…
[148]In order to assess whether the father engaged in coercive and controlling behaviour, it is necessary to view his behaviour towards the mother over the course of the entire relationship (as well as post-separation), and to consider the cultural context in which it arose.
Her Honour also stressed at [149] that any analysis undertaken be directed to whether there is a “pattern of conduct throughout the relationship (and beyond) that [is] aimed at coercing and controlling the mother.” Therefore, while this section uses sub-headings to analyse the evidence relating to specific incidents that the mother alleges constitutes family violence, each sub-heading needs to be considered within the wider context of the mother’s case as to family violence and unacceptable risk.
2014
The mother’s evidence is that she was pregnant with the parties’ second child, Y, while the parties were in a motor vehicle which the father was driving. The mother alleges that the father swung his arm towards her and hit her in the stomach. She says the Police pulled the car over as the father was driving erratically. At that time, the father told the Police that he was lost and was allowed to continue driving. The mother says that when she asked if the father could take the child X to his therapy session, the father hit her. The mother’s evidence is that the father then pulled into an industrial complex and exited the car and grabbed her handbag and hit her in the head with it. The mother says that she got out of the car and ran, and that the father drove towards her, grabbed her by her hair and threw her into the passenger side of the car. The mother says that they were again stopped by Police and the father turned to her and said, “if you tell them what happened, I am going to kill you, make up a story and deny it. If you don’t I swear to God I will kill you.” The mother says that she believed the threat and told the Police that her father was terminally ill and that she was emotional.
I have read the statement the mother made in 2014 and in that statement, the mother gives a different account of what occurred. She does not say the father assaulted her or that she has any fears of the father. I have also had regard to a text message the mother forwarded to the father in which she appeared to agree the independent witness had not seen an assault and that the father had not assaulted her.
In 2022, the father faced trial for several criminal charges which included an assault charge relating to this incident. The father was found guilty of assault. The father’s evidence is that he did not have the funds available to appeal the conviction.
The criminal Court had the advantage of an eyewitness who was not before me. That witness evidence is largely supportive of what the mother now says occurred on that day. The Local Court accepted that despite being challenged by the father’s counsel, that witness was independent and reliable.
In regard to this incident, I prefer the evidence of the mother to the father, and I find that the father assaulted the mother while X was in the car.
Mid-2015
In mid-2015, the mother alleges the father slammed her head into the wall, causing scratches on her face and a bleeding nose. The father denies this occurred. As already noted above, the mother attended on her general practitioner and the notes suggest the mother told the doctor that the injury was caused by an inadvertent hit by one of the children.[5]
[5] Exhibit F9.
The mother said in oral evidence that she had lied to her doctor and remained steadfast on her evidence that it was the father who caused the injury. The mother had previously said to the Local Court that she had lied to her doctor and that it was the father who caused the injury. The Local Court did not accept her evidence.
I have carefully considered the evidence of both parties and the reports in the general practitioner’s notes. I do not find that this incident occurred as described by the mother.
August 2017
The mother’s evidence is that in August 2017, the parties had an argument and the father became visibly enraged. She says his face became red and he grabbed an object and hit her with it several times. The mother says that X, who was six years old at the time, was present and intervened.
The father denies that this incident occurred.
I find that the evidence of the mother is to be preferred on this occasion, and I find that the father assaulted the mother by hitting her with an object. I find that this was in the presence of X.
December 2017
The mother’s evidence is that the father took the children to City P to visit his family in December 2017 and did not invite her to attend with them or allow her to speak to the children during this period. When they arrived home, the mother says that on asking the father why he did not let her speak to the children during Christmas, he grabbed her hand, pulled it behind her back and pushed her into the wall. The mother says that she sustained a scratch to her hand and elbow.
The father’s evidence is that he did not allow the mother to join him and the children in City P because she did not agree to stop using drugs. It is the father’s affidavit evidence that he was not using drugs at the time and had ceased doing so in late 2013.
The father’s evidence is that the mother called him on Christmas Day in the afternoon and screamed incoherently and said, “I am praying for your family to die.” The father’s evidence is that the mother continued over the following days to threaten him, saying she would contact the Police and report the children as kidnapped and that she would smash up the house.
The father denies assaulting the mother and says that in December 2017 when he and the children were back in Sydney, his mother attended at the home and the mother “went into a fit of rage” at the paternal grandmother, causing the children X and Y to cry. The father’s evidence is that the mother approached the paternal grandmother with a closed fist.
The paternal grandmother, who was an apparent witness to the mother’s behaviour, was not called.
Having considered the evidence of both parties, I accept the evidence of the mother and find that the father assaulted her in the manner she describes in her affidavit.
I find that the father removed the children from the mother’s care on this occasion without her consent and that he refused to allow her to speak to the children. I do not accept the father’s evidence that the mother was using drugs at this time.
2018
Early 2018
The father’s evidence is that in March 2018, the mother told him that she did not believe that their marriage could be saved. His evidence is that on this day, the mother threw his clothes out of the closet and broke its internal shelves.
The father’s evidence is that in 2018, the mother raised a kitchen knife towards him during an argument in a threatening manner.
I have carefully considered the evidence from both parties on this issue. I do not make a finding that the mother perpetrated family violence on the father.
In early 2018, the father relied on the mother as a witness during the sentencing of his criminal matters before the District Court of NSW. In that evidence, which the mother now disavows, she tells the Court that the father was the primary carer of the children and that the children, particularly X, missed him and would be adversely affected if the father received a custodial sentence.
The mother was cross-examined on the support she gave the father in 2018. The mother, in evidence before me and under a s 128 certificate, said that her evidence before the District Court was a lie and that the father had not ever been the primary carer of the children. Before me, the mother’s evidence was that both parents had equally cared for the children and that she was told to exaggerate everything, including the father’s relationship and involvement with the children. She said that she lied because she did not want the father to be imprisoned and she was told at the direction of the father’s lawyers at that time to exaggerate.
July 2018: first set of parenting proceedings
The father was convicted of the 2016 criminal drug charges and in mid-2018, was subjected to an Intensive Corrections Order.
In mid-2018, the father was charged with an offence. X was with him at the time.
On 3 July 2018, the father instructed his lawyers to commence parenting proceedings in the Federal Circuit Court (as it was then known). On 3 July 2018, the father filed an Initiating Application seeking final orders for the children to live with him and spend time with the mother as recommended by a family consultant.
On 7 July 2018, the father’s evidence is that the mother was served with his Application and that he left the home after the documents were served. The mother says that at the time of service, she told the father she was going to stay with her mother for a few nights and in response, he shoved her against a wall. The father’s evidence is that the mother, after being served, became irate and screamed at him and threatened to have him arrested. The father’s evidence is that his brother picked him up and drove him to Suburb Q Police Station.
The father’s evidence is that he reported to the Police that his wife was “out of control claiming that I have abused her and assaulted her. I have not verbally or physically abused or assaulted her. I am telling you this in case she makes a report.” The father says that he was advised not to return to the house without someone with him and to not contact the mother. The father did return to the house with his brother and did contact the mother. The mother and children were not at home.
The father failed to call his brother, who apparently was with the father in July 2018, to give evidence at this hearing.
The mother made a complaint to Police which led to an ADVO being applied for her protection. In mid-2018, the father was arrested for assault and then released without charge. The basis of the arrest was complaints made by the mother.
On 9 July 2018, the father’s evidence is that the mother sent him a series of text messages.
On around 11 July 2018, the father’s evidence is that in discussions with the mother by telephone, she threatened that she would make a false complaint to Police claiming the father breached his ADVO so as to ensure the father was imprisoned if he did not withdraw his family law application.
The mother concedes that in July 2018, she said to the father that she would show the children Court documents.
The mother also sent to the father a series of aggressive and threatening text messages in June 2018. In those messages, she threatens to put the father in gaol and calls him a “cunt” repeatedly. In her oral evidence, the mother said that at the time, she could acknowledge that in the text messages, she was the aggressor in the exchange. The mother said, and I accept, that she was living in a heated, toxic environment where the father was constantly threatening her by taking her children away. The mother’s evidence when cross-examined included the following:[6]
[6] Transcript of proceedings dated 27 February 2024, page 95.
ICL COUNSEL: … 11 June, there’s a missed call, and then a message from you:
I will make sure they [sic] you’ll never have the kids and I’ll put you in jail [sic] forever, you dog cunt. This is a woman’s world, darling. The police will always believe me. You should become gay. You might get more rights. I always have had control, you weak cunt. You are nothing. Enjoy jail [sic].
Your words?---
MOTHER: Yes.
ICL COUNSEL: These are not the words of someone who fears reprisal, madam?---
MOTHER: I’m sorry to say that, but people react differently when they’re trying to defend themselves.
ICL COUNSEL: This is not defending themselves?---
MOTHER: Yes, it is.
ICL COUNSEL: This is - - -?
MOTHER: I’m sorry, I could - - -
ICL COUNSEL: This is - - -?
MOTHER: This is fight mode … This is me reacting to his abuse.
(original emphasis)
Even accepting that this is the case, I find that the messages sent by the mother are problematic. They are aggressive and threatening, and the mother’s language is highly inflammatory. The messages threaten to make allegations which would put the father in gaol. They contain highly derogatory language towards the father. They are messages which the father says are threatening and demeaning of him.
On 10 July 2018, the parties entered interim consent Orders for the children to spend time on a repeated basis of two nights with each parent until the next listing date. The father says that around the day following those Orders being made, the mother returned to the former matrimonial home.
In mid-2018, the father was served with a provisional ADVO for the protection of the mother. That order was made final for a period of two years. The father’s evidence is that the mother brought the ADVO because he refused to withdraw the family law application. The father’s evidence is that he did not contest the ADVO because he was concerned that he would return to gaol.
On 12 July 2018, a Notice of Discontinuance was filed by the father’s solicitor. The father’s evidence is that the mother sent an email using the father’s email account to the father’s solicitor instructing them to discontinue the proceedings and that she signed the email using the father’s name. The mother’s evidence is that the father instructed his lawyers to discontinue the proceedings. In cross-examination, the father conceded that it was him who instructed his lawyers to discontinue the proceedings.
On 26 October 2018, the father alleges that the mother again wrote to his former lawyers using his name regarding outstanding costs. The mother says that she did so on his instructions. I accept the mother’s evidence.
The father’s evidence on this issue is an example of the incorrect evidence that the father has been willing to give in order to discredit the mother. He was prepared to falsely accuse the mother of serious wrongdoing in order to undermine her credibility and to present her as manipulative and coercive.
1. NSW Police records
The father relied on documents produced by NSW Police to support his contention that the mother had brought the complaint resulting in the ADVO against him as a means of exerting pressure on him to withdraw the family law proceedings.
A Police report dated July 2018 was tendered, and the mother was extensively cross-examined in relation to this and in relation to her conduct.
It was conceded by the mother that July 2018 was the first time she had complained that the father had been physically violent towards her. The mother was cross-examined in relation to a series of Police entries as to inconsistencies in her reporting and in relation to her using an ADVO as a tool to punish the father and remove the father from the children’s lives.
The Police records show that the mother was served with the father’s application that the children should live with him, and that she was not impressed by the document. The report indicates that the mother told the father she was going to make sure she had full custody of the children. The report says that the father moved toward the mother, pushed her against the nearby wall, and while standing over the top of her said, “over my dead body will you have the kids”.[7]
[7] Exhibit F7, page 2.
The Police records confirm that it was the father who attended Suburb Q Police Station and that he reported he was fearful that the mother was going to falsely report him for assaulting her and that she was going to take the children. The record indicates that the father appeared to be very agitated and highly strung.
When the mother was contacted by the Police by telephone, the Police records indicate that she said the father had raised his hand as if to hit her but did not do so. The mother refused to attend Suburb Q Police Station, saying that she was already dealing with Suburb V Police Station.
The Police records indicate that the mother was again contacted and said she was staying in a hotel room. She is recorded speaking to Police briefly as the Police attempted to identify what had occurred. The records indicate that the mother had “difficult[y] in maintaining a consistent series of events, however once calmed, was able to bring together a coherent story”.[8]
[8] Exhibit F7, page 3.
And further said:[38]
Well, the concerns are that they’re in entrenched patterns and very dysfunctional patterns of conflict. In fact, the criminal charges relate to, you know, sort of, matters of intimidation, quite serious allegations. A major concern would be increase[d] escalation of hostility between the parties, mental health impacts on both mother and father of finding themselves in this apparently irreconcilable position, the – and the other major concern is the impact on the children. Not many parents and carers involved in a conflict of this nature are capable in the middle of all of this to – are able to reassure children that (a) they’re safe (b) that both parents are agreeing to attempt coparenting and cooperative behaviour. There’s not much evidence that I found of adaptive, cooperative behaviour between the parties. The main risk in that sort of situation is that things may even intensify further, hence the mother’s point of view that she … gave evidence from her perspective about the concerns that she has, she was distressed discussing those in my meeting with her, and she expressed the view that she feared that the father would kill her. She gave no evidence about that, but it was in a moment of distress about what she stated she had been exposed to, and we have a situation where they have not been able to have any, you know, realistic hope at the moment of mediation or, you know, resolution for the concerns and it has escalated to the point of significant, you know, criminal charges, which need to be, obviously, examined, but I think there are multiple risks in this situation.
[38] Transcript of proceedings dated 29 February 2024, pages 343-344.
As already noted, Dr B’s evidence was that long-term drug use could impact on cognitive functioning and behaviour management. In the event that the Court found the mother’s evidence in relation to the father monitoring and using her email to his advantage was truthful, Dr B said the following in response to a question from me:[39]
[39] Transcript of proceedings dated 29 February 2024, pages 364-365.
HER HONOUR: … if I were to make a finding that the father then, as recently as last year, was monitoring the mother’s emails … the allegation is that he was also using those emails, I think I will be asked to make a finding that he was using them to his advantage, that type of behaviour when tied in with the drug use … does that cause any particular difficulties in terms of ongoing risks of patterns of behaviour?---
[DR B]: Yes. Possibly. If that behaviour and that compulsive sort of behaviour and desire to monitor absolutely every single email or telephone message or whatever suggests that someone is ultimately overfocused on that is very driven to do that, so it has got that compulsive quality to it. They don’t suddenly just do it for a bit and then stop. They tend to keep going. It’s a – with that pattern of – you know, monitoring someone. They frequently have associated with that some paranoid ideas. “I had better” – you know, ideas such as needing to monitor someone’s behaviour, is worried that the person might be having, you know, relationships externally or hiding things from them, and that’s very much influenced by substance abuse if that’s a current issue, so particularly [drug addicts] tend to have a lot of paranoid, confused thinking.
HER HONOUR: And if that is the case, if there is paranoid and confused thinking, does that heighten the risks to the mother of her personal safety, and then going to Ms Fisken, how do I then accommodation [sic] the children – it seems what you’re saying is the children have a need to – and have a positive relationship with the father. So that’s the stress in this matter, isn’t it?---
[DR B]: That’s – indeed, yes, I think that’s the – the dilemma. And, certainly, if someone does have any features – even if it’s transient – of that sort of paranoid need to monitor and watch someone, interfere with their, you know, personal lives or appointments or whatever it’s about, even interfere with legal communication, it’s very suggestive that someone is at that time is quite preoccupied, slightly paranoid, and it increases the risk in this case to the mother, I would suggest, who’s very anxious about that. For the children, again, it for me raises the issue of supervision and, no, I would not support contact between a parent, hypothetically, who was involved and that was showing signs of mental disorder as a result of excessive drug use, which is certainly possible.
HER HONOUR: And that’s possibly a nexus that I can’t – I think I don’t know that I can draw, given the lack of evidence of ongoing - - -?
[DR B]: ---No.
HER HONOUR: - - - the actual usage. I know there is a usage, but I don’t know what the actual usage is - - -?
[DR B]: ---No.
HER HONOUR: - - - because of the deception that the father has effected on everyone?
[DR B]: ---Yes, yes.
Dr B’s evidence was that the mother has an underlying fear of being harmed and is clearly anxious about the father and his impact on her and the children’s personal safety. Dr B accepted that the father’s conduct of having access to the mother’s personal communications and passing that communication to others was undermining of the mother and that “her high level of anxiety and distress even discussing this is quite significant, and you can’t thoroughly shield children from that sort of emotional response”.[40]
[40] Transcript of proceedings dated 29 February 2024, page 354.
Dr B acknowledged that the mother said in her assessment in 2024 that she was “internally calmer,” and that while the mother had been assisted by her psychologist, she remained agitated when talking about her concerns with the father.[41] Dr B said the mother remained preoccupied with the concerns she had about the father.
[41] Transcript of proceedings dated 29 February 2024, page 360.
In relation to the assessment not only as to risk but as to the parties’ capacity to change their conduct, Dr B said the following in response to a question from me:[42]
HER HONOUR: Would I need to make an assessment, do you think, [Dr B], that behaviour will change? Because when I look at your answer in respect of these matters, there needs to be, it seems to me, a capacity to change from both parties. If I were to find that there is no capacity to change and, therefore, the current situation would continue to be as it is and there would be escalations and de-escalations from time to time, what would be the impact on each of the parent’s capacity to manage any orders that I make?---
[DR B]: Yes. Thank you, your Honour. I think that that’s really at – one of the dilemmas that is raised by this situation. I am of the view that there is currently, I think, a limited degree of change that is currently, at least on my more recent assessment, possible for the parties and, certainly, I see, if anything, increasing conflict and hardening of positions and mutually destructive, sort of, attitudes, if you like, and issues that do need to be, you know, resolved in the court; however, in the middle of all of this the children have, you know, needs for some safe contact and protection from exposure … if this conflict goes on, it would appear that this is one of those situations where the parents can have no contact, even handovers might become problematic. There’s no guarantee that conflict can be avoided between them. There are issues of inappropriate – that we have no – I have no evidence of this currently, but inappropriate attitudes and things being communicated to the children. We would always hope that – you know, that conflicted parents do not make negative comments about the other two [sic] children, but that’s certainly possible, and so. I think what it raises for me is the very complex enterprise of having adequate supervision and monitoring of quite restricted contact and high level of supervision. The capacity of the parents to change at the moment, from a clinical perspective, I’m not particularly optimistic about that. I think they’ve got a lot of unresolved anger and hostility and psychological therapy to change that is not a short-term endeavour. It’s actually a longer-term – a longer-term issue. If people agree and are committed to attempting to change, I’m not sure at the moment that either party would be in that position.
[42] Transcript of proceedings dated 29 February 2024, page 345.
Dr B said that attachment-related anxiety in children can have lifelong consequences including affecting their ability to have trusting relationships and to understand how relationships work. She opined that this could have a:[43]
Widespread impact on a whole range of social encounters and relationships at a psychological and emotional level, but this sort of anxiety can lead to difficulties in understanding emotions in the self and in other people and dealing with emotions, and particularly influenced by what they may – children may have experienced and witnessed in their parents.
[43] Transcript of proceedings dated 29 February 2024, page 347.
Dr B also gave evidence of the holistic network of agencies that would need to be aware of the risks in this matter in order to keep the children safe. That included the children’s school, child protection authorities, and treaters working with the children. It was unclear how such a network of protection would be implemented by this Court in relation to this family and Dr B opined that this may have to be engaged in a different jurisdiction. It was entirely unclear how this would occur in circumstances where I am charged with determining the final parenting arrangements for these children.
Dr B gave evidence of the impact on the children if there were orders for no time between the father and the children. If those orders were made it would be important for the children, and in particular X, to receive psychological support with a clinician with experience in family breakdown, attachment issues and the special needs of X with his neurodevelopmental issues. The aim of this type of service would be to provide an external place where firstly, the children could discuss their feelings and secondly, reduce the risk of long-term harm. It was also Dr B’s opinion that if there were orders for no contact, then some indirect contact would need to be considered to “try to avoid that really profound grief that children can have when they’re suddenly taken away, if you like, from an attachment figure”.[44]
[44] Transcript of proceedings dated 29 February 2024, page 354.
At the conclusion of her oral evidence, Dr B no longer supported an order for equal shared parental responsibility and said that if the Court made findings that the father was coercive and controlling, there should be no obligation on the mother to consult with the father prior to making decisions.
Dr B also gave cautious endorsement to an order for no time or at least indefinite supervised contact at this stage until such time as the father “got his house in order”.[45]
[45] Transcript of proceedings dated 29 February 2024, page 355.
I find that appropriately, Dr B did not delve into the series of factual findings that I must make in this matter when determining the competing allegations of risk.
ADDITIONAL CONSIDERATIONS
The children’s views
In the most recent supervised contact reports in November 2023 – January 2024, the contact between the children and the father is described as positive, with the children clearly enjoying their time with the father. The reports do not indicate any concern in relation to the father’s behaviour.
The Single Expert interviewed all three children and observed the children with each of the parents. The children were observed to have a close relationship with both parents.
X and Z did not express any explicit views to the Single Expert. Y said that he wanted contact with both parents yet was unable to elaborate on what changes he would want to the arrangements.
I accept this evidence.
I have considered the children’s views and in particular, their positive views of the father. I have weighed those views against the other factors required under section 60CC of the Act.
The extent to which each parent has taken the opportunity to participate in making decisions about major long-term issues or spend time or communicate with the children
The father’s evidence is that until 2018, he was the main carer of the children. The father’s evidence is that he reduced his working commitments to care for X when X was diagnosed with autism spectrum disorder.
The father’s evidence is that the mother was rarely involved in the children’s routine because of her work commitments. The father relies on the evidence that the mother gave both orally and by way of affidavit at his sentencing hearing to support his contentions.
The father’s evidence is that from 2018 to 2020, the parties continued to co-parent the children as they had been doing since separation, and that this continued after the parties agreed to a Parenting Plan in November 2019. The father says in his affidavit that he resumed primary responsibility for the children during this period.
The father’s evidence is that he home schooled Y and X during the COVID-19 lockdown for almost three months. Prior to this, the father’s evidence is that he was involved as a school helper for X. I find that while the father was not working during this period, it is likely that his parenting was negatively impacted by his drug taking and drug dealing. It is this period that the school and Mr M raise concerns about the father’s dysregulated conduct.
Following separation, as outlined at the commencement of this judgment, there have been several changes to the periods that the father spends with the children.
The mother’s evidence is that during the relationship, the care of the children was shared. The mother was extensively cross-examined in relation to the evidence she gave in 2018 in support of the father in the District Court. The mother said that she had lied to the District Court when she said that the father was the primary carer of the children. She said that the parents’ roles were equal, and that she had been told by the father’s solicitors to exaggerate so that the father would not go to gaol.
Since separation, there is little dispute that the children have predominantly resided with the mother and spent time with the father. It is also agreed that the mother suspended the father’s time in January 2024 and at the time of the hearing, the father was not spending time with the children.
The likely effect of changes in the children’s circumstances, including the likely effect on the children of separation from a parent
In the Single Expert Report, Dr B opined that X enjoyed his time with both of his parents and that he would benefit from arrangements which are clear and do not change.
At the time of December 2022, the children’s time with the father was occurring on a supervised basis. It was the view of Dr B at page 20 of the Single Expert Report that the children would be negatively impacted by changes to their “current arrangements” at that time which would reduce the amount of contact that they had with each parent.
As already noted above, at page 10 of the Updated Single Expert Report of February 2024, Dr B opined that there was an:
…ongoing concern about the emotional and psychological impact on the children of the deeply entrenched impasse between the parents and the recent cessation of contact with the father is likely to contribute to their overall risk in this situation.
The mother’s application is for the children to spend no time with the father. The father and ICL support the father spending time with the children on the condition that the father undergo further drug and alcohol testing to ensure the father is sober.
X was identified in observation with the Single Expert as a child who needs assistance with his emotional regulation. He was observed to become easily distressed and agitated, and that he required “specific techniques to help him settle and self-soothe”.[46] The Single Expert opined that the mother is a person who is educated as to the methods that assist X to regulate his behaviour.
[46] Single Expert Report of Dr B dated 20 December 2022, page 15.
Z was identified by Dr B as a child who exhibited clear separation anxiety and was observed to be very close to her mother and demanding of attention. In relation to the father, Z was described as being “loudly demonstrative of her emotional needs for contact with her father and she enjoys contact with both parents”.[47] Of significant concern in relation to Z was Dr B’s observation at page 15 of the Single Expert Report that:
She is not of a developmental age where she is able to expand on her anxieties although if these persist, and she continues to exhibit features of Separation Anxiety Disorder, she may benefit from further assessment regarding her degree of anxiety which can be best understood as a response to the significant exposure she has received to the tension and conflict between her parents and her mother’s distress.
[47] Single Expert Report of Dr B dated 20 December 2022, page 15.
As discussed above, Dr B was clear that in the event that orders were made for no time between the father and the children, there would be a significant loss to the children. I accept Dr B’s assessment of this. I have had to, however, have regard to the risk that the father poses to the children.
Family violence
I have considered throughout this judgment the unacceptable risk that the father poses to the mother and the children above.
The capacity of each parent to provide for the children’s needs, including emotional and intellectual needs
I am satisfied that the mother has the capacity to meet the emotional and intellectual needs of the children.
As discussed above, the mother’s conduct at times during the relationship and post-separation was not supportive of the children’s emotional and intellectual needs. The mother’s conduct towards the father’s partner was also dysregulated and had a negative impact on the children.
The mother is the undisputed resident parent of these children and the orders I make must support her parenting. I find the greatest risk to the mother’s capacity to meet the children’s emotional and intellectual needs is the father and his conduct.
I accept the mother’s evidence that she will obtain professional assistance to assist the children to understand why they do not spend more time with the father. I am satisfied that the mother has engaged in assistance for herself and that the assistance she has received has provided her with insight into the negative impact of her own dysregulated conduct on the children.
The father has failed to demonstrate that he has the capacity to meet the emotional and intellectual needs of the children. He has acted in a dishonest and reckless way. He has continued to expose the children to the parental dispute. His conduct at changeover is particularly troubling given the impact on the children’s distress and the findings of Dr B that at the very least, the youngest child Z suffers from severe separation anxiety. That the father failed to regulate himself during handover to assist the transition to the mother speaks to his disregard for the impact that his behaviour has on the mother and the children.
The father’s lack of insight as the impact of his drug use and violence on the children also leads to a finding that he does not have the capacity to prioritise the children’s emotional needs over his own.
DISCUSSION AND CONCLUSION
Time
I accept that there will be an impact on the children if an order for no time is made. If such an order is made, it is likely to be very disappointing and distressing to the children.
I accept that there will be a loss to the children if they do not have ongoing contact with their father. I accept that each of the children have a good relationship with the father and have positive views of their time with the father. The children are unable to assess risk to themselves and to their siblings. That is my role and unfortunately, I assess that the father poses an unacceptable risk to the children as a result of family violence post separation and as a consequence of his drug use.
The father’s counsel argued that these proceedings are not to be punishment for poor conduct by the parents. I agree. However, that does not mean that I ignore the risks that I have identified throughout this judgment. I am obliged, however, to consider whether those risks can be ameliorated.
The father and ICL argue that the risk to the children of the father’s drug use can be ameliorated if the father undertakes a series of drug tests and undergoes therapeutic intervention.
These proceedings have been before the Court since 2021. The father’s involvement in drug dealing and drug use significantly predates this. The father has been found guilty of drug offences and has had assets seized. None of that has led to the father making changes to his lifestyle. He has chosen instead to lie and fabricate evidence to mislead this Court.
I cannot place any weight on the father’s assurances that he is now drug-free. While he says he has commenced seeing a drug and alcohol counsellor, that person was not before me.
The Full Court in Lainhart & Ellinson [2023] FedCFamC1A 200 at [29] held:
Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act. Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences.
In this matter, I am not satisfied that the father has demonstrated any capacity to undertake and implement therapeutic intervention in relation to his drug use. I find that the proposal of the ICL and the father is aspirational in its prediction of the father’s recovery from drug use and association.
Throughout this hearing, the father failed to show any insight into the impact that his longstanding association with and use of drugs has had on his family. This included directly exposing X to his drug use. The father demonstrated no insight as to possible risks that he exposed the children to in dealing drugs from the former matrimonial home. When directly asked about his drug use and the impact it had on his family, he was clear that, in his mind, the only person disadvantaged was himself. I had the impression that he meant that he was disadvantaged because he had been caught in perpetrating falsehoods. This is in circumstances where the father was strident in his denials that his drug use had impacted on his decision-making and his parenting capacity.
I do not find that it is appropriate that I make orders for the father to undergo drug testing or counselling given the findings made in relation to unacceptable risk. That is for the father to undertake if he forms the view that he has a problematic use of drugs and alcohol and/or he accepts my findings on family violence.
The father’s family have supported and supervised the father’s time during periods where the father admitted that he had been using drugs. No member of the family gave evidence, but the evidence before the Court of the paternal family’s conduct (for example at changeover) shows that they were willing to align with the father in denigrating the mother.
The orders sought by the ICL and father would require the mother to be a “gatekeeper” to the father’s conduct and drug test results and require her to be part of the assessment of risk. I accept that an unknown third party could examine the test results and advise as to their meaning. However, that still leaves it to the mother to accept or reject the explanation and to make a decision as to whether the children are safe with the father.
I have had regard to the history of this matter and to the mother’s conduct. I accept that she has acted protectively of the children. I also accept that she is highly suspicious of the father. I do not find that the mother has the capacity to properly undertake the “gatekeeper” role and that to ask her to do so would undermine her capacity to parent the children.
There remains the risk that if orders are made which are conditional on the father remaining drug-free and undertaking counselling, and if he failed to comply or failed the testing as he has repeatedly demonstrated throughout these proceedings, the children’s time with the father would either be suspended or return to supervised time. This is a significant risk in circumstances where I accept that the child X is vulnerable as a result of his diagnosis of autism spectrum disorder and requires arrangements to be clear and stable. I also accept that Z, who is exhibiting features of severe separation anxiety, is at significant risk if there continues to be a disrupted relationship with the father. I accept the evidence of Dr B that such a result is likely to be traumatising and confusing for the children. It will also necessarily leave it to the mother to explain in a child-focused way the reason for the suspension and change. I do not accept that the mother would be able to do this in circumstances where she would also be managing ongoing engagement with the father.
A further risk to the children has arisen in this matter as a consequence of the father’s conduct and perpetration of family violence post-separation. Of course, that behaviour is against the backdrop of a toxic and hostile relationship which, as Dr B found and I accept, had a significant negative impact on the children.
The father failed to engage with the evidence of his conduct post-separation. I have, however, had the advantage of considering the father’s conduct and demeanour when giving evidence over an extended period. The father holds an extremely poor view of the mother and has acted on that poor view by accessing and using her personal correspondence in the ways highlighted earlier.
It is troubling that the father has continued to deny that he has been physically violent towards the mother at any time.
I do not accept his denials as outlined above. The father has continued to deny he was violent, and his lack of insight and acknowledgement of responsibility for his poor conduct during the relationship contrasts to the mother who did acknowledge that at times, she behaved poorly during the relationship. Each of these findings leads me to conclude that it is unlikely that the father will change his behaviour.
The father’s conduct post-separation and his lack of acknowledgement of such conduct leads me to conclude that this is an ongoing unacceptable risk. It was suggested that this risk could be ameliorated if the parties did not come into contact with one another. That ignores the reality that the father’s conduct towards the mother has occurred in situations which are separate from their interactions about the children.
I am not satisfied that an order for supervised time by anything other than a professional supervisor will be able to mitigate the risks that have been identified. I do not find that it would be appropriate that the father’s family be required to supervise. They were not called on behalf of the father and having regard to conduct during changeovers supervised by paternal family members, I am not satisfied that this would be protective of the children. I am not satisfied that they would be able to identify that the father is affected by drugs or alcohol. I have accepted the mother’s evidence in relation to the conduct of the father’s family at changeover and at other times, and I am satisfied that they would not protect the children from the father’s denigration, abuse and undermining of the mother. As a consequence, the only means of protecting the children at changeover is for that to occur with the assistance of a professional supervisor.
The father’s conduct has the ability to undermine the mother’s capacity to respond to the children’s needs. I accept the evidence from Dr B about the impact that the father’s conduct has had on the mother and that despite significant assistance, the mother remains negatively affected by the father’s conduct.
I have considered the mother’s application that there be no time spent between the children and the father. I take into consideration that this would protect the children from the unacceptable risks identified in the father’s behaviour. It would also protect the mother’s parenting capacity. However, the risk that would arise in relation to such an order is that the children would be exposed to the loss of the father and the issues that then arise.
Although indefinite supervision is undesirable, I have considered that orders which would avoid permanent supervision are inadequate to address the risks in this matter: Bant & Clayton (2019) FLC 93-924 at [53].
If I do not make orders for ongoing supervised time, I find that the only option which mitigates the risks raised by the father’s conduct is an order for no time. I have accepted the evidence of Dr B that this would lead to a loss for the children. I find that this is not in the children’s best interests.
I am obliged to consider the risks against the inevitable loss for the children of spending more frequent time with the father. I am satisfied that seeing the father while being professionally supervised will be of benefit to the children and will adequately mitigate the risks that the father poses to the children.
I find that this is an exceptional case in which an order for ongoing supervision is necessary to protect the children from the risks posed by the father.
I therefore find that the order which will mitigate the risks identified in this judgment is an order for ongoing professionally supervised time.
The frequency of the father’s time then becomes a consideration. The father and ICL argue for frequent periods of time, accepting that for both, this led to unsupervised time. I find that this will be disruptive to the mother’s parenting and to the children. I find that there is a balance that needs to be adopted to allow the children to continue to see the father but without being exposed to changes in time and disruption.
I find that it is appropriate for the children to spend one day every second month with the father for a period up to four hours, supervised by a professional service.
That will promote for the children an understanding that the father continues to be interested in their lives, that he is a presence in their lives and that he has not abandoned them. It also ensures that the time between the father and the children is not subject to disruptions caused by the father’s drug use. The time allowed will also promote and protect the mother’s capacity to parent the children.
Parental responsibility
As the Court is being asked to make orders as to parenting, it must be determined whether the presumption in s 61DA(1) of the Act, namely that it is in the best interests of the children that the parents have equal shared parental responsibility, is rebutted pursuant to s 61DA(2) as there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence. Where the presumption as to equal shared parental responsibility applies, it may further be rebutted by evidence that equal shared parental responsibility is not in the best interests of the children: s 61DA(4).
The parties have agreed to an order that the mother have sole parental responsibility for the children. Having regard to the findings of family violence made in this matter, the findings I have made in relation to drug use, and the parties’ lack of capacity to communicate, I am satisfied that the presumption as to equal shared parental responsibility is rebutted.
I find that it is not in the children’s best interests for the mother to have to notify or communicate with the father or seek his input into decisions relating to the children. I find that such an order would be used by the father to intimidate the mother and to interfere with her parenting of the children.
I find that the relationship between these parties is so toxic and dysfunctional that it would be difficult for them to consult and make a genuine effort to reach agreement about major long-term issues: Marvel & Marvel(No 2) (2010) 43 Fam LR 348.
Communication between the parents
The father and ICL include in their minutes of proposed orders, orders which prescribe how the parties should communicate with one another. I am not including any order for communication between the parties.
Given the findings of unacceptable risk in this matter, I am satisfied that it would not be in the children’s best interests to have a channel of communication between the parents.
I do consider that if there is an issue that the mother is of the view should be communicated to the father, she will do so appropriately.
Overseas travel
Both the mother and father seek orders in relation to overseas travel.
Given the orders made in this matter for the mother to hold sole parental responsibility for the children and for the children to have very limited time with the father, I find that the orders sought by the mother are appropriate.
Personal protection orders
Section 68B of the Act provides that:
(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
Pursuant to section 68B(2) of the Act, I have to consider whether it is “just or convenient” to grant the injunction.
I am satisfied that this matter raises issues which are of significant ongoing risk to the safety of the mother and the children.
The father has repeatedly flouted Court orders and has sought to undermine Court orders. I am satisfied that the additional protection afforded by these explicit orders will ensure that there is no doubt as to the protection the Court has determined is appropriate for the children. I am satisfied that there is a need for the additional orders so as to ensure that the father does not approach the children outside the confines of the orders that the Court has determined provide for the protection of the children against the unacceptable risk that the father poses to them.
In this matter, I have determined that the father poses an unacceptable risk to the children. I have made specific orders for supervised time and for that time to be supervised by a professional supervisor. I am satisfied that given the father poses an unacceptable risk to the children, the injunctions sought by the mother are reasonable and will aid in the protection of the children from the father.
I also find that the father’s post-separation conduct has been coercive and controlling of the mother, and that this conduct poses an unacceptable risk of harm to the mother. In these circumstances, I find that the injunctions sought by the mother in relation to her safety are also reasonable and necessary to protect against the unacceptable risk that the father poses to her.
I find that the injunctions sought by the mother in relation to herself and the children are appropriate and are not unreasonable or unjust.[48]
[48] Hedlund & Hedlund (2021) 64 Fam LR 458 at [109].
Other parenting orders
The mother will hold sole parental responsibility for the children. The father will have limited time with the children.
There is evidence that the mother has expressed significantly negative views of the father and has conceded that she said she would show the children Court documents.
In those circumstances, the orders sought by the ICL in relation to not denigrating each parent, and speaking of each parent respectfully are appropriate.
ICL’s costs
The mother receives a minimal amount of child support from the father and is solely responsible for meeting all costs of the children.
The property pool for distribution was also modest.
As a result, I decline to exercise my discretion in relation to an application for the mother to be responsible for payment of half of the ICL’s costs.
The father has agreed to pay half of the costs of the ICL in the sum of $7,183.82 and I will so order.
Falsity of the father’s evidence
There remains the issue of the father’s evidence as given to the Local Court outlined in this judgment.
I will make orders for each party to file submissions to show cause as to why the father should or should not be referred to the Director of Public Prosecutions.
Those submissions are to be filed within 21 days of today’s date. I also give leave to the parties to contact chambers for a listing date if they seek to supplement their written submissions with oral submissions.
I certify that the preceding four hundred and eighty (480) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lioumis. Associate:
Dated: 27 August 2024
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