Cole & Rudzik
[2024] FedCFamC2F 14
•30 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cole & Rudzik [2024] FedCFamC2F 14
File number(s): PAC 4039 of 2020 Judgment of: JUDGE MURDOCH Date of judgment: 30 January 2024 Catchwords: FAMILY LAW – CHILDREN – Where the subject children are nine and four years of age – Where the parties separated in 2018 – Where the father spent limited supervised time with the eldest child until 2019 – Where the father has not spent any time with the eldest child in over four years – Where the father has no relationship with the youngest child – Where the father has been diagnosed with Autism Spectrum Disorder - Where the father has an extensive criminal history, most of which is aggressive in nature – Where it is found that the father is unable to self-regulate his behaviour and emotions in heightened situations – Where the father has historically challenged the authority of police and breached orders restraining his behaviour – Where several serious incidents have occurred involving the father subsequent to the release of the single expert’s report – Where the single expert did not read relevant material as to the father’s alleged conduct - Finding that the father presents an unacceptable risk to the children that cannot be sufficiently ameliorated – Orders made for the children to live with the mother and spend no time with the father – Further orders made by agreement for the father to send the children cards and gifts on limited occasions. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(3), 61DA(1), 61DA(2), 61DA (4)), 65DAA
Mental Health Act 2007 (NSW) s 32
Cases cited: M & M [1988] HCA 68
Isles & Nelissen [2022] FedCFamC1A 97
McCall & Clark (2009) FLC 93-405
Whisprun Pty Ltd v Dixon [2003] HCA 48.
Division: Division 2 Family Law Number of paragraphs: 260 Date of hearing: 23 October to 25 October 2023 Place: Sydney Counsel for the Applicant: Mr Alexander Solicitor for the Applicant: AS Family Lawyers Counsel for the Respondent: Mr Blank Solicitor for the Respondent: Sydney West Family Lawyers Counsel for the Independent Children’s Lawyer: Ms Yu Solicitor for the Independent Children’s Lawyer: Harb Lawyers ORDERS
PAC 4039 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR COLE
Applicant
AND: MS RUDZIK
Respondent
INDEPENDENT CHILDRENS LAWYER
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
30 JANUARY 2024
BY CONSENT THE COURT ORDERS THAT:
1.The mother shall have sole parental responsibility for making decisions for the children X born in 2015 and Y born in 2019 (“the children”).
2.The children shall live with the mother.
3.The father be at liberty to send letters, cards, and/or gifts to the children on or about dates proximate to Easter, the children’s birthdays and Christmas Day and for that purpose;
(a)The father shall, within seven (7) days of these Orders, set up a post office box at Town B post office and thereafter the paternal grandfather shall provide the mother a key to such post office box.
(b)Upon receipts of letters, cards and/or gifts to the children, the mother shall review and approve each letter, card and/or gift prior to forwarding on to the children and the mother shall not unreasonably withhold the letters, cards and/or gifts from the children.
THE COURT FURTHER ORDERS THAT:
4.The children shall spend no time with the father.
5.The mother may apply for an Australian travel document (passport) for X born in 2015 and Y born in 2019 without first obtaining the consent of the father and shall be the only person with ‘parental responsibility’ for the children for the purposes of applying for, and being issued with, an Australian passport for the children X born in 2015 and Y born in 2019.
6.The mother is restrained from abusing, insulting, belittling, rebuking or criticising the father to or in the presence of the children or any of them and from permitting any other person to do so and the mother is further restrained from discussing these proceedings in any way in the sight or hearing of the children or permitting any other person to do so.
7.The costs of the parties are reserved for a period of 28 days from the date of these Orders.
8.Save as to the question of costs, any and all other outstanding applications are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
The parties to these proceedings are in dispute as to the parenting arrangements for their children X and Y aged nine and four years respectively.
The children have lived with the mother subsequent to the parties’ final separation in December 2016. Save for his observation for the purpose of the single expert report, X has not spent time with the father since April 2019. Y was born subsequent to the parties’ separation. Save for his observation for the purposes of the single expert report, the only time Y and the father have come face to face was during a brief visit by the father and paternal grandparents in the hospital when Y was a few days old.
All parties agree that it is in the children’s best interests that they continue to live with the mother who is to be allocated sole parental responsibility. The issue to be determined is what time, if any, X and Y should spend with the father having regard to the father’s mental health issues and alleged history of the perpetration of violence.
For the reasons that follow it is found that on balance it is in the children’s best interests to make the orders as sought by the mother and the Independent Children’s Lawyer that the children spend no time with the father.
BACKGROUND
The father is 37 and the mother 36 years of age.
The mother has two children from a prior relationship, C and D who are aged 15 and 12 years of age respectively. These children have always lived with the mother. C suffers from significant levels of anxiety. Subsequent to the parties’ separation and the children’s relocation C refused to attend his new high school and is currently home schooled. He underwent play therapy subsequent to an incident between he and the father on the date of the parties’ separation and now receives support through a mental health support service.
The parties commenced a relationship in 2013. From this time the father would on occasion stay overnight at the mother’s home.
From 2013 to late 2015 the father was employed by E Company as a transport worker.
X was born in 2015.
The parties commenced living together in a house purchased by the father in 2015.
In 2015 the father took leave from his employment with E Company arising from him experiencing several near accidents within a short period of time as a transport worker. The father alleges he was also experiencing abuse in the workplace.
In 2016 the father was employed for a short period of time by F Company. In 2016 the father commenced employment with G Company for a period of three months.
In 2016 the father was hospitalised pursuant to the Mental Health Act (2007) NSW (“Mental Health Act”). Neither party deposes to the events surrounding the father’s hospitalisation on this occasion, nor was there any cross examination with respect to same.
In 2016 the father was charged with various offences and released into the care of professionals pursuant to the Mental Health Act.[1]
[1] Exhibit M26.
Subsequent to an incident between C and the father in late 2016 the father was charged with various offences. The father was released into the care of health professionals pursuant to section 32 of the Mental Health Act.[2] An interim Apprehended Domestic Violence Order was made restricting the behaviour of the father and protecting the mother. The parties separated on this date. In early 2017 the parties attempt at reconciliation was unsuccessful and the mother and children moved out of the father’s home and in with the maternal grandparents.
[2] Mother’s affidavit, paragraph 45 to 52.
In early 2017 the father was detained pursuant to the Mental Health Act.
In mid-2017 the parties attended a mediation and entered into a parenting plan that X spend time with the father four times each week during the day supervised by a third-party supervisor or the mother.
The father commenced employment with H Company in late 2017.
In early 2018 the interim Apprehended Violence Order restricting the behaviour of the father expired. The parties subsequently reconciled in early 2018 and the mother and children moved back into the father's home.
The parties separated on a final basis on 4 August 2018 subsequent to a further incident between C and the father. The father was arrested and a provisional Apprehended Domestic Violence Order was made restricting the behaviour of the father and for the protection of the mother, C, D and X. The mother and children relocated to temporary accommodation. In late 2019 the father was found not guilty of offences and directed to enter a supervised Community Corrections Order for 12 months arising from this incident.
X spent no face-to-face time with the father from 4 August 2018 to February 2019.
Subsequent to the parties’ separation the mother was in a relationship with Mr S. They never lived together and separated in August 2019.
In late 2018 the father breached the Apprehended Domestic Violence Order. He subsequently walked into a police station stating that he had breached the Apprehended Domestic Violence Order and wanted to be arrested. He was taken to hospital and later discharged.
In late 2018 the father suffered a mental health episode and was sectioned pursuant to the Mental Health Act. He was subsequently released into the care of his parents and charged with breach of the Apprehended Domestic Violence Order.
In late 2018 the father agreed to a final Apprehended Violence Order without admissions for a period of one year with the mother and all three children listed as protected persons. It specified that the father could contact X without constituting a breach of the order if the parties agreed in writing.[3]
[3] Father’s affidavit, paragraph 47.
On 10 January 2019 the parties agreed to a further parenting plan during a second mediation providing for X to spend time with the father at Suburb K contact service once per week[4] and for telephone calls twice per week with the father to undertake and complete various parenting courses.
[4] Mother’s affidavit, paragraph 91.
Y was born in 2019 and placed into an intensive care unit.[5] The father visited Y with the paternal grandparents for a brief period when Y was several days old.
[5] Mother’s affidavit, paragraph 93.
The father concedes that subsequent to the father and paternal grandparents visiting Y briefly after his birth he sent an email to the mother advising her that he did not want to receive any weekly emails or photos of Y as had been agreed at the mediation in January 2019 and threatened the mother that if she did send such emails and photos that he would report her to the police for harassment.[6] The father deposes that he was acting out of pain and hurt as the mother had re partnered and he felt emotionally conflicted.[7]
[6] Mother’s affidavit, paragraph 95-96.
[7] Father’s affidavit, paragraph 130.
X commenced spending time with the father once per week supervised at the Suburb K Children's Contact Centre on 19 February 2019.
In March 2019 the mother contacted the Contact Centre as to her concerns relating to photographs gifted to X in a photo album showing the mother, father, X, C and D all together.
In early 2019 the father received a series of text messages urging him to self harm and threatening X’s life from a phone registered in the mother’s name. Police were unable to determine who sent the messages.
In early 2019 the father was arrested and charged for offences after confronting the mother in a shopping centre.
In early 2019 the mother received emails from someone claiming to be a domestic violence support worker asserting that the mother or someone on her behalf had entered into a contract to harm the father.
X last spent time with the father on 16 April 2019.
In early 2019 the mother received emails from a Mr L and reported them to the police.
X last spoke to the father on the phone on 5 May 2019.
In mid-2019 the father was charged with offences and was ordered to undertake a mental health assessment pursuant to the Mental Health Act. In late 2019 the father was convicted of offences and directed to enter into a 12-month Community Corrections Order. The Apprehended Domestic Violence Order protecting the mother, C, D and X was extended to late 2020.
In mid-2019 the father was convicted of breaching the Apprehended Domestic Violence Order and directed to enter into a Conditional Release Order for a period of 12 months. The Apprehended Domestic Violence Order made in late 2018 was varied to prohibit the father from contacting the mother or any of the children other than through a lawyer, with the father permitted to have face to face time with X pursuant to the parenting plan but no telephone time. On this date the father applied for an Apprehended Domestic Violence Order to be placed against the mother for his protection. Such application was contested by the mother. A six‑month interim order was made for the father’s protection.
On 17 May 2019 the parties were advised by the Contact Centre that X’s time would be discontinued due to the complexity of the matter.
In mid-2019 the mother received further emails from Mr L and reported them to the police.
In late 2019 a further Apprehended Domestic Violence Order was made protecting the father and restricting the behaviour of the mother.
On 18 October 2019 the parties attended a third mediation. On this date it was agreed that the father would spend supervised time with X for a further six months. On 1 November 2019 the mother attended Suburb K Contact Centre where she was informed that the centre felt it was inappropriate to supervise the father's time without a court order and provided the mother with an alternate supervision service.[8] The father received written notification as to this decision from M Centre on 1 November 2019.
[8] Mother’s affidavit paragraph 147.
In late 2019 it is alleged that father was involved in a road rage incident although it appears that no charges were laid with respect to this incident.
In early 2020 the police were called to the father’s place of employment at H Company. The father’s employment with H Company ceased in early 2020.
In mid-2020 the parties enter into mutual undertakings in lieu of the father pursuing a final Apprehended Domestic Violence Order for his protection against the mother.
In mid-2020 the father was engaged in an incident with police and subsequently charged with various offences. In early 2021 the father was convicted and directed to enter a Community Corrections Order for a period of 12 months with supervision. Such order required the father to undertake service treatment programs for a period of six months and continue treatment with his psychiatrist and psychologist for as long as deemed necessary by them. The father was fined $100 on the charge of not obey direction of police.
On 16 June 2020 the parties attempted a fourth mediation. The mediator deemed that the matter was not appropriate to be mediated and it did not proceed to completion.
The father has been on a disability pension since mid-2020.
The father commenced these proceedings on 7 August 2020.
On 8 December 2020 orders were made for a single expert report to be prepared and that, pending a further interim hearing, the children would live with the mother and spend no time with the father.
On 7 May 2021 interim orders were made on a defended basis that the children live with the mother and spend no time with the father.
In June and July 2021 the parties undertook interviews and observations with Dr N (“the single expert”) for the purpose of the single expert report. The father elected to have his parents present throughout his interview. The single expert report was released on 13 July 2021.
In late 2021 an incident occurred between the father and another road user. The father was arrested and charged with various offences.
The father was taken into custody and his bail refused. The father was taken to O Correctional Centre before being moved to P Correctional Centre on remand.
In early 2022 the father was released from P Correctional Centre subject to strict bail conditions including that the father was not to drive a motor vehicle nor to occupy the driver’s seat of a motor vehicle.
On 11 February 2022 orders were made adjourning these proceedings because of the father's ongoing criminal proceedings.
The father’s application to vary such bail conditions to allow him to drive was refused in early 2023. It appears that the father was convicted and sentenced on several matters in mid-2023 and directed to enter a Community Corrections Order for 12 months together with a twelve‑month suspension of his licence.[9] The father’s subsequent appeal to Court as to the twelve-month suspension of his licence was dismissed.
[9] Exhibit M32.
In mid-2023 a Suspension of Supervision Order was made in relation to the Community Correction Order issued in mid-2023 for offences with the condition active in mid-2023 to mid‑2024.
In late 2022 the father was involved in an incident and was charged with offences. The charges are to be heard in early 2024.
On 21 February 2023 the matter was listed for a three-day final hearing commencing on 23 October 2023.
PROPOSALS
At the commencement of the final hearing the father sought orders on a final basis in accordance with the minute of order attached to the Case Outline document filed on 16 October 2023 broadly that:
·The parties have equal shared parental responsibility for the children.
·The children are to live with the mother.
·The children are to spend time with the father in the presence of one or both of the paternal grandparents as follows:
·for a period of three months each alternate Saturday from 10am to 1pm; then
·for a period of three months each Saturday from 10am to 4pm; then
·for a three-month period each alternate Saturday from 9am to 6pm; then
·for a three-month period each alternate weekend from Saturday at 9am to Sunday at 9am; and
·then for a further three months each alternate weekend from Saturday at 8am to Sunday at 6pm.
·Thereafter the children are to spend time with the father each alternate weekend from 5pm Friday to 6pm Sunday, for half of all school holiday periods and on special occasions including Christmas, Easter, Father’s day and the children’s birthdays together with phone/web calls each Tuesday.
·The parties are entitled to attend all school events and receive all school correspondence including school reports and newsletters.
At the commencement of submissions counsel on behalf of the father orally advised of his amended position, being that:
·the father no longer presses for an order that the parties have equal shared parental responsibility;
·the father would immediately commence spending time with the children each alternate Saturday from 10:00am to 1:00pm however this would occur for a six-month period as opposed to three-month period with such time to be supervised by one or both of the paternal grandparents;
·thereafter the father would spend each Saturday from 10:00am to 4:00pm with the children, however this time would also occur for a six-month period as opposed to a three-month period with such time to be supervised by one or both of the paternal grandparents;
·Thereafter the father presses for the orders set out in his Case Outline document including non-denigration orders.
·The father now presses for an additional order which permits him to provide the children with cards, gifts and letters on celebratory occasions including Christmas and the children’s birthdays.
Counsel for the father further submitted that in the alternative to this amended oral position, rather than the court making an order that the children spend no time with the father as pressed by the mother or an order that does not extend beyond the children spending six hours at a time with the father, that the court make interim orders that the children spend time with the father for a period of six months each Saturday from 10am to 1pm, then for a period of six months each alternate Saturday from 10 am to 4pm and it then be “reviewed” in twelve months’ time.
The father confirmed his primary position contained in his Case Outline save that the time is to occur in 6-monthly periods and for that time to be supervised by one or both paternal grandparents.
A further alternate position of the father advised orally at the commencement of submissions was that in the event the court made orders that the children spend no time with the father, he pressed for the opportunity to communicate with the children on a fortnightly basis. The father in this circumstance would give his express permission to the mother to record the conversations.
The mother seeks orders on a final basis in accordance with the Minute of Final Orders tendered at the conclusion of the proceedings broadly that the mother have sole parental responsibility for the children who are to live with her, that they spend no time with the father and that passports be issued for the children without the necessity of obtaining the consent of the father.
All parties agree that it is in the best interests of the children for the father to be afforded the opportunity, irrespective of the orders as to time that are made, to send gifts and cards to the children on special occasions.
The Independent Children’s Lawyer supports the parties’ agreed position that the mother be allocated sole parental responsibility, and otherwise supports the orders sought by the mother that the children live with her.
THE EVIDENCE
A direction was made at the commencement of the hearing that no annexures to affidavits or exhibited documents would be read in the matter until they were individually tendered.
The father relied on the: -
·Amended Application for final orders filed on 30 January 2023;
·The Case Outline document filed on 16 October 2023;
·His affidavit filed on 7 February 2023;
·The affidavit of Ms Q filed 7 February 2023;
·The affidavit of Mr R filed 7 February 2023; and
·documents tendered during the course of the hearing.
The mother relied on the: -
·Response filed 13 November 2020;
·Case Outline document filed on 13 October 2023;
·Her affidavit filed on 31 January 2023;
·The Notice of Risk filed on 13 November 2020; and
·documents tendered during the course of the hearing.
The Independent Children’s Lawyer relied on the:
·The single expert report of Dr N, clinical psychologist (“the single expert”) dated 12 July 2021 (“the single expert report”);
·Case Outline document filed on 17 October 2023; and
·documents tendered during the course of the hearing.
In these reasons a statement of fact is a finding of fact, unless it is obvious from the context that I am reciting the position of one of the parties. The standard of proof with respect to such findings is the balance of probabilities: see s 140 of the Evidence Act 1995 (Cth). Whilst I have read and considered all of the material relied upon by the parties and the Independent Children’s Lawyer 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.
THE HEARING
The father was cross examined for over one day and I had the opportunity to carefully observe him during this time. I accept the father’s firm and unchallenged evidence that during stressful situations his memory is “…like a film… it may only record certain parts of a scenario and not the whole lot, leaving gaps within memory.”
The father stated he was unable to recall significant events that had occurred but would then deny specific instances that were alleged to have occurred during the course of the same events. It is clear from his evidence that the father disputes events as alleged by the mother or as recorded in police material if he is unable to recall them, and he will not accept the accuracy of those reports as noted by the author of the father’s most recent sentencing report prepared for proceedings in June 2023.[10]
[10] Exhibit ICL2.
The father would often answer “It’s possible” or “It’s quite possible” to answers asked of him. I formed the impression from the nature of his evidence that the father was merely asserting that anything is possible. He was evasive in his answers, merely repeating his asserted position rather than answering the question; to one suggestion put to him the father’s answer was, “It is also possible that Her Honour is a go-go dancer.” He was very defensive in his interactions with Counsel in cross examination. He was not even able to accept propositions put to him as to the mother’s position in the matter, even though this would be in no way a concession that he accepts what the mother asserts. I found him to be sarcastic and at times rude. I did not find him to be an impressive witness. Whilst I will make specific findings of fact based on the evidence, I approach the father’s evidence with some caution.
I found the mother to be measured and responsive to the questions asked of her. She made concessions and gave evidence without compunction that may not have necessarily assisted her case. I found her to be a credible witness.
THE LEGAL PRINCIPLES
Section 65D of the Family Law Act 1975 (Cth) (“the Act”) compels the court to make such parenting orders that are considered proper. Section 60CA provides that in deciding whether to make a particular parenting order the court is to regard the best interests of the child as the paramount consideration. This is confirmed in s 65DAA.
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.
The assessment of risk requires the consideration of two elements; the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event. I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable: M & M [1988] HCA 68. The assessment of unacceptable risk is a predictive exercise, postulated from known facts and present circumstances. It is not required to be proven on the balance of probabilities: Isles & Nelissen [2022] FedCFamC1A 97.
There is a rebuttable presumption pursuant to s 61DA (1) of the Act that it is in the best interests of a child that their parents have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe one of the parties (or a person who lives with a party) has engaged in abuse of a child or family violence. (s61DA (2)). The presumption may be rebutted if the Court is satisfied that it is not in the child’s best interests for the parents to have equal shared parental responsibility (s61DA (4)).
In reaching my decision I have considered all the relevant sections of the Act. I am not required as a matter of law to specifically address each such consideration.
THE CHILDREN’S BEST INTERESTS - PRIMARY CONSIDERATIONS
The primary considerations as set out in s 60CC (2) are:
(a)the benefit to the child of having a meaningful relationship with both of their 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 child from harm or being subjected to, or exposed to, abuse, neglect or family violence.
Meaningful Relationship
The Full Court in McCall & Clark (2009) FLC 93-405, 83,476 (“McCall & Clark”) at [118]-[119]; [2009] FamCAFC 92 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…
Thus, I am not to assume that there is a benefit to the children in having a meaningful relationship with the father but rather am required to ascertain whether there is a positive benefit to them in the circumstances of such a relationship.
The Full Court continued in McCall & Clark at 83,476 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 father submits that the mother’s complaint to the Contact Centre that the father placed family photos in the album he gave to X from a time the parties were still in a relationship is a further example of the mother not supporting X’s relationship with the father.
The father asserts that the children have been alienated from him. He believes that the numerous reports he alleges the mother made to the police about him post separation “often about minor things” were attempts of the mother attempting to fracture his relationship with X. The paternal grandfather alleges that on two occasions he overheard the mother telling a third party that she could, in effect, make false claims as to the father’s behaviour and would be believed. The mother denies this and asserts that she stated that if the father did anything wrong she could call the police. Whilst I accept that it is probably that the paternal grandfather believes this is what he heard, I cannot be satisfied that there is sufficient evidence to ground a positive finding that this was said by the mother.
The mother makes serious allegations as to the father’s conduct posing a risk of harm to the children. Despite these allegations the mother has engaged in mediations with the father as to the children’s time with him on three occasions and agreed that the children spend supervised time with him. Whilst the mother has ceased X’s time with the father on occasions, I am satisfied that, given the findings made by me below, that such a course of action was appropriately protective in nature. The single expert opined that to the mother’s credit there was nothing to suggest that she had said anything negative to the children about the father or the paternal grandparents and did not do anything to sabotage or undermine the children’s observation with him. I am not satisfied that the evidence supports the finding sought by the father.
Protection from Harm
The mother asserts that her relationship with the father both during periods of cohabitation and post separation has been one characterised by emotional abuse and intimidation towards both herself and the children.[11] The mother asserts that the benefit to the children in spending time with the father is outweighed by the risk of potential harm to them from such time, having regard to the father’s mental health issues and the extensive family violence perpetrated by the father upon the mother both during cohabitation and post separation. It is the mother’s position that the father is unable to regulate his emotions. This view is supported by the Independent Children’s Lawyer who submits that the father’s unpredictable nature and his apparent inability to self-regulate has evidenced itself in many instances with serious potential consequences.
[11] Affidavit of Ms Rudzik filed 31 January 2023, paragraph 53. (“Mother’s affidavit”).
The father concedes that he has struggled with his mental health in the past and is diagnosed with major depressive disorder, post-traumatic stress disorder (“PTSD”) and borderline personality traits.[12] Whilst the father concedes that there is a risk to the children in spending time with him, he asserts that this risk is not unacceptable as since September 2018 he has undergone ongoing psychiatric and psychological treatment and his psychological condition has gradually improved.[13] He asserts that he has not had any further mental health admissions since 2018 and is in regular attendance with his general practitioner, treating psychiatrist and psychologist.[14]
[12] Father’s Affidavit, paragraph 19.
[13] Father’s affidavit, paragraph 100.
[14] Father’s affidavit, paragraph 100-102.
Whilst acknowledging in his affidavit that in the past his mental health issues have likely caused negative effects on the mother and X, the father denies that the parties’ relationship was characterised by emotional abuse and intimidation. It appeared to be the father’s submission that the incidents of family violence and aggression set out below arise from the father’s neurodiversity as the father engaged in behaviour which draws attention to himself or arose from “misunderstandings”.
The single expert reports that the Personality Assessment Inventory undertaken by the father for the purposes of the single expert report indicate that the father:
…appears reluctant to acknowledge personal limitations and will tend to repress or deny distress or other internal consequences that might arise from such limitations. This tendency will lead him to minimise, or perhaps even be unaware of, problems or other areas where functioning might be less than optimal…These areas that could indicate problems that merit further enquiry are: impact of traumatic events; stress in the environment; failures in close relationships; suspiciousness; impaired empathy; and inflated self-esteem.[15]
[15] Single expert report, paragraph 90.
I accept this unchallenged evidence.
The single expert opined that based on the information obtained by her the father meets the diagnostic criteria for Autism Spectrum Disorder. She observes that:
ASD is a developmental condition that affects the way individuals relate to their environment and interact with other people. [The father] appears to find understanding other people and the more complex aspects of social interaction challenging. He appears to find it hard to translate some of this knowledge into interactions with others, particularly when there is a need to mentalise…He, at times, appears to be self‑focussed as a result. [16]
[16] Ibid, paragraph 102.
It does not appear that the single expert formally diagnosed the father as being on the autism spectrum and I am not satisfied that the evidence grounds such a finding at this stage. In any event, I accept the unchallenged evidence of the single expert that any such diagnosis would not in itself preclude the father from having a good relationship with the children and being able to play a meaningful role in their lives.
The single expert agreed during her oral evidence that some of the traits exhibited by someone who has borderline personality traits is poor impulse control and fear of abandonment which can become evident in self-harm/threats to self-harm and an inability to maintain employment for long periods of time. Despite this she maintained her opinion that the father’s characteristics are more in line with someone with autism rather than borderline personality disorder.
As stated above, I am unable to make a finding as to whether the father’s past diagnosis is incorrect as opined by the single expert. It is not necessary in any event to make such a finding to determine the parenting arrangements which are in the children’s best interests. What is significant is the father’s behaviour to date and the potential risks arising from such behaviour in the future.
Discipline of C and D
The mother’s assertion that during the relationship the father commonly threatened to kick the mother and her children out of the house is denied by the father. I am unable to make a finding in this regard.
The mother alleges that subsequent to the father’s cessation of his employment with E Company, he became increasingly abusive particularly toward herself, C and D. The mother deposes that the father would yell at the children and that they were forced to strictly comply with the rules he had set for the house. When C and D would not comply, the father would punish them in a disproportionate manner including leaving D in the dark outside for up to 15 minutes whilst the mother pleaded for D to be let back inside the main part of the house. Whilst this is denied by the father, he concedes that the parties had multiple arguments surrounding the parenting of the children as the father felt the mother was too lenient with their behaviour and the mother felt the father was too harsh. I accept this was the case.
Late 2016
In late 2016 the father was charged with offences.
In evidence is a New South Wales Police Force COPS record which provides the following narrative:
·At 4:35pm the father was travelling along the road at a high speed. The speed limit in this area is 70 kilometres per hour. As the father approached, the police activated their warning lights and pointed out of their vehicle window toward the father indicating that he stop. The father failed to stop on two occasions when it was safe for him to do and the police reactivated their sirens.
·The father then abruptly stopped which prevented the police from being able to safely merge behind him. The father got out of his vehicle and commenced yelling at the police. The police indicated to the father to move his vehicle forward as the police car was in an unsafe position, being still partially on the road. The father told the police that it was safe for them to exit their vehicle. The police were required to yell at the father in an assertive voice to ensure that he understood he was required to move his vehicle forward. The father eventually returned to his vehicle and moved it only a short distance forward contrary to the space which he had to do so.
·The police officer then approached the father who was “hostile and argumentative” and told them, “I know the rules of the police force. I have actually studied them […]” The father eventually produced his driver’s licence after being asked to do so three times. The father denied to the police that he was travelling 99 kilometres per hour and told them that he was only “doing 90 according to my speedometer.”
·As the police returned to their vehicle the father stuck his head out of his window and yelled out, “that's fine, and while you're at it, you can get your inspector out here because I don't like abusive [officers].” As the father then got out of his vehicle and approached the police vehicle the police radioed for further assistance. The father then walked to the rear of the police vehicle and onto the road placing himself in danger from being hit by oncoming traffic.
·The father then approached the police in an aggressive manner and was aggressively attempting to put his arm in the face of the officer whilst holding his mobile phone. The officer attempted to wind up their window and the father then grabbed hold of the driver’s window of the police vehicle with both hands and violently pushed down, preventing the window from closing and forcing it to open further. The police officer took hold of the police radio and attempted to call for urgent assistance. At this point, the father grabbed hold of the police radio and attempted to pull the radio away from the officer. OC spray was pointed at the father however it was not deployed due to the father wearing sunglasses and being in close proximity to the police.
·The father then moved backwards onto the road where he was again at danger of being hit by an incoming vehicle. The police attempted to grab hold of the father's arm and the father pushed the police officer in the chest with both of his hands, causing them to step back, however the police retained a grip on the father's arm and pulled him off the roadway. At this time a passing motorist who is an ex-police officer saw the incident occurring and stopped to provide assistance to the police. The father eventually calmed down and stood to the side of the police car. The radio of the police officer had been disabled when the father had attempted to grab hold of it and the police again radioed for further assistance.
·Shortly after more police officers arrived and the father was placed under arrest. The police records indicate that the father continued to be hostile and argumentative, and they were required to force the father to the ground as he was non-compliant, refusing to be handcuffed, lashing out and struggling. The father during this struggle bit a police officer on his hand and was eventually handcuffed and conveyed to Town T police station. Whilst the father was at Town T police station he requested an ambulance. He stated to the custody manager that he suffers from anxiety and depression and whilst waiting for the ambulance to arrive the police records indicate that the father attempted self-harm.
·As a result of this incident three police officers sustained injuries.
The father’s affidavit is silent as to this incident. During cross examination the father denied that the police deployed their lights indicating for the father to stop his vehicle. The father denied that the police officer approached his vehicle and further denied that the police officer asked the father to produce his licence. The father conceded that he exited his vehicle and approached the police whilst recording on his mobile phone. The father did not accept that he walked onto the road and did not accept that he placed his arm in the face of the police officer. The father denied grabbing onto the window of the police vehicle and forcing it to open and denied grabbing the radio of the police officer at any point. The father denied pushing the police officer in the chest and biting the police officer stating, “I did not touch a police officer at all until I was crashed tackled to the ground without any notice.” The father accepted that he was taken into custody on this occasion, but he could not remember whether he tied a shirt around his neck and attempted to strangle himself whilst in custody. It was put to the father that it was possible he did such things and his response was that he could not recall them occurring.
The father obtained a report from Dr U, consultant forensic psychiatrist for the purpose of the criminal proceedings arising from this incident who opined that the father met the criteria for major depressive order, PTSD and borderline personality traits. The father was released into the care of health professionals pursuant to section 32 of the Mental Health Act.
The police records are detailed and specific. The father was completely silent as to this incident in his affidavit and did not provide an alternative version of events. His denials in cross examination of certain aspects of the alleged incident are not logical – why did the father stop his car for example if the police did not activate their lights for him to do so? He did not deny that he attempted to self-harm, but rather he could not recall. On balance I am satisfied that this incident occurred as recorded in the police notes.
In late 2016
The mother deposes that in late 2016 the father became aggressive and attempted to get C and D into his vehicle to take them to school. Both C and D believed there was a spider in the car and refused to enter the car. The mother asked the father to take D to school whilst she walked C to school as it was located up the road. As the mother began walking with C the father became angry and when the mother and C refused to get into the car once again the father began yelling, “get in the fucking car. Why can’t you just do what you’re told.” The father then drove his car onto the wrong side of the road and continued to verbally abuse the mother and C. The mother deposes that the father drove his car onto the grass in front of the mother and C, narrowly missing them on several occasions. The mother's evidence is that a neighbour who lived on the same street called the police in relation to this incident and when the mother arrived at C’s school the principal also telephoned the police.
The New South Wales Police Force COPS notes record a similar version of alleged events and further that upon attending the residence a short time later, the police located the father sitting in the backyard. Hanging from a beam within two metres of the father the police observed a noose. Police introduced themselves to the father and the father responded, “go away, I just want to die, let me die.” The father was searched and placed into the police vehicle. The police took a number of pictures of the noose before removing it. The father was conveyed to Town T Hospital to be assessed under the Mental Health Act. Both the mother and the police are recorded as having grave fears for the mother’s safety after this incident and what could happen in the future.[17]
[17] Exhibit M1.
The father was charged in relation to this incident but was released into the care of health professionals pursuant to section 32 of the Mental Health Act.[18] The mother provided a statement to the police and an interim Apprehended Violence Order was taken out against the father for the protection of the mother, C, D and X. The mother deposes that the Apprehended Violence Order was never finalised but the interim Apprehended Violence Order remained in place until early 2018.
[18] Mother’s affidavit, paragraph 45 to 52.
The father deposes that in late 2016 he experienced a mental health breakdown which involved C and was the cause for the parties separating for several months in early 2017 along with his deteriorating mental health.[19] He recalls raising his voice at C to get into the car but he does not recall exactly what was said. His written evidence is that he then remembers going into what he would call a ‘mental health breakdown.’[20] In cross examination the father conceded that he may have: -
·shouted at C; telling him to “get in the fucking car”;
·picked C up to place him in the car; and
·chased after C whilst continuing to yell at him after C told him to leave him alone.
[19] Father’s affidavit, paragraph 28.
[20] Father’s affidavit, paragraph 123.
The father conceded that C and the mother crossed the road behind the father’s car and he put his car in reverse at this point but he did not do so knowingly and he did not do “anything to run anyone over purposely”. The father could not recall shouting at the mother at the neighbour’s property. He denied throwing his wallet at the mother, holding his hand in a fist and throwing C to the ground. His evidence was that C was not on the ground at any point. The father did not remember whether there was a noose hanging from over a beam in his backyard but conceded this was possible. The father did not recall whether he would have placed the noose onto the beam. The father stated it was possible that he told the police officers to “go away I want to die” but did not recall being taken to the police station although conceded that he would have been taken to the police station if he was arrested. The father commented that he struggles with his memory insofar as he can remember certain events with quite clarity and others he cannot. When the father was asked what it was that he recalled about this incident he responded, “I remember feeling despair.”
I accept the mother’s version of the events that took place on this day. The mother’s evidence as to her recollection of this day is detailed and consistent whereas the father’s is not. The father concedes that he cannot recall the entirety of the events on this day.
During the period of the parties’ first separation in late 2016 the father deposes he had a mental health episode and was voluntarily admitted into V Hospital in Suburb W and at the Z Hospital in City AA. At this time he was diagnosed as suffering from complex post-traumatic stress disorder (“PTSD”).[21] The father concedes in his written evidence that since his first admission into V Hospital he has suffered several mental health incidents. He usually recalls the beginning of an incident and is aware that a breakdown has occurred but he does not always recall the details. He describes this as dissociation.[22] The mother deposes that following the father’s release from V Hospital the father attended weekly sessions at the hospital undertaking therapy.[23]
[21] Father’s affidavit, paragraph 94-95.
[22] Father’s affidavit, paragraph 96-97.
[23] Mother’s affidavit, paragraph 59.
Early 2017
The mother alleges that when packing to move out of the home in early 2017 the father was yelling at the mother “this is my house you need to leave, you don’t know how to have a proper relationship with someone” and pushed his way into the house when the mother tried to stop him entering. The police were called by a neighbour and the mother. The father denied the mother’s version of events but concedes the police arrived at the home approximately 30 minutes after the mother and her children left. It was not challenged that a neighbour called the police, nor is it asserted that the mother was yelling on this occasion. I accept the father behaved as alleged by the mother on this date.
Early 2017
In evidence is a New South Wales Police Force COPS report which provides the following narrative:
·In early 2017 the father telephoned the mother requesting to spend time with his 2-year-old son. Due to the conditions of the Apprehended Violence Order the father was not allowed at the mother’s home address. The mother offered to pick the father up from his house in Town T. The mother, father and son then drove to a location in Town CC to drop off some property at the mother’s storage unit.
·Whilst in the carpark the father asked the mother why she no longer loved him and began pleading with the mother to take him back. When the mother refused the father began discussing his Will and that he recently had it amended. The father then yelled, “I’m going to go what I planned to do a long time ago.” The mother feared the father was referring to committing self-harm as he had made multiple prior attempts. The father then threw his mobile telephone and wallet toward the victim and left the location on foot.
·The mother got back into her vehicle as her son was asleep in the car and proceeded to drive behind the father, following him. The father began running along the street. The father decamped into the bushland. The mother then called triple zero. Police rescue operators entered the bush on foot searching for the father.
·A land search operation was commenced. A helicopter and other units were also all in attendance and conducted searches of the area with no find. Numerous bush walkers were utilising the tracks at this time and the majority of these people were questioned by police however no one had sighted the father. Due to the father’s history of violence toward police it was decided that volunteers were not to be used for the purposes of searching for safety reasons.
·At 5:15pm, due to failing light the search was suspended. Arrangements were made for the search to recommence the following day. The father’s next of kin was contacted and signed an authority for publicity regarding distributing the father’s photograph to media outlets.
·At 6:40pm the father walked into Town EE Police Station. He said, “I don’t know who I am. The lights are bright.” When questioned, the father did not respond. An Ambulance were called and the officers assessed the father. Ambulance and Police conveyed the father to Town T Hospital where he was triaged and admitted under Schedule 22 of the Mental Health Act (2007) (NSW).[24]
[24] Exhibit M3.
The police report was put to the father in his cross-examination. The father could not recall telling the mother he was going to “do what he planned to do a long time ago” although the father conceded it was possible at the time that the father could have been referencing some form of self-harm. The father did not recall walking off into the bush but stated it was possible he walked along the road, although he did not recall. In relation to the father walking into Town EE police station he initially denied that these events occurred however he conceded that it was “plausible” that they occurred, however he does not remember them.
In light of the father’s inability to recall this specific event and the detailed version as set out in the COPS records I am satisfied that this incident occurred as recorded therein.
Mid-2017
The mother deposes that in mid-2017 the father and C were arguing and the father threatened to call the police. The mother removed herself and the children and drove back to her rental property. The father attended at the property leaving the children’s Christmas presents purchased by the mother on the front yard and continued to yell at C telling him that the police were going to come and get him.[25]
[25] Mother’s affidavit, paragraph 74-75.
The father’s evidence as to this alleged event is inconsistent. In his affidavit he denies that this event occurred but then asserts that he does not recall this event ever occurring. I am satisfied on balance having regard to the detailed evidence of the mother, which was not successfully challenged, that this event occurred as alleged by her.
Mid-2018
In mid-2018 the mother deposes that C and the father were arguing and as a result the father told C that he needed to leave the house. The mother would not allow the father to kick C, who was nine years of age at the time, out of their house and the father subsequently kicked the mother and all of the children out of the house at night in their pyjamas. The mother deposes that the father would not allow the mother to go back inside the home to collect her phone or any other of the children's belongings including nappies for X. The mother and the children spent the night at a friend of the mother’s house. The mother returned to the father's home the following morning and deposes that the father continued to yell at her for not wanting to work on their relationship and started throwing the mother and children's belongings out on the front yard.[26]
[26] Mother’s affidavit, paragraph 78-80.
The father denies the mothers version of events but concedes there was a disagreement between himself and C about screen time. C then became violent and aggressive throwing items around the living room of the house, striking the father, X, the television and the walls. C then began hitting the mother and when the father tried to stop this the mother screamed at the father, took the children and left the home. The following day the mother returned to the home and started “bashing on the front windows and doors screaming that if I did not let her in she would break a window to get in.”[27]
[27] Father’s affidavit, paragraph 127.
I am unable to make a finding based on the detailed contradictory evidence of the parties as to this incident. In any event, it is clear that there were significant difficulties between the father, mother and C arising from the father’s interactions with C.
Mid-2018
In evidence is a New South Wales Police Force COPS record which provides the following narrative:
·In mid-2018 the father called his ex-girlfriend [the mother] and had a conversation with her, during which time the father made threats of self-harm and stated that he was “going to find a place to die.” The father then stated that the mother would find his wallet and keys on the kitchen table.
·Police attended the father's address and upon arrival found the father walking out of the bush located at the end of the street. The father initially lied to the police about his name and date of birth before eventually telling the police that he and his girlfriend had recently separated and that she had walked out the previous night. police checked the father's phone and found that there had been a phone call made to the father's ex‑girlfriend at the time stating that she would find his wallet and keys on the kitchen table.
·Due to the father’s history with mental health incidents he was conveyed to the hospital via ambulance for a mental health assessment under section 22 of the Mental Health Act.[28]
[28] Exhibit M4.
The father was cross-examined as to the police record in evidence. The father denied phoning the mother and threatening self-harm and further denied sending the text message to the mother attributed to him by the police record. The father’s oral evidence was that he was going for a bush walk when the police stopped him and had a conversation with him. The father conceded that it was possible that he was taken by ambulance to the hospital on this occasion.
This incident is not deposed to by the mother. I accept and find that as a result of interactions between the police and the father he was admitted as a patient on this date under the Mental Health Act.
Late 2018
The mother deposes that in late 2018 the father was physical with C. The mother deposes that her witness statement made on this day to the New South Wales Police is a true recollection of this incident.[29] It records in part:
[29] Mother’s affidavit, paragraph 83-85.
[In late] 2018 I spent the day at [Town EE] club for my dad’s birthday. I was with my 3 kids. [C], [D] and [X]. We got home about 3:30pm and [C] did not get out of the car. We had an argument in the car coming back up the hill. [C] was very tired from staying at his friends place and not going to bed until 3am.
[Mr Cole] my partner come out and asked me what was wrong. I just shook my head. [Mr Cole] said. "Get out of the car."
[C] got out and went to walk between [Mr Cole] and I. [Mr Cole] asked [C] what was going on. [C] did not answer him and tried to walk away. [Mr Cole] grabbed his jumper and again asked him what was going on. [C] pulled away and [Mr Cole] let go. [C] walked out to the driveway and [Mr Cole] said, "Fine then just go and don 't come back."
[C] stayed near the road on the driveway. I sent [D] back inside the house. I spoke to [Mr Cole] about grabbing [C] but I don't remember the words. [C] then started walking up the street. [Mr Cole] walked back towards the house.
I said, "Great I don't really need this." I ran down after [C]. By this stage he was 2 houses away. I spoke to [C] and tried to get him to stop but [C] would just walk past me. I ran back to the house and got the car. When I was there I put [X] in the car. [Mr Cole] and I had a verbal argument in the driveway.
I got in the car and drove down the road to [C]. I stopped and got out and spoke to [C] and asked him to get in the car and go home. He just refused and ran down the road further away from the house. I followed in the car. I parked ahead of him and pulled up. I waited for [C] to get to me. [C] said, "I want to go home."
…
[Mr Cole] turned up in his car. He got out of the car as I let go of [C]. [C] went to walk out I grabbed him and gave him another hug. [Mr Cole] had walked over to us. [Mr Cole] said, "[D] told me that your cousin had coloured in your page and that's why your upset."
[C] said, 'That's not why I'm upset."
I said, "[C] is upset because I yelled at him.'
[C] went to push away from me. [Mr Cole] grabbed [C]'s legs and lifted him. I still had hold of [C]'s top half. [C] grabbed onto the tree which is on the footpath to get away. [Mr Cole] tried to pull him off the tree.
I asked [Mr Cole] why he had grabbed [C]'s legs because I nearly dropped him. [Mr Cole] put his legs back down and I let [C] go so he was standing. [C] turned to walk away. [Mr Cole] grabbed [C's] left arm and [C] tried to pull away and told him to let him go. [Mr Cole] started saying, “if you just told me what was going on we could have just worked it out” and [C] just kept trying to pull away. [Mr Cole] grabbed [C]'s left wrist with both hands. [C] was trying to pull away and he was crying. [C] told [Mr Cole] that he was hurting him and told [Mr Cole] to let him go. [Mr Cole] said, "I will stop when you stop pulling away." [Mr Cole] was pretty angry.
[C] tried to pull away and was crying more. [Mr Cole]'s fingers were going white from holding so tight. I grabbed [Mr Cole]'s hands to try to get him to let go. I said, "Let go your hurting him." I managed to get one of [Mr Cole]'s hand off [C] and [C] was trying to pull away and get away from him. I said, "You're hurting him let go." [Mr Cole] let go.
[C] started running up the road. [Mr Cole] chased after him and pushed [C] to the back with an open hand causing [C] to fall to the ground. [C] landed on his front. [Mr Cole] then put his right knee in [C]'s back. [Mr Cole] then pushed [C]'s head into the ground. [C] face hit the grassy ground. [Mr Cole] then got out his phone and said, "I'm going to call the police.”
It all happened so quickly and I ran over to [C] and told [Mr Cole] to get off him. [Mr Cole] then got off. [C] just lay on the grass. I sat next to [C] and hugged him as much as he would let me. [Mr Cole] then called the police. [C] and I sat talking waiting for the police.
[Mr Cole] said to [C], "I hope your happy. The police will arrest me.”
[Mr Cole] said he would wait in his car and walked back to his car. [Mr Cole] got into his car. [C] and I sat together for a while. [C] said that his back hurt.
…
[Mr Cole] said, "I hope your happy. You got what you wanted. I'm going to be arrested. I'm going to go to prison. This is all your fault."
I said to [C], "Just stay quiet."
The police turned up just as we were going back to the car to return home. I went to [Town T] police to provide a statement. After the statement I had a good look at [C]'s arm, face and back and didn't see any injuries or red marks.[30]
[30] Exhibit M20.
Whilst I accept that the father’s upset on this occasion was understandable, I reject the opinion of the single expert that the father’s actions were so. It was inappropriate and unnecessary. Further the father did not just wish to speak to the mother, he conceded that he yelled out at her. Such behaviour reflects the father’s inability to control his behaviour, even within the confines of a court building during court proceedings where his ability to self-regulate was being actively challenged and when one would anticipate he would be on his best behaviour.
In circumstances where the paternal grandparents were unable to stop the father behaving in a concerning manner inside the precincts of the court registry whilst proceedings were on foot, I am not confident that they would be able to adequately protect the children from harm in the father’s presence. There is no evidence to suggest whom or what having regard to the father’s dealings with authority, may be successful at calming the father down should his emotions become heightened or his behaviour erratic whilst spending time with the children.
It was the single expert’s unchallenged opinion when asked as to the likely effect of a child being brought up with no knowledge or contact with one of their parents that there are plenty of children who grow up perfectly well adjusted having had good quality care from one parent – and the thing most damaging to children is where there is chronic conflict between their caregivers. Given the events that have transpired between the parties both during their relationship and post-separation I am satisfied that there remains and will remain chronic conflict between the parties in the event that they are required to communicate or have any form of contact in the future.
In any event, I am satisfied that any form of a relationship between the children and the father leaves both the children and the mother open to a significant possibility of harmful behaviour by the father and this significant possibility is such that, on balance, it is not in the best interests of the children to spend time with the father.
For the reasons as set out above I am thus not satisfied that ordering the children to spend time with the father on an interim basis and then adjourning the matter for a period of twelve months is in the children’s best interests.
Telephone Time
In circumstances where no orders have been made for the children to spend face to face time with the father, the father presses for the opportunity to communicate with the children on a fortnightly basis. I agree with the single expert’s unchallenged opinion that the parties would struggle with the practicalities of the children having telephone time with the father bearing in mind that the father ceased making telephone calls in the past because of the conflict and problems that it presented. She did not agree with the proposition of the father that such difficulties might be assisted by the provision of clear rules as children do not adhere to rules and such time leads to various arguments as to whose fault it is when a child does not wish to talk to a parent.
Further, having regard to my findings above I am satisfied that such form of communication leads to a risk that the father will use the opportunity to denigrate the mother or say inappropriate things to the children. I am not satisfied that the father’s agreement that the mother could record such conversations having regard to the father’s behaviour to date would act as a sufficient deterrent to the father’s behaviour, nor am I satisfied that the father would be able to regulate his behaviour in an appropriate manner.
I am not satisfied therefore that it is in the children’s best interests for there to be any telephone time with the father.
Passports
The father opposes the mother’s application that she be able to obtain the passports for the children without the father’s consent. The Independent Children’s Lawyer submitted that it would not be in the best interests of the children for the mother to have to consult with the father to obtain passports for the children and does not oppose the order sought by the mother. I agree and will make the order as sought by the mother.
Further Ancillary Orders
The father and mother agree that the father is to be able to forward to the mother, care of a post office box to be opened and paid, gifts and cards for Easter, Christmas and the children’s birthdays and that the mother be able read/open such cards and gifts prior to them being given to the children. The mother made no submissions against the father’s proposal that such post office box be located at Town B. The ability of the father to provide gifts to the children was supported by both the single expert and the Independent Children’s Lawyer. I am satisfied in those circumstances that such proposal is in the best interests of the children and orders will be made accordingly.
Having regard to the findings made above and in circumstances where the children will not be spending time with the father I am not satisfied that it is in their best interests for the father to obtain information as to the children’s schools or from their medical professionals as this will increase the possibility that the father will ascertain the mother’s current residence potentially prejudicing her safety or at the least possibly causing her to fear for her safety.
The father presses for an order restraining the mother from denigrating the father even if the children are not to spend any time with him. The single expert opined that for some boys if they do not see their father and they are told he is a bad person that can have a negative impact on their self-worth. I accept that this is in the children’s best interests to allow a possible avenue for the children to establish some form of communication or relationship with the father when they are of age should they wish to do so and will make such an order and to ameliorate the risk as opined by the single expert that such denigration could negatively impact the children’s self-worth.
CONCLUSION
Orders will be made accordingly.
I certify that the preceding two hundred and sixty (260) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 30 January 2024
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