Coppens & Fischer (No 3)
[2024] FedCFamC1F 720
•31 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Coppens & Fischer (No 3) [2024] FedCFamC1F 720
File number(s): PAC 2561 of 2021 Judgment of: BAUMANN J Date of judgment: 31 October 2024 Catchwords: FAMILY LAW – CHILDREN – Where the father seeks unsupervised time – Children have spent no time with the father since 2022, save for family report interviews – Children have expressed a desire to spend time with the father – Where the Court finds the father presents as an unacceptable risk of psychological harm to the children – Final orders made for the children to spend supervised time with the father on a three-week rotation Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC Division: Division 1 First Instance Number of paragraphs: 76 Date of last submission/s: 4 October 2024 Date of hearing: 30 September and 1, 2 & 4 October 2024 Place: Sydney Counsel for the Applicant: Mr Provera Solicitor for the Applicant: Vaikom Law Counsel for the Respondent: Mr Cummings, SC Solicitor for the Respondent: Barkus Doolan Winning ORDERS
PAC 2561 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR COPPENS
Applicant
AND: MS FISCHER
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
31 OCTOBER 2024
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting Orders be discharged.
Parental responsibility
2.That the mother shall have sole decision making responsibility for the children, X born 2011, Y born 2012 and Z 2016 (“the children”) in relation to all major long term issues as defined in s 4 of the Family Law Act 1975 (Cth) affecting the children.
3.That the mother shall, within seven (7) days of making any major long term, inform the father by email of that decision.
4.That the mother shall have sole decision making responsibility for making decisions concerning all other aspects of the care, welfare and development of the children on a day-to-day basis during periods when the children are living with her.
Living arrangements
5.That the children live with the mother.
6.That the children spend time with the father, unless otherwise agreed in writing between the parents, as follows:
(a)On a three (3) week cycle, commencing as soon after the parties have completed the intake procedure required by the contact centre, for up to four (4) hours each visit;
(b)All time shall, unless otherwise agreed in writing, occur under supervision by a registered contact centre proximate to the children’s home (“the Centre”);
(c)The mother shall, within seven (7) days of this Order, nominate a list of venues, with such list to identify the costs of intake and supervision, and how quickly time can commence;
(d)The father shall, within fourteen (14) days of this Order, indicate which venue he selects;
(e)Thereafter, within thirty (30) days, the parents shall do all acts and things required to undertake the enrolment/intake process; and
(f)The father shall be responsible for all the costs of the Centre, including supervision and enrolment.
7.That in the event:
(a)the mother and the father comply with Order 6 hereof, then the time between the children and the father prescribed at Order 6 shall commence subject to the availability of the Centre;
(b)the father fails to comply with the intake procedure within sixty (60) days of this Order, without a reasonable excuse, then the Order for the children to spend time with the father shall be discharged;
(c)once time commences, the father fails to attend the Centre visits to spend time with the children on three (3) consecutive occasions, without reasonable excuse, then the Order for the children to spend time with the father shall be discharged;
(d)the father is unwell or travelling overseas, he must give written notice to the mother and the Centre of his unavailability; and
(e)the children are unwell or on holiday away from the Sydney area where they live, when they are scheduled to spend time with the father, the mother must give written notice to the father and the Centre of the children’s unavailability, and, if practicable, provide the father with the opportunity to make up for the lost visit or visits at an alternate time.
8.That the father shall be at liberty to send birthday and Christmas cards and gifts to the children and the mother shall forthwith provide the cards and gifts to the children unless she considers the content of them to be inappropriate.
Restraints
9.That pursuant to s 68B of the Family Law Act 1975 (Cth), the father and anyone on his behalf is restrained and an injunction hereby issues restraining the father and any such person from:
(a)attending at or contacting the children’s educational facilities, sporting or extra curricular activities. counsellors or medical practitioners in any capacity whatsoever;
(b)except as set out in Order 6, contacting or approaching or attempting to approach the children in any way;
(c)discussing with the children any details pertaining to the Federal Circuit and Family Court of Australia proceedings, criminal proceedings or any family law issues involving him or the mother;
(d)interrogating or questioning the children about matters that relate to family law issues or the mother’s private life; and
(e)denigrating or insulting the mother in the presence or hearing of the children, and the father shall use his best endeavours to ensure that others do not denigrate or insult the mother in the presence or hearing of the children.
Travel and passports
10.That the mother hold the Australian passports for the children.
11.That pursuant to s 11(b) of the Australian Passports Act 2005 (Cth), the mother is authorised to obtain and maintain an Australian travel document for each of the children without requiring the father’s consent or signature.
Notification and alerts
12.That in the event of an emergency involving the children, including but not limited to any serious injury or illness, the mother shall make necessary immediate arrangements for the children and notify the father as soon as possible.
13.That the mother and father shall keep each other informed at all times of their current email address.
14.That the mother shall, not less than once each six (6) months, provide to the father by email a report as to the health, educational progress and general wellbeing of the children.
IT IS NOTED:
A.That on the evidence, it is likely that if the ordered supervised visits progress well, that the children may seek to spend time with the father on an unsupervised basis. The Court is not able, on the evidence produced at the trial, to speculate as to when and if such a transition to unsupervised time will be in the children’s best interests, or either of them.
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 the pseudonym Coppens & Fischer has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J
INTRODUCTION
These Reasons relate to contested parenting orders arising from a dispute between the father, Mr Coppens, and the mother, Ms Fischer. The dispute relates to what orders are in the best interests of their three children, X, born 2011 (now aged 13 years); Y, born 2012 (now aged 11 years); and Z, born 2016 (now aged eight years).
Although the trial that took place in this matter involved property and financial issues, as well, with that dispute being the subject of further written submissions and, as heralded to the parties when the evidence closed on 4 October 2024, the importance of resolving by Court orders in the interests of the children, arrangements as between the mother and father, has prompted the Court to deliver Reasons in respect of the parenting orders now and to reserve, as I have, the property proceeding orders to another date.
CONTEXTUAL HISTORY
The history now provided is entirely directed to the parenting issues and not the disputed property issues.
The father, who was born in 1950 and is now aged 74 years, and the mother, who was born in 1975 and is now aged 50 years, met in a business context in approximately 2003 and pursued a business and personal relationship thereafter.
It is clear from all the evidence that the father, an experienced international businessman with many commercial activities in different parts of the world, including Australia, Country G and the United States, was a significant mentor to the mother in the business activities they were involved in, which, ultimately, by 2008 resulted in the parties becoming joint directors and shareholders in an entity called H Pty Ltd. More about that entity will be revealed in the property proceedings judgment.
Hereafter, statements of fact shall be construed as findings of fact.
Although there was a dispute as to when cohabitation occurred, namely, the change from an intimate and business relationship to more of a relationship as a committed couple domestically, the wife asserts, and I am prepared to accept, that it occurred in or around 2009.
In 2011, the parties’ first child, X, was born and, as the introduction revealed, Y was born in 2012 and Z in 2016.
The mother was involved in commercial activities and property issues of the parties throughout the relationship, but importantly, from around 2018, the wife effectively ceased working outside the home and has been a full-time parent.
The mother is a highly qualified professional with experience in two industry sectors.
The parties physically separated in approximately May 2019 when the children were aged eight, seven and three. It is clear that during the course of the parties’ relationship as co-parents, the mother had been the primary carer, as much because of the age of the children as the fact that the father happily allowed the mother to undertake that role. Furthermore, the father was often engaged in business and commercial activities that caused him to be absent from the home and at international locations. The parties, however, with their children, also enjoyed a somewhat luxurious lifestyle shaped by international destinations of interest to them and their family and often high-priced accommodation.
The evidence shows that during the course of the relationship it was common for the parties to spend most Christmases in the United States, where they had friends and business associates, and in or around Easter of each year in Country G, the country of origin of the father and a place where there were extended family and other business interests.
Although this issue was more relevant to the property proceedings, it is to be accepted on all the evidence that the husband during the course of the relationship was heavily involved in activities at Casinos where he gambled on an almost a daily basis and, it would seem on the evidence, often ran his business from the Casino where he either had accommodation post‑separation and/or where he conducted business activities.
The point is that, whilst the mother was a consistent influence on the children’s development since birth, the father, because of work and other activities, was not as a consistent influence in their life.
Proceedings were commenced by the father in May 2021 in the Federal Circuit Court (as it was then known) in respect of both property and parenting proceedings, and on 28 June 2021 a Judge of that Court made the first Orders in relation to parenting. It provided that the father would spend up to three hours a week supervised with the children, with otherwise the children being and living with the mother.
Between July 2021 and 21 November 2021, the father had approximately 10 interactions with the children in a supervised facility. The notes of those supervised visits are before the Court and are acknowledged by all the parties to be unremarkable. The fact that the visits were progressing well, I infer, caused the Division 2 Judge in December 2021 to increase the amount of time the children spent with the father to four hours a week. Sadly, it seems that the children’s time with the father was not consistent, and the Judge in Division 2 was, as a result at an interim hearing conducted before him in December 2022, persuaded to make a formal order suspending the children’s time with the father.
The effect of both the events and thereafter a confirming order of the Judge meant that the children have spent no time with the father since 2022, save for interviews for a family report. That family report was prepared by Dr F, a consultant psychiatrist, who also importantly in this matter (as he was qualified to do) included a psychiatric assessment of the parties. There is no challenge to Dr F’s expertise and qualifications to make such an assessment. Interviews for the family report took place on 28 April 2023. The report was not released until 20 November 2023.
The evidence is that the father was becoming frustrated with the delay in the production of the report and, in fact, Dr F in cross-examination indicated that the father had, after the release of the report, challenged the payment of the fee for the report because of the delay. Dr F made it clear that he had formed his views and delivered the report before he was asked to refund any part of his fee in late 2023, which he did not do.
The matter progressed through the case management process, both as to parenting and property, before it came before Campton J on 12 April 2024 when his Honour made trial directions for a trial that had ultimately been listed before another Judge and then listed before me, with the trial beginning on 30 September 2024.
When the matter came before me for a case management hearing on 5 September 2024, I was informed that there had been some Local Court proceedings involving the father and the mother’s new partner, Mr E. The evidence suggests that the mother and Mr E commenced their relationship in late 2020. Those State Court proceedings included a conviction of the father of the assault of Mr E in 2024, a conviction which the father is appealing.
The Court is also aware of an apprehended violence order made in mid-2024 in Mr E’s favour in which the father is noted as the respondent. There are no family violence orders that directly relate to the mother and father, other than where the father is restrained by the order, principally for the benefit of Mr E, to not come into contact with any domestic partner of Mr E.
When considering the case management of this matter, the Court was concerned that it had been some time since the children had had an opportunity to express a view about what they sought in relation to parenting arrangements and, in particular, seeing their father. Accordingly, an Order was made for a children’s issues report to be prepared, and interviews were conducted on 3 July 2024 resulting in a report dated 20 August 2024. Prior to the family report writer being cross-examined, and with the consent of the parties, a copy of the children’s issues report was produced to Dr F for his consideration.
The matter commenced hearing on 30 September 2024, as earlier indicated.
PRINCIPLES
Since 6 May 2024, the statutory pathway for parenting orders has altered. Now, there are just two objects in s 60B of the Family Law Act 1975 (Cth) (“the Act”):
(a)s 60B(a) is to ensure the best interests of the children are met; and
(b)s 60B(b) is to give effect to the Convention on the Rights of the Child.
During my term as a judicial officer, I have navigated the changing landscape for parenting orders from s 68F through s 60CC of the Act, the additional and primary considerations, and now a new regime contained within four sections of a new s 60CC of the Act. The destination, however, has never altered. It is what is in the best interests of the children.
The very expansive s 60CC(2) and (3) which had primary and additional considerations has been very much shortened. I note that the presumption of equal shared parental responsibility no longer applies in parenting cases.
Section 60CC provides that when determining a child’s best interests, certain things must be considered:
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a)consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
The general considerations contained in s 60CC(2) prescribe that, for the purposes of the best interests consideration, the Court must consider the following matters:
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
The additional consideration, which has a heading of the right to enjoy Aboriginal or Torres Strait Islander culture is subsection (3) does not apply in this case.
COMPETING PROPOSALS
The father
The father’s case outline filed 16 September 2024 identified that he sought orders as articulated in his seventh further amended Initiating Application filed 24 April 2024, namely:
1.An order that the Father and Mother have equal shared parental responsibility for the care, welfare and development of the children:
(i)[X], (born […] 2011);
(ii)[Y], (born […] 2012); and
(iii)[Z] (born […] 2016).
(“the children”)
2.An Order that the children live with the Mother and that the Father may spend time with the Father under the following arrangements
(i)That the father spend time with the children once per week on the Sunday from the hours 3pm to 6pm;
(ii)That the father shall have telephone contact with the children of the relationship between the hours 8am and 8: I Sam, on 3 mornings per week;
(iii)That the father may spend time with the children as otherwise agreed in writing between the parties.
3.An Order if the Court think fit, that the Father's time with he children be supervised and that the Mother may if she thinks fit record the telephone calls between the Applicant and the children.
4.[this Order is blank as it has been removed from a prior version]
5.An Order directing the parents to be respectful to each other at all times in their dealing with each other and in front of the children;
6.An Order permitting the father to attend the children's sporting events, provided that he observes the events from the other side of the venue to the mother.
(As per the original)
The mother
The mother initially sought orders consistent with her fourth amended Response filed 9 September 2024, as set out at Appendix One to these Reasons.
In essence, the mother sought orders that the children live with her; that she have sole parental responsibility for decision-making; and that the children spend together on a supervised basis three hours with the father once per school term at a contact centre.
The mother, by proposed order 8, sought self-executing orders should the father fail to attend prescribed visits. The father was to be at liberty to send birthday and Christmas cards and gifts to the children.
Proposed order 10 sought some restraints pursuant to s 68B of the Act, which Senior Counsel for the mother described as nuanced arrangements for the welfare of the mother and the children, and Appendix One identifies provisions in relation to travel and keeping each other informed of developments in the children’s life proposed by the mother.
This was a case where there was no Independent Children’s Lawyer appointed, nor was it necessary.
Before dealing with the evidence as relevant to the issues in dispute within the matrix in the relevant s 60CC(2) factors as earlier identified, it is appropriate to acknowledge that by final submissions the mother’s limited time provisions in her case outline changed somewhat significantly as a result of the evidence she heard and, I infer, with the benefit of legal advice. I give credit to the mother in that regard as the parenting orders she sought otherwise were prepared at a time when the mother did have the benefit of both the family report of Dr F and the children’s wishes report.
Mr Cummings of Senior Counsel for the mother indicated in his final oral submissions that the mother would support the children spending supervised visits more regularly than once a term, but certainly not weekly as sought by the father. The mother still opposed telephone calls for the reasons set out in her trial affidavit at paragraph 174 and thereafter.
CHILDREN'S WISHES REPORT
Arising from the children’s wishes report, the following views of the children were recorded:
X
(a)X’s views (at paragraphs 7 to 17) are recorded and he presented as “a polite and quietly confident young man” currently in grade seven at J School. He described a happy home life and positive relationships with his mother, Mr E and siblings. He described his relationship with this father as “not close”. He had some limited understanding of a “restraining order” against his father;
(b)X said his relationship with his father prior to separation was “good”. He recalled an incident when the father tried to return to the home and another incident when the father attended sports training and made hurtful comments about the mother – which upset him. Nonetheless, after that incident he and his siblings spent time with the father without supervision which was “enjoyable”;
(c)X said he thinks his father wants to see him and his siblings and that he misses his father and would like to see him but would not want to “jump straight back in” to spending lots of time with him. He prefers to spend time once a week after school rather than weekends. He would be happy for the time to be unsupervised and could not think of a reason for time to be “supervised”, and he felt safe with his father. When supervised time had occurred, the father did say some negative things about the mother; and
(d)He would accept supervised time over the option of no time. He would be happy to have some phone calls with his father and indicated his father messages him sometimes. Whilst unsure of the mother’s wishes, he thinks she would not mind he and his siblings were spending time, but not overnight. He said that if no time was ordered that he would be “sad” and “frustrated” but would comply.
Y
(e)Y’s views (at paragraphs 25 to 34) were recorded and he presented as a “very polite, calm, thoughtful and friendly young man”, currently in grade five at K School. He described, like his siblings, a happy home life and positive relationships. He found it hard to recall the relationship with his father prior to separation as he was “very young” and he did not see much of him;
(f)Y does not think about his father much and gets a bit “emotional” when he does, although he said he “loves his father”. He enjoyed spending time post separation with his father, although having a supervisor, was “kind of weird” and sometimes his father would get angry with the supervisor. Y did not feel unsafe with the father; and
(g)Y initially said he does not want to see his father, but was unsure why he felt that way, but suggested it was because the father had never really been around in the past. After he was told of his siblings’ views, he expressed concerns about spending no time with the father, and his wish to “mend” his relationship, which might never happen if all time ceases. His preference is for time to be supervised and in the company of his siblings. He is not prepared to spend overnight time. He found previous telephone calls “too intense or frequent”.
Z
(h)Z, the youngest child of the sibship group, expressed her wishes which were recorded at paragraphs 18 to 24. She is a in grade two at K School and “seemed very happy and playful” in the childcare setting. Home life was happy and she has “positive” relationships in the home and at school;
(i)Z said she loves her father but has not seen him for a long time. Time spent with her father after separation was “fun” but she seemed confused about supervised visits. She was unsure why she stopped spending time with her father, but she “feels safe with her father and could not recall him behaving in any manner that was troubling to her”; and
(j)Expressing an interest in “equal time” came out of the blue, and when supervised time was explored (“like a babysitter”), she said this would be kind of creepy. Overall, she wanted to see her father, but with her older siblings also present.
The report writer, Ms L, concluded that all three children wish to see their father with more weight to be applied to the wishes of both X and Y, because of their age and stage of development. Their expressed views were “balanced and thoughtful”. Z is still quite young, and her views did not appear to this report writer to be “reasonably well formed” and are reflective of her developmental stage and lack of time with the father.
I regard the wishes of the children have expressed as genuine and helpful.
The author of the report was not required for cross-examination. There is no reason why I would not accept what the children expressed as being reflective of their genuine views and wishes. It was on that basis that Dr F, before he gave evidence in cross-examination, had the benefit of considering the report interviews, noting he had not seen the children since April 2023 – nearly 18 months earlier.
PSYCHIATRIC REPORT
As already indicated, Dr F, a qualified psychiatrist, was retained to not only prepare a family report, but also to undertake a psychiatric assessment of both parties. In short, his assessment and opinions in respect of the parties were as follows.
Mother
After interviewing the mother, Dr F at page 21 of his 47-page report, summarised his conclusions in respect of the mother’s mental status examination, observing the mother’s visible distress when she noted the father arrive. She was fearful at times during the interview when recounting the history, however her thoughts were “logical and goal directed” and “there were no psychotic symptoms”. Dr F made no psychiatric diagnoses of the mother.
Father
After interviewing the father, Dr F (at page 28 of his report), summarised his conclusions in respect of the father’s mental status examination, opining “he had superficial rapport and made good eye contact” but demonstrated “irritability when he was questioned about his behaviour at Court”. Like the mother, his thoughts were “logical and goal directed”. Although Dr F opined he had no psychotic symptoms “there were prominent persecutory themes, and he repeatedly referred to the nature of his relationship with the mother in monetary terms by boasting of his great wealth and generosity. He described being subjected to supervision or scrutiny as insulting and humiliating and did not accept the validity of concerns held by the Court or other professionals about the children’s psychological safety in relation to his behaviour”. Dr F diagnosed the father as having a personality disorder.
As might have been expected, Dr F was cross-examined by Counsel for the father, Mr Provera, about his diagnosis of the father. I deal with that cross-examination later in these Reasons. It is fair to acknowledge that in preparing his family report, it is reasonable to infer that Dr F, having formed a view as to the psychiatric profile of each parent, would have had those assessments in mind. From his report, the following critical pieces of evidence should be recorded in these reasons for context:
(a)The observations undertaken between father and the children (from lines 831 to 900 of the report) are important. Whilst at that time (28 April 2023) the children had not spent any time with the father for some months, the three children greeted the father “warmly and all hugged him enthusiastically”. The father showed the children, on his phone, that he had deposited monies into a bank account for them and discussed the merits of earning interest. As he continued to demonstrate his “knowledge” about financial matters, the children appeared disinterested, a state to which the father seemed oblivious. Discussions about activities, including schooling more actively engaged the children who were eager to share events, although Dr F observed at times the father seemed “dismissive”. A theme during the session seemed to be the awareness the child Z had of the “countdown clock”. It was explained by Dr F that he uses a clock so that the children were aware the observation session had a time limit. This issue seemed to add to Z’s distress, where she repeatedly stated to the father “we’ve only got six minutes left”. When Z asked the father about an issue, she seems to have thought was the reason the father was not seeing them (I infer the apprehended violence order) ending in six months, the father “definitively said that ‘I might just have to break the rules’”, prompting Z to cry. Dr F records that rather than comfort Z, the father turned to Dr F “raised his voice, and yelled towards the writer that ‘this is un-fucking-believable’, whilst Z was in his lap, and thumped his fist on the desk to emphasise his anger”. The father gave contrary evidence about this incident and properly Dr F was cross-examined about this observation in his report. I accept Dr F’s version;
(b)Clearly this incident, and the awareness the session was coming to an end, caused the emotions of all three children and the father to escalate. Y tried to suggest a solution but the father said, “that this is like a game of strategy, just like chess”. When Z’s concerns about not seeing her father were expressed and sought reassurance from the father he said “if they keep harassing me, then you can come to me whenever you are ready. It can be before 18 if you really want to”. At this point, the 20-minute timer rang, and as the father prepared to leave, both Z and Y cried as their father was leaving and all three children sought to hug him. The father was observed to be tearful and crying as he left;
(c)The observations of the mother with the children (recorded at lines 900 to 940) are fairly unremarkable and demonstrate, in my assessment, the strength of the mother’s bond with the children and her empathy and insight. The children had the confidence to express to their mother, in the presence of Dr F, their desire to see more of their father. The mother, even in that unusual environment, “was observed to set appropriate boundaries and was able to engage the children in playful banter and did not simply acquiesce to their requests;
(d)The children’s interviews with Dr F are recorded at lines 940 to 1010 of the report, and considering their more current interviews were captured in the specific issues report discussed earlier, no useful purpose is served by recoding in these Reasons statements made by the children in April 2023. This is especially so where Dr F said, and I agree, that after he read the specific issues report, what the children told him was similar to what was in that report;
(e)Dr F, at lines 1015 to 1100, dealt further with why he reached the conclusion that the father is a person “affected by a […] personality disorder”. I accept his diagnosis, which Dr F did not deviate from during the cross-examination by the father’s Counsel. I particularly adopt, on all the evidence, the opinion expressed that “the father’s vindictiveness escalated after he learned that the mother had entered a new relationship. [Mr Coppens’] symbolic replacement by another man in the life of the mother, and by extension, in the lives of the children, would have had the effect of being a brutal narcissistic injury, and his intention to intimidate the wife “served a strategic imperative that was consistent with his pattern of interpersonal interaction throughout the course of his life”;
(f)In circumstances where it is not in issue that the children will live with the mother who has demonstrated a capacity to meet the physical and emotional needs of the children (at times under some pressure from the father), I will only now further record some aspects of the family report that relate to the father and what Dr F says supports his concerns about the father, namely:
(i)the father’s pervasive personality disorder effectively blinds him to the needs of the children and this prevents him from being able to appreciate that the children’s needs differ from his own;
(ii)Dr F opined the father presents a significant risk of emotional and psychological harm to the children;
(iii)the father’s dismissive attitude towards the potential for this psychological harm, having repeatedly described it as a “fictitious invention on behalf of the mother”, suggested that he was both unable and unwilling to modify his behaviour; and
(iv)whilst the father could consider accessing psychotherapy to understand the developmental origins of a personality structure, Dr F considers that he is unlikely to do so. I agree;
(v)noting that Dr F opined, and I agree, that both parties are not willing to communicate with the other so as to facilitate a working relationship to support the child, the mother’s reluctance was shaped by her fear of the father, whilst the father presented as “being unable to reflect that he may have a role in facilitating communication with the mother” – and that she is the one who should change and desist from “making lies about violence that never existed”;
(vi)at line 1358, Dr F opined that the father “was likely to continue to harbour resentfulness towards the mother for the foreseeable future” and as a result, supervision of contact “is the only circumstance that will enable [Mr Coppens] to have contact with the children and allow him to share with them his love for mathematics, physics, the natural worlds, and other intellectual pursuits, whilst preventing him from making denigrating comments about the mother to the children or seeking information about the mother’s partner from the children”.
Dr F indicated that “weekly contact for up to six hours in a supervised setting would be appropriate and sufficient for the children and their father to maintain a meaningful connection”.
It is appropriate to note that Dr F did not recommend any telephone or video contact – no doubt also shaped by the suggested frequency of physical unsupervised contact.
As will be seen, on all the evidence, I am not satisfied that weekly visits, strongly opposed by the mother, is workable considering the stability and structure the mother has created in her home and some of the concerns raised by the children, particularly X.
As indicated, Dr F was the subject of cross-examination as the last witness in the hearing before me. Some of the additional evidence provided from that cross-examination can be summarised in as follows:
(a)The views expressed by the children in the specific issues report were not dissimilar and, in fact, broadly consistent with those expressed to him. They were consistent with the children ideally wishing to spend time with their father, and that his observation of the contact reports confirmed the children were happy to see their father. There was, for example, no record that the children felt upset or intimidated during those supervised visits. The fact that the father during supervised visits made an effort to involve the children in their cultural history as of Country G, Dr F opined, would reflect some awareness and insight by the father into the children’s feelings. This was demonstrated by the father producing a special meal for X;
(b)Dr F was made aware of the history of conflict and police involvement but had formed a view that there is no evidence of significant physical abuse between the father and the children. When asked by Counsel for the father to describe the observations that he observed between the children and the father, Dr F was not prepared to describe them as “positive”. In particular, Dr F, as his report made clear, found the father’s reactions at the conclusion of the observation where he said and maintained that the father had exhibited anger, used inappropriate language and banged his hand on the desk, was a reaction he said he has rarely seen in such observations, in his experience;
(c)I infer that this reaction by the father, as observed, is inconsistent with the general desire of parents in such observations to present themselves in the most positive light as possible. As would be expected, Mr Provera, Counsel for the father, challenged Dr F in respect of his assessment of the father and, in particular, his diagnosis of the father, as earlier set out in these Reasons. Nothing in the cross-examination of Dr F caused the diagnosis as made by him to change;
(d)I accept his diagnosis, however, as Dr F himself indicated, the father’s impressive international business record was consistent with the father’s belief that he is a highly intelligent person, speaks multiple languages, and that his impression of himself is not delusionary or unfair. Dr F maintained that some of the father’s behaviour, both during the course of the matter and during the observations, showed a lack of empathy and demonstrated that the father felt he was intellectually superior;
(e)Dr F was taken through the personality disorder criteria (tendered as Exhibit 11). Dr F rejected that he merely adopted the mother’s position in relation to the history, saying that he made his own assessment. In particular, he held to his view that the father was challenged by being “symbolically replaced” by the mother’s new partner, which can cause a person with a personality disorder to react as he has done so, and as is reflected by recent engagements with Mr E, which have been the subject of the family violence proceedings. Dr F continued to hold the view that the father’s pervasive disorder effectively blinds him to the needs of the children, and this prevents him from being able to appreciate that the child’s needs may differ from his own;
(f)These potential emotional challenges arising from the father’s behaviour did not reach a level where Dr F felt the children were at any risk of physical or sexual abuse in the father’s care, but he does present, in Dr F’s opinion, as a significant risk of emotional and psychological harm. Dr F was asked to reflect on the observations and the exchanges between the father and the children. Dr F says the comments made by the children speak for themselves and, in particular, for example, that Y, whilst denying that the father’s expectation was a problem, nonetheless exhibited behaviour and comments which suggested he was aware of the expectations of his father;
(g)Dr F was asked to consider whether his view supporting supervised visits was likely to change into the future. He conceded that, as the children get older and get a better understanding of their father, moving to unsupervised visits might be appropriate. A further assessment at that time might be of assistance, but age alone, he indicated, was a crude measure. Dr F did not believe it was beneficial for the children because of potential conflict and interruption in their life for telephone or video contact to occur, although my impression was that if the children requested it occur, he would not oppose it;
(h)Under cross-examination by Mr Cummings of Senior Counsel for the mother, and in circumstances where, clearly, the mother was contemplating whether her case outline proposal for four supervised visits a year would meet the children’s best interests, Dr F opined that he was strongly impressed by the mother and that she wanted the children to have a good relationship with their father. He accepted that frequency of contact is necessary to form and nurture a relationship, and that the children identify with their father now, and building on that could be important for their long-term identity and understanding of their place in the world. He said that all the evidence suggests the children hold genuine affection for their father, but that significant interaction between the children and the father could affect the mother’s parenting capacity and, where the children are doing very well at the moment, he would be concerned that the frequency might disrupt that stability; and
(i)Dr F opined, on reflection of the recent special wishes report, that the children would probably be disappointed to spend only four visits a year with their father. They were well aware of the dispute and disagreement between the parents. Overall, Dr F was unable to identify any particular way in which the parents might move forward (that is, from supervised visits if ordered to unsupervised visits) including by using someone like a parent coordinator, because Dr F took the view the father was not likely to accept the view of any external person where that person’s view was not the view of the father.
I generally support and accept the opinions of Dr F.
STATUTORY PATHWAY
In a narrated fashion, I make findings in relation to the statutory pathway and, in so doing, I rely upon but do not repeat earlier findings made in these Reasons.
Section 60CC(2)(a) provides that the Court must consider:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
I am satisfied on all the evidence that, at this point in time, the father does present as an unacceptable risk of psychological harm to the children, both as a result of his fixation at times on the mother; his view of his superiority as a parent, either intellectually or otherwise, and his underdeveloped insight and empathy to the developmental needs of the children. I do not doubt that the father deeply loves the children.
In my view, the evidence, at this stage, and bearing in mind the length of time the children have not seen their father, compels the Court to consider time being supervised.
Section 60CC(2)(b) requires the Court to consider any views expressed by the children. I adopt the evidence set out in the specific issues report and the earlier statements made by the children to Dr F for the family report. These children are strongly bonded, loyal and supported entirely by their relationship with their mother. She has, as a result, become the centre of their stability and with little time with the father, they rely upon her on a day-to-day basis. However, as Counsel for the mother coined, the father – a generation older than the mother – may well be regarded by the children as somewhat of a “curiosity”. He has worldly experience; a high intellect and a strong desire for the children to benefit from their innate skills, talents and supportive education to reach their potential.
The children should be entitled, as they seek, to enjoy the benefits of interaction with their father, provided it does not unduly affect their relationship with their mother, which is their primary attachment. In my view, there is nothing in the wishes expressed by the children that would challenge their desire to live with the mother. However, I agree that their wishes, as expressed, reflect a degree of loss of any relationship with their father through the period they have not been seeing him and manifest a desire to have some regular contact with him.
Thankfully, these children do not carry any significant developmental challenges such that, with time and understanding, I am satisfied that they will be able to see their father for who he is. For Z, it would have been a very confronting experience to be exposed to her father’s anger at the observations with Dr F (although Z did not raise the issue during the specific issues report interview). Nonetheless, that has not changed her desire, supported by her older brothers, to spend time with her father. Her life history with her father is significantly less than that of the boys. However, my impression of the evidence is that the father sees his daughter as a special “princess” who he desperately wishes to have a relationship with.
In circumstances where the only other father figure in these children’s lives appears to be a godfather who lives in Country G, there is something to be said for the value that the biological father can bring to the lives of these children, including, of course, young Z.
I raised during the cross-examination of Dr F the fact that these children have, by reason of their father’s ethnicity as a Country G person, and also the connection with Country G that arose from regular trips to that country and exposure to cultural events, meals and the like, that it is a part of the children’s cultural needs that they have a relationship with their father. I did not form a view from the evidence of the mother that she discounts the importance of these cultural ties, but she, not surprisingly, is not connected with the Country G community in the same way as the father appears to be. She pointed in her evidence in cross-examination to the relationship that the children have with their Country G godfather. I regard the cultural needs of the children to be best encouraged by having regular visits with the father where that aspect of his history and their heritage can be exposed and explored.
In circumstances where the children’s residence is not disputed, that being with the mother, I do not require to say more about the capacity of each of the parents to provide for the children’s developmental, psychological, emotional and cultural needs than have already been indicated. As I explained, because of the conflict and the power imbalance between the mother and the father, it is my view that with the children living with the mother she should have sole decision-making responsibility.
One of the issues that arises in this case for consideration by the Court is the ability to move from a supervised order regime to an unsupervised regime. I deal with that in my discussion below, but, put simply, if the father commits and is seen by the children to commit to an ongoing relationship with him, and if the children are able to obtain some value from those interactions, which I infer is most likely to occur, then the mother will be confronted with an ongoing desire for the children to either spend more time or certainly time without supervision with their father.
I make a finding that, on the evidence, the mother was, at this time, anxious about accepting unsupervised time, but has the capacity, willingness and, I think, insightful desire to support the children having greater time with the father, if she can be satisfied they will not be at risk. Because of the uncertainty about when that point in time might arise, bearing in mind the limited amount of time the father has spent with the children over the last few years since separation, it would be overly speculative to try and identify a particular time or age (accepting Dr F’s evidence that age is a crude measure).
However, the orders I make alert the parties to the desirability of reaching some understanding about moving from supervised time to unsupervised time in the future if the circumstances and the best interests of children so warrant. In that regard, I am mindful of a factor not currently prescribed, but one which the Court takes into consideration, namely, making orders which are least likely to lead to further proceedings.
The dynamics between the mother and father, by reason of personality and the conflict that has engendered, particularly around property proceedings, does not suggest any significant movement in their behaviour so far as parenting is concerned. How they will react to the ultimate property orders the Court makes is, of course, an unknown. I could not discount the prospect that those orders could cause hurt or disappointment such that the children become, again, the focus of their parents’ conflict. Hopefully, that will not occur. Nonetheless, the orders which I have decided to make do, in my view, meet the requirement that is important, namely making orders least likely to lead to further proceedings.
DISCUSSION OF DECISION MAKING
I put to Dr F, and he agreed, that there is a power imbalance that exists between the mother and the father. It is not merely a question of their difference in age, but it very much arises from the way in which their relationship was formed and developed during a period where the mother, effectively, worked for the father. The father identifies himself as the major mentor and promoter of the mother’s career, and, in a sense, believes the mother does not show the recognition of his support for her. However, at the age the parties are now, one might have thought that the power imbalance has equalised. I am not sure that is the case.
My impression is that the mother, whilst respecting the father in many ways, is still capable of being intimidated by the power of the father’s personality. The fact that she was upset even seeing him at the interviews for the family report, as observed by Dr F, demonstrates the mother’s transition is not complete yet.
There is no evidence that decisions made since separation, almost entirely by the mother, have been inappropriate. In my view, whilst the father would have a perspective that could be of value to major long-term decisions for the children, the risk of any order for joint decision‑making is that it will create further conflict that needs to be resolved by a Court.
In my view, it is in the best interests of the children that the mother have sole decision-making responsibility for major long-term decisions, but that she should advise the father when she has made such a decision.
SPENDING TIME ORDERS
For the Reasons given, I am of the view that parenting arrangements between the children and the father should provide more frequency than one visit a term — that is four visits a year. I regard weekly visits as, on the evidence currently, likely to be intrusive and not in the best interests of children.
In my view, visits approximately every three weeks would be appropriate, with some of those visits in the region of the children’s birthdays so that the father can celebrate the children’s milestones with them. In that regard, as the orders which I make reflect a visit proximate to Y’s birthday would meet an ability to celebrate a holiday period, and a visit at another holiday time and Z’s birthday would meet those celebratory events as had been shared by the family in the past.
Doing the best I can, the orders provide for visits on a three week rotation for up to four hours if that can be accommodated by the contact centre each month as agreed between the parties. Visits will need to be supervised because of the state of the current evidence and uncertainties about the father’s reaction to ongoing supervised time. Put simply, if the father does not persist with visits there is every likelihood the children will be disappointed, even upset, but, at their age, will move on with their life and that may make any future connection with the father and the children more difficult to maintain.
The father raised concerns about the prospect of time finishing if he was, on the mother’s self‑executing orders, in hospital and/or overseas. The orders I make provide for the father to give notice to the mother of those events. Nonetheless, if the father does not prioritise the opportunity for regular supervised time with the children, it is unlikely that the circumstances will ever rise where the children will seek or benefit from unsupervised time.
I have decided, on the submissions made by Mr Cummings of Senior Counsel, to make the orders sought pursuant to s 68B of the Act as sought by the mother. I acknowledge my expressed concern that arises from doing so, namely that enforcement of such orders through the family law system can be clunky and cause delay, but I think the orders as nuanced are appropriate, at this point in time. Having said that, if the children’s relationship with the father develops in the way that the Court hopes can be achieved by regular supervised visits, then there is likely to be a point in time that the children would appreciate being able to demonstrate their sporting, cultural or musical skills to both of their parents in a public forum.
The interaction between the father and the mother’s partner that has caused at least (subject to the appeal being determined) convictions and orders to be made, identifies a risk of having the parents close to each other. However, considering the intellectual strength of the mother and the father (and I infer Mr E, although he gave no evidence to the Court), they should be able to act reasonably in a public forum and not expose the children to the embarrassment and pain of seeing people who love and care about them acting inappropriately, as I am satisfied on the mother’s evidence (although disputed by the father) has occurred on occasion with at least the father’s inappropriate language.
In circumstances where the father asks – almost demands – and deserves respect as the children’s father, he could hardly expect the children to do so when there are examples of his denigration and nasty language directed towards the mother at times past in their presence. He should be better able to control, at his age, his behaviour, in that regard. The failure to do so is likely to cause more damage to his relationship with the children than the children’s relationship with the mother.
For the reasons given, the orders which appear at the commencement of this Judgment are, at this stage on the evidence, in the children’s best interests.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 31 October 2024
APPENDIX ONE
PARENTING
1.That all previous orders be discharged.
Parental Responsibility
2.The Mother shall have parental responsibility for X born 2011, Y born 2012 and Z born 2016 (collectively referred to as the children), and sole decision making authority in respect of all decisions concerning major long term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the children.
3.That the mother have sole parental responsibility for making decisions concerning all other aspects of the care, welfare and development of the children on a day-to-day basis during periods when the children are living with her.
Live with
4.That the children live with the mother.
5.That the children spend time with the father:
(a)all three together, on a supervised basis for a period of three (3) hours under supervision by a Registered Contact Centre proximate to the children's home (“the Centre”) once per school term on a date and time as nominated by the Mother in writing or as otherwise agreed between the parties in writing; and
(b)the contact occur at a list of venues to be nominated by the Mother. if venues cannot be agreed then the Contact Centre.
6.That within thirty (30) days of the date of this Order, each parent shall enrol with the Centre and do all acts and things required to undertake any enrolment process.
7.That the father shall be responsible for all the costs of the Centre including enrolment.
8.That in the event that:
(a)the mother and the father comply with Order 6, then the time between the children and the father prescribed at Order 5 shall commence subject to the availability of the Centre;
(b)the father does not comply with Order 6, then Order 5 for time between the children and the father shall be discharged;
(c)intake/enrolment processes are completed and the father fails to attend the contact visits to spend time with the children on two consecutive occasions, then Order 5 shall be discharged:
(d)the children are unwell or are on holidays, the mother must give notice to the father as soon as reasonably practical and within one (1) month of the missed contact visit. provide the father with the opportunity to make up that lost visit at an alternate time;
(e)a visit report from the Supervisor shows inappropriate conduct by the father in relation to the children, including but not limited to violent or aggressive outbursts. denigrating the mother or questioning the children on the mother or their homelife or discussion of the Family Court Proceedings then Order 5 for time between the children and the father shall be discharged.
9.That the father shall be at liberty to send birthday and Christmas cards and gifts to the children and the mother shall forthwith provide the cards and gifts to the children unless she considers the content of them to be inappropriate.
Restraints
10.That pursuant to s 68B of the Family Law Act 1975 (Cth) ("the Act"). the father and anyone on his behalf is restrained and an injunction hereby issues restraining the father and any such person from:
(a)attending at or contacting the children's educational facilities, sporting or extra‑curricular activities. counsellors or medical practitioners in any capacity whatsoever; and
(b)except as set out in Order 5, contacting or approaching or attempting to approach the children in any way: and
(c)discussing with the children any details pertaining to the Federal Circuit and Family Court of Australia proceedings, criminal proceedings or any family law issues involving him or the mother; and
(d)interrogating or questioning the children about matters that relate to family law issues or the mother's private life; and
(e)denigrating or insulting the other party in the presence or hearing of the children and the Father shall use his best endeavours to ensure that others do not denigrate or insult the other parties in the presence or hearing of the children.
Travel and Passports
11.That the mother will hold the Australian passports for the children.
12.That pursuant to s 11(b) of the Australian Passports Act 2005 (Cth) the mother is authorised to obtain and maintain an Australian travel document for each of the children without requiring the father's consent or signature.
Notification and alerts
13.That in the event of an emergency involving the children, including but not limited to any serious injury or illness, the mother shall make necessary immediate arrangements for the children and notify the father as soon as possible.
14.That the mother and father shall keep each other informed at all times of their current email address.
15.That the mother shall not less than once each six (6) months, provide to the father by email a report as to the health, educational progress and general wellbeing of the children.
16.That the Applicant pay Respondent's costs of and incidental to this application.
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