Cross & Cross (No 2)
[2025] FedCFamC2F 518
•28 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cross & Cross (No 2) [2025] FedCFamC2F 518
File number(s): DGC 1007 of 2021 Judgment of: JUDGE JENKINS Date of judgment: 28 April 2025 Catchwords: FAMILY LAW – PARENTING – family violence – coercion and control – risk to children of enmeshed relationship with father – school absences – unacceptable risk of harm to children which can be ameliorated by limited overnight time – father unwilling or unable to communicate with the mother – restraints on attendance at school and communication with children at school – sole parental responsibility to the mother. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 60CG, 65D
Cases cited: Adamson & Adamson [2014] FamCAFC 232
Deiter v Deiter [2011] FamCAFC 82
Isles & Nelissen [2022] FedCFamC1A 97
Pickford & Pickford [2024] FedCFamC1A 249
Whisprun Pty Ltd v Dixon [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 165 Date of last submission/s: 3 February 2025 Date of hearing: 21 – 23 October, 12 – 13 & 20 December 2024 Place: Dandenong & Melbourne Representative for the Applicant: Appearing in person Counsel for the Respondent: Mr O’Grady Solicitor for the Respondent: Sayer Jones Counsel for the Independent Children's Lawyer: Ms Goldthorp Counsel for the Independent Children's Lawyer: Walter Family Lawyers ORDERS
DGC 1007 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CROSS
Applicant
AND: MS CROSS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
28 APRIL 2025
THE COURT ORDERS ON A FINAL BASIS THAT:
Decision Making
1.The Mother be solely responsible for making decisions on long-term issues for X, born in 2010, and Y, born in 2012, (“the children”) subject to notifying the father within seven (7) days of making any long-term decisions for the children.
Live with and spend time arrangements
2.The children live with the Mother.
3.Unless otherwise agreed in writing between the parties the children spend time with the Father as follows:
(a)During school terms in a fortnightly cycle commencing in the first week school resumes (“Week 1”) as follows:
(i)In Week 1, and every other week thereafter in school terms:
A.On Wednesday from the end of school (or 3:15pm if the children do not attend school) until 7:00pm that day; and
B.From the conclusion of school on Friday or 3:15pm if the children do not have school that day until 5:00pm on Sunday.
(ii)In Week 2, and every other week thereafter in school terms:
A.On Wednesday from the end of school (or 3:15pm if the children do not attend school) until 7:00pm that day.
(b)During school term holidays for one week from 12 noon on the first Saturday until 12 noon on the middle Saturday.
(c)During the school summer holiday period for two non-concurrent one-week blocks on dates agreed in writing and failing agreement for the first and third weeks of January from 12 noon on Saturday until 12 noon the following week.
4.Notwithstanding any other order to the contrary, which order be suspended during the operation of the following:
(a)The children spend time with the Father from 6:00pm on the Saturday that precedes Father’s Day until 7:00pm on Father’s Day;
(b)The children live with the Mother from 6:00pm on the Saturday that precedes Mother’s Day until 7:00pm on Mother’s Day.
5.The children spend time with the Father on each of the children’s birthdays, if they are not already doing so pursuant to the Orders as follows:
(a)From 3:30pm to 5:30pm if a birthday falls on a school day; and
(b)Between 10:00am and 2:00pm on a non-school day.
6.In the event either of the children’s birthdays fall on a Saturday or Sunday when the children are spending time with the Father pursuant to these Orders, they shall be returned to the Mother’s care for a period of four hours at times to be agreed and failing agreement from 11:00am to 3:00pm.
7.Notwithstanding any other order to the contrary, which order be suspended during the operation of the following:
(a)The children spend time with the Father from 4:00pm on 24 December until 4:00pm on 25 December in even years; and
(b)The children spend time with the Father from 4:00pm on 25 December to 4:00pm on 26 December in odd years.
Changeover
8.If changeovers do not occur by the children being collected from school, then changeover take place at a location agreed by the Mother and Father in writing and, in default of agreement at the Mother’s home address, at the commencement of the time, and at the Father’s home at the conclusion of the time.
Restraints
Telephone and Video communication
9.The Father be and is hereby restrained by injunction from speaking or communicating with either of the children by telephone or digital communication methods or video communication:
(a)Between 8:45pm and 7:30am; and
(b)At any time that the children are in attendance at school between 9:00am and 3:15pm.
Denigration
10.The Mother and Father each be restrained by injunction from:
(a)Denigrating the other within the presence or hearing of either child; and
(b)Allowing the children to remain in the presence or hearing of any third party denigrating the Mother or the Father.
Mobile Phone Applications
11.The Mother be and hereby is solely responsible for controlling and making all decisions relating to the children’s mobile phones, including but not limited to downloading or deleting applications.
12.Within 7 days of these orders the Father do all acts and things required to transfer each of the children’s iCloud accounts from being under his control into the Mother’s control.
13.The Father be and hereby is restrained by injunction from:
(a)Providing the children with telephones or any other electronic device by which he may communicate with the children; and
(b)Deleting or removing any application from the children’s mobile telephones;
(c)Downloading or adding any application onto the children’s mobile telephones;
(d)Changing any settings on the children’s mobile telephones; and
(e)Encouraging the children or any other person to do what he is prohibited by these injunctions from doing.
Miscellaneous
Extra-curricular activities
14.The Mother and Father each be at liberty to attend all school events to which parents are ordinarily invited, save that if the events occur on a school day the Father only be permitted to attend such events after 3:15pm.
15.The Mother and Father each be at liberty to attend all of the children’s extra-curricular and sporting activities, save that the Father only be permitted to attend such events during his time with the children.
School
16.The Mother and Father be at liberty to obtain copies of school newsletters, school notices, school reports, school photograph order forms and other documents provided by the children’s school to parents AND, to the extent required, the Mother and Father do all acts and things necessary to enable the other to obtain the same.
17.The Mother and Father be at liberty to access Compass School Manager platform AND, to the extent required, the Mother and Father do all acts and things necessary to enable the other to access the same.
18.The Father be and hereby is restrained by injunction from attending B School (“the School”) during regular school hours.
Health
19.The Mother and Father be at liberty to obtain the children’s health records and communicate with the children’s healthcare professionals AND, to the extent required, the Mother and Father do all acts and things necessary to enable the other to obtain the same.
20.The Mother and Father notify the other as soon as practicable of any serious accident or serious illness, including any illness that causes the children not to attend the school, whilst the children are in their care AND inform the other of:
(a)Any treating professional upon whom the children have attended, or it is proposed they attend upon; and
(b)Any medication prescribed for the children.
Parental Communication
21.The Mother and Father communicate about the welfare of the children and parenting arrangements:
(a)By telephone calls and SMS text message in emergencies; and
(b)By Our Family Wizard at all other times.
22.The Mother and Father each do all acts and things required to maintain an Our Family Wizard Account, including paying their own subscription fee.
23.The Mother and Father give each other not less than 30 days’ advance notice of proposed changes to their own residential addresses.
24.The Mother and Father each inform the other as soon as practicable, and in any event within 48 hours of changes to their own mobile telephone numbers and landline numbers, which the parties can use for the purpose of implementing these orders.
25.The Mother and Father each respond in writing to any written request made by the other to vary these orders within 48 hours of receiving such a written request being sent and thereafter ensure they read any ongoing communication arising from the request and respond within 24 hours of same.
Independent Children’s Lawyer
26.Upon the Independent Children’s Lawyer communicating the outcome of these proceedings to each of the children, the Independent Children’s Lawyer’s appointment be discharged.
Providing Orders
27.The Mother and Father be at liberty to disclose a copy of these orders to:
(a)Any school at which the children attend; and
(b)Any medical professional upon whom the children attend or upon whom it is proposed they attend.
Prior Orders and Extant Applications
28.All Parenting Orders made prior to this day be discharged.
29.All extant applications be otherwise 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS:
This matter concerns two children, namely X, aged 14 years old, and Y, aged 12 years old (“the children”).
The children currently live in a shared care arrangement between the parties, the applicant father, Mr Cross (“the father”) and the respondent mother, Ms Cross (“the mother.”) Time is currently configured in a “5, 2, 2, 5” arrangement each fortnight during school terms, and otherwise a week about arrangement on school holidays.
Although the father says that he has some serious concerns about the children in the mother’s care, he promotes a continuation of the current arrangement on a final basis, including orders for shared responsibility for decision making.
The mother seeks the children live with her, that the father’s time be substantially reduced to daytime only during school terms and limited overnight in school holidays, as she says the children are at unacceptable risk of harm for any longer periods of time in the father's care. The mother also seeks an order for sole parental responsibility for decision making. In the alternative, she proposes the father have one overnight each alternate weekend with the children during school terms, from Friday to Saturday.
At the conclusion of the matter, the Independent Children’s Lawyer (“the ICL”) proposed orders whereby the mother has sole parental responsibility for decision making, the children live with the mother, and the children spend time with the father from Friday afterschool until Sunday afternoon on alternate weekends, in addition to one evening meal each week. The ICL also proposed the children spend time with the father for one week in each term holiday and for two non-consecutive one-week blocks during the long summer school holidays.
BACKGROUND
The parties’ relationship commenced in or about 2006 or 2007. They married in 2010 and separated on 28 February 2020.
X was born in 2010 (“X”) and Y in 2012 (“Y”).
X was diagnosed with an illness shortly before Y was born and spent three years in treatment. I understand that X’s condition is in remission but is monitored by her treating health practitioners.
In 2018 the father had a serious workplace accident and took time off work until 2023. He is currently unemployed.
The father lives in a rental property in Suburb C. He has not re-partnered.
The mother is a health care worker. In 2021, she re-partnered with Mr D (“Mr D.”) She lives with Mr D in Suburb E.
Mr D has two daughters, F, aged about 17 years old, and G aged about eight years old, who primarily live with Mr D and spend time with their mother’s by agreement.
The mother has a daughter from a former relationship, Ms J (“Ms J”) who is aged 20. Ms J currently lives with her father, Mr K.
The children attend B School (“B School”) with Mr D’s daughters, F and G. In 2025, X is in year nine and Y is in year seven.
At the time of separation in early 2020, the mother obtained an intervention order (“IVO”) on behalf of herself and the children which removed the father from the home.
From about May 2020, the father began spending ad hoc time with the children. In or about February 2021, the mother unilaterally ceased that time.
In early 2021, the father consented to a final IVO without admissions. This expired in early 2022.
The father commenced these proceedings on 12 March 2021 in what was then known as the Federal Circuit Court of Australia, now the Federal Circuit and Family Court of Australia (Division 2).
On 8 June 2021, the parties agreed to interim orders for the children to live with the mother and spend time with the father for four nights each fortnight and for week about in the school holidays.
The parties attended upon Dr H (“Dr H”) for a family assessment in October 2021. Dr H released her report on 1 December 2021. In that report Dr H recommended the current “5, 2, 2, 5” arrangement.
On 3 May 2022, the parties agreed to orders in line with the recommendations of Dr H (“the current orders”).
The parties again attended upon Dr H in July 2023 and her further report is dated 4 August 2023.
In May 2024, the father unilaterally retained the children in his care following an alleged disclosure made by X that her mother had endeavoured to choke her.
The mother sought an urgent recovery order which was listed before me on 31 May 2024. The father failed to attend this hearing. A recovery order was made and the interim orders suspended.
Following a further interim hearing on 6 June 2024 the current orders were reinstated.
DOCUMENTS RELIED UPON
The father relied upon:
·his amended initiating application filed 5 June 2024;
·his ‘trial’ affidavit filed 15 December 2023; and
·his affidavit filed 5 June 2024.
The mother relied upon:
·her further amended response to initiating application filed 4 June 2024;
·her case outline filed 4 June 2024;
·her affidavit of 25 January 2024;
·her affidavit of 30 May 2024; and
·her affidavit of 19 August 2024.
The ICL relied upon:
·the affidavit annexing the report of Dr H dated 1 December 2021; and
·the affidavit annexing the report of Dr H dated 4 August 2023.
In addition, the following exhibits were tendered in this matter:
·M1 – Minute of final parenting orders sought by the mother dated 21 October 2024;
·M2 – Text messages between the father and X commencing 1 June 2024;
·M3 – B School admission record;
·M4 – Emails from the school to the father in relation to Y’s absences;
·M5 – Email from the father dated 30 May 2024 to Ms L (“Ms L”);
·M6 – Facebook posts of the mother at time recovery order was issued;
·M7 – Our Family Wizard messages of the mother to the father;
·M8 – Emails of the father dated 30 and 31 May 2024 to Ms L;
·M9 – Email sent on 18 June 2024 from Mr M (“Mr M”), the head of primary/deputy head of campus to the father;
·M10 – Letter sent from B School to the father dated 22 August 2024;
·M11 – Email chain between Mr M to Ms L and other school staff dated 28 June 2024;
·M12 – Email chain from the school regarding class absences between Mr M, Ms L and other school staff dated 20 and 21 August 2024;
·M13 – Emails concerning the Application in a Proceeding listed 31 May 2024 from the Chambers of Judge Jenkins to all parties, and from the mother’s solicitor to the applicant father;
·M14 – School attendance records of the children dated 2022 to 2024;
·M15 – Email sent 31 August 2023 to the father at 9.43am from the head of mathematics, Ms N (“Ms N”);
·M16 – X’s school reports from June 2023 and June 2024;
·M17 – Our Family Wizard messages in relation to proposals for the mid-2024 school holidays between the parties;
·M18 – B School notes summarising the meeting between X, the parties and the school regarding X’s school attendance on 13 May 2024;
·M19 – Email from Ms N of the school to the parties dated 11 September 2023;
·M20 – Our Family Wizard messages of the parties regarding changeover for April 2023 school holidays;
·M21 – Text messages between the parties including father’s request for medical information dated 23 July 2024;
·M22 – Our Family Wizard messages between the parties regarding antibiotics during August 2024;
·M23 – Surgery consultation record for X dated 23 July 2024;
·M24 – Minute of proposed orders (interim and final) of the mother dated 12 December 2024;
·M25 – Mother’s proof of evidence correcting mother’s affidavit filed 19 August 2024;
·M26 – Text message dated 23 July 2023 from Mr O (school principal) to the mother;
·M27 – Text message dated 22 and 23 July 2023 from Ms Q (wife of the school principal) to the mother;
·M28 – National Principles to Address Coercive Control in Family and Domestic Violence document;
·M29 – Mother’s tender documents collated by the mother’s counsel on 20 December 2024;
·F1 – Father’s tender documents collated by the mother's counsel on 20 December 2024;
·ICL1 – Email dated 1 May 2024 from the father to Ms L;
·ICL2 – ICL’s proposed minute of orders dated 20 December 2024; and
·ICL3 – ICL’s tender documents collated by the mother’s counsel on 20 December 2024.
The mother also relied upon written submissions (dated 19 December 2024) filed 30 January 2025 (“the mother’s written submissions”) as the basis of her final submissions.
Following the reservation of my judgment on 20 December 2024, the Full Court handed down a decision in Pickford & Pickford [2024] FedCFamC1A 249 (“Pickford”) which gave detailed consideration to the issue of “coercion and control” in family violence. The parties were given an opportunity to file any further written submissions arising from the decision. The mother filed her further written submissions also on 30 January 2025 (“the mother’s further written submissions”) and the father emailed my chambers his written submissions on 3 February 2025 (“the father’s written submissions,”) however, it is noted that the father’s written submissions were never filed. I have had regard to the written submissions of both the mother and the father.
THE EVIDENCE
This matter was conducted in person at both Dandenong and Melbourne registries, save for Dr H, who gave evidence via Microsoft teams. Although there were occasional technical glitches, I am satisfied that it did not disrupt the fair running of the trial.
Although the father had not complied with trial directions, he was permitted to rely on his earlier affidavit filed in December 2023 and a short affidavit filed in June 2024. However, this left a number of gaps in his evidence which he sought to rectify both in the witness box and in final submissions. To the extent that those matters were not in evidence, I have placed no weight on them.
I have otherwise had regard to the contents of each of the documents relied upon by the parties save for parts which were determined to be objectionable. I have not read anything contained in tender bundles, subpoenaed material or any documents emailed to the court which were not otherwise separately tendered into evidence as exhibits.
It has not been possible to include every aspect of each of the parties’ evidence. As per the High Court in Whisprun Pty Ltd v Dixon [2003] HCA 48, just because I have not mentioned something in these reasons does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is on the balance of probabilities.
The father
The father was a problematic witness. He was frequently evasive and non-responsive in his answers and often could not recall matters which occurred recently. Whilst the ICL raised the question of the father potentially having cognitive issues, there was no medical evidence on which to base any such conclusion.
In final submissions the mother’s counsel relied upon a schedule, attached to the final submissions dated 19 December 2024 (filed 30 January 2025), which purported to refer to the “dishonest and misleading evidence” of the father. I have reviewed the evidence, and I accept that schedule is an accurate reflection of same. Of particular significance in this matter, is that the father was dishonest about the following:
·that the school raised no concerns with him about the children’s attendance;
·the children were progressing well at school; and
·the circumstances around the engagement of the children’s counsellor, Ms L.
Whilst in a parenting matter the court ought to refrain from making specific credit findings about parties where possible,[1] in this case, I find that the father was prepared to say what he felt was necessary to achieve the orders that he sought. This was not only the case in the witness box but also during interviews for the family report.
[1] See Adamson & Adamson [2014] FamCAFC 232 at [89]-[90]
I also find that the father was prepared to breach orders, in particular between 1 June and 6 June 2024, when there was an injunction in place preventing any contact with the children. The evidence showed the father had messaging communication with X in that time. Whilst the father said it was possible those messages could have been made up, this was only in response to my direct question posed to him, and based on the messages contents, I do not accept that this was the case.
The mother
The mother also appeared to struggle to give answers at times, however, I accept that this occurred primarily when being directly questioned by the father, given that he was self-represented at trial, and that the dynamic of their relationship may have impacted the manner in which she responded. I accept the submission of the ICL that the mother presented quite differently when she was asked questions put by the ICL.
Although there may also have been an element of “impression management” as identified by Dr H, overall, I find the mother was a credible witness.
Therefore, where her answers differed from the father and the father’s evidence was otherwise uncorroborated by reliable evidence, I prefer the evidence of the mother.
Dr H
In regard to Dr H, I accept the submission by counsel for the mother to the effect that she was an excellent witness. Dr H’s evidence was of great assistance to the court, which I shall return to shortly.
THE LEGISLATIVE PATHWAY
Pursuant to section 60CA of the Family Law Act 1975 (Cth), (“the Act”) the best interests of a child are the paramount consideration for the court when making a parenting order.
Section 65D of the Act directs the court to make such parenting orders as it thinks proper. The court may therefore use its discretion to determine what is "proper."
The Act specifies six matters which must be considered in determining what is in the child’s best interests at subsection 60CC(2). The matters to be considered include:
(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 the 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 court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that currently or has previously applied to a child or a member of the child’s family.
Section 60CG of the Act further requires a court when considering what parenting order to make, to endeavour to ensure that whatever order is made does not expose a person to an unacceptable risk of family violence and is consistent with any family violence order.
Family violence is defined in section 4AB of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(Emphasis added)
In relation to coercive and controlling family violence the Full Court in Pickford confirmed the following:
·that it is not necessary that a perpetrator intends their behaviour to be coercive and controlling or indeed that he or she even understands that their behaviour had that effect;[2]
·coercion and control usually involves patterns of behaviour over time but not always;[3] and
·notwithstanding that coercion and control may be nuanced and/or subjectively experienced by a person, the court must still make an objective assessment of whether the behaviour constituted coercive and controlling family violence in all of the circumstances of the case.[4]
[2] Pickford at [46].
[3] Pickford at [52].
[4] Pickford at [111].
Justices Aldridge and Carew set out in Pickford a guide for trial judges when assessing coercion and control as follows:
(a) identify the behaviour about which complaint is made;
(b) identify the full context of the behaviour including any explanation that may be given by the alleged perpetrator;
(c) identify the impact of the behaviour on the alleged victim (mere assertion by the alleged victim that they feel coerced or controlled is insufficient);
(d) make all relevant factual findings; and
(e) explain why the behaviour in question is or is not family violence that coerces or controls the family member and if the alleged behaviour does not entail a course or pattern of conduct, explain how the behaviour can nevertheless be characterised as behaviour that coerces or controls, if so found.[5]
[5] Pickford at [48].
RISKS TO THE SAFETY OF THE CHILDREN AND MOTHER
The mother in her written submissions asserts the father is a risk based on the following behaviour:
6.1.
the father has perpetrated emotional and psychological abuse; coercive and controlling family violence; and economic abuse towards the mother including, at times, the use of the children as a means of perpetrating that family violence;
6.2.
the father has perpetrated a significant pattern systems abuse against the mother, by use of manipulation of school counsellor [Ms L] – which isolated the mother and deflected the real concerns of the children’s school, relating to him, onto the mother;
6.3.
the father has perpetrated emotional and psychological abuse; and coercive and controlling family violence towards the children. They have been victims of this family violence directly and also indirectly by experiencing how the family violence perpetrated by the father has affected the mother’s capacity to meet their needs;
6.4.
the father demonstrates significant deficits in parenting capacity, including his lack of insight into how his behaviour has affected and may affect the children and the mother;
6.5.
the father’s emotional enmeshment with and dependence on the children; alongside his inability or unwillingness to provide safe emotional parenting;
6.6.
the significant and persistent deterioration in the children’s school attendance when in the father’s care since the 3 May 2022 orders and the evidenced detriment to their educational development;
6.7.
the father’s repeated breach of restrictions intended to promote the children’s safety and wellbeing, including: his repeated breaches of Court orders and his behaviour that has required at last one of the children to break school rules for him;
6.8.
the father repeatedly exercising his parental responsibility in ways that are unsafe and contrary to promoting the children’s physical and mental health.[6]
[6] The mother’s written submissions at [4].
In relation to coercion and control, the mother identified in her further written submissions filed on 30 January 2025 (dated 20 January 2025) the acts which she says objectively demonstrate the father’s coercive and controlling behaviour including:
·“systems abuse” in particular manipulating the school counsellor, Ms L, “lying and deceiving the Court” and “lying [to] and deceiving” Dr H;
·“coercion of the children to form and express opinion about the mother” to align with the father;
·“behaviour that compromised the safety of the children’s schooling”;
·“interference with and/or undermining of the mother’s parenting”;
·“the creation of a permission structure with [X]”;
·“instilling fear and terror” into the mother when the children allegedly ran away in mid-2024;
·“persistently non-responsive communication” with the mother;
·“ongoing use of communication to control” such as “preventing the mother and children from using WhatsApp” and failing to provide other information to the mother;
·“economic abuse” by failing to pay the cost order in favour of the mother until the day of the trial; and
·“unsafe emotional parenting” including kissing Y on the lips and co-sleeping with the children.[7]
SYSTEMS ABUSE
[7] The mother’s further written submissions at [10] – [26].
Ms L – the school counsellor
Y was referred by a teacher for counselling with Ms L, the school counsellor, in October 2022. In relation to that referral, Ms L recorded receiving the following information from one of Y’s class teachers, Ms R:
[Ms R] reported that she has many alarm bells going off for her around [Y] and her family life. [Ms R] stated that [Y] will often cry when she is to go to her father’s house, but then through tears, say how much she loves him. [Ms R] stated that the use of language seems unusual and she wonders about what may have or may be occurring in that home, regarding abuse towards the girls, etc. [Ms R] agreed that there is not enough to warrant a mandatory report as it is ‘just a feeling’ but writer agreed to note this and keep these thoughts in mind when catching up with [Y].[8]
(As per original)
[8] Mother’s exhibit, M29 at [20].
Y met with Ms L on 1 December 2022. Significantly, Y did not raise any issues about either parent, and that she did not “see the point” of any further sessions.[9]
[9] Mother’s exhibit, M29 at [21].
On 12 February 2023, the father sent an email to Ms L in which he confirmed in the first half of that email that the children were settled and that neither of the children wanted to talk to her at that time, but he believed that they would be comfortable telling either of their parents if they wanted to talk to Ms L again. However, in the second part of the email the father says, seemingly in contradiction to this, that the girls had told him things which he wished to share with Ms L, “things that they hear and see which are not fair or appropriate.”[10]
[10] Mother’s exhibit, M29 at [25].
The father admitted in the witness box that he wrote the second half of the email at a later time and, significantly, after the parties failed to settle their matter at mediation. Ms L responded advising the father that she was mandated to report any serious concerns. It appears that the father did not take the matter any further at that time.
The evidence shows that thereafter over the course of 2023, the school became increasingly concerned – not about the mother, but about the children’s absences from school whilst in the father’s care and that the father was well aware of the school’s concern. This culminated in a meeting between Y and school staff to discuss the issue on 16 November 2023. Again, Y did not raise any concerns about the mother. However, upon the father becoming aware of the meeting, the father contacted Ms L via email to advise her:
I would love to have a chat with you if possible. There are some things I should have probably touched base with you sooner about. I just didn’t anticipate you and her [Y] catching up as you just have, but I am sure it would have impacted what she [Y] spoke about or more so what she [Y] didn’t speak to you about.[11]
[11] Mother’s exhibit, M29 at [55].
The only logical inference to be drawn from this email sent by the father to Ms L is that he would have discussed with Y what she should say to Ms L at the meeting. The father also requests that Ms L keep his conversation with her confidential.
Consequently, Ms L met with the father on 28 November 2023. It is not known what was said at that meeting, but the father emailed Ms L that day after the meeting and said, amongst other things, “I am feeling desperate about [X] and [Y] since I picked them up on Friday. They are not in any immediate danger at least while they are here with me.”[12] The father is clearly implying in this communication that the children may be in danger in the mother’s home. The father goes on to involve Ms L in his narrative about the children being unhappy in the mother’s household and wishing to live with him. The father urged Ms L to meet with the children and/or speak with him further.
[12] Mother’s exhibit, M29 at [58].
Ms L responded via email to the father that the best approach was to see the children when they indicated they were ready to speak with her. However, she cautioned “if they [the children] were ever in any danger or their mental health was being compromised, I simply cannot keep that information to myself.”[13] It is likely, given Ms L’s earlier comments, that the father would have understood this was a reference to her obligation to make a mandatory report.
[13] Mother’s exhibit, M29 at [59].
Two days later, on 30 November 2023, the father emailed Ms L suggesting the mother had adapted her behaviour with the children for Dr H’s family assessment only for the mother’s “nasty behaviour”[14] to return shortly after. Notably he writes, “I totally understand your position in relation to only being able to keep things confidential to a point, and if you suspect there is certain or substantial risks that you have a duty of care.”[15]
[14] Mother’s exhibit, M29 at [60].
[15] Mother’s exhibit, M29 at [60].
On 4 December 2023, the father emailed Ms L informing her that X wanted to speak with her, and that something had been said by the mother to X that, “I know you would be horrified to hear.”[16] The father urged Ms L to see both children on short notice.
[16] Mother’s exhibit, M29 at [63].
Ms L arranged to see the children on 5 December 2023, however, the father emailed her at 11.12am on that date concerned that he had not had enough time to speak with them ahead of the meeting stating:
I am also sorry, but in the short amount of time I had to actually talk to the girls they weren’t able to ask much. I know they wanted to ask more. An important part of them having the courage they need. They were both in a bit of a panic about seeing you today because of the unanswered questioned they had. They may not have even known what they wanted to ask but they asked if they could please talk to me tonight. I will be picking them up on Friday now. [X] told me [Y] was adamant, would not budge and somehow got it across the line, so to speak. [Ms Cross] reluctantly agreed to letting her spend [time] with me this coming weekend. That “never happens” no matter how much they want things. Again with the girls asking, they don’t quite understand how much they’re asking for. Is there anyway you could still fit them in Friday afternoon? If there is away I would be so grateful, please.
(Errors as per original and emphasis added)
The father also took the opportunity to provide Ms L with more details about his concerns:
The most important thing I need to say, as hard as it is, is that there is safety issues. It isn’t so much physical abuse although even that is a concern from something that was shared with me about their beautiful step-sister. It is about the other forms of abuse which I understand now, or at least aware of being under the title of domestic, or family abuse. Many of them intertwined.
The main thing is the effect on their mental well-being. Emotional and psychological abuse. Far from the only example, but one that sticks in my head are the events resulted in [Y] running to me at school and clinging to me, very clearly saying the words “I never want to go back to Mum. I just want to live with you Dad”. She didn’t say that only because of what happen that day. It was a build up over time and many events. [X] wasn’t vocal at first but got in my car with a stunned look on her face, silent, trying to process what had happened.
There is the manipulative talk and choices, gaslighting, constant yelling and verbal abuse, anger which is unwarranted and has been unpredictable but getting so common they expect it.
…
I feel I could be and probably are putting pressure on you, and if I am I am so sorry. I believe you will take it seriously then I know you can be or are obligated to take certain actions.[17]
(Emphasis added)
[17] Mother’s exhibit, M29 at [67] – [68].
As a result, Ms L agreed to meet with the children on 8 December 2023, being the last day of term. As the children had been in the mother’s care the night before and she had taken them to school, the father drove to the school and spoke with Y in the carpark prior to the meeting. He also provided the children with a notebook of written concerns to take to their session with Ms L. Seemingly not satisfied with that, the father then went with the children to the meeting and spent additional time talking with them, allegedly at their request. Thereafter the father waited for the children while they were in their meeting, and, despite Ms L’s direct request to ensure the children returned to class, the father took the children home after the session concluded with Ms L.
It appears the father was very happy with Ms L’s approach to this meeting because he emailed her after signing off with “lots of love,” attached photographs of the children, and included a gift voucher for $50.[18] It should be noted that Ms L had only seen Y twice in that year and the father did not provide any such gift vouchers to Y’s class teachers who taught her every day.
[18] Mother’s exhibit, M29 at [77].
On 23 February 2024, following the long summer holidays, the father emailed Ms L informing her that the children wanted to meet with her again, stating:
After [X] feeling like, and announcing to me “I told [Ms L] everything on my list” with almost as much pride in herself as I have in her, lots of chats over the summer break made her/them (and myself) realise there were quite a few things left unsaid. It’s totally understandable and almost expected that they didn’t get everything they wanted out. Unfortunately, some of the things that weren’t said were very serious, and are those forms of abuse that you mentioned to me as the forms of abuse that often prompt action quicker than others. I feel they may have had an impact on your decision that day on “where to go from there”.[19]
(Emphasis added)
[19] Mother’s exhibit, M29 at [83].
On 28 February 2024, the father called Ms L and reported that the children had been required to hug the mother’s partner, Mr D, and described it as being “in the realm of “sexual abuse”[20] and that Ms J, the mother’s eldest child, had reported being hit multiple times by the mother.
[20] Mother’s exhibit, M29 at [88].
It appears that at some stage thereafter Ms L formed the view that despite having seen the children without the mother’s knowledge, that the mother’s consent should be formally obtained for any further counselling. The mother, clearly unaware of the extent of Ms L’s involvement to date and her ongoing communication with the father, provided her consent to that counselling.
Parallel to Ms L’s involvement with the family, school staff, including the head of the primary school/deputy head of campus, Mr M, had increasing concerns about the children’s school attendance whilst in the father’s care, which the mother had continued to raise with the school. By March 2024, staff at the school were considering making a mandatory report to the Department of Families, Fairness and Housing (“the Department”) about the children’s lack of attendance in the father’s care, however, Ms L told them to hold off given the more “complex”[21] issues she was dealing with in relation to the family.
[21] Mother’s exhibit, M29 at [107].
It subsequently came to light that Ms L had made a mandatory report to the Department in relation to the mother instead.
Ms L met with X for a final time on 7 May 2024. That morning, prior to the session, the father emailed Ms L with further concerns about the mother including alleged arguments in her household and the mother’s alleged alcohol use.
It seems that around that time the mother issued a subpoena with respect to the counselling and upon becoming aware of the history, unsurprisingly, withdrew her consent to any further counselling through the school.
Based on all of this communication it is readily apparent that:
·In 2022, the school’s concerns primarily related to the children’s attendance at school;
·Y was initially referred to Ms L in October 2022 due to potential concerns in the father’s home, including school attendance;
·Throughout 2023, the mother repeatedly raised her concerns about the children’s school attendance in the father’s care with the school;
·In meetings with Y in December 2022 and November 2023, where the father had no advanced knowledge, Y reported no concerns in her mother’s care;
·In the first half of an email to Ms L in February 2023, prepared by the father prior to the failed mediation, the father confirmed the children were settled and neither wished to see Ms L again;
·In the second half of the email to Ms L in February 2023, prepared by the father after the failed mediation, the father raises for the first time concerns about the children in the mother’s care and the need for Ms L to meet with the children;
·Upon becoming aware of the meeting with Y in November 2023 and the schools increasing concerns about school attendance whilst in the father’s care, the father contacted Ms L and insisted she meet with both children prior to the end of the school year. The father primed Ms L with his concerns and prepared the children with respect to what they should share, both orally and in a notebook;
·The father urged and was ultimately successful in having Ms L keep the session on 8 December 2023 confidential from the mother;
·When Ms L did not make a mandatory report to the Department after the December 2023 meeting the father arranged another meeting at the commencement of the school year in February 2024;
·The father had numerous conversations with the children over the summer break prior to the February 2024 meeting;
·In early 2024, the school was considering making a mandatory report in regard to the children’s ongoing school attendance in the father’s care. However, Ms L told the school to hold off, seemingly based on the information provided by the father and her sessions with the children; and
·The mother was unaware of the father’s communication with Ms L until the school documents were subpoenaed for use in this matter in May 2024.
The father denied that his behaviour was intended or even had the effect of manipulating Ms L. He insisted, during his evidence, that the children needed someone to talk to and that the only thing that he may be guilty of in relation to Ms L, was being “too wordy.” However, it is evident that the father did not seek to involve Ms L until he realised the matter was both likely to continue to trial, and, that the school had increasing concerns about the children’s attendance during their spend time with him.
I conclude from the father’s behaviour that the father wished to deflect concerns about himself and redirect the attention to the mother. This process involved priming the children with concerns and insisting on Ms L seeing them so the concerns could be documented, and, to ensure the children reported the right information, the father prepared the children, met with them immediately prior to their sessions and went to the extent of giving them written documentation to prompt their memories.
It is also apparent that once the father was aware that Ms L would be mandated to make a report of concerns to the Department, that he encouraged Ms L to do so.
Victoria Police
Matters escalated even further in May 2024, as the first listing of the final trial approached. In May 2024 the father took X to the police station to report that she had disclosed she had been choked by the mother. The police consequently took out an IVO for X’s protection and the father withheld both children from the mother’s care.
Despite the serious nature of this allegation by the time the final trial eventually commenced in October 2024, the father did not assert that the children were at an unacceptable risk of harm in the mother’s care. Indeed, he proposed orders for a continuation of equal shared care.
Furthermore, despite raising the allegation of choking in his further final submissions, along with a myriad of other concerns including the mother’s alcohol use, none of these matters were put to the mother under cross-examination at trial.
It is also notable that the father conceded that the marks on X’s neck arising from the alleged choking incident were in fact caused by her scarf. Given the father did not even question the mother about such a serious allegation, I conclude that he could not have genuinely believed the mother had attempted to choke X, but that in spite of that, he took X to report the incident as he thought it would support his position at the forthcoming trial (which had been listed to commence in June 2024, and then September 2024, prior to actually commencing in October 2024.)
The Court and Dr H
It was submitted on behalf of the mother that the father’s systems abuse extended to both the court and the single expert, Dr H. I have already made findings that the father was prepared to mislead and/or directly lie to Dr H and to the court, to advance his case.
COERCION OF THE CHILDREN TO ALIGN WITH THE FATHER’S VIEWS OF THE MOTHER
It was submitted by the mother’s counsel that if the father was prepared to go to the lengths that he did to manipulate Ms L, the police, the court and Dr H, then he was equally likely to be manipulating the children to align with his beliefs.
The father does not dispute that he repeatedly discussed with the children the concerns that they should share about the mother to Ms L. Given the children did not raise these concerns until after the father became aware that they were having meetings with Ms L, it is likely the father prompted the children to come up with concerns and that these prompts aligned with his views of the mother.
BEHAVIOUR THAT COMPROMISED THE SAFETY OF THE CHILDREN’S SCHOOLING
The father does not dispute that he would text the children while they were attending school and ask them to call him, including suggesting that they leave the classroom to go to the toilet block to talk, or to meet him at the carpark so that he was able to physically speak with them. It is readily apparent that doing so would have interfered with the children’s schooling and potentially with their social time during school breaks.
However, the father had no insight into this being problematic for the children, justifying his behaviour by saying that the school did not apparently enforce rules not to use phones during the school day. Even if this were true, and it appears the covert excuse would suggest otherwise, the father’s comments failed to recognise the inherent disruption to the children nor the problem with encouraging the children to bend the school rules.
INTERFERENCE WITH AND/OR UNDERMINING OF THE MOTHER’S PARENTING
In addition to contacting the children during school, the father did not dispute that he repeatedly called the children late at night or asked them to set an alarm early in the morning, so that he could speak to the children on the phone without the mother knowing.
The father justified this behaviour because he said that the mother did not allow him to speak to the children privately.
The mother alleges the father’s covert communication with the children created a culture of secrecy with the children, causing the children to be increasingly emotionally dependent on him, undermined her role as a parent, and did not give the children space to adjust to her home.
Again, I find that the father did not have any insight into the impact on the children of the late-night or early morning calls. In particular, he did not see that the calls interrupted their sleep or encouraged the children to keep secrets from their mother or undermined the mother’s parenting. Rather, it was clear from Ms L’s notes from March 2024 that the father “stated that he was encouraging the girls to stand up for themselves respectfully to their mother when they need to.”[22]
[22] Mother’s exhibit, M29 at [95].
Likewise, contrary to the mother’s concerns about the school attendance, the father allowed the children to stay home from school, when it was not strictly necessary, which undermined the mother’s attempts to encourage the children to attend school regularly.
However perhaps the largest impact on the mother’s ability to freely parent the children arose from the father’s actions in taking X to the police to report the mother’s alleged assault. The mother gave evidence that due to the allegations made about her, she had had to install CCTV cameras inside her home to protect herself, and that she was now consequently hypervigilant around disciplining the children for fear of further allegations.
THE CREATION OF A PERMISSION STRUCTURE WITH X
In addition to the secret phone calls, the father encouraged X to contact him when he knew that it would be in breach of court orders. In conjunction with the recovery order made on 31 May 2024, orders were made restraining the father from having any contact with the children until further order. However, on 3 June 2024 X messaged the father on social media, and the father responded as follows:
[X]: dad just wondering if we could have a quick chat xx
Father: I’m not supposed to […], but when you need to talk. I can’t and don’t want to say no xx
[X]: love you
Father: You call when you need and you’re ready […] xx[23]
(Errors as per original)
[23] Mother’s exhibit M2, at p.3.
Again, the father was teaching X was that her need to speak to the father, or perhaps more accurately, the father’s need to speak to X, was more important than rules or, in this case, even orders of the court.
INSTILLING “FEAR AND TERROR” IN THE MOTHER
The father’s evidence is that following the alleged choking incident, X refused to return to the care of the mother, however, because she was not supposed to be with the father, X told him she was going to stay with a “trusted adult” and that Y decided she would go with her older sister. If the father’s evidence is accepted, he allowed X, then aged 13 years old and Y, then aged 11 years old, to leave their home with him, and stay at an unknown location with an unknown person and to travel there by unknown means.
On 29 May 2024, the father sent the mother a communication in WhatsApp informing the mother that the children had left, and that he did not know where they were. It is submitted for the mother that this caused her fear and terror, evidenced by a post she put on Facebook at the time trying to locate them. The mother subsequently sought an urgent recovery order which was made on 31 May 2024.
It is unclear precisely when the children returned to the father’s care however they were at his home when the recovery order was executed by the Federal Police on 1 June 2024. The father did not notify the mother at any stage that the children had returned. The mother asserts the father’s intention was to maximise her fear; however, I am not convinced that was his motivation. On the basis of all of the evidence, it appears likely that the father did not notify the mother of the children’s whereabouts because they would be removed from his care.
I am also not satisfied that the father’s actions actually caused the mother fear. Indeed, the mother does not believe that the father would have allowed the children to go and stay at a location not known to him. The mother asks the court to find the children were likely with the father the whole time. Given the father’s almost obsessive desire to ensure he maximises his time with the children, to which I shall return, I find that it is more likely than not the children were either in his care or at a location known to him.
The father’s behaviour in essentially hiding the location of the children and failing to attend court on 31 May 2024 led to the children having to be recovered by the Federal Police. The father gave no evidence that he understood the gravity nor the impact on the children of such intervention.
PERSISTENTLY NON-RESPONSIVE COMMUNICATION
The mother asserts that the father has repeatedly failed to respond to her communication and that this has had the effect of controlling her life.
The evidence demonstrated that there were numerous examples of the father not responding to the mother’s communication about the children, either in a timely manner or at all, including the following:
·Labour day - 13 March 2023:
The mother messaged the father to make arrangements for the Labour Day public holiday a month before the date, on 13 February 2023, and 16 February 2023, but the father did not reply to her until the day before Labour Day.
·The Easter 2023 holidays:
The mother messaged the father to make arrangements for Easter on 23 February 2023, 27 February 2023, 9 March 2023, 13 March 2023, 28 March 2023, and 4 April 2023. The father finally replied on 5 April 2023 being the day before the holidays commenced.
·The June 2024 holidays:
The mother messaged the father on 9 June 2024, 18 June 2024, and 25 June 2024. The father finally replied to the mother on 27 June 2024 – again the day before the holidays began.
It was evident that in many cases the father had read the initial message from the mother. The father’s evidence was that he had forgotten to reply or had technical issues with messages and/or that the mother was burdening him with excessive communication. However, I accept the mother’s submission that the father raised these reasons for the first time in his oral evidence rather than in his affidavit.
I also accept that where the father had a desired outcome, for example in regard to his birthday, he responded quickly and in other areas of his life, such as his communication with Ms L, at times he responded in minutes, rather than days. Furthermore, if the father viewed the mother’s multiple messages to him as intrusive, then he only had himself to blame for not responding at first instance.
The mother says the father’s failure to respond to her messages made it impossible for her to make plans for the children. It is unclear to me whether the father’s failure to respond to emails was designed to control the mother, or because he had no regard for her need to make arrangements. However, regardless, the father’s lack of communication severely impacted the mother’s ability to arrange her life and the lives of the children.
Other concerning examples of the father’s failure to communicate with the mother include:
·The father’s failure to notify the mother the children were in a car accident until the following day, despite notifying the parent of the other child who was in the car, and the mother’s former husband shortly after;
·The father’s failure to tell the mother the children had been hurt in the accident, despite them having bruising several days later;
·The father’s failure to advise the mother that Y had been having persistent stomach pain in June 2024;
·The father’s failure to advise the mother he had approached P Organisation, the youth mental health service, for X; and
·The father’s failure to tell the mother he was taking X to school on a day she was in the mother’s care.
CONTROLLING COMMUNICATION SUCH AS WHATSAPP
The mother does not have an iPhone and therefore requires an application such as WhatsApp to enable her to video call the children. The mother’s evidence is that the father is aware of this, but he intentionally refuses to allow the children to download WhatsApp on their phones to prevent her from being able to video call the children.
Regardless of the father’s intention, it is clear that this refusal to allow the children to download WhatsApp meant that the mother was prevented from having face to face calls with the children.
ECONOMIC ABUSE – FAILING TO PAY THE COST ORDER UNTIL THE DAY OF THE TRIAL
On 30 January 2024, the father was ordered to pay the mother’s costs of a compliance and readiness hearing on 22 November 2023 of $2,500. Despite paying some $50,000 for his own legal fees, the father only paid those costs on the morning of the adjourned trial on 21 October 2024.
The mother’s counsel submitted that the father’s failure to pay the cost order made against him was yet another example of coercion and control.
I accept that the father’s behaviour in the delayed payment of the cost order reduced the funds available to the mother for her own legal fees.
UNSAFE EMOTIONAL PARENTING INCLUDING KISSING Y ON THE LIPS AND CO-SLEEPING
The father conceded in his evidence that he kissed Y on the lips on a regular basis and that he would continue to do so. Whilst he said in his submissions that he did not co-sleep with the children, he conceded otherwise in his evidence.
The mother was concerned not only about the father kissing Y on the lips and co-sleeping, but also the manner in which the father communicated with the children, frequently telling them that he loved them, saying that he could not live without them, calling them his “best friends forever” and saying, “I’ll see you in my dreams.” This appeared to have a flow on effect with Y, who used similar language with a boy of her age.
The father saw no problem with the way he interacted with the children nor how Y interacted with the boy at school, which he thought was “cute.” Indeed, the father appears to think that by raising these matters it demonstrates that the mother is simply jealous of the relationship that he shares with the children.
Dr H said neither kissing on the lips nor co-sleeping were necessarily problematic in themselves, and that it would depend on the context.
In this case, the overwhelming impression I gained of the father was that he had an obsessive need to spend time and communicate with the children. I note the evidence shows the father would insist on speaking to the children late at night or very early in the morning, even when the children expressed a desire to sleep instead. In this context, the father’s co-sleeping and kissing the children on the lips raises red flags, especially given that the mother asserts that the behaviour only commenced after separation.
THE CHILDREN’S VIEWS
Both children have maintained a consistent view of wanting to spend more time in the father’s care. This was reflected both in Dr H’s assessment and the children’s comments to the ICL. However, this must be seen in context, namely where I have already found the father was prepared to manipulate the children in respect to their engagement with Ms L. I therefore cannot discount the father has done the same with respect to the children’s expressed views in this matter.
Although it is likely that the children may genuinely prefer in some respects, the father’s household, because it may be less “chaotic” than the mother’s home, I must treat their expressed comments with some caution.
I do however recognise that regardless of where the views have originated, that any reduction in the children’s time with the father is likely to cause the children some distress in the short term.
ABILITY TO MEET THE CHILDREN’S DAY TO DAY NEEDS
Inability to consistently get the children to school
School records produced on subpoena and tendered into evidence showed that the children were frequently absent from school in 2023 and 2024, and that these absences were primarily in the father’s care.
The father conceded that at times he had allowed the children to stay home from school, even if only one of the children was sick, and that on occasion the sick child may not have been as sick as he first thought.
It was submitted by the mother’s counsel, and I accept that it is likely that:
the children’s poor attendance is a symptom of the father’s unsafe emotional parenting in that he is unable to allow the children to be apart from him and develop emotionally independently of him, so instead he literally keeps them close by or going into school to be with them.[24]
(Emphasis per original)
[24] Mother’s written January 2025 at [100].
The father also conceded in his evidence that the children’s school progress had significantly deteriorated since the 2022 orders, and that both of the children were behind their expected levels in most of their subjects. Nonetheless, although the father said he could do better, I accept the submission for the ICL that he did not come across as really understanding the gravity of the situation.
Indeed, I note that the father gave evidence that both he and the mother could do better which failed to recognise the problem primarily occurred in his home. This is a sentiment he repeated in his written submissions. This is even more incredible given the evidence which showed the mother repeatedly contacting the school throughout 2023 to raise the issue of school attendance, and the father’s actions designed to deflect from the issue.
Medical needs
The mother raised issues around the father’s ability to meet the medical needs of the children. The father conceded that following the car accident that occurred while the children were in his care, that the children did have bruising and yet, he did not arrange a medical appointment for some days, and only then, it was conducted by telehealth. The father also acknowledged that Y had not seen a doctor in person for her persistent pain. However, this concern did not play a significant part in my determination of this matter.
The mother’s ability to meet needs
As already stated in this judgment, despite the contents of the father’s submissions, the father did not base his case on there being significant concerns for the children in the mother’s care, and no such concerns were put to the mother under cross-examination. Furthermore, the mother gave compelling evidence about her insight into the children’s emotional needs, for example, her conversations with X about being exposed to underage drinking at parties that she was attending.
Whilst the mother gave evidence about the father, using terms such as “sick in the head” to describe the father’s behaviour to the children, which I note is not ideal, I do not believe she intended to denigrate the father, but rather was doing her best to explain to the children what she believed to be the father’s mental health problems.
DETERMINATION
The mother’s case is that the father poses an unacceptable risk of harm to the children because of his coercive and controlling behaviour and his enmeshed relationship with them, and that the more time they spend with him, the greater the cumulative effect of this harm. The mother resists overnight time with the father during school term time, not because the overnights pose any greater risk per se, but because an overnight necessarily extends the time the children are in the father’s care.
The mother urges the court to make findings that the father has set out on a campaign of coercive and controlling family violence with respect to herself and the children.
In this regard, I note the observations of his Honour McClelland DCJ in Pickford as follows:
….it is in my view, neither necessary nor appropriate for the Full Court to determine whether a particular incident or event could or could not be relevant to determining whether the respondent has been the subject of a pattern of coercive or controlling conduct. In undertaking that task, it is the role of the trial judge to “consider the totality of the evidence in the round” in order to assess how the individual pieces of evidence play into the narrative of coercive and controlling behaviour: GK v PR [2021] EWFC 106 at [40] and [45].[25]
(Emphasis added)
[25] Pickford at [35].
However, I also note the comments of their Honours Austin and Williams JJ in Pickford:
It is apposite to observe how judges need not make findings to resolve contested facts unless the findings authentically influence the outcome. In fact, the High Court of Australia has expressly cautioned against unnecessary factual findings in the context of risk assessment (M v M (1988) 166 CLR 69 at 76–77) (“M v M”). So has this Court (Eastley & Eastley (2022) FLC 94-094 at [18] and [31]) (“Eastley”).[26]
(Emphasis added)
[26] Pickford at [87].
In this case, I am urged to make various findings that the father’s behaviour was coercive and controlling family violence. In many of the instances relied upon by the mother, I accept the behaviour had the impact of controlling the mother or the children in some regard, or coercing the mother or children to do something. For example, the father’s behaviour in not responding to the mother’s communication had the impact of controlling the mother, in the sense that she was unable to make long term plans. The father failing to pay the mother the funds from the cost order until the day of the adjourned trial, had the impact of controlling the amount of funds the mother had available to pay her own costs in this court. Furthermore, the father’s involvement with Ms L had the impact of controlling the mother’s ability to address the children’s school attendance.
However, I am not of the view that I must make a finding either way as to whether the father’s behaviour strictly constituted coercive and controlling family violence. I note that this is because I am not satisfied that such findings would “authentically influence the outcome”[27] of this case.
[27] Pickford at [87].
Regardless of the label, I am satisfied that the father’s obsessive need to spend time and communicate with the children at all costs and the enmeshed nature of his relationship with them, poses a serious risk to the children.
In assessing the level of this risk, I note the Full Court set out in Deiter v Deiter [2011] FamCAFC 82 (‘Deiter’) as follows:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.[28]
[28] Deiter at [61]/
Pursuant to the Full Court in Isles & Nelissen [2022] FedCFamC1A 97, a risk of some occurrence may be tolerable, but an unacceptably high risk of the same occurrence is not. I must also determine whether any risk can be ameliorated.
The level of the father’s obsession with the children in this case is really quite alarming. It is likely to impact the children including as follows:
·encouraging the children to keep secrets from their mother, making allegations against the mother and undermining her parenting, which are all likely to impact their relationship with the mother and her ability to impose boundaries on the children;
·encouraging the children to break school rules and court orders, which is likely to impact the children’s attitude to authority;
·failing to ensure the children attend school regularly, calling them out of class or phoning them late at night (or early in the morning) so they are not sufficiently rested. This has already had an impact on their academic progress and is likely to continue to do so. It could also impact their long-term employment prospects as well as their social relationships; and
·being overly familiar with the children which could impact on their friendships and future intimate relationships.
Given the father’s obsession with the children, the lengths to which has been prepared to go to protect his relationship with them, including his preparedness to mislead the court and to contravene court orders and his lack of any insight, I find the likelihood of these outcomes is high.
In regard to what factors may decrease the risk to the children, I find that limiting the father’s time is likely to ameliorate the risk to a degree, however, I note much of the father’s influence has occurred when the children are not in his care, through phone calls and the like. However, I am satisfied that a combination of more limited time and various restraints, which I shall return to shortly, are sufficient to ameliorate the risk to the children in this case.
In determining just how limited the time should be, I have also taken into consideration the children’s ages and their strong desire to spend time with the father, and the potential stress and upset the children would likely experience if their time with him was limited to daytime only.
In taking all of these matters into account, I have determined that the orders proposed by the ICL during school terms are the orders that would best provide for the children’s best interests. The proposal considers the need to limit the influence of the father over the children, but also enables sufficient time for the children to settle into the father’s care, noting the parties very different parenting styles. Importantly, the orders also ensure that the children are in the mother’s care at the commencement of each school day, to best ensure that the children attend school regularly.
Although these orders differ from Dr H’s recommendations in her report, it was evident that the father had misled Dr H in several key areas, in particular as to children’s attendance and progress at school. Dr H also conceded in the witness box that if there was an issue around school attendance, then a reduction of time could be contemplated and indeed “very significant consideration” given to no or limited overnight time.
The mother proposes the father’s time with the children finish at 7:00pm on any day prior to a school day whilst the ICL promotes a conclusion at 8:00pm. The mother submits that the earlier return is necessary to ensure the children complete homework and are settled back in her care for the evening. Given the evidence shows the father has failed to prioritise the children’s education, I find the earlier return to be in the children’s best interests.
In terms of school holidays, the mother asserts that the extended time proposed by the ICL provides for far too greater opportunity for the father’s negative influence over the children. I accept the submission that the risk is greater the longer the period, and for that reason, the time should be limited but not to the extent proposed by the mother. I find that the time proposed by the ICL is appropriate in circumstances where the term time is already substantially reduced, and the issue of school attendance is not applicable.
Special Occasions
In regard to Christmas, the mother proposed the parties share the Christmas period, alternating Christmas Eve and Christmas night. The father proposed one parent have the entirety of the Christmas period each alternate year. However, given travel is not an issue, I propose to make orders that enable the children to see both of their parents on Christmas Day.
The father proposed orders for New Years Eve however this would result in yet an additional changeover in the long summer holidays and more importantly a further change of household. I do not believe this is in the best interests of the children where the parents have very different styles of parenting, and the children are likely to have just settled back into the mother’s care after the Christmas period.
The father otherwise proposed orders that special occasions like birthdays fall where they fall, however, in circumstances where he is to have limited time, this may be significantly reduced. Therefore, it is in the children’s best interests to spend time with the father at specific times on their birthdays, on Father’s Day and the like. Having made orders for regular overnight term time, where applicable, special occasions will extend overnight.
Changeovers
The father proposed the current orders for changeover remain in place, being that if the children are not at school, the father collect the children at the commencement of his time from the mother’s residence and that the mother collect the children from the father’s residence at the conclusion of his time. He argued this was equitable for the parties in terms of travel.
The mother and ICL proposed changeover, when not at school, at a location as agreed with the mother or otherwise at the mother’s home. However, it seems reasonable in the circumstances that the parties share the travel and as such, I prefer the orders proposed by the father.
Phones, iCloud accounts and other electronic communications
The evidence shows that at one point each of the parents provided the children with different mobile phones. Dr H’s evidence, which was not challenged, was that this was not in the children’s best interests, and I agree. The children should only have one mobile phone each. However, as the children’s primary carer, the mother ought to be able to determine what phones the children are provided with and, when they are allowed to access same, especially if their phones are keeping them awake at night – whether through contact with the father or otherwise.
At the current ages of 12 and 14, the mother should also be able to check what other applications the children are using and to “police” their social media to protect them more generally. In order to ensure this occurs, I shall order that the mother have responsibility for the children’s iCloud accounts.
Restraints
The mother also proposes an order that the father not be able to attend school at any time unless he receives a written request from the principal. The ICL proposes orders that allow the father to attend school events normally attended by a parent.
When this matter was adjourned part heard on 23 October 2024, I made orders that were intended to give the children respite at school by providing that the father (and mother) only attend the school with written permission of the principal. This led to the father endeavouring to get that permission under the guise of delivering goods to the school for the school market. It was most alarming that the father, knowing the court was concerned about his persistent attendance at the school and that the matter was to shortly return to court, could not bring himself to stay away from the school during school hours even for that limited duration. I note during this same adjournment he also arranged to drive X to school, when she was not in his care.
For these reasons I am satisfied that the father ought to be restrained entirely from attending the children’s school during school hours. In this way, both the father and the school will understand that he is not to be there during school hours. As the children will not be in his care on a school day there will be no need for him to attend to collect the children if they allege that they are unwell. The mother can assess and manage that situation if it so arises. The father will have to arrange for parent teacher interviews and the like after school hours.
The school needs to be a place of sanctuary and learning for the children, where they can focus on their study and their friendships. In any event, as the children are both now in secondary school, events during school hours are likely to be more limited.
The father will also be restrained from calling the children during school hours. The ICL proposed an order that the father be able to do so with the permission of the school principal. I cannot envisage a situation where it would be necessary for the father to speak directly to the children at school. In days gone by, parents who needed to get a message to a child would contact the school office and have that message passed on. I see no reason why that process would not be sufficient, and the principal ought not be troubled by requests from the father to have direct contact with the children during school hours.
In regard to extracurricular activities, the ICL proposed orders that both parents be able to attend such activities. However, the mother gave evidence about being assaulted by the father at the children’s sports game. I accept the evidence of the mother, for reasons already outlined, and note it was supported by two screenshots of communications from alleged witnesses to this event, albeit this evidence was unable to be tested. In such circumstances I am mandated to consider whether any orders I make may expose the mother and/or the children to future family violence. I find if the father were permitted to attend extracurricular events in the presence of the mother, there is a risk of such an occurrence. For this reason, the father will be restrained from attending sports or other extracurricular activities other than on his weekend with the children. The mother can choose whether she wishes to attend. If she is the team manager, she may need to make other arrangements.
The mother’s current partner, Mr D, is the coach of the children’s team, but given he was prepared to facilitate changeovers, I presume that he would not be concerned about coming into contact with the father at sports games. I have considered restraining the father entirely, but the children appear to enjoy having their father in attendance at their games.
Parental responsibility
The father seeks a continuation of the current order for equal shared parental responsibility. The mother and the ICL propose orders that the mother have sole parental responsibility for decision making, subject to consulting with the father.
There is little evidence the parties are capable of working together to make decisions for the children. The father has repeatedly failed to even respond to the mother’s communications, making such decisions impossible. Furthermore, he has continued to make significant decisions for the children without consulting the mother. An order for sole parental responsibility for decision making is required and as the children’s primary carer, this should be given to the mother. As per their Honours Austin and Williams JJ in Pickford, “any other result would be absurd.”[29]
[29] Pickford at [83].
However, despite the mother proposing orders that she consult the father before making a decision, I do not believe this to be in the best interests of the children. I have no confidence the father would engage with the mother in a meaningful way and as such this process is only likely to delay decisions that need to be made.
I have made an order that the mother will be required to notify the father within seven days of making any long-term decisions. I am satisfied on the evidence that the mother will otherwise keep the father updated about matters concerning the welfare of the children, as she has done so historically.
Balance of the orders
The remainder of the proposed orders were not in dispute and can be made by consent save that I propose to include a tighter time frame around responses to requests for changes to parenting arrangements, and have removed the double reference to notifications about changes of address.
For all of the aforementioned reasons, I make the orders as set out at the commencement of this judgment.
I certify that the preceding one hundred and sixty-five (165) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 28 April 2025
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