Dahlmans & Dahlmans
[2021] FedCFamC2F 21
•3 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dahlmans & Dahlmans [2021] FedCFamC2F 21
File number(s): PAC 438 of 2021 Judgment of: JUDGE MYERS Date of judgment: 3 September 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – review of Registrar’s decision – application for a review of an interim parenting decision – equal shared parental responsibility – relocation Legislation: Crimes Act 1900 (NSW), ss 61AA(1), 61AA(2)
Family Law Act 1975 (Cth), ss 60CC(2), 60CC(3)
Federal Circuit Court Act of Australia Act 1999 (Cth), ss 104(2), 104(3)
Cases cited: Browne & Keith [2015] FamCAFC 143
C & S [1998] FamCA 66
Morgan & Miles (2007) FamCA 1230
MRR v GR (2010) 240 CLR 461
Other:
United Nations Committee on the Rights of the Child, General Comment No 8: The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading forms of Punishment, 42nd sess, UN Doc CRC/C/GC/8 (2 March 2007).
Division: Division 2 Family Law Number of paragraphs: 145 Date of hearing: 11 August 2021 Place: Parramatta Counsel for the Applicant: Ms Spain Counsel for the Respondent: Mr Blackah Solicitor for the Independent Children's Lawyer: Mr MacDiarmid ORDERS
PAC 438 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DAHLMANS
Applicant
AND: MS DAHLMANS
Respondent
ORDER MADE BY:
JUDGE MYERS
DATE OF ORDER:
3 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Court confirms the Orders made by Senior Registrar Crawford on 2 June 2021, subject to the following amendments:
(a)The time provided at Order 4.1 shall be increased where time on alternate weekends shall commence at 1:00pm Saturday, until 1:00pm Sunday; and
(b)That the requirement for supervision by Families O in Sydney be removed, where the Father is supervised by any of those persons listed at Order 5 of the orders made by Senior Registrar Crawford.
(c)That Order 5a shall be amended to include the Maternal Uncle Mr B being a person who may supervise the Father’s time, subject to Mr B providing an undertaking in the terms provided for at Order 5B.
2.That a Limited Issues Report be prepared that covers the following issues:
(a)Whether the Mother is engaging in behaviours that are designed to align the Children against the Father.
(b)Whether the Children are being subjected by the Mother to systems abuse through the Mother’s engagement of the Children with victims counselling.
(c)Whether the Children and Mother’s relationship is, or is at risk of, becoming enmeshed such that the Children should not be home-schooled by the Mother.
(d)Whether the Mother’s mental health is sufficiently well managed, such that the Mother possesses the capacity to provide for the Children’s intellectual needs, particularly where they are home-schooled by the mother.
3.That these Orders shall operate as an authority so as to allow the Father and any supervisor nominated by these Orders to travel outside of the Greater Sydney region for the purposes of spending time with the Children (X born in 2014, Y born in 2012, and Z born in 2009), in Town C NSW.
4.That these Orders shall operate as an authority so as to allow the Mother and Children to travel to Sydney, and return to Town C NSW, for the purpose of the Father spending time with the Children.
5.That a Child Inclusive Conference be held in late November with a Memorandum to be prepared in time for the next Interim Hearing.
6.That the matter be listed for further Interim Hearing to determine whether the requirement for the father’s time being supervised be lifted.
7.The matter is adjourned for Interim Hearing on 15 December 2021 at 10:00am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Dahlmans & Dahlmans has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
ORAL REASONS FOR JUDGMENT
JUDGE MYERS
These are proceedings between Mr Dahlmans (the ‘Father’), and the Ms Dahlmans (the ‘Mother’), concerning three children, namely X, aged seven; Y, aged eight; and Z, aged twelve (collectively, the ‘Children’).
This is a short oral judgment in respect of the Father’s Application for a Review of an interim parenting decision made by Senior Registrar Crawford, made on 2 June 2021.
The decision made by Senior Registrar Crawford provided for the following detailed and comprehensive orders:
(1)All prior parenting orders are discharged.
Live with
(2)The children X born in 2014, Y born in 2012, and Z born in 2009 (the “children”) shall live with the Mother.
(3)The Mother be restrained by injunction from moving the residence of the children from the township of Town C without the prior written consent of the Father or an Order of this Court, subject to the mother being permitted to return the children to the D area of Sydney.
(4)Subject to the following Order, the children shall spend time with the Father as agreed in writing between the parents and failing agreement:
4.1 On Saturday 5 June 2021 and each alternate Saturday thereafter from 1pm to 7pm supervised in accordance with Order 5;
4.2 On three occasions of 4 hours each supervised by Families O Casework Support Scheme (“Families O”) at dates and times as are agreed by the parties and Families O and failing agreement as are nominated by Families O. It is requested that if possible, this supervised time occur at intervals of between 4 and 8 weeks and for the avoidance of doubt, is to be in addition to the supervised time in Order 4.1.
Supervision
(5)The Father’s time provided for in the previous Order:
(a)Shall be supervised by any of the following people (the “supervisor”):
(i)Mr E;
(ii)Mr F;
(iii)Mr G;
(iv)Mr H; or
(v)Such person as is agreed to between the parents and the Independent Children’s Lawyer;
(b)Is conditional upon the supervisor providing to the Court a signed Undertaking in the following terms:
In relation to times when the children X born in 2014, Y born in 2012, and Z born in 2009 (‘the children’) are spending time with the Father (‘the father):
a.I will supervise the father at all times that he is in the presence of the children;
b.I will not permit the father to be in the children’s presence if I observe that he is engaging in any violent, threatening, intimidating or inappropriate behaviour.
c.In the event that the father does not comply with my directions in relation to paragraphs a to b above I shall contact the mother and immediately terminate the visit with the father.
d. I shall take all reasonable steps to report to the Independent Children's Lawyer appointed in this matter any incidents which cause me concern about my supervision of the father’s time with the children.
Contact service
(6)To facilitate the time provided for in Order 4.2, each parent shall forthwith do all things necessary to engage with Families O including completing any necessary intake process in a timely fashion.
(7)The Father will obtain a report from Families O for each occasion he spends time with the children pursuant to Order 4.2 and will make a copy of such report available to the solicitors for the Mother and the Independent Children’s Lawyer within 7 days of receipt by the Father.
(8)The Father will be responsible for all fees and charges of Families O with respect to the children’s time with him.
Changeovers
(9)Changeovers shall occur as agreed between the parties and failing agreement;
9.1 For the first two out of three alternate Sundays at McDonald’s Town C;
9.2 For the third Sunday, outside of the Shop J at K Shopping Centre.
9.3 For these occasions, supervised by Families O, such location is nominated by Families O
and both parents shall ensure that, during changeovers:
(a)Each parent will behave in a civil and courteous manner to the other parent and any other person who may be present;
(b)Each parent will conduct themselves in a child focused manner;
(c)Each parent will limit their conversation to matters that specifically pertain to immediate matters of the children passing from one parent’s care to the other;
(d)Neither parent will discuss issues of any controversy between them.
General orders
(10)Both parents shall keep the other advised at all times of their residential address, email address and contact telephone number and shall advise the other party within 48 hours of any change to either their residential address or telephone number.
(11)Each parent shall be permitted to communicate directly with the children’s school/s, sporting bodies, and medical practitioners to obtain any necessary information and/or documents about the children’s progress and this Order shall constitute sufficient authority for such communication.
(12)Each parent shall do all reasonable things necessary to ensure that they facilitate the children participating in their scheduled extra-curricular activities during such periods that the children are spending time with them.
(13)Both parents shall keep the other advised of the health of the children including any serious illness, medication or hospitalisation of either child as soon as reasonably practicable and to allow the other parent to visit the children if hospitalised.
(14)Without limiting any other Order providing for communication between the parents and the children, the children may communicate with both parents by electronic means at any reasonable time when they are in the other parent’s care and each parent shall do all things necessary to facilitate the children communicating with the other parent by electronic means on a regular basis.
Restraints
(15)Without admissions, when the children are in their respective care, each parent is restrained from:
15.1 Physically disciplining the children;
15.2 Denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent, the other parent’s extended family, or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence;
15.3 Discussing the proceedings or any allegations raised in these proceedings with the children or permitting any other person to do so with their knowledge or in their presence;
15.4 Permitting the children having access to any of the documents filed in these proceedings;
15.5 Communicating any information intended for the other parent through the children;
15.6 Causing the children to be a medium in any way between the Mother and the Father or between the Mother and the Father and any other person.
Men’s behaviour Change Program
(16)Without admissions, the Father shall contact the Family Advocacy and Support Service and seek a referral to a Men’s Behaviour Change Program in his locality in the event that the Family Advocacy and Support Service recommends that he engage in a further course noting that he is currently engaged in Families Q’s Rebuild program, and upon receipt of such referral:
16.1 Shall attend and complete the first available such course;
16.2 Pay all required fees;
16.3 Provide a copy of a certificate of completion of such course to the Independent Children’s Lawyer and the lawyer for the other parent.
Parenting courses
(17)Each parent shall within 7 days contact the Information and Referral Officer for the purposes of each seeking a referral to attend an appropriate parenting after separation course, and upon receipt of such referral:
17.1 Shall attend and complete the first available such course;
17.2 Pay all required fees;
17.3 Provide a copy of a certificate of completion of such course to the Independent Children’s Lawyer and the lawyer for the other parent.
COMP mediation
(18)The parents and the Independent Children’s Lawyer shall participate in a Legal Aid mediation under the COMP program (the “mediation”) at a time and date appointed by Legal Aid NSW, AND THE COURT NOTES THAT the Independent Children’s Lawyer has obtained funding for such mediation to take place.
(19)The matter remains listed before the Evatt Registrar on 8 June 2021 at 11am for Orders in relation to the financial matter and it is recommended that Orders are made at that time for the matter to be removed from the Evatt List.
JURISDICTION
Pursuant to section 104(2) of the Federal Circuit Court Act of Australia Act 1999 (Cth) (‘FCCA Act’):
(2) A party to proceedings in which a Registrar has exercised any of the powers of the Federal Circuit Court of Australia under subsection 102(2) or under a delegation under subsection 103(1) may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with Rules of Court;
apply to the federal Circuit Court of Australia for review of that exercise of power.[1]
[1] Federal Circuit Court Act of Australia Act 1999 (Cth) s 104(2) (‘FCCA Act’).
At page 4 of the Mother’s Outline of Case, filed on 6 August 2021, Counsel for the Mother conceded jurisdiction in respect of the Father’s application for review and, in particular, that the Father’s “review application was filed in time”.
Section 104(3) of the FCCA Act provides:
(3) The Federal Circuit Court of Australia may, on application under subsection (2) or on its own initiative, review an exercise of power by a Registrar under section 102(2) or under a delegation under section 103(1), and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.[2]
[2] FCCA Act (n 1) s 104(3).
FATHER’S APPLICATION
The Father seeks that this Court review Senior Registrar Crawford’s decision and, in doing so, make new orders where the Father’s primary application is that the Children relocate back to Sydney to live primarily with the Mother and spend time with him.
However, in the event the Mother determines to remain in Town C, the Father’s position is that the Children live with him in Sydney, and spend time with the Mother.
MOTHER’S APPLICATION
The Mother’s position is made clear in her Case Outline that provides that the Mother seeks that the Court make the same Orders as were made by Senior Registrar Crawford on 2 June 2021.
SCOPE OF THE EVIDENCE
At the outset, the Court makes the comment that the material relied upon by these parties is voluminous. The length of the Affidavits well and truly exceed the practice direction in respect of Affidavit material to be relied upon in interim proceedings not by a small amount, but by a country mile.
That practice direction is, of course, Practice Direction No. 2 of 2017, Interim Family Law Proceedings, from 1 January 2018, and provides, inter alia, that:
Pursuant to section 51 of the Federal Circuit Court of Australia Act 1999 the Court directs that, unless express leave is granted by the Judge into whose docket the matter has been allocated, affidavit material in support of an interim application must not:
•exceed 10 pages in length for each affidavit;
•contain more than 5 annexures.[3]
[3] FCCA Interim Family Law Proceedings Practice Directions No. 2 2017.
The Mother relies upon her Tender Bundle, an Affidavit sworn by the Maternal Grandmother, and two Affidavits sworn by her, the first of 5 May 2021 (comprising 23 pages, including annexures); and the second being her affidavit of 6 August 2021 (some 67 pages in length, including annexures).
Counsel for the Mother made the startling comment to the bench during submissions that in effect I will have to actual read all the affidavit material in this case. I offered the simple reply that I would of course do so as that is my job. And while in this case the court did not insist on limiting the breadth of reading of the affidavit material that fell outside of the practice direction as this is a review of the Registrar’s decision where the Registrar had read and relied upon a wide breadth of the material it is as much the job of the practitioners to at least attempt to comply with the practice direction as it is the court to read the material.
BACKGROUND
The Father was born in 1976.
The Mother was born in 1979.
Following commencement of the parties’ relationship, the Mother suggests that she observed the Father in a rage when he scratched the roof of his motor vehicle.
In 2005, the parties married and commenced cohabitation.
The Mother suggests that during the first year of the marriage, when the parties were at village L, the Father became enraged when his car got stuck in a driveway.
In 2009, Z was born.
In 2012, Y was born.
In 2014, X was born.
In 2016 the Mother had, what her Counsel described in her outline of case document as, a lesbian sexual encounter. The Father describes it as an affair. It is safe to say that this event was in no small part the catalyst of the breakdown of the parties’ relationship. The Father goes into counselling in an attempt to deal with what has taken place.
There is little dispute that following the disclosure of the affair, the Father begins on a course of action to try and catch the Mother cheating on him. The Mother suggests that the Father engaged in coercive controlling behaviours by monitoring her electronically and filming her; on one occasion the Mother suggests the Father punched a wall near her.
In reality the parties’ relationship continued to spiral into demise and the Mother then, what her Counsel describes in the Mother’s Case Outline, moved out of the marital bedroom and into the spare bedroom.
The tender material suggests the Mother had engaged in some counselling prior to separation, and relayed to her counsellor that she was supported by the father.
In about March 2020, due to the COVID-19 pandemic, the Father commenced working from home.
In about June 2020, the Mother and the Children travelled to Town C, NSW.
On or about 12 July 2020, the Mother gives evidence that the Father messaged her acknowledging that he had been an absent husband.
In or about early September 2020, the Mother alleged that the Father screamed at the Children from his office window, and the Mother gave evidence that on 13 September 2020 the Father hit, flicked or whipped Y with a tea towel. The Father deposed that during dinner he was standing in the kitchen, and Y walked past him and wiped his dirty hands on the kitchen tea towel. The Father suggested in his response that he grabbed the kitchen towel that was resting on his shoulder and flicked it towards Y as he was walking away, and it hit him on the back.
The Father gave evidence that he instantly recognised that he was frustrated and had crossed the line, and went outside to calm down. Shortly after, the Father deposes that he went back inside to apologise to Y, but saw that he was still upset and that stressed him further, so he went back outside to breathe and calm down. While he was out the back, the Father suggests that he had noticed several of the children’s toys and objects strewed across the yard, and tossed several of them towards where they should have been put away, including Z’s umbrella, which he tossed onto the deck.
The Father gave evidence that on the afternoon of Friday, 16 October 2020, he came home from work to find a note in the Mother’s handwriting indicating that she had taken the Children to Town C. The Father suggests that he then checked the home and discovered that a quantity of the Children’s and Mother’s belongings were missing.
The Father deposed to then sending a text message to the Mother that read:
I just got home. I don’t know what to say. I am lost. I hope you travel safely. I love you all.
The Father gives evidence that he spoke with the Children on Y’s birthday, which was in 2020, via video call on Google Hangouts, and all three Children said repeatedly to him words to the effect, “I love you, Daddy” and “I miss you, Daddy”.
On 16 November 2020, the Father deposes that he received a call from Services Australia who advised him the Mother had made an application for Child Support.
The Father deposes to being confused by this, where he suggests that the Mother had not indicated to him she wanted to separate prior to this.
On 6 December 2020, the Father suggests that he received a text message from the Mother that provided:
This is to trial essential functional communication only via text to this phone number (e.g. bills, cards, tax). Be advised should use of this platform occur for any purpose other than essential functional communication it will immediately be discontinued. 25 Oct - beds for kids. $608. 13 Nov - Vet bill for pet M infection. $390, 11 Dec - approximately $700 for mechanic O2 sensors replacement.
It is the Father’s evidence that on 14 November 2020, he instructed his lawyers to send the Mother a letter requesting that the Children spend time with him on Christmas Eve, for one hour; and Christmas Day for two hours; and that they speak to him by video chat by agreement.
On 18 December 2020, the Father’s lawyers received a letter from Lyon Legal, who acted for the Mother at the time. Lyon Legal advised that the Mother was not agreeable to facilitating any time or communication between the Father and the Children.
The Father suggested that he was shocked when he read the letter from Lyon Legal, as it contained an allegation that throughout the relationship that he perpetrated family violence against the Mother and the Children. The Father deposes that apart from the incident where he flicked Y in 2020, and for which the Father deposes he is remorseful, the Father denies that he has been physically or emotionally abusive towards the Mother or the Children throughout the relationship.
On 23 December 2020, the Father received a Christmas package from the Children. X and Y drew the father a Christmas card.
On 3 February 2021, the Father commenced parenting proceedings seeking orders for a Recovery Order, and thereafter, the Children live with the Mother, the Parties have equal shared parental responsibility, and the Children spend substantial and significant time with the Father.
On 22 March 2021, the Parties and Children engaged in a Child Inclusive Conference and a Memorandum was then prepared, dated 30 March 2021.
On 1 April 2021, on the first return of these proceedings, Interim Orders were made by Consent that essentially provided for supervised time between the Father and Children each Saturday and Sunday, for a period of six hours, pending Interim Hearing.
On 26 May 2021, an Interim Hearing is conducted before Senior Registrar Crawford. The decision was then reserved and the Registrar then makes the Orders, the subject of the Review, on 2 June 2021.
On 23 June 2021, the Father filed a Review Application.
On 16 July 2021, the Father filed an Amended Review Application.
On 21 July 2021, the Review Application came before Judge Obradovic, who recused herself.
On 23 July 2021, the review application comes before me, and the matter is adjourned to 11 August 2021 for Hearing. The decision was then reserved.
There is no argument in these proceedings that the Children will not benefit from having a meaningful relationship with the Mother.
It is clear to the Court, however, that the Mother sees little, if any, benefit at all in the Children maintaining a meaningful relationship with their Father.
The Mother discounts the love the Children express for their Father, and rather simplistically labels him in these proceedings as a perpetrator of family violence, and as such, the Children should spend only supervised time with the Father when this issue, while real, is anything but uncomplicated.
The Mother’s attitude towards the Children’s relationship with the paternal family were well on show, where her actions in relation to the lead-up to the death of the Paternal Grandfather, and then the Paternal Grandfather’s funeral were nothing but callous, where on 22 March 2021 the Father sent an SMS text message to the Mother that read:
Hi Ms Dahlmans. I just wanted to let you know that my Dad has been really unwell and went back into hospital last week and we were planning on putting him into respite care. I just got a message from Miss N to say that the doctor's think he is too unwell for respite and are going to move him into palliative care. Mr Dahlmans.
The Father provided uncontested evidence that a response was never provided.
On 27 March 2021, the Father gives uncontested evidence that he sent another SMS text message to the Mother that read:
Hi Ms Dahlmans, I don't know if it is something you are interested in doing, but I don't know how much longer Dad has to go, so if you were interested in sending a video of the kids to Mum so she can show Dad, that would be very special. I don't know if he will recognise them as he didn't seem to recognise V and W. But it would be nice. Thanks, Mr Dahlmans.
Similarly, the Father sets out that the Mother did not respond to the text message.
Ultimately, the Paternal Grandfather passes away.
In 2021, the Father deposed to sending an SMS text message to the Mother that read:
Hi Ms Dahlmans, the Thanksgiving service for Dad has now been confirmed as 10.30am at Church Service P. I know it will be a challenge logistically amongst other things but it would be great if Z, Y and X were able to be there. Not sure at the moment whether it will be able to be streamed but I will send through the link shortly for the Livestream for the cremation service on Monday. I need to have videos to the crematorium by tomorrow for the cremation service, so if you are planning on doing a video from Z, Y and Z please let me know. God’s love and grace to you all. Mr Dahlmans.
The Father deposed that in 2021, he received an SMS text message from the Mother which read:
The children have not expressed an interest to be involved in a service. There has been opportunity for videos of the children during the 54 hours over the past 5 weekends.
The Mother’s text message to the Father, in 2021, if correct, demonstrates to the Court that the Mother also sees no benefit in the Children maintaining a meaningful relationship with the paternal family.
The Court considers the need to make Orders to protect the Children from suffering physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
In respect of the Mother and her care of the Children, where there is no dispute between the Parties, the Court easily finds the Children will not be subjected to abuse or family violence by the Mother. The issue, of what might be best described as risk of neglect of the children’s intellectual and emotional needs, are discussed further in this judgment when the Court considers the Mother’s capacity.
For the purposes of section 60CC(2)(b),[4] the Court considers it necessary to Order a Limited Issues Report to inquire into the Mother’s capacity to provide for the Children, such that they will not suffer intellectual nor emotional neglect.
[4] Family Law Act 1975 (Cth) s 60CC(2)(b) (‘FLA’).
The issue of the Father’s physical discipline of the Children is central to the issue of risk in these proceedings. It is accepted that the Father has physically disciplined the Children in these proceedings.
Punishing a child using physical force against them is an assault. However, the law has acknowledged that it is lawful for a parent to discipline a child using force. Until 2002, in New South Wales, the public relied upon the Courts to determine what may, or may not, constitute acceptable behaviour for an adult when disciplining a child.
In 2002, the Crimes Act 1900 (NSW) (Crimes Act) was amended, [5] clarifying what may, or may not be, acceptable discipline. The Crimes Act now defines circumstances in which a defence of lawful correction of children may be raised as a defence against criminal charges.
[5] Crimes Act 1900 (NSW) (Crimes Act).
Section 61AA (1) and (2) of the Crimes Act outlines the defences that may be available.[6]
[6] Ibid ss 61AA(1), 61AA(2).
Subparagraph (1) provides:
In criminal proceedings brought against a person arising out of the application of force to a child, it is a defence if the force was applied for the purposes of punishment of the child, but only if physical force was applied by the parent of the child or by a person acting for a parent of the child, and the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.[7]
[7] Crimes Act (n 6) s 61AA(1).
Subparagraph (2) provides:
The application of physical force, unless that force could reasonably be considered trivial or negligible in all the circumstances, is not reasonable if the force is applied to any part of the head or neck of the child, or to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period.[8]
[8] Ibid s 61AA(2).
The use of physical discipline, or what is also termed ‘corporal punishment’,[9] has fallen well out of favour, and is deemed by many as unacceptable in today’s Australian society. In the context of active parenting proceedings before the court under the Family Law Act 1975 (Cth) (Family Law Act),[10] it is both unwise and foolhardy for any litigant parent to believe a continuance of physical discipline will not draw from the other party the making of an accusation of abuse or family violence.
[9] United Nations Committee on the Rights of the Child, General Comment No 8: The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading forms of Punishment, 42nd sess, UN Doc CRC/C/GC/8 (2 March 2007).
[10] FLA (n 4).
Many people of my age, in their fifties, or older, might talk of being given a good ‘clip over the ears’ by their parents when misbehaving; being given ‘the wooden spoon’; or having been physically disciplined in school. It was uncommon for boys my age or older to escape high school without having been given what was termed “three of the best”, where an often frazzled and frustrated teacher would strike a student repeatedly on the hand, or back of the thighs, with a cane. I, like many others, had such punishment meted out to them.
Corporal punishment was banned in New South Wales’ government schools in 1990, and in non-government schools in 1995. Queensland repealed provisions that allowed for corporal punishment in state schools in 1989. While in Victoria, corporal punishment was banned in government schools in 1985, and banned in all non-government schools in 2006.
At paragraph 5 of the Child Inclusive Conference Memorandum, the Family Consultant records:
Mr Dahlmans acknowledged that he flicked a tea towel at Y in 2020 when he had “a blow up,” and that he yelled at the children on a few occasions. He said that he now understands that his loss of control may have made Ms Dahlmans and the children feel fearful. Mr Dahlmans said that he has seen counsellors in the past, and has recently completed a men’s behaviour change program, through Families Q.
At paragraph 27 of the Child Inclusive Conference Memorandum, the Family Consultant records Z as saying:
She used to enjoy going to the park or cooking with Mr Dahlmans, although then qualified this by saying that it was “hard to remember because he got angry with us a lot”. She commented that she used to think that it was her fault. When Z was asked about her parents not living together, she said, “because my dad was being mean to us. He would hurt us and yell at us” if they did not obey him the first time. Z recounted a time where she was “having an off day” and did not want to smile in a family picture. She said that Mr Dahlmans “hit me and hurt me.” Z said that this was “a long time ago.” She said that she was “frightened a lot of the time” when they were living with Mr Dahlmans but sometimes wasn’t. Z commented that all the children have a temper “although we were learning to deal with it” and said that “Mum doesn’t”.
At paragraph 28 of the Child Inclusive Conference Memorandum, the Family Consultant further records Z as saying:
…she would like to see Mr Dahlmans because she misses him, but wants “to be safe with him.” She said that the children have a counsellor in Town C and that she, or someone like her, could perhaps be there when they see Mr Dahlmans. Z commented that she is not sure “that Dad’s really changed,” and is not sure whether “he knows the reason we came here” which was “to get away from his temper.
Under the heading Parental Pressures and Discipline the Father’s Clinical Counsellor, Ms R, in a report dated 9 April 2021, detailed the Father’s history of frustration and physical discipline of the Children. The Court is not in a position to find that the Father has detailed to Ms R each and every occasion he has physically disciplined the Children, where the evidence is not tested. However, there is a significant difference to that disclosed by the Father to Ms R, and that detailed by the Mother and Maternal Grandmother in their respective Affidavits.
While the Father may be able to rely upon the defence available to him in the Crimes Act,[11] citing his physical punishment of the children amounted to a case of lawful correction, he is not able to rely on such a defence to escape the Mother’s criticism of him, or the Children’s fear of him.
[11] Crimes Act (n 5).
The Independent Children’s Lawyer sums up the issue well within the outline of case document, stating:
It is clear the children want to have a relationship with their father and the ICL contends that subject to section 60CC(2)(b),[12] that relationship would be in their best interests. Nevertheless, the ICL also observes that:
(1) Z has been very clear that she wishes to have a relationship with her father but is frightened of his anger and feels anxious about the current supervised arrangements – see paras 27 and 28 of CIC and the grandmother’s affidavit Ms S filed 21/5/2020 paras 21-23.
(2) On the father’s admission there has been family violence involving the children; the mother contends that that has affected the overall environment of the children in a highly detrimental way. From the ICL’s position, regardless of how the father’s behaviour has been triggered (and he appears to maintain via Ms R to attribute his anger management issues and suicidal ideation since 2018 to the mother’s infidelity; to work pressures; and the loss of a friend), it is really the father’s responsibility to manage his responses.
[12] FLA (n 4) s 60CC(2)(b).
Given the concerns raised around the Children’s fear of the Father, particularly Z’s concerns of safety in the Father’s care, it is difficult to find that allowing the Father, at this point in time, to have time with the Children without another person being present is in the best interests of the Children.
While the injunctive Order made by the Registrar preventing the Father from physically disciplining the Children is, in the view of the Court, sufficient to prevent the Children from being exposed to abuse or family violence, that injunction does little to abate or protect the Children from their fears, particularly around his temper.
In saying that, the Court is not at all satisfied that the Father’s time ought to be limited to day time only; rather, that the Father’s time should be extended to encompass the Saturday night and a proportion of the Sunday, with the time to take place on alternate weekend from 1:00pm Saturday to 1:00pm Sunday. Further, that the requirement for supervision by Families O in Sydney be removed whereby the Father is supervised by those persons listed in Order 5 of the Orders made by Senior Registrar Crawford.
Despite any suggestions made during submissions to the contrary, the Family Consultant did not suggest that supervision was definitively required, but rather, at paragraph 39, stated:
If the Court holds concerns regarding harm to the children from Mr Dahlmans, then supervised time may be necessary to ensure psychological and physical safety. If not, then it will be important that the children spend time with Mr Dahlmans to rebuild their relationship with him. At the moment there is a danger that this relationship may be at risk.
The Children’s views are reported by both Parents.
The Father suggests that the Children express a strong view that they miss him, and long for a return to their relationship with him.
The Mother suggests that the Children are fearful of the Father.
The Family Consultant set out well what the Court accepts is Z’s views, found above, while the Family Consultant notes that Y said that his parents no longer live together “because Dad was a little violent,” and that Mr Dahlmans “once whipped me with a tea towel”. Y said that Mr Dahlmans would usually go to his room when he was angry, but “sometimes got violent”, so that the Children and the Mother were scared.
At paragraph 32 of the Child Inclusive Conference Memorandum, the Family Consultant recorded that Y described playing games with Mr Dahlmans and that he “let us have scrambled eggs” on Saturdays. He said he misses “everything” about Mr Dahlmans, because he has not seen him at all. Y said that Ms Dahlmans has not planned a trip to Sydney but he would like to “spend a few nights” with Mr Dahlmans. He was enthusiastic about the idea of Mr Dahlmans coming to Town C because he really enjoys living there, but he says that he would also like to go Sydney because he has heaps of toys there.
It should be noted that Y’s views about his strong bond and yearning for a relationship with the Father exists, despite the Mother using the incident of the Father flicking Y with a tea towel as a central plank in her argument against the Father for supervised time.
While the Family Consultant set out that X presented as a playful and friendly young boy, he spoke of playing cards with Ms Dahlmans and then the maternal grandparents and walking around the block with Mr Dahlmans. He said that he had fun with Mr Dahlmans but “he was a little bit scary.” Y referenced Mr Dahlmans “whipping” Y, and said that he “would yell at us” which “was scary”. He said that Ms Dahlmans “tells us to go to our room” if she is cross with them.
The Family Consultant went on to record that X said that he would really like to see Mr Dahlmans and would “play with him and do something special” if he saw him. For the purposes of these interim proceedings, the Court forms the view that the Children very much wish to spend time with their Father, to be safe and do not wish to be exposed to his temper.
The Court considers the nature of the Children’s relationship with the Father and Mother.
The Children are clearly primarily attached to the Mother. They love their Father and long for a normalised, safe relationship with him.
At paragraph 37 of the Child Inclusive Conference Memorandum, the Family Consultant provides the following poignant insight on the nature of the Children’s relationship with their Father:
The children appear to be enjoying their life in Town C, however the boys, in particular, appear to miss Mr Dahlmans. There was also a recognition, however, that they were sometimes afraid of him. To develop optimally, children require an environment which is safe, secure and free from fear of adults who may not be able to control themselves.
The Mother’s ambivalence towards the Children’s relationship with the Father and paternal family sells short their need, and desire, to have a relationship with their Father.
The Mother suggested to the Family Consultant, at paragraph 30 of the Child Inclusive Memorandum that:
…because Y was Mr Dahlmans’ favourite, she believes he is missing his father the most.
The Family Consultant recorded the Mother as saying Y tells her, “I want Dad,” when he gets angry, and that the Mother said that Y’s aggression is concerning and that he will openly lash out at her.
The Mother’s comments cause the Court to question whether the Mother possesses any real insight into the effect of the move, some seven hours drive away from the Father, to Town C, has had on the Children or the toll on the Children of the loss of their relationship with him, particularly where the Children have spent no time with the Father since the commencement of the Sydney COVID-19 lockdown some several weeks ago, despite the Orders of this Court prevailing over any State ban on travel to regional New South Wales.
When considering the nature of the Children’s relationship with other persons, it is not known how the Children might, in the future, look back on the callousness with which their Mother approached the time leading up to the Paternal Grandfather’s death, and then his funeral. Particularly where the Mother is recorded by the Family Consultant, in paragraph 34 of the Child Inclusive Conference Memorandum, of advising that X “is particularly close to the paternal grandfather”.
This is not a case where either Parent has taken, or failed to take, the opportunity participate in making decisions about long-term issues in relation to the Children, to spend time with them, or to communicate with the Children.[13]
[13] FLA (n 4) s 60CC(3)(c).
Similarly, this is not a case where the Parents have failed to fulfil their obligations to maintain the Children.[14]
[14] Ibid s 60CC(3)(ca).
The likely effect of any change in the Children’s circumstances, including the likely effect of the separation of the Children from either of the Children’s Parents, or any other Child, or other person (including the grandparents or relative of the Child), with whom he or she has been living; is a particularly prominent consideration in these proceedings.[15]
[15] Ibid s 60CC(3)(d).
The Children have experienced significant change. They have gone from living in an intact family with both parents in their family home, to now living some 7 hour’s drive away from the Father and their old home, living at the Maternal Grandmother’s home with the Mother in country NSW. This change came about both because the Mother left the relationship with the Father, and upon doing so, relocated with the children to the Maternal Grandmother’s home in Town C. The decision was one unilaterally made by the Mother in circumstances where she suggested she fled away from a situation of family violence to a place of support. The effect of that decisions has seen the Children all but lose their relationship with the Father. A situation warned against by the Family Consultant.
While the Mother may suggest that the effect of that change has been a positive one, the Court sees these Children as suffering significant hurt and loss in respect of their relationship with their Father. There is no doubt that the strong bond the Children have with the Mother and maternal family may have, to some extent, cushioned the blow of change to these Children and the limitation of time with the Father. Despite the cushioning effect, the Children, in particular, are now suffering a palpable loss.
On the Mother’s application, the Children will remain largely separated from the Father by way of tyranny of physical distance and by virtue of the existing Orders limiting time with the requirement of supervision.
On the Father’s application, the Mother will be required to move back to Sydney with the Children, or face the Children being removed from her care, and placed to live with the Father. While the return of the Children to Sydney would certainly place the Children back into a city of familiarity, they would not, for instance, reconnect with their previous school as the Children are home-schooled. The Children would face a change in circumstances where they would then live with the Mother in Sydney, where the Mother suggests she would be unable to live and where she suggests she has less support. Such a situation of change could be of significant detriment where, for reasons expressed further in this judgment, the Court has concerns about the Mother’s capacity.
Were the Mother to surrender the Children to the Father and return them to Sydney, the Children would then live with the Father in a relationship that, for the time being, is fragile, and less than solid enough to see the Children adopt to the change without detriment. The loss to the Children caused by moving out of the Maternal Grandmother’s home town, and away from her, would, in the view of the Court, pose no significant challenge to the Children, where they have been able to maintain a strong relationship despite distance over the majority of their young lives.
The practical difficulty and expense of the Children spending time with and communicating with the Father, and whether that difficulty and expense will substantially affect the Children’s right to maintain personal relations and direct contact with both Parents on a regular basis is also a significant issue.
The Mother lives some seven hours drive away with the Children. The Father is asked to undertake the lion’s share of travel, and is required to accommodate himself in a town where, on his evidence, he finds commercial short-term accommodation in caravan parks.
The effect of COVID-19 has seen the Parents shy away from affecting the Orders for a time, and that has exacerbated the loss for the Children.
The Court considers the Parents’ capacity.
The Father, at this point in time, possesses the capacity to provide for the needs of the Children, including their emotional needs, where the Children live with the Mother and spend time with him. The Father, having historically lost his temper, taken his frustrations out on the Children in the form of discipline to the point of allowing a serious accusation of family violence is a significant issue and one that leads the Court to consider the Father lacks the capacity for the time being to provide for the needs of the Children, including their emotional needs, were the Children to live with him.
What the Father must do is build his capacity to parent without frustration and/or temper, with the goal of having the Children engage with him without fear, or what the Mother terms as “walking on eggshells.” If the Court accepts the work the Father has done to go through courses with his counsellor and the supervised time is spent without incident of allegation against the Father of abuse, then the Father may well be on the way of redeeming himself in the eyes of the Children.
The Court is at this time impressed by the work undertaken by the Father in terms of engaging in a men’s behaviour change course and managing his mental health through a long-term engagement with Ms R.
The Report of Ms R, annexed to her Affidavit dated 20 April 2021, stands in stark contrast to that filed by the Mother, prepared by Ms T, particularly in respect of the length of engagement by the Father with Ms R, and the length of engagement by the Mother with Ms T.
Ms R sets out a long history of treating the Father since about the time he discovered the Mother was having an affair in 2016. Ms R sets out the Father’s long history of counselling, where:
Mr Dahlmans commenced counselling in 2016 and has subsequently attended 66 sessions over this time.
Ms R further sets out:
There was a period where Mr Dahlmans ceased his counselling sessions with me for one year, between September 2019 and October 2020. At the time of recommenced when Mr Dahlmans’ wife had just left him.
The occasions the Father had visited upon Ms R include:
(1)2016:
13.9.16, 28.9.16, 19.10.16, 1.11.16, 18 .11.16, 2.12.16, 14.12.16.
(2)2017:
18.1.17, 8.2.2017, 7.3.17, 30.3.17, 12.4.17, 24.4.17, 9.5.17, 30.5.17, 21.6.17, 5.7.17, 8.8.17, 29.8.17, 21.9.17, 10.10.17, 24.10.17, 15.11.17, 29.11.17, 21.12.17.
(3)2018:
17.1.18, 21.2.18, 7.3.18, 29.3.18, 18.4.18, 24.4.18, 9.5.18, 24.5.18, 13.6.18, 26.6.18, 17.7.18, 24.7.18, 8.8.18, 29.8.18, 19.9.18, 2.10.18, 30.10.18, 15.11.18, 4.12.18.
(4)2019:
8.1.19, 24.1.19, 26.2.19, 12.2.19, 17.4.19, 1.5.19, 22.5.19, 19.6.19, 3.7.19, 21.8.19, 19.9.19.
(5)2020:
27.10.20, 5.11.20, 12.11.20, 3.12.20, 15.12.20.
(6)2021:
20.1.21, 11.2.21, 9.3.21, 17.3.21, 23.3.21, 8.4.21.
For a time, the Court is of the view that the Father’s capacity will be bolstered through an adult person being present during the Children’s time with the Father, as it will, in effect, protect the Children and, particularly, give Z licence to feel safe. That person should, in addition to the existing supervisors mentioned in the material of the Court, be the Children’s Maternal Uncle.
The Court does not accept the Mother’s evidence that her brother is likely to allow the Children abused so as to, in effect, support the Father. The requirement for the Father to spend time in the presence of the Maternal Uncle or the existing supervisors, Mr E, Mr F, Mr G, Mr H, should, in the view of the Court, only continue for a period of approximately 12 weeks from the making of these Orders, following which the Court expects that the Children should be emotionally ready to spend time with their Father alone.
The Court proposes to bring the matter back for a further Interim Hearing in late November to then consider the question as to whether the Father’s time should progress to unsupervised time.
The Court finds the Mother has the capacity to provide for the day-to-day needs of the Children, where she lives in Town C, and close to her mother’s home. The Court, however, questions the Mother’s capacity to provide for the Children’s intellectual and emotional needs.
There are issues in relation to the Mother’s capacity that causes the Court some concern, particularly when the Children are home-schooled by the Mother, and are subjected to her narrative, rather than any external narrative or influence where the Children are engaged in ordinary school life. To this end, and in order to ensure the Children’s needs, particularly their emotional and intellectual needs are being met, the Court will make an Order for the preparation of a Limited Issues Report, the scope of which is tailored to be issues of concern the Court is deriving from the Mother’s evidence in these proceedings.
Those issues of concern are best summarised as follows:
·The limited and brief description by the Mother of her mental health difficulties, particularly where the Mother states, at paragraph 11 and 12 of her Affidavit, sworn or affirmed on 19 March 2021, that she has been diagnosed with depression and complex post-traumatic stress disorder, was medicated and, although she was experiencing severe depression, she continued to home-school the children.
·The report of Ms T, psychologist and psychotherapist at Mental Health Services U, dated 4 May 2021, forming Annexure “C” to the Mother’s Affidavit sworn 5 May 2021, gives some insight into the Mother’s mental health struggles.
·At paragraph (h) Ms T notes some limitations of the Report, where the Mother’s prognosis is somewhat guarded, particularly where Ms T sets out she is not a psychiatrist and has only known the Mother for a couple of months.
·
Ms T sets out, at paragraph (i) her concern the Mother will benefit from continuing psychological support because, in the words of Ms T
“raising 3 children, managing the financial requirements, home schooling, going through settlement with her ex-partner, and emotionally supporting her 3 children through the separation is very exhausting.”
·The Mother details Z’s significant struggles with anxiety since a young child, and her behaviour whereby Z has been violent towards the Mother. And while the Mother might try and sheet home that behaviour as being caused by the Father, there is just an insufficiency of any expert opinion that would come close to allowing the Court to make a finding to that effect.
The Mother has, noting in the contents of her Affidavit, made a unilateral decision to involve the Children in Family Violence Victims’ Counselling. While the Mother’s actions may be wholly reasonable in protecting the Children’s wellbeing, the Court cannot at this stage of the proceedings, discount the possibility that the Mother is seeking to entrench or foster a negative view of the Father by the Children engaging in such counselling.
The Mother repeats numerous conversations between herself and the Children to the effect that they are fearful of a relationship with the Father and repeat to the Mother a narrative about the Father who lives with in lock step with that of the Mother. And while the Children may well be saying such things because they are a retelling of their lived experience of their relationship with the Father, the Court cannot at this point discount the Mother has or is attempting to influence the Children through repeating a negative narrative of the time when the parties were still together.
The Mother’s negative black and white attitude towards her brother can be briefly found at paragraphs 129 to 131 in her Affidavit, sworn or affirmed on 6 August 2021, where the Mother sees her brother as taking sides against her because he offered to act as supervisor. It is concerning to the Court and causes the Court to call into the question the ability of the Mother to be child focused.
The Court will order a Limited Issues Report that covers the following issues:
(1)whether the Mother is engaging in behaviour designed to align the Children against the Father,
(2)whether the Children are being subjected by the Mother to system abuse through the Mother’s engagement of the Children with victim’s counselling,
(3)whether the Children and Mother’s relationship is, or is at risk of, becoming enmeshed such that the Children should not be home-schooled by the Mother,
(4)whether the Mother’s mental health is sufficiently well managed, such that the Mother possesses the capacity to provide for the Children’s intellectual needs, particularly where they are home-schooled by the Mother.
There is nothing in the maturity, sex, lifestyle or background (including lifestyle, culture and traditions) of the Children or either of the Children’s Parents, nor are any other characteristics of the Children that the Court thinks relevant.[16]
[16] FLA (n 4) s60CC(3)(g).
The Court is not aware that these Children are Aboriginal or Torres Strait Islander children.[17]
[17] Ibid s 60CC(3)(h).
As I have alluded to earlier, this is not a simple matter, and the Court notes that the evidence is not tested. However, the Father has, even on his own admission, engaged in behaviours that have instilled fear in his Children. He has, in the view of the Court, perpetrated family violence.[18]
[18] Ibid s 60CC(3)(j).
There is no Family Violence Order that applies, or has applied, to the Children or a member of the Children’s family.[19]
[19] Ibid s 60CC(3)(k).
There is no set of Orders proffered by either party that would be preferred as least likely to lead to the institution of further proceedings in relation to the Children.[20]
[20] Ibid s 60CC(3)(l).
The Court gives further consideration to the issue of relocation.
These are interim proceedings.
The decision of Boland J, sitting as a single judge in the Appeal Division of the Family Court in Morgan & Miles is often quoted as providing guidance as to the position the Court should take in determining interim applications.[21]
[21] Morgan & Miles [2007] FamCA 1230.
Paragraph [88] provides:
It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.[22]
[22] Ibid [88].
Counsel for the mother suggest that this is not good law, referring to a Full Court appeal decision in which I was the first instance trial judge in Browne & Keith [2015] FamCAFC 143, where the Full Court stated at paragraphs [28] to [29]:
His Honour, after finding the mother’s decision to move to Western Australia with the child was unilateral, set out extracts from authorities relevant to the issue and then said: …the case law suggests the Court should not readily grant interim relocations where there has been a unilateral relocation except in the case of emergency.[23]
It first needs to be said that nothing in the authorities quoted by his Honour gave support to this novel statement of the law, nor, so far as we are aware, does he list any other authority. Thus, his Honour was wrong; that is not the law. Indeed, the law is espoused by the High Court in MRR v GR (2010) 240 CLR 461, but his Honour failed to refer to that decision in his discussion of the relevant law.[24]
[23] Browne & Keith [2015] FamCAFC 143 [28].
[24] Ibid [29].
In MRR v GR (2010) 240 CLR 461, the High Court stated, at [13]:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).[25]
[25] MRR v GR (2010) 240 CLR 461 [13].
And at [15]:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.[26]
[26] Ibid [15].
The Court determines that in these interim proceedings it is not appropriate to apply the presumption in favour of equal shared parental responsibility.
The Mother’s capacity is, in the view of the Court, fragile.
The Mother has moved to be close to her family and seeks support that has enabled her to provide for the needs of the Children. The Mother home-schools the Children. It is not practical for the Mother to return to Sydney and find employment such that she could afford to remain where such work would prevent the Mother continuing the role of schooling the children.
The Mother provides the Court considerable evidence as to the significant financial burden of returning and then residing with the Children in Sydney. The effect of requiring the Mother to relocate back to Sydney would see her capacity further diminished.
The Court is not satisfied that the strength of the relationship between the Children and the Father is such that the Children could move from living with the Mother as their primary carer to then live with the Father without psychological detriment where although the Children deeply love their Father, it would appear there remains a fear of him and his temper that needs to be ameliorated over time.
Leaving the Children in the Mother’s care will, for the time being, best promote the Children’s best interests.
Equal time is not in the best interests of the Children for the time being, nor is substantial and significant time, noting the Children’s fear of their Father.
While the Parents live too far apart for such an outcome to be practicable, it is not a case the Court would have ordered equal time or substantial significant time but for the impracticalities caused by the Parties living so far apart.
The Independent Children’s Lawyer points out that the Children are home-schooled and as such, the Court would not be troubled by the prospect of later finding on a final basis the Children should move back to Sydney. This is particularly so where making such an Order would not interfere with the Children for instance being enrolled into a particular school to which the children have such a strong connection that the Court would be later hesitant to contemplate a move.
For the reasons set out above the court makes the following orders.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers. Associate:
Dated: 26 October 2021
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