DAMANI & DAMANI (No.3)
[2019] FCCA 1082
•24 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAMANI & DAMANI (No.3) | [2019] FCCA 1082 |
| Catchwords: FAMILY LAW – Parenting – high conflict – separation of siblings – parental responsibility – injunction against the mother’s partner restraining him from coming into contact with the children – father seeks that injunction be made as a final order. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65DAA(1), 65DAA(2), 65DAA(3), 68B(1) |
| Cases cited: Damani & Damani [2018] FCCA 3351 |
| Applicant: | MR DAMANI |
| Respondent: | MS DAMANI |
| File Number: | MLC 5027 of 2015 |
| Judgment of: | Judge Harland |
| Hearing dates: | 12, 13 and 14 December 2018; 18 January 2019 |
| Date of Last Submission: | 15 March 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 24 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dellidis |
| Solicitors for the Applicant: | Moores Legal |
| Counsel for the Respondent: | Mr Grant |
| Solicitors for the Respondent: | Waters Lawyers |
ORDERS
That the parties have equal shared parental responsibility for [X] born … 2008 and [Y] born … 2012.
That [X] born … 2008 live with the father.
That [X] spend time with the mother during school terms:
(a)on Mondays and Tuesdays from 3:30pm to 8:00pm;
(b)on alternate Sundays from 12:00pm to 6:00pm when [Y] is in her care;
(c)At other times as agreed.
That [Y] live with the father at the following times during school terms:
(a)In week one from 8.30am Wednesday to 8.30am Monday but where Monday is a public holiday time will conclude at 4.00pm Monday or where the weekend falls on the Melbourne Cup weekend until 4.30pm Tuesday;
(b)In week two from 8.30am Wednesday until the commencement of school on Friday;
That [Y] live with the mother at all other times during school terms.
That the children, [X] and [Y] spend time with each party on the following special occasions as follows:
(a)With the Mother in the event they are not already in her care:
(i)on Mother’s Day from 11:00am to 5:00pm;
(ii)on [X]’s birthday from 12:00pm to 4:00pm;
(iii)on [Y]’s birthday from 12:00pm to 4:00pm on a non-school day and from 3:30pm to 7:30pm on a school day;
(iv)on the Mother’s birthday from 12:00pm to 4:00pm on a non-school day and from 3:30pm to 7:30pm on a school day; and
(v)on [Z]’s birthday from 12:00pm to 4:00pm.
(b)With the Father in the event they are not already in his care:
(i)on Father’s Day from 9:00am to 6:00pm;
(ii)on [X]’s birthday from 12:00pm to 4:00pm;
(iii)on [Y]’s birthday from 12:00pm to 4:00pm on a non-school day and from 3:30pm to 7:30pm on a school day; and
(iv)on the Father’s birthday from 9:00am to 6:00pm on a non-school day and from 3:30pm to 7:30pm on a school day.
(c)With the parties during Easter:
(i)[Y] spend time the Mother:
A.from 10:00am Easter Saturday to 4:00pm Easter Sunday in odd numbered years commencing 2019;
B.from 4:00pm Easter Sunday to 6:00pm Easter Monday in even numbered years commencing 2020;
(ii)[Y] spend time with the Father:
A.from 4:00pm Easter Sunday to 6:00pm Easter Monday in odd numbered years commencing 2019;
B.from 10:00am Easter Saturday to 4:00pm Easter Sunday in even numbered years commencing 2020;
(iii)[X] spend time with the Mother:
A.from 10:00am to 4:00pm Easter Sunday in odd numbered years commencing 2019;
B.from 4:00pm to 8:00pm Easter Sunday in even numbered years commencing 2020.
(d)With the parties during Christmas:
(i)[Y] spend time with the Mother:
A.from 4:00pm Christmas Eve to 4:00pm Christmas Day in odd numbered years commencing 2019;
B.from 4:00pm Christmas Day to 4:00pm Boxing Day in even numbered years commencing 2020;
(ii)[Y] spend time with the Father:
A.from 4:00pm Christmas Day to 4:00pm Boxing Day in odd numbered years commencing 2019;
B.from 4:00pm Christmas Eve to 4:00pm Christmas Day in even numbered years commencing 2020;
(iii)[X] spend time with the Mother:
A.from 4:00pm to 8:00pm Christmas Eve in odd numbered years commencing 2019;
B.from 4:00pm to 8:00pm Christmas Day in even numbered years commencing 2020.
(e)With the parties during school term holidays:
(i)[Y] spend time with the Father from the conclusion of school on the last day of school term to 4:00pm on the middle Sunday;
(ii)[Y] spend time with the Mother from 4:00pm on the middle Sunday to the commencement of school;
(iii)[X] spend time with the Mother each Monday and Tuesday from 12 noon to 6:00pm when [Y] is in her care.
(f)With the parties during the long Summer school holidays:
(i)[Y] spend time with the Mother:
A.for the second half of the holidays from 4:00pm on the middle Sunday to the commencement of school in odd numbered years commencing 2019;
B.for the first half of the holidays from the conclusion of school on the last day of term to 4:00pm on the middle Sunday in even numbered years commencing 2020;
(ii)[Y] spend time with the Father:
A.for the first half of the holidays from the conclusion of school on the last day of term to 4:00pm on the middle Sunday in odd numbered years commencing 2019;
B.for the second half of the holidays from 4:00pm on the middle Sunday to the commencement of school in even numbered years commencing 2020;
(iii)[X] spend time with the Mother each Monday and Tuesday from 12 noon to 6:00pm when [Y] is in her care.
(g)The children’s holiday time with the parties in accordance with paragraphs (e) and (f) is suspended for the purposes of facilitating time for Easter and Christmas in accordance with paragraphs (c) and (d).
IT IS NOTED that publication of this judgment under the pseudonym Damani & Damani (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA |
MLC 5027 of 2015
| MR DAMANI |
Applicant
And
| MS DAMANI |
Respondent
REASONS FOR JUDGMENT
The Court is asked to determine what orders should be made in the best interests of [X], born … 2008, aged 10 and [Y], born … 2012, aged 7.
The trial, originally listed for two days, ran part heard and took place over four days. The parties filed written submissions at the end of the trial. Those submissions reflect the high level of conflict and distrust between the parties. After the trial, the parties submitted consent orders with respect to holidays and special days which they consent to, regardless of the outcome of the competing residence applications for [Y].
The parties initially had parenting and property proceedings before the Family Court of Australia which resolved in 2015. The current round of proceedings began in February 2017 when the father brought an urgent application seeking to vary the final parenting orders as a result of an assault that occurred on 12 February 2017. At the time the assault occurred [X] was aged 9 and [Y] was aged 4.
I have made two interim decisions in this matter Damani & Damani [2018] FCCA 3351 and Damani & Damani (No.2) [2018] FCCA 3367.
The father’s case[1] is that the mother prioritises her relationship with her partner, Mr A (“Mr A”), over the interests of the children. He seeks that both children live with him. The father says he is better able to provide for their emotional and intellectual needs. He says the children are at risk in her care because she is in a violent relationship and she will not prioritise their needs over her own. The father seeks that [Y] spend time with the mother five nights a fortnight and that [X] spend time with the mother each alternate Sunday from 10:00am to 6:00pm and from the conclusion of school Wednesday until the commencement of school Thursday. The father also seeks a permanent injunction with respect to Mr A coming into contact with the children.
[1] The father relied on his trial affidavit filed on 20 November 2018 and the affidavit of Ms H filed 20 November 2018.
Throughout the father’s trial affidavit sworn and filed on 20 November 2018, the father quotes from the family reports,[2] other people’s affidavits and makes inadmissible comments. His affidavit annexes a few documents labelled D-A to D-B. However, he then goes on to refer to 36 other documents marked D-1 to D 36 which are available “to produce to the court if required”. I do not know why this approach was adopted. It is inconsistent to have some documents annexed and then a much longer series of other documents referred to by label and number but not annexed. It does not even reflect a misapplication of the practice direction with respect to interim hearings.
[2] Dated 28 July 2015, 11 September 2017 and 25 October 2018.
The mother also quotes extensively from the most recent family report in her trial affidavit sworn and filed on 28 November 2018. The mother also takes the opportunity to respond to many paragraphs of the father’s trial affidavit, in breach of my trial directions, which provide for the parties to file their trial affidavits at the same time.
Affidavits should be limited to evidence and should not contain commentary, beliefs and submissions.
The mother’s case[3] is that the father has been relentlessly negative and undermining of her parenting capacity. She raises concerns that the children will be alienated from her if they are in the father’s care, and refers to her problematic relationship with [X] and the very limited time that she is spending with him currently. During the trial, the mother sought that the current spend time with arrangements between the father and [Y] remain in place and with respect to [X] she seeks to spend time with him on Saturdays from 12:00pm until 6:00pm.
[3] The mother relied on her trial affidavit filed 25 November 2018, affidavit of Ms J filed 29 November 2018, affidavit of Ms K filed 24 August 2018 and affidavit of Mr A filed 24 August 2018.
The consent orders the parties entered into on 27 August 2015 provided for the boys to live with the mother and spend five nights a fortnight with the father.
The father says within a few months of those orders being made the mother often asked him to care for the boys as she had difficulty managing their behaviour, particularly [X]’s. The father says that [X] did not get on with the mother’s partner Mr A and that [X] often complained to him that Mr A would swear at him and often got angry.
The father says that his concerns do not solely relate to Mr A but also relate to concerns over the past four years. He refers to the mother taking four months to use My Family Wizard[4] and the mother emailing the school 30 minutes after the Court made interim orders about [Y]’s school.
[4] An online co-parenting application.
Interim orders made on 26 April 2017 provide for the mother to spend time with [X] every Monday and Tuesday from 3:30pm to 6:30pm on school days. They also provide for each alternate weekend that [Y] resides with the mother, that the mother is to spend time with [X] from 8:30am to 6:00pm on Saturday. The father says that despite this, the mother does not spend time with [X] on alternate Saturdays because she will not take him to his extracurricular activities.
By the time of the written submissions the mother had changed her position and now seeks to spend time with [X] on Sundays from 12:00pm to 6:00pm.
The mother also seeks that the injunction currently in place with respect to Mr A be lifted.
The mother has a child from a previous relationship, [Z] born … 2002, aged 16.
The mother is in a relationship with Mr A. They started living together in early 2016. Mr A has two children from a previous relationship, [B] born … 2007, aged 11 and [C] born … 2008, aged 10.
The father has re-partnered with Ms D. They live together and are engaged.
The father works in his business, says he has flexible working arrangements and in the past two years has hired additional staff to enable him to reduce his work hours.
Issues I am asked to determine
The mother seeks an order for equal shared parental responsibility for the boys. The father seeks an order for sole parental responsibility for the boys’ education if he is successful in his application to have both boys live primarily with him.
The parties have competing residence applications with respect to [Y]. The mother seeks that the current arrangement remain in place whereby [Y] lives with her nine nights a fortnight during school terms and spends five nights a fortnight with the father. The father seeks the opposite arrangement.
The parties agree that [X] should live primarily with the father. There is some disagreement about what time [X] should spend with his mother. The mother changed her position by the time of her written submissions.
One of the major issues in dispute is whether or not the injunction restraining the mother’s partner, Mr A, should be made on a final basis.
The parties had attended upon Mr E for a family report in the 2015 proceedings. He has written two further family reports dated 11 September 2017 and 25 October 2018.
What is telling in this case is that despite Mr E, the family report writer, giving clear warnings to the parties as early as 2015, in his first family report, both parties have continued to have an “external locus of control”. Both parties are fixed in their case positions. This continued to be evident in the written submissions filed on their behalves which were highly critical of the other party but failed to engage with significant aspects of the evidence in any real way.
12 February 2017 assault
On 12 February 2017 there was a violent incident between Mr A and the father when the father was returning [X] to the mother’s home. As a result of that incident, Mr A was charged and after a contested trial, was convicted and sentenced to six months imprisonment. [X] gave evidence at this contested hearing. Mr A appealed that decision. The matter was listed for trial at the County Court which would have been a hearing de novo.
The parties give differing versions as to what occurred on that day and who should be attributed blame. The mother and Mr A maintain that the father was the aggressor. The father says Mr A was the aggressor. I do not have the transcript of the Magistrates’ Court proceedings. I also do not intend to engage in a detailed analysis of the parties’ affidavits with respect to this issue as I do not have the complete picture and it is also not the role of this Court to effectively attempt to re-determine this issue. What is clear is that the following occurred:
a)there was a physical altercation between Mr A and the father;
b)the father was injured;
c)Mr A was not injured;
d)[X] witnessed it;
e)Mr A was charged;
f)the father was not charged;
g)the Magistrates Court found Mr A guilty and sentenced him to six months imprisonment;
h)at the appeal hearing Mr A pled guilty and was sentenced to a community corrections order for 18 months.
Both [X] and [Y] as well as Mr A’s children were present. [X] was closer to the father and Mr A when the physical altercation took place that resulted in the criminal charges.
[X] was traumatised by what he saw and does not want anything to do with Mr A.
The father says Mr A was the sole aggressor. The mother says the father was the prime aggressor. The father says he lost consciousness.
The mother says that the father was the aggressor and says he never lost consciousness.
Criminal proceedings
The criminal trial took place at Suburb F Magistrates’ Court from … 2018. [X] was cross-examined and gave evidence via video link.
The mother blames the father for [X] being cross-examined.
Mr A was found guilty of unlawful assault based on fear against a minor and intentionally causing injury. Mr A was convicted and sentenced to six months imprisonment. Mr A appealed that decision and was granted bail pending appearance in the appeal listed for hearing de novo on … 2018. He pled guilty and was convicted. He was sentenced to an 18 month community corrections order.
It was very clear from Mr A’s evidence that he takes no responsibility for the assault. He went so far as to state when cross-examined that he regretted pleading guilty. This does not reflect well on him. He does not even say that both men were responsible. He has done nothing to assist the working relationships between the two families moving forward. It also does nothing to instil any confidence in the father that Mr A will not be aggressive in the future.
The current proceedings
After the assault the father commenced urgent proceedings seeking to vary the 2015 orders and have both boys live with him and spend time with the mother.
[Y] lives with the mother and spends time with the father five nights a fortnight: in week one from 8:30am Thursday until 8:30 Monday, in week two from 8:30am Thursday until commencement of school on Friday and half the school holidays and special occasions.
The Father’s work and care for the children
The father says that after the incident in February 2017 he hired extra staff so that he could be more available for the children. He says he works 37 hours in one week and 30 hours in the other week and that he only works two hours on Saturday when [X] is not in his care. However, the father’s evidence is that the mother does not exercise her time with [X] on Saturdays. The mother confirmed this.
The father says his fiancée Ms D provides him some assistance in his business but otherwise does not work in paid employment.
[X]
The mother says that the 2015 orders worked well for [Y] but not for [X]. She says she engaged psychologist Ms G to assist with [X]’s anxiety and “abnormal obsession” with the father. The mother says that [X] was becoming increasing physical with her and demanding to spend more time with the father. In approximately September 2016 they agreed that [X] would spend more time with the father.
The mother says that [X] always wanted to spend more time with his father during their relationship as well and did not like it when [Y] or [Z] spent time with him.
In his trial affidavit, the father says that within a few months of the 2015 consent orders the mother would require the father to look after the boys during her time as she was having trouble managing their behaviour, particularly [X]’s. [X] did not get on with Mr A. He says both boys complained to him about Mr A.
[Y]
One concern about [Y]’s schooling is his attendance. [Y]’s attendance record shows that he is late on several occasions. The mother disputed the extent of his lateness. She also said that the father’s position is hypocritical when he took the boys out of school for a week at the end of term to go on holidays to Country L. However, in my view the two issues are separate. Taking [Y] out of school several days early is inconsistent with a serious concern that [Y] is not progressing at school as he should. The parties will need to agree before taking the children out of school for holidays during school terms.
The mother annexed to her trial affidavit at annexure D5 [Y]’s interim school report for the end of term three dated 19 October 2018. The report is positive about [Y]’s participation and behaviour. The report also addresses late attendances, early departures and absences from schools. Some were with respect to medical appointments. With respect to term two, eight late attendances are recorded with a description of this being explained by the mother as being due to dropping other children off at another school. At the end of the report the principal describes the late arrivals as “circumstances and will hopefully improve”.
The father disagrees with the characterisation of these late arrivals. He says the references to [Y] only being five minutes late is wrong. He says that they were often later than five minutes.
The father disagrees with the school report. He says the school portal shows that he is significantly later than that and also leaves early. The father printed out [Y]’s attendance record and hand-wrote [Y]’s arrival and departure times. He says the times are only visible when the user hovers over each line with a mouse. The mother said she did hover over the cursor to see if the handwritten times by the father were accurate and conceded that the father’s handwritten notes were correct. She then said that it was not just her and then complained about [Y] being taken out of school for the holidays for two holidays one being to Country L and one to Queensland.
Being regularly late to school, whether it is five minutes or longer, can detrimentally affect children’s learning. It is also embarrassing for children to arrive late to class as this puts unwanted attention on them. Whilst it is challenging to juggle children’s attendance at different schools it is important that children attend school on time.
The father complains that often the mother does not complete [Y]’s home reader with him and that this has impeded his progress at school. He also said that [Y]’s teacher told him that [Y] finds it difficult to settle into class and concentrate when he arrives at school late. He said the school record shows that when [Y] is in his mother’s care he is late to school approximately twice a week and he is often collected early.
The mother says that occasionally [Y] will be five minutes late to class. She denies removing [Y] from school as early as 1:00pm or 2:00pm and says that previously he used to leave 15 minutes early to attend a music lesson but after the father complained to her, she moved that time. She says the father threatened to not allow [Y] to attend the music lessons.
The mother says she helps [Y] with his reader and that [Y] was not behind in school. She annexes [Y]’s interim end of term three 2018 school report where the attendance records are noted for the other terms as well. In term two in particular he had eight days arriving late which the mother explained was due to dropping other children off at another school and six days leaving early with the school’s approval and that this was the parents’ choice. In term three it records [Y] missing a week of school due to a holiday which was school approved and the parents’ choice. The school report does not reflect a concern about [Y]’s school progress.
It is not uncommon for parents to take children out of school for a few days at the end of term in order to go on holidays. Provided this is done in consultation with the other parent and with the school. The father gave evidence that the mother is aware that they go on this holiday nearly the same time every year. He says he consults with the school and ensures that the children’s homework is up to date and does [Y]’s reader with him as well.
The mother agrees that she objected to Ms D assisting [Y]’s reading class. She says she was thinking of assisting herself and that Ms D and the father can assist [Y] at home. It is clear that the mother thinks Ms D was overstepping and encroaching on a parenting role.
The mother was asked why [Y] did not attend school on the date of the criminal hearing. She replied that she had to rely on her parents and that [Y] stayed with her father in Town M. She said her father was ill and could not come down to take him into school. Ordinarily, one might expect that the mother would check with the father to see if the father or Ms D could arrange for [Y] to be taken to and from school that day but given the circumstances surrounding the criminal proceedings this may be an unrealistic expectation. I am not critical of the mother for the arrangements she made that day.
The father also complains that he believes that [Y] does not have a consistent bedtime and evening routine with the mother. The mother denies this.
The father also complains that [Y] is showing behaviour whereby he thinks it is okay to punch and kick people when angry. Implicit in his account is that this is what [Y] is being told in his mother’s home. The father accepts what he is told uncritically.
The mother attributes [Y]’s shift in behaviour in recent months as being a direct result of not being able to see Mr A. She does not give any consideration to it being the broader family situation or the ongoing conflict between [Y]’s parents. That would involve some self-reflection which neither of the parties engage in nearly enough.
[Y]’s school
The mother and Mr A moved to Town N in … 2017. In her trial affidavit the mother says she considered it to be in [Y]’s best interests that he attend the local school close to his new home. She caused her lawyers to write to the father’s lawyers on 22 December 2017. This is significant because it is when law offices are closing for the Christmas break.
The letter makes the statement that the mother “has enrolled” [Y] at Town N Primary School and that she considers this in his best interest given her move and the fact that she would be doing the majority of the picks ups and drop offs. The letter goes on to say “[o]ur client is hopeful your client understands the decision to have [Y] in a primary school close to her new residence. Our client notes that [X] enjoys the same luxury having his school close to his home where he can see friends from school regularly.” The letter makes no mention of the fact that the parents had already enrolled [Y] at Town O Primary School and the fact that they had taken [Y] to three orientation days. It should not have been surprising to the mother that the father rejected such a proposal if it could even be framed that way.
The mother says that the father’s lawyers rejected her proposal in January. She instructed her lawyers to file an application in a case as she was concerned that [Y] would miss his first day of school. The mother gives no explanation as to why the application was not filed until 30 January 2018, the day the school year began.
The mother unilaterally changed [Y]’s school in January 2018. As a result there were further interim proceedings. Her application was abridged and was heard on 21 February 2018. On 21 February 2018 I ordered [Y] to attend Town O Primary School.
In that application she sought an abridgment and sought that [Y] either attend Town N Primary School or that she had sole parental responsibility for [Y]’s education.
The father says that he and the mother agreed that [Y] should attend the same school as [X] and says that the mother gave him the enrolment forms with her section completed during a changeover in July 2017.
The father says he only found out about the mother unilaterally changing [Y]’s school when [Y] showed him his new school uniform. The notation to orders made on 9 October 2017 referred to the child [Y] being enrolled at the Town O Primary School and it being the father’s preference that he attends school with his brother. The father says that between 9 October and 22 December 2017 he acted on the assumption that [Y] would be going to that school and bought uniforms and books and paid his school fees. The father says the boys were excited about going to school together and that [Y] attended the three orientation days on 29 August, 17 October and 14 November 2017. The father and [Y] attended the prep students and father’s barbecue day on 30 November 2017. Both parents attended the information session for parents on 5 December 2017.
The mother said the act of sending the letter to the father’s lawyers on 22 December 2017 was not deliberate. I do not accept this. The Mother then claimed that she hadn’t made a total decision to send [Y] to Town N Primary School in December 2017 but decided early in the New Year.
The father says that his view is that it is particularly important that the boys attend the same school given they are not living together.
The mother did not give a straight answer as to when she decided that [Y] should go to Town N Primary School. She also claimed that she did not tell [Y] with any certainty that he was going to Town N Primary School. She said she could not when his parents disagree and she then defensively said she is allowed to change her mind because she is a parent. She then said that the father knew that they were moving and that the locality of school has always been important for her and her view that the children should go to the local school.
The mother knew the father objected and still took [Y] to his first day of prep at Town N Primary School. She showed no insight and no child focus on the impact on [Y] or [X] who also thought that [Y] would be attending Town O Primary School. This must have been confusing for [Y] given the number of orientation days he had attended at Town O Primary School and the fact that he was anticipating going to the same school as his brother. It also would have been confusing for [X] when his brother did not attend his school as expected.
The mother was also cross-examined about her evidence in her affidavit that the boys would not see each other during school in any event because the prep children have different recess and lunch breaks to the other children. Exhibit 6 is an email exchange between the father and school principal who replied to the father’s query that at the start of the year the prep students are taken out at different times for the first few weeks. It is hard to accept that the mother was not aware of this given the number of orientation days she attended.
It also does not reflect well on her that after the Court made the Order on 21 February 2018 that [Y] should remain at Town O Primary school the mother replied to an email from the principal where the principal said she would accept [Y]’s re-enrolment as [X] attends the school, saying “I am living in Town N we’re both not in the zones and [X] is only there for two years”.
The mother cancelled [Y]’s enrolment at Town O Primary School on 30 January 2018, the same date she filed her application and [Y] started at Town N Primary School on 5 February 2018. She was aware of the dispute yet still proceeded in that manner. The mother was then cross-examined about the email that she sent to the principal within half an hour of the Court making the decision and the mother claimed that that was not an attempt to sabotage the re-enrolment process. It is hard to see what the point of that email was if not to do that.
The mother says that for the most part [Y] has enjoyed Town O Primary School but she remains of the view that [Y] would benefit from attending a local school and making friends in the local area. She also believes that the boys will benefit from attending separate schools, one of those being avoiding anxiety at pickups and drop offs.
The mother’s evidence on this topic and her attitude towards it was unsatisfactory. She showed no insight. If the parents are to exercise equal shared parental responsibility as she seeks, the choice of school is exactly the sort of issue that she and the father need to consult about and make the decision together.
The mother wants [Y] to change schools in 2020. She still wants him to go to a local school once [X] leaves primary school.
The mother said that she was initially seeking sole parental responsibility in January 2018 for [Y] because she was worried about having to go to court again referring to [Y]’s high school. When it was suggested that she wanted to be able to make unilateral decisions again said she was worried about persistent harassment and the psychological effect on the boys. She then says that she changed her mind and sought equal shared parental responsibility because she is trying to be fair and thinks that they need to co-parent better and that they both love their boys. It is difficult to see how these parents are going to be able to communicate and co-parent together when the mother interprets every overture that the father makes as being harassing and on the other hand the father fails to be sensitive to the mother’s feelings.
Both the father and [X] reported to Ms H (“Ms H”) that [X] was upset when [Y] was enrolled in a different primary school, as [X] had been looking forward to [Y] being at his school with him. Ms H expressed the view that it was not in [X]’s best interests for him to be expected to renew contact with Mr A and that he would benefit from having stable and predictable relationships with both parents and [Y]. She described [X] as “a bright, likeable and engaging boy was trying very hard to manage his world.”
The parties’ communication
The father says that as the parties have difficulties communicating, he was keen for them to use a parenting app. On 21 February 2018 the Court ordered the parties to use the Our Family Wizard app. He complains that often the mother uses the boys as messengers with respect to parenting arrangements. He says for the first couple of months the mother refused to use the app claiming that it was not compatible with her phone. The father says that due to ongoing difficulties he proposed that they use an alternative app called the Talking Parents app which they started using on 29 June 2018.
The parties now use the Our Family Wizard app. Whilst both parties told Mr E at the interviews for the third family report that their communication had improved, the subsequent final hearing where the parties were cross-examined and having to digest these reasons, which unavoidably makes some criticisms of both parties, will not assist their communication.
The mother complains that the father gives both boys melatonin. The father says he has never given [Y] melatonin. He has given him multi vitamin gummies and [Y] wanted to take something because [X] did. The mother said [X] had first been prescribed melatonin when he was three by a paediatrician.
The father says that since the assault on 17 February 2017 he has given [X] natural herbal melatonin regularly. The father says he told the mother that. He said [X] was diagnosed with post-traumatic stress disorder (“PTSD”) after witnessing the assault. [X]’s paediatrician Dr P prescribed melatonin to [X] to help him sleep. He has stopped taking it since 1 October 2018.
The mother conceded that she did not complain to the father when she asked him about the melatonin issue for [X] and [Y], however, she spoke to [Y] and that [Y] should not be taking anything. She also contacted the Department of Health and Human Services. She said that things get twisted if she talks about these issues with the father. This does not bode well for the parties being able to make decisions together.
The conflict over this issue is another example of the parties’ poor communication. The tenor of some of the parties’ evidence was to engage in tit for tat responses which is demonstrative of Mr E’s comments about the parties focusing on an “external locus of control”.
The father was cross-examined about some of the appalling texts he sent the mother. The mother alleges at paragraph 74 of her trial affidavit that immediately after the assault the father texted her saying “kiss your child support goodbye fuckhead” and calling her “a disgusting excuse for a mum”. She annexes the text message to her affidavit. He admitted sending that text. He denied threatening to take the mother to court on numerous occasions. Frankly, given the assault it is not at all surprising that the father commenced urgent proceedings. The mother also annexes a handwritten page from their communication book at annexure D11 of her trial affidavit where the father threatens to make her “life a living hell” and also refers to the boys not needing to like her partner. The page is not dated and nor does the mother attribute a date to it in her affidavit. When the father was cross-examined about this the date was also not put to him. The father asked if it was after “I was violently assaulted?” As the date was not put to him I do not know if it was before or after the assault. Certainly what is clear is that the father’s communication with the mother was extremely poor.
The mother’s Counsel suggested to the father that he was determined to ensure that the boys did not like Mr A, whatever it took. The father said he admitted that his communication was poor but he would not apologise for protecting the children and would hope that the mother would protect them too. He also said that the message he sent the mother straight after the assault was wrong but it has to be remembered that he had been knocked unconscious and says there was also a message from Mr A and the mother accusing him of starting the fight.
The father rejected capitalising on the boys’ sympathy for him. There is no doubt that [X] had significant behavioural and emotional difficulties well before the assault which is why the mother sought Ms G’s (“Ms G”) help. Equally however, the mother needs to accept that [X] has been deeply traumatised by what he witnessed and both parents must take [X] as they find him. [Y] is a more resilient child. He was also younger and does not appear to have been a direct witness. I do not accept that the father has been cynically setting out to take advantage of the assault and manipulate the boys. If that were the case he has certainly failed with respect to [Y]. At this point the mother’s Counsel’s cross-examination was quite aggressive and was ignoring the reality of what occurred.
As will be apparent from these exchanges, the parties are keen to blame each other rather than reflect on the problems and their own roles in them. Unless the parties can start to do this, the future is bleak, regardless of what orders the Court makes. The parties should understand that this is directed at both of them.
Mr A
The father says that Mr A has a propensity for violence which he downplays.
In his trial affidavit the father says he received a call from the mother in March 2016 between 12:00am and 2:00am in the morning. She was crying and telling him that Mr A had driven off and left her in the middle of nowhere in Town Q and wanted the father to collect her. The father says he told her to call the police as they would be able to get to her quicker than he would.
The father says that in July 2016 he received a call from the mother between 12:00am and 2:00am. She was crying hysterically and told him that she had argued with Mr A. For the second time Mr A had left her on the side of the road in Town Q. The boys were in her care at the time. The mother told the father that the boys were not with her. The father says he told the mother to call the police as they would be able to get to her sooner than he would.
Unsurprisingly, the mother says that the injunction restraining Mr A from being in her home whilst [Y] is living there has placed a strain on their relationship but they are dealing with it.
The mother says that [Y] often asks to spend time with Mr A. The father says [Y] does not mention missing Mr A to him although given that [Y] must be aware of the father’s feelings about Mr A, this is not surprising.
The father places much emphasis on Mr A’s previous conviction for assault in 2007. Mr A was cross-examined at some length about this.
The father says he is concerned that [Y] will learn inappropriate values and behaviour from Mr A and that as he gets older and expresses his own opinions more frequently, that Mr A will be verbally or physically abusive towards [Y]. He is concerned that the mother will not act protectively if this happens because of her strong alignment with Mr A.
The father says that after the assault the mother has tried to convince [X] that he was recalling the details of the assault incorrectly and would also tell him that he would need to get over it. He also says that [Z] has also tried to coax [X] into seeing Mr A and that [X] has told the father that he feels pressured by them. It is likely that [X] feels pressured and that [Y] and [Z] have encouraged him to see Mr A. [X] may be reporting this type of message to the father and may be misinterpreting what is being said to him.
The father says that shortly after the assault [X] complained after seeing his mother that she was trying to convince him that he was misremembering the incident and made comments to him including “you need to grow up and get over the Mr A issue” and “get over it [X], you’re ruining our family”. I accept the mother’s evidence that she would not say those things to [X] when she is trying to repair their relationship. The parents need to be mindful that both boys are painfully aware of their parents’ respective positions and children in the middle of high conflict situations will tell parents what they think they want to hear. Children who do this are not being manipulative or lying. They are trying to protect themselves emotionally in a situation which is out of their control.
The father says that on 13 November 2018 the maternal grandmother collected the boys from school. The father says that when they came home [X] told the father “nanny Ms R asked me if I was over the Mr A issue yet”. [X] went on to say that she told him that she knew he would like to see his mother more. [X] told his father that when he agreed with her Nanny Ms R said “that’s not going to happen until you get over the Mr A thing.” The father claims that [X] also told him that most times he sees the mother she tells him that Mr A didn’t do anything wrong.
The father also complains that the mother has breached the injunction on several occasions and has allowed Mr A to come into contact with [X].
Mr A filed a brief affidavit on 24 August 2018. Given that the criminal proceedings were still on foot, the affidavit does not deal with substance of the incident on 12 February 2017. The criminal proceedings only resolved just as the final family law trial began.
Mr A says that he has developed a bond with [Y] over their mutual interest in …. [Y] enjoys helping him work on machinery. He says that he has become closer to [Y] since February 2017 and thinks he has an excellent relationship with him. He denies ever being violent or aggressive towards [Y] or any of the children.
Mr A agreed that five days after the assault on 17 February 2017 an intervention order (“IVO”) was made in [X]’s favour preventing Mr A from having contact with [X]. He further agreed that the IVO continues. He said that in or around March or April 2017 they were renovating and that it was probably his fault that he saw [X] at the house as he thought the mother was taking [X] out when he was dropping off materials. As soon as the mother realised he was there the mother and [X] left. Mr A said he thought that [X] was at the back of the property when he came home. [X] saw him and walked up with his mother. Mr A said that they acknowledged each other and the mother and [X] left. He denied that the mother made [X] stand at the back and wait for 30 minutes.
The father’s Counsel put to Mr A that during the criminal trial in the Magistrates’ Court he heard [X]’s evidence that he is terrified of him and won’t go into a room with him. Mr A replied that he had footage of [X] not being terrified of him and further clarified that he was referring to the fact that they had cameras at the house and that they had footage of when [X] saw him there. He stood by that evidence and said he did not think [X] was terrified. I find this concerning. It reflects a lack of insight and assumes that [X] would have physically demonstrated his fear.
The father’s Counsel then asked Mr A if he was suggesting that the incident did not have a traumatic effect on [X]. In reply, Mr A said that [X] has had anxiety for a number of reasons for a long time and that he did not show any fear of him and came up to him and chatted to him about sports. He was asked why that was not in his affidavit and he replied that if it had been brought up he would have but if he had to put everything in the affidavit it would be about 40 pages. Mr A was cross-examined by the father’s Counsel about a time he saw [X] at the Mother’s home when the IVO was in force after the assault. He then became extremely defensive when he was asked where the mother was and replied “don’t try and trick me”. He said he was shocked to see [X]. He said when he realised [X] was there he pretty much sought the mother straightaway and that [X] approached him. He said he tried to keep it as naturalistic as possible and that it was a long time ago. He said he only recalled this because of seeing the footage.
Mr A claimed not to recall what he told Mr E about his view of [X]’s fear of him. The father’s Counsel suggested that that was a pretty significant point if that was the interaction between himself and [X]. Mr A then said that he was sure that he would have said something and that there was a small window of opportunity as there are so many allegations from the father’s side. I did not find this aspect of his evidence credible. Mr A said with respect to other occasions where [X] has said he was at the home, he thinks that [X] would have seen his car on other occasions and made assumptions as he has two cars. He said that he only saw [X] on that one occasion. He said he had no knowledge of any incident where [X] was there and he was asleep upstairs. He then said that either the father or [X] was lying. He said he had no idea why [X] would lie but that the father seems to be good at it. He refused to expand upon this when invited by the father’s Counsel to do so.
Mr A became defensive again when he was cross-examined about paragraph 22 of the second family report where Mr E records [Y] describing Mr A as the angriest person he knew. He said that once you fix a few bikes and take the boys out it is the opposite. He then said defensively that “I put to you [the father] influenced him heavily and that he’d been with the father on holidays and that was the biggest difference”. He was very dismissive.
Mr A denied ever calling [X] names and said that that was either fabricated or influenced by the father. He said before the assault he had a good relationship with [X]. He and [X] would disagree when [X] tried to be violent with his mother or when he would phone or text his father when the mother was trying to get him to do things such as go to bed. He said that the only time that [X] and his children did not get along was when arguing about who should sit in the front seat. He again denied not getting on with [X] and said “you weren’t there.” When it was suggested to him that he lost his temper with [X] on numerous occasions he said he wanted to hear an example and that this was either fabricated or it was an influence of the father’s. In this regard, he is echoing the mother’s complaints.
The father’s Counsel put to Mr A that he says anything positive that the children say about him to the mother is true and anything negative is the father’s influence. He agreed with respect to [X] and then said that was also the case with [Y]. He also denied having any problems with [Z] and said she moved out for a time because of typical mother-daughter teenage issues. Mr A said he has only met the children’s father once and that he did not know what the agreement was. My impression from the way he gave evidence was that he does not know much about what goes on in his own household.
When the father’s Counsel put to Mr A that there were two incidents in Town Q, he straightaway said that this was also a fabrication. He said he had heard that this had been spoken about the last time he was in court. The mother had asked him if he recalled any time that he left her in Town Q. He said this was obviously something that “you guys” are trying to use against her. It was clear at this point that the mother spoke to Mr A about her evidence despite being warned not to do that. He again became defensive when asked how this came about and again told Counsel not trick him. It was necessary to warn him to answer the questions and not argue with Counsel. When the father’s Counsel put to him that the mother had been warned not to discuss her evidence with anyone he said they did not talk about anything other than the Town Q incident. This is hard to believe. He then said that the mother’s Counsel had made it clear to them on the first day of the hearing that they were not to discuss evidence. He said he didn’t realise that it was court related when she asked if he recalled any incidents in Town Q. He then said he was curious about what was asked. I do not believe that they did not discuss her evidence.
Mr A was cross-examined about his conviction for assault 10 years ago. He said it was grand final day and that he did not think it was important or reflects on him. The father’s Counsel suggested to him that he was a father at the time. Then he said he “may have been yes”. He agreed that he punched the person involved to the head and said it was a single punch and not a king hit. He then said that he pleaded guilty but they made up the summary of the offence. That seems convenient. He also said that when Ms K, his former wife, said that she agreed it was a forceful punch Mr A said she would have been agreeing with the prosecution summary and that the summary is not what happened.
Mr A agreed that he broke the man’s eye socket and that he pled guilty and was fined $5000. He rejected the suggestion that he was so angry he punched him in the head. Mr A denied losing his temper describing it as a push-shove scenario that escalated. He agreed he was intoxicated and said the man looked through his partner’s handbag. He said he must have lost his temper. He agreed that he was remorseful and that it was out of character for him and that it is not in his nature to resolve disputes with punches. Interestingly when asked what he learned from that experience, if anything, he said that he learned to not trust solicitors advising him as he had been advised to plead guilty both times. He then said he thought they were both at fault as he was stealing from his partner’s handbag when he approached him.
With respect to the assault against the father, he said that he thought both were at fault. He said he was advised to plead guilty, that the appeal was a way of avoiding gaol and [X] needing to give evidence again. He said he regrets that.
Mr A agreed that he discussed his options with the mother as it affects the whole family. He said the mother wanted him to plead guilty and he wanted to plead not guilty. He said her view prevailed because it was a traumatic process for the children, especially [X], and that if he did go to jail it will be hard on the other children. He said he and the mother reached the decision together. This is quite different to the mother’s evidence. He said he agreed to the summary. He was shown the summary and said the handwritten amendments were made as a result of discussions between the barristers. Mr A then insisted that the summary was different in the Magistrates’ Court to the one in the County Court. He said he could not recall the differences but said that at the County Court the barristers got together and discussed it.
Mr A was then cross-examined about the Magistrate’s findings where he stated that there was enough evidence to find him guilty. The Magistrate accepted [X]’s evidence which backed his father’s version. He singled out [X] as being the person who was not capable of concocting a version of events. The Magistrate also said that with respect to the injuries he had to take the father as he found him. In regards to not knowing that the father had had a previous surgery site on his head, the Magistrate said that is one of the things that you have to watch out for when hitting someone.
The Magistrate went on to comment on structural weaknesses in the defence case and referred to Mr A’s evidence that only his head was in the car which contrasted with the mother’s evidence that he was standing outside the car looking in and that the mother denied when cross-examined that Mr A was in the car at all. This leads to the question as to how he got punched in head or how he was pulled out. The Magistrate said it was impossible from the defence case for the incident to have occurred in the manner that Mr A said it did. He also said that it was difficult to accept that the father was able to detain Mr A by pinning his head down after Mr A delivered the blow to his head. With respect to the complaint that the father did not go to the police straight away, the Magistrate commented that the need for medical attention be more pressing and he found it curious that Mr A did not call the police simply out of fear of being framed given his evidence about the blood (as much of the evidence in the criminal proceedings is not before this Court I do not know what that evidence refers to). The father’s Counsel suggested to him that he said he did not see any blood. Mr A replied he may have. He agreed that the mother said she did not see any blood. He agreed that he told the police that the father must have deliberately activated his injury.
The father’s Counsel suggested to Mr A that no one forced him to approach the car. Mr A said he was knocked off balance. Exhibit 10 is a bundle of photos tended both in the Magistrates’ and the County Court. It shows pictures of the father with a significant amount of blood on his head, dripping onto his top as well as spatters of blood in the car.
The Magistrate went on to say that as for the suggestion that the father received his injury some other way, the consensus was that there were a lot of punches and a flurry of arm activity. He also said that with respect to self-defence Mr A could have withdrawn from the car and avoided being in it given that he was standing up perhaps through the window on his description. He said that the evidence that Mr A poked his head into the car to tell the father to be quiet was “singularly unconvincing” and again referred to [X]’s evidence of the day and the fact that [X] was at the boot of the car and in many ways was invisible at least to the antagonists on that day.
Exhibit 11 is the community corrections order and the result of the appeal. The Community Corrections Order lasts 18 months and requires Mr A to undertake 250 hours of unpaid community work.
The father’s Counsel put to Mr A that the County Court Judge addressed him and made comments that such a vicious assault in the domestic environment was unacceptable and that it was unacceptable for a child to be shown such aggression. He also said that the prior conviction was relevant and similar. Mr A said that the County Court Judge may have said that but he did not recall.
The father’s Counsel also put to him that the judge read the character references and that it was not surprising that [X] had long-standing issues. [X] should not have had to give evidence and Mr A was ill-advised with respect to [X]. Again, Mr A said he may have been. This is concerning given earlier in the evidence they were keen to blame the father for [X] giving evidence. When it was put to Mr A that he has never apologised to the father he said “we have an IVO”. Mr A agreed that the judge may have referred to a substantial psychological and physical impact on the father and said that it has had an impact on both families. Tellingly, he then said he regretted that they did not have a contest.
He says he is regretful that [X] had to give evidence but that at his criminal trial he followed legal advice and that unfortunately as the police called [X] as a witness [X] had to give evidence.
Mr A said the Department of Health and Human Services may have recommended that he undertake an anger management course. He has not done that and then said he did not recall them saying that. Mr A’s evidence was vague and unconvincing. He was also vague about the details of him applying for an IVO against the father and naming his children as affected family members and said that the Court filled out the paperwork for them but conceded he may have said that his children needed to be protected from the father.
It was also clear that he and the mother discussed the mother’s evidence before he gave evidence. He claimed not to realise that when the mother asked him if he remembered anything about Town Q that it was about evidence she had given in court. I find it difficult to accept that. It would have been an odd topic to have raised if it had nothing to do with what the mother had been cross-examined about.
Mr A was highly defensive when being cross-examined. He was not an impressive witness. What is clear is that he does not take any responsibility for the assault. He expressed regret at pleading guilty in the County Court. This makes it difficult to move on from the incident and does nothing to ease the father’s concerns. The fact is he did plead guilty. The father was injured, not Mr A.
The mother gave evidence that she did not discuss the details of the advice Mr A received with respect to the criminal proceedings. She went with him to lawyers on a few occasions in the past couple of years but did not sit in on the interviews. She says she refused to discuss what she saw, she did not want to cloud anything. She says she told Mr A she would support whatever decision he made and would not tell him what to do.
The father’s Counsel suggested to the mother that she minimised what occurred in court, referring to it as a scuffle. The mother says that that is what it looked like to her. The mother’s evidence is that she did not see any blood. That is difficult to reconcile with the photographs.
The mother claims that she did not discuss the appeal with Mr A and found out about it in court. The mother said it did not cross her mind that [X] may have to give evidence again. The mother said that during the initial proceedings she did not want any of the children to give evidence. She claims that she did not know he was going to give evidence the first time. That seems surprising. She also said she did not know he was interviewed but she understood that he was a witness. She said she thought the parents had to give consent for a child give evidence. She did not discuss it with the father.
I do not accept the proposition that the father was responsible for [X] giving evidence and that he could have prevented it. It was a police prosecution with an assault that a Magistrate found serious enough to impose a custodial sentence. I acknowledge that that decision was appealed but subsequently Mr A pleaded guilty.
When the mother was further cross-examined about the assault she said that she thought both men were in the wrong but that their father wound up with a wound. However, at other times she has said that the father was the sole aggressor and clearly thought he was responsible for the incident.
The mother disputes that [X] ever had any negative feelings towards Mr A prior to the assault.
Mr A was asked about the mother attending school to collect [X] shortly after the assault and the complaint she made to police that the orders were not being complied with. He said he tried to distance himself from that as it was up to the mother and father. He said the same thing with respect to [Y] going to Town N Primary School. He said that the issue of the boys’ education is between the mother and father. Mr A said he tries to keep his distance with respect to the boys and parenting and that he does not want to be accountable for the mother seeing the boys less and he avoids the subject.
Injunction against Mr A
In his trial affidavit the father says that after the interim order was made, the following weekend [Y] said to him “mum said to me that Mr A has to move out because you took mum to court but that he will be back in three weeks, he’ll be there when we get home from Country L, after I’ve seen the man.” [Y] also said that “mum said it is over something silly.”
The father seeks that this injunction be made on a final basis. The mother’s Counsel asked the father to provide specific instances as to the conduct of Mr A towards [Y] that necessitates such an order. The father answered that [Y] is only six and was four when the assault occurred. He referred to the second family report and [Y]’s comments that Mr A was the angriest person he knew and also referred to the mental abuse of [X].
The father also expressed concern that Mr A has been convicted for violent offences twice.
He said he was most concerned by the fact that the mother stood by him and sought to protect Mr A rather than the children. He expressed concern that [Y] is changing and starting to get a voice and queried how long it would be before he says or does something wrong to anger Mr A. The mother was clearly outraged when the father was giving this evidence and had trouble containing herself.
The father believes that there is a lot of mental and emotional abuse in the household and refers to [Z] being allegedly kicked out of the home by Mr A and moving back in the last nine months. He says that the family has had no choice but to be “squeaky clean” the past 12 months because of the scrutiny of the court proceedings. He does not believe that the household is as they depict it. The father believes that they have been able to put on a good show. The father clearly struggles with the differences in the family reports, particularly the observations in the second report and the observations in the third report.
The mother denied the father’s allegation that Mr A put all of [Z]’s furniture out on the lawn. She said that [Z]’s father and Mr A were helping her move furniture and [Z] wanted to live with her father because she was upset about the father leaving as he was the fun one and [Z] had been close to him. She said at the time [Z] was very angry with her and she had doted on the father and was angry with the mother that he left.
The father rejected any suggestion that in the past 12 months [Y] has had the opportunity to experience the mother and Mr A’s household in a way which has given him a different perspective. The father said that the reality is that [Y] has seen them on their best behaviour for the past 12 months because they knew they had to be on their best behaviour because the report was coming up. This would be a difficult thing to do for that length of time. It is more likely that the mother’s household is more settled and positive than the father can conceive of.
Ms K
Ms K (“Ms K”) is Mr A’s former partner and the mother of [B] and [C]. She swore and filed an affidavit on 24 August 2018. She says that since she and Mr A separated 2015 they have maintained a flexible and amicable arrangement with respect to the children. She says she has never seen him be violent towards either [B] or [C]. She says she has met [Y] on multiple occasions when Mr A has either collected or returned [B] and [C]. She says that [Y] appears confident and always excited to see [B] and [C] and appears to be comfortable around Mr A. She says her children speak highly of Mr A and also enjoy having [Y] around as a younger brother.
She says that she thought the charges against Mr A sounded out of character and that she has no safety concerns for her children whilst they are in Mr A’s care.
The father has great difficulty accepting Ms K’s evidence.
The evidence establishes that the assault for which Mr A was convicted in 2009 was not in the context of family violence but rather was an altercation with a friend who Mr A allegedly caught stealing.
When cross-examined about this the father said that Ms K wasn’t there when he had his “head caved in in front of my children”. He said he would have to live with it if Mr A lost his temper again and the mother did not stand by his children. He said that one violent incident should be enough and he should have known from the 2007 incident that it is not okay to hit people. The father says from his perspective it is not okay for Mr A to be around his children. This was another point during the evidence which the mother had some difficulty hearing.
When Ms K was cross-examined she described a flexible parenting arrangement with Mr A. She said she was close to the mother and that she is family now that she helps raise the children. She has a good relationship with Mr A and attended the appeal hearing.
Mr A discussed the incident with Ms K and called her the next day about the children and what happened. He was concerned about the children letting her know and he wanted her to know so she could talk to the children and see how they react. The police wanted to interview them as well. She says she 100% supported his claim of innocence.
Ms K said she did not agree with Mr A’s decision to plead guilty but understood why he did and that it came down to his concern that he did not want to be away from his children if he was jailed so he took the option to ensure that he would not go to gaol.
She said the violent incident which she thought was in 2007 or 2008 was that everyone was drunk on grand final day. She said she was inside and did not see the fight but she heard it. Mr A told her that the guy he had fought with had previously gone through her handbag and a few others that she knows of. He pushed Mr A and Mr A pushed back and the man fell and hit the bar table breaking his eye socket. She said they were waiting for a cab when she came out and by then others had managed to separate them. She said it had been quick and not helped by alcohol. She said Mr A was interviewed at Suburb T Police Station. There was no hearing. She said the incident occurred when they were very young. She agreed that he was in his late 20s and the father of two children and that he was mature enough to know better. With respect to the incident between Mr A and the father she said she was not there and she could not say whether it was all Mr A’s fault or all the father’s fault but at the end of the day both were adults and it should have been avoided.
When asked about the impact of the assault on the children she said her son saw the most as he was the closest. Her children are happy to go to Mr A’s home. She said Mr A has never raised his voice to their children (it is hard to imagine a parent who has never raised their voice once in all the years of parenting) and that she is the parent to discipline the children. She said the children also enjoy spending time with [Y] who they see as a little brother. She also said that she has seen [Y] quite a few times and often he is with Mr A when he comes over to pick up children. She said that [Y] is very confident and cute and knocks on the door and comes into her house. She has also met [X] on a few occasions and says that he was very polite and told her about his sports award. She has not seen him since the incident.
Ms K gave her evidence in a straight forward manner. She was a credible witness.
Ms G and Ms H
Prior to the assault [X] was seeing Ms G at … Psychology. The father says that after the assault he tried to contact Ms G six times but was unable to get hold of her and received a recommendation that [X] see Ms H. The mother does not believe this. I accept that this was a time of crisis and that [X] needed urgent assistance. The father says that [X] clicked with Ms H straight away.
Exhibit 1 is a letter from Ms G dated 21 March 2017. [X] was referred to her in April 2015. The mother requested assistance with respect to [X]’s social and emotional well-being with [X] wetting the bed, having behavioural difficulties including aggression and emotional stress. She also referred to [X]’s obsession with the father. He was referred after the parties separated. She says she met with both parents.
[X] talked to her about wanting to spend more time with his father and it being difficult because his father worked. He also spoke about being able to do things at his father’s without including his younger brother. “[X] was unable to show empathy about how his brother may feel if [X] saw the father more and was rigid in his approach. I was also concerned at times by [X]’s attempts to determine and control access with his father, often taking the approach of telling his mother what should happen.” Ms G said that increasing [X]’s time with the father is one solution that both parties agree on but said it was more important [X] not be given control about the time arrangements. She formed the view that [X] needed an assessment to rule out any developmental disorders. [X] is intelligent but struggles with empathy and flexible thinking.
Ms G then referred to the assault and expressed concern about [X] being placed in the position of deciding when he sees his mother. She said that “[X] was witness to a traumatic event and children need to see their parents remain in control and make decisions that are best for them. I was surprised that [X] has not seen his mother as often, as he was always adamant with me, even when his behaviour was difficult towards his mother, that he wanted to see both parents equally. I think [X] would attempt to control the current situation with regard to access with his mother, but I do not think he has the emotional capability to do this as he will feel torn his loyalty to both parents.” She also expressed concern about the siblings being separated. It is important to note that Ms G has not been involved in seeing [X] more recently and is not available for cross examination.
Ms G talked about the importance of there being a clear plan moving forward and parents giving consistent messages to the children and ensuring that [X] is not placed in the middle. It is very clear that to date the parents have been unable to do this. I do not think it is as simple as [X] controlling the situation and making the decisions. It is clear that [X] was significantly traumatised by witnessing the assault. His unwillingness to have anything to do with Mr A is understandable.
The father was cross-examined about Ms G’s report. He said that Ms G’s last appointment with [X] was some time before that report was written. The father agreed that [X] would try to control whether to see his mother or not as part of his anxiety and the father said he made immediate appointments with Ms H to address this. He said [X] would text him excessively up to 15 to 20 times. He also said that the mother would go to [X] directly to make arrangements to see [X] but then change this to email communications and now through the parenting app.
The father said that [X] has sought to control aspects of his life from his bedtime to doing homework to showering.
The father denied making it clear to [X] that Mr A is a “no-go zone”. The father said that [X] had extreme anxiety about Mr A and it was unfortunate when he saw that he had been in breach of the restraining order. He said that [X] has been very nervous but in the past few months has been better. The father denied ever telling [X] that he is not to have a relationship with his mother whilst she is in a relationship with Mr A. There is no evidence to suggest this is the case. It is unrealistic to expect the father to be positive about Mr A.
Ms H is a psychologist who has been treating [X] since shortly after the assault on 12 February 2017. She has prepared four short reports which are annexed to her affidavit sworn and filed on 20 November 2018.
The first report dated 20 March 2017 states that she first saw [X] two days after the assault on 14 February 2017 and then also on 20 February 2017, 28 February 2017 and 14 March 2017. She says that [X] vividly recounted the details of the assault. He expressed his fear about being forced to return to his mother’s house and that he was afraid for his father’s safety. He experienced flashbacks, poor sleep, nightmare hypervigilance, tearfulness and separation anxiety from his father. At each of the sessions [X] told her that he was happy to see his mother but did not want to return to her house where he would see her partner. He expressed being upset as he felt that his mother was tricking him when she tried to force him to go to her house. She expressed the view that [X] had suffered a significant trauma in witnessing the assault on his father.
Ms H’s second report is dated 12 February 2018. She says she has been working regularly with [X] and has met both his parents. Immediately after the assault [X] exhibited a range of post-traumatic symptoms and she noted that this was also “within the context of the difficult parental separation and significant parent conflict – much of which focused on [X].”
She records that in the later part of 2017 [X] and the father reported that [X] had seen his mother much less frequently because of the difficulties and that much of her work focused on helping [X] to just settle in to living predominately with his father. She commented that [X] “exhibited a range of anxious and compensating controlling behaviours. We introduced parenting strategies for his anxiety and behavioural boundaries, limits and consequences for when he tried to control his environment or the adults in his life.”
The father and [X] reported that [X] has been coping better having less nightmares and less bedwetting incidents. [X] was still highly anxious about encountering Mr A and also “expressed confusion and frustration with the unpredictable nature of his contact with his mother. At times he has reported being very upset at pressure he feels from his mother to meet with her partner.” At these times his anxious symptoms return.
Ms H’s third report is dated 4 May 2018. She records that since February 2017 she has seen [X] on 24 occasions. She observed that in recent months there have been extended periods of time where [X] has been happy, engaged with school and his sporting activities and that his anxious and controlling behaviour had improved.
She describes an incident that [X] described during his appointment on 3 May 2018 where he said that he had an argument with his mother as she wanted to see his iPad and check his iPad settings and read his messages and he did not want her to. He also described an occasion where he and [Y] were with their mother at Target, she became unwell and collapsed and it was confusing and distressing for boys. The mother did not want an ambulance called and [X] told her that his mother had an ear infection.
During an appointment on 19 April 2018 [X] said he overheard his mother talking about the assault to a friend saying it was the father’s fault. [X] did not say anything to his mother but returned home angry. The father told her that following these visits [X] was upset and took time to settle. Ms H noted that she has not heard the mother’s perspectives. She said: “[X]’s relationship with his mother is important, and a solid relationship needs to be encouraged. However, as with any child, [X] will benefit from stable, supportive and predictable care. Situations of conflict and uncertainty are disturbing, and anxiety provoking and ongoing uncertainty puts a secure parental attachment at risk.” The mother denied that [X] overheard any conversation like that. However, the alternative explanations that either [X] lied to Ms H or the father manipulated [X] into lying to Ms H are unlikely.
Ms H’s fourth report is dated 14 November 2018. She records that she has now seen [X] on 29 occasions, mostly on his own. She has met with the mother on three occasions most recently with [X] on 8 August 2018. When she saw [X] in July 2018 he was in good spirits, enjoying school holidays. He said he saw his mother twice during holidays.
On 8 August 2018 she met with the mother and [X]. The mother wanted to start spending more time with [X] and also wanted to normalise the relationship between [X] and her partner. She records that [X] was adamant that he did not want to see Mr A. The mother also wanted [X] to spend overnight time with her at her father’s home at Town M and that [X] did not want to do this as he is concerned about it interrupting his sporting commitments. She says that they explored ideas as to how they could spend their time together. [X] did not wanted to change whereas the mother wanted more one-on-one time with [X] that was not taxiing him to various sporting activities. She said it was difficult as she has other children to care for. She observed that [X] was anxious and guarded “particularly at as he has become more aware of his mother’s distress.”
Ms H met with the father on 9 August 2018 and was concerned about supporting [X] in the upcoming criminal court proceedings. She met with [X] on 23 August 2018 to debrief with him about his court appearance giving evidence the week before. [X] told her that he was distressed at seeing his mother and older sister in court supporting Mr A. He said that earlier in the week the mother told him that Mr A was innocent and that he would be appealing. [X] was upset that he would need to go through the court process again.
On 10 October 2018 [X] spoke about the recent appointment with Mr E and said he had managed well until he saw the mother and Mr A in the waiting room. He said he told Mr E that he felt like he was in a tug-of-war between his parents and that he wanted to have more time with [Y] at his father’s house.
On 17 October 2018 [X] presented as being in good spirits and that his visits with his mother were going better and that he was able to play with [Y] at his mother’s house.
Ms H says in summary: “[X] presents as a bright, generally resilient boy, struggling to cope with adult issues: including court appearances and significant parental conflict. This is confusing and anxiety provoking for [X]. He has been confused about his mother’s loyalty to him and feels she has chosen her partner over himself. He still wants and needs a relationship with his mother, but attempts to control the terms in order to feel safe. Like all children, [X] would benefit from positive relationship with both his parents. He particularly needs consistent, low conflict parenting with strong, safe boundaries, managed by trusted parents.”
Ms H was cross-examined. She said when she first saw [X] she saw him at a point of crisis and that when she was told [X] was seeing another counsellor she told them there was no point in him seeing two and that he should go back to that counsellor. They later returned to see her and said that they had given [X] the choice. She said she told them that she was happy for them to go back to the previous psychologist and that it was not workable for [X] to see two psychologists.
Ms H said that [X] has obsessive compulsive disorder tendencies. Both parents have reported [X]’s tendency to want to control his environment. She says that has waxed and waned. When she first saw him [X] was pretty anxious. The mother’s Counsel suggested to Ms H that [X] has an excessive attachment to his father. Ms H agreed that [X] is very attached and there were times when she has seen that it was certainly symptomatic around [X]’s anxiety where he would be more concerned about where the father was and afraid that his father was not okay. She says that last year [X] was worse.
Ms H said that counselling covers a range of things including trauma work, managing anxiety, symptoms relief and developing clarity around emotions.
The mother’s Counsel suggested to Ms H that she has not seen it as her role to try and reinstate the relationship between [X] and his mother. She disagreed with that and said she has invited both parents and has been happy to meet with both. She said she has only met with the mother a couple of times and that as she works in a private clinic it is for the clients to initiate contact.
Ms H saw the mother on her own on 8 May 2017, 30 August 2017 and 22 November 2018. She saw the mother and [X] together on 10 August 2017, 31 August 2017 and 8 August 2018.
At the appointment with the mother on 8 May 2017 the mother debriefed with her about the court proceedings and provided a lot of history about [X] and her perspective on the conflict between the parents. She was keen to repair her relationship with [X] and with her partner and wanted [X] integrated back at her home. She told Ms H that she was happy to work with her to repair the relationship. Ms H said she told the mother that she was happy to do that but the mother would need to initiate.
Ms H said that at the joint session with the mother and [X] on 10 August 2017 both were very uncomfortable. She got the mother to bring baby photos and got them to talk about old memories. [X] expressed his concern that the mother would come to school and Ms H encouraged him to talk about that. He said he was embarrassed when he was pulled out of class. The mother was able to acknowledge [X]’s feelings. Ms H asked both of them to reflect on what it was like for the mother to want [X] home. [X] was very clear that that was not what he wanted for now.
It is concerning to me that the mother has not been proactive in engaging professional assistance for herself and [X]. The mother says that their relationship has progressed but it is clear there was a crisis point in June 2018 where she decided not to see him. She did not give any proper explanation for not engaging more with Ms H or with another therapist. This is unfortunate given the significant passage of time.
The mother submits that Mr A was not cross-examined about the risk he poses to [Y]. That is true.
The mother submits that the father has failed to demonstrate that the competitive relationship between the boys has changed but this ignores the third family report and Mr E’s oral evidence.
The mother makes further submissions based on the premise that the father was the sole aggressor with respect to the assault. The evidence does not support that. The mother’s submissions conclude that the evidence does not support any change to [Y]’s living arrangements.
I am satisfied that the mother discussed her evidence with Mr A despite her being explicitly warned against doing so. This impacts on the veracity of her evidence and Mr A’s evidence.
The father submits that Mr A’s convictions for violence show a propensity for violence and submits that the fact that they occurred almost 10 years apart is an aggravating factor. I accept that both incidents involved significant violence which should not be downplayed. However, I do not accept the submission that this shows a propensity for violence and an aggravating factor. There is no evidence to suggest that Mr A has been involved in any other violent incidents. The evidence of Mr A and the mother with respect to the Town Q incidents are unsatisfactory as they clearly talked about the mother’s evidence on this point before Mr A gave evidence. I do not accept the mother’s contentions that the father made up these incidents.
The father’s submits that the mother was evasive about why [Z] moved out of her home. The father went on to submit that both the mother and [Z] have been subjects to Mr A’s anger and aggression. There is no evidence of this with respect to [Z]. With respect to the mother this must be a reference to the Town Q incidents. There is no evidence of any other instances.
The father also refers to the boys’ complaints about Mr A saying derogatory things to them before the assault. Clearly the father takes things the boys have said at face value. Neither parent appears to appreciate the enormous strain placed on both these boys being in the middle of the high conflict between their parents which has existed long before February 2017.
In support of the submission that the injunction against Mr A should be continued, the father submits that the mother is unable to act protectively as she is aligned with Mr A. The father says in order to protect the boys from ongoing psychological harm the injunction must be continued. The father accepts that this “may put a practical strain” on the mother and Mr A’s relationship but they do not suggest that it will be terminal to their relationship or that Mr A will not be able to continue to stay with the mother during the times [Y] lives with her. To suggest that it “may place a strain” unrealistically downplays the effect of this injunction.
I accept the father’s submissions that [X]’s views about Mr A are based on his lived experience. The assault clearly had a profound effect on [X]. I do not accept the father is manipulating or influencing this.
Legal Principles and their application to children’s issues
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). S.65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the right of the children of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
Both children clearly have a meaningful relationship with both their parents which will continue. The concerns about physical, psychological harm and family violence have been addressed elsewhere in these reasons. Apart from the presence of Mr A, which I address separately and despite the myriad of complaints each parent makes about the other, both propose that [Y] spend substantial and significant time with both parents. It is also hoped that [X]’s time with his mother will increase over time although there is no certainty about this given the complex and difficult issues involved.
I must consider the boys’ views. [Y] clearly enjoys spending time in both households. He is very young and has not expressed clear views about the amount of time he should spend in the households. He has expressed a desire to spend more time with [X] and also misses Mr A. [X] very clearly wants to live with his father. He also wants to spend time with his mother but the barriers to him spending more time with the mother relate to his lack of trust in his mother and his concerns about Mr A. [X] has also expressed a desire to spend more time with [Y].
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
S.61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
Despite my concerns about the mother’s unilateral actions with respect to [Y]’s school I am satisfied that the parents should retain equal shared parental responsibility for all major issues including education. Both have valuable contributions to make in that regard. The mother is well and truly on notice that she must not take unilateral action with respect to [Y]’s school. If she does she will be in breach of the equal shared parental responsibility order.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] HCA 4, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time. At paragraph 13 of the judgment the High Court said:
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 (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
Both parents’ proposals involve [Y] spending substantial and significant time with his parents. Neither seek that there be an equal time arrangement for [Y]. I am not bound by the parties proposals. Many of the dynamics in this family, the high conflict, distrust between the parties and different parenting styles would all contradict an equal time arrangement being in [Y]’s best interests. However, it is precisely the dynamics of this family that lead me to the conclusion that it is in [Y]’s best interests that there be an equal spend time with arrangement. This sends a strong message to the parties that they both have valuable things to contribute to [Y]’s welfare. It is not about one parent being superior or feeling that they are superior because they have [Y] with them for a greater period of time. I am mindful of Mr E’s evidence that this is a big change for [Y] but I am satisfied that he will adjust to it. He is a resilient boy. I am also satisfied that [X] will adjust to this. Their sibling relationship has improved and it is an important relationship. I accept that they want more time together. I find that it is in the children's best interests that there be two blocks of time a fortnight rather than one block. I have added a night to the two blocks [Y] has now. I have deliberately described the orders as [Y] living with each of his parents for different periods. It reflects the reality for [Y] and underscores the message to the parents that they are equally important to [Y]. They have different parenting styles but that does not make one better than the other.
I am not satisfied that it is in either boys interests to injunct the father from attending the boys’ sporting and extracurricular events when the boys, or one of them is in the mother’s care. The boys would benefit from seeing both their parents at these events, showing an interest in their activities. However, to make things easier for the boys to navigate between their parents the father should be sensitive to the mother’s feelings that it can be overwhelming and intimidating to see the father and others from his family there. He should be in the background mindful that it is the mother’s time. In fact it would be helpful, particularly in the first few months that provided the mother takes [X] to his sporting activities on the Sunday afternoons he is in her care, the father stay away
The parties are not at a point where they can be flexible about the orders. They may get to a point where they can be but I accept that the mother genuinely feels harassed and undermined by the father when he asks for extra time with [Y] and offers extra time with [X]. He needs to be sensitive to this. Clearly the current arrangement means that [X] and the father will be doing things that [Y] will miss out on but he will be doing things with the mother and her family. If the father is sensitive to this it will be easier emotionally for the boys.
There are 13 additional considerations which are set out in s.60CC(3) . Not all of them are relevant.
In reaching this decision of I have also taken into account the relevant s.60CC(3) considerations. It is clear that the boys have a close and loving relationship with both their parents. Despite [X]’s emotional difficulties he is also close to his brother. These orders enable the boys to spend significant time together but also acknowledge the reality that whilst the mother and [X] rebuild their relationship, [X] will have significant time on his own with his father. I certainly hope that in the future [X] is able to spend more significant time with the mother including overnights, but it may not result in the same arrangements for both boys.
I am satisfied that both parents take their responsibilities as parents seriously and have the capacity to look after the children’s physical, emotional and intellectual wellbeing.
The mother has not exercised the opportunity to spend time with [X] on Saturdays pursuant to the interim orders. Whilst the mother cites difficulties as a result of needing to manage the other children as well, it is a missed opportunity for the mother to show [X] that he is a priority for her. This is the same difficulty with respect to the mother’s approach to therapy with [X].
The father submits that the mother is seeking a restraint on the father attending [Y]’s games when [Y] is not in his care as that will enable her to bring Mr A instead. This was not put to the mother when she was being cross-examined. I accept that the mother finds it uncomfortable to see the father and his family at games. I am not satisfied that it is appropriate to restrain the father from attending. It would benefit both boys if they could see both parents at their activities.
The boys also have significant relationships with extended family members which include Ms D and for [Y], Mr A and his children.
I accept the father’s submissions that the separation of siblings is undesirable and the courts rarely find this to be in children’s best interests. However, the court must consider this in the context of [X] and [Y]’s best interests and their particular circumstances. It is incorrect to say it is avoidable in this case, as in the current circumstances, the boys would have to continue to have significant times apart even on the father’s proposal.
Conclusion
The adults in this case have been caught up in the bitter dispute amongst them and have lost sight of the negative impact of this on the children. They have become so focused on their positions that they have lost sight of their children’s interests and their perspectives.
The father understandably focuses on the second family report in support of his application to change [Y]’s residence whilst the mother focuses on the third family report in support of her application to keep the status quo. I accept Mr E’s evidence that it is necessary to look at this family’s experiences in terms of a continuum rather than looking at the individual reports and time periods in isolation. I have to consider the whole of the evidence.
It is important for the parents, Mr A, Ms D and other members of both families to realise that individuals are different. The two boys in this matter have very different personalities. They have different temperaments. The assault has affected the two boys very differently. Their parents need to take their children as they find them. It is counterproductive to simply tell [X] to get over it or move on. That just shuts [X] down and ignores his feelings. The mother’s reaction and the way of dealing with this has not been the most helpful. She has been dealing with a very difficult situation which at times has been overwhelming for her and very distressing. It is very clear that after the assault both boys perceived that their mother was prioritising her relationship with Mr A over them. It is understandable in those circumstances that the boys would find their father to be the safer person. It is also understandable that they would be worried about him.
I do not think it is as simple as saying that the mother prioritises her relationship with Mr A over the children. The father has been denigrating of the mother and critical of her but the mother also needs to take some responsibility for her own actions. She has been somewhat passive with respect to repairing her relationship with [X].
Neither of the parties’ submissions engage with the injunction against Mr A in any real way. The father’s submissions do not engage with the fact that he seeks the injunction on a permanent basis which is a very different proposition to making an injunction on an interim basis. Neither written submission refers to any case law on the topic or the section of the Act relied on. The father does not identify the provision of the Act he relies on. His submission in support of the injunction refers to psychological harm to the children. I assume that the father seeks the injunction pursuant to s.68B(1)(a) of the Act. I must be satisfied that making the injunction is appropriate for the children’s welfare.
The wording of s.68B(1) refers to a court making an injunction in relation to a child “as it considers appropriate for the welfare of the child”. It does not refer to the best interests of the child being a paramount consideration but clearly the child’s best interest remains a consideration. The court has a broad discretion as to whether or not to grant an injunction and whether or not any conditions should attach to any injunction ordered. The effect of the injunction would be that Mr A can only live with the mother for half the time.
Given that the father seeks the injunction as a final order with no time limit in place the order would be in place for many years. This is a very different proposition to having an injunction in place pending the outcome of the criminal proceedings and the evidence being tested in court. It may well put such a strain on the mother and Mr A’s relationship that it cannot be sustained. It could also mean that [Y]’s relationship with Mr A’s children would be severed. More significantly, however, is the emotional impact on the mother. She strikes me as being somewhat worn down by the stress of both sets of proceedings. The mother’s unhappiness and distress would inevitably impact both [X] and [Y]. Children are far more attuned to their parents’ emotions than parents give them credit for.
It is necessary to consider the nature of the risk to [Y] and whether or not, if the injunction is not granted, [Y] would be at an unacceptable risk. It is impossible to eliminate risk altogether in any situation. The risk the father identifies is that [Y] may be exposed to family violence between the mother and Mr A. The evidence does not establish a history of family violence between them. The most the father can point to are the two Town Q incidents and it is unclear what actually occurred.
There are also the father’s concerns that Mr A has verbally abused the boys. Whilst the boys may have reported this to the father I am not satisfied that this occurred.
The other concern the father has is that as [Y] gets older he may become more opinionated, even direct at times and that Mr A will lose his temper. That is purely speculative.
I am not satisfied that the risk to [Y] is such that the injunction should be made. The father did not seek any alternate order. The parties have not addressed handovers in their orders sought so I can only assume that there are no issues with respect to the location. Clearly, the mother should ensure that Mr A is not present, if there is any chance of the father being present at changeover.
For these reasons I am satisfied that the orders set out at the beginning of these reasons are in the children’s best interests.
I certify that the preceding three hundred and eighty-one (381) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 24 April 2019
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Remedies
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Jurisdiction
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