FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEACON & CASTLE | [2013] FCCA 691 |
| Catchwords: FAMILY LAW – Practice and Procedure – rules of evidence. |
| Legislation: Evidence Act 1995, ss.69, 135, 136, 140 |
| Rice & Asplund (1979) FLC 90-725 Mabo v Queensland [1992] HCA 23 |
| Applicant: | MS DEACON |
| Respondent: | MR CASTLE |
| File Number: | (P)SYC 5348 of 2008 |
| Judgment of: | Judge Harman |
| Hearing dates: | 11, 12, 13, 14, 17 and 18 June 2013 |
| Date of Last Submission: | 18 June 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 4 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schroder |
| Solicitors for the Applicant: | Watts Mccray Lawyers |
| Counsel for the Respondent: | Ms Conte-Mills |
| Solicitors for the Respondent: | Veritas Legal |
| Counsel for the Independent Children’s Lawyer: | Ms Hafey |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of NSW |
ORDERS
That all previous parenting orders with respect to the children of the relationship X born (omitted) 2002 and Y born (omitted) 2003 shall be and are hereby discharged.
That the mother, Ms Deacon shall have sole parental responsibility for X and Y.
X and Y shall live with their mother.
The Independent Children’s Lawyer and a Family Consultant are requested to immediately confer with X and Y and explain to them the orders made by me today and, in the case of the Family Consultant, to do all things within their power to assist and facilitate the children’s departure from the child minding section of this Court with their mother.
Mr Castle shall, forthwith upon these orders being pronounced and judgment delivered, leave the registry and remain away therefrom.
Ms Deacon shall be entitled to forthwith affect the children’s enrolment at a school of her choice and proximate to her home.
Pursuant to section 68B and until 5pm 6 December 2013 Mr Castle shall be and is hereby restrained from:
(a)Contacting the mother, Ms Deacon;
(b)Contacting the children X and Y by any means whatsoever (save for the purpose of attending any counselling or family therapy appointment arranged by the mother and at the request of that counsellor or therapist and with the mother’s knowledge and consent);
(c)Attending at or being within 200 meters of:
(i)The mothers home;
(ii)The school attended by the children or either of them.
Commencing 7 December 2013 Mr Castle shall have contact with and shall communicate with X and Y as follows:
(a)Until the commencement of Term 1 2014 school term - each Saturday from 10am until 5pm;
(b)Thereafter:
(i)Each alternate weekend during school terms from the conclusion of school Friday until the commencement of school the following Monday (extending to Tuesday in the event of a long weekend) to commence with the first weekend of each new school term;
(ii)During each short New South Wales school term (those following terms 1,2 and 3) from 10am on the first Saturday of the holiday period until 5pm the following (middle) Saturday;
(iii)During the Christmas School holidays in each year for two one week blocks being from 5pm Christmas Day until 5pm New Years Day and from 5pm 15 January until 5pm 22 January;
(c)By telephone each Wednesday between 6:30pm - 7pm.
That for the purpose of facilitating time with the children that does not occur on school days, the Mother deliver the children to the Father at his usual place of residence at the commencement of their time with the Father and the Father return the children to the Mother at the Mother’s usual place of residence at the conclusion of their time with the Father unless otherwise agreed between the parties and at all other times the father shall collect the children from and return the children to their school/s.
Each parent shall be and is hereby restrained from discussing with the children any issue or allegation raised in these proceedings and shall not allow, cause or permit any other person to do so save the Independent Children’s Lawyer, a Family Consultant or counsellor or family therapist engaged in assisting the mother and/or children.
The mother shall be entitled to provide to any counsellor or family therapist engaged by her to assist her or the children or either of them a copy of the report of Dr S and Ms D if the counsellor or therapist requests same.
That each party keep the other party informed as to his or her residential address and telephone number.
That each party notify the other as soon as reasonably practicable of any accident or emergency involving the children which involves medical treatment or hospitalisation whilst the children are in their respective care.
That each party ensure that the children are transported by them to any sporting and extra curricula activities in which the children are participating from time to time and which occur at times when the children are in the care of that party together with any training or other tuition relating to that activity, provided both parties consent to the children’s attendance and participation in same.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Deacon & Castle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
(P)SYC 5348 of 2008
| MS DEACON |
Applicant
And
| MR CASTLE |
Respondent
REASONS FOR JUDGMENT
What is highlighted by this case, (and a prominent feature of the evidence given over the six days of the proceedings), is the danger posed to children not from outside their family and inflicted by strangers but from within their family and inflicted by those seized with responsibility and professing love for them.
These are proceedings relating to competing applications regarding the future care arrangements of two children:
a)X born (omitted) 2002 (aged 11 years at hearing); and
b)Y born (omitted) 2003 (aged 9 years at hearing).
The parties to the proceedings are the children’s parents namely, their mother (the Applicant), Ms Deacon, and their father (the Respondent), Mr Castle.
History of proceedings
These parties, who were never married and who are unable to agree as to the circumstances of their cohabitation, have been engaged in relatively continuous litigation from September 2008 to the present.
Whilst it is not specifically raised by the parties during the course of the proceedings (although each has referred to a history of conflict) it is instructive to consider the history of applications filed and the orders sought by them to trace if not understand how they have arrived at the present point.
The first application filed by either party was an Initiating application filed by Mr Castle in the Federal Magistrates Court (as it then was) at Sydney on 12 September 2008. That Application sought orders on an interim and final basis and in the following terms:
1. That the children…live with the father and during such times as the children are with him he have responsibility for decisions as to their day-to-day care, welfare and development.
2. That the children spend time with the Respondent Mother…as follows:
(i) During school term time, with the child Y from 9.30am to 5.30pm and with the child X from after school on Friday to 5.30pm, provided that such contact be exercised at 4 (omitted) (on the basis that the Applicant Father will vacate the premises during that time to permit the children to be with the mother);
(ii) For such other times as agreed between the parties;
(iii) Subject to the mother being restrained by Injunction from taking the children to the home of her father at (omitted) and being restrained by Injunction from leaving the children unsupervised with their half-sibling, A.
That application was ultimately discontinued on 15 October 2008.
Two days later and on 17 October 2008 an Initiating application was filed by Ms Deacon in the Federal Magistrates Court (as it then was) at Parramatta (being the date which had been allocated as the first return date of Mr Castle’s by then discontinued Application). That Application sought orders on a final basis and as follows:
1. That the parties have equal shared parental responsibility of the children…
2. That the children live with the mother.
3. That the children spend time with the father as the Court deems fit.
Interim orders were sought by the mother which were not significantly at odds with the final relief sought. On an interim basis it was proposed that the parents would have equal shared parental responsibility and the children would live with their mother each alternate week from after school Thursday to before school Monday together with a period from after school Thursday until 10.00am Saturday in the intervening weeks. On this basis, it is clear the mother was proposing, at that time, a shared care arrangement.
A response to the above application was filed by Mr Castle on 25 November 2008. By that response, Mr Castle sought orders for sole parental responsibility, for the children to live with him and for the children to spend time with their mother, on both a final and interim basis:
…one day per weekend between the periods 9.00am to 5.00pm subject to such being supervised by a suitable supervisor.
The proceedings came before Federal Magistrate Donald (as he then was) on 1 December 2008 and on which date both parties were legally represented. The proceedings were adjourned for Interim Hearing to 22 December 2008 and in the intervening period a number of orders were made by consent. The effect of these orders was that X and Y would spend time with the mother on 7, 14 and 21 December 2008 between 8.00am and 6.00pm with the children to be collected from Mr Castle’s home and returned to Mr Castle at McDonald’s at (omitted). Provision was also made for telephone communication and a number of without prejudice and without admission restraints imposed.
On 22 December 2008 an Amended Response was filed by Mr Castle and which varied the relief sought by him. On a final basis Mr Castle proposed that the time would be:
3. Subject to the recommendations in the Family Report [not at that time commissioned] that the mother spend time and communicate with the children:
a. Every second Sunday from 8.00am until 6.00pm provided the mother:
i. Does not drive a motor vehicle unless she holds a driver’s licence;
ii. Does not bring, or cause or otherwise allow the children to come into contact with Mr Deacon [the maternal grandfather] or A [the children’s elder sibling];
iii. And does not take, or cause or otherwise allow the children within 100 metres of the residence of Mr Deacon.
b. Provided that the mother has established her own accommodation and does not live with the maternal grandfather, Mr Deacon then the mother is to spend time and communicate with the children as follows, such time not to commence until three (3) months after the making of these orders:
i. In week one from Thursday after school until Friday after school and each alternative week thereafter;
ii. In week two from Thursday after school until 9.00am Saturday and each alternative week thereafter
On an interim basis Mr Castle proposed that the mother spend time and communicate with the children:
…only by telephone every two days and the father is to facilitate telephone calls to the mother, such time to be limited to 30 minutes.
Restraints were sought in similar terms to the above.
On 22 December 2008 the proceedings came before Federal Magistrate Dunkley (as he then was) by way of interim hearing. On that date and following hearing orders were made pending further order as follows:
1. The children, X, born (omitted) 2002, and Y, born (omitted) 2003, shall live with the father.
2. The children shall spend time with the mother:
a.Each alternate weekend from 6 pm Friday to before school Monday during school term time.
b.Each week from 6 pm Wednesday to before school Thursday in school term time.
c.For the second week of each school holiday at the end of terms 1, 2 and 3 commencing at 9 am on the middle Saturday and concluding at 6 pm on the last Saturday.
d.From 5 pm on each Christmas Day to 6 pm on each Boxing Day.
e. From 9 am on 5 January 2009 to 6 pm on 11 January 2009, from 9 am on 19 January 2009 to 6 pm on 25 January 2009.
f.For two hours on each of the children’s’ birthday as agreed and failing agreement from 4 pm to 6 pm.
g.On the weekend of Mother’s Day from 6 pm on the Saturday prior to Mother’s Day to before school Monday of the day following Mother’s Day.
An order was also made 22 December 2008 appointing an Independent Children’s Lawyer and an order made commissioning a Family Report. Hearing. Dates were fixed for a hearing to commence 1 December 2009 (that no longer being the Court’s preferred protocol).
The parties were also noted as being in the process of attending Family Dispute Resolution (although upon file is a section 60I certificate issued by the service upon which the parties attended and indicating that Family Dispute Resolution was considered inappropriate).
Whilst it is not clear what difficulties arose following the making of the above orders, a flurry of filing occurred.
a)On 19 January 2009 an appeal to the Full Court was filed by Mr Castle. A copy of that Appeal is on the file but has not been read and considered by me as to the grounds alleged. There is nothing on the file to indicate clearly what occurred with the Appeal although in orders made 9 February 2009 it is noted that the Appeal was in the process of being withdrawn.
b)On 20 January 2009 an application in a case was filed by Ms Deacon seeking Recovery Orders with respect to both children. One can infer therefrom that one or more time periods pursuant to the orders made by Federal Magistrate Dunkley (as he then was) had not occurred or were not apprehended as likely to occur.
c)A response to the application in a case was filed by Mr Castle on 6 February 2009 and seeking a stay of all orders pending the hearing of the Appeal.
On 9 February 2009 the proceedings again came before Federal Magistrate Dunkley. On that date the application in a case and response were each dismissed. Further interim orders were entered by consent and which affected a variation of the orders previously made on 22 December 2008 and such that time pursuant to those orders was expressed as “recommencing” on 20 February 2009. A number of “provisos” were included within the orders being:
a)It was noted that the mother had provided to the Independent Children’s Lawyer and would provide to the solicitors for the father details of a new residential address;
b)The mother undertook to take all reasonable steps, while the children were in her care, to ensure that A did not engage in “over-physical play” with the children; and
c)The mother undertook to take all reasonable steps to ensure the children were not brought into the presence of people who “appear to be adversely affected by the consumption of alcohol” (whatever that phrase may have been intended to suggest or imply).
On 24 March 2009 a further application in a case was filed by Ms Deacon seeking to vary changeover arrangements. The orders made 23 January 2009 had provided for the children’s collection by the mother from the father’s residence and their return, by their mother, to school or by the father collecting them from the mother’s residence at the conclusion of each period (if not a school day). Again, the evidence relating to the application in a case and its ultimate determination has not been considered as they are not documents identified by the parties. However, clearly difficulties were apprehended at the time of filing the application in a case and as it was sought by Ms Deacon that changeovers be varied:
a. For the purpose of Order 2(i) [being each alternate weekend time from 6.00pm Friday to before school Monday] changeover shall occur at (omitted) Contact Service at times when the mother is not required to collect or deliver the children to school.
b. For the purpose of Order 2(ii) [being the period from 6.00pm Wednesday to before school Thursday] the mother is to collect and deliver the children to school.
c. For the purpose of Order 2(iii) [being a period of school holiday time] changeover is to occur at (omitted) Contact Service.
The mother also sought an order whereby the father be restrained:
…from taking the children to any psychologist, psychiatrist or counsellor without the written permission of the mother.
A response to the application in a case was filed by Mr Castle on 29 April 2009 (two days after interim orders were in fact made). By that response Mr Castle, by and large, joined in a variation of changeovers so that they would occur through the (omitted) Contact Service and otherwise sought dismissal of Ms Deacon’s application in a case together with an order in similar to terms to that which had been proposed by Ms Deacon but mutualised being:
Each party be restrained from taking the children to any psychologist, psychiatrist or counsellor without the written permission of the other parent.
The above application in a case would appear to have been determined by orders made by Federal Magistrate Lindsay (as he then was) by consent on 27 April 2009 and which affected a variation of orders so that changeovers would occur at the (omitted) Contact Service or, if that service was not available, at McDonald's (omitted).
On 11 August 2009 orders were made to commission preparation of a Part 15 report by Dr S and orders were made (subsequently and on 22 September 2009) discharging the previously commissioned s.62G report.
Following the release of Dr S’s report and on 1 December 2009 (the first listed day of trial) final orders were made between the parties by consent. Those orders are recited in their entirety as follows:
1. That Ms Deacon born (omitted) 1974 and Mr Castle born (omitted) 1965 have equal shared parental responsibility for the children X born (omitted) 2002 and Y born (omitted) 2003.
2. Commencing 9 December 2009 the children shall spend time with the mother as follows:-
a. Each alternate week from after school Wednesday to before school Monday;
b. Order 2(a) shall continue during each school holiday period at the end of Term 4.
c. From 6.00pm on the Saturday immediately preceding Mother’s Day until 6.00pm on Mother’s Day.
d. For the first half of each school holiday period at the end of Terms 1, 2 and 3 in 2011 and each alternate year thereafter and for the second half in 2010 and each alternate year thereafter. (Order 2a) shall be suspended during this time)
e. In odd numbered years from 4.00pm Christmas Eve until 4.00pm Christmas Day and in even numbered years from 4.00pm Christmas Day until 4.00pm Boxing Day.
f. From 10.00am Good Friday until 10.00am Easter Sunday in 2011 and each alternate year thereafter.
3. The mother’s time shall be suspended as follows:
a. From 6.00pm on the Saturday immediately preceding Father’s Day until 6.00pm on Father’s Day.
b. From 4.00pm Christmas Day until 4.00pm Boxing Day in odd numbered years and from 4.00pm Christmas Eve until 4.00pm Christmas Day in even numbered years.
c. For the second half of each school holiday period at the end of Terms 1, 2 and 3 in 2011 and each alternate year thereafter and for the first half in 2010 and each alternate year thereafter.
d. From 10.00am Good Friday until 10.00am Easter Sunday in 2010 and each alternate year thereafter.
4. The children shall live with the father at all other times.
5. For the purpose of Order 2 b), c) and e) the parent with whom the children are living at the time shall deliver the children to the other parent’s place of residence at the commencement of such time and the parent with whom the children are spending time shall return the children to the other parent’s place of residence at the conclusion of such time.
6. For the purpose of order 2 d):-
a) In 2011 and each alternate year thereafter the school holidays shall commence with the mother collecting the children from school on the last day of the school term and delivering the children to the father at 10.00am on the middle Saturday of the school holiday period and the father shall deliver the children to school at the commencement of new school term.
b) In 2010 and each alternate year thereafter the school holidays shall commence with the father collecting the children from school on the last day of the school term and delivering the children to the mother’s place of residence at 10.00am on the middle Saturday of the school holiday period and the mother shall deliver the children to school at the commencement of the new school term.
7. Each parent shall facilitate any request made by the children to telephone the other parent whilst the children are in their respective care.
8. These Orders constitute authority for any school attended upon by the children to furnish both parents with copies of all school reports, photos, memoranda, newsletters, correspondence and invitations to school events to which parents are usually invited.
9. The Mother and Father are each entitled to attend all school events to which all parents are invited, including parent/teacher interviews, subject to the convenience of the children’s teachers.
10. These Orders constitute authority for any medical practitioner, hospital or specialist attended upon by the children to discuss with both parents the children’s health including details of any treatments and medications received by them.
11. Each parent shall notify the other in the event of any serious illness, medical emergency or hospitalisation of the children, including details of any hospital, specialist or medical practitioner attended upon so that both parents may be involved in the children’s treatment and recovery.
12. Both parents shall be restrained from denigrating the other parent in the presence or hearing of the children and shall use their best endeavours to ensure no other person denigrates the other parent or any member of the other parents’’ family in the presence or hearing of the children.
13. That each party shall keep the other parent informed of their current residential address and contact telephone number and shall advise the other within 48 hours of any change.
14. The father shall do all acts and complete any documents necessary to have the mother listed as an emergency contact person at the children’s school.
15. That upon the expiration of a period of six (6) months from the date of these Orders the parties shall confer to discuss the arrangements pertaining to the children as they stand at the time and to consider any variation thereto and both parties acknowledge and agree that they will, in the event of any dispute utilise the services of either a public or private mediator.
16.Without admissions, the children are not to be left in the sole care of Mr Deacon.
17. The mother and father acknowledge and agree that they shall not attend the children’s school when the other parent is scheduled to collect or return the children unless such attendance is at the request of that parent collecting or returning the children, or a representative of the school.
18. The mother and father acknowledge and agree that they shall ensure the children are at liberty to speak freely about the other parent and their time with them whilst they are in their respective care however they shall not “quiz” the children about the time spent with the other parent.
19. Should the children be with the father during the second half of the Term 1, 2 and 3 school holidays, the time pursuant to 2(a) shall recommence the first week of school term and conversely, should the children be with the mother during the second half of the school holiday period, the time pursuant to 2(a) shall recommence the second week of the school term.
The above orders concluded the then raft of litigation between the parties.
On 10 November 2011 the Initiating Application which commenced this round of proceedings was filed by or on behalf of Ms Deacon. That Application sought orders, insofar as relevant:
1. That the parents shall have equal shared parental responsibility for the children X born (omitted) 2002 and Y born (omitted) 2003 (“the children”).
2. That the children live with the Mother.
3. The children spend time with the Father:
3.1 In week one from the conclusion of school on Friday until the commencement of school on Monday, and each alternate weekend thereafter; and
3.2 From after school Wednesday to before the following Thursday, and each alternate weekend thereafter;
3.3 For one half of all NSW school holiday periods…
Additional orders were proposed with respect to special events and it was proposed that changeovers would occur through the mother delivering the children to the father at his usual place of residence and the father returning the children to the mother at her usual place of residence (if collection to and from school was not appropriate having regard to the period of time spent).
A Response to that Application was filed by Mr Castle on 20 January 2012 and which sought orders in the following terms:
1. That Ms Deacon born (omitted) 1974 and Mr Castle born (omitted) 1965 have equal shared parental responsibility for the children X born (omitted) 2002 and Y born (omitted) 2003.
2. Subject to Orders 3 and 4 the children shall spend time with the mother as follows:
a) Each alternate weekend from 5.00pm Friday until 8.30am Monday;
b) Order 2(a) shall continue during each school holiday period at the end of Term 4 save that the period will commence at 5.00pm Wednesday and conclude 8.30am Monday.
c) For the second half of each school holiday period at the end of Terms 1, 2 and 3 in 2012 and each even numbered year thereafter and for the first half in 2013 and each odd numbered year thereafter.
…
Orders were also sought which had the effect that Mr Castle would be responsible for delivering the children to the mother’s place of residence at the commencement of each period and the mother return the children to Mr Castle’s residence at the conclusion of each period. Also of some significance, Mr Castle sought orders as follows:
6. Both parents are to use all reasonable means to encourage the children to visit the other parent but neither parent is allowed to coerce, drag or use any type of physical force to force the children to accompany the parent.
…
16. That upon the expiration of a period of six (6) months from the date of these Orders the parties shall confer to discuss the arrangements pertaining to the children as they stand at the time and to consider any variation thereto and both parties acknowledge and agree that they will if require utilise the services of either a public or private mediator.
17. Without admissions, the children are not to be left in the sole care of Mr Deacon.
18. The mother and father acknowledge and agree that they shall not attend the children’s school when the other parent is scheduled to collect or return the children unless such attendance is at the request of that parent collecting or returning the children, or a representative of the school.
The last of the above made 1 December 2009 has been the focus of significant evidence during the hearing of these proceedings.
Following the commencement of this round of litigation, the matter was first came before the Court on 1 February 2012 on which date the Independent Children’s Lawyer was re-appointed. It was noted, as part of the order appointing the Independent Children’s Lawyer, that:
3. The above appointment is requested on the basis that there is apparent intractable conflict and one of the two children is and has, for nearly 2 years, been estranged from the mother and is not spending time with her although her sister is.
In light of that reality (again the subject of significant evidence by the parties):
a)The parties were directed to attend a Child Dispute Conference 10.00am that day (1 February 2012); and
b)It was noted that neither party sought any order which would in any fashion seek to intervene with respect to the elder child X’s non-attendance with her mother nor seek to address same therapeutically or otherwise (such as through some form of family counselling or family therapy).
On 5 March 2012 the proceedings returned before the Court for the first occasion following the re-appointment of the Independent Children’s Lawyer. At that time a Family Report was commissioned and the proceedings were adjourned to allow for the preparation of the report and its release. An order was also made pursuant to section 13C directing that the parties attend at and complete (subject to assessment of suitability) the Keeping in Contact program conducted by Unifam.
It would appear common ground between the parties that they have attended the Keeping in Contact program at least twice and possibly on three occasions. The two children have also attended the Anchor program offered through Unifam and Ms Deacon has attended individual counselling with a worker from Unifam.
None of the above efforts, without intending in any fashion for such observations to be pejorative of Unifam or the services provided by them, have assisted in re-establishment of time and communication between X and her mother. Nor have those services assisted in ameliorating difficulties in attitude by or communication between the parents.
There was some delay in the preparation and release of the Family Report but ultimately on 9 August 2012 the Report was available to the parties and the matter was listed for hearing for three days commencing 25 February 2013.
Immediately before the scheduled hearing of the matter in February 2013, an amended response was filed by Mr Deacon and which sought orders in the following terms:
1. That the children continue to live with their father and that the father remain the primary carer of X born (omitted) and Y born on the (omitted)
2. That the change over take place away from the school preferably McDonald's (omitted) from after school at 4pm every alternate Friday and that the Children be taken to school by their Mother on Monday mornings between 8.30am and 9.00am.
3. That the children are to be treated in a gentle encouraging manner
4. That no violence or physical force is permitted toward either child or either parent by either parent.
5. That the parents are not to argue, humiliate or use foul language towards each other or the children at any time.
6. That their Mother be refrained from dragging X or Y on any occasion.
7. That I agree with the Court appointed family Report writer that she doubts that X would go with her mother even if ordered to do so and that this family should continue to go to counselling to resolve these issues.
8. That if for any reason a parent is unable to have the children on their allocated time or weekend or they do not turn up for change-over, this does not change their allocated week or following weekend.
9. That if the Monday is not a school day and their Mother cannot return the children to the school, that the change over take place at McDonald's (omitted) at 9am Monday morning.
10. That during the Christmas holiday period the children spend one week with myself and one alternate week with their Mother commencing on the first Monday of the school holidays at 9am and that the change over take place at McDonald’s at (omitted). If Ms Deacon is returning the Children to myself it is to be done at McDonald’s at (omitted) on the Monday morning at 9am.
If the last week of school ends when their Mother is due for her allocated time, her time begins as usual at McDonald’s at (omitted) at 4pm on the Friday and then their mother is to Return the Children to myself on the first Monday at 9am at McDonald’s at (omitted). I note that McDonald’s at (omitted) is 2 streets away from Ms Deacon’s house and McDonald’s at (omitted) is 2 streets away from my house.
11. That the father be permitted to stay in his car at all change-overs.
12. That the father be permitted to take a woman along to the change-overs.
13. That the father can not be held responsible if their mother has chosen not to take X for her allocated time or if X now aged 11 has chosen not to go with her mother.
14. That all other orders that were agreed to by their mother and myself during the meeting with ICL in December 2009 [presumably the final orders made on 1 December 2009] remain in place.
On 25 February 2013 the matter was marked as “Not Reached” by (then) FM Monahan and thus fresh hearing dates were fixed before me.
The matter has now proceeded for hearing over six days being the allocated trial dates of 11 to 14 June 2013 together with 17 and 18 June 2013.
Orders sought at trial
By the completion of evidence and during submissions on the sixth day of trial each party had then or at that time tendered a Minute of Orders proposed. No objection has been raised by either party nor by the Independent Children’s Lawyer as to any variation in relief sought and thus I propose to treat such minutes as reflective of the position of each party and the Independent Children’s Lawyer
The Independent Children’s Lawyer proposed orders as follows:
1. That all prior parenting orders are discharged.
2. The father, Mr Castle, born on (omitted) 1965, shall have sole parental responsibility for X (“X”) born on (omitted) 2002.
3. In the exercise of sole parental responsibility pursuant to Order 2), the father shall nonetheless:-
a) Keep the mother, Ms Deacon, born on (omitted) 1974, informed of major health issues concerning X and take all reasonable steps to ensure that the mother is able to obtain information about her diagnosis, prognosis and treatment.
b) Keep the mother informed of any extra-curricular and sporting activities in which X is involved and shall take all reasonable steps to ensure that the mother has sufficient information to enable the mother to participate in such activities.
c) Keep the mother informed in relation to decisions about choice of high school for X.
d) Keep the mother informed of X’s residential address, contact telephone number(s) and any e-mail address.
e) Keep the mother informed of his residential address, contact telephone number(s), e-mail address and place of employment.
4. X shall live with the father.
5. X shall spend time with the mother:-
a) Each alternate weekend during school terms from 3.30pm on Friday until the commencement of school on Monday , commencing on the 2nd Friday after the making of these Orders
i) For the purpose of this Order, changeover shall be effected by the mother and father meeting at the shops at (omitted) unless otherwise agreed between the parties in writing
b) For one week in the holidays at the end of Terms 1, 2 and 3 each year, being from 10am on the first Sunday of the holidays until 10am on the second Sunday of the holidays in 2013 and alternate years thereafter and from 10am on the second Sunday of the holidays until 10am on the following Sunday in 2014 and alternate years thereafter, unless otherwise agreed between the parties in writing
i) For the purpose of this Order, changeover shall be effected by the mother and father meeting at the shops at (omitted) unless otherwise agreed between the parties in writing.
ii) X’s time with her mother pursuant to Order 5 a) shall resume on the first Friday of the new school term if X has spent the first week of the holidays with her mother and on the second Friday of the new term if X has spent the second week of the holidays with her mother.
c) For two weeks in the holidays at the end of Term 4 each year being from 10am on 29 December 2013 until 10am on 11 January 2014 and alternate years thereafter and from 10am on 11 January 2014 until 10am on 25 January 2014 and alternate years thereafter
i) For the purpose of this Order, changeover shall be effected by the mother and father meeting at the shops at (omitted) unless otherwise agreed between the parties in writing
d) On Mothers’ Day each year, notwithstanding any other Order, from 6pm the day preceding Mothers’ Day until 6pm on Mothers’ Day.
i) For the purpose of this Order, if X is not otherwise with the mother, changeover shall be effected by the mother and father meeting at the shops at (omitted) unless otherwise agreed between the parties in writing
e) From 7pm on Christmas Day until 7pm on Boxing Day in 2013 and alternate years thereafter
i) For the purpose of this Order, changeover shall be effected by the mother and father meeting at the shops at (omitted) unless otherwise agreed between the parties in writing
f) From 7 pm on Christmas Eve until 7pm on Christmas Day in 2014 and alternate years thereafter
i) For the purpose of this Order, changeover shall be effected by the mother and father meeting at the shops at (omitted) unless otherwise agreed between the parties in writing
g) At other times and under such terms as are agreed between the parties in writing
6. The mother shall have sole parental responsibility for Y (“Y”) born on (omitted) 2003.
7. In the exercise of sole parental responsibility pursuant to Order 6), the mother shall nonetheless:-
a) Keep the father informed of major health issues concerning Y and take all reasonable steps to ensure that the father is able to obtain information about her diagnosis, prognosis and treatment.
b) Keep the father informed of any extra-curricular and sporting activities in which Y is involved and shall take all reasonable steps to ensure that the father has sufficient information to enable the father to participate in such activities.
c) Keep the father informed in relation to decisions about choice of high school for Y.
d) Keep the father informed of Y’s residential address, contact telephone number(s) and any e-mail address.
e) Keep the father informed of her residential address, contact telephone number(s), e-mail address and place of employment.
8. Y shall live with the mother.
9. Y shall spend time with the father:-
a) Each alternate weekend during school terms from the conclusion of school on Wednesday until the commencement of school on Monday, commencing on the 3rd Wednesday after the making of these Orders
i) For the purpose of this Order, the father shall collect Y from school at the commencement of his time and shall return Y to school at the conclusion of his time
b) For one week in the holidays at the end of Terms 1, 2 and 3 each year, being from 10am on the second Sunday of the holidays until 10am on the following Sunday of the holidays in 2013 and alternate years thereafter and from 10am on the first Sunday of the holidays until 10am on the second Sunday in 2014 and alternate years thereafter, unless otherwise agreed between the parties in writing
i) For the purpose of this Order, changeover shall be effected by the mother and father meeting at the shops at (omitted) unless otherwise agreed between the parties in writing.
ii) Y’s time with her father pursuant to Order 9 a) shall resume on the first Wednesday of the new school term if Y has spent the first week of the holidays with her father and on the second Wednesday of the new term if Y has spent the second week of the holidays with her father.
c) For two weeks in the holidays at the end of Term 4 each year being from 10am on 11 January 2014 until 10am on 25 January 2014 and alternate years thereafter and from 10am on 29 December 2014 until 10am on 11 January 2015 and alternate years thereafter
i) For the purpose of this Order, changeover shall be effected by the mother and father meeting at the shops at (omitted) unless otherwise agreed between the parties in writing
d) On Fathers’ Day each year, notwithstanding any other Order, from 6pm the day preceding Fathers’ Day until 6pm on Fathers’ Day.
i) For the purpose of this Order, if Y is not otherwise with the father, changeover shall be effected by the mother and father meeting at the shops at (omitted) unless otherwise agreed between the parties in writing
e) From 7pm on Christmas Eve until 7pm on Christmas Day in 2013 and alternate years thereafter
i) For the purpose of this Order, changeover shall be effected by the mother and father meeting at the shops at (omitted) unless otherwise agreed between the parties in writing
f) From 7 pm on Christmas Day until 7pm on Boxing Day in 2014 and alternate years thereafter
i) For the purpose of this Order, changeover shall be effected by the mother and father meeting at the shops at (omitted) unless otherwise agreed between the parties in writing
g) At other times and under such terms as are agreed between the parties in writing
10) The mother and father are each restrained from:-
a) Discussing the proceedings or the issues in the proceedings in the presence or hearing of the children and they shall each take all reasonable steps to ensure that no other person discusses the proceedings or the issues in the proceedings in the presence or hearing of the children
b) Denigrating each other or any member of each other’s extended family in the presence or hearing of the children and they shall each take all reasonable steps to ensure that no other person denigrates either parent or any member of each other’s extended family in the presence or hearing of the children
c) Changing the residential address of the child in their care without providing the other parent with 28 days written notice of the intention to change the child’s residential address
d) Changing the children’s current primary school enrolment without providing the other parent with 28 days written notice of the intention to change the child’s school enrolment
11) The father is restrained from:-
a) entering the grounds of (omitted) Public School at the end of the school days when Y is in her mother’s care and shall collect X from school at (omitted)
b) Making reports in relation to the mother’s care of the children to the Department of Family and Community Services
12) The mother and father are each entitled to attend all school events to which all parents are invited, including parent/teacher interviews, subject to the convenience of the children’s teacher(s).
13) The mother and father shall each take all reasonable steps to ensure that they are each entitled to receive copies of school reports, notices and school photograph order forms.
14) The mother and father shall each, within 14 days of the date of these Orders, establish an e-mail address which is to be used solely to communicate information in relation to the children and they shall each provide the other parent with written notice of the e-mail address.
15) The mother and father shall each, within 21 days of the date of these Orders, contact either Dr V on (omitted) or Mr L on (omitted) or Ms C on (omitted) for the purpose of an assessment in relation to family therapy to assist the children with the implementation of these Orders.
a) In the event that the family is accepted for family therapy, the mother and father shall thereafter each comply with all reasonable directions of the family therapist, including attendance upon the therapist, ensuring the attendance of the children upon the therapist and making every endeavour to follow the recommendations of the family therapist.
Ms Deacon proposed orders as follows:
1. That the mother shall have sole parental responsibility for the children X born (omitted) 2002 and Y born (omitted) 2003 (“the children”) so far as health and education issues are concerned, and otherwise the parents shall have Equal Shared Parental Responsibility
2. That the children live with the Mother.
3. That the children spend time with the Father, to commence three months after these Orders are made
3.1 During school terms from the conclusion of school on Thursday until the commencement of school on Monday, and each alternate week thereafter
3.2 For one half of all NSW school holiday periods as agreed between the parties and failing agreement for the first half of each school holiday period which commences in an odd numbered year and the second half of each school holiday period which commences in an even numbered year;
3.3 From 6.00 p.m the day prior to Father’s Day until 6.00 p.m on Father’s Day each year if the children would not otherwise be spending time with the Father pursuant to these orders on such day;
3.4 During Christmas each year as follows:
3.4.1 From 4.00 p.m on Christmas Day until 4.00 p.m on Boxing Day in 2011 and each alternate year thereafter.
3.4.2 From 4.00 p.m on Christmas Eve until 4.00 p.m on Christmas Day in the year 2012 and each alternate year thereafter
3.5 That all other times as agreed between the parties.
4. That the children communicate with the Father by telephone each Tuesday and Thursday between 6.00 p.m and 6.30 p.m.
5. That during all school holiday periods including the Christmas school holiday period, the times the children would be due to spend with the Father pursuant to Order 3.1 above, shall be suspended.
6. That the time the children spend with the Father pursuant to Orders 3.1 above shall recommence after each school holiday period as follows:
6.1 For time pursuant to Order 3.1 on the second complete weekend after the commencement of the new school term in odd numbered years and for the first complete weekend after the commencement of the new school term in even numbered years;
7. That the time the children spend with the Father pursuant to these Orders shall be suspended, and the children shall instead spend time with the Mother as follows:
7.1During Christmas each year as follows:
7.1.1 From 4.00 p.m on Christmas Day until 4.00 p.m on Boxing Day in 2012 and each alternate year thereafter.
7.1.2 From 4.00 p.m on Christmas Eve until 4.00 p.m on Christmas Day in the year 2011 and each alternate year thereafter
7.2 From 6.00 p.m the day prior to Mother’s Day until 6.00 p.m on Mother’s Day each year;
7.3 For the first half of each school holiday period commencing in even numbered years and the second half of each school holiday period commencing in odd numbered years.
8. That the children communicate with the Mother by telephone each Saturday that they are spending time with the Father between 6.00 p.m and 6.30 p.m.
9. That for the purposes of order 3.2 and 7.3 above, the following will apply:-
9.1 School holiday periods are defined to commence at 3.00 p.m. on the last day of the relevant school term gazetted for New South Wales and to conclude at 5.00 p.m. on the Sunday immediately preceding the commencement of the next school term gazetted for New South Wales.
9.2 Changeover is to occur at 12 midday on the mid-point day between the first and last day of the defined school holiday period.
9.3 In the event that there are two consecutive “mid-point days”, then changeover is to occur at 12 midday on the first of those two “mid-point days”.
10. That for the purpose of facilitating time with the children that does not occur on school days, the Mother deliver the children to the Father at his usual place of residence at the commencement of their time with the Father and the Father return the children to the Mother at the Mother’s usual place of residence at the conclusion of their time with the Father unless otherwise agreed between the parties.
11. That each party keep the other party informed as to his or her residential address and telephone number.
12. That each party notify the other as soon as reasonably practicable of any accident or emergency involving the children which involves medical treatment or hospitalisation whilst the children are in their respective care.
13. That each party ensure that the children are transported by them to any sporting and extra curricula activities in which the children are participating from time to time and which occur at times when the children are in the care of that party together with any training or other tuition relating to that activity, provided both parties consent to the children’s attendance and participation in same.
14. The parties will do all things necessary to ensure time is spent in accordance with these orders notwithstanding any illness of the children.
15. That the parents do all such things and execute all necessary consents to engage Dr V in a course of family Therapeutic Counselling concerning the children to facilitate these Orders.
16. The parents shall follow all reasonable directions and requirements of Dr V to give effect to order 15.
17. NOTATION: It is noted by the Court and it is a request of the Court that as far as possible the children be placed on a mental health plan to facilitate the therapy and for this purpose the mother be permitted to provide to the children’s general practitioner and to Dr V a copy of the Family Consultant’s Report, the Report from Dr S and these Orders and judgement.
18. That the mother be responsible for the payment of the therapy in the event that she is unable to obtain a mental health referral.
19. That the father spend no time with the children from the date of these Orders for three months, and is restrained from communicating or coming into contact with them during this period of time, and any Orders to the contrary herein are suspended for that period of three months.
20. That other than for the purpose of attending parent teacher interviews or attending school events at which parents ordinarily attend, the father is restrained from attending the children’s school/s.
Mr Castle proposed orders as follows:
1. That Ms Deacon born on (omitted) 1974 and Mr Castle born (omitted) 1965 have equal shared parental responsibility for the children X born (omitted) 2002 and Y born (omitted) 2003.
2. Commencing xxxx 2013, the children shall spend time with the mother as follows;
2.1 Each alternate week from after school Wednesday to before school Monday.
2.2 Order 2(a) shall continue during each school holiday period at the end of Term 4.
2.3 From 6.00 pm on the Saturday immediately preceding Mother’s Day until 6.00 pm on Mother’s Day.
2.4 For the first half of each school holiday period at the end of Terms 1, 2 and 3 in 2013 and each alternate year thereafter and for the second half in 2014 and each alternate year thereafter (Order 2.1 shall be suspended during this time).
2.5 In odd numbered years from 4.00 pm Christmas Eve until 4.00 pm Christmas Day and in even numbered years, from 4.00 pm Christmas Day until 4.00 pm Boxing Day
2.6 From 10.00 am Good Friday until 10.00 am Easter Sunday in 2014 and each alternate year thereafter.
2.7 This Order is subject to the conditions contained within Order 7 herein.
3. The mother’s time shall be suspended as follows;
3.1 From 6.00 pm on the Saturday immediately preceding Father’s Day until 6.00 pm on Father’s Day.
3.2 From 4.00 pm Christmas Day to 4.00 pm Boxing Day in odd numbered years and from 4.00 pm Christmas Eve until 4.00 pm Christmas Day in even numbered years.
3.3 For the second half of each school holiday period at the end of Terms 1, 2 and 3 in 2013 and each alternate year thereafter and for the first half in 2014 and each alternate year thereafter.
3.4 From 10.00 am Good Friday until 10.00 am Easter Sunday in 2015 and each alternate year thereafter.
4. The children shall live with the father at all other times.
5. For the purpose of Order 2.2, 2.3 and 2.5, the parent with whom the children are living at the time shall deliver the children to the other parent’s place of residence at the commencement of such time and the parent with whom the children are spending time shall return the children to the other parent’s place of residence at the conclusion of such time.
6. For the purposes of Order 2.4;
6.1 In 2013 and each alternate year thereafter, the school holidays shall commence with the mother collecting the children from school on the last day of the school term and delivering the children to the father at 10.00 am on the middle Saturday of the school holiday period and the father shall deliver the children to school at the commencement of new school term.
6.2 In 2014 and each alternate year thereafter, the school holidays shall commence with the father collecting the children from school on the last day of the school term and delivering the children to the mother’s place of residence at 10.00 am on the middle Saturday of the school holiday period and the mother shall deliver the children to school at the commencement of the new school term.
7. Both parents shall attend upon a Family Therapist with the child X for the purpose of reintroducing the mother’s time with X. For this purpose, Order 2 is suspended in relation to X until such time as deemed appropriate by the treating therapist and in accordance with a timetable proposed by the therapist.
8. Each parent shall facilitate any request made by the children to telephone the other parent whilst the children are in their respective care.
9. These Orders constitute authority for any school attended upon by the children to furnish both parents with copies of all school reports, photos, memoranda, newsletters, correspondence and invitations to school events to which parents are usually invited.
10. The mother and the father are each entitled to attend all school events to which all parents are invited, including parent/teacher interviews, subject to the convenience of the children’s teachers.
11. These Orders constitute authority for any medical practitioner, hospital or specialist attended upon by the children to discuss with both parents the children’s health including details of any treatments and medications received by the children.
12. Each parent shall notify the other in the event of any serious illness, medical emergency or hospitalisation of the children, including details of any hospital, specialist or medical practitioner attended upon so that both parents may be involved in the children’s treatment and recovery.
13. Both parents shall be restrained from denigrating the other parent in the presence or hearing of the children and shall use their best endeavours to ensure no other person denigrates the other parent or any member of the other parents’ family in the presence or hearing of the children.
14. That each party shall keep the other parent informed of their current residential; address and contact telephone number and shall advise the other within 48 hours of any change.
15. The father shall do all acts and things and complete any documents necessary to have the mother listed as an emergency contact person at the children’s school.
16. That upon the expiration of a period of six (6) months from the date of these Orders, the parties shall confer to discuss the arrangements pertaining to the children as they stand at the time and to consider any variation thereto and both parties acknowledge and agree that they will, in the event of any dispute utilise the services of either a public or private mediator.
17. Without admissions, the children are not to be left in the sole care of Mr Deacon.
18. The mother and the father acknowledge and agree that they shall not attend the children’s school when the other parent is scheduled to collect or return the children unless such attendance is at the request of the parent collecting or returning the children, or a representative of the school.
19. The mother and father acknowledge and agree that they shall ensure the children are at liberty to speak freely about the other parent and their time with them whilst in their respective care, however, they shall not “quiz” the children about the time spent with the other parent.
20. Should the children be with the father during the second half of Term 1, 2 and 3 school holidays, the time pursuant to Order 2.1 shall commence in the first week of school term and conversely, should the children be with the mother during the second of the school holiday period, the time pursuant to Order 2.1 shall recommence second week of the school term.
Parties’ evidence and documents relied upon
Each of the parties and the Independent Children’s Lawyer were represented at hearing and provided a case outline document enumerating the Affidavit material and reports which they sought to rely upon.
In the case of Ms Deacon the following material was identified and read:
a)Case Outline document;
b)Her Affidavit sworn and filed 21 December 2012;
c)Proof of Evidence (adopted during her evidence in chief) of Ms Deacon dated 24 May 2013;
d)Affidavit of Ms B sworn 19 November 2011and filed 24 November 2011;
e)Affidavit of Ms W sworn and filed 21 December 2012;
f)Affidavit of Ms H sworn 10 January 2013 and filed 11 January 2013;
g)Affidavit of Mr B sworn 7 January 2013 and filed 8 January 2013.
In the case of Mr Castle have read and considered each of the documents identified by his Counsel and as follows:
a)Case Outline document;
b)Affidavit of Mr Castle affirmed 25 January 2012 and filed 27 January 2012;
c)Affidavit of Mr Castle affirmed 4 February 2013 and filed 12 February 2013 (being an Affidavit suggested to respond to and Affidavit of Ms H);
d)Affidavit of Mr Castle affirmed 4 February 2013 and filed 12 February 2013 (being an Affidavit suggested to respond to and Affidavit of Ms W);
e)Affidavit of Mr Castle sworn/affirmed 5 February 2013 and filed 8 February 2013 (purporting to be an Affidavit responding to the Affidavit of Ms Deacon);
f)Affidavit of Mr Castle affirmed 7 February 2013 and filed 8 February 2013(purporting to be an Affidavit of evidence in chief). That Affidavit also annexes and purports to rely upon an Affidavit of Mr Castle sworn 24 November 2008 and filed 25 November 2008 – indeed a copy of that Affidavit is annexed to the Affidavit (together with a copy of the Family Report and a number of the above Affidavits already identified above);
g)Affidavit of Mr Castle sworn/affirmed 11 February 2013 and filed 12 February 2013 (purporting to be an Affidavit in response to the Affidavit of Mr B);
h)Affidavit of Mr Castle sworn and filed 24 May 2013;
i)Affidavit of Ms K sworn/affirmed 30 November 2012 and filed 12 February 2013;
j)Affidavit of Mr H (sworn and filed 27 January 2012).
In the case of the Independent Children’s Lawyer, a Case Outline was provided. No witnesses have been called by the Independent Children’s Lawyer.
A number of reports (Part 15, section 62G and Child Dispute and Child Inclusive) have been relied upon by the parties and tendered in the proceedings. These comprise:
a)Part 15 Report of Dr S dated 8 October 2009 (Exhibit M1);
b)Family Report of Ms D dated 8 August 2012 (Exhibit C1);
c)Child Dispute Conference memorandum of 1 February 2012 completed by Ms D (Exhibit C2);
d)Child Inclusive Child Dispute Conference memorandum completed by Ms D on 17 February 2012 (Exhibit F1).
Each of Dr S and Ms D have been available for and have been cross examined.
In addition to the above, a number of further documents have been tendered during the course of the proceedings and comprising:
a)Exhibit F2: Bundle of emails between the parties;
b)Exhibit F3: The father’s proposed Minute of Order;
c)Exhibit M3: A number of photographs depicting Mr Castle and Mr B;
d)Exhibit F4: Notes taken by Mr B at a particular incident outside of Mr Castle’s home;
e)Exhibit M4: Material from Dr C as tagged;
f)Exhibit M5: Material from the Department of Family and Community Services as tagged;
g)Exhibit M6: Material from (omitted) Public School as tagged;
h)Exhibit F5: Email between Mr Castle and Ms Deacon dated 3 November 2009;
i)Exhibit M7: The curriculum vitae of Dr V (a proposed family therapist);
j)Exhibit ICL1: The Independent Children’s Lawyer’s proposed Minute of Orders;
k)Exhibit M8: The Minute of Orders proposed by Ms Deacon.
Chronology of events
The level of conflict and dispute between the parties as to all aspects of their relationship is such that it is not possible for an agreed chronology to be recited.
The least contentious chronology available is that prepared by the Independent Children’s Lawyer and I adopt that as follows:
Date Event (omitted 1965)
The Respondent, Mr Castle, born 1965.
(omitted) 1974
The Applicant, Ms Deacon, born.
(omitted) 2002
The child, X, born.
10.02
Father asserts first separation, with X being left with him without contact from mother for 3 months.
(omitted) 2003
The child, Y, born.
6.04
Father asserts mother left with Y and made no contact for 2 months.
10.04
Father asserts he left with children.
13.7.08
Mother asserts final separation.
11.08
Mother commences relationship with Ms W.
1.12.09
Consent Orders for parents to have equal shared parental responsibility, for children to live with father and for children to spend time with mother in alternate weeks from after school Wednesday until before school Monday and for half school holidays.
17.3.10
Father asserts this the last time mother spent time with X – preceded by numerous assertions that mother had attempted to drag X out of the school.
30.3.10
Mother asserts last time X spent time with her.
3.6.10
Father makes report to Community Services about mother dragging X at changeover and asserts that mother and X never bonded.
7.6.10
Arrangements made for father to be at school when changeover scheduled and to wait outside school office.
13.9.10
Police involved in incident at father’s home in which father alleged that mother damaged property and attempted to force her way into house.
10.10
Mother provides standard undertakings in response to AVO application.
3-4.11
Mother and Mr W commence cohabitation.
20.6.11
Mother retained Y overnight as she was unwell.
21.6.11
Father asserts that Y had swollen hip as a result of being held upside down and shaken by her older half-brother A.
29.7.11
Father takes Y to (omitted) Hospital in relation to hip problem.
4.8.11
Y sees specialist: neurological tests and hip normal – possible irritation of iliac crest growth plate – speculation that rough play with sibling but no specific incident.
Father asserts he was told that Y had torn tendons.
11.8.11
Father makes report to Community Service that A responsible for physical harm.
12.11
Mother and Mr W move to (omitted).
20.2.12
Family Consultant Memorandum.
8.7.12
Family Report.
31.10.12
Mother commences working from home part-time for (omitted).
7.1.13
Mother working from home for partner's company.
It is to be noted that there is significant dispute between the parties as to when their relationship come to a conclusion.
The parties agree that they commenced to cohabit in 1995. Mr Castle, however, asserts that the relationship between the parties had broken down finally and completely by an unspecified date in 2004. Following that time and until 2008 (when Ms Deacon asserts the separation occurred on a final basis) Mr Castle suggests that:
a)Ms Deacon largely lived away from himself, X and Y at (omitted) or surrounding areas. It is agreed that Ms Deacon, during all relevant times during that period (2004 – 2008), had her son A in her care;
b)Ms Deacon would return (with or without A) to stay from time to time at the home of Mr Castle and would then have contact and communication with the girls but not otherwise;
c)As a consequence of the above Mr Castle asserts that he had, from an early stage in the lives of the children and each of them, assumed their primary care. Indeed, Mr Castle would assert that he had assumed sole care during those periods and that prior to 2004, when separation is suggested by him to have first occurred, that he had a primacy of care.
Objections to evidence
Before the trial commenced, two objections to evidence were raised being:
a)An objection by Counsel for Mr Castle to the report of Dr S being before the Court; and
b)An objection by Counsel for Ms Deacon to Affidavits (or portions of Affidavits dealing with events) prior to the making of final orders on 1 December 2009.
A brief adjournment occurred whilst each of the relevant documents referred to was considered. Ultimately I determined and communicated to the parties that I would permit each of the documents to be relied upon.
With respect to the above decision, I note that the basis of same is:
a)The report of Dr S was read and considered by Ms D in preparation of her Family Report. Thus it does, to some extent, form part of or at the very least inform Ms D’s report;
b)Ms D has made some reference to and presumably placed some reliance upon both observations by and opinion of Dr S;
c)The material which pre-dates the orders 1 December 2009 would appear to represent a continuum of conflict between the parties. Whilst ordinarily orders might be expected to conclude dispute between parties[1] (and thus conclude judiciable controversy and thus obviate the need for evidence relating to matters pre-dating such orders) clearly, in this case, the conflict and dispute between the parties has been ongoing and continuing since at least 2008 (if not earlier) and thus the totality of the dispute would appear relevant;
d)Whilst neither party as regards the other nor the Independent Children’s Lawyer has sought to assert a Rice & Asplund (1979) FLC 90-725 threshold material pre-dating final orders may be of some relevance in understanding the background circumstances of the parties and such as to then determine whether any change in circumstances had occurred or might be apprehended or whether there has been an uninterrupted continuum of conflict;
e)The orders made 1 December 2009 were made by consent. I do not suggest that the conclusion of proceedings through consent orders creates anything other than a judicial determination of the proceedings and binding orders. The making of orders by consent is an exercise of judicial authority which independently adopts the consensual position of the parties as the position of the Court and is thus reflective of that considered to be in the child’s best interests at that time (by both the parties (and the Independent Children’s Lawyer) and the Court. However, as the orders were made by consent, factual issue and controversies between the parties at the date of those orders were not, in any fashion, addressed and there would appear to be little if any agreement as to facts and circumstances as at 1 December 2009 or pre-dating same (save the dates of birth of the parties and the children);
f)Each of the parties suggests some concern or belief (inadmissible in its form) as to the mental health of the other and issues relating to the mental or emotional or psychological health of the children. Dr S, as a child and family psychiatrist, is best placed to assess any such concerns and diagnose any illness, condition or disorder and she has done so in her report. Hers is the best evidence available on those topics;
g)Clearly an issue is apprehended in the proceedings (and identified by Ms D and the Independent Children’s Lawyer) as to the nature and quality of the relationship between the children (particularly the relationship between the eldest child X and each parent) and, further and perhaps of more relevance and significance, whether the relationship between X and her father is “enmeshed”. In addressing that issue Dr S has expressly considered that issue and given her opinion based upon her interviews with the parties and the children and her professional qualifications and experience. Ms D has also commented upon those matters and has, in doing so, read and placed reliance upon the report of Dr S and deferred to Dr S’s greater professional qualification to comment. Thus I am satisfied that it would not be possible to read the Family Report of Ms D without the Part 15 Report of Dr S;
[1] And to the extent that a sound philosophical debate might occur as to the difference between “dispute resolution” and “conflict management” or, indeed, the possibility that a dispute can be resolved when underlying conflict (and attitudes) remain I am content to leave that debate to another time and place as there is nothing to be gained by its consideration here.
As regards the inclusion of material pre-dating the orders (on the part of Mr Castle) I note that:
a)Its exclusion would have created an impression of denial of due process by Mr Castle (he has raised a number of similar concerns throughout the hearing with respect to other portions of the evidence including the report of Dr S). Mr Castle has, until immediately prior to the hearing, been self represented and has prepared his own material;
b)The admission of that material would not significantly prejudice Ms Deacon as she has also canvassed a number of matters pre-dating and well pre-dating the orders of 1 December 2009. Further, Ms Deacon had, through her Counsel, made clear that she had prepared a proof of evidence responding to the material pressed by Mr Castle;
c)The inclusion of that material was unlikely to significantly increase the issues in dispute or the hearing time required to dispose of the proceedings.
For all of the above reasons I have admitted each of the documents.
During the course of the hearing the only other objection to evidence which has arisen related to one sentence of the Affidavit of Ms H (filed in Ms Deacon’s care) and wherein Ms H had sworn at paragraph 2:
Ms Deacon suffered intense anxiety when the time came to collect the girls.
That paragraph has been admitted on the basis that the opinion expressed by Ms H is not intended to be professional evidence but purely her perception. That position and its admission on that basis did not appear to create significant controversy from Counsel for Mr Castle.
Rules of evidence generally
These proceedings, dealt with as they are pursuant to Part VII Division 12A of the Family Law Act1975, are not the subject of strict application of certain portions of the Evidence Act.
Division 12A and, in particular, section 69ZT(1) provides:
(1) These provisions of the Evidence Act 1995 do not apply to child-related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
Section 69ZT(1) is subject always to sub-sections (2) and (3) which provide:
(2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
I have not taken the step of seeking to declare my satisfaction that the circumstances of the proceedings are “exceptional” such that the rules of evidence would apply strictly to the totality of the proceedings or any specific portion thereof.
I did, at the commencement of the trial, make clear to the parties that section 69ZT(2) would have significant impact on these proceedings (for reasons that I will explain in detail shortly) and as a consequence of its application that little, if any (emphasis added), weight would be attached to material which did not comply with the portions of the rules of evidence otherwise expressed not to apply as a consequence of section 69ZT.
Similar issues were apprehended as regards evidence relating to statements suggested to have been made by the children or either of them and admissible as a consequence of section 69ZV which provides:
(1) This section applies if the court applies the law against hearsay under subsection 69ZT(2) to child-related proceedings.
(2) Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay.
(3) The court may give such weight (if any) as it thinks fit to evidence admitted under subsection (2).
(4) This section applies despite any other Act or rule of law.
(5) In this section:
"child" means a person under 18.
"representation" includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.
It is to be noted that section 69ZV includes a similar provision to section 69ZT(2) in that the Court may, by sub-section (3), “…give such weight (if any) as it thinks fit to evidence admitted…” regarding representations made by a child.
Germanely, it is important to note that Division 12A does not exclude Part 3.11 of the Evidence Act dealing with discretionary and mandatory exclusions.
Sections 135 and 136 of the Evidence Act provide:
135. The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
136. The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
The general discretion to exclude or limit the use of evidence pursuant to sections 135 and 136 has some real application to these proceedings (and any proceedings subject to Division 12A) and, in particular, the weight attached to evidence which would not, but for the provisions of Division 12A, be admissible and the weight, if any, to attach to that evidence so admitted. That is particularly so as regards substantial portions of the material filed in Mr Castle’s case.
It is to be noted that until shortly prior to the hearing of the matter that Mr Castle was self represented (indeed when the matter was initially listed for hearing in February 2013 Mr Castle remained self represented). Thus, Mr Castle has prepared material on his own behalf and without the benefit, assistance and guidance of an attorney.
Notwithstanding the above, it is to be observed that due process must be afforded to both parties. It is not appropriate to nor will the Court allow favour to a party and differentially apply rules of evidence based upon whether a party is represented or not.
Whilst it is common for parties before this Court to be self represented, the same rules of practice, procedure and, importantly, evidence apply to them as apply to parties who are capably legally represented.
One of the purposes for the inclusion of Division 12A may well have been to seek to obviate against difficulties faced by self represented litigants in preparing material to be filed with the Court in support of their application or response. However, the requirement of due process can never obviate against the equal dispensation of justice.
The creation of different or unequal requirements as regards the production of evidence, by represented and self represented parties, is inappropriate. To countenance same would be to deny due process to the represented party and, in reality, both parties though especially to the party who is legally represented and required to answer a case which is potentially unanswerable.
The rules of evidence have evolved over a significant period and have since 1995 been codified by Parliament. The rules of evidence are designed to ensure the integrity of the process and to ensure that each party before the Court is able to do that which is enshrined within our legal process (as far back as Magna Carta) and being the right to properly meet and test a case which one is called upon to answer.
It is to be noted that the Federal Circuit Court Rules 2001 provide for the order in which evidence is to be given and submissions made by parties (Regulation 15.02) and orders were made, at the time hearing dates were fixed, for the filing of Affidavit material by each party. Those orders provided and envisaged that each party would file an Affidavit and do so sequentially.
Ms Deacon has filed and relied upon an Affidavit in these proceedings. Mr Castle has sought to file and rely upon a considerable number of Affidavits including Affidavits in reply to Ms Deacon and her witnesses. This has made the consideration of material far more complex but ultimately has been an allowance extended to Mr Castle on the basis of his prior self representation.
Partially in reliance upon the above leniency, leave was also granted to Ms Deacon to identify and tender a proof of evidence in response to Ms Deacon's Affidavits and particularly his most recent Affidavit sworn and filed only some days prior to the hearing.
My concern regarding the voluminous material filed by Mr Castle relates not only to its volume, its difficulty to follow (for example there being numerous Affidavits all dealing with the same incidents) and the inclusion of material that would appear largely, if not completely, irrelevant. I am further concerned, however, that Mr Castle has, with respect to significant elements of his case:
a)Sought to rely entirely upon hearsay evidence. This has been particularly so as regards as the suggested “dragging” of X at school changeovers in late 2009/early 2010 (one of the more significant issues raised); and
b)Sought to adduce evidence by third parties by annexing to his material documents or statements produced by them (including, in one case, a document addresses “To The Presiding Magistrate”).
I made clear to the parties before reading and considering any of their material and before either party was called for cross examination that no weight would be attached to such material (and which could not appropriately be described as evidence). This was particularly so by reference to sections 135,136 and 140 of the Evidence Act.
Section 140 of the Evidence Act provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
This reflects a codification of what has previously been referred to as the “Briginshaw scale” (Briginshaw v Briginshaw (1938) 60 CLR 336).
On the basis that I am asked by each of the parties, and for different reasons, to make a finding of “unacceptable risk”, I am satisfied that the standard of proof which I must apply with respect to such determination is impacted section 140 and thus involves proof on the balance of probabilities but to a level approaching but not reaching the criminal standard. This is particularly so having regard to the subject matter of the proceedings and the gravity of the matters alleged, that is, a physical assault upon the child (as alleged by Mr Castle of Ms Deacon) or psychological or emotional abuse of X (as alleged of Mr Castle by Ms Deacon). On that basis I can do nothing other than apply the civil standard at its highest possible level and exclude or place no weight on material that is unreliable, prejudicial or subject to exclusion but for the provisions of s.69ZT.
In connection with those matters, I am concerned that material sought to be introduced in such fashion, particularly by Mr Castle (being hearsay, unsworn testimony by unidentified third parties and the like) is unfairly prejudicial to Ms Deacon who cannot test such evidence nor seek to challenge it in any fashion nor respond to it. Thus, whenever such issues have arisen in the evidence (which I will attempt to identify specifically but which would be clear from any consideration of Mr Castle’s material) I propose to refuse to admit the evidence as its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or confusing. Alternatively, the material can be viewed as admitted pursuant to Division 12A but accorded absolutely no weight (and with the same consequence-it will not be relied upon). Indeed, the probative value of such evidence (being unsworn hearsay) is so little that on either of the above bases it could not be relied upon as its value would be entirely outweighed, particularly by reference to section 140, by its prejudice or potential to cause injustice.
No adjournment of proceedings has been sought to remedy the evidential defects of Mr Castle’s case and notwithstanding that the approach which I propose to adopt and have so adopted was made clear prior to the evidence commencing.
Ms Deacon’s evidence re separation
I do not propose to canvas Ms Deacon’s evidence regarding the circumstances of separation in any significant detail. This is particularly so as:
a)I have found Ms Deacon to be a witness of truth;
b)Ms Deacon was not cross examined in any detail with respect to the circumstances of separation or the contention that separation had occurred during 2004. To the extent that Ms Deacon was cross examined regarding those issues:
i)The allegation was put to her which she denied;
ii)Ms Deacon was able to recite the addresses at which she and Mr Castle cohabited during the period 2004 to 2008; and
iii)No contrary material by way of corroboration of Mr Castle’s evidence or refutation of Ms Deacon’s evidence was raised in evidence in chief or put to Ms Deacon.
During his examination in chief Mr Castle referred to and identified a number of documents suggested to be held by him and comprising documents from Centrelink addressed to Ms Deacon at addresses other than his own (being on the central or north coast of New South Wales). However, those documents had clearly not been disclosed or produced at any prior time, are not before the Court (they were marked for identification but were ultimately not tendered) and were never put to Ms Deacon. I am satisfied that Brown & Dunne (1894) 6 R 67 must apply.
I am satisfied that whilst the parties experienced a tumultuous relationship between 2004 and 2008 which may, and in all probability did, lead to a series of brief separations of short duration, the parties continued to cohabit until final separation in 2008.
Ms Deacon’s evidence otherwise, and consistent with Mr Castle’s, suggests significant conflict and unpleasantness between them as adults and including in the presence of the children (using the phrase “presence” in its broadest sense) for a significant period of their cohabitation and especially the period 2004 to 2008.
During this period, Mr Castle’s evidence suggests that Ms Deacon had self-harmed on a number of occasions and particularly through yelling and screaming, demeaning herself and banging her head into the table, walls and floor.
Ms Deacon has addressed those matters in her Affidavit material by way of denial and to assert and allege significant family violence perpetrated upon her by Mr Castle. Including though being yelled at, demeaned and physically assaulted including by Mr Castle banging her head into the table, walls and floors.
To the extent that Mr Castle’s allegations are before the Court and were put to Ms Deacon, they have been denied each and every one.
Ms Deacon’s response to the allegations of Mr Castle, particularly regarding her banging her head, was to the effect that Mr Castle had frequently and repeatedly banged her head into walls, tables, the floor and other objects but that she had never done so herself.
Mr Castle asserts that Ms Deacon has a history of violence towards him and particularly as demonstrated by the fact that an Apprehended Domestic Violence order had been sought by the police on his behalf on one occasion post 2008 and when Ms Deacon had attended at Mr Castle’s home. That event is addressed in Annexure K to Mr Castle’s Affidavit.
The police report (COPS event (omitted)) sets out a statement largely comprising information obtained from Mr Castle but including observations by the attending officers.
The statement relates to events on Sunday, 31 August 20008, when it is suggested that Ms Deacon:
…attended [Mr Castle’s] premises to visit with her daughters.
A short time later [Mr Castle] left the premises to buy some food for lunch. When [Mr Castle] returned to the premises [Ms Deacon] was agitated and stated, “I can’t live under your rules I’m taking the kids”. [Mr Castle] said: “No you’re not taking the children with you” and asked [Ms Deacon] to leave on several occasions. [Ms Deacon] refused to leave and an argument erupted.
The statement then suggests that Ms Deacon then attempted to gain access to the bedrooms of the home and that Mr Castle blocked and prevented such access and that Mr Castle and Ms Deacon:
…have engaged in a push and shove with [Mr Castle] trying to remove [Ms Deacon] from his premises. Both [Mr Castle] and [Ms Deacon] received bumps and scratches as a result of altercation.
The portion of the event which Mr Castle seeks to rely upon as demonstrative of aggression and violence by Ms Deacon is as follows:
When Police arrived [Ms Deacon] was screaming at [Mr Castle] to let her take the children.
[Mr Castle] explained that [Ms Deacon] was not tot take the children with her but could spend time with them at the premises. [Mr Castle] explained that he has booked a Family Court mediation session on the 16/9/2008 in an attempt to sort out the visitation problems they are dealing with.
[Ms Deacon] aggreed [sic] to leave the premises whilst Police were there.…
Police obtained statements from both parties in relation to this matter.
Police hold no fears for the safety of the [Mr Castle] or [Ms Deacon].
A second COPS event entry is then referred to by Mr Castle in his evidence and as the basis of an Apprehended Domestic Violence complaint being made on his behalf. However, it is clearly the same incident. Proceedings were commenced in the Local Court at Hornsby and undertakings were entered by Ms Deacon (presumably without admissions) to the effect that she would not assault, molest, harass or otherwise interfere with Mr Castle or either of the children, not engage in conduct that intimidated them and not go within the perimeter of Mr Castle’s home.
Whilst it is asserted by Mr Castle that the proceedings and the undertakings given by Ms Deacon are proof positive of her predisposition to anger, aggression and violence, I do not accept that this is so. Clearly the COPS events entry, which was the basis for the commencement of proceedings, would suggest an entirely different context to an unprovoked attack as alleged by Mr Castle.
Ms Deacon gives a version of events entirely consistent with that contained within the police record and suggesting that the altercation arose as a consequence of her being locked out of the house (rather than being within it), both parties grappling with each other and both falling and being injured, Ms Deacon being the more seriously injured.
School Changeovers
Ms Deacon’s evidence otherwise speaks substantially to events which have occurred since the orders of 1 December 2009 and particularly regarding the break down of the time arrangements between herself and X.
It is to be remembered that the orders of 1 December 2009 provided that X was to spend time with her mother each alternate week from after school Wednesday until before school the following Monday. The same time was to be spent by Ms Deacon with both X and Y.
The changeovers with respect to the above time were to occur, during school terms, by Ms Deacon collecting both children from their school.
Ms Deacon’s evidence makes clear that, prior to the making of orders on 1 December 2009, there had been significant difficulties with changeover arrangements. These had included through difficulties during changeovers at the Central West Contact Service. Notes have been subpoenaed from that Service but none have been tendered and thus they are not in evidence before me. However, the parties both agree that problems had begun to develop with X passing into her mother’s care and thus it was proposed and intended to move changeovers to the school.
Ms D also opines at paragraph 89:
…it would be unlikely that X’s relationship with Ms Deacon would improve so much that she would spend time with Ms Deacon if ordered to do so.
Whilst some optimism was suggested by Ms D as interventions which might improve X’s relationship with Ms Deacon it is noted that:
a)Ms D’s evidence during cross examination crystallised to the point of indicating that no further therapeutic intervention would assist particularly whilst X continued living with her father; and
b)That X would continue to be subjected to the deficits and detriments identified above whilstever she continued to live in Mr Castle’s care.
Counsel for Mr Castle placed significant weight upon the comments offered by Ms D in paragraph 88 of her report that it would be “traumatic” for X to be forced to leave her father’s care. Whilst accepting Ms D’s evidence overall I am not satisfied that the trauma that X would experience would be:
a)Of such magnitude as to obviate against consideration of a change of placement;
b)Be long lasting and incapable of address or resolution particularly with support, assistance and a period of no time with her father to allow her to settle combined with support from her mother and counselling intervention; and
c)Would not outweigh the potential benefit to X to a change in placement (or the potential detriment of remaining in an environment and relationship which I am satisfied represents an unacceptable risk).
The evidence in total and including that of Ms D and Dr S would suggest that X would continue to experience significant disadvantage and unacceptable risk to her personal development, psychological health and, ultimately, her functioning if she were to remain residing with her father in an enmeshed relationship. On that basis, and whilst the balance may be fine, I am satisfied that there is some greater confidence that the potential benefits of X’s removal and extrication from an enmeshed relationship would outweigh, if not in the short term then certainly in the longer term, the immediate level of anxiety she would experience as a consequence of the move.
The above is particularly so in the event that X and Y (and ultimately the elder sibling A) were able to remain together and/or remain in contact with each other. That can only occur in Ms Deacon’s care as Mr Castle has denounced any relationship between himself and A and effectively controlled and terminated any relationship between X and Y and their brother and made clear his attitude towards A and the benefits (or in Mr Castle’s mind the absence thereof) A offers his sisters.
On the basis that the relationship between the three siblings (particularly between X and Y) is so close I am not satisfied that there would be a sufficient benefit to either girl or a sufficient protection to either of them (either from dangers faced in either parent’s household or otherwise) for them to be separated.
I have not been referred to significant authority regarding separation of the siblings. The authorities to which I have been referred by Counsel of Mr Castle include Barnett (1973) NSWLR 403 and Bennett 1990 FLC 92-191and Schmidt & Schmidt (1979) FLC 90-685, Wright (1976) FLC 90-114 and Thompson v Thompson (1980) 29 ALR 634
As observed by their Honours in Bennett (1990) FLC 92-191:
“The separation of two children so close in age who have lived together for so long is a most serious step which could only be justified in compelling circumstances”
The submission of the Independent Children’s Lawyer would appear to be prefaced upon acceptance of Ms D’s evidence (at paragraph 88) that X would not cope with separation and simultaneously accepting the evidence of Dr S that for the children or either of them to continue to live in such an enmeshed relationship with their father would be injurious and detrimental to them.
To some extent the option agitated for the children being split thus represents an acceptance that X would remain in a disadvantageous and abusive situation (enduring an enmeshed relationship which subjugates her own personality and development) as the problems attending her removal and the benefits to her of such removal, in light of the trauma which Ms D opines may be caused, are insurmountable.
Similarly the Independent Children’s Lawyer’s position would appear to be based upon acceptance that Y would more readily cope with such separation from her father as she is not as heavily enmeshed, presently enjoys an excellent relationship with her mother and would, thus, transition appropriately. The element missing from the evidence which would support that submission is, however, evidence as to how the children would cope with that separation from each other.
The children are used to being separated for significant periods. For some three years now Y has been attending visits with her mother for five days each fortnight whereas X has not. Thus the children are separated during those periods (albeit attending the same school and mixing in the same social circles with each other at school).
I am not satisfied that the relationship between X and Y can be so readily interfered with or interrupted as to separate them and to cause them to live in separate homes. Mr Castle, as I have indicated above and to his credit, also opposes this course (as does Ms Deacon).
I am satisfied that the children should not be split. However, I am also satisfied, for the reasons set out above, that the children’s present relationships with each parent (as well as with each other) are such as would allow them to endure, especially with each other’s support and company, separation from their father and thus removal from a circumstance which I consider proposes an unacceptable risk to their immediate and long term emotional and psychological health.
X’s ongoing separation from her mother is not, of itself, a factor which would be determinative of these proceedings. The object of the legislation is not for me to focus upon X’s relationship with her mother in isolation but upon her relationship with both parents (s.60CC(2)(a)).
X’s relationship with her father, I accept, is highly enmeshed and thus inappropriate and posing an unacceptable risk to her present, immediate and future psychological health and functioning. On that basis I am satisfied that there would be, on balance and overall, a positive to her separation from her father albeit with significant problems to be overcome in a transition to her mother’s care.
Y would transition far more readily between the two households as she has for the last three years when she has continued to attend, notwithstanding her father’s clear views as to her mother and elder sibling and her elder sister’s clear views also. In those circumstances I am satisfied that, overall, the most likely benefit to both children would be for them to remain together and to transition to live with their mother.
Mr Castle’s proposals, especially as modified in submissions by his Counsel, include consent, if considered appropriate, to a shared care arrangement for Y. Thus I can accept that Mr Castle accepts that the children can be absent from each other and, in the case of Y, him and still maintain and appropriate and meaningful relationship. It also gives me comfort that Mr Castle sees benefit for Y in and a capacity for her to cope with a week long period with her mother and absent her sister and father.
I am equally satisfied that there would be a detrimental impact upon the children if I were to not affect change to their circumstances such as to keep them together and to transition them from the care of their father to the care of their mother. The unacceptable risk posed to the children, particularly X, by the enmeshed relationship she has with her father outweighs, I am satisfied, the difficulties which are identified (appropriately) by Ms D.
Practical difficulty and expense
I propose to deal with this as part of s.65DAA(5)(c) (MRR & GR)
Capacity of each parent to meet the children’s needs
Dr S has opined that each parent is capable of meeting the children’s intellectual needs. However, Dr S, in the passages quoted above (page 27 of her report) has raised serious concerns regarding the capacity of each parent to meet to children’s emotional needs.
Clearly the most significant issue regarding the capacity of these parents to meet the emotional needs of these children are the issues surrounding and arising from X’s parentified, enmeshed relationship with her father which is clearly accepted and described by Dr S (whose evidence I accept) as “not normal” and injurious to her long term development.
Overall I am satisfied, due to the absence of such difficulties attendant upon Ms Deacon’s relationship with either of the girls (to the extent that Ms Deacon presently enjoys a relationship on any level with X), that such difficulties, whilst not entirely ameliorated, are lessened by the children’s care by their mother.
Maturity, sex, lifestyle and background of the children
I note the comments of both Dr S and Ms D as to the apparent maturity of the children and, in particular, X and the caution with which I am urged to approach such apparent maturity.
X is clearly observed by Ms D (paragraph 72 of her report) as being:
An intelligent child who has exceeded developmental milestones for her age and state of development however, Ms D also opines in the same paragraph “X is of an age and stage in development, however, where the Court could not place substantial weight on her wishes and views. X displayed a high level of assertiveness during the playroom observation with Ms Deacon as well as a hostile look and tone…at times her narrative appeared inauthentic and she presented as if she were determined to “stay on message”.
At paragraph 73 Ms D opines:
X presented as strongly aligned to Mr Castle. She showed an apparent deference towards him…
At paragraph 74 Ms D opines:
X’s responses at interview appeared to indicate that an enmeshed dynamic may operate between her and Mr Castle and that she may be parentified although this could not be determined on assessment.
Ms D clarified during cross examination that no conclusive assessment had been made by her with respect to these matters as, in Ms D’s view, they are matters for the Court.
I note my previous findings (above) that I am satisfied that X’s relationship with her father is enmeshed and thus X is parentified.
In light of the comments of Dr S in explanation of the dynamics of an “enmeshed relationship” I am conscious that the apparent maturity observed of X is misleading and confidence in same would be misplaced.
This is further confirmed in paragraph 76 wherein Ms D opines:
X presented as controlled in her demeanour and responses when asked about Ms Deacon and her relationship. She appeared at times to be defending against questions that made her feel uncomfortable because she was asked to think about or describe how she arrived at her views. The impression given was that X may have been attempting to deflect the report writer and possibly herself from her own awareness that she could not account for an extremely negative view of Ms Deacon and/or that she did not want to be persuaded by the logic of the questions. This was particularly noticeable about what Ms Deacon was like why X did not like her and X’s own views about Y spending time with Ms Deacon.
Thus, overall, I am satisfied that X’s apparent maturity cannot be found as sustained in reality.
Y is similarly described as intelligent having met all of her developmental milestones (see for example page 79 of Ms D’s report) but “somewhat lacking in maturity”.
Overall I am satisfied that the most important factor relating to the children’s best interested, paramount pursuant to s.60CA) is the need to protect them from both parental conflict (which would realistically arise from any proposal with which the Court is presented) and from the dangers presented to the children’s emotional health and development by the dynamic of the children’s enmeshed and controlled relationship with their father.
Aboriginality
Neither parent identifies as an Aboriginal or Torres Strait Islander and nor do the children.
The attitude to the child and responsibilities of parenthood demonstrated by each of the parents
As would be apparent from the above discussion of evidence I have real concerns regarding the attitude demonstrated by Mr Castle towards his duties as a parent and particularly his inability to recognise or have insight into his own behaviours and the impact of these on the children.
Further, I am concerned with the inability of Mr Castle to understand the role that he and his psychology and personality have played in interfering with and impacting upon the children’s relationship with their mother and especially with the relationship between X and her mother.
The implied obligations often discussed by the Full Court, regarding a child’s relationship with the other parent (and that which is to be done by each parent to support, encourage and facilitate the relationship) have some real bearing upon and relevance to these proceedings if only in the complete ignorance of same by Mr Castle.
Mr Castle would appear to have not only ignored any potential benefit to the children or either of them from enjoying a continuing relationship with Ms Deacon but would appear entirely incapable and insightless of accepting that any such benefit could exist.
That criticism is not raised on any basis other than to accentuate the difficulty in attitude towards the responsibilities of parenthood that such behaviours (or lack thereof) demonstrated by Mr Castle.
Mr Castle has consciously or unconsciously ignored the emotional health and wellbeing of the children, especially X, whilst, ironically, providing for their physical and educational needs to an extremely high standard.
Mr Castle has been highly involved, in fact, devoted to the children’s care but in so doing has completely smothered the children’s emotional functioning to the extent that he has not permitted the children or either of them (and again, especially X) to develop their own personality or thoughts.
There are valid criticisms of Ms Deacon’s attitude as a parent and particularly towards her responsibilities and duties as a parent. However, those criticisms pale against the harm that is perpetrated and would, if the children remained in Mr Castle’s care, continue to be perpetrated through the enmeshed and controlling parental relationship dynamic which I am satisfied exists.
Family violence
I am satisfied that family violence had been perpetrated by Mr Castle upon Ms Deacon. However, it is a far from determinative issue in light of the above matters. It does undermine a number of the bases of Mr Castle’s arguments and does reaffirm the findings I have made as appropriate.
The relevance of family violence is largely that Mr Castle seeks to assert that Ms Deacon has self harmed significantly and repeatedly during the period 2004 to 2008 and that the children have been exposed to this and thus have “emotional memories” of those events which have become the foundation of X’s rejection of her mother and the suggested absence of a relationship or bonding between X and Y and their mother.
I am not satisfied on the evidence available that the children have been exposed to such self harming behaviours or that those behaviours have occurred.
I am satisfied on the basis of accepting Ms Deacon’s evidence as credible and preferable to that of Mr Castle that family violence has been perpetrated, including a variety of the matters referred to be the present s.4AB definition (which whilst it is not the definition applicable to these proceedings is still relevant and able to be taken into account as “another fact or circumstance”).
Family violence orders
There are none.
Whether it is preferable to make orders that would least likely lead to the institution of further proceedings
If orders were made as proposed by Mr Castle (which, is in effect, a continuation of the present arrangement) I have no doubt that further proceedings would be initiated by way of enforcement or variation and within a fairly short timeframe.
On the basis that orders are made which remove the children from an enmeshed and controlling parenting dynamic, I am satisfied that there would less likely be further proceedings and particularly as the children will then be in a position whereby, following a period of settling (during which time communication between the children and the father will not occur) that the children’s relationship with each parent would be supported, encouraged and facilitated by Ms Deacon or at least to a far greater extent than Mr Castle has done or is capable of doing.
Other facts and circumstances
I incorporate herein section 65DAA
Section 65DAA(5) reads in the following terms:
In determining for the purposes of subsections(1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The parties live relatively close to each other. It would appear that the total driving distance between the parties’ homes is between 15-30 minutes (subject to traffic).
The parties’ current and future capacity to implement an arrangement for the children spending time with each parent (whether equal, substantial and significant or otherwise) is highly problematic.
What has been demonstrated by the operation of the orders of December 2009 is that arrangements as presently ordered, at least as regards X, neither function nor operate or meet X’s needs.
As to whether Y’s needs are met by the December 2009 orders, I have some real concerns also. Whilst Y is apparently enjoying a relationship with her mother and passing between the homes of each parent in a shared care arrangement I remain concerned that she is also subject to the same parentified, enmeshed dynamic of relationship with her father as her elder sibling X. She is also acutely aware (as apparent especially from Ms D’s report) of the tension and conflict between her parents and between X and her mother as well as being well aware of the need to keep her two homes both physically and emotionally separate.
Y also has the strain of her sister not attending with her and, I am satisfied, the strain of being aware of and bearing her father’s and X’s disapproval as to her relationship with her mother and her brother A and regular attendance at her mother’s home when her sister does not.
Removal of both children from such an enmeshed relationship and the risk that it represents to their present and future health and development is beneficial to them.
To leave the children in arrangements as are presently ordered (which is clearly conceded by both parties to not function appropriately, either in accordance with the orders or for the children’s benefit) is problematic and I have difficulty understanding or accepting that Mr Castle genuinely advances such orders as being in the children’s best interests or does so with bona fides.
The capacity to implement an arrangement whereby the children pass into the mother’s care is untested. However, I am satisfied, in light of the unacceptable risk which I am satisfied exists through the children remaining in their present placement, that it is the preferable course and a lesser risk.
The remaining proposal (that of the Independent Children’s Lawyer) would see Y pass to her mother’s care and then spend substantial and significant time with her father (effectively a mirroring of arrangements). That would also, however, have the detriments of:
a)Leaving X in an enmeshed and damaging relationship which I am satisfied is an unacceptable risk to her;
b)Separate the siblings;
c)Present further potential means of conflict between these parents particularly if the children each remained at their same school;
d)The parent’s current and future capacity to communicate with each other and resolve difficulties is highly problematic.
I have spent some significant time reviewing the evidence of the parties as to their communication with each other particularly that which has occurred by email.
Whilst the parents agree on little they do, at least, agree that their communication is entirely unsatisfactory and incapable of repair.
This factor of itself speaks to an order for sole parental responsibility. To expect these parties to meet the obligations imposed upon them by s.65DAC in the event that an order for equal shared parental responsibility was made is unreasonable and onerous and would be, at best, a fiction if not mischievous.
The impact of the arrangement on the children I am satisfied is outlined above particularly in relation to unacceptable risk and other s.60CC factors.
Section 60CC(4)
I am required to consider the extent to which each parent has taken or failed to take the opportunity to participate in decision making, spend time or communicate with the children or to support them and maintain them.
I am satisfied that these factors need be considered no further than has already occurred above other to observe that the submission of the father that Ms Deacon has failed to spend time and communicate with X when that has been available (though declining to attempt to collect her from school after March 2010) is not supported by the evidence. Indeed, I am satisfied that the termination of that arrangement by Ms Deacon was:
a)Appropriate and child focused;
b)Motivated by a desire to cease X’s exposure to those circumstances and conflict; and.
c)Inevitable in light of the undermining of arrangements by Mr Castle through failing to appropriate encourage, prepare and present the child and through the jeremiad of complaints raised by Mr Castle with the teacher Ms O, other school staff, the Police, Department of Family and Community Services, the children’s doctors and others.
Facilitation of orders
As would be clear from the above discussion I am satisfied that the children’s best interests compel a change in their parenting arrangements and so that they each pass immediately to live with their mother and in her care.
I am satisfied that the evidence of Dr S, that a period of three months should pass wherein no time or communication occurs between the children and Mr Castle, should be adopted. Ms D has opined that this might be a period of up to six months and this would appear to have some merit in light of the difficulties that will need to be addressed and so as to give Ms Deacon and such counselling or therapy services as she may engage a real opportunity to operate and bring benefit.
Each report writer has opined that a period of no communication would need to occur to allow the children to settle. This must be set against that which is opined by Ms D as to the stress and anxiety that might well arise for X if she is removed from her father’s care (see again paragraph 88).
On the basis that I accept that X is psychologically enmeshed with Mr Castle, I have no real option available to me but to make orders that would see X passing to live with her mother. To do otherwise would be to accept that she is exposed to an unacceptable risk of psychological harm in her father’s care and do nothing when there is an available, all be it untested, option. That would be nothing more than a failure to act.
Whilst I apprehend that the difficulties identified by Ms D in a transition of X to her mother’s care are huge, I am also somewhat comforted by the evidence of Dr S that with supports in place, such as family therapy and counselling, Ms Deacon’s availability (she now working limited part time hours and from home), a change of school (to remove the children from the past “battle ground” and scene of conflict and, in a real and practical way to remove them from Mr Castle’s immediate neighbourhood) as well as a period of disruption in their communication with Mr Castle, that the arrangement could well be made to work and the previous, albeit historical relationship between the children and their mother revived.
The issue of the children remaining at their present school or changing to a school close to the mother’s home is vexed. The evidence has supported each as potentially beneficial to the children particularly as it would provide the continuation of a familiar and potentially supportive environment for the children. However, on balance I accept, for the reasons alluded to above, that a change in school would be preferable and so as to allow the children and Ms Deacon a “fresh start” as well as to remove the obvious temptation of the proximity of Mr Castle’s home.
I am conscious that this case represents, most assuredly, that which is often referred to as a B & B “least worse alternative” case. It is always the Court’s preference that it be presented with a number of proposals all of which would equally meet the children’s best interests and which would equally allow and permit the healthy development of children, their personalities, friendships and relationships. However, it must be accepted that such cases require an absence of dysfunction and deficit by both parents as well as the existence of mutual support and respect which factors are all sadly absent from the circumstances of this case.
Ultimately and for the reasons set out above I make orders as follows.
I certify that the preceding six hundred and seventy-nine (679) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 4 July 2013
- AGLC
- DEACON & CASTLE [2013] FCCA 691
- Case
- [2013] FCCA 691
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the determination of primary care for the children, the allocation of parental responsibility, and the establishment of a contact regime for the non-resident parent. The court also considered the rules of evidence in relation to the disclosure of certain reports to counsellors.
The court ordered that the mother, Ms Deacon, have sole parental responsibility for X and Y, and that the children live with her. Previous parenting orders were discharged. The father, Mr Castle, was subject to significant interim and ongoing restrictions on contact, including a prohibition on attending at or being within 200 meters of the mother's home or the children's school. A detailed contact schedule was established for Mr Castle, commencing after an initial period of restraint, and included provisions for telephone contact. The court also made orders regarding the parents' obligations to keep each other informed of addresses and to notify of emergencies involving the children, and restrained both parents from discussing the proceedings with the children. The court further ordered that the mother could provide specific reports to any counsellor or family therapist engaged by her.
Orders
Orders of the court
1.
That all previous parenting orders with respect to the children of the relationship X born (omitted) 2002 and Y born (omitted) 2003 shall be and are hereby discharged.
2.
That the mother, Ms Deacon shall have sole parental responsibility for X and Y.
3.
X and Y shall live with their mother.
4.
The Independent Children’s Lawyer and a Family Consultant are requested to immediately confer with X and Y and explain to them the orders made by me today and, in the case of the Family Consultant, to do all things within their power to assist and facilitate the children’s departure from the child minding section of this Court with their mother.
5.
Mr Castle shall, forthwith upon these orders being pronounced and judgment delivered, leave the registry and remain away therefrom.
6.
Ms Deacon shall be entitled to forthwith affect the children’s enrolment at a school of her choice and proximate to her home.
7.
Pursuant to section 68B and until 5pm 6 December 2013 Mr Castle shall be and is hereby restrained from:
(a) Contacting the mother, Ms Deacon;
(b) Contacting the children X and Y by any means whatsoever (save for the purpose of attending any counselling or family therapy appointment arranged by the mother and at the request of that counsellor or therapist and with the mother’s knowledge and consent);
(c) Attending at or being within 200 meters of:
(i) The mothers home;
(ii) The school attended by the children or either of them.
8.
Commencing 7 December 2013 Mr Castle shall have contact with and shall communicate with X and Y as follows:
(a) Until the commencement of Term 1 2014 school term - each Saturday from 10am until 5pm;
(b) Thereafter:
(i) Each alternate weekend during school terms from the conclusion of school Friday until the commencement of school the following Monday (extending to Tuesday in the event of a long weekend) to commence with the first weekend of each new school term;
(ii) During each short New South Wales school term (those following terms 1,2 and 3) from 10am on the first Saturday of the holiday period until 5pm the following (middle) Saturday;
(iii) During the Christmas School holidays in each year for two one week blocks being from 5pm Christmas Day until 5pm New Years Day and from 5pm 15 January until 5pm 22 January;
(c) By telephone each Wednesday between 6:30pm - 7pm.
9.
That for the purpose of facilitating time with the children that does not occur on school days, the Mother deliver the children to the Father at his usual place of residence at the commencement of their time with the Father and the Father return the children to the Mother at the Mother’s usual place of residence at the conclusion of their time with the Father unless otherwise agreed between the parties and at all other times the father shall collect the children from and return the children to their school/s.
10.
Each parent shall be and is hereby restrained from discussing with the children any issue or allegation raised in these proceedings and shall not allow, cause or permit any other person to do so save the Independent Children’s Lawyer, a Family Consultant or counsellor or family therapist engaged in assisting the mother and/or children.
11.
The mother shall be entitled to provide to any counsellor or family therapist engaged by her to assist her or the children or either of them a copy of the report of Dr S and Ms D if the counsellor or therapist requests same.
12.
That each party keep the other party informed as to his or her residential address and telephone number.
13.
That each party notify the other as soon as reasonably practicable of any accident or emergency involving the children which involves medical treatment or hospitalisation whilst the children are in their respective care.
14.
That each party ensure that the children are transported by them to any sporting and extra curricula activities in which the children are participating from time to time and which occur at times when the children are in the care of that party together with any training or other tuition relating to that activity, provided both parties consent to the children’s attendance and participation in same.
15.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
16.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
17.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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