Debenham & Trescott
[2022] FedCFamC2F 426
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Debenham & Trescott [2022] FedCFamC2F 426
File number: MLC 14938 of 2018 Judgment of: JUDGE O'SHANNESSY Date of judgment: 5 April 2022 Catchwords: FAMILY LAW - final hearing – final orders – interim orders for therapy to re-establish relationship with father. Legislation: Evidence Act 1995 (Cth): s 140.
Family Law Act 1975 (Cth): ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAC.
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).
Cases cited: Blatch v Archer (1774) 98 ER 969.
Fox v Percy (2003) 214 CLR 118.
S Odgers, Uniform Evidence Law, (Thomson Reuters, 17th ed, 2021).
Division: Division 2 Family Law Number of paragraphs: 111 Date of hearing: 11 – 13 October 2021 Place: Melbourne Counsel for the Applicant: Mr G DeVries Solicitor for the Applicant: Gigliotti Lawyers Counsel for the Respondent: Ms R Tiecher Solicitor for the Respondent: Gun Law Office Pty Ltd Solicitor for the Independent Children's Lawyer: Hartleys Lawyers ORDERS
MLC 14938 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DEBENHAM
Applicant
AND: MS TRESCOTT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
5 APRIL 2022
THE COURT ORDERS THAT:
FINAL ORDERS:
1.The Mother have sole parental responsibility for all long term health and education issues relating to the children X born 2005 and Y born 2009 (collectively known as ‘the children’), and when the Mother is required to make a decision of a long-term nature, except for in an emergency, she shall do the following:
(a)Inform the Father (the other parent) in a timely manner of her proposed decision;
(b)Consider any input from the Father (the other parent) in a timely manner in relation to the proposed decision;
(c)Make her decision in a timely manner; and
(d)Advise the Father of that decision, with the Mother to have the ultimate decision.
2.The parties have equal shared parental responsibility for long term decisions that are not health or education issues.
3.The children live with the Mother.
4.The Father, and any relatives of his, be and are entitled to communicate with the children or any them by letters, cards and presents not more than once per two months and the Mother do all acts and things to ensure such letters, cards and presents are delivered to the children.
5.Each of the parents be and are permitted to receive medical information about the children from any medical practitioner and to receive such school reports, photo order forms, newsletters and other information that parents usually attend, and provided that parent teacher interviews can be undertaken separately, the Father is permitted to attend parent teacher interviews for each of the children, and otherwise the Father not attend school events.
6.The Father be and is permitted to communicate with the children or any of them by email and text message but unless requested by the children such communication be no more often than once each two months and to give effect to this order the Mother ensure that that any email or mobile phone number of the children be provided to the Father and he be kept informed of such numbers and addresses.
7.The parents do all things to cause and permit the children to communicate with the Father by telephone or face time in accordance with their wishes and the Mother facilitate the same and ensure that the children have privacy when so doing.
UNTIL FURTHER ORDER:
8.The Mother, Ms Trescott, and the Father, Mr Debenham, to all acts and things necessary to cause and ensure that the child, Y, (‘Y’) attend reportable therapeutic counselling with Ms B (‘the therapist’), at the times and places and in the manner as directed by her and if requested to attend themselves to so attend as directed, for the purpose of promoting the welfare of Y and in particular to re-establish a relationship and the spending of time between the Father and Y (‘Y’s therapy’).
9.In the event Ms B is unavailable then Y’s therapy be with such other therapist as agreed between the parties or as determined by the court.
10.In the first instance, and subject to any further order, Y’s therapy be at the Father’s sole expense.
11.That the Independent Children’s Lawyer provide to the therapist the following:
(a)These orders
(b)The family report.
(c)The section 11F child inclusive memorandum dated 3 May 2019.
(d)Dr C’s reports of the parents.
12.The parents cause and ensure, that unless it is requested by the therapist that they attend, W and X not attend Y’s therapy.
13.The matter be adjourned to 22 September 2022 at 10:00am for Mention Hearing at the Federal Circuit and Family Court of Australia.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Debenham & Trescott has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
BACKGROUND
The question I must determine is whether I should compel the parents and their three children or any of them to participate in further family therapy in an attempt to re-establish a relationship between the children's father and the children sought by the children's father and the Independent Children’s Lawyer (‘ICL’).
Mr Debenham is the applicant father and is a consultant by occupation and aged 52 years ('the Father'). The children's mother, Ms Trescott, is engaged in home duties and is aged 48 years ('the Mother’). The parents have three children, W (17 at the time of the hearing but who turned 18 in 2021), X aged 16 and Y aged 12. The parents commenced cohabitation in about early 2000, married in late 2002 and separated in early 2016 in highly acrimonious circumstances. The Father issued the current proceedings as long ago as 24 December 2018. The parties had attempted to progress the matter by attempting family therapy and supervised time.
This matter came on for final hearing in regard to property division and parenting orders on 11 October 2021. The matter was stood down for discussions between the parties. The parties reached agreement in regard to financial matters and orders were made by consent. Notwithstanding that the matter had been listed for final hearing, and after the property orders were made, counsel for the Father, Mr DeVries, made application for an interim parenting order, to the effect that the children and the parents pursue family therapy in an attempt to re-establish a relationship between the Father and the children, and in particular, the youngest child Y, then aged 12. It was put that family therapy should be undertaken by Ms B, a social worker, family therapist and mediator (the therapist). That application was supported by the ICL.
The Mother sought final orders. No party sought to cross examine any witness, save for the therapist called by the ICL, after my request.
I requested that the therapist be consulted about whether she supported such an application and whether she was even available for such therapy: otherwise the order sought would be ineffective. On the following day the therapist was called and gave oral evidence. She supported the therapy and was available to undertake the therapy.
The family report did not recommend any further attempt at therapy. The Mother opposed any further attempt at therapy and the Mother's position was that the therapist had only seen the three boys once, and together, and that the therapist's opinion should not be substituted for the family report writer's position and that the children were weary and frustrated with the Court process and any continuation of it was against their wishes and against their best interests.
Documents relied upon
The Father's outline of case showed he relied upon the following material:
·Amended Initiating Application filed 24 August 2021.
·Financial Statement filed 24 August 2021.
·Affidavit of Applicant Filed 24 August 2021.
·Affidavit of Dr C filed 6 July 2021.
·Affidavit of Ms D filed 24 August 2021.
·Affidavit of Ms E filed 5 October 2021.
·Affidavit of Applicant filed 5 October 2021.
·Response pursuant to section 69ZW Order dated 23 September 2021.
·Section 11F Child Inclusive memorandum to Court dated 20 May 2019.
I infer the Mother relied upon the following material as to the parenting orders dispute:
·Outline of Case filed 8 October 2021.
·Trial affidavit filed 8 September 2021.
The ICL's outline of case showed she relied upon the following material:
·Family Report of Counsellor Mr F dated 21 September 2021.
·Child Inclusive Conference Memorandum to Court by Family Consultant Ms G dated 3 May 2019.
·Psychological Report prepared by Dr C dated 8 December 2020.
·H Family Services Report dated 30 June 2021.
It was common ground that the Father has not seen the children since separation in 2016.
The Father's partner Ms D has lived with the Father since 2019 and asserts that she has never seen the Father be violent in any way to any person and that she has never experienced any form of family violence from him and that in her experience he has always been kind, caring, gentle and sensitive to others.
THE HEARING
The parents had previously retained Ms B to undertake family therapy and that had not been successful. I am not satisfied both parents supported that short lived attempt at therapy. I told the parties that before I considered that question further I would need to hear from Ms B as to her view about whether further family therapy was appropriate and indeed even possible with her as the therapist. I was not prepared to assume that she would be available were I to so order.
At short notice (the following day) the ICL arranged for Ms B to give oral evidence before me. She told me she was available for further therapy and, at that time, the next available appointments were in December. I will refer to her evidence later.
Ultimately property orders were made by consent. The parties made submissions in support of their respective cases. The ICL supported the interim orders sought by the Father. I reserved my decision and reasons. This is my decision and these are my reasons.
THE SECTION 11F CHILD INCLUSIVE MEMORANDUM
Family Consultant J interviewed the family on 17 May 2019. The memorandum, relied upon by the Father and the ICL included the following observations.
…
CO-PARENING RELATIONSHIP
•The parents appeared to have an irreparable relationship. They presented highly critical and resentful of each other. Their lack of communication about their children over a three year period, and apparent inability to consider the possible impacts of the situation on their children, seemed indicative of their inability to remain child focused and show insight into the impact of the situation on their children or the children’s relationships with their parents.
•At interview, [Ms Trescott] appeared avoidant of questions that pertained to her role in promoting the children’s relationships with their father. She indicated that she informed the children of mediation and being served with Family Court documents. [Ms Trescott] appeared unable or unwilling to consider the impact on the children of having an awareness of adult related information.
•At interview, [Mr Debenham]’s description of his role in the children’s lives (before separation) indicated he was absent and focused on his employment. He seemed to have left the children (from a young age) unsupervised for periods of time while he worked in the study, explaining that he checked on them periodically. He appeared to lack insight into the needs of the children, particularly given the complexities of their diagnoses. [Mr Debenham] reported he had not undertaken any parenting programs related to caring for children with additional needs.
…
THE CHILDREN
•Based on the children's presentations described above, they were briefly interviewed separately. Despite [Ms Trescott]'s claim that [Y] was distressed about being interviewed without her present, this distress or discomfort was not observed by the writer.
•[W] (15 years) appeared aligned to his mother and her views. He seemed over empowered in his ability to make decisions about spend time. Regarding his ASD diagnosis, [W] appeared to be aware of it and believed it did not affect his daily life.
•[X] (13 years) appeared tearful and stated this was due to the memories of his father's behaviour. [X] seemed distrustful of his father and reluctant to spend time with him. However, [X]'s distress and the apparent influence from his mother created uncertainty about whether his presentation was possibly due to him feeling pressured sharing information.
•[Y] (10 years) talked generally about school and play. When he was not with his brothers, [Y] seemed reluctant to talk about his family circumstances. He however enquired about property settlement having being told about this from his mother, and seemed preoccupied with the uncertainty of not living in their home, causing him to cry at interview. He appeared to have considered other living options such as in a car, or converting a bus into a home. In this way, [Y] appeared to have a creative mind.
•The parents, and children's, descriptions indicated a home environment of instability and unpredictability, including post separation when the children lived with their maternal grandparents. [W] and [Y] have particular vulnerabilities given their diagnoses and associated behaviours and understanding. From the parents' accounts, it seemed they experienced stress in responding to and managing the additional needs of the children, and at times of alleged family violence the needs of the children were not or could not be prioritised by [Mr Debenham] or [Ms Trescott].
•No observations were conducted due to the children's distress, the length of time (three years) since they have seen their father, and the uncertainty of when they will next spend time with their father. The latter being primarily related to [W] and [Y]'s diagnoses and the need for them to have stability in their routines.
FUTURE DIRECTIONS
In the absence of evidence to the contrary the following interim future directions are respectfully made for consideration:
…
•Given the three year period since the children spent time with their father, and their presentations at interview, the children would benefit from being linked with a service that assists them to process their experiences, and re-establish a trusting relationship with their father initially in a supervised and supported setting with a view to progress to unsupervised time.
When looked at with all the other evidence I accept those observations.
DR C
In preparation for the final hearing as to the parenting matters each of the parties had been examined by Dr C, a psychologist and a family report had been prepared.
The Mother alleges, and the Father denies, that during the relationship she was the victim of significant family violence.
Dr C reported the Mother's position as follows:
…
[24][Ms Trescott] reported that she does not need support but went onto speak about being angry and shocked at the father and indicated that he has no remorse and no insight into what he inflicted on her and the children. She described having a lot of questions about why the father physically and verbally abused them and ignored them.
[25]In terms of the future, [Ms Trescott] considers that the children will not have anything to do with the father. She stated that the children show no interest and that they don't talk about him. She reported that when the father was arrested, one of them stated "it's like Dad's dead but we don't miss him". The mother's account is that the children are old enough to make their own decisions and when the father did not apologise, that was the end for the children. Her account is that she remains very sad for the children but sees herself as helpless, except to support them. Her account also is that she has attempted to encourage the children to spend time with the father and that she would support any of the children if they wish to have time with their father, but that five years ago they said they did not want to see him for the whole of their childhood.
[26][Ms Trescott] reported that she would not be comfortable with the children spending time with their father face-to-face. She also believed that even with supervision, the father would expose the children to verbal abuse, and that [Y] would never be safe. She spoke of the father having a flashpoint temper.
[27]As indicated, the evaluation showed the mother reporting that she does not need assistance, but she consistently reported relatively high levels of stress and difficulties associated with the Family Court matters, but she reported that in general her life in itself not stressful.
Dr C reported the Father's position as follows;
[19]As indicated, [Mr Debenham] has not had time with the children since the separation. In terms of time with the children, he was not able to have time until after the intervention order and at this point, the mother stated that there was no evidence that he had changed.
[20][Mr Debenham] subsequently did an anger management course as he was aware that at times he would become angry after significant stress and he attempted to look at his shortcomings. The mother made allegations about him being angry with the children. His account is that in the past he was made to be the bad person with the children and that he and his ex-partner argued in front of them.
[21][Mr Debenham] reported that he became more self-aware. His view is that [Ms Trescott] thrived on the conflict, whereas for him this was not the case. He reported that he cared for the children most weekends whilst [Ms Trescott] worked most weekends, so his time of caring for the children was significant.
[22][Mr Debenham] indicated that [Ms Trescott] has been making allegations about family violence. His account is that this was not correct. He believes that she is utilising those allegations to attempt to get 90% of the house equity and superannuation. Allegations that were brought up in the family law proceedings based on Affidavit material were raised with [Mr Debenham].
[23][Mr Debenham] acknowledged that there were arguments but denied that there was any family violence at any point and he denied physically abusing or assaulting his ex-partner at any stage and additionally would not call the children names, but acknowledged that he addressed the children with their behaviour at times robustly.
[24][Mr Debenham] dealt with specific issues in the evaluation. His account is on one occasion the mother punched him in the face and then stepped back and fell over items, put her hand down and hurt her hand and he took a photo of the damage that she had done to his face.
[25]I note that the mother, in her Affidavit material, has made allegations such as “most nights he punched me in the bed”. [Mr Debenham] denied that this was the case. Additionally, he reported that the mother was bigger and stronger than him. Additionally, he indicated that on one occasion, she pushed him into a wall and broke the plaster.
[26]I note that there are also unusual allegations from the mother in her Affidavit such as that the father repeatedly punched her in the breasts. [Mr Debenham]'s account is that he has never punched her anywhere in the whole of their relationship.
Dr C undertook psychological testing within the realms of his expertise. At [34]-[35] Dr C summarised his testing results for the mother as follows:
[34]The elevation in positive impression management is interpreted through configural analysis as non-effortful positive distortion, suggesting that a tendency towards positive impression management is related to trait or personality factors. For this reason, as would be expected, there is suppression of the clinical scales with the highest scale being related to obsessionality, with some tendency towards physical aggression and hypervigilance.
[35]The individual's scores also show significant reluctance to being involved in treatment, suggesting that treatment is unlikely to be effective because of defensiveness or resistance. She presents a picture of being very focused on interpersonal contact with others and describes herself as enjoying and focused on warm communication with others. It is unlikely that her self-report can be considered at face value. Additionally, however, it is relevant that there are likely to be defensive factors related to personality functioning. Her presentation of herself is with an entirely problem-free history and set of symptoms.
Dr C described his conclusions in his psychological evaluation of the Mother as follows:
[41]The evaluation showed the mother presenting a picture of herself and her background as non-problematic. Her account was that there was consistent verbal and physical abuse in the relationship with the father, of herself and the children, and that following the end of the relationship, which coincided with family violence charges, the children have chosen not to have time with their father.
[42]The mother's account would suggest that she remains universally negative regarding the father. While she has reported that she is supportive of the children spending time with the father if they wish, none of the children have wished to have any contact with their father.
[43]Based on the current evaluation, it is difficult to suggest that the children would be unaffected by the mother's opinion of the father. Based on this evaluation, there is no evidence of a psychological disorder as such that is relevant to this assessment. Nevertheless, the mother's attitude towards the father is so universally negative that it is highly unlikely that the children would choose to have time with the father, even with court orders. Her view of the father as potentially emotionally and/or physically dangerous to the children is central to this matter:
[44]It is notable that two of the children have particular needs, especially [Y] who has particular issues associated with Autism Spectrum Disorder.
[45]In this matter, [Ms Trescott] and [Mr Debenham] have produced markedly discrepant narratives regarding the relationship, the parenting, the end of the relationship, the subsequent coparenting post-separation and their individual psychological issues
[46]In this matter, both parents have presented themselves effectively as problem free and their narratives regarding the Family Court matter differ significantly. The father's account is that the mother has excluded the father from a relationship with the children. The mother's account is that the father was consistently verbally and physically abusive of herself and the children in the latter stages of the relationship culminating in criminal charges. Subsequent to these issues, the father has not made an apology, based on the mother's account. The mother has reported that subsequently the children have refused to see the father. She perceives the father as dangerous to the children and this evaluation indicated that it is highly unlikely that she would support time between the children and the father, even with court orders. It is clear that the father does not accept the mother's narrative regarding the relationships between and the children and the father or his behaviour within the marriage.
[47]It is likely that the mother will oppose time between the father and the children and may not adhere to court orders. A family report is required to address the children’s needs.
The Mother alleges that the Father was the hoarder not her. The Mother's description of herself and her background to Dr C are remarkable given it is common ground that the children were removed from her care by child protection (regardless of which parent failed to keep the house in a reasonable manner) as a result of the children's home being unsuitable for habitation because of the state of her home. An unusual aspect of the proceedings was that the Mother gave evidence and attended by video link from, she said, her parent's home. The supervision service had been unable to persuade the children to leave the Mother's motor car. The family report interviews of the children were undertaken, electronically, with all of the children sitting in the mother's motor car.
Dr C's conclusions about the Father are as follows:
[58]Since the end of the relationship in 2016, [Mr Debenham] has had little contact with the children and is seeking regular time with the children.
[59][Mr Debenham] was assessed with respect to the allegations against him concerning family violence. This evaluation identified [Mr Debenham] as not having any significant psychological issues throughout his life. He presents as a man who is shy by temperament. There is no evidence of a history of a psychological disorder. [Mr Debenham] presents as somewhat unassertive in his inter-personal style.
[60]The evaluation identified no significant risk factor that would raise concerns about [Mr Debenham]'s parenting, or behaviour in his previous or current relationship.
[61]Parental risk evaluation identified that children in his care would be a low risk for abuse or neglect.
[62][Mr Debenham] has sought out appropriate counselling post-separation. He is well established in his current relationship, additionally he is well established in his career.
[65]Based on the current evaluation, there is nothing that should prevent [Mr Debenham] spending regular time with his children.
(emphasis added)
I accept Dr C’s evidence.
THE SUPERVISION SERVICE
A witness in the proceedings was Ms E who had prepared a report as to attempts at supervised time between the Father and the children. As long ago as February 2019 orders had been made that the three children spend supervised time with the Father. That did not happen and in April 2021 further orders were made for supervised time and the business or service of H Family Services was nominated as the appropriate supervisor. Ms E reported on the attempts at supervised time.
Ms E said that intake assessments were completed with the parents on 29 April 2021. The Father expressed his concerns to Ms E as follows:
…
[Mr Debenham] expressed concern about the significant period of no contact with the children and of [Ms Trescott] withholding the children. [Mr Debenham] said that he doubted whether [Ms Trescott] was capable of promoting a meaningful relationship between himself and the boys. He spoke of [Ms Trescott] encouraging the children to form an unhealthy alignment with her and to reject their paternal lineage.
[Mr Debenham] said that he was concerned that [Ms Trescott] had denigrated him to the children, which he alleged had commenced during their marriage. He was concerned about the children's receptivity to him because of this.
[Mr Debenham] suggested that [Ms Trescott] may have underlying: mental health issues. He reasoned that this could explain the mother's behaviour.
…
[Mr Debenham] also mentioned that some professionals had raised concerns about [Ms Trescott] potentially "coaching" the children.
…
The Mother expressed her concerns to Ms E as follows:
…
[Ms Trescott] alleged a history of family violence and reported that there is an Interim Intervention Order in place against [Mr Debenham] that identifies her and the children as persons in need of protection. Earlier this year, [Ms Trescott] reported that someone had attempted to enter her home and was making harassing phone calls. She believed it to be [Mr Debenham].
[Ms Trescott] alleged that historically, [Mr Debenham] was harsh and used excessive corporal punishment when disciplining the children and that boys had memories of being hurt and frightened by [Mr Debenham] when they were younger.
[Ms Trescott] said that she did not support supervised time between the father and the children and expressed a strong preference for family therapy. [Ms Trescott] said that [Mr Debenham] first needed to show remorse and apologise for his alleged behaviour before re building relationships with the children.
I spoke to [Ms Trescott] about her obligation to promote meaningful relationships between the father and the children. I also explained to [Ms Trescott] that she needed to raise her concerns about supervised time at Court. I told [Ms Trescott] that I could not offer a service if she was not willing to cooperate and suggested that she take the matter back to Court to seek her preferred Orders for family therapy. [Ms Trescott] explained that she did not want to be seen to contravene the Orders and would make the children available to spend supervised time with [Mr Debenham].
…
(emphasis added)
There were three attempts at supervised time between father and the children and each was a disaster. Ms E described each of those disasters in a summary but also provided detailed observations of each occasion. It is sufficient that I recite the summary or the opinion of Ms E. That the attempt at supervised time was a disaster is readily apparent from Ms E's summary which includes the following:
There have been three scheduled supervised sessions. These occurred on 7 and 15 May and again on 19 June 2021, none of which were successful. [Ms Trescott] was able to transport the children in her motor vehicle to the location but the children refused to get out of the car upon arrival.
On 7 May 2021, [Ms Trescott] told [H Family Services] Supervisor, [Mr K] that she had asked the children to get in the vehicle so that she would not be seen to contravene parenting orders. It became apparent that the children were not there to spend time with the father.
[Mr Debenham] approached the car on 7 and 15 May 2021 without the mother being present. On 7 May 2021, [X] attempted to get out of the car to engage with [Mr Debenham] however, [Y] pulled him back in again. On both occasions, [W] spoke on behalf of the sibling group and said that he was not prepared to spend time with the father and that he would not allow his brothers to either.
I proposed strategies designed to improve the situation. For example, I spoke to [Ms Trescott] and requested that [W] not attend supervised sessions for the time being. I explained to [Ms Trescott] that [W]'s refusal to reconnect with [Mr Debenham] was influencing his younger brothers. I also suggested that the children should be re-introduced one at time. These requests were not complied with.
Therefore, [H Family Services] has not been able to facilitate supervised time. It seems that other forms of intervention may achieve better results.
Family members may benefit from a more therapeutic reunification approach such as the reunification program offered by [Ms L] (Phone: […]). The matter can be re-referred family members back to a supervision agency upon [Ms L]’s recommendation.
(emphasis added)
The Mother is critical of the quality of the supervision service provided. I accept Ms E's evidence.
THE FAMILY REPORT
Mr F undertook a family report, with all interviews electronically, but over a significant period of time, those interviews, from 23 July 2021 until 15 September 2021 were as follows:
Interviews
23. 07. 2021 [Mr Debenham] interviewed
02. 08. 2021 [Ms Trescott] interviewed
07. 08. 2021 boys interviewed
24. 08. 2021 boys interviewed
28. 08. 2021 [Ms Trescott] interviewed
29. 08. 2021 [Mr Debenham] interviewed
29. 08. 2021 [Ms Trescott] interviewed
02. 09. 2021 [Ms Trescott] interviewed
04. 09. 2021 [Mr Debenham] interviewed
13. 09. 2021 Consultation with the ICL.
15. 09. 2021 [Ms Trescott] interviewed
I rely upon the whole of the family report but site the following paragraphs.
…
10.It is not the intention of this Counsellor to dispute what allegedly transpired, support [Ms Trescott]’s negative position of the service or defend the measures or strategies adopted by [H Family Services] workers. However, what can be said is that [Ms E], its director, has been providing such a service for many years and brings considerable experience to the supervision of contact between children and their parents in what are invariably complex, multifactored and at times intractable situations.
11.The length and number of documents on the file and the various professionals involved attests to the highly conflicted, contested and possibly intractable nature of the dispute.
12.An Interim Intervention Order obtained by the police at the time of the separation in March 2016 has been renewed and remains current though [Mr Debenham] will be contesting this at a hearing in November 2021.
13.The parental relationship remains strained, more so as each seeks significantly competing outcomes and [Ms Trescott] remains fearful and wary of [Mr Debenham]. There is no communication at all between the parents.
14.Notices of Risk were filed on 24th December 2018 on [Mr Debenham]’s part and on 10th February 2019 on [Ms Trescott]’s part. Department of Families, Fairness and Housing (DFFH) protective workers are not presently involved but at last intervened had last intervened in 2016.
…
16.Protective workers were alarmed by the squalid and derelict state of the family home in which [Ms Trescott] was living with the children as a result of hoarding. As the home was almost uninhabitable, protective workers required the boys to live elsewhere for three months, namely with [Ms Trescott]’s parents, whilst the home was cleared and cleaned to an acceptable standard after which the boys were allowed to return. Each parent holds the other responsible for the state of the house…
17.It is worth noting that on the two occasions that the boys were made available to be interviewed by this Counsellor, they were actually in [Ms Trescott]’s car, as they had gone for a drive to a local park, rather than the interviews occurring in [Ms Trescott]’s home environment, as in this Counsellor’s experience, is more commonly the case. The reasons for this were not clarified further. All interviews were conducted by telephone or via teleconference. The parents were interviewed separately. Two interviews were scheduled for the boys. All three boys were interviewed on the first occasion but [Y] refused to participate when interviewed on the second occasion. The boys were not observed with [Ms Trescott]. The nature of that relationship is not being questioned. No observation the [Mr Debenham]/boys relationship was conducted as they have no contact with him.
…
APPLICATIONS AND PROPOSALS
20.When initially interviewed, [Mr Debenham] was seeking regular contact with the boys and anticipated this would need “ramping up” to include alternate weekends and the usual festive and personal occasions. He was no longer seeking an equal time regime as per one of his applications as he believed this to be too disruptive for the boys. However, when interviewed for the last time, he indicated he intended seeking orders for the full-time care of children but was somewhat vague as to the precise details of his proposal including what contact the boys should have with [Ms Trescott] if placed with him.
21.When first interviewed, [Ms Trescott] found it difficult to particularise the orders she would be seeking. She spoke about supporting the boys should they feel safe with [Mr Debenham] and wish to spend time with him but she felt that this was not the case. However, she wanted [Y] to be excluded from any orders made for contact with [Mr Debenham] “as he can’t defend or protect himself…
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THE ADULTS
27.[Ms Trescott] is not presently employed but has worked in the past in her own businesses. ([Mr Debenham] suspects she may still be working.) She reports she is currently a carer to [Y] and is the recipient of government benefits for this. She’s not in a relationship. [W] and [X] attend [M School] and are in Years 12 and 10 respectively. [Y] attends the [N School] and has been there since 2020.
28.Two of the children have established conditions. [W] was diagnosed as being on the autism spectrum but is high functioning. [Y] was diagnosed at four years of age as being also on the spectrum though his condition is more complex. He also has ADHD, XYY Syndrome, Oppositional Defiance Disorder and Anxiety. These conditions are further compounded by a developmental delay. He is allergic to some substances and is on various medications.
29.When first interviewed, [Mr Debenham] had had some very limited supervised contact with the boys with a [H Family Services] facilitator in attendance, late in May 2021. Presumably he will provide his version of what transpired to the Court. He felt that [Ms Trescott] “was doing just enough to be seen to be doing the right thing by the orders”. He believed that [Ms E], the director of the service, had terminated their involvement due to the lack of progress made. He explained the family therapist, [Ms B], had similarly terminated her involvement as she felt she could do no more to restore his relationship with the boys.
30.[Ms Trescott] explained [Ms B] terminating her intervention differently. “It was impossible for her to proceed because one person denies what transpired. He lied to the children, to [Ms B], to his mother, to the psychologist. His entire affidavit is filled with lies. I wanted him to get help because I wanted him to have a relationship with the children. He did nothing to get help. He wanted to do it on his own terms”. [Mr Debenham] reports having completed an anger management course some three months before the separation “because I had smacked [Y]. And I was worried about how I was disciplining the children. We both agreed not to hit him. She would smack the kids as well. She did not do an anger management course”.
31.Although [Ms Trescott] was critical of how workers from [H Family Services] conducted their supervisory responsibilities, [Mr Debenham] did not identify any negative aspects to the service. However, he claimed that [Ms Trescott] ignored [Ms E]’s request that she should bring one child at a time to the scheduled supervised contact sessions times. “[Ms E] declared it a waste of time”. He thought one child only would be better able to express a dissenting view about wishing to have some contact with him without his other siblings present and was suspicious of [Ms Trescott]’s motives for insisting that all three boys attend together. For her part, [Ms Trescott] maintains the boys were anxious, fearful and apprehensive about coming into contact with [Mr Debenham] and insisted on being all together, rather than individually as had been suggested.
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33.[Mr Debenham] concedes that in the limited time available during the recent supervised contact, he asked [W] and [X] to give him reasons for their objection to spending time with him. He believes that the reasons they provided, namely his regular physical abuse were rehearsed fabrications.
34.Some of the allegations of family violence made by [Ms Trescott] were explored with [Mr Debenham]. He provided a somewhat tangled account in response to the various allegations made. He conceded having disciplined [Y] and that the older boys were unhappy about this. “[Y] had done some naughty things…had thrown water on the floor. I went to smack him. He was wriggling his bum so I smacked him on the back. I wasn’t trying to assault or abuse him. It was an attempt to discipline him. I was charged with assault of [Ms Trescott] one week before I moved out. The hand incident (referred to in the documents) had occurred two years before the separation. ([Ms Trescott] concurred with this.) She walked past me and rubbed water on my neck to annoy me. She punched me. She punched me in the face. I have photos of the injuries in my documents. (These could not be located.) She took a step back and tripped….Put her hands out to prevent falling. Says I hit her hand. I didn’t physically touch her. She fell!”. And furthermore “One week before I moved out, I raised my voice to [Y]. [Ms Trescott] began to hit me. I pushed her away. I was charged for this and given a $400 fine. She never got charged”.
35.[Ms Trescott] dwelt extensively and in great detail on the family violence perpetrated by [Mr Debenham]. Her demeanour reflects [Dr C]’s comments about her being “highly verbal and over inclusive”. She gave the impression the violence was unprovoked, unpredictable and triggered by seemingly trivial incidents or occurred for no apparent reason. She described violence towards her as being of a physical, emotional, financial and sexual nature. She alleges the violence extended to the boys with [Mr Debenham] physically abusing them and also emotionally by referring to them in highly denigratory terms. (See her material.) She further claims [Mr Debenham] prevented her from having a relationship with friends and family. She gave the impression that [Mr Debenham] was social[ly] isolate[d] as an adult and absent, uninvolved, uncaring and distant as a parent. She spoke at length, more so about his physical and emotional abuse of children and cites this behaviour as causing the boys to become resistant and oppositional to seeing and having a relationship with him. [Ms Trescott] became overwhelmed with emotion at least twice when recounting the abusive events that had preceded and ultimately brought about the separation.
36.[Ms Trescott] thought that [Mr Debenham] had not demonstrated he had changed his abusive ways or developed in any way since the separation. She points to his behaviour during the recent supervised contact sessions, as demonstrating this. “After five and half years of no contact he makes no effort to avoid abuse. All he did was to make the boys feel frightened and unsafe. He made matters ten times worse by not showing a better side of himself. He’s not interested in the kids …Waits five and a half years to see them and the first thing he does is to be aggressive to them in the car with the supervisor present”.
37.[Ms Trescott] provided this Counsellor with large colour photos of injuries to [Y]’s back and injuries to her hand inflicted allegedly by [Mr Debenham]. The injuries are confronting and very disturbing, more so as [Y] was only five years old at the time combined with his developmental vulnerabilities. (It seems noteworthy that injuries were allegedly inflicted in 2014, that is, two years before the separation.)
38.The report prepared by [Dr C] concludes of [Mr Debenham] that, if in his care, “the children would be at a low risk of abuse or neglect”. [Ms Trescott] questioned [Dr C]’s assessment as he had “not been provided with sufficient information, things have been omitted, including the 11F Memorandum and his being arrested and charged”…
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43.[Ms Trescott] worked on weekends pre-separation. It was at such times that [Mr Debenham] was expected to assume responsibility for the care of the children. [Ms Trescott] reported the children begged her not to leave them with [Mr Debenham] as they were fearful of his impulsiveness and temper. “He got pleasure out of frightening the kids. Would laugh at them if they were scared”. [Mr Debenham] wondered why, given the allegation she makes, [Ms Trescott] did not call on weekends so as to monitor the home situation and the well-being of the children if she was so concerned about them being at risk with him.
44.[Mr Debenham] denies some of [Ms Trescott]’s allegations (and those made by the children) of family violence, makes counter allegations about her having been physically and emotionally abusive to him during the relationship and contextualises others. (Unless this Counsellor is mistaken, his affidavits don’t comprehensively address the multiple allegations of abuse [Ms Trescott] makes.)
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48.The use of teleconference between [Mr Debenham] and the boys was considered, possibly as a more cautious and less threatening means of [Mr Debenham] having some interaction with them. This never eventuated with once again the parents providing different reasons. As [Ms Trescott] wanted to be in the room with the boys whilst they spoke with [Mr Debenham] so as to exclude the possibility of verbal abuse on his part and as this proposal did not envisage any progression to his relationship with the boys, [Mr Debenham] rejected this as an option. For her part, [Ms Trescott] also wanted him to apologise to the boys for his behaviour. As [Mr Debenham] allegedly refused to do so (presumably on the basis that one was not required), [Ms Trescott] withdrew her support of this proposal.
49.The parents disagree as to roles, responsibilities and tasks each assumed in meeting the various day-to-day needs of the children. [Mr Debenham] maintains that he was “an active and hands-on father”. [Ms Trescott] disputes this maintaining instead that he was an absent, uninvolved, disinterested and abusive parent and partner… That [Y] started a fire in the family home is particularly worrisome. [Ms Trescott] alleges this occurred when the boys were being supposedly supervised by [Mr Debenham]. He claims it occurred because [Ms Trescott] left them unsupervised.
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51.In a similar vein, neither [Mr Debenham] nor members of his family had made any attempts to maintain ties with the boys by the exchange of appropriate gifts/cards for the usual personal and religious occasions. [Mr Debenham] suggested that the restrictions which form part of the Intervention Order very likely extended to members of his family, hence their tendency to distance themselves from [W], [X] and [Y]. Having said this, it seems unclear why [Mr Debenham] did not attempt to have the terms of Intervention Order varied so as to enable him, as well as members of his extended family, to maintain some kind of presence in the lives of the boys or some ties with them.
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CHILDREN AND THEIR RELATIONSHIPS
54.Although all three boys were interviewed on the first occasion, [Y] remained mostly silent during this interview and only became animated when discussing a special talent he has with an unusual hand movement. Otherwise, he contributed little. He refused to participate in the second interview so only [W] and [X] were interviewed on that instance.
55.Save for [Y], who appeared restless and unfocused, [W] (almost eighteen years old) and [X] (sixteen years old) presented with a rather flat affect. None of the animation or enthusiasm usually manifested by children of their age was evident.
56.The boys were interviewed jointly. They had requested that the interview should be conducted in this manner and this was acceded to. They seemed already oppositional so further probing around the reasons for this issue seemed imprudent. They made it very clear they wanted to avoid any preamble by way of questions about neutral and noncontentious subjects usually asked at the commencement of report interviews with the aim of putting children at ease.
57.The boys gave the impression they were tired of the various professionals they’ve had to deal with including [Family Consultant J], [Ms B], [Ms E] and one of her workers, the ICL, [Ms O], and more recently, this Counsellor as well. Although not articulated as such, it is likely that they are bored and worn out by yet again having to repeat their account of unhappy, frightening and distressing events. One also wonders whether as a result of such processes, they are feeling unheard and their fears and concerns unacknowledged despite having repeatedly voiced their opposition to seeing [Mr Debenham]. There is a risk that the questions being put to them might reawaken old and painful memories of trauma experienced.
58.They spoke about having lived with [Ms Trescott] from the time of the separation and to having had no contact with their father since. They remembered fights and arguments between the parents which occurred for no apparent reason. [Y] struggled to remember much about [Mr Debenham] (he was about seven years old at the time of the separation.). Accounts of the behaviour of the parents was provided predominantly by [W] and [X]. They recalled being taken to soccer practice by [Mr Debenham] but he would read a book and showed no interest in them if hurt or not being watched sufficiently whilst at a swimming pool.
59.They are adamant that they did not wish to have contact with [Mr Debenham] due to his violence. “Dad was emotionally abusive…called us names like losers, retards and idiots” They also described instances of physical violence directly experienced or witnessed including instances of [Mr Debenham] striking [Ms Trescott]. They remembered yelling at him to stop and feeling frightened by his behaviour. They thought [Ms Trescott] had gone to hospital as a result of this and that the police may have been involved.
60.[X] reported “Dad hit us a lot. Hit [Y]. Me and [W] saw it. Wanted to hit him…smacked him on the back…multiple times… If I did something wrong, he’d run after me till he caught me and smacked me. I still feel scared of him. It’s better now than what it was before when he was trying to get us out of the car” (during a session of supervised contact.) [W] and [X] appear to be quite protective of [Y]. As for [Ms Trescott]’s views about their having contact with [Mr Debenham], they stated “she’s open to us seeing him but we have told her ‘no’ several times”.
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63.The boys had some sessions of supervised contact with [Mr Debenham] scheduled earlier this year. One of them reported being asked to get out of [Ms Trescott]’s car so as to see [Mr Debenham] but refusing to do so “because I was scared and intimidated”. [W] similarly explained “I was scared. We didn’t want to see him”.
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67.Given the length of time that had elapsed since they had had contact with [Mr Debenham], the boys were asked whether they had received any correspondence, cards or gifts from [Mr Debenham]. They stated “if he had sent something, I’d find it hard to accept. I wouldn’t want to accept a gift from him. He left a book for [Y] (during supervised contact) a Lego Star Wars book but [Y] didn’t want it”. (Although a predictable response given the strength of their feelings, such an attitude seems also perplexing as children can be mercenary, younger ones in particular.) Although they recalled the paternal grandparents sending them a Christmas card after the separation, this practice has not continued.
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69.Overall, the boys seemed to hold mostly negative views of [Mr Debenham] based on their memories of him pre-separation presumably refreshed by yet again having to provide accounts of past events. They expressed fear and apprehension about coming into contact with him, hence their resistance when being take to the contact venue by [Ms Trescott]. The boys report [Ms Trescott] telling them they are free to contact [Mr Debenham] if they choose to but stated they have no interest in doing so despite [Ms Trescott]’s apparent openness.
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EVALUATION
71.This is a complex matter where no “good” outcomes for the boys are readily evident. Child issues currently before the Court include [Mr Debenham]’s relationship with [W], [X] and [Y]; under what conditions his contact with them is to occur, if at all, and the future living arrangements for them.
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77.[Mr Debenham]’s account of how he physically disciplined [Y] after the child had spilled some water, is very a troubling response to a seemingly trivial event. The injuries inflected on a then still young and vulnerable child cannot be set aside. (The injuries which appear to be on the child’s upper back and not near his buttocks, may warrant further clarification and exploration by the Court.)
78.For his part, [Mr Debenham] tends to downplay the seriousness of the injuries experienced, contextualises and denies others. He wondered why there was no police involvement, why there are no medical records of injuries available and why protective services were not notified during the relationship, more so if the violence was as severe, as frequent and as ongoing as alleged. The significance and importance of the preceding points made by [Mr Debenham] seems a matter for the Court.
79.The parents are seeking competing outcomes by way of child orders. There are a number of factors which are difficult to set aside in deciding what relationship the boys are to have with [Mr Debenham]. These include their fear and predominantly negative perceptions of [Mr Debenham], their direct experience of him, their entrenched and consistently expressed resistance to contact, the chronicity, and severity of the abuse, the length of time that has elapsed since they had any significant contact with [Mr Debenham], [Ms Trescott]’s lack of genuine support of their relationship, [Mr Debenham]’s prolonged inaction and possible insensitivity, [W] and [X]’s ages and [Y]’s special needs. The presence of an Intervention Order is a further impediment (though not an insurmountable one) to the restoration of [Mr Debenham]’s relationship with the children.
80.Given the above considerations, this Counsellor cannot support the restoration of the boys’ relationship with [Mr Debenham]. Orders will be required reflecting this.
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85.[Mr Debenham] suggests that each boy should have been given an opportunity to express his views as to contact away from the watchfulness and influence of his siblings. Maybe this should have been done. However, the question of the contact should not rest solely on the wishes but more so on what level of risk [Mr Debenham] poses to them in addition to their views. As for [Y] possibly expressing a wish to spend time with [Mr Debenham], this child’s cognitive capacity to make such a decision seems to be impaired and this factor requires consideration by the Court.
86.Given the age and opposition demonstrated by [W] and [X], the Court may be inclined to make no orders in relation to them. However, it may consider some form of contact between [Mr Debenham] and [Y] (although [Mr Debenham] did not identify this as a specific option he was considering). It may be the case, given his younger age that [Y] might be more compliant and amenable to spending time with [Mr Debenham]. However, given the abuse perpetrated on [Y] and this child’s cognitive impairments, one would be deeply troubled were orders to be made for [Y] to be with [Mr Debenham] without the support and protection his brothers might provide. Given their resistance and opposition to spending time with [Mr Debenham], they are unlikely to assume such a role. Nor should they be expected to do so. Furthermore, it seems inappropriate to expect them to assume a minder-like/supervisory role as to their younger and more vulnerable brother. (It is worth noting that as professional supervisors struggled with meeting the responsibilities of such a requirement, how much harder would it be for [W] and [X] to do so?) Making orders for [Y] to spend time with [Mr Debenham] alone is also likely to heighten any anxieties [W] and [X] may experience, knowing that their younger brother will be with [Mr Debenham] alone and possibly at risk. In other words, such a decision is likely to have a negative impact of them as well. Given the above considerations, this Counsellor finds it difficult to support orders for [Y] to spend time with [Mr Debenham].
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89.Images provided by [Ms Trescott] of [Y]’s injuries are very confronting and disturbing. [Mr Debenham] admits having inadvertently caused them. Nonetheless, these injuries were allegedly inflicted in 2014. That is, two years before the final separation. [Ms Trescott] does not appear to have taken action by way of bringing this to the attention of the appropriate authorities or sought medical attention for them. (She provided a number of reasons for not having done so.) She also remained in a relationship with [Mr Debenham] for another two years before the final separation. Her continuing in the relationship may be understood in terms of the cycle of violence where (usually) a female partner hopes the abuse will cease after promises to change, seek professional assistance, undertake behaviour change courses etc. are made by the abuser, though generally to no avail. It may also be the case that [Ms Trescott] was fearful, rendered powerless and immobilised by the ongoing abuse, hence took no steps to end the relationship. Nonetheless, her inaction seems very perplexing and not easy to understand given the apparent seriousness of the injuries inflicted on what was then a 5-year-old child with serious psychological conditions and a major developmental delay.
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94.Certain measures have been attempted, such as professional supervision and family therapy, aimed at restoring [Mr Debenham]’s relationship with the boys. However, the accounts provided by the parents suggest that such measures were never comprehensively or exhaustively implemented. In effect, the boys never engaged with these professionals despite their considerable experience. Although [Mr Debenham] did not state it as such, he believed that [Ms Trescott], through her actions, requests and delaying tactics had done her best to undermine and hinder all his attempts at having his relationship with the boys re-established.
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96.[Mr Debenham] appears to assume no responsibility for the negative attitude the boys have adopted towards him as a result of his past behaviour. He believes their views are the result of [Ms Trescott]’s vindictiveness because he somehow encouraged or organised the intervention of protective services at separation combined with a belief that his not seeing the boys will entitle [Ms Trescott] to a greater share of the family assets. It is up to the Court to determine the validity of [Mr Debenham]’s explanation for having a highly troubled and strained relationship with the boys.
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106.Given the restricted and limited nature of the relationship [Mr Debenham] has had with the boys since separation, his considering such an option raises serious questions about his insight and attunement into the emotional and psychological needs of boys and as such this proposal seems quite unrealistic and ill-considered. Making orders for [Mr Debenham] to have the primary care of the boys seems totally premature, more so given the estranged nature of his relationship with them post-separation, coupled with their resistance and opposition to even having a relationship with him.
107.It is predominantly in view the proceeding observations that orders for [Mr Debenham] to assume the primary care of the boys cannot be supported.
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(emphasis added)
RECOMMENDATIONS
113.Based on information gathered from the parties and held in the documents supplied and in the absence of any evidence to the contrary, then this Counsellor recommends that:
114.orders be made for [W], [X] and [Y] to live with [Ms Trescott];
115.no orders be made for the children to have contact with [Mr Debenham];
116.orders be made for [W] and [X] to have contact with [Mr Debenham] at their own volition;
117.orders be made for the boys to engage in family violence counselling;
118.orders be made for [Mr Debenham] to be able to access the childrens’ schools so as to be provided with the information, (including school photos and reports), usually made available to parents;
119.orders be made enabling [Mr Debenham] and members of his extended family to send gifts to the children for the usual personal and religious festivities.
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I accept the evidence of the family consultant's observations. The family consultant has many years of experience and has considerable expertise. I have also heard from the proposed therapist (the family consultant had not) who also has many years of experience and considerable expertise.
Taking into account all of the evidence I do not accept his opinion that further therapy will be detrimental to Y's welfare. In ways, and to an extent, I cannot determine on the balance of probabilities, both parents bear some responsibility for the disastrous cul de sac the family is in and the events that led to this
INTERIM HEARING OR FINAL HEARING: NO CROSS EXAMINATION
The matter was listed as a final hearing. On the Mother's case this was a final hearing and final orders should be made. Notwithstanding no witness was sought to be cross examined by any party, I am entitled to make findings of fact.
This hearing, listed and prepared as a final hearing, has considerably more information, and information from sources independent of the parties, than is frequently the case on interim hearings, and certainly those on the first return in court.
Nonetheless, neither party, or any witness was cross examined. Substantial events remained in dispute, particularly the extent of family violence. In any event I endeavour to apply the direction of the High Court in Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy’). Fox v Percy concerned the skid marks of a Combi van on the correct side of the road, at [31], when discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality observed:
[31]in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from false would accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance upon the appearance of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(citations omitted)
In this case I do not make findings about credibility. I have also reread the expert reports and the transcript of the parties' submissions and reflected upon those matters. In this case I have the assistance of the Section 11F Memorandum, the family report, the affidavit of Ms E and the reports of each parent by Dr C and parts of that evidence is recited above.
I conclude that this matter is a final hearing but where two of three parties seek interim orders and one seeks final orders. But controversial evidence was not tested by cross examination. I did not press why that was so but expect this was to avoid days of expensive hearing and where all parties took a realistic view of the likely benefit any further information from cross examination of witnesses balanced against the cost and stress. Significant events were not in dispute in any event. The conflicting evidence of the parents was not tested in cross examination.
THE PARTIES' PROPOSALS
The Father and the ICL seek orders that the parents do all things to cause the parents and the children and alternatively the child Y to attend and engage in family therapy with the therapist for the purpose of re-establishing a relationship between Y and the Father and to follow the lawful directions of the therapist as to how that therapy will be undertaken and progress. The Father proposes that the therapy be at his expense.
The Mother opposes any further attempt at therapy. Enough is enough she says. Consider the boys ages and what they have been through and their clear views. Consider the recommendations of the family report. The Mother says any time is not practically possible given the children's fear of the Father and refers to [67] of the Family report recited above.
The ICL seeks further interim orders as follows:
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2.The mother keep the father informed of any major educational, medical issues and other major events in relation to the children.
3.The children live with the mother.
4.The children be permitted to communicate with the father by telephone or face time in accordance with their wishes and the mother facilitate the same and ensure the children have privacy when doing the same.
5.The paternal family be permitted to send gifts and/or cards to the children not more than once per month.
6.The mother and father be hereby restrained from denigrating or abusing the other or the other’s family in the hearing and/or presence of the children and allowing any other person to do so.
7.The mother and father be hereby restrained from discussing these and any other Court proceedings within the hearing and/or presence of the children and allowing any other person to do so.
8.The mother authorize the children’s school to forward to the father (at the father’s expense if any) copies of school reports, newsletters, photographs and any other material a parent would normally receive and the father be permitted to attend parent teacher interviews, sporting events, concerts, school functions and any other event a parent would normally attend.
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AGREED OR UNCONTESTED MATTERS
Key agreed or uncontested facts include the back ground matters recited above. The children have not spent time with the Father since 2016 and they are strongly opposed to any contact with him. Attempts at supervised time have been unsuccessful. The children have in the past been removed from the Mother's care for several months due to the state of the home that appeared to be due to a hoarding issue or problem (of one or both parents). There is no evidence of the state of the home of the children and the Mother in recent times.
The Mother reports her own psychological heath has been impacted by family violence but as otherwise unremarkable. The Mother attended the electronic hearing from her parent's home not her own. The family report interviews were undertaken electronically from the Mother's motor car at the choice of the Mother.
The family report writer does not support any further attempt at therapy and is concerned at the risk of systems abuse.
The Father was charged with assault arising from the family violence and pleaded guilty and the Police applied for a family violence order on the Mother's behalf.
It is uncontested that an incident occurred in September 2014 when the Father struck Y with such force that it left marks or bruises on his back. This is further addressed under family violence below.
It is uncontested the Mother attended a doctor in August 2015 and had injuries to her left hand and thumb consistent with her description of an assault on her at that time.
BEST INTERESTS
In deciding what particular parenting order to make I regard the best interests of the children as the paramount consideration, see section 60CA of the Act.
I must consider the matters described in the act as primary considerations and additional considerations. In doing so I take into account all of the evidence notwithstanding entirely contradicting accounts have not been tested.
I apply and take into account the whole of Part VII of the Family Law Act 1975 Cth (the Act). I apply section 60CA-60CC(3), and have regard to section 61DA and take into account the obligations of section 65DAC. Those provisions are as follows:
Section 60CA
Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC
How the court determines what is in the child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
I take into account, only as a very general starting point and subject to the evidence, the objects and principles underlying Part VII of the Act:
Section 60B
Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
….
Primary considerations
In the circumstances of this case the additional considerations of section 60CC(3) inform me as to how the primary considerations apply and will be considered in these reasons before the primary considerations.
Section 60CC additional considerations
The following headings relate to the factors set out at section 60CC(3)(a)-(m) of the Act:
The additional considerations
I will address the relevant additional considerations first, before turning to the primary considerations, as those matters, in this case, inform any finding about the primary considerations.
Any views expressed by the child
The children have unequivocally expressed views that they do not wish to see the father at all. Those wishes were expressed in the company of, and hearing, of the other children. The power and strength of the personalities of W and X, in the circumstances children were placed in to discuss their views, mean that it is highly likely that the views of W and X have influenced Y. Further, despite the Mother saying, at times, that she supports a relationship between the children and their Father, if he apologises for his behaviour of many years ago and the children choose to see him. I do not find that she does, or ever has since separation, actually supported the concept of the children having a relationship with the Father independent of her. Or her account of the family violence that is unsurprising.
I take into account the Mother's personality observed by Dr C and the behaviour observed by Ms E. I accept those observations of the Mother's motivations are controversial.
Nonetheless I find that the observations and opinions of Dr C and Ms E are correct. In those circumstances there is a real and substantial risk that the Mother's antipathy to the Father has profoundly influenced the views of the children and continues to do so.
I also find that the views of W and X, themselves influenced by the Mother, have influenced Y's views and that Y has not been afforded the emotional space or permission to have a view of his own. It is also not appropriate that W and X have the burden and responsibility of determining whether or not their younger brother Y should have a relationship with the Father.
I find that Y has not had the opportunity to have a relationship with the Father independent of the Mother's antipathy to the Father and W and X's strong views. Nonetheless I place considerable weight on Y's expressed views.
Nature of relationship of with each of the child's parents and other persons
The children have a close relationship with the Mother and she is the major influence in their lives. The children have no relationship whatsoever with the Father. They are unable to test their perceptions of the Father's personality.
Parent has taken or failed to take opportunity to participate
Over a long period of time, the Father has attempted to take whatever opportunities he had to spend time of the children and participate in decisions about them. He has in recent years attempted this by utilising litigation as his only option. The Father commenced these proceedings in December 2018 having not seen the children for 2 and a half years.
Extent each has failed to fulfil obligations to maintain the child
The Mother has solely provided the emotional and day to day support of the children since separation or as the Mother's outline of case asserts, "she has tendered to the children's needs for their entire li[ves]".
Four circumstances that are uncontested, are also relevant. Firstly, the children were removed from the Mother's care some years ago due to the state of the home. Secondly, the electronic family report observations were from a motor car away from the Mother's home. Thirdly, the Mother's participation in the hearing was from her parent's home. Fourthly, there being no evidence of any person, observing the state of the Mother's home in recent times. Those four circumstances mean that I am unable to find, on the balance of probabilities, that the Mother has fulfilled her obligation to maintain the children in a home of appropriate order for three teenagers. However I do not find that the hoarding/state of the home problem has, or will, return. I simply do not know. It was within the Mother’s power (and not the Father’s) to provide evidence about that. See Blatch v Archer (1774) 98 ER 969 at 970 as cited in Stephen Odgers, Uniform Evidence Law (17th edition) at [EA 55.180]:
That all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted.
The father has paid mortgage payments on the home the children live in for many years, including after separation. In addition he has paid some periodic child support.
The Father seeks to bear the expense of the therapy he seeks. He has not abandoned his children.
The likely effect of any changes
The observations of the family report writer, particularly at [57] are referred to.
The children are not engaged in any therapy with or about their Father. If the Mother is compelled by court order to utilise her parental authority to make the children or any of them attend such therapy this will be a significant disruption in their lives. The children will likely resent at least initially any therapy being imposed on them or any of them. The issue is whether that disruption is in their long term best interests.
Practical difficulty and expense
I must consider the practical difficulty and expense of children, or any of them, spending time and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis. There is a very significant practical difficulty and expense for the children in the orders for therapy sought by the Father. The parents, and mostly the Mother, will have to exercise parental authority to compel the children, or any of them to go. The practical difficulty and expense of the Mother compelling only Y to attend for therapy will be less than for all of the children.
The expense is significant and the father seeks to bear that expense.
Capacity to provide for the needs of the child including emotional & intellectual needs
Subject to the uncertainty as to the state of the children's home referred to above the Mother is able to provide for the material and educational needs of the children. An important emotional and intellectual need of the children is the opportunity for them to have their own relationship with both of their parents, provided it is safe to do so. I am not satisfied that the Mother has the capacity to provide for this important need of the children. On the evidence of Dr C I am satisfied that the Father has the capacity, within the therapy sought, and to the extent necessary for unsupervised time if the therapy is successful, to contribute to the emotional and intellectual needs of the children.
The maturity, sex, lifestyle and background
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents. The older boys are at an age when they should be making their own decisions, assisted by their parents, about how and with whom they have relationships. The children will not have the assistance, or knowledge, of their Father as he now is, is deciding whether and how they have a relationship with him.
Y has special needs and great care must be taken in considering his best interests. The needs of the children described at [28] of the family report (cited earlier) are not in dispute. Those circumstances are likely to make having a relationship with the Father harder for all concerned.
Family violence
The Mother describes family violence against her and the children and describes an assault on Y in September 2014 as follows:
40.In or about September 2014 When [Y] was only five years old , [Mr Debenham] struck [Y] for spilling water on the floor . I was in the next room and when I heard the noise I came running in to the room. I then saw the welts in the shape of a hand on [Y]'s back .
41.[W] and [X] who witnessed the incident told me that [Mr Debenham] raised his hand above his head and slammed it on [Y]'s back. He repeated this action twice.
42.I then put [Y] in the car and drove to my parent's house which was a few minutes away. I asked my parents whether I should go to the police because it was so horrific. My parents said let's try to work with [Mr Debenham] to get him some help.
43.My mother [Ms P] took photographs of Y 's back . These bruises took about two weeks to disappear. I produce a true and a correct copy of the photographs marked [MT] 4A and 4B.
44.When we were at my parent’s home, I telephoned [Mr Debenham] to come to my parent’s house. We then confronted [Mr Debenham] regarding the assault on [Y]. [Mr Debenham] then promised my parents that he would never so anything like this again.
45.[Mr Debenham] also agreed to our request to get some help for his anger and violent outbursts. As far as I know he never sought any help from anybody. I consulted our family doctor, and he gave me a mental health plan to make an appointment with a psychologist to discuss [Mr Debenham]'s issues .
…
47.[W]'s and [X]'s account is consistent with [Y]'s injuries depicted in the photos.
48.I quote from the S11 F report “as admitted by [Mr Debenham] at interview, he smacked [Y] (aged six years at the time) on the back or bottom using force. [Mr Debenham] reported that he could not recall whether the smacking led to injuries on [Y] as alleged by [Ms Trescott].
49.The letter from Peter Gigliotti Lawyers ([Mr Debenham]'s legal representative) dated 31 March 2021 amongst other things stated "The only other incident involved our client when he went to smack [Y] on the bum as a disciplinary measure and [Y] moved as our client smacked him. Our client inadvertently landed his hand on [Y]'s lower back rather than on the bum.
The photos annexed clearly shows significant hand marks on the middle of the child's back consistent with what the Mother says W and X observed. I find that the Father has not accepted the extent of the force he used on Y or the extent to which such force was entirely wrong and abusive and likely the result of his failing to control his anger when required to discipline Y or put it in ordinary language: he lost his temper and while disciplining Y and hit him far too hard and really hurt him.
I find that the reality of that incident is distressing to the three boys, the Father and from what she was told of it, the Mother. I find that were the Father to concentrate on the reality of what he did he would be more distressed. He avoids grappling with the seriousness of what he did, not because he is thinks it was acceptable, but because he knows that his violence to Y was unacceptable. I find there is no unacceptable risk of any further incident occurring.
If further family therapy is to occur I find that the Father’s personality and the interaction between Father and child or children would be physically and emotionally safe.
I find that the violence the Father pleaded guilty to occurred. I do not otherwise make findings about the competing allegations of the parents’ violence to one another. That does not mean I find events as alleged did not occur; just that I do find on the balance of probabilities that they occurred as alleged.
Order least likely to lead to further proceedings.
The Mother seeks the end of the litigation. The Father and the ICL seek interim orders. The only final orders that can realistically be made would be for complete or partial sole parental responsibility and no orders that would promote any sort of a relationship between the children and their Father. The advantage of final orders would be the end of the significant stress and uncertainty of litigation for the parents and the children, and for the Father, the end of the expense of that. The disadvantage of those orders is the end of any prospect of any relationship between the children or any of them, and their Father.
No relationship with their Father also means they are never exposed to any different parental/child experience or relationship to what they have with the Mother.
Any other fact or circumstance that the court thinks relevant
The Mother has stated, in qualified terms, from time to time that she supports the children having a relationship with the Father. The Mother is the most significant parent in the children’s lives. I find that the court ordered supervised time was not supported by the Mother. I find the court ordered therapy was not supported by the Mother.
The Mother has resided in the former matrimonial home and the Father has paid the mortgage thereon, for at least some of the time, since separation. The final orders settle the question of that home, the children's home. Subject to compliance with the property orders the Mother will retain that home. The property proceedings bear the hallmarks of hard fought and worrying litigation. That dispute is now over.
Benefit of a meaningful relationship and the need to protect the children
I am unable to find that the Father has abused the children and wreaked family violence on the Mother to the extent she alleges. I am unable to accept the Father's version of events and dismiss the serious allegations. The last paragraph of these reasons under the hearing ‘Family Violence’ is referred to.
Primary Considerations
The balancing of the two primary considerations is at the heart of this case. Taking into account the assessment of the personality of the Father by Dr C as he presents at this time and the evidence of his partner, I am unable to find that, at this point in time, the father is a bad or abusive parent or person notwithstanding the violent incident with Y.
The children are unlikely to ever have the same relationship with their father as with their mother. Taking into account all of the evidence I find that there is a benefit to the children of a meaningful relationship with both parents. However any attempt to repair the older boys relationship with the Father is unlikely to be successful and will be highly confronting and stressful for them. Further to force the older boys to participate in therapy is likely to interfere with the therapy for Y and make it more difficult for the Mother to support Y's therapy.
I find that the benefit for Y of having a meaningful, but different to that with his Mother, relationship with his Father outweighs the potential stress and difficulty for him of the repair of that relationship with the therapy proposed.
Parental responsibility
I refer to the provisions of section 61DA of the Act cited earlier in these reasons. That is I must apply a presumption that it's in the best interests of the child for the parents to have equal shared parental responsibility. I must apply the presumption unless it does not apply or is rebutted by evidence that satisfies the court that would not be in the child's interests for the parents to have equal shared parental responsibility.
The presumption does not apply "if there are reasonable grounds to believe that parent... has engaged in family violence". The provision is silent as to who is to have such belief for the presumption not to apply. I did not raise this aspect with the parties and it was not debated before me although the parties had the opportunity to do so. I take into account the amending provisions Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (Act number 46 of 2006) (‘the Amending Act’) and the Act as a whole. One purpose of the Amending Act and Division 2 of Part VII of the Act is to ensure that a Judge does not apply the presumption when there is family violence: hence it must be intended that if the Judge has the described belief then the presumption does not apply. This is clear from the provisions.
If I am wrong about that and there is ambiguity in the provision I can have regard to the extrinsic material of the explanatory memorandum of the amending provision. Paragraph 123 of the explanatory memorandum states as follows:
New subsection 61DA(2) states that the presumption will not apply if the court reasonably believes that a parent of a child...
(emphasis added)
Hence it is clear that the intention or purpose of the provision relates to the belief of the court or the judge.
I have not found on the balance of probabilities that there has, or has not been, the family violence alleged in this case. The test of section 61DA(2) for when the presumption does not apply is a different one to be applied to other factual findings in the case which must be pursuant to section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’). In this case I have unequivocal and repeated allegations of abuse, by force and by coercion, of the Mother by the Father. This are clearly a allegation of family violence within the meaning of section 4AB of the Act.
Notwithstanding that I have not found the Mother's allegations proven in accordance with section 140 of the Evidence Act, I find that there are reasonable grounds to believe that a parent in this case has engaged in family violence.
Hence the presumption of section 61DA does not apply in this case because there are reasonable grounds to for me to believe that the Father has engaged in abuse of the children, and of Y in particular, and in family violence. The reasonable grounds are the untested, but often repeated, allegations of the Mother. Those allegations, save for one incident of heavy handed discipline, are denied by the Father. I am not required to actually "believe" or to find on the balance of probabilities (see sec 140 of the Evidence Act) in any event.
Section 4 of the Act defines major long term issues as follows:
“major long-term issues”, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
The Mother seeks an order for sole parental responsibility for decisions about long term decisions about the children. The Mother has so far made all decisions about medical and education matters herself.
Section 65DAC provides as follows:
Section 65DAC
Effect of parenting order that provides for shared parental responsibility
(1)This section applies if, under a parenting order:
(e)2 or more persons are to share parental responsibility for a child; and
(f)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The parents do not, and cannot, communicate as contemplated by section 65DAC. The Mother should have the responsibility of having sole responsibility for medical and educational matters, but provided the Father's views are sought and considered before any long term decision is made and the Father is at liberty to consult any of the children's medical practitioners and is able to obtain school/educational information that parents are usually provided directly from the school. In substance the Mother should have the last say in the event of a dispute about medical or educational matters.
There is no evidence about the possibility of any dispute about the matters described at (b), (d) or (e) of the definition of major long term issues in the Act and no reason to provide either parent with sole parental responsibility for those matters.
CONCLUSION
On this final hearing the Father seeks only interim orders and the Mother seeks final orders. It is not in the children's interests that all questions be left up in the air. It is in all the circumstances in the children's best interests that there be final orders as to parental responsibility and where they live. It is an overwhelming case that the children should continue to live with the Mother and that question be finalised.
I am satisfied that the Mother does not support the children having any relationship with the Father. The older boys are implacably opposed, at this time, to any relationship with their Father. I find that is partly from their own experience and partly from the influence of their Mother and their own need to support her in her views of the Father. She is the only parent who has looked after and cared for them for many years. At this time they feel they need to support their Mother. They have very significant influence on, the much younger, Y.
I find that to force the older boys to again attend therapy would likely be unsuccessful and the attempt, balancing all the evidence, would not be in their interests. Further their involvement in therapy will reduce the prospect of that therapy being successful for Y. They should not have the burden and responsibility of whether and how Y has a relationship of his own with the Father.
I accept the assessment of the personality and character of the Father described in detail by Dr C. I accept the evidence of the Father's partner.
In all the circumstances Y should have the opportunity to have a relationship with his Father. To rule out Y ever having a relationship with his Father is contrary to his best interest. A relationship can only occur through therapy. The therapy should be reportable. In this circumstance only interim orders as to Y's therapy should be made.
The Father seeks that the therapy should be at his expense. It should be in the first instance and the ultimate sharing of that expense should be determined at a later point. If either parent thwarts the therapy having any chance of success that may be a matter to take into account when, and if, that is considered.
Both parents will have to actually support the therapy rather than give mere lip service to supporting it.
Y should attend therapy without his older brothers unless the therapist directs the parents to have them attend.
It is in the children's best interests that the Mother has the last and determining say about educational and medical issues as she has had in practise since separation.
The Father should be at liberty to communicate with the children by letters, cards, presents, text messages and email but not more than once each two months. Y should have the experience of his own relationship with the Father which will commence with reportable therapy.
I will fix a date for a mention of the matter in about 6 months hence.
The undertaking by the Father’s solicitor
On 22 January 2022 the Father’s solicitor emailed my Associate and reported his concern that he has inadvertently acted contrary to his undertaking not to disclose the Mother’s email address to the Father. This occurred, he said, when he passed on conveyancing documents/information as requested by the Mother’s solicitors, for property transfer purposes. On his account, it appears neither solicitor realised the conveyancing document contained the Mother’s email address. I assume he has provided that emailed letter to the Mother’s lawyers, and if he hasn’t he should.
The self-report by the Father’s solicitor is appropriate and consistent with his duties to the Court. Absent any application to me I do not propose to make any order or take the matter any further.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 5 April 2022
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