Demont and Frazer

[2020] FamCA 769

FAMILY COURT OF AUSTRALIA

DEMONT & FRAZER [2020] FamCA 769

FAMILY LAW – PARENTING – Review of a Senior Registrar decision – Where the father sought a week-about arrangement with the children – Where the children are cautious about returning to week-about arrangement with the father – Where the children have expressed fear of the father – Orders for the eldest child to spend time with the father in accordance with his wishes – Orders for three younger children to spend four nights a fortnight with the father.

Family Law Act 1975 (Cth) s 60CC

McCall & Clarke (2009) FLC 93-405

APPLICANT: Mr Demont

RESPONDENT: Ms Frazer

INDEPENDENT CHILDREN’S LAWYER: Mr Clack

FILE NUMBER: SYC 3510 of 2016

DATE DELIVERED: 14 September 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 27 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dart

SOLICITOR FOR THE APPLICANT: Family Law Matters

COUNSEL FOR THE RESPONDENT: Ms Beck

SOLICITOR FOR THE RESPONDENT: Watkins Tapsell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

IT IS ORDERED PENDING FURTHER ORDER

1. That the children Y born … 2006; X born … 2008; Z born … 2011 and W born … 2015 live with the mother.

2. That Y spend time with and communicate with the father in accordance with his wishes.

3. That the children X, Z and W (“the children”) spend time with the father during school terms for four nights each fortnight from the conclusion of school on Friday until the commencement of school on Tuesday.

4. That the children spend half of each school holiday period with the father and, in the absence of agreement, the second half.

5. That Order 3 is suspended on the weekend of Mother’s Day.

6. That notwithstanding any other order, the children spend time with the father on the weekend of Father’s Day in accordance with Order 3.

7. That the children spend time at Christmas as follows:

   (a)In 2020 and each alternate year thereafter, with the mother from 4 pm on 24 December until 2 pm on Christmas Day and with the father from 2 pm on Christmas Day until 10 am on 26 December.

   (b)In 2021 and each alternate year thereafter with the father from 4 pm on 24 December until 2 pm on Christmas Day and with the mother from 2 pm on Christmas Day until 10 am on 26 December.

8. That these proceedings be transferred to the Federal Circuit Court sitting at Sydney.

9. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Demont & Frazer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3510 of 2016

Mr Demont

Applicant

And

Ms Frazer

Respondent

REASONS FOR JUDGMENT

1. Mr Demont (“the father”) and Ms Frazer (“the mother”) separated in September 2015.

2. They have four children, Y born in 2006; X born in 2008; Z born in 2011 and W born in 2015.

3. After they separated, the parents agreed that they would equally care for the children, with the exception of W who was still being breast-fed. When W was a year old, she joined the older children in the arrangement whereby they spent time with each parent on a two day/two day/ five day/five day arrangement.

4. In 2016, the father commenced co-habitation with his current partner, Ms C.

5. The parenting arrangement continued until August 2018 when Y refused to spend further time with his father in circumstances that will be further discussed.

6. In September 2019, the arrangements for X changed and she began a week about arrangement with each parent.

7. Thereafter, there were three different parenting regimes:

   ·    Y lived with the mother and spent no time with the father;

   ·    X lived in a week about arrangement; and

   ·    Z and W continued the 2/2/5/5 regime.

8. It is not clear what time the four children actually spent in the same house at the same time.

9. By the time the matter came before the Family Court on 10 June 2020, it was apparent that the arrangements were not working for any of the children except W. By that time Y’s schooling was extremely disrupted and he was not spending any time with his father.  X was telling her counsellor that she wanted to spend more time with her mother and Z’s teacher was expressing concerns about his level of anxiety. Only W seemed to be thriving.

10. On 10 June 2020, the Senior Registrar heard competing parenting applications and made orders which had the effect that the three younger children spent a block of four nights with the father in each fortnight. Orders were made for Y to spend time with the father in accordance with his wishes.

11. The father filed an application to review the decision of the Senior Registrar and thus the matter came before me for hearing de novo.

12. Before me, the father sought no order in relation to Y other than that he spend time with his father as he wished. He sought a week about order in relation to X and the reinstatement of the previous regime in relation to Z and W.

13. The father also sought a suite of ancillary orders in relation to which there was but a passing reference in submissions.

14. The mother sought sole parental responsibility for the children and a continuation of the orders made by the Senior Registrar. She also sought orders permitting her to change the schools which the children currently attend. I indicated to the parties that I was not prepared to deal with the mother’s applications in relation to parental responsibility on an interim basis and the state of the evidence would not have allowed me to do so.

15. An Independent Children’s Lawyer (“ICL”) had been appointed for the children and there was before the Court a helpful tender bundle containing, inter alia, documents produced by the psychologist for the three older children, the police and the father’s employer.

16. Because these are interim proceedings and there is no opportunity to test competing allegations, it is not possible to make findings in many areas where versions are disputed.

17. Although the mother asserts that the equal shared parenting arrangement was forced upon her by the father, it appears from the evidence that it worked reasonably well until about mid-2018.

18. The father attributes the difficulties in his relationship with Y and Y’s subsequent refusal to spend time with him to the father’s attempts to limit the time Y spent on electronic gaming. The situation is rather more complex.

19. The mother deposed that, in June or July 2018, on an occasion when she drove all of the children to the father’s home, he opened his door and started yelling at her. She asserts that all four children were very upset, crying and shaking and that they ran away from the father and back to her car. She took them back to the father later that day.

20. The mother deposed that Y’s attitude towards his father changed after that incident. She deposed that Y told her that his father had pushed him up against the wall during an argument and that he had been sent to bed with no dinner because he had eaten a lolly before dinner.

21. In August 2018, Y told his mother that his father had thrown him over a lounge in the course of an argument at bedtime. It was after that occasion that Y refused to return to his father.

22. On 14 August 2018 the father, who is a public servant, received a letter from his employer, advising that four allegations of misconduct against him had been substantiated. Relevantly, his emails to his then Manager were described as:

    …prolific and could well be perceived as menacing. They were repeated, unreasonable, unwelcome, targeted and created a risk to the health and safety of the Manager.

23. The father was advised that a decision had been made not to take disciplinary action against him but to “impose remedial action in the form of a formal warning”. There had been previous complaints against the father, including a complaint that he used excessive force in the workplace. This complaint was substantiated.

24. On 23 August 2018, a short time after Y had refused to return to the father’s home, the father went to Y’s school before school finished in the afternoon. Y had expected his maternal grandmother to pick him up. The father approached Y and said “Hello little boy. It’s my day”. Y walked away and phoned his mother. The father followed and took Y’s phone. Y ran away and found his grandmother’s car.

25. The mother deposed that after that incident, Y did not want to go to school and started to have difficulties at school and appeared anxious. In 2019, Y was absent from school on 60 days and late on 53 occasions. He has had 39 incidents recorded against him in his Student Behaviour Profile.

26. In October 2018, Y started to see Ms F, a psychologist, on a referral from his general practitioner. It was the father who initially suggested that Y see a counsellor but he deposed that the mother chose the psychologist and he was not informed at the time.

27. Ms F’s notes in relation a session with Y on 17 October 2018, when Y had not seen his father for two and half months record:

    Y said “Father is my Dad, but he is Scary”

    Father yells at Y

    Father pushed Y over the lounge, Y ran to bedroom

    Previously Father was fine. More recently, father is angry over nothing

    …

    Father pushes Y when no one else is around.

    Y said that father would get angry with him for no reason.

    …

    Y said this would happen once a week for no reason.

    (As per the original)

28. Ms F reported:

    Y said that his parent’s relationship is not good

    When they see each other Father yells at mother and swears at her

    Y said that Mother doesn’t yell at father, and that mother never does anything to father.

    Father is scary

    Y said his father said “Mother took all his money” – and told 7 yr old brother this.

    Y said Father doesn’t take any responsibility for his actions and accuses Mother of being against him.

    Y told his father “it’s not fair” about father’s behaviour towards mother.

    (As per the original)

29. In relation to Y’s relationship with X Ms F reported:

    When Y and X tells the father to stop what he is doing, he gets very angry with them

    Y said that since he stopped going to dad’s, X accusing Y of being a liar

    Y said Father is telling X that Y is lying

    Y said X also gets upset with father when he swears at mum but that she doesn’t mind going to Fathers.

    (As per the original)

30. Ms F asked Y if he had three wishes and Y wished:      

    -Mother and Father to get along, even though they are separated.

    -Father to believe my Mum, not be angry all the time

    -Y and father to get along

    (As per the original)

31. Ms F noted that Y did not want joint counselling with his father and preferred that she did not speak to his father.

32. When Y was seen by Ms F on 1 November 2018 she noted:

    Y said [the father] used to get angry at him in the evening after younger sibling s [sic] went to bed, often when [his new partner] wasn’t around or she would leave them alone.

    Y said the anger would occur every night and once in each contact block, father would push him in anger and Y said he didn’t know why.

    Y said he would never retaliate and would just stay quiet.

    Y said [the father] would shout at [the mother] for nothing. [The mother] would never retaliate.

33. Ms F noted that she explored Y’s current feelings and Y said that he is “…thinking all the time whether he should go back and live [with the father] but he is also scared of what [the father] will do.”

34. Y said he really missed dad but acknowledged that he misses the father who used to spend lots of time with him before separation. Y said that [the father] stopped doing anything with him after separation and would sometimes make him feel bad by going to surf by himself.

35. In relation to a session with Y on 15 November 2018 Ms F noted that Y’s first response, when asked whether he wants to go back to see his father, is “no”. She noted that Y was worried that his father would force him to go back to see him and Y related recent events where a friend of the father came to the house, when he knew Y would be alone, to make representation on behalf of the father. Ms F noted that Y was worried about his mother and feels that she needs to be protected. Y said he feels better that he “has blocked [the father] on his phone but worries about [the father’s] harsh words to [the mother].” He reported throwing up daily because of stress.  

36. On 11 December 2018 Ms F noted:

    Y school refusing, missed some days, stays home, feels better when at home [with the mother], calls [the mother] frequently. Y disclosed incident a few months ago 2 weeks after Y chose to live solely [with the mother]. [The father] had shown up early before end of the school day and tried to take Y [with] him, snatched his phone when Y tried to call [the mother] shouting at Y. Y ran off from [the father] and found [his grandmother’s] car and jumped in. Y’s school reluctance increased since.

    …

    Recently Y said disconcerted when received message from [paternal grandfather] in error where [paternal grandfather] referred to [the mother] as demon…

37. In 2019, the father’s birthday, Y sent a text message to his father with the words “I love you”. The father responded “…that’s not love. If you really cared you would be doing something to rectify the situation”.

38. The mother deposed that on 16 February 2019, Y was in her car during a changeover for Z and W. The mother said that when she returned to her car Y was cowering in the back seat, shaking and crying. Y said:

    Dad bashed his fist on the window saying let me look at you, let me see your hair. He was pulling faces at me and poking his tongue out. He told me to call him sometime. 

39. The mother deposed that the father has “returned photographs of Y as a baby”.

40. On 10 April 2019 Ms F noted that Y recounted an incident where he had encountered his father while he was in his mother’s car dropping the younger children of at a party. Ms F noted:

    Y said that Father came up to the car window and was banging on the window and making faces at him.

    Y told him to stop and go away

    Y said that Father said something about his haircut that Y thought was mean.

    Y said it was something mean because he used a voice that was mean

    Y said stop and go away and Father finally went off.

    (As per the original)

41. On 24 April 2019 Ms F noted that there had been an angry incident the day before. She reported:

    Y said Mother is Angry with Y’s behaviour and worried about trouble Y will get into. When confronted by mother, Y went into a big rage, punched walls. Mother worried hand might be broken, medical attention will be sought. Mother said Y had attitude

    (As per the original)

42. On 31 May 2019 there was an incident at the father’s home. The father does not give his version of the incident in his affidavit evidence.

43. In relation to the event on 31 May 2019 the mother deposed:

    … I had sent my Dad [the maternal grandfather] to collect the children from [the father]. I had asked my Dad to pick up X that day. From what my Dad tells me, when he arrived at [the father’s] house, [the father] came running out the front door. As my Dad went to open the driver’s door, [the father] slammed the door shut back onto him. My Dad said he then saw X come running from the backyard towards the car. [The father] intercepted her running and began to chase X around the car. He was able to get to her and dragged her by the arm. As this happened, my Dad was in shock. He was in shock, drove to the next street and called the police.

    The next day when X had returned to my care, I could see she was still visibly upset. She was quiet and did not engage in conversation with me. She was not her normal self. X and I were in the car together and she started shaking and crying. She said to me “Mum, I felt so scared … I can still see his eyes … he had me backed up against the wall in the kitchen”. Since then, X has said to me that she can still see the look in his eyes and can recall how scared she felt in his house.

44. The police records in relation to their attendance on 31 May 2019 were tendered. The police spoke to the maternal grandfather. The record states:

    He initially told Police that [the father] was threatening him, however when Police further made enquiries in relation to what threats were made, [the maternal grandfather] was unable to recall. Police asked a number of times what was said but [the maternal grandfather] would only say that [the father] was angry and threatening. He was unable to provide any further information as to what was said. He told Police that he was concerned for [X] as [the father] had pulled her away and inside [the home]. …

45. The records indicate that the mother arrived at the home and told police that she wanted X to stay with her that night.

46. Police spoke with the father and noted:

    He told Police that he made a ‘parenting decision’ not to allow [X] to go in the car with [the maternal grandfather] … He further told Police that he did grab hold of [X] to prevent her from getting in the car and pulled her back towards the house due to the decision that he had made. He told Police that he did not use any unreasonable force.

47. The police spoke with X and noted:

    She appeared happy and content. She told Police that she had an argument with her father as she wanted to leave with [the maternal grandfather] so she could go to a commitment early in the morning. She told Police that she was not hurt in any away in relation to the incident but was initially frustrated as her dad wouldn’t let her leave with [the maternal grandfather].

48. The police returned and spoke with the mother and noted that she was dissatisfied that they would not remove X:

    …and continued to claim that the [the father] would be manipulating the children so they would not leave or say what had happened. [The mother] stormed across the road and attempted to return to [the father’s] house to speak to [X] stating that she had every right to see her. Police again followed her to prevent any breach of the peace or further incident.

49. The records indicated that X then spoke with her mother and the record notes:

    [X] later returned to the house and asked her father if she could go to her mothers. [The father] denied this as it was his usual arrangements to have the children. [X] appeared frustrated with this decision but did not attempt to leave at any stage. At this point [the mother] stood out the front of [the father’s] house and began to yell loudly “[X] make a run for it. Im out here waiting”.

    (As per the original)

50. The following day the police interviewed X at the mother’s home. The record notes:

    [X] disclosed to the police that whilst she was at her fathers house she was waiting for her grand father to come and pick her up. The father of [X] told her that she was not to go outside with him as she was staying with him for the night. Verbal argument occurred between [X] and her father. [X] was told to stay on the chair located near the kitchen. Her father said this as it is alleged that he did not want [X] to leave the house and go with her grand father (back to her mothers). [X] freely told police she did get up from the seat numerous times against the wishes of her father. In doing so her father has pushed her backwards into the chair and told her to stay and remain seated. This occurred for a number of times before her father left the kitchen area and walked outside to speak with the grandfather of [X].

    (As per the original)

1. As a result of the incident on 31 May 2019 an apprehended domestic violence order was taken out for the protection of the maternal grandfather against the father. That order expires on 16 September 2020.

2. On 5 June 2019, five days after the incident which occurred on 31 May 2019 Ms F recorded:

   X tried to run to Grandad but father restrained her and dragged her inside the house.

   X said that she just remembered her father’s eyes and how he looked at her, she felt “so scared”. She said she felt like she was going dizzy and that she fell backwards, stepped backwards from her father and hit her head against the wall. X kept saying that her father wouldn’t let her out.

   X talked about the chair, and she said that father makes her sit on the chair if he is upset with her, he made her sit on the chair when she wanted to go to Grandad.

   X said she was scared for Grandad. X said father said “if Grandad steps onto the property I’ll knock him out”

   X said she was scared that her father would hurt Grandad

   X said she was shaking and feeling sick in the stomach and upset.

3. Ms F said that X told her she was feeling sick in the stomach the next day due to being anxious. Ms F noted:

   X said that she feels comfortable and safe at Mother’s house. She said she feels nervous about seeing Father and didn’t want to return there this week. She said she hasn’t been going to school because of her anxiety.

   X said that she wants to spend time with the father but she is scared of his anger.

   X said last weekend was the first time that X truly felt fearful about being harmed.

   X said father gets angry a lot.

4. On 26 June 2019 Ms F recorded:

   X said she is scared to see father

   X said she wants assurance from father that he’s sorry and won’t do it again

5. On 26 June 2019 Ms F wrote to X’s general practitioner seeking a GP mental health care plan. Ms F had first met with X on 5 June 2019. Ms F stated:

   From my emotional and psychological assessment of X, her reported presentation is consistent with symptoms associated with post-traumatic stress. X described experiencing chronic stress associated with contact with her father, re-experiencing of the distressing incident, which has begun to impact her school functioning.

6. On 5 July 2019 Ms F noted:

   X said she is no longer feeling “weak in the knees” but feels more like tight clenching in chest when she is with dad.

   …

   X said angry that father in his anger towards Mother can behave in a way that scares her and hurts his kids.

7. On 2 August 2019 Ms F noted:

   X said she continues to feel torn between her parents

   X said she has been calling Mother from Father’s house, wanting Mother to pick her up

   X says she feels nervous at father’s house but starting to feel better

   X said she is interacting more with [the father’s new partner]

   X reported that she is resuming regular contact to father’s but want to go there less

8. On 12 September 2019 Ms F and X had a discussion about the “pros” and “cons” of living with each parent. In relation to her father’s home X said that the “pros” were:

   Enjoy some things and something…

   Dad is happy > Dad is not angry at me or at mother

   Get on well with [father’s new partner]

   Look after W and Z

   …

   (As per the original)

   The cons were:

   Worry that dad will be angry and aggressive

   Miss Mum and Mum’s comfort

   Miss Y

   (As per the original)

9. In relation to staying at her mother’s home X said the “pros” were:

   Get Mum’s comfort and protection

   Hang out with Y

10. And the “cons” were:

    Dad will get angry at me

    W will want to stay at Mum’s too = Dad angry

11. On 26 September 2019 Ms F noted:

    X said she thinks she should spend one week with Dad, and one week with mum, and that this would be better with less changeover and leaving stuff and not having it with her. X said this would also give her more time with mother without the younger ones there.
    X said that Z and W [sic] were upset when X is not with them but she said that they were okay.
    When asked about how she is coping with her anxiety, X said that she is ok but still feels anxious and this affects her and her thought life at school. X said that she is preoccupied and worried about situation with father and mother.

    (As per the original)

12. Ms F recorded:

    X said she wants more time with her mother but afraid to say because father would be upset with her.

    -X said she worries about people being angry at her if she appears to be taking sides

    -X said her anxiety at father house has decreased but would still like more than 50% of time with mother e.g. (mother/father) 8/6 or 9/5

    …

    -X said when Y did not see father, father was upset and X doesn’t want to make father upset like that

    …

    -(As per the original)

13. Ms F prepared a report dated 4 October 2019 in relation to Y. She stated:

    Y presented with significant anxiety in the context of issues in the interactions he had with his father. Y’s symptoms met diagnosis for an Adjustment Disorder, as he had two months prior made a difficult decision to cease visits with his father. Y also presented with post-traumatic stress symptoms, reportedly from incidents during contact with his father, which had been distressing to Y. Y reported that he had been a witness to upsetting behaviours displayed by his father towards his mother. Y’s anxiety was reportedly causing him to feel sick and nauseas on a daily basis. Y reported symptoms of dry retching at frequent times in the day. These anxiety symptoms were reportedly impacting his functioning at school and with social activities. Y said that he had difficulty feeling motivated to do anything and would be frequently vigilant about his father trying to contact him.

14. Ms F reported, under the heading “Treatment Outcome”:

    Y had reportedly shown significant improvements in his anxiety levels. He said that he no longer felt nauseas [sic] constantly and had resumed interactions with his friends. He said that he had now engaged with sports and was benefitting from this. His mother reported that Y has maintained improved attendance to school this year after a difficult start at the beginning of the year. His mother stated that Y’s teachers have described him as a good kid but that he lacks confidence and this affects his motivation to do his school work. Y expressed that he feels better when he has no contact with his father and when he doesn’t think about the situation. Y expressed that he still longs for his father to demonstrate care and respect towards him and his mother.

15. Ms F stated that Y would benefit from further psychological support.

16. Ms F prepared a report in relation to X on 4 October 2019 when she had seen X for six sessions of therapy. She reported:

    X was referred to my service for psychological counselling following her disclosure about a distressing incident where her father displayed intense anger. X reported that following that incident, she experienced symptoms consistent with post-traumatic stress. She also reported increased anxiety about being separated from her mother. She disclosed that since the incident at her father’s house, she has felt nervous when she was at her father’s house and that she has made phone contact with her mother in distress, asking her mother to pick her up. It was observed that X is hesitant to disclose her feelings. She reported that she is worried about people being angry with her if she appeared to be taking sides. It is likely that X is struggling with the ongoing tension between her parents.

17. Ms F reported:

    Treatment Outcome:

    X reported that there has been no further distressing incidents regarding her contact with her father, however there has not been any attempt at communication or resolution regarding the triggering incident. While X reported that she is now coping better with her anxiety during contact with her father, she said that her relationship with her father remains strained. X expressed that she seeks to spend less time at her father’s house and would like to have more contact with her mother to support her emotional needs.

    X has identified emerging needs as a young girl entering her pre-teen years, for which she feels most comfortable going to her mother, rather than anyone else. X has also reported as sense of over-responsibility for her younger siblings’ emotional needs and has expressed that she enjoys some reprieve form that responsibility when she is with her mother.

18. On 20 November 2019 Ms F spoke with Z. She reported:

    Z was guarded when asked about his family.

    Z said he feels nervous when Father gets angry with him for not wanting to go to the beach.

    Z said he felt nervous when Mother and Father argued when he was little. Z did not say if parents still upset him but said they did not get along.

19. The mother deposed that on about 23 December 2019, she went to the father’s house to collect Y’s fishing spear during a changeover. Y stayed in the car. Z and W came running back to the car saying “Dad said to tell you he doesn’t know who Y is”. The mother deposed that Y’s face “went blank looking”.

20. The mother deposed that in the last term of 2019 there were several occasions where she was unable to leave X at school and had to seek assistance from the school counsellor.

21. On 2 September 2019, the mother deposed that she took X and Z to school and Z refused to get out of the car. He curled up on the floor. The mother sought assistance from the school counsellor. X also became upset saying “I just want to be with you”, “I don’t want to leave you”. After about half an hour X was persuaded to go to class provided that the mother agreed to collect her after school, although it was an afternoon she was to go to her father.

22. The mother deposed that when she returned to the school that afternoon:

    X was waiting with her teacher at the office for me to pick her up, attempting to avoid her father. As a result of the incident W and Z also became distressed and [the father] left W and Z in the office with X and her teacher just prior to my arrival. On my arrival I was greeted by [the father] calling out to me “You’ve done this.” “You can take them all now.” “They won’t go without X”.

23. The mother took all three children home with her.

24. The mother deposed that she has had several meetings with Z’s teacher and school counsellor about Z’s anxiety.

25. On 20 March 2020 Ms F noted:

    Y said he had been missing some school days because he is sick a lot – off for 1 week, went back 1 day, then got sick again. Y said he has missed 3 - 4 weeks this term. Y says that he feels lost with school work. He says he can’t focus.

26. In about May 2020, the mother started making enquiries about schools closer to her home with a view to removing Z and W from their current schools which are close to the father’s home. She advised the father of this in June.  On 24 June 2020, she sent a text to the father outlining her reasons for changing the schools. It would appear that she also, without first having any discussions with the father, discussed the possibility of changing schools with Z.

27. The father did not agree to a change of school for the younger children but in relation to Y he messaged:

    We certainly need to be having a discussion around Y’s best interests for school. Perhaps B School is a consideration. H School and D School are other alternatives. I would be interested in having a discussion with you about possible options in an effort to improve Y’s schooling.

28. On 25 May 2020, there was an incident at the school when both parents arrived to collect Z. He eventually went home with his mother. The school suggested that an alternate collection point be arranged and that it was inappropriate for the school to be placed in the role of intermediary.

29. Y’s school has sent several letters to the parents indicating that Y is at risk of being eliminated from various subjects in the School Certificate because he has not completed the work.

30. On 2 July 2020 Ms F noted in relation to X:

    When asked if X feel comforted when she is hugged, X nodded. When asked whether she get comfort at mother’s house, X nodded. When asked if there is anyone at school she can get comfort from X shook her head. When asked if X feels comfortable going to anyone for comfort in dad’s house, X shook her head.

CONSIDERATION

1. The primary considerations found at s60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) require that there be a balancing of the benefit to the children of having a meaningful relationship with both parents against the need to protect them from physical or psychological harm from being subjected to or exposed to abuse or family violence.

2. As has been made clear by the Full Court, the expression “meaningful relationship” does not mean “optimal” but rather, as their Honours stated in McCall & Clarke (2009) FLC 93-405, one which is significant, important and of consequence.

3. There are a number of expressions of the children’s views.

4. Y wants to mend his relationship with his father but does not want to spend time with him against his will. The father accepts Y’s position.

5. The father deposed that X has told him on a number of occasions that she hates the present regime of time and wishes that she was still spending a whole week with him.

6. However, X has also told her counsellor and her mother that she wants to spend more time with her mother. X has also said that she is afraid that his father will be angry with her if she stays with her mother and that he will not be angry with her, or her mother, if she stays with him.

7. Z has, at least on one occasion, refused to go with his father after school. X told Ms F that W and Z will refuse to go with their father if she is not there, as actually happened on 2 September 2019.

8. There is little evidence at this time about the nature of the children’s relationships.

9. It is clear, however, that Y’s relationship with his father is fractured. It would seem from Ms F’s reports of X that X, at the present time, does not regard her father as a person from whom she can seek comfort. Z has expressed some fear of his father.

10. Until 10 June 2020, the arrangements for the three younger children were settled in that they were spending equal time with both parents. On behalf of the father, it was submitted that reinstating that arrangement will provide stability for them and a return to normality.

11. However, I do not accept that submission. On the basis of the limited evidence currently available, the equal time arrangement has not been working well for X or for Z. Nothing in the proposals of the father addresses the difficulties that X and Z are experiencing.

12. Only W seems to be unaffected by the problems that the older siblings experience.

13. It is of some concern that X appears to feel that she is responsible for Z and W going to their father and that she is responsible to appease what she perceives as her father’s anger.

14. A continuation of the regime whereby the younger children spend four consecutive days each fortnight with the father might ameliorate the position of X and Z. Until such time as there is expert evidence that remains speculative.

15. One advantage of the current regime is that all four of the children are spending more time together whereas, in the past, since August 2018, the younger children have spent half of their time away from Y.

16. However, it is clear that reverting to the former arrangements has no prospect of improving the situation.

17. In relation to Y, no change in his circumstances is proposed. Neither does there appear to be any clear plan in place to address Y’s problems at school.

18. There are concerns raised about the capacity of both of the parents to provide for the children’s emotional needs.

19. The father suggests that the equal time arrangement was necessary to support the mother’s fragile mental health and give her respite from the pressures of caring for the children.

20. When the parents met, the mother was suffering from Post-Traumatic Stress Disorder (“PTSD”) arising from her employment in the police force. She started receiving counselling for PTSD in 2002.

21. The mother’s current treating psychologist, Mr G, prepared a report dated 26 August 2020. He concluded that the mother:

    …has maintained the PTSD in remission despite the current interpersonal difficulties she experiences with her ex-husband. Clearly she has been effective in applying the range of management strategies, help seeking and trigger/symptom resolution strategies she has learnt through her extensive therapy. Accordingly, there is little reason to believe she would not continue to be effective in managing her mental health.

22. The father appears to have demonstrated little insight into the effect of his behaviour on the older children. He appears to hold the mother responsible for the present breach in his relationship with Y. He denies any suggestion that Y could be afraid of him. His insistence that Y’s difficulties with him relate to his attempts to limit Y’s screen time are a further illustration of his lack of insight, as are his responses to Y’s attempts to reach out to him, as for example, his response to the text on his birthday.

23. However, it is not clear that the father has been made aware of the matters which are recorded by Ms F and it may be that, now that the father has material which would give him a better understanding of Y’s perspective, he can take steps to address the issues with Y. The father deposed that the mother did not tell him that Y was seeing Ms F until 15 December 2018. He deposed that he has sought to be involved in Y’s counselling but that has not eventuated, whether because, as he believes the mother has thwarted his efforts or because, as Ms F reported, Y does not want him involved.

24. Similarly, it is not clear that the father is aware of the difficulties that X is experiencing. However, that is a concern if X does not feel she can discuss her feelings with him because he will get angry with her.

25. There is a family violence order against the father in relation to the children’s maternal grandfather. Y makes allegations of violent behaviour of the father towards him, which the father denies.

26. The mother asserts that the father’s behaviour has been abusive both in language and in the frequency and tone of his communications with her.

27. There is some corroboration of the mother’s position in the material reproduced by the father’s employer in relation to communications from the father to his then Manager of the same tenor. It is also of some concern that Y has spoken to Ms F about his concerns about the way his father speaks to his mother and his perception that his father is “angry all the time”.

28. The arrangements which were put in place when the parents separated are no longer meeting the needs of the children.

29. Until such time as there can be a full investigation of the pathology of the children’s difficulties, it is appropriate that the three younger children spend less time with the father and that such time as they spend with him should be spent by all of them together since there is some evidence that Z and W gain some comfort from X’s presence.

30. A block period of four days in each fortnight is sufficient to maintain the children’s relationship with their father until such time as this matter can be finally determined.

31. The current arrangement is that the children spend their holidays equally with each parent. Nothing in the evidence suggests that position should be changed.

32. Neither do I propose to allow the children’s schools to be changed. Ultimately, what schools they attend may depend on where they live for most of their time but that matter remains to be determined.

33. There is a dispute about the arrangements for Christmas. Neither party addressed any submissions to the respective merit of his or her position but I propose to make orders so as to relieve them of any need to approach the Court again.

34. The father’s position is that the children should be with the mother in 2020 and even years thereafter from 4pm on Christmas Eve until 2pm on Christmas Day and in odd years from 2pm on Christmas Day until 10am on 26 December. 

35. The mother’s position in that the children, in even years, be with the father on Christmas Eve from 9am to 3pm and on Christmas Day from 3pm until 3pm on 26 December. In odd years she proposes that the children be with the father from 5pm Christmas Eve until 3pm Christmas Day.

1. The mother’s proposal involves more changeovers and is unnecessary restrictive,

2. Orders will be made in accordance with the father’s proposal.

3. All parties are agreed that this matter should be heard in the Federal Circuit Court and accordingly the proceedings will be transferred to that Court.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 14 September 2020.

Associate: 

Date:  14/09/2020