Dimelis & Dimelis
[2023] FedCFamC1F 187
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dimelis & Dimelis [2023] FedCFamC1F 187
File number(s): ADC 3438 of 2022 Judgment of: BERMAN J Date of judgment: 23 March 2023 Catchwords: FAMILY LAW – CHILDREN – Interim – where the mother found the father’s journal entry which deposed to harming and killing himself, the mother and the children – where the father acknowledges the journal entry is concerning – where the father denies any intention to carry out the activities described in the journal – where the father’s psychologist opines the father suffers from a mental health condition and anxiety – where the psychologist did not consider the father was capable of self-harming or harming others – where the father also underwent psychiatric assessment – where the psychiatrist opines that the journal entry was comprised of the father’s mental health condition-related fears – where the psychiatrist did not consider that the father would harm the children – where the parties attended a Family Assessment Report – where the report writer considers that the father’s time with the children should not be supervised – Consideration of Marvel v Marvel (2010) 240 FLR 367 – Orders. Legislation: Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 67U Cases cited: Marvel v Marvel (2010) 240 FLR 367
Starr & Duggan [2009] FamCAFC 115
Division: Division 1 First Instance Number of paragraphs: 97 Date of hearing: 7 March 2023 Place: Adelaide Counsel for the Applicant: Ms Lewis Solicitor for the Applicant: Resolve Divorce Lawyers Counsel for the Respondent: Mr Ahmad Solicitor for the Respondent: Cleofe Parsons Legal ORDERS
ADC 3438 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DIMELIS
Applicant
AND: MS DIMELIS
Respondent
order made by:
BERMAN J
DATE OF ORDER:
23 March 2023
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.Order 12 of Orders made 23 February 2023 be discharged.
2.The mother and father have equal shared parental responsibility for X born 2018 (“X”) and Y born 2019 (“Y”) (collectively “the children”).
3.The children live with the mother.
4.The children spend time with the father, as and from Wednesday 29 March 2023, as follows:
(a)In week 1:
(i)from 8.15 am to 6.30 pm on Wednesday.
(b)In week 2:
(i)from 8.15 am to 6.30 pm on Wednesday; and
(ii)from 8.15 am on Friday to 6.30 pm on Saturday.
5.When in the father’s care, the children will reside at the home of the paternal grandparents.
6.Whilst at the home of the paternal grandparents, the father’s time with the children will be the subject of substantial supervision such that one or both of the paternal grandparents must be at the home at all times, but not necessarily in the physical presence of the father, and the children PROVIDED THAT on any occasion when the children are in the father’s care away from the home of the paternal grandparents, the father’s time is to be the subject of strict supervision by one or both of the paternal grandparents.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Dimelis & Dimelis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Dimelis (“the father”) and Ms Dimelis (“the mother”) are the biological parents of X born 2018 and Y born 2019 (collectively “the children”).
The parties were married in 2015 and separated in mid-2022. They are unable to reach agreement in respect of the future parenting arrangements for the children and the division of property.
By Initiating Application sealed 3 August 2022, the father seeks leave to further particularise final parenting orders and orders by way of property settlement at a later time.
By way of interim relief, the father sought orders summarised as follows:-
(1)That the parties have equal shared parental responsibility for the children.
(2)That during the period of the adjournment:
2.1The children live with the mother;
2.2The children spend time with the father as follows:
2.2.1Each Wednesday from 9.00 am to 3.00 pm or 11.00 am until 5.00 pm;
2.2.2Each Friday from 9.00 am to 5.00 pm; and
2.2.3Sunday from 9.00 am to 5.00 pm.
In addition, the father seeks that the children communicate with him via FaceTime on two occasions per week.
Consistent with the significant involvement of the paternal grandparents, the father sought that handover is to occur between the paternal grandparents and the mother, to the exclusion of the father.
By Response to Final Orders sealed 2 September 2022, by way of interim relief, the mother seeks orders that she have sole parental responsibility for the children, that they live with her but that the father’s time with the children should be restricted to video communication on two occasions each week until the father has undergone a psychological and psychiatric assessment directed to the following issues:-
(1)A summary recording the reasons for the father’s presentation and treatment;
(2)Any relevant diagnosis;
(3)Recommended treatment and prognosis; and
(4)Any relevant aspects that relate to the father’s functioning and capacity to appropriately parent the children on an unsupervised basis.
On 7 September 2022, the parties entered into a Consent Order during the period of the adjournment that provided for the children to live with the mother and spend time with the father, supervised by the paternal grandparents, as follows:-
(1)Commencing Friday 9 September 2022, each Friday from 9.00 am to 4.00 pm; and
(2)Commencing Sunday 16 October 2022, each alternate Sunday from 9.00 am to 1.00 pm.
Agreement was also reached that the father would attend upon Dr C for the purposes of a psychiatric assessment and a report being undertaken.
It appears that thereafter the mother reflected upon her relationship with the father and considered that he presented as a significant risk to the children. As such, the mother withheld the children from the father and filed an Application in a Proceeding sealed 30 January 2023 seeking that the father’s time with the children be suspended until a police investigation concerning the father’s alleged misconduct was completed.
The father filed a Response to the Application in a Proceeding sealed 7 February 2022 seeking that the mother deliver up the children pursuant to the Order of 16 November 2022 and in the event that the mother did not comply with the order for delivery up then a recovery order pursuant to s 67U of the Family Law Act 1975 (Cth) (“the Act”) be issued.
The interim proceedings were heard on 23 February 2023. On that occasion orders were made discharging paragraph 4 of the Orders made on 17 November 2022 and ordering for the children to spend time with the father as follows:-
(1)Each Friday from 8.00 am to 6.00 pm; and
(2)Each Sunday from 9.00 am to 5.00 pm.
with the father’s time to be supervised by the paternal grandparents as set out in the Orders made 16 November 2022.
The father had filed an Amended Response sealed 17 February 2023, that provided for a significant increase in the time that the children would spend with him and in particular, that the father’s time not be the subject of supervision.
The mother filed a Reply sealed 3 March 2023, seeking orders summarised as follows:-
(1)That all previous orders requiring the children to spend time with the father be discharged.
(2)That the children spend time with the father under professional supervision with Mr D, each Saturday commencing 11 March 2023 from 10.00 am to 1.00 pm and subject to his availability.
(3)In the alternative to orders 1 and 2:
(a)the Amended Response filed by the father on 17 February 2023 be dismissed;
(b)the children continue to spend time with the father as per order 12 of Orders made on 23 February 2023.
Each of the parties were represented by experienced counsel who made detailed and forceful submissions on 7 March 2023 as to the interim arrangements for the children to spend time with the father.
Noting that the property settlement proceedings are listed for a Financial Conciliation Conference on 5 April 2023, I have listed the substantive applications of the parties for final hearing to commence on 18 September 2023. Accordingly, the interim parenting arrangements will likely be in place for a period of about six months.
BACKGROUND
The parties separated in mid-2022. The mother remained in the former matrimonial home with the children. The father took up residence at the home of the paternal grandparents where he currently resides.
On the day of separation, the mother applied for an interim Intervention Order and five days later, an Intervention Order was made naming the mother and the children as protected persons. The mother contends that throughout the marriage she suffered verbal, psychological, and financial control by the father that she considers constitutes family violence.
The mother also considers that the father’s conduct included non-consensual sexual intercourse.
The parties agreed that they would seek marriage counselling to assist in the difficulties that they were experiencing. The father attended personal counselling with Ms B. The parties also agreed to attend couples counselling with Ms E.
It seems that part of advice given by Ms B to the father was that he should keep a journal of his feelings, experiences and concerns.
Following an argument in mid-2022, the mother first became aware of a journal entry made by the father containing the following remarks:-
Harm:
- Suicide by slashing wrists and hanging
- Raping [X] or touching inappropriately
- Stabbing [Y] in neck
- Killing and dismembering family
- Smothering [X]
- Killing parents in sleep
- Cutting tops or envisaging tops of heads not on …
- Leading or allowing [Y] to go in front of a car
- Concern that I was cannabalistic (sic) or was eating human flesh when eating meat
- Going balistic (sic) and stabbing people at [celebration]
- Being drilled into with a power drill
- Hurting kids with a power drill
- Having an affair with my therapist [Ms B]
- Worry about kids drowning or doing something to inflict that
- Pushing wife into water and stabbing
- Fear of sleep walking and hurting family
Sleep:
- Fear of dying in sleep
- Fear of Not sleeping
- Fear of having dreams
- Fear of becoming a sleep deprived zombie
- Fear of fire whilst asleep killing us
The mother took a photo of the diary entry and then determined that she would separate from the father.
In mid-2022, the mother transferred all available funds in the father’s bank account to her account. Later, the mother called the police and they attended at the former matrimonial home where she then showed them the diary entry.
The father left the former matrimonial home.
The father acknowledges that the list of thoughts, as set out in the journal entry, is concerning. He denies that there was ever any intention to carry out any of the activities described. He seeks to underpin his explanation by reference to the therapy he had been engaging in with Ms B who encouraged him to set out his thoughts and day to day concerns as a method of managing his mental health, anxieties, and the emotional sequelae arising from the dysfunctional relationship with the mother.
There is a dispute between the parties as to the extent of the mother’s knowledge of the journal entry. The mother’s position is that she did not have prior knowledge of the content of the journal entry, whereas the father contends that the mother encouraged him to write down his thoughts in his journal and that this was done in her presence. The father’s therapeutic explanation is that he was encouraged to write down his thoughts and then notionally dispose of each of them in an imaginary bon fire.
The father denies the mother’s allegations that he perpetrated family violence by way of emotional and financial abuse or that he was coercively controlling of her.
The parties are not agreed as to the extent of their joint and several involvement in the ongoing parenting of the children up to the date of separation. To some extent, the dispute between the parties is not an issue requiring determination on an interim basis.
The overarching concern of the mother, which underpins her opposition for the children spending significant unsupervised time in the care of the father, is that the children will not be safe in the father’s care in circumstances where he has not addressed his mental health issues.
INTERIM PARENTING
In Marvel v Marvel (2010) 240 FLR 367, the Full Court considered the approach to be adopted when presented with contested evidence on an interim hearing:-
[120]As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
I consider that a cautious approach should always be adopted in circumstances where the evidence has not been tested. That does not mean that the Court is not able to make an appropriate interim order. Whilst a Court should generally be risk adverse and cautious, that does not mean I am obliged to only make orders consistent with the current arrangements.
The competing applications of the parties must be considered pursuant to s 60B of the Act which outlines the objects and principles underlying Pt VII of the Act.
Section 60CA of the Act requires that in deciding whether to make a particular order, the best interests of the child is the paramount consideration. In order to determine what is in the child’s best interests, the Court must consider the provisions of s 60CC of the Act as to the primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).
In Starr & Duggan [2009] FamCAFC 115, the Full Court gave clear direction as to the co-existent principle that the best interests of the child is the paramount consideration and the legislative framework will, of necessity, involve some overlap of a consideration of similar factors pursuant to s 60CC of the Act. The approach is not meant to be rigid such that:-
38.… it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:-
•first make findings concerning the relevant s 60CC factors;
•then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
•then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) - which may be done by referring back to the earlier s 60CC findings.
PARENTING CONSIDERATIONS
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to additional considerations under s 60CC(3) of the Act; and
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised, then it must be the subject of delineation and comment.
The consideration of evidence adduced by each of the parties is necessarily tempered by the Court’s inability to test the evidence at an interim hearing and as such, the evidence and issues raised by each of the parties is to be approached with caution.
MOTHER’S FURTHER ALLEGATIONS
The mother sets out her primary reasons for opposing the father having unsupervised time as follows:-
(1)That the father could engage in an act which could harm the children;
(2)That the father may revert to previous thoughts about hurting the children;
(3)That the father is unable to independently look after the children;
(4)The associated risks with the mother’s allegations that the father has coercive controlling tendencies and tendencies to manifest this into sexualised harm; and
(5)The mother’s anxiety that the children are at risk of harm in the father’s care.
In her affidavit filed 27 January 2023, the mother expands upon the history of the relationship with the father. Specifically, she contends that she suffered verbal, psychological, sexual and financial control by the father.
In early 2023, the mother attended a police station and gave a history of non-consensual sexual assault and intercourse.
The mother apparently kept a journal and refers specifically to an unwarranted sexual encounter which occurred between late 2009 and early 2010. The mother records a further incident in late 2010 and then multiple occasions between late 2019 and mid-2019, when it is alleged that the father engaged in non-consensual sexual activity with her.
The father denies that there was any sexual engagement between the parties which was non-consensual.
Annexure “B” of the affidavit of Mr F filed 16 March 2023 annexes correspondence from Officer G that the father has been charged with multiple counts of serious sexual offences.
By reference to annexure “E”, the father’s solicitor does not agree that the father has been charged and the matter is awaiting adjudication by the prosecution section. An Interim Intervention Order was made in early 2023 with the mother as the protected person.
The mother raises concerns that the children may be at risk of sexual abuse by the father in circumstances where Y told the mother that during a visit with the father he was taken to the toilet in the absence of the paternal grandparents. On another occasion, the mother noticed that X had returned home with a button on the back of her dress having been undone and that she was wearing different underpants.
On 22 January 2023, X returned to the mother’s care with her dress and underpants wet. The paternal grandmother advised the mother that X has spilt a drink bottle on her in the car.
The mother’s concerns are not necessarily at a point wherein the mother considers that the father presents as an unacceptable risk to the children by reason of sexual assault or abuse but rather, the cumulative effect of the father’s journal entry and perhaps a heightened vigilance in terms of the observations of the children and their reporting of time spent with the father, appears to have significantly heightened the mother’s anxiety.
For the purpose of the interim proceedings, it is reasonable to find that the mother’s anxiety about the father and his time with the children is genuine and given that until the evidence can be properly tested, the children will remain in the mother’s primary care and as such her ability to parent the children but also to support their ongoing relationship with the father and his extended family, is a relevant consideration to be brought to account when considering the best interests of the children.
ABUSE PREVENTION PROGRAM
As a result of the AVO, the father was referred for an assessment in relation to determine his suitability for entry into an intervention program.
The father’s assessment was conducted by the team leader of the Abuse Prevention Program. The assessment report is annexed to the father’s Affidavit of 2 August 2022. The author was shown the journal entry of the father and was aware of the mother’s allegations that she was subjected to psychological and financial abuse during the marriage.
The father was assessed as being honest in his presentation and in particular, the father was recorded as believing that he had been suffering from anxiety and a form of a mental health condition.
He denied the mother’s allegations of financial control or that despite the worrying content of the journal entry, denied that he had any suicidal ideation or intention to hurt or harm the mother or the children.
The father was not recommended for entry into the Abuse Prevention Program because the author was satisfied that he was accessing appropriate services and that a duplication would be unhelpful.
REPORT BY MS B
Ms B (“the therapist”) is a registered clinical psychologist. The father had attended upon the therapist to assist him in negotiating the stress and anxiety that he was experiencing regarding his relationship with the mother. According to the therapist’s report, annexed to the father’s affidavit of 19 September 2022, the father had attended for counselling on eleven occasions between May and July 2022.
The therapist appears to have been satisfied that the father had provided an unabridged history outlining his anxieties and mental health condition.
The apparent construct of the therapeutic intervention concerned Psycho Education that was directed to the identification of the sorts of behaviour and conduct which might accompany emotional and narcissistic abuse.
Of some significance is the explanation by the therapist of the apparent therapeutic assistance by the father keeping a journal which reflects his thoughts, both positive and negative.
The therapist was asked to comment in the report, specifically on the therapeutic role played by journal therapy. Her response, as at Part F of the report, is as follows:-
As is common with emotional abuse, clients experiencing this will often present to sessions with a journal or notes without any prompting and [the father] was no different. Often with emotional abuse, clients are feeling very confused and will often resort to writing things down in order to ‘make sense’ of everything and to remind themselves of the facts of what is happening to them and around them, but also to track how they are feeling. In [the father]’s sessions he would often bring his journal to help him recall what had happened during the week and also any notes about points he wanted to bring up in sessions. As [the father] was already in the practice of using a journal and doing regular journaling, as are many clients experiencing emotional abuse, I encouraged him to keep doing this as a way of him getting the mental relief of not having to remember everything, and also a way of self-reflecting on his feelings/emotions and thoughts. …
The therapist was assisted by a comprehensive psycho metric assessment following further consultations in August and September 2022. The assessment included the use of standardised tests to measure depression, PTSD and the extent to which the father suffered from his mental health condition.
The therapists’ assessment was that the father’s experience of symptoms consistent with the mental health condition occurred solely in the context of the father experiencing extreme anxiety before separating from the mother.
The therapists’ assessment at page 7 of her report, following the completion of a Personality Assessment Inventory (“PAI”) on 23 August 2022, is as follows:-
… . The PAI clinical profile revealed no elevations that should be considered to indicate the presence of clinical psychopathology. The assessment’s validity indicators detected possible defensiveness in the sense that it is unusual for respondents to respond in generally trouble-free and report a complete absence of dysfunction. I considered this information, and given the authentic manner in which I believe [the father] presented his account I elected to overlook the comments in the system-generated interpretive report. It seems plausible that [the father]’s assessment reflected a strongly positive outcome due to the strong recovery and resilience he was experiencing, and I believe this would have boosted his sense of well-being and self-confidence.
The therapist did not consider that the father met any criteria for a diagnosis of mental illness although it is likely that a different assessment would have been made at a time leading up to the separation of the parties.
The therapist considered that the father was recovering well from his traumatic experience and considered that the florid and disturbing statement in the journal entry may well have explained by the level of stress experienced by the father sufficient to cause intrusive thoughts.
The therapist did not consider that the father was capable of self-harm or of harming others in his family and that the upset and dismay expressed by the father at the content of the journal entry was genuine.
The substratum of the assessment by the therapist was that the father’s anxieties and conduct were his reaction and response to the psychological abuse of the mother.
It is unlikely that the interests of the children will be served by a dissection of the alleged elements of dysfunction in the presentation of each of the parties. What is important, is to assess whether either of the parties present as a risk to the children and if so, the extent to which that risk, if found to exist, can be safely managed to enable the children to maintain a meaningful relationship with each of the parties.
DR C
At the commencement of the proceedings, the mother sought that the father undergo a psychiatric assessment. By joint letter of instruction dated 19 September 2022, the solicitors for each of the parties sought an independent psychiatric report. Dr C’s report dated 23 September 2022, is annexed to the affidavit of Ms H filed 27 September 2022.
Dr C was provided with court documents that as at September 2022, were comprehensive of the Court file. Upon completion of a mental state examination Dr C did not consider that the father presented with any disorder, delusion or that there was any evidence of psychosis or perceptual abnormalities.
Not dissimilar to the therapeutic assessment by Ms B, Dr C diagnosed the father as having a mental health condition brought about by emotional distress consequent upon the breakdown of the relationship with the mother. The importance of the diagnosis and its relevance to the journal entry is summarised in paragraph 15 of Dr C’s report as follows:-
From late March 2022, [the father] developed symptoms of [a mental health condition]. Initially, he became aware of his own thoughts, which had turned into being a violent nature, and sometimes, including a sexual theme. (These are what are known as ego-dystonic thoughts because the thoughts itself is associated with a high degree of anxiety, as it is not a thought that he wanted to have.) He accepts that these were his own thoughts (which differentiates it from a psychosis) and the manner in which he was distressed that he would have such a thought, being fearful of what would happen if he acted on the thought, is characteristic of this type of […] thought. Compensatory behaviours to limit the opportunity to have such thoughts (and therefore to limit the associated distress) then developed. As one of his [thoughts] involved the idea of doing something with a knife, he avoided knives, and he avoided the kitchen. A […] thought about smothering meant that when he put the children to bed, he made sure that the pillows were well away from the children, and he backed out of the room so that he could have a final look to ensure there were no pillows near the children.
(Emphasis as per original)
Dr C did not consider that the father currently suffered from any diagnosis of mental illness, did not require medication, and was clear in his assessment that the father was not going to act on the ideas that were present in the journal entry.
Dr C considered that the father would not harm or put his children at risk.
FAMILY ASSESSMENT REPORT
The parties were keen to obtain a Family Assessment Report in respect of the dynamics of the parties and the children and jointly instructed Ms J to undertake the assessment. Interviews were conducted in November 2021 and the report identifies that Ms J received the relevant court documents together with the psychiatric assessment of the father by Dr C, the report from the Abuse Prevention Program, and a report from the father’s therapist.
Ms J considered the separate proposals of the parties which at that time, consisted of the father seeking that the children live with the mother and spend time with him on Wednesdays, Fridays and Sundays and the mother’s proposal that the children live with her and spend supervised time with the father pending psychiatric and psychological assessment and treatment.
Ms J explored the allegations of family violence made by the mother and her position is summarised at paragraph 65 to 70 of the report, annexed to the father’s affidavit of 7 February 2023, as follows:-
65.[The mother] reported that in retrospect she considered the father’s behaviour to have been “controlling” during their relationship, in that “he needed to know where I was. She agreed she had freedom of movement, but that his interactions with her friends were focused on expenditure (“he’d make them pay (for dinner)”). She noted both parties looked at each other’s phones, and that whilst he would discuss “big decisions” relating to the parties with his parents, he disliked her doing the same.
66.She furthered that he would remove her credit card “if I wasn’t using it”. She agreed that prior to the relationship, he had established bank accounts in his sole name and during the relationship he had primarily managed the couple’s finances. She added that 18 months prior to separation she had wanted access to the bank details, and he had refused. She considered the father’s approach to their household was “old school”, in that he preferred to manage their finances as the primary earner. She considered she “felt I did not have a choice” in this regard, and had “allowed” this arrangement to continue by not openly objecting to it.
67.She noted the father used to refer to her as “the Nark” which she found verbally abusive.
68.Whilst [the mother] indicated she had felt fearful of the father towards the end of their relationship, her ensuing narrative did not detail this (rather she relayed her disagreement with the father’s family).
69.Aspects of physical abuse and indicators of lethality/dangerousness were not apparent, apart from her reported experience of “marital rape”. She confirmed the father had not breached the Intervention Order.
70.Similarly to [the father], [the mother] noted that apart from her disagreement with the paternal family, conflict/disagreements between the parties was absent; rather, the relationship was “very easy”. She added that she had wanted to leave the relationship when the disagreement with the father’s family occurred as she felt the father was “not prioritising me and [X]”. She noted that when disagreements occurred and the father became angry, he would “leave the house and go for a run”.
Ms J was able to interview X notwithstanding that at the time of interview, she was over four years of age.
Ms J recorded that X spoke in a positive manner about her mother and maternal grandmother. No concerns were identified. Similarly, X spoke positively about the father and that following the separation of the parties, she missed him.
X did not express any fear or concern about going to the father’s home. In particular, X did not consider that either of the parties caused her to be fearful.
The brief assessment of the children by Ms Kay was underpinned by the observations of interaction. It is a reasonable assessment that the children were observed to have a close emotional attachment with each of the mother and the father.
X was recorded as having told the father that she missed him.
The children were uncertain as to why the parties were no longer together.
Ms J did not consider that there was any need for the father’s time with the children to be supervised and that ideally there should be an incremental progression until the children were spending five nights per fortnight with him.
The overarching assessment of Ms J was that there was an absence of risk factors such that she considered that the parties should engage in co-parent counselling to assist in their post separation relationship.
CONSIDERATIONS
The mother does not suggest that the children should have no relationship with their father. She acknowledges that at present, she is unable to accept that the father is not a risk to the children, and I accept that she continues to ruminate over the relationship and conduct of the parties before separation. The journal entry likely had a significant impact on the mother and that her view that the father perpetrated family violence including sexual assault, heightens her anxiety.
The mother at present is not prepared to accept the opinion of the father’s therapist, Dr C and Ms J, that the father does not present as a risk to the children and that his time with them should be unsupervised.
The mother seeks that the father’s time remain as supervised and whilst her primary position is that the father’s time should be the subject of professional supervision, in the absence of any evidence as to the availability and cost of professional supervision together with the lack of an assessment which would assist the Court in understanding the impact that such an arrangement would have on the children, the focus now turns to the mother’s alternate position that until trial, namely that the current Orders should remain in place with the father’s time being supervised by the paternal grandparents.
I do not ignore that the mother now contends that there is a level of hostility or at the very least that there is unpleasantness between the mother and the paternal grandparents. I also note her concern that she considers there is inadequate supervision by them of the children’s time with the father.
I do not minimise the mother’s concerns but I also place weight on the unchallenged evidence of the paternal grandfather as to his favourable observations of the time that the children have spent with the father.
The clear focus is to consider the future parenting arrangements that will enable a meaningful relationship between the father and the children to be maintained.
The observations of Ms J underpin a finding that there is a close emotional attachment between each of the parties and the children and that they are keen to engage with the father as much as is possible.
Ms J did not observe any level of fear on the part of the children towards their father but did record that X missed him.
The father intends to remain at the home of his parents for the foreseeable future and certainly up until the final hearing.
The father seeks an extension of time with the children as set out in the Amended Response.
I bring to account the mother’s concern and anxiety. Whilst I do not consider this should be a determining factor, even so, the children’s interests will be served by the mother’s anxiety being lessened rather than heightened.
I propose to put in place an order that the children will spend time with the father each Wednesday from 8.15 am to 6.30 pm and in each alternate week from 8.15 am on Friday to 6.30 pm on Saturday.
The father’s time with the children will be supervised by the paternal grandparents and whilst I do not consider that the father’s time whilst at the home should be the subject of strict supervision, there will be a requirement that at least one of the paternal grandparents will be present in the home.
On any excursion away from the home, the father’s time with the children will need to be under the strict supervision of the paternal grandparents.
I make orders as appear at the commencement of these reasons.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 23 March 2023
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