Dione & Massoud (No 4)
[2023] FedCFamC1F 139
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dione & Massoud (No 4) [2023] FedCFamC1F 139
File number(s): SYC 9655 of 2021 Judgment of: SCHONELL J Date of judgment: 10 March 2023 Catchwords: FAMILY LAW – PARENTING – Unacceptable Risk –Where the children’s mother had issues with alcohol and has passed away – Where the father has an extensive criminal history and was released from prison a few months before the mother passed away – Where the older child has placed himself with the father and has strong hostile views of the maternal family such that he has rejected them – Where the maternal grandmother and maternal aunt seek for the younger child to live with them and spend no time or limited time with the father – Where the father seeks that the child live with him and spend some time with the maternal family – Where both parties contend that there are significant risk factors posed by the other party – Where the Independent Children’s Lawyer (“the ICL”) contends that the father poses an unacceptable risk to the child – Where the Court is satisfied that the father poses an unacceptable risk of harm to the child– Consideration of primary and additional considerations under s 60CC of the Family Law Act 1975 (Cth) – Where it is in the best interests of the child that the child live with maternal grandmother and aunt and spend supervised time with the father.
FAMILY LAW – COSTS – Where the ICL sought an order for his costs – Where impecuniosity is not a reason for why the Court should not make a costs order – Where the appointment of an ICL was sought by the father and not opposed by the grandmother – Costs ordered as sought by the ICL in a fixed sum.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA, 117 Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Fitzwater v Fitzwater (2019) 60 Fam LR 212[ 2019] FamCAFC 251
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4
Potter and Potter (2007) FLC 93-326; [2007] FamCA 350
R v Qutami (2001) A Crim R 369; [2001] NSWCCA 353
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 356 Date of hearing: 20 – 23 February 2023 and 3 March 2023 Place: Sydney Counsel for the Applicants: Mr Watkins Solicitor for the Applicants: Solari & Stock Lawyers Counsel for the Respondent: Mr O’Reilly Solicitor for the Respondent: One Group Legal Counsel for the Independent Children's Lawyer: Mr Jackson Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates ORDERS
SYC 9655 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DIONE
First Applicant
MS E
Second Applicant
AND: MR MASSOUD
Respondent
order made by:
SCHONELL J
DATE OF ORDER:
10 MARCH 2023
THE COURT ORDERS THAT:
1.All previous parenting orders in relation to Y born 2015 are discharged.
2.The first applicant maternal grandmother (“the grandmother”) and the second applicant maternal aunt (“Ms E”) (collectively “the applicants”) have parental responsibility for the child Y.
3.The applicants shall notify the respondent father (“the father”) no less than 7 days prior to making any long-term decision with respect to Y.
4.Y live with the applicants.
5.Y spend time with the father on a supervised basis on the first Sunday of every month, for five hours on the following conditions:
(a)Such time be supervised by a supervising agency agreed by the parties;
(b)The cost of supervision to be paid by the father; and
(c)A maximum of four persons are to attend on each occasion of supervised time.
6.In the event that the father is unable to spend time with Y in accordance with these orders, he shall provide the applicants with a minimum of 72 hours written notice that the time will not take place.
7.These orders act as an authority to Y’s school to provide to the father and the applicants and to enable each of them to obtain all relevant school reports, newsletters and information in relation to Y’s schooling and after school activities directly from the school.
8.The applicants shall notify the father of any serious illness, medical emergency, serious medical problem, hospitalisation or accident in relation to Y as soon as practicable and in any event within 24 hours and together with such notice provide the name of the hospital, treating medical practitioner and/or medical facility that has provided any medical treatment for the child.
9.The father shall forthwith arrange for the child X born 2006 to engage with a suitable child counsellor or therapist in order to assist X to grieve the passing of his late mother as well as to reconnect with and to communicate with his maternal family and that the applicants shall be permitted to engage and communicate with such counsellor or therapist.
10.A copy of the final orders and judgment be provided to both X’s and Y’s counsellor or therapist.
11.The applicants and the father shall forthwith enrol in and attend upon a 1-2-3 Magic and Emotion Coaching or Triple P Parenting Course.
12.The parties are to do all things necessary to have the children attend upon the Independent Children’s Lawyer (“the ICL”) at such times and places as directed by the ICL so as to enable the ICL to explain to X and Y the orders the Court has made.
13.The grandmother and the father shall each pay within 28 days to Legal Aid New South Wales the costs of the ICL assessed as follows:
(a)The grandmother shall pay an amount of $9,398.12; and
(b)The father shall pay an amount of $7,748.12.
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 Dione & Massoud has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are parenting proceedings that involve two children: X born 2006 and currently aged 16 years; and Y born 2015 and currently aged 7 years.
Both children have endured during the course of their short lives significant losses. Their parents had a dysfunctional relationship marred by exposure to criminality and allegations of family violence. Their mother suffered from alcoholism with varying periods of sobriety. Their father has had his own addiction issues and a long association with criminal elements including the supply of illegal drugs.
X was almost 9 years old and Y was under a year old when their father was imprisoned. In late 2021, he was released from prison and resumed a relationship with the children. Less than three months later, their mother passed away.
The applicants are the maternal grandmother, Ms Dione (“the grandmother”) and the maternal aunt, Ms E (“Ms E”) (collectively “the applicants”). When the hearing commenced, the only applicant was the children’s grandmother. On the second day of the hearing, leave was granted to join Ms E, one of the grandmother’s daughters as the second applicant. Ms E is a person who lives with Y and is concerned with his care welfare and development.
The respondent is the children’s father, Mr Massoud (“the father”).
On the second day of the hearing, the parties reached an agreement that X should live with the father and spend time with the applicants in accordance with his wishes. Orders were also made for the father to have sole parental responsibility for X.
The primary issue for determination remained whether Y should live with the applicants or the father.
Each party contends that there are significant risk factors such that Y should live with them and that they should have sole parental responsibility. The grandmother contends the following in her Case Outline in relation to the question of risk:
4. The children are at risk of harm from exposure to family violence in the care of the father. The family violence consists of coercive and controlling behaviour, the grooming for and involvement in criminal activities, physical and emotional harm and exposed to alienating conduct by the father of the children, from the maternal grandmother’s family.
The father contends the following in his Case Outline in relation to the question of risk:
5.7 The Father will contend that it is in the children’s best interest that they live with him. The Father will contend, and subject to the evidence, that the Applicant has continued in her vendetta against the Father in a malicious and planned manner, with the sole aim of advancing her case to limit the children’s time with the father.
The single expert in the Family Report encapsulates the dilemma faced by these children as follows:
199. [X] and [Y] are children who have experienced significant adjustments and losses throughout their life, most notably the loss of the opportunity to have a close relationship with [Mr Massoud] and experience of being parented by him during the […] years that he was incarcerated, the loss of [Ms Massoud] unexpectedly in [late] 2021, changes to their living arrangements and separation from each other. Unfortunately, the acrimonious relationship in the last year, between [Mr Massoud] and [Ms Dione], has meant that they have not been able to work together to ensure that [Y] and [X] have the best opportunity to adjust to [Ms Massoud’s] passing or co-operatively discuss the care arrangements that are in the children’s best interests. Due to the circumstances of this family, it would appear that whatever final care arrangements are put in place, the children will likely endure further losses.
BACKGROUND
The grandmother was born in 1948 and is currently 74 years of age. She contends that she is in good health and does not suffer from any major illnesses or ailments. The grandmother has four children, namely Mr S, Ms E, Ms Massoud (“the mother”) and Ms R.
Ms E was born in 1978 and as mentioned earlier is the second applicant. She is currently 44 years of age and lives with the grandmother.
The grandmother has been in relationship with her partner Mr N since 1993. Mr N lives in a granny flat on Ms R’s property.
The father was born in 1967 and is currently 56 years of age.
The mother was born in 1979.
The father and the mother commenced a relationship in or around 2004 or 2005.
The date of separation of their relationship is disputed.
In his affidavit, the father says his relationship with the mother broke down in or around 2006 because of the mother’s alcohol use whilst pregnant. Notwithstanding this assertion, he tells the single expert that they separated when X was around two years old. The father attended upon Ms T, psychologist, in early 2017 for the purposes of preparation of a psychological report (Exhibit 12). That report under the heading of “Confidentiality” records:
Prior to interviewing [Mr Massoud] was advised that I was preparing a report that would be tendered in evidence, and that any disclosures made by him would not enjoy privilege of confidentiality. He stated that he understood and agreed to participate.
Under the heading “Sources of Information” the report records:
The information contained in this report is based on the following –
•Self-report by [Mr Massoud]
•Statement of Facts for the Commonwealth offence charge and Statement of facts for the State offence charges
•Transcripts of evidence of [Mr Massoud] in before [the District Court Judge]
•Criminal Record
•The results of psychometric testing
The report is addressed to the father’s lawyers, who are the same firm that act for the father in these proceedings.
Under the heading “Family Background” it records “about 12 years ago he met his present partner who is now 38 years of age. They are in a defacto relationship and have two sons aged ten years and 19 months respectively” (Exhibit 12). This is clearly a reference to the mother and the subject children.
The report was relied upon by the father in his sentencing hearing before a District Court Judge and referenced by his Honour in his sentencing judgment dated mid-2018.
The mother in her affidavit says they separated in or about July 2017. The grandmother says separation occurred on a final basis in or around July 2017.
I find consistent with the father’s representations in his criminal trial and the evidence of the mother and grandmother that the mother and father’s relationship broke down in or around July 2017.
The father and mother’s only two children are X and Y. The father also has three adult children from earlier relationships, being Ms U, Mr D and Mr J, as well as a child Z with his current wife Ms C. The father and Ms C are due to have another child in or around the middle of this year.
The grandmother contends that the relationship between the father and the mother was marred by family violence perpetrated by the father. She says that the father would regularly kick the mother and X out of the house. The mother in her affidavit describes conduct of the father consistent with him perpetrating family violence upon her.
The father denies all of the allegations of family violence. In his cross-examination, he said that he has never been aggressive towards a partner or former partner.
For reasons that will become apparent, I am satisfied that the father has been the perpetrator of family violence.
Subsequent to X’s birth, the father contends that there was no formal parenting plan in place but that he would see X almost daily, and this would include the father or the mother and X staying overnight at the other’s place.
It is common ground that the mother had long standing issues with alcohol as well as periods of sobriety. The parties are in dispute as to when the mother resumed consuming alcohol.
In early 2012, the father and his partner Ms C were married in a religious ceremony.
In 2012, the father was arrested and charged with drug-related offences. He was granted bail.
In 2014, the mother became pregnant with Y. The father says that Y was conceived via in vitro fertilisation (IVF).
In or about late 2015, the father was arrested again and charged with drug-related offences. At the time of his arrest he was on bail. He was held on remand. The father ultimately entered a guilty plea to the charges and was sentenced to imprisonment.
The father says that while he was in prison, he would initially see the children every weekend and would speak to X almost daily. He says that the mother would bring the children to see him and that on some occasions, his wife Ms C would bring them.
The father says that in or around 2016 or 2017, he suspected that the mother was consuming alcohol again and asked her if she was drinking. He says that she then limited the children’s visits with him and ceased the children’s contact with the paternal family.
The grandmother contends that the paternal family ceased all contact with the mother when she and the father separated. She says that the children never stayed with any members of the paternal family. It is unnecessary that I resolve the conflict in the evidence on this issue for the purposes of determining this matter.
In early 2021, the father was granted day release from prison and spent time with the children on two occasions in early and mid-2021. Due to the intervention of COVID-19 restrictions, day release ceased and the father did not spend time with the children again until late 2021.
The grandmother says that leading up to the father’s release from prison, the mother, in fear of the father, progressively began drinking more. Ms E says that the mother’s drinking became a problem in late 2021 and that there were occasions where X would call her and ask her to come over as the mother was drunk.
In late 2021, the father was released on parole. Subsequently, the father commenced spending regular time with the children such that a short time later he says he was spending time with both children each week and each weekend.
The father contends that in or around late 2021, the mother attended upon a rehabilitation centre for a short period of time.
In late 2021, whilst in the father’s care, the father contends that the mother called X numerous times and he overheard a conversation during which the mother was verbally abusive to X.
The next day, the father says he received a phone call from X, who was crying, and he requested the father pick him up. The father says that the mother called him numerous times and that it was evident to him that the mother was intoxicated. He contends that X told him that she was drinking again. X began residing with the father and did not ever return to live with the mother.
On 10 December 2021, the father says he received a phone call from the mother who appeared to be intoxicated. He says that X also received several phone calls and text messages. He says that he was concerned about Y and told the mother he would be coming to collect Y.
Upon attendance at the home, the grandmother says the father threatened her saying he would break every bone in her body. The father was subsequently charged, and an Apprehended Violence Order (“AVO”) was made for the protection of the grandmother. In late 2021, the father entered a not guilty plea in relation to the charges.
In 2021, the mother passed away. The grandmother contends that there is currently a coronial investigation into the mother’s death.
The father says he was informed of the mother’s passing the next day and at the request of the maternal family, X returned to their home to help break the news to Y. Ms E contends that later that day, Y came up to her and said that he heard X on the phone with Ms C, planning to sneak Y out of the maternal family’s care. She says that X told her this was true but that it was not his idea. X subsequently returned to the father’s care.
That same day, the father moved into the mother’s home which he owned jointly with the mother.
Subsequent to the mother’s passing, X remained living with the father and Y remained in the grandmother’s care.
On 23 December 2021, the grandmother commenced these proceedings. The father filed a Response later that day. Both parties sought urgent interim orders for the children to live with them.
A short time later, the mother’s funeral took place. Ms E says that X was brought to the funeral by his older half-brothers Mr J and Mr D. Ms E says that Mr J and Mr D were told that they could attend the church service but not the burial.
After the church service, X accompanied the maternal family in the car to the burial. Contrary to the wishes of the family, Mr J and Mr D attended the burial and demanded that X get out of the car. Ms E says X did not get out of the car and after driving off, his phone rang. The caller was the father. After the call, X became distressed and told her to stop the car. X got out of the car.
On 11 February 2022, following a contested interim hearing before a judge of Division 2, orders were made pending further order for both children to live with the grandmother, for the grandmother to have sole parental responsibility and for the father to spend supervised time with the children once a week for three hours. The father was otherwise restrained from contacting the children.
X subsequently returned to the grandmother’s care. X had not seen the maternal family since late 2021 except on two or three occasions.
Ms E in cross-examination said upon X’s return, while he settled back into the home, he seemed quieter and more withdrawn.
On 6 March 2022, X and Y spent the first supervised visit with the father. This was the first time that Y had seen his father since late 2021.
On 20 March 2022, following a supervised visit with the father, the grandmother says that X went out for a walk and did not return until 11.30 am the next day. The grandmother notified the police that X was missing.
On 27 March 2022, the father contends that during a supervised visit, Y told him his favourite drink was beer.
In early 2022, the grandmother says X said he was going to stay at a friend’s place. She says she tried to look for him but could not find him and subsequently went to the police to report him missing. X returned two days later, in 2022.
During a supervised visit on 24 April 2022, the father says that X and Y informed him that the grandmother gave Y alcohol to try. The grandmother says that Y was joking and only pretended to take a sip of alcohol.
A few days later, X ran away again and the grandmother again reported this to the police. The grandmother contends that the next day, the police informed her that the father said that X was safe and with family, but that he did not know with whom.
X did not ever return to the grandmother’s care.
In mid-2022, the grandmother says she went to X’s school to see if she could find him and saw Ms C’s car. She says she followed Ms C’s car and an argument ensued. An AVO was subsequently taken out against the grandmother for the protection of Ms C.
Later that day, the grandmother received a text message from X saying, amongst other things, to leave him alone and that Y would be with them soon.
On 11 May 2022, the matter was re-listed as a result of X running away. The father sought a variation of the orders so that X could live with him. A judge of Division 2 dismissed the application to vary the orders.
On 3 June 2022, the father filed an Application in a Proceeding seeking that the children live with him as X refused to return to live with the grandmother. The matter came before a judge of Division 2 on 25 July 2022. Her Honour subsequently recused herself after it was revealed that her associate had a personal connection with the mother. Her Honour transferred the matter to Division 1 of the Court.
According to the father, in mid-2022, X recommenced residing with him despite orders that he should live with the grandmother and orders preventing the father from communicating with X.
On 15 September 2022, the matter came before me for an interim defended hearing. Orders were made on 27 September 2022 increasing the father’s supervised time with Y to five hours and for the parties to do all things to enable X to spend time with Mr N.
The Court also set the matter down for hearing for four days commencing 20 February 2023.
On 21 October 2022, an oral application was made by the father’s solicitor for the father to spend supervised time with Y at the father’s home (being the Suburb L property where the children used to reside with the mother). This application was opposed by the grandmother. The father’s application was dismissed.
In late 2022, the criminal charges against the father were dismissed. The father says that the police subsequently withdrew the AVO.
On 20 February 2023, the hearing commenced for four days. The matter was adjourned part-heard to 3 March 2023 for submissions. At the conclusion of submissions, the Court reserved its decision.
DOCUMENTS RELIED UPON AND PROPOSALS OF EACH PARTY
The applicants relied upon the following documents:
(1)Further Amended Initiating Application filed 1 November 2022;
(2)Affidavit of grandmother filed 9 February 2023;
(3)Affidavit of Ms E filed 9 February 2023;
(4)Affidavit of Ms R filed 9 February 2023;
(5)Affidavit of Mr N filed 9 February 2023;
(6)Affidavit of Ms Massoud filed 14 June 2019; and
(7)Case Outline document.
The respondent father relied upon the following documents:
(1)Response to Initiating Application filed 23 December 2021;
(2)Affidavit of father filed 9 February 2023;
(3)Affidavit of Ms C filed 9 February 2023; and
(4)Case Outline document.
Each of the parties and the ICL relied upon the Family Report dated 8 February 2023 prepared by the single expert psychologist Ms O (“the single expert”).
At the time of the hearing, the existing court orders provided that Y and X live with the grandmother and spend supervised time with their father. Notwithstanding those orders, X has not lived with his grandmother since early 2022 nor spent any time with her or any member of the maternal family. Notwithstanding orders for the parties to do all acts and things necessary to ensure that X spends time with Mr N, this has not happened.
Y has continued to spend supervised time each weekend with his father.
It is not in issue that Y enjoys his time with his father and members of his father’s extended family. It is the only time when Y has an opportunity to spend any time with X.
At the commencement of the hearing, the proposal of the grandmother was that she have sole parental responsibility for Y, and that X and Y spend time together each alternate weekend and one day after school. She proposed no orders for Y to spend time with the father (Exhibit 1).
On the second day of the trial, the applicant proposed that she and Ms E have equal shared parental responsibility and an alternate position in relation to the no time order, being that Y spend supervised time with the father every three months for five hours (Exhibit 9).
The father’s position as articulated in his Case Outline was that he should have sole parental responsibility for Y and that Y should live with him following a transition into his primary care over a period of approximately 17 weeks. Thereafter, Y would spend time with the applicants each alternate weekend on either a Saturday or Sunday from 10.00 am to 5.00 pm and from 10.00 am to 5.00 pm on Easter Friday, Easter Sunday and Christmas Day and at other times as agreed between them.
The Independent Children’s Lawyer (“the ICL”) submitted a Minute of Order following the evidence of the single expert. It proposed that the grandmother and Ms E have joint parental responsibility of Y and that Y live with them, that Y spend supervised time with the father once a month for five hours, and that until 16 November 2024, Mr N facilitate time between Y and X each Wednesday and every alternate Sunday.
In relation to X, the ICL proposed that the father arrange for X to attend counselling and that the applicants be permitted to engage and/or communicate with the counsellor. The ICL also proposed various restraining orders including restraining the parties from exposing the children to violence, physically disciplining the children, denigrating other members of the family (in person or online) and discussing these proceedings.
SUBMISSIONS OF THE ICL
Counsel for the ICL submitted that the Court would be satisfied that the father poses an unacceptable risk of harm to Y and that orders should be made that Y live with the applicants and spend supervised time each month with his father.
He submitted that the unacceptable risk arises as a consequence of cumulative factors including the father’s criminal history, the dramatic change in X’s presentation and rejection of the maternal family, and the risk that Y will eventually follow the trajectory of X and spend no time with the maternal family.
SUBMISSIONS OF THE APPLICANTS
Counsel for the applicants submitted in a similar vein to that of the ICL that the father posed an unacceptable risk.
Those risks included: the father’s extensive criminal history; a concern in relation to him re-offending; that the father has engaged in behaviour that could amount to perverting the course of justice by reference to paragraph 176 of the Family Report; that he has a pervasive pattern of being involved in conflict; that he has a lack of respect for the police; and that any contact between the father and Y heightens the risk of harm.
SUBMISSIONS OF THE FATHER
The father’s counsel submitted that there was a highly conflictual relationship between the applicants and the father and that such conflict arises largely from the death of the children’s mother. He submitted that the maternal family minimised and continued to minimise the impact of alcohol on the children and in particular on X. The father’s counsel contended that the evidence does not support the applicants’ case as to risk, which includes assertions of coercive and controlling behaviour, grooming and/or involvement of the children in criminal activities, physical and emotional harm, and alienating conduct.
For reasons that are expanded upon later, I do not accept these submission that the father does not pose a risk of harm to Y.
The father’s counsel further submitted that the resentment that X displays towards the maternal family arises from his lived experiences including looking after his alcoholic mother and as a consequence of the actions of the grandmother in purchasing alcohol for the mother. The father through his counsel submits that X’s lived experiences and the sudden loss of his mother are such as to have contributed to his views of the maternal family.
For reasons that are expanded upon later, I do not accept this submission in such absolute terms.
The father’s counsel also submits that the single expert did not explore in any great detail with X his reasons for rejecting the maternal family, citing parts of the cross-examination of the single expert. The part referenced by the father’s counsel includes the single expert conceding in cross-examination that X was not really “open to unpacking” and that what he was saying was incongruent with the reasoning that he was giving (Transcript 23 February 2023, p.7 lines 25–39). I do not accept the submission that there was some failure on the part of the single expert to explore with X the reasons for his hostility towards the maternal family. I am satisfied that the single expert addressed comprehensively and in significant detail what she saw as a possible explanation for X’s rejection of the maternal family.
The father’s counsel submitted that the children are at risk of emotional harm by being separated from the father and that will have a drastic effect on the children in both the short and the long-term. He submitted that the risk of harm that exists for Y arises as a consequence of orders being made for him to live with the applicants. I will address this further in these reasons.
Counsel for the father further submitted that the applicants consent to final parenting orders for X to live with the father amounts to a concession that the father is not a risk to Y. Assuming it is a serious submission, it is without merit. There is no inconsistency in the applicants’ case in agreeing to orders that X live with his father and asserting the father poses a risk of harm to Y. This was the recommendation of the single expert. X had self-placed with the father having left the grandmother’s home on three occasions; he is 16 years old and his views are to be given significant weight. X has made it abundantly clear that he will not spend time with his maternal family and wishes to live with his father. I find that the applicants consent to such a position is demonstrative of them recognising the inevitability of the situation and acting in X’s best interests.
The father’s counsel further contends that the Court should not make adverse credit findings against the father and should give little weight to the report of the father’s psychologist which is Exhibit 12. Counsel for the father relied upon the observations of Smart JA in the New South Wales Court of Appeal in R v Qutami (2001) A Crim R 369 as follows:
58 There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements
The only part of the report of the psychologist to which I will have regard to in these reasons are the recording of assertions made by the father to the psychologist as to the date when he and the mother separated. These were matters about which the father gave evidence and was cross-examined. It was not submitted that the psychologist had inaccurately recorded what the father told her.
The father further submitted that there was insufficient evidence before the Court to enable the Court to be satisfied that Ms E was an appropriate person for Y to live with or for the allocation of parental responsibility. In part, the submission contended that there has been no disclosure of her mental health history. I will address this submission in these reasons.
RISK OF HARM
The primary issue that informs parental responsibility and with whom Y should live with are the issues of risk identified by the parties and briefly summarised at the start of these reasons.
The High Court reminds in M v M (1988) 166 CLR 69 at 76:
… it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. …
…
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. …
(Footnote omitted)
Further, the High Court states at 77–78:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A.), “an element of risk” or “an appreciable risk” (Marriage of M.), “a real possibility” (B. v. B. (Access)), a “real risk” (Leveque v. Leveque), and an “unacceptable risk”: In re G. (A minor)). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
(Footnotes omitted)
In Isles & Nelissen (2022) FLC 94-092 (“Isles & Nelissen”), the Full Court constituting Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ had cause to reconsider the issue of unacceptable risk. In the course of their judgment, their Honours observed that earlier decisions of the Court in Potter and Potter (2007) FLC 93-326 and Johnson and Page (2007) FLC 93-344 no longer accurately reflect the law in so far as they suggested that unacceptable risk needed to be established on the balance of probabilities.
Their Honours observed that when allegations of harm are raised, the relevant historical facts that underpin the allegations need to be established on the balance of probabilities.
However, when assessing whether there is unacceptable risk of future harm, the possibility of a risk of harm may be based on a finding of a possibility of harm in the past, which may not have been established on the balance of probabilities. In undertaking this risk assessment, the Court is assessing both the prediction of future harm and the severity of the impact if it eventuates. At some point in the risk assessment, the possibility of future harm and severity of harm may become unacceptable.
As their Honours observed:
47.…the civil standard of proof is not the measure by which an unacceptable risk of harm is to be assessed. The civil standard of proof is reserved for the proof of facts, the positive or negative findings in relation to which could well feed into any alternate finding about the existence of an unacceptable risk of harm.
Their Honours also specifically approved of Austin J’s judgment in Fitzwater v Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”), where his Honour observed as follows:
133. In civil proceedings, s 140(1) of the Evidence Act provides the “case of a party” must be found proven if the court is satisfied of its proof on the balance of probabilities. For that purpose, the “case of a party” is defined (in the Dictionary to the Evidence Act) to mean “the facts in issue in respect of which the party bears the legal burden of proof”. The substantive law determines where the legal burden of proof falls in respect of facts in issue.
134. It must be borne in mind that proceedings in respect of children under Pt VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at CLR 76; ALR 581; Fam LR 611; ZP v PS (1994) 181 CLR 639 at 647; 122 ALR 1 at 6; 1 Fam LR 600 at 604). The paramount consideration in Pt VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at [64]). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at [186]).
135. The conclusion reached by a court in Pt VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J C Hutton Proprietary Ltd (1990) 169 CLR 638; 92 ALR 545 (Malec)).
136. In Malec, Brennan and Dawson JJ said (at CLR 639–40; ALR 546):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur …
…
… To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation …
and Deane, Gaudron and McHugh JJ said (at CLR 643; ALR 548):
… The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring …
137. The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald v Karrington (2016) 55 Fam LR 344; (2016) FLC 93-726; [2016] FamCAFC 152 at [60]; Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter v Potter (2007) 37 Fam LR 208; (2007) FLC 93-326; [2007] FamCA 350 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139. Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
140. It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis v Nikolakis [2010] FamCAFC 52 at [41], [44], [49]–[53], [96]; Partington (aka Bande) v Cade (No 2) (2009) 42 Fam LR 401; (2009) FLC 93-422; [2009] FamCAFC 230 at [56]–[61]; Johnson v Page (2007) FLC 93-344 at 81,888–9; [2007] FamCA 1235 at [68], [71], [76], [77]).
141. Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the “access” order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father’s appeal was dismissed because the possibility of the child’s past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child’s future sexual abuse.
142. As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (children) (care order: future harm) [2001] 1 Fam Law R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
(Emphasis in original)
Their Honours also addressed specifically the use of terms such as ‘unacceptable risk’. In particular, they recorded the following:
56.It is trite but true to observe that the law is as the High Court states it to be, so the principles enunciated in M v M about “unacceptable risk” were woven into the fabric of family law in instances of alleged actual and prospective child sexual abuse. The Full Court later extended such principles to cases involving allegations of children being at risk of physical or emotional harm for other reasons (A v A (1998) FLC 92-800 at [3.14]–[3.15] and [3.24]).
57.However, courts exercising federal jurisdiction and wielding discretionary power in family law proceedings are constrained by the terms of the governing statute (Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 386, 390, 396, 403–407, 434–435 and 439; MRR v GR (2010) 240 CLR 461 at 464–466 and 468).
58.Specifically in respect of parenting proceedings, Pt VII of the Act is now drafted much more comprehensively and prescriptively than it was when M v M was decided. The phrase “unacceptable risk” did not then appear within the Act. At that point in time, courts were required by the Act (then s 64) to make parenting orders by reference only to the paramountcy principle, the child’s wishes and the desirability of avoiding further litigation. But now, s 60CG of the Act exhorts courts to avoid making orders which expose any person to an “unacceptable risk of family violence” and, when determining how children’s best interests will be advanced, s 60CC(2)(b) of the Act obliges courts to heed any need to protect children from physical or psychological harm through their subjection or exposure to “abuse”, “neglect” or “family violence”, for which purpose the terms “abuse” and “family violence” are very widely defined in ss 4(1) and 4AB of the Act respectively.
59.As the Full Court has previously counselled, the terms of the Act are of pre-eminent importance (Simmons & Kingley (2014) FLC 93-581 at [17]–[20]). The provisions of ss 60CC and 60CG of the Act are wide enough to embrace most, if not all, assertions of an “unacceptable risk” of harm to children and so it is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Act.
GENERAL OBSERVATIONS
I have read all of the evidence relied upon in the proceedings, but do not propose to nor am I required to repeat all of it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447:
62.… A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not property considered the losing party’s case.
I have listened very carefully to the evidence and taken note of the answers given in cross-examination. I have also carefully observed each of the parties give their evidence and the way they answered questions and their general demeanour.
Each of the parties and their respective witnesses were cross-examined as was the single expert.
I have read the Family Report and listened closely to the cross-examination of the single expert. There was no challenge to her experience or expertise. Having read her Family Report carefully and watched her give her evidence, I am satisfied that she has a comprehensive understanding of the issues and a unique insight into the problems facing both of these children. I found her Family Report and oral evidence considered, insightful and logical. I accept the opinions and recommendations as set out in the Family Report and qualified and/or expanded upon in her oral evidence other than where I specifically find otherwise.
The single expert in the Family Report recommended that X’s living arrangements be in accordance with his wishes, that Y live with the grandmother and aunt, that Y spend no time or supervised time with the father and X, that the father attend upon a psychologist to learn how to best support X, that X attend counselling for a minimum of five sessions over six months, that Y continue to attend counselling until deemed by a therapist to no longer be necessary, and that the grandmother attend upon a parenting course. The single expert also recommended that the orders made by the Court be explained to the children by the ICL or another adult outside the family.
In her oral evidence, she varied her recommendations somewhat saying that, if the Court, on balance taking into account all the risks, was of the view that it was in Y’s best interests to maintain some contact with his father, then contact for identity purposes could occur on a supervised basis every month or second month for up to five hours.
X
The applicants contend that up until X commenced living with his father in late 2021, he was a happy boy who had not rejected his mother or the maternal family.
This accords with the observations of the single expert where she says:
202. … There was no information obtained in the course of this assessment to suggest that [X] had a history of a highly strained or negative relationship with these members of the maternal family prior to his change of residence.
In her affidavit, Ms E says:
17. During the […] years that [Mr Massoud] was in prison, I saw [Ms Massoud] and the children regularly, if this was not in person, as I was living in [City V] for part of that, then we talked on the phone, or FaceTime. [Ms Massoud] travelled down to [City V] several times to visit and stay with myself and my partner at the time.
18.I observed both [X] and [Y] to be happy children and had everything they needed. They were well clothed and fed. They attended activities they enjoyed. They socialised with their cousins, my stepchildren (when living in [City V]), [Ms R’s] children after they were born, my cousin’s twin sons that the children still get along with today. They would have play dates with their friends. [Ms Massoud] worked hard to save enough money to be able to take the children away on an overseas holiday, and there were several holidays to Brisbane to visit with my brother and his family, where they had more cousins that the children enjoyed spending time with,
…
40. On 11 February 2022, Judge Neville made orders for the children to live with [Ms Dione] and spend supervised visits with [Mr Massoud] on a weekly basis.
…
44.I observed [X] to settle in relatively quickly. We had a room ready for him. He would occasionally be quiet and spend some time in his room, but I saw this as normal teenage behaviour, I did drive [X] over to the [Suburb L] property one day as he had a mock interview at school, and he wanted to pick up the suit he wore [Ms Massoud’s] funeral for the interview, He also picked up his Play Station at the same time.
…
47.[X] and I still maintained a close and loving relationship. [X] and I had some dinner dates and when at home would muck around with one another. Annexed hereto and marked with the letter “D” is a true copy of a photo of [X] and me taken in March 2022 when [X] and I jokingly shared the one Oodie.
…
54.During the time [X] was living with us at [W Street], we did many things together. These included dinner out just the two of us, […] football games, […]. We would frequently spend time with my sister [Ms R], her partner [Mr BB] and their two children, whether it was lunch at the markets, or taking the kids to the park, or dinners out for a special occasion or just to spend time together.
In her affidavit, Ms R says:
21.Prior to [X] running away [in early] 2022, [X] was a completely different person and was the “normal” [X] we knew, loved and cherished. Annexed hereto and marked with the letter “C” is a true copy of text messages between [X] and myself between 18 April 2022 and 27 April 2022.
22.… It was so painful to see him at court and for him to totally ignore me like I did not exist. I have never seen him look at me that way before. It is like he is a completely different person in such a short space of time. Even though he was older we [sic] would still cuddle with me on the lounge, he was very affectionate for a teenage boy, it is really painful to not have him in our lives and there is a major part missing when he is not around.
They contend that X’s rejection of his mother and the maternal family is entirely a function of the conduct of the father.
The maternal family say that following X’s return to his father’s care there was a dramatic change in how he reacted to them. He has not visited any member of the family and has not spoken to them other than for a couple of conversations with Mr N.
On 3 May 2022, following the incident with Ms C that led to an AVO against the grandmother, X sent his grandmother a text which said:
64. …“who the fuck do you think you are I think I have made it fucking clear that I don’t want you in my life you feed my brother alcohol as if he can fucking handle it you did it to mu mum and I am not about to fucking let you do it to my brother don’t fucking call me or either text me otherwise your not going to fucking like what I’m going to say now leave me the fuck alone and don't worry [Y] will be with us soon so you won’t be speaking to him either you useless fucking piece of shit devil reincarnated bitch”. …
(As per the original)
This is to be contrasted with the text exchange in the week or so earlier with his Ms R which is respectful and boringly normal. It records as follows:
Mon, 18 Apr at 20:59
[Ms R]: Do you have any plans for Wednesday night?
[X]: No I don’t think so
Why?
[Ms R]: Wanna go out to dinner with me?
[X]:Sure [Ms CC] was asking what I was doing Wednesday so I’m going to see what she was thinking but Wednesday night sure
[Ms R]:Great, any places you haven’t been that you want to go too?
[X]:No not so much that Mexican was really nice that day tho I think there is one […]
[Ms R]:Have you heard of […]
[X]: What about […] across from the maccas near ma’s house
Just search up […]
[Ms R]: Looking now
Ooh that looks good. Ok nice and easy lock it in
[X]: Okay that’s good
Sat, 23 Apr at 18.15
[X]: Can you call ma please and tell her that we are on our way home
Mon, 25 Apr at 06.48
[X]: We are almost there
[Ms R]: Sweet
(As per the original)
(Affidavit of Ms R, Annexure C)
The single expert records:
54. [X] said that he was “pissed off” and “fuming” when he was Ordered to live with [Ms Dione]. He said that “they could not get it in their dull brains” that he did not want to be there. He said that he suffered “abuse and trauma” when his mother was alive. [X] said that [Ms Dione] used to take [Y] to stay with her but “ditched” him. He said that he would be responsible for checking on [Ms Massoud], tipping out bottles of alcohol and cleaning up empty bottles. [X] said that he would often care for himself and play x-box, not shower, not do assignments and eat 2-minute noodles. [X] said that when [Ms Massoud] had a good day she would kick the ball with him and play monopoly. When asked further about [Ms Dione] removing [Y] from the house and not him, when [Ms Massoud] was drinking, [X] said “it was like she got the golden egg” and “she knew she could not fix me”. When asked to explain further, [X] said that at that time he was talking in class, not paying attention, had been suspended for vaping, was going out lots on weekends, getting in fights and hanging out with people who were using drugs. [X] said at that time he was “sad, depressed and angry”. [X] said that sometimes he punched walls but denied any self-harm. [X] said that even if [Ms Dione] wanted to take him to her residence to stay he would not have gone anyway. [X] conceded that [Ms Dione] would come to visit, asked him how he was doing and said he did remember times that she helped out at his home.
55. [X] said that many years ago, [Ms Massoud] had been charged for driving under the influence of alcohol when he was in the car with her. He said that [Mr Massoud] told her to “straight the fuck up” and she went to rehabilitation and was sober for the 15 years she and [Mr Massoud] were together. [X] said that in 2017, [Ms Massoud] started drinking again but that it became more problematic in 2019. He said that the drinking “made me hate her” but then said that he had mixed feelings.
56. [X] said that [Ms Dione] was buying [Ms Massoud] alcohol. He said [Ms Dione] thought she was helping with buying low alcohol alcohol but that she was still buying an alcoholic alcohol and said it gets him “angry thinking about it”. He said that he has an “absolute hatred” for [Ms Dione] and his maternal aunts. [X] said that [Mr N] “actually cares” and said he used to take them to play [sport] and give he and [Y] $50 each. He then went on to say that [Ms Dione] used to ask him for petrol money but when asked, clarified that he never actually paid any petrol money. [X] said following the making of the Orders, that it was his choice whether or not he spend time with [Mr N] and said that the risk was that [Ms Dione] might also attend. He said that [Ms Dione] has a “masterplan to flip Dad on his back”. [X] said that [Ms Dione] looks at him with the same look of hatred that she looks at [Mr Massoud] with. He said that it is [Mr N] who makes an effort to communicate with him and gave the example that he asked for a formal photo and offered to go out to lunch. [X] said that he is going to “wait till everything is over” before he takes [Mr N] up on his offer to catch up.
…
61. When discussing the messages that he has been sending [Ms Dione] and [Ms E], [X] said he is just being open and honest and saying how he feels. He also added that they are “dialled down” compared to what he really wants to say.
I am satisfied that there has been a dramatic change in how X views his grandmother and aunts.
The father contends that X’s lived experience of his mother provides an explanation for his anger and rejection of his mother which, by any degree, is palpable. The father also submits through his counsel that the rejection of the grandmother is a function of having observed them enable his mother’s use of alcohol by providing her with low-alcohol drinks and having observed them “permitting” Y to sip a drink of alcohol.
I accept that X’s lived experience may provide an explanation for his anger towards his mother and his grandmother, including what he may perceive as the grandmother not accepting his choice of where he wants to live. It does not, however, provide the whole or only explanation. As the single expert noted, X’s presentation and what he says about the two sides of his extended family are incongruent and inconsistent with his lived experience. Nor does it adequately provide an explanation for the complete and quite visceral rejection of the maternal family.
X’s school counselling notes clearly demonstrate that he was very distressed about his mother’s consumption of alcohol. The notes record:
[4 June 2021]
[X] said last night there was an altercation with his mother after he found out she drove drunk with his little brother earlier that day. She already has [multiple] DUI’s so if she gets another she goes to jail and that scares [X]. He said she chased him around the house and threw a candle at him. She locked him outside in the cold with only his boxers on and he called his aunty and she and his grandma picked him up and now he is staying at his grandmas. His mum found out today about the fact that he reported her to [redacted] last week and his mum told him how disappointed she was in him. [X] is incredibly angry at his mother and feeling angry in general. [X] says he feels ready to go off at someone at school if they get him angry. His father is out of jail for a weekend […] and this is also adding into [X’s] stress.
(Exhibit 15)
These notes speak of anger towards the mother and the world but not rejection of her. They also speak of X being stressed at his father’s release. This note records X reaching out to his aunt and staying with the grandmother.
There is no evidence of X rejecting his mother or the maternal family before he moves to live with his father on 17 November 2021. The counselling note of 15 December 2021 is instructive. By this stage, X had been living with his father for nearly a month.
The counselling notes records:
[15 December 2021]
[X] has been getting increasingly angrier at his mother and grandmother since living with his dad. He says he can see things clearly now and see how much his mum and grandmother were hiding from him (in regards to her drinking). He spoke about his mother’s drinking a lot and said he thought she was a ‘dirty’ ‘no [redacted]. He said she always looked at him vacantly because she was always so drunk and she’d never leave her bed for months [redacted] time. He said that he and his dad want to get his little brother back from his mother/grandmother. [X] and his dad tried to on Friday just gone. [X] said they drove to [X’s] mums home and called the police so that they would have a witness there. Once they got there, the police spoke to mum and grandma and ended up arresting [X’s] dad because the grandma said she felt harassed. [X’s] dad has since been released. [X] told me that his step mum was going to go to the little brothers primary school today at 2.30pm and ‘kidnap’ the little brother (these are [X’s] [redacted] picking him up early from school before his grandmother got there. I told [redacted] and we both went and told [redacted] was at district office). [redacted] called the primary school and they said they would sort it out.
When I was talking to [X] about his anger, I said to him that he doesn’t need to become like his brothers. About 6 months ago [X] said his older brothers intimated him and always had 2 phones and seemed really sketchy and angry. When I said this to him today, he defended his brothers and said he just didn’t get it before and now he sees what his brothers do is for their families. Neither of us ever used the wording of ‘drug dealing’ but he kept referencing them being ‘sketchy’ and having two phones and not wanting to do what they were doing, but doing it so their families could be happy. He also recounted a time he was at one of his brother’s place [redacted] highly inferred that drug dealing was involved on his older brother’s part. He also made mention of a [property] his dad owns in [Suburb VV] that they go to every weekend.
(Exhibit 15)
This note of X’s presentation is dramatically different to X’s presentation prior to living with his father. It records X saying he “can see things clearly now”. Such clarity presumably arising after he commences living with his father as it was not apparent before. He describes his mother in disparaging terms as “dirty”. It describes him acting in concert with his father in actively trying to get Y back and the father’s wife going to “kidnap” Y.
X should have been shielded from these plans to remove Y not involved in them.
X is also expressing a changed view of his older half-brothers; before he found them intimidating now the note suggests that he looks up to them. The note also implies drug dealing on the part of one of his brothers.
I do not wholly accept the explanation put forward by the father for why X has rejected his grandmother and aunts in such emphatic terms. The idea that X rejects the applicants because Y sipped Mr N’s beer is illogical and inconsistent as the only member of the maternal family he wants to see is Mr N who is the person whose alcohol Y sipped.
The single expert records:
203. It is noted that [X] spoke positively about [Mr N] and has indicated a willingness to maintain contact with him. However, [X’s] narrative and behaviour are incongruent and he has not been accepting [Mr N’s] offers to spend time together and appears to have not always responded to [Mr N’s] attempted communications.
I agree with her conclusion that it is incongruent.
X’s intense dislike and rejection of the maternal family and toleration of Mr N is strikingly similar to that of the father’s.
The single expert records:
201.… Based on the information available at the time of this report it would appear that [Mr Massoud] and [X] have a shared experience of negativity towards members of the maternal family and this is likely creating a sense of ‘closeness’ between them.
…
219. The adults in this matter all appeared to be in agreement that [X] is a good-natured child and did not appear to have a history of aggressive or particularly challenging behaviour. However, the text messages that [X] appears to have sent to the maternal family and the manner in which he spoke about them on interview and [Mr Massoud] described him speaking about them, appeared to be disrespectful and aggressive. [Mr Massoud]’s description of [X’s] behaviour towards [Ms Dione] and [Mr N] at his birthday and the way he spoke about the observation session raised significant concerns that [Mr Massoud] is enabling the behaviour either explicitly or implicitly by the absence of providing [X] with feedback about respectful and socially acceptable behaviour. The impression given by [Mr Massoud’s] tone and affect as he described [X’s] alleged “hatred” of and behaviour towards the maternal family was not one of disapproval. It is notable that [X] and [Mr Massoud’s] articulated views on the maternal family were so aligned yet the history of their relationships with the maternal family so different.
I agree with her observations and opinions.
I am unable to come to a conclusion as to the reasons for X’s rejection of the maternal family. That said, the alignment of X and the father’s views is highly concerning.
CONSIDERATION OF THE BENEFITS AND RISKS TO Y OF THE APPLICANTS’ PROPOSAL
The single expert records the following in relation to the grandmother’s then proposal:
21. [Ms Dione] proposes that she have sole parental responsibility for both [X] and [Y]. She said that although she believes it is best for [X] to live with she or [Mr N], that she believed that [X] was of such an age that [X] would not comply with a Court order. [Ms Dione] seeks for [Y] to live with her and spend supervised time once every few months with [Mr Massoud].
For reasons that were not properly explained, by the time the hearing commenced the grandmother’s position had changed in relation to time between Y and the father. It changed again on the second day.
There is no doubt that the applicants deeply love and care for Y. Such was conceded by the children’s father.
It appears, despite criticisms raised by the father and his partner in relation to Y’s co-sleeping with the maternal grandmother, issues in relation to bedwetting and diet, that Y is otherwise well cared for in his grandmother’s care. In that respect, the single expert records:
210. [Mr Massoud] was highly critical of the care provided by [Ms Dione] of [Y]. He reported that he had concerns about the supervision, nutrition, toileting and entertainment of [Y] in [Ms Dione’s] care. The information available at the time of writing this report did not support [Mr Massoud’s] assertion that there are significant deficits in [Ms Dione’s] caregiving. [Mr Massoud’s] complaints about [Ms Dione’s] care demonstrate some deficits in his understanding of what behaviour would be expected for a child of [Y] age and stage of development. Furthermore, they do not acknowledge that [Ms Dione] took over the care of [Y] after his mother had passed away and [Y’s] primary care needs were to support his adjust to the change of residence and to grieve. …
The live with orders as proposed by the applicants are in one sense a continuation of what otherwise appears to be a pattern of significant maternal family involvement in the care of Y since his birth. This is particularly so in circumstances where until his release from prison in late 2021, the father had played no role in the day to day care of Y. While the grandmother proposed a change of school for Y, such change needs to be seen in the context of what she said to the single expert:
32. [Ms Dione] said that if she gets “full custody” of [Y] she would consider moving his school to a school closer to her residence. However, she reported that she would consult with [Y] to determine if wanted to move schools or not. Later, in the interview she also said that she feels that adjustments for [Y] need to occur one at a time and that is why she would not change his school at present. She said that she would not send [Y] to a [religious] school because she understood that [Ms Massoud] and [Mr Massoud] had agreed that the children would not be raised as [religious] and should be able to decide for themselves, when they are adults, what their religious affiliation is. …
The single expert records:
206. [Y] appears to have close relationships with both [Ms Dione] and [Ms E]. His interactions with them appear to be consistent with the history of their role in his life and the apparently close relationship they had with [Ms Massoud]. It was notable that in his interview [Y] said that [X] does not want to talk to “our family” which is suggestive of [Y] strongly identifying as part of the maternal family. [Ms Dione] and [Ms E] spoke about [Y] being quite attached to [Ms E] and exhibiting some separation anxiety or at least uncertainty when they are separated. [Ms Dione] and [Ms E] spoke in an authentic manner about [Y] and were able to acknowledge his strengths and challenges, in particularly they appeared to be honest about his behaviour which appears to be challenging at times, but within the scope of developmentally and situationally typical behaviour.
I find that an advantage of the proposal of the applicants’ is that it provides a continuation of caregiving for Y by family members who have played a significant and continuous role in his care since birth.
It is clear that the maternal family recognise the significant trauma that has been occasioned to both Y and X and have acted responsibly and promptly in arranging grief counselling for both children. At the time of the Family Report, Y had attended about ten sessions with a grief counsellor. The single expert had a discussion with the grief counsellor who indicated that Y would continue to benefit from counselling for the next six to twelve months. The single expert records the following in relation to her discussions with the grief counsellor:
194. [Mr DD] said that [Y] has been impacted by [Ms Massoud’s] death and shows age and situational appropriate sadness. He stated that the positive relationship that [Y] has with the maternal family and their willingness to provide an environment that allows him to express his grief has significantly assisted him in his grieving process. [Mr DD] stated that [Y] being allowed to express himself and talk about and share his feelings about [Ms Massoud], has been most helpful.
195.[Mr DD] said that at present, [Y] has been able to continue to engage in life and continues with activities and school in the manner that he did prior to [Ms Massoud’s] passing.
196. [Mr DD] reported that in his clinical experience children who have the opportunity to talk about their thoughts and feels, as well as engage in rituals associated with the loved one who they have lost, have the best clinical outcomes.
In that respect, the single expert records:
215. [Ms Dione] and [Ms E] both appear to have been involved in facilitating for [X] (initially) and [Y] (in an ongoing capacity) to attend upon a counsellor to support their psychological wellbeing. They both appeared aware of the need for the children to live in an environment that gives them permission to express their thoughts and feelings about [Ms Massoud’s] passing and remember and celebrate her life. Both [Ms Dione] and [Ms E] appear to give consideration to the children’s needs in this domain. …
I agree with those observations.
The applicants have with one exception promoted Y’s relationship with the father. In the period between late 2021 and the orders of 11 February 2022, the applicants did not facilitate any time between the father and Y. The applicant’s explanation for not doing so was out of a fear that the father would not return Y. Ms E in her affidavit refers to the events of late 2021 and says:
32. [X] spent a lot of the day on the phone to his father or brothers. He was happy to be at the house and spent his time between talking to people and being on the phone.
33. During the afternoon [Ms Dione], [Mr N], [Mr S], [Ms E], [Ms R] and [Y] went to the coroner's office. We were gone perhaps 2 hours, during which [X] was at the house with my cousin [Ms EE], my best friend [Mr FF], a very close family friend [Ms GG] and others I cannot remember. When we returned, we were sitting around talking and [Y] came up to me and said something to the effect of “[Ms E], [X] is on the phone to [Ms C], and I just heard them say to try to sneak me out of the house”. I went to confront [X] and he was visibly upset and distressed. I asked him if what [Y] said was true and he said “yes, but it is not my idea”. …
Exhibit 15 is X’s school counselling notes for the period 26 February 2021 to 1 June 2022. The notes dated late 2021 record the following:
… He said that he and his dad want to get his little brother back from his mother/grandmother. [X] and his dad tried to on Friday just gone. [X] said they drove to [X’s] mums home and called the police so that they would have a witness there. Once they got there, the police spoke to mum and grandma and ended up arresting [X’s] dad because the grandma said she felt harassed. [X’s] dad has since been released. [X] told me that his step mum was going to go to the little brothers primary school today at 2.30pm and ‘kidnap’ the little brother (these are [X’s] [redacted] picking him up early from school before his grandmother got there. I told [redacted] and we both went and told [redacted] was at district office). [redacted] called the primary school and they said they would sort it out.
I am satisfied that there was a basis for the applicants’ concern that the father and his wife would act in such a way. The combination of Ms E’s affidavit and X’s school counselling notes would appear to indicate at least three attempts to remove Y in as many days.
Upon the making of orders for the father to spend supervised time with Y, there is no suggestion that the applicants have not complied with orders. Y has spent time with the father and members of the paternal family on each occasion that time has been ordered. Despite the applicants and extended maternal families well published views of the father and his extended family, they have not let those views intrude onto Y’s relationship with his father. There is no evidence that they have let Y know their opinion of the father nor have they sought to dissuade Y from spending time with him.
Counsel for the father submits that there is a reasonable basis to conclude that the applicants and wider maternal family will make known to Y the negative views they hold of the father. Whilst this is a possibility, it is inconsistent with the evidence before me. Despite all that has gone on in the time since the mother’s death, there is no evidence that the applicants or wider maternal family have made known to Y their views. All of the evidence is that Y enjoys his time with his father. He is not apprehensive or fearful of him and he separates easily from his maternal family at changeover. The single expert in her cross-examination said:
[THE SINGLE EXPERT]: … I think in this matter, your Honour, it’s very notable that [Y] appears to have psychological permission to eagerly embrace his relationship with the father, and I think in the context of the bitterness of this dispute, that is a significant credit and strength of the maternal family, that they – there was no indications that I identified that [Y] has had any negative messages about the father, and it was notable, you know, even that the maternal family sort of spoke about not wanting to talk about dad’s incarceration. You know, I think that was, you know, them sort of not wanting to, in any way, be negative about the father. So that definitely was notable.
(Transcript 23 February 2023, p.42 lines 7–15)
I find that the applicants and wider maternal family have not let Y know about the negative views they hold of the father. The fact they have not done so in the torrid circumstances subsequent to the mother’s death provides a reasonable foundation for the view that they are unlikely to do so in the future.
The maternal family are very conscious of keeping alive the memory of the children’s mother. The single expert records the following:
88. [Ms Dione] indicated that a significant concern that she holds is that [Mr Massoud] will not allow the children to remember and grieve [Ms Massoud]. She said that at a recent contact visit [Y] told [X] he has been to the cemetery and asked [X] how often he goes. [Ms Dione] reported that [Mr Massoud] shut down the conversation and said it was not the time to talk about such things. She said that “at our place everything is [Ms Massoud]”. [Ms Dione] spoke about [Y] relaying a positive dream that he had about [Ms Massoud] and how they talk about rituals that they had with her such as, how she would take the boys to [HH Park] on Australia Day. [Ms Dione] said that she and the maternal family talk about [Ms Massoud] “all the time” and ensure that [Y] has the opportunity to remember her. She said that [Mr Massoud] will not talk about memories of [Ms Massoud].
I am of the view that it is an important part of the grieving process for Y that he hold a memory of his mother as someone who loved and cared for him. She does not have to be beatified but she should not be pilloried.
However, the proposal of the applicants’ perpetuates for Y some of the losses he has already suffered. On the applicants’ case, there will be a separation of the siblings and a very limited relationship between Y and the father, X and other members of his extended paternal family including his half-brothers.
The single expert says:
238. As detailed above, if [Y] is to live with [Ms Dione] it appears untenable for [Y] to spend regular time with [Mr Massoud] or [X] (if [X] continues to live with [Mr Massoud]) due to the risk of exposure to violence between the two families and the risk of [Mr Massoud] and [X] placing pressure on [Y] to align with their views of the maternal family and remain in [Mr Massoud’s] care. Therefore, it is likely that [Y] will not be able to maintain a meaningful relationship with [Mr Massoud], X, his half-brothers, [Ms C] or other members of the paternal family if he lives with [Ms Dione]. This would represent a very significant loss for [Y]. Although [Y] is still establishing his relationship with [Mr Massoud] he appears to have enjoyed his time with him and the idea, after such a long absence, of having a “father”. [Y] would also experience the loss of his relationship with [X] as a difficult experience. The loses of the paternal family would be experienced as a significant grief for [Y] and if they are not adequately supported by the maternal family there is the risk of long term impacts on his wellbeing. There is also the risk that [Y] will become resentful of the maternal family, if he perceives that they have not permitted him the opportunity to have a relationship with [Mr Massoud], [X] and the paternal family. If [Y] is to have no or a very limited experience of [Mr Massoud] there is the risk that he might form an idealised view of [Mr Massoud] and self-place with [Mr Massoud] in the future. [Y’s] sense of self and identify formation is also likely to be impacted by the lack of a meaningful relationship with [Mr Massoud] and [X].
I accept the evidence of the single expert that this is a loss that Y will suffer but it needs to be balanced against the loss of a relationship with the maternal family and the risk that his memory of his mother becomes that held by X.
The grandmother made plain during her cross-examination that she saw very little benefit in Y maintaining a relationship with his father. Whilst Ms E was perhaps not as strident as the grandmother was, she too saw little benefit to Y maintaining a relationship with the paternal family.
The grandmother made plain to the single expert her concerns about Y living in the care of the father. The Family Report records:
87.… [Ms Dione] said that [Mr Massoud] won’t be home with [Y] every night. She also commented that “they” don’t really want kids until they are 15 or 16 years old. [Ms Dione] said she believed that [Mr Massoud] would raise [Y] in a world of illicit drugs and grow up to disregard the law. She also commented that if [Y] goes to live with [Mr Massoud] he will lose his relationship with all of the maternal family.
During the course of her cross-examination, it was abundantly clear that she did not regard the paternal family as having anything to offer Y. She wanted to have no communication with the father and believed that he contributed to her daughter’s death. Ms E held a similar view, saying that she shared the belief that the father had contributed to the death of the mother.
The single expert recorded:
126. [Ms E] said that she does not believe that [Mr Massoud] actually wants [Y] to live with him. She said that [Mr Massoud] had said that he was only a sperm donor for [Y]. [Ms E] went on to say that [Mr Massoud] wants [X] because he is the “right age”.
The single expert records Ms E saying of the father ‘“[she] think[s] he is a piece of shit person’ but added ‘[she is] not sure he is a bad Dad’” (at paragraph 135). She informed the single expert in the following terms:
138.… She said that she knows that she and [Ms Dione] are not the perfect carers but said that they will do things for the children. [Ms E] said that the more [Mr Massoud] has of the children the less of [Ms Massoud] the children will have.
139. [Ms E] alleged that [Mr Massoud] would be happy to “wipe” the children’s memories of [Ms Massoud]. She said that [X] is already saying that [Ms Massoud] never loved him which she said is very untrue. [Ms E] said that there is a strong presence of [Ms Massoud] in their home. She said that [Y] was so little when [Ms Massoud] passed away and his memories of her will fade without support.
Mr N is the only member of the maternal family for whom X retains a positive view and is the only person in the maternal family with whom X wants to maintain a relationship. It is clear that he has over the years played a positive role in relation to each of the two children who both have a very close relationship with him. However, as with the maternal grandmother and aunts, he holds a negative view of the father and the father’s family.
The grandmother is aged 74. The father repeatedly referenced the life expectancy of women of the grandmother’s age, presumably inviting the assumption that she will die at the end of that period. Despite her age, there is no evidence that the grandmother suffers from any health issues. That said, both her and Ms E present as a team seeking to jointly care for Y.
In some respects, that is no different to the caregiving roles promoted by the father. The single expert records:
95. [Mr Massoud] said that he seeks for he and [Ms C] to have equal shared parental responsibility for [Y] and [X], as it will be he and [Ms C] who will parent [X] and [Y]. …
The father says that the applicants were not vigilant in protecting the children from the mother’s alcohol problems and that their own consumption of alcohol exposes Y to risks, including allowing Y to consume alcohol.
I am satisfied that the maternal family either underplayed or were ignorant of the mother’s significant problems with alcohol in the years immediately preceding her death. Each of Ms E and the grandmother said that the mother’s alcohol consumption became problematic in mid‑2021. I accept the evidence from the Department of Communities and Justice (“the DCJ”) contained in Exhibits 2, 3, 4, 5, 6 and 7, which reveals the mother’s relapse seems to extend back to at least 2019.
In determining what time order should be made under s 65DAA(1) and (2) of the Act, the Court looks to whether spending equal time or significant substantial time is in the best interests of the child, and whether as a separate consideration it is reasonably practical.
The best interests of a child are determined by an examination of the factors as set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations in determining what is in the child’s best interests. These 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.
In applying these considerations, the Court is to give greater weight to the consideration set out in s 60CC(2)(b).
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. Those considerations will be discussed further below.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ stated:
76.It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)
In reaching my decision, I have considered all of the relevant sections of the Act, albeit that I am not required as a matter of law to specifically address each such consideration.
PRIMARY CONSIDERATIONS
Meaningful relationship
It is ordinarily in children’s best interests to have a meaningful relationship with their parents.
The Full Court in Sigley & Evor (2011) 44 Fam LR 439 identified the following as important matters of guidance in relation to s 60CC(2)(a) at 463–464:
(a)“a meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 at [26];
(b)“the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)”: McCall & Clark (2009) FLC 93-405 at [118];
(c)“what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”: Godfrey v Sanders (2007) 208 FLR 287 at [36]; and
(d)“[t]he submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make the orders most likely to ensure the children had a ‘meaningful relationship’ with both parents. This is an incorrect assumption. The court’s obligation is to make orders most likely to promote the child’s best interests”: Champness & Hanson (2009) FLC 93-407 at [103].
Y only has one living parent.
On the alternative relief as proposed by the applicants, they contend that Y should spend limited time with his father.
It appears clear from the Family Report that if Y were unable to maintain a meaningful relationship with the father, it would represent a very significant loss for him. I am satisfied, therefore, that it is to the benefit of Y to maintain some form of relationship with his father. I am satisfied, for the reasons that I give and the orders I make, that Y will have, to the extent possible in light of the risks and consistent with his best interests, a meaningful relationship with his father.
As noted, however, the Court’s obligation is to make orders that are in Y’s best interests and the questions of risk and harm are not subordinate to the issue of meaningful relationship.
Section 60CC(2)(b)
The primary focus of these proceedings has been upon the need to protect Y from harm and in that respect each of the parties made allegations of risk against the other as outlined above.
For the reasons I have given, I am not satisfied that the applicants pose an unacceptable risk of harm to Y.
I am, however, satisfied that the father poses an unacceptable risk of harm to Y. That risk includes, for the reasons given earlier, the possibility of exposure to criminal activities, the denigration of the maternal family, the risk of undermining Y’s current settled living arrangements, the risk that Y may not be returned to the maternal family, a risk that pressure will be brought to bear upon Y such that in time he elects not to return to the maternal family, and a risk that Y will be exposed to family violence.
I am satisfied, however, that these risks can be managed by the orders that I propose.
ADDITIONAL CONSIDERATIONS
The Court must also have regard to such of the additional considerations under s 60CC(3) of the Act as are relevant. I will, to the extent that I have not already done so, address the additional considerations.
(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
Y is only seven years old.
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated:
34.In some cases, it may be right, in the exercise of a primary judge’s discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
35.... whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed.
The single expert clearly articulated what Y’s views were about his living arrangements. In that respect, the single expert said:
226. [Y] spoke positively about all family members. He articulated a preference to live with [Mr Massoud] and his reason was because he had missed out on time with [Mr Massoud] when [Mr Massoud] was away […]. [Y] was not able to explain in further detail the reason for his views. It appears likely that [Y’s] articulated view is based on the assumption that he could live with [Mr Massoud] but continue to spend time with the maternal family. [Y] did not impress as having a nuanced understanding of what a change in residence would be like for him. Neither does [Y] appear to understand that there is a high probability of him having no or limited contact with the family with whom he does not live. It is not recommended that significant weight should be placed on [Y’s] articulated views.
I accept the opinion of the single expert as to the weight to be given to his views.
(b) The nature of the child’s relationship with each of the parents and other persons
The single expert records that Y has had a limited opportunity to develop a relationship with his father prior to late 2021. She records that:
204.… The time that [Y] has spent with [Mr Massoud] since [late] 2021, has allowed him to establish a relationship with [Mr Massoud]. [Y] spoke positively about [Mr Massoud], was eager to see him on the day of the observation sessions and appears eager to spend time with [Mr Massoud] during their supervised sessions. However, [Y’s] relationship with [Mr Massoud] has only been developed in a supervised environment, which is a controlled environment, whereby [Mr Massoud’s] parenting capacity and general functioning would have had limited opportunity to be challenge and whereby [X] and [Ms C] have always been present. [Y] is yet to have the opportunity to further develop his relationship on a deeper level by spending less structured, more varied, long periods and individual time with [Mr Massoud].
In relation to the relationship between Y and the maternal family, the single expert observed:
206. [Y] appears to have close relationships with both [Ms Dione] and [Ms E]. His interactions with them appear to be consistent with the history of their role in his life and the apparently close relationship they had with [Ms Massoud]. It was notable that in his interview [Y] said that [X] does not want to talk to “our family” which is suggestive of [Y] strongly identifying as part of the maternal family. [Ms Dione] and [Ms E] spoke about [Y] being quite attached to [Ms E] and exhibiting some separation anxiety or at least uncertainty when they are separated. [Ms Dione] and [Ms E] spoke in an authentic manner about [Y] and were able to acknowledge his strengths and challenges, in particularly they appeared to be honest about his behaviour which appears to be challenging at times, but within the scope of developmentally and situationally typical behaviour.
The single expert also observed and made comment about the relationship between X and Y and his half-brother Z. In that respect, she said the following:
208.It did not appear to be in dispute that [X] and [Y] have a close relationship. The supervision notes and observation session supported the assertion. Given the significant age gap between [X] and [Y] and the circumstances of their life it would appear that there have been times when [X] has taken on a caring role for [Y]. [Mr DD] indicated that his clinical impression from his sessions with [Y] is that he very much missed [X] and wished that they continued to live together. [Y] and [X] are at very different ages and stages of development and it is unclear to what extent [X] will differentiate from the family within the next 2 to 3 years and be less available to [Y]. It is notable that despite the close relationship between [X] and [Y], that [X] has chosen not to spend time with [Y] additional to the supervised time, for example with [Mr N]. It was unclear if [X] has prioritised his negative feelings towards the maternal family over his relationship with [Y] or if he has felt he did not have permission from [Mr Massoud] to spend such time with [Y].
209.[Mr Massoud] and [Ms C] spoke about the close relationship between [Y] and [X] and [Z]. [Y] was seen to delight in [Z] on the day of the observation session. The supervision notes appear to indicate that [Y] seeks [Z] out during the sessions and appears to dote on his half-brother.
I am satisfied that, to the extent to which he has been able, Y has good relationships with each of the significant persons in his life.
The proposals of all parties inhibit, to a certain extent, Y’s relationships with each of the wider extended family.
(c) Extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; spend time with the child; and communicate with the child
During the term of the father’s imprisonment he was clearly limited in his ability to make long‑term decisions about Y. It would appear that all of those decisions were made by the mother or the grandmother. Orders were made on 11 February 2022 which provided sole parental responsibility to the grandmother. Consequently, the father has not had an opportunity to partake in making long-term decisions in relation to the child.
(ca) Extent to which each of the parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
This does not appear to be a relevant consideration.
(d) Likely effects of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
This has been canvassed extensively above.
The single expert observed:
222. [Mr Massoud’s] suggestion that [Y] could transition to living with him on a full-time basis, having no memory of ever having spent one on one time with [Mr Massoud] and only really having an experience of weekly supervised time for a limit number of hours, does not provide confidence that [Mr Massoud] has a sound understanding of [Y’s] psychological needs nor that he would be able to provide suitable support to assist [Y] with a change of residence.
223. [Y] appears to coping relatively well at present and there would be a significant risk associated with moving [Y] to the care of [Mr Massoud], due to [Mr Massoud’s] limited capacity to support [Y’s] adjustment to the move, as well as his medium to long term capacity to meet his emotional needs. [Ms C’s] comments about [Y’s] transition also raised concerns about the capacity to step in and support his adjustment.
I accept the opinion of the single expert that there are significant risks associated with Y living with the father. One of those risk is that it could leave to a permanent separation of Y from the maternal family as has happened with X.
(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
Not relevant.
(f) The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The single expert records:
214. [Ms Dione] and [Ms E] appear to have significant caregiving strengths. They both present as warm and motivated to attend to the children’s needs. [Ms Dione] spoke about her challenges with getting [Y] to complete his homework and spoke about how she prioritises the homework that she deems most important. However, it was concerning that [Ms Dione] had not taken the time to read [X’s] end of year 10 report. It is noted that [Ms Dione] appears to have been seeking to change [Y’s] school, however, it was positive on interview when [Ms Dione] stated that it is important that [Y] have the opportunity to adjust to significant changes one at a time. [Ms E’s] comments about [X’s] education and subject selection demonstrated a capacity to be realistic about children’s educational strengths and the importance of children having a sense of mastery and competence. The accounts provided suggest that in the care of [Ms Dione], the children had the opportunity to be engaged in peer relationships outside of school, age-appropriate extra-curricular activities and relationships with their extended family. It would appear that the children had multiple layers of support networks and the opportunity to develop skills outside of the home and school; this would be a significant protective factor for the children.
She also observes:
216. [Mr Massoud] and his household appear able to attend to both [X] and [Y’s] physical needs. His household appears well resourced and there appears to be a history of them ensuring that [X] attends school. However, this assessment raises significant concerns about [Mr Massoud’s] capacity to attend to the children’s developmental and psychological needs.
She also observed:
228. [Ms Dione] has demonstrated a willingness to facilitate [Y’s] time with [Mr Massoud] over an extended period of time. Based on the supervision notes, [Y] appears to have eagerly engaged in these sessions, suggesting that the maternal household has given him psychological permission to do so. Based on the history of this matter it appears likely that [Ms Dione] would tolerate [Y] (and [X] if he lived with her) spending some time with [Mr Massoud].
229. Conversely, [Mr Massoud’s] presentation, [X’s] current spend time arrangements, [Mr Massoud’s] declaration that [Y] “will” live with him and noncompliance with the orders thus far, suggest that it is highly unlikely that [Mr Massoud] would facilitate for [Y] to spend time with the maternal family if [Y] was in his care. Based on the information available to this report it appears that [Mr Massoud] would have a low level of motivation to facilitate for [Y] to spend time with the maternal family and a low likelihood of it occurring.
230. If [Y] lived with [Ms Dione and spent time with [Mr Massoud], it appears likely that [Y] would be exposed to high levels of negativity about the maternal family, that the time would be used to actively influence [Y’s] views and destabilising his placement with [Ms Dione], this would place [Y] at risk of psychological harm and of running away. …
I accept the opinion of the single expert that the applicants are on the whole able to meet the emotional and psychological needs of Y.
I accept the opinion of the single expert that there are significant deficits to the father’s parenting capacity as she outlines. Those deficits have the potential to expose Y to a range of psychological harms.
(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;
The single expert in the Family Report opined as follows:
246. Both the maternal and paternal family have different cultural and religious backgrounds. It would appear unlikely that the family with whom the children live will provide the children with the opportunity to immerse themselves in the culture and religion on the other side of the family. This is a further loss that the children will experience and the Court is limited in its capacity to limit this loss. Occasional supervised time for identity purposes would provide the opportunity for some experience the both cultures.
I agree with her conclusion.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her culture; and the likely impact any proposed parenting order under this Part will have on that right
Not relevant.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This has been canvassed extensively above.
(j) Any family violence involving the child or a member of the child’s family
This has been addressed extensively above.
(k) Any relevant inferences that can be drawn from a family violence order, if it applies
This has been addressed extensively above.
(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
These parties have been in conflict about the children’s living arrangements since their mother’s death. It is in Y’s best interests for the proceedings to end and for Y to have some certainty in his life. I am hopeful that the orders I make are the least likely to lead to further proceedings.
I am confident that if the father’s orders were made there would be further litigation about time between the maternal family and Y.
(m) Any other fact or circumstance that the court thinks is relevant.
The single expert reported:
245. A significant issue in this matter is [Ms Dione’s] age. She appears to be in relatively good health at present and it would appear that she has the capacity to meet [Y’s] needs at present. However, [Y] is young and there may be changes in [Ms Dione’s] functioning and capacity to care for [Y] before he turns 18 years of age. It is noted that [Ms E] is not a party to these proceedings but that [Ms Dione] is heavily reliant on [Ms E’s] support to care for [Y]; it is likely that this will increase over time and that if [Y] was to remain living with [Ms Dione] that [Ms E] will likely take over the primary care as time goes on. If the Court was minded for [Y] to remain in [Ms Dione’s] primary care, the Court would need to be satisfied that [Ms E] is willing and suitable to play an ongoing and significant role in the care of [Y].
No submission was made as to why the grandmother, because of her age, was an inappropriate applicant for Y’s long-term care.
Counsel for the father submitted that there has been a failure by Ms E to put before the Court any evidence that would enable the Court to determine whether she is an appropriate long-term carer for Y and an appropriate person to have parental responsibility for him. He submitted that the evidence from the single expert reveals that Ms E was diagnosed with mild depression, has been prescribed an antidepressant, and has seen a psychologist. He submitted that Ms E has given no evidence about these matters.
Ms E was first proposed as an applicant after the closure of the grandmother’s case and at a point when cross-examination of the father had commenced. That provides an explanation as to why there was no evidence in the affidavit of Ms E.
The father’s counsel, however, was granted the opportunity to further cross-examine Ms E after she was joined as an applicant. Ultimately, he declined that opportunity.
I note the contents of the Family Report, which records as follows:
133. [Ms E] said that she has become a substitute to [Y] since [Ms Massoud’s] passing. She said that he has some separation anxiety with her and explained that he questions her if she is leaving the room, does not like her going out and needs to know where she is going and when she will be back. [Ms E] said that she helps [Y] manage separations from her by helping him have an understanding of what to expect.
134. [Ms E] said that [Y] often talks to [Ms Massoud]. She said that he thinks that [Ms Massoud] is in heaven and will send him good luck. [Ms E] said that around September/October 2022 [Y] had a few weeks when he was particularly sad and was saying that he misses his mother. She said that with lots of love and attention this improved. [Ms E] commented that [Y] is a child who craves more love and attention than other children might.
I am of the view that Ms E is a critically important person to Y and demonstrates significant insight into his particular needs, including the need to talk about his late mother. I also note that she is a person who helps Y manage separations.
I also note paragraph 206 where the single expert records the close relationship that Y has with both the grandmother and Ms E and in particular, her observation that Y’s interactions “with them” are consistent with them playing a role in his life. She further records:
206.… [Ms Dione] and [Ms E] spoke in an authentic manner about [Y] and were able to acknowledge his strengths and challenges, in particularly they appeared to be honest about his behaviour which appears to be challenging at times, but within the scope of developmentally and situationally typical behaviour.
I also note the observations of the single expert recorded at paragraphs 214 and 215 of the Family Report to which I have previously referred to. Those paragraphs make it clear that both applicants have significant care-giving strengths, that they are warm and motivated to attend to the children’s needs, and that both have played a significant role in facilitating the children’s attendances upon counsellors as well as giving them “permission to express their thoughts and feelings about [the mother’s] passing and remember and celebrate her life” (Family Report, paragraph 215).
I am satisfied that Ms E is an appropriate long-term carer with her mother in relation to Y and I am equally satisfied that she is an appropriate person to whom there should be allocated parental responsibility.
PARENTAL RESPONSIBILITY
Pursuant to s 61DA(1) of the Act, the Court is required to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility.
Here there is only one living parent. In those circumstances, the section has no application.
Neither party sought an order for joint parental responsibility.
Counsel for the father submitted that the parties’ relationship is highly conflictual. I agree with that submission.
The single expert records:
239. Both [Ms Dione] and [Mr Massoud] spoke in a negative manner about each other and they did not demonstrate a respect or positive regard towards each other. [Mr Massoud’s] tone, language and the theme of his comments about [Ms Dione] were particularly derogatory.
240. It does not appear that there has been a history of [Ms Dione] and [Mr Massoud] communicating with each other to make arrangements or decisions for the children, since [Ms Massoud’s] passing.
…
243. The information obtained in the course of this assessment would suggest that [Ms Dione] and [Mr Massoud] do not have the willingness or capacity to effectively communicate about caregiving decisions for the children. Based on the dynamics and conflict between [Ms Dione] and [Mr Massoud], it appears likely that timely decisions would not be made if [Ms Dione] and [Mr Massoud] had shared parental responsibility. Furthermore, there is the risk that the execution of shared parental responsibility would be used to continue the conflict between the two.
244. However, it appears unlikely that if [Ms Dione] or [Mr Massoud] had sole parental responsibility for one of both children that they would share any information with the other or discuss significant decisions out of curtesy.
I agree with these observations.
In light of my findings as to unacceptable risk, I am of the view that Y’s best interests are served by an order for parental responsibility in favour of the applicants.
I will now proceed to address what time Y shall spend with each party.
WHICH PARTY SHOULD Y LIVE WITH AND WHAT TIME SHOULD HE SPEND WITH THE OTHER PARTY?
In view of my findings about unacceptable risk and parental responsibility, then consistent with my findings Y should live with the applicants.
Unsupervised time with the father would expose Y to the unacceptable risks to which I have referred to earlier in these reasons. Likewise, a continuation of the current supervised time was not supported by the single expert in part because it was her opinion that it was not working in that the supervisors were not adequately protecting Y and also because weekly supervision was contraindicated due to the risk factors. There was no challenge by any counsel to this proposition. I accept her opinion in that regard.
The father did not seek alternative orders for a continuation of the current supervised time arrangement.
In light of the single expert’s opinion and the position of the father, that leaves either a no time order or an identity contact order. No party suggested another alternative. The single expert’s opinion as articulated in paragraph 238 of the Family Report was that a no time order exposed Y to a significant risk of harm. In cross-examination, the single expert said:
[HIS HONOUR]: Okay. The current order, given the supervision reports, doesn’t seem to be necessarily working in the sense of the supervisors just don’t seem to me to be doing their job?
[THE SINGLE EXPERT]: Mmm.
[HIS HONOUR]: Is that your assessment?
[THE SINGLE EXPERT]: I do have concerns about it, yes.
[HIS HONOUR]: Right. If the supervisors can do their job, what do you say about the frequency of it?
[THE SINGLE EXPERT]: Look, it’s tricky because it’s hard to say how well the supervisors can do their job. But, look, I guess based on all the information that I had, the relationship – look, [Y] has had a lot of loss in his life. So, really, he doesn’t have an established relationship with dad, but if he wasn’t to have time with dad, he wouldn’t – he also loses the idea of dad, if that kind of makes sense. Because – which I think is important to [Y]. So I think the idea of dad now being in his life is important to him. So – however, my concerns about the risks that the father poses and my concerns about the impact that might have on [Y] mean that I think his relationship with dad and kind of the function of that is more to give [Y] the experience of knowing dad and knowing a little bit about him and having, you know, obviously the opportunity to experience some cultural – you know, there’s different cultural backgrounds. I think that’s a significant factor for him as well. I don’t think weekly supervision, if the supervisor was doing a really good job, appears indicated in this matter based on the other risk factors. And I guess the – the strength of [X’s] sort of negative reaction to the maternal family in such a short period of time raises concerns about just I guess the sort of strength of the father’s influence which I think is a consideration when thinking how frequent that time can be. So I would be more inclined to think it’s, you know, more in the category we took about identity purposes.
[HIS HONOUR]: Is there a concern - - -?
[THE SINGLE EXPERT]: So - - -
[HIS HONOUR]: Well, one of the concerns quite often in these cases is that the child creates an idolised picture - - -?
[THE SINGLE EXPERT]: Yes.
[HIS HONOUR]: - - - in their mind of their father?
[THE SINGLE EXPERT]: Mmm.
[HIS HONOUR]: And that then leads to problems when they’re in their early teens of perhaps just seeking out dad?
[THE SINGLE EXPERT]: Yes.
[HIS HONOUR]: So there’s the tension there between that risk - - -?
[THE SINGLE EXPERT]: Yes.
[HIS HONOUR]: - - - at an earlier age than might necessarily be the case at 16 or something?
[THE SINGLE EXPERT]: Mmm.
[HIS HONOUR]: So how do I – how do I balance that risk?
[THE SINGLE EXPERT]: Look, I think it’s difficult because I’m – my clinical impression is there is a significant chance that in the end, [Y] might end up living with the father based on sort of that idealised idea of dad and kind of that role of who he might want in his life. So, look, I guess, in terms of balancing it, I think it would be a small amount of contact but not too much. The thing that I think is difficult – when we talk about, you know, a child sort of idealising and then reaching out and potentially putting themselves in more risk when they’re a bit older, the difficulty with a supervised time, when you read the supervision reports, that’s pretty idealised time, isn’t it? Kind of having a shopping trolley where you fill it with toys and you get – come home with cash all the time and, like, there’s going to be a certain level of however that supervised time goes to keep it more safe for him by having the supervisor there and in such a contained environment. It does create some context that can also create sort of a somewhat idealised image of what that might look like.
[HIS HONOUR]: So because - - -?
[THE SINGLE EXPERT]: But that – I’m not sure the court can do anything about that.
[HIS HONOUR]: So the trouble with the identity contact is that it could also lead to the idealisation that [Y] on the least worst outcome would be living in a household where, really, he has no siblings. He has cousins but he – he has no siblings. He sees his father on an identity basis and there will be [X], there’s [Z], there’s another child on the way, so there will be this intact family unit to a certain extent. That’s a big pull factor, isn’t it?
[THE SINGLE EXPERT]: It is. It is. And, so, that in itself might then destabilise his placement in the maternal household. So there are also inherent risks in continuing any relationship with the father. So, I mean, that would be – a consideration would be no time but I guess given his losses already, in kind of weighing it up, I think [Y] might grow to resent the maternal family if he has no opportunity to have any contact and I think that would have more risk of pushing him and destabilising that relationship.
[HIS HONOUR]: So what does that start to look like, then?
[THE SINGLE EXPERT]: So I think it looks like every month or two kind of contact is what I would say.
(Transcript 23 February 2023, p.18 line 5 to p.19 line 30)
The single expert also said that there needed to be a limit to the number of people attending the supervised sessions. In that respect, she said:
[HIS HONOUR]: And should there be a limit on the number of people? Because then you get these issues about supervision?
[THE SINGLE EXPERT]: I think – look, I think there should – I think on a special occasion, for [Y] to be able to say, go to [Z’s] birthday party like he did, I think that’s a positive – on an occasional basis. I don’t – I don’t know – I mean, look, it’s difficult because I think it’s helpful for him to have the opportunity to know his half – little half siblings. Because he seems to be – you know, [Y] seems to be a really warm kind of kind who likes to dote on the little ones. So I think that’s probably a bit protective for him to have them there. So I mean, I don’t think it’s necessary to, on a regular basis, have extended family there. But to have the immediate family I think – I guess I just think that the supervisor needs to be adequately briefed about the – the issues, and then the supervision reports would need to be just monitored and then if need be, two supervisors might be required to adequately manage the time.
(Transcript 23 February 2023, p.19 line 41 to p.20 line 5)
I accept her recommendations.
The single expert said that time for identity purposes could be supervised time every month or every second month for about five hours. While long-term supervision is in some circumstances inappropriate, in this case it is for the reasons given by the single expert the only viable alternative.
Such a time proposal ensures that Y is able to maintain a meaningful relationship with his father, X and members of the paternal family, while also protecting him from the risks that come with more time. It remains a balance in light of the risks identified in the evidence. I am of the view that the time orders as proposed by the ICL strike the right balance save that there needs to be a limit on the number of persons attending the supervised sessions. In my view, that number should be limited to a maximum of four people. This would accommodate the attendance of at least the father, his partner, X and Z. I accept that the father’s partner is pregnant and a baby is due shortly. However, too many people present will impact upon the capacity of the supervisor to properly carry out their role. It may be that if the father wishes to include his new child or other members of the paternal family, then his partner or Z will not attend. It is a matter for the father to choose.
The ICL also proposed orders in relation to X spending time with Y and Mr N. I do not propose to make such an order. In my view, the order as drafted will not achieve what is intended. I am also of the view that an order of that type carries significant risks. In that respect, the single expert said in cross-examination:
[COUNSEL FOR THE ICL]: Going back to the question of the two brothers, regardless of [Y’s] contact with his father, would you agree that he should have as much contact as possible with [X], albeit perhaps under a supervised arrangement?
[THE SINGLE EXPERT]: I – based on I guess the history of what’s occurred and where [X] seems to be out at the moment, I do have concerns about [X] being recruited to seek to influence or undermine [Y’s] placement in the maternal family. So - - -
[COUNSEL FOR THE ICL]: Hence the need for supervision of the two brothers?
[THE SINGLE EXPERT]: Yes. I believe so.
(Transcript 23 February 2023, p.21 lines 20–27)
I agree with her concerns. In circumstances where that time has not occurred to date, I have little confidence that it will occur. X will see Y in the supervised sessions. X knows how to contact Mr N. If his father really wants X to have a relationship with Mr N, then it will occur irrespective of any order the Court makes.
The single expert proposed that the father should attend upon a psychologist. The father did not propose such an order and in those circumstances, I will not make such an order.
The ICL and single expert proposed an order should be made that the applicants ensure Y attends counselling. In my view, such an order is unnecessary given they have already implemented such a regime and I am satisfied they will continue it.
I propose to make orders, which sit consistently with the recommendations of the single expert as to the time arrangements for Y.
In my view, the orders that I propose are ones that are in Y’s best interests.
COSTS OF THE INDEPENDENT CHILDREN’S LAWYER
At the conclusion of the hearing, the ICL sought an order for costs. In that respect, the ICL sought an order that the father pay the costs of the ICL assessed in the sum of $7,748.12 whilst the grandmother pay the costs of the ICL assessed in the sum of $9,398.12.
The grandmother and the father opposed the order for costs.
Each party contended that their financial circumstances were dire.
An application for costs is governed by the provisions of s 117 of the Act, which provides a general rule that each party to the proceedings should bear their own costs.
Section 117(2) reposes in the Court a discretion to make a costs order in circumstances where the Court determines that there are circumstances that justify it making an order and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A).
In Penfold and Penfold (1980) 144 CLR 311, the plurality in the High Court determined that to make an order under s 117(2), the Court needs to make a finding of justifying circumstances as a preliminary prerequisite to the making of an order. Their Honours also observed that terms such as ‘an exceptional case’, ‘special circumstances’ or ‘a clear case’ are not necessary determiners of whether or not an order for costs should be made. All that is required or necessary is that there are justifying circumstances.
It is well-settled law that no one factor under s 117(2A) is determinative and the Court may give such weight as it considers relevant to any factor. In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123, the Full Court observed:
41. … Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs
I note that neither party made any extensive submissions in relation to the question of costs.
Impecuniosity is not of itself a reason why a court would not make a costs order.
Enquiries made with counsel for the applicants indicated that at the time of the appointment of the ICL, that they did not oppose the appointment.
Likewise, in relation to the father, the father’s Response (filed as an Initiating Application) actually sought an order for the appointment of an ICL.
In those circumstances, I am satisfied where the appointment is not opposed by one party and is positively sought by the other, that it is a circumstance sufficient to justify the making of the orders as sought by the ICL.
I propose to make an order that the parties pay the costs of the ICL in the amount sought.
I certify that the preceding three hundred and fifty-six (356) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 10 March 2023
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