Eliasco and Eliasco
[2014] FamCA 1157
•19 December 2014
FAMILY COURT OF AUSTRALIA
| ELIASCO & ELIASCO | [2014] FamCA 1157 |
| FAMILY LAW – CHILDREN – Undefended proceedings where mother elects not to participate in the proceedings – Where biological father of the eldest child with knowledge of the proceedings fails to participate – Where significant protective concerns in relation to the mother – Where biological father of the older child has little or no relationship with that child – Where it is appropriate to make orders finalising parenting proceedings – Consideration of the best interests of the children. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN |
| Jarrah & Fadel [2014] FamCAFC 14 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Farmer & Rogers [2010] FamCAFC 253 Goode and Goode (2006) FLC 93-286 MRR v GRR (2010) 240 CLR 461 Mazorski & Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405 |
| APPLICANT: | Mr Eliasco |
| RESPONDENT: | Ms Eliasco |
| INDEPENDENT CHILDREN’S LAWYER: | Mark MacDiarmid Family Law Specialist |
| FILE NUMBER: | PAC | 607 | of | 2014 |
| DATE DELIVERED: | 19 December 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 3 December 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kenny |
| SOLICITOR FOR THE APPLICANT: | Everett Cs Solicitors |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mark MacDiarmid Family Law Specialist |
Orders
That all previous parenting orders be discharged.
That the applicant father have sole parental responsibility for the children B born on … 2008 and C born on … 2010.
That the children live with the applicant father.
The father and mother must:
(a) Contact the Suburb D Children’s Contact Centre (“the Contact Centre”) within 28 days and arrange an appointment for assessment for suitability for supervision of the time the children spend with the mother;
(b) Attend the assessment;
(c) Comply with any appointments made by the Contact Centre for supervised time;
(d) Comply with all reasonable policies and rules of the Contact Centre; and
(e) Comply with all reasonable requests or directions of the staff of the Contact Centre.
If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in order 6 then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days written notice to the other party and to the Court.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the mother is to have contact with the children each fortnight at times nominated by the Contact Centre and such contact is to occur at the Contact Centre.
The father must deliver the children to and collect the children from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
In the event that the Contact Centre offers supervised time only at times which are less regular than specified in order 6, then, contact shall occur at the times that are offered by the Contact Centre.
The father and mother or either of them are to attend and undertake and/or course of therapy, counselling or intervention as is reasonably directed by the Manager or Director of the Contact Centre which could include referrals to other service providers.
The time the children spend with the mother under order 6 is to be supervised by the Contact Centre and the mother must pay the reasonable fees for the supervision on each occasion of supervision.
The mother must not attend the Contact Centre or its vicinity before the time with the children is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the children is to end.
If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party or the Independent Children’s Lawyer may on 7 days written notice to the other party and the Court restore the matter to the list.
If during the currency of these orders the parties and the children’s representative agree in writing to vary these orders the parties have leave to list the proceedings in chambers urgently for consent orders to be made.
The period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.
That the mother be restrained from approaching, contacting or spending time with the children at their schools.
The father and Mr E must:
(a) Contact the Suburb D Children’s Contact Centre (“the Contact Centre”) within 28 days and arrange an appointment for assessment for suitability for supervision of the time the child B spends with Mr E;
(b) Attend the assessment;
(c) Comply with any appointments made by the Contact Centre for supervised time;
(d) Comply with all reasonable policies and rules of the Contact Centre; and
(e) Comply with all reasonable requests or directions of the staff of the Contact Centre.
If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in order 18 then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days written notice to the other party and to the Court.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised time Mr E is to have contact with the child B not more than once every two months at times nominated by the Contact Centre and such contact is to occur at the Contact Centre.
The father must deliver the child B to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
In the event that the Contact Centre offers supervised time only at times which are less regular than specified in order 18, then, contact shall occur at the times that are offered by the Contact Centre.
The father and Mr E or either of them are to attend and undertake and/or course of therapy, counselling or intervention as is reasonably directed by the Manager or Director of the Contact Centre which could include referrals to other service providers.
The time the child B spends with Mr E under order 18 is to be supervised by the Contact Centre and Mr E must pay the reasonable fees for the supervision on each occasion of supervision.
Mr E must not attend the Contact Centre or its vicinity before the time with the children is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the children is to end.
If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party or the Independent Children’s Lawyer may on 7 days written notice to the other party and the Court restore the matter to the list.
If during the currency of these orders the parties and the independent children’s lawyer agree in writing to vary these orders the parties have leave to list the proceedings in chambers urgently for consent orders to be made.
The period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.
That the Independent Children’s Lawyer forward a sealed copy of these orders by ordinary pre-paid post Mr E at F Street, G Town, NSW… within 7 days of receiving same from the court.
That the appointment of the independent children’s lawyer shall continue for a period of 6 months from the date of orders and thereupon be discharged.
That each parent be restrained from discussing these proceedings with the children including but not limited to any child protection issues that have been raised during the course of proceedings by any person in relation either parent or any other person,
The father is authorised and permitted to apply for and receive an Australian passport for the children B born … 2008 and C born … 2010 without first obtaining the consent of the mother or Mr E, the biological father of the child B.
The father is authorised and permitted to travel internationally with the children.
That mother and father shall keep the other advised at all times of their residential address, email address and contact telephone number and shall advise the other party within 48 hours of any change to either their residential address or telephone number.
That each parent be permitted to communicate directly with the children’s schools, sporting bodies and medical practitioners to obtain any necessary information and all documents about the children’s progress and this order shall constitute sufficient authority for such communication.
That both parents keep the other advised of the health of the children including any serious illness, medication or hospitalisation of either child as soon as reasonably practicable and to allow the other parent to visit the children if hospitalised.
That the children communicate with both parents by telephone at any reasonable time when they are in the other parents’ care and each parent shall do all things necessary to facilitate the children communicating with the other parent by telephone on a regular basis and that the mother’s communication with the children pursuant to this order be monitored by the father for a period of 12 months.
That each party shall at all times:
(a) Be courteous and respectful to the other party and any members of the children’s families;
(b) Not to denigrate the other party or any members of the children’s families; and
(c) Be restrained from using profane language and making derogatory comments about the other party or any members of the children’s families in the presence or hearing of the children and shall remove the children from the presence of any person who is denigrating the other party or any members of the children’s families in the presence or hearing of the children.
That the father shall:
(a) Do all things necessary and attend all appointments to continue his participation in the Brighter Futures Program until advised by that program’s coordinator that his participation is no longer required and he will ensure that the children are available for participation in that program; and
(b) Do all reasonable things to ensure the child B continuing attendance and engagement with therapeutic counselling provided by Mr H until Mr H informs the father that the child’s attendance is no longer required; and
(c) Himself attend upon, and ensure B’s participation with, such other professionals or support services as either or both of Mr H and the Brighter Futures Program may refer him to.
That the Independent Children’s Lawyer have liberty to apply during the continuance of his appointment.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eliasco & Eliasco has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 607 of 2014
| Mr Eliasco |
Applicant
And
| Ms Eliasco |
Respondent
REASONS FOR JUDGMENT
The father’s application for parenting orders was filed on 12 February 2014.
The father sought orders in relation to the children B born in 2008 and C born in 2010. The child C is a child of the father’s relationship with the mother and the child B a child of the mother’s previous relationship.
In summary the father sought orders in relation to the children that provided that he have sole parental responsibility, that the children live primarily with him and that the children spend defined time with the mother being alternate weekends, special days and at other times as agreed between the father and mother.
The father more relevantly sought orders that provided for the mother to undertake a mental health assessment, continue treatment with her psychologists or health professionals and continue to take medication as prescribed.
The father’s application came before the Federal Circuit Court on 24 March 2014. On that day the court appointed an independent children’s lawyer (ICL) and by consent made interim parenting orders that in summary provided as follows:
a)That the children live with the mother;
b)That the children spend time with the father on a supervised basis for three consecutive Sundays between 10:00am and 4:00pm and thereafter on an unsupervised basis each Sunday from 9:00am until 5:00pm;
c)That the parties be restrained from consuming more than one standard drink in a 24 hour period when the children are in their care;
d)That the parties be restrained from denigrating the other or any member of the other party’s family within the presence or hearing of the children;
e)That the parties be restrained from physically disciplining the children;
f)Otherwise the parties were ordered to attend a family dispute resolution on 19 May 2014; and
g)Proceedings were adjourned for mention on 17 June 2014.
On 14 May 2014 proceedings were again before the Federal Circuit Court and with the consent of the parties and the agreement of the independent children’s lawyer the proceedings were transferred to this court.
On 21 May 2014 proceedings were before this court and further orders were made by consent without prejudice to interim orders to be sought by either party. The further consent orders in summary provided as follows:
a)That pending determination of the parties interim applications the children live with the father;
b)That subject to the independent children’s lawyer receiving undertakings from proposed supervisors the children spend supervised time with the mother as follows:
i)Each Saturday from 9:00am to 5:00pm;
ii)Each Thursday from 3:40pm until 6:30pm;
iii)On Sunday 25 May 2014 from 9:00am to 5:00pm; and
iv)By visiting the child C at his preschool with the consent of the preschool and upon written notice being provided to the father;
c)The father was permitted to re-enrol the child C at his preschool at Suburb M and to enrol the child B at the L School;
d)The mother was ordered to engage with the I Child Protection Service, J Town and the J Town Community Health Facility Drug and Alcohol Service and such other services as the independent children’s lawyer may refer her to;
e)The father was ordered to engage with such services as the independent children’s lawyer may refer him to;
f)Both parties were ordered to undertake liver function enzyme and CDT testing; and
g)Dr N, clinical psychologist was appointed to prepare an expert report under Chapter 15 of the Rules.
The circumstances leading to the making of these orders are considered below.
Proceedings were adjourned for interim hearing to 16 June 2014.
On 16 June 2014 the maternal grandparents sought and were granted leave to intervene in the proceedings as the second and third respondents and ordered to file a Response setting out the orders they sought within 7 days.
The report of Dr N had become available and was released to the parties.
Proceedings were adjourned for interim hearing to 18 July 2014. Otherwise the Director-General of the Department of Family and Community Services was requested by the court to intervene in these proceedings in relation to the subject children.
On 18 July 2014 further interim parenting orders were made by consent. Those orders in summary provided:
a)That the children continue to live with the father;
b)That the children spend time with the mother on a daily basis between 9:00am and 5:00pm on specific days and thereafter commencing 23 August 2014 each shall turn it weekend from 9:00am Saturday until 5:00pm Sunday and commencing 24 July 2014 each Thursday from after school or 3:00pm if a non-school day until 6:00pm;
c)For the parties to have leave to approach the list clerk for allocation of trial dates and for trial directions.
Subsequently on 26 September 2014 consent orders were made appointing Dr N as a Chapter 15 expert for the purposes of preparation of an updated family report.
On 14 October 2014 the applicant father filed an amended initiating application. He sought orders in that document in relation to the children that in summary provided for him to have sole parental responsibility for the children, that the mother have supervised time with the children at a contact centre and other specific issues orders including that the mother undertake a mental health assessment.
On 4 November 2014 the single expert’s report by Dr N was released to the parties and to the ICL.
On 4 November 2014 each of the parties’ solicitors was informed that proceedings were listed for trial commencing Tuesday 2 December 2014.
Following the solicitors for the mother filing a Notice of Ceasing to Act the independent children’s lawyer requested that proceedings be relisted for directions. Proceedings were relisted on 27 November 2014 with the mother being informed via her email address as disclosed in her solicitor’s Notice of Ceasing to Act.
On 27 November 2014 there was no appearance by or on behalf of the respondent mother. Proceedings were adjourned to 3 December 2014 at 10:00am for hearing. The court further ordered that in default of there being any appearance by or on behalf of the respondent mother at the commencement of the hearing the matter proceed to undefended hearing. The independent children’s lawyer was ordered to forward to the mother by ordinary prepaid post and by email a letter informing the mother of “the listing today and of the orders made by the court today informing her that in the absence of her appearance at the commencement of the hearing the matter will proceed to a final hearing in her absence”.
On 3 December 2014 there was no appearance by or on behalf of the mother, she being notified in accordance with orders made on 27 November 2014.
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:
Parties' participation
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
(3) …
In the event that the Court was not disposed to apply the provisions of rule 16.07, an adjournment of the proceedings would have been necessitated. The future conduct of the proceedings would be problematic in relation to the mother’s involvement and leave uncertain the circumstances of the children.
Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainsley-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:
… delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.
Her Honour made reference to the principles imposed upon Judges conducting child-related proceedings and referred to the fifth principle set out in section 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Her Honour went on to say at [11] in Jarrah & Fadel (supra):
… The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed who has briefed, at cost to the taxpayers, Counsel.
In the earlier decision of Farmer & Rogers [2010] FamCAFC 253, the Full Court, having made reference to Aon Risk Services (supra), said:
197. In our view, it is also important to consider the nature of parenting litigation. It is well established that the jurisdiction in child related proceedings is different from other inter party civil litigation and in certain circumstances, the rules of natural justice may be qualified. In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Brennan J said at 457:
If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred the application of those principles would have to be qualified. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; eg, it may be necessary to keep a welfare report confidential.... But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred. (citations omitted)
At the commencement of the hearing the independent children’s lawyer provided to the court a statement received from the mother (Exh A). The mother through that statement informed the court that she did not propose to participate in the proceedings.
The mother had been on notice of the impending hearing and clearly indicated she did not wish to participate. The matter proceeded to an undefended hearing.
The children’s circumstances
The father at hearing was nearly 36 years of age. The mother was 33 years of age.
The parties commenced cohabitation in about March 2009 and separated on a final basis on 27 November 2013. The child C is the only child of their relationship. The child B is a child from a previous relationship of the mother but the child has been part of the mother and father’s household since he was 6 months of age. The father asserts a very close and loving relationship with the B who refers to him as “daddy”.
Subsequent to the commencement of cohabitation and in about December 2009 the mother and father moved to Sydney. The father says that it was about that time he noticed the mother’s alcohol consumption was becoming a problem. The mother drank beer and cider to the point of being tipsy or drunk on weeknights and during the day.
The father expressed concern that the mother was becoming distant from himself and the child B. He confronted the mother who asserted that “it’s all good”.
The mother announced her pregnancy in March 2010 and the father observed that she continued to smoke cigarettes and drink wine whilst she was pregnant. He remonstrated with her but says that the mother’s response was to abuse him and not talk to him for days on end.
Notwithstanding his requests the mother refused to stop drinking alcohol and smoking. The mother asserted that “smoking will make the baby smaller and easier to give birth to” and “the doctor said that wine is good for the baby and my blood flow”.
The father says that during the latter stages of her pregnancy the mother became increasingly careless about the care of the child B. In the evenings he would come home from work to find the house dirty, closed up and generally untidy. He would find the mother in the backyard reading magazines and drinking wine.
In October 2010 the father purchased a home for the parties and the children to reside in at Suburb O. The property was purchased in the father’s name as the mother had previously been declared bankrupt.
The child C was born in 2010.
Subsequent to the birth of the child the mother continued drinking wine excessively to the point of being intoxicated each night. The father says as a consequence he was significantly involved in the child C’s day to day care and also that of B.
The father continued to confront the mother about her alcohol use and she abused him. The father arranged to work half days for about a month to be available for the care of the children.
After the birth of the child C the mother said to the father “I’m too tired from looking after 2 feral kids all day, you get to go to work and get out of the house, I have to stay at home all day and battle with the kids”.
The father observed that the mother became more and more distant, angry and excessively abusive. The mother continued to drink to excess and smoke.
In December 2011 the child C was diagnosed with a rare blood disease idiopathic thrombocytopenic purpure (“ITP”).
In March 2012 the child B broke his arm. The father took the child to the hospital where the child had surgery. The mother refused to stay at the hospital with the child and the father stayed at the hospital for four nights. A short time later in late April 2012 the child C suffered from croup. The father drove the child to hospital during the night as the mother was heavily intoxicated and stayed at the hospital for two days and two nights. The mother visited on one occasion for about 30 minutes.
In April 2013 the mother disappeared from the parties’ home for several days with the children. Subsequently the mother attended upon Dr P and was diagnosed with depression. She was prescribed the antidepressant Paroxetine. However to the father’s observation the mother did not commence the recommended medication and continued to drink heavily.
Later on 6 June 2013 the father returned from work to be given a note by the mother informing him that she wanted to separate. The parties remained under the one roof, however the mother continued to drink to excess and be abusive and physical towards the father. The father became increasingly concerned about the mother’s erratic behaviour.
Prior to separation the mother’s cleanliness in and around the house was an issue. She allowed the children to remain in their pyjamas during the day and often for some days at a time only changing them so they could attend day care on Tuesdays and on the weekends when the father was home. The mother ceased showering regularly.
The father then found full and open casks of wine hidden around the home, including under the sink and under washing in a laundry basket.
On 26 November 2013 the father was required to travel to Melbourne for a business trip. On the evening of 27 November 2013 he was informed by a friend that a car had been seen at his home and it appears that items were being removed from the home. The father immediately returned to Sydney to find that the mother had taken the children and their belongings. He was unaware of the mother’s whereabouts.
In early December 2013 the father was served with an interim apprehended violence order dated 3 December 2013. He disputes the allegations by the mother.
Subsequent to separation and in early December 2013 the father located a bank statement of the mother’s revealing deposits of over $11,000 in the period from July 2013 to October 2013. The statement evidenced the mother receiving a Centrelink single mother’s supporting parents pension of about $726 per fortnight. The father was unaware that the mother was receiving this benefit.
The father instructed his solicitors in relation to his time with the children. By late December the father was sufficiently concerned about the mother to notify the Department of Family and Community Services.
The child B was enrolled to commence schooling in late January 2014 at the L School in Suburb O.
The mother was subsequently obstructive in relation to a legal aid mediation and continued to be obstructive in relation to the father’s efforts to see the children.
The father made contact with Mr E, the biological father of the child B, who offered to support the father’s parenting application and who informed the father that he had similar issues particularly in relation to the mother’s mental health during his relationship with her some years before.
Mr E has had no relationship with the child B since the child was six months of age.
The father commenced proceedings and initially interim orders were made as referred to above.
The father denies that there has at any time been any domestic violence perpetrated by him on the mother or on the mother in the presence of the children. On 27 August 2014 the apprehended violence order against him was withdrawn by the police.
On 6 April 2014 the father attended Q Town shops to collect the children. The father returned with the children to the family home at Suburb O and upon arriving at the home the children’s maternal grandparents were present. The maternal grandmother informed the father that the child B had complained that the mother was yelling at the children all the time and had thrown them against a wall. Subsequently the child repeated these allegations to the father and said “mummy hurts us all the time”.
Subsequently on 13 April 2014 the father collected the children again for time with them. He was accompanied by a Mr R. Mr R informed the father “[Ms Eliasco] said to me “the children have got marks on them because the boys have been fighting because [Mr Eliasco] yelled at B last week and the boys have anxiety.” Mr R informed the father that he knew that allegation was untrue as she had been with the father at all times with the children the previous weekend.
On arriving at the Suburb D Shopping Centre the father observed that B had a black right eye, a long scratch on the right side of his neck and a bruise on his back along the bottom half of the spine. The child informed the father “mummy grabbed my throat and threw me on the wall, mummy got angry at me because I was being naughty”. Photographs of the child’s injuries are exhibited to the father’s trial affidavit.
The father was concerned in relation to the allegations made by the child B and later that day took the children to S Town Police Station. The children were spoken to by a police officer. Several hours later the father received a phone call from the police and the father was informed that the mother had attended the police station and had been questioned. The police further informed the father that they were applying for an apprehended violence order for the protection of the children. The father was informed that he could retain the children.
The father did not return the children to the mother as required by orders made on 24 March 2014.
Shortly after 8:30pm that evening two case workers from the Department of Family and Community Services arrived at the father’s home in company with two police officers. To the father’s surprise the case workers informed him that he was required to attend at S Town Police Station to facilitate a return of the children to their mother.
The father continued to have time with the children during April. On Sunday 4 May 2014 the father attended at the Q Town shops to collect the children for his time with them pursuant to orders. He was accompanied by a friend Ms CC and his mother. After the children were in his care he returned to his home to meet the maternal grandparents Mr & Ms T. The father observed a large lump on the top of the child Cs head. The father enquired of the child as to what had happened and the child said “mummy threw me wall”. The child B then said “mummy is nasty to us”.
The maternal grandmother contacted the police and informed them of the further disclosures made by the children. Police attended at the father’s home and interviewed the children and also the maternal grandmother. The child was taken to the Suburb M Medical Centre for examination and then to Hawkesbury Hospital for an x-ray examination recommended by the doctor. The child was examined by a Dr U, paediatrician who was of the view that the lump was several days old. The father was told by the police to retain the children that night. The father resolved to retain the children pending proceedings that were listed before the court on 14 May 2014.
On 21 of May 2014 the mother consented to orders for the children on an interim basis to live with the father and that she have supervised time with the children.
On 12 June 2014 the maternal grandparents filed an application seeking to be joined as a party to the proceedings and seeking orders that the children live with them. Shortly thereafter on 4 July 2014 the maternal grandparents filed a Notice of Discontinuance and have had no further engagement in the proceedings.
In September 2014 the father became aware that the mother had reintroduced B’s biological father to him after the child returned from supervised time with the mother and said “mummy said you’re not my real daddy, I have other brothers and sisters”. The father is aware that Mr E has children from a previous relationship. More recently Mr E has sworn an affidavit in support of the mother. Accordingly he is well aware of these proceedings but, it appears, has elected to not engage in the proceedings as a party nor seeking to any orders in relation to the child B.
In September 2014 the father commenced a relationship with Ms V aged 38. They had been friends for some time. She is employed full time as a personal assistant. She reports positively in regard to her observations of the father and children.
On 21 September 2014 the father was to collect the children from the S Town Police Station following the children supervised time with the mother. At 5:00pm the father was informed by a police officer that the mother had contacted the police informing them that she would not be returning the children. The mother did not do so.
On 24 September 2014 a recovery order was issued for the children on the application of the father and the mother’s time with the children was suspended. Subsequently the children were returned to the father at W Town Police Station in the Central West area of New South Wales, the mother apparently having relocated her residence to W Town in circumstances unknown to the father.
On 9 October 2014 the father attended at the Department of Family and Community Services office in S Town and met with the children’s allocated case worker. The father was informed that they had interviewed the child B at school and that he appeared happy and resilient in the care of the father. The caseworker further informed the father that there had been 46 complaints made to the Department in relation to the children in the father’s care that had been investigated and had not been substantiated.
The caseworker expressed concern to the father as to the effect of the vexatious claims on the children and a safety plan for the children was developed in conjunction with the caseworker. That plan is exhibited to the father’s trial affidavit and in summary provides for the father and the children to remain engaged in the Brighter Futures program, for the child B to remain engaged in therapy with Mr H at X Therapy Centre and for the father to ensure that existing family law orders are adhered to.
The children have settled into the father’s household and he has established an appropriate routine for the children. The children have a relationship with their extended paternal family including the paternal grandparents, the father’s brother, the father’s God brother and other extended family who regularly visit.
The child C’s heritage is Country Y and the father is currently teaching both boys aspects of the Country Y language. The child B is of Country Z heritage and the father has taught the child basic Country Z words that they are both learning together.
The father is in full-time employment with Company AA and has been since March 2010. He is based at a facility at Suburb M. His employment manager gives evidence of a strict Drug and Alcohol management plan at the facility. The father’s flexible work arrangements such as to facilitate his care of the children are confirmed by his manager. The father’s annual income is approximately $88,000. He and the children reside in the family home at Suburb O where each of the children have their own bedroom. The father’s mortgage commitments are $1,900 per month and he pays private school fees for the child B of $200 per month.
The father has continuing concerns in relation to the mother’s mental health and her capacity to care for the children unsupervised due to her erratic and unpredictable behaviour and alcohol consumption.
B’s biological father provides no financial assistance and as at trial was more than $2,000 in arrears of child support. The mother pays child support at $30 per fortnight, presumably deducted from her Centrelink payments.
The Single Expert
The appointed single expert is Dr N, clinical psychologist. Dr N provided two reports to the court. The first report dated 14 June 2014 (Exh C) and the second report dated 1 November 2014 (Exh D).
It is of note that the first report was prepared in the context of the early litigation between the parties. In his conclusions of Dr N noted:
108. Formulation: The primary referral question related to issues associated with either drug or alcohol abuse by either or both parents. The context for the referral is an acrimonious separation between the parents of [B] and [C]. [Ms Eliasco] makes allegations that [Mr Eliasco] is a violent man, who heavily abused alcohol and has some unspecified mental health issues. [Mr Eliasco] makes allegations that [Ms Eliasco] suffers from depression, is irritable, neglectful and manipulative and has a long-standing problem with drinking wine and is attention seeking and self-focussed in her behaviour. Although some allegations have been made about historical use of illicit drugs, [Mr Eliasco’s] allegations do not relate to the abuse of illicit drugs but raise concerns about his wife’ potential for abuse of prescription medications.
109. Biological assessment has been minimal. Tests were undertaken 6 months after the parties separated. On the basis of the tests done, it seems neither parent lack the ability to abstain from heavy alcohol use, at least during a period of monitoring. There is some suggestion that [Ms Eliasco] has used alcohol at a level greater than she admits, if confounding explanations for the higher than expected GGT level are not accepted. Equally, if [Mr Eliasco] had been abusing alcohol at the level claimed by [Ms Eliasco] then it might have been expected that [Mr Eliasco] would have revealed some elevation in his GGT markers, although had he abstained from his allegedly high levels immediately, significant reduction over a six month period in liver enzymes might have occurred. In summary however, the biological information suggests [Ms Eliasco] is more likely to have had a significant heavy use of alcohol than [Mr Eliasco].
110. [Ms Eliasco] laboured under a disadvantage in that there was substantial additional affidavit material by a former partner, a neighbour and her mother all contradicting [Ms Eliasco’s] claims about her alcohol and/or drug use. The suggestion from this additional material is that [Ms Eliasco] did have a significant alcohol abuse pattern, and one that significantly impacted on her ability to maintain her relationship and care for the children. At least some of the contradictions are capable of being evaluated. For instance, ambulance records can be accessed to determine how B was transported to hospital when he broke his arm. GP records can be accessed to ascertain prescription patterns. A problem for the interview was [Ms Eliasco’s] embarrassment at some admissions and the contradiction between the things she told me and what she concedes in her affidavit. As reliability of self-report is an important factor in understanding and crediting claims of substance abuse, the lack of reliability in [Ms Eliasco’s] account (at least in some things) does raise concern.
111. [Mr Eliasco] presents himself as a sober, hard working person who is concerned for the welfare of his children. [Mr Eliasco] appears to have had some difficulties with containing his emotionality from time to time and does report a period of depression although there is no evidence of that condition today. There is lack of evidence to suggest that he has any recent or current drug or alcohol problems. Whilst he freely admits that he drank too much when he was a young person he appears to have learnt from that experience and he has been in responsible positions. There is no evidence of psychosocial harms associated with his drinking and he as he has involved in a workforce that enforces drug and alcohol policies. The expectation is that had he been the heavy drinker that he is claimed to have been; there would have been some corroboration for those kinds of accounts.
112. This matter largely boils down to believability of either parent’s complaint. There are three possible hypotheses. The first is that the father was drinking too much, the second that the mother was drinking too much and the third that both were drinking too much. (A fourth hypothesis that neither parent was drinking too much was entertained but rejected on the grounds that parent’s reports indicate someone was drinking too much). At the moment the information suggests that the mother has significantly more difficulties both in terms of her mental health adjustment particularly around problems such as attention seeking behaviour and anxiety management than she is willing to acknowledge and that the information does suggest that she is likely to have been a more serious problematic drinker than she is prepared to acknowledge. Such concern does not rule out the third hypothesis although there is less evidence for it, that both parents were consuming alcohol at problematic levels.
113. There remains significant contest between the parents about who presented the most harmful parenting to the child. Mr Eliasco’ comments suggest the mother was neglectful and abusive as a result of either underlying personality features or alcohol use. If it assumed that [Ms Eliasco] did have a problematic use of alcohol both increased hostility and aggression and self centred behaviour leading to neglect of the children’s needs might be assumed. Certainly, on the collateral information and [Mr Eliasco’s] account such behaviour is said to have characterised [Ms Eliasco].
114. As a general rule problematic substance use (including alcohol use) can have significant impacts on parenting through decreasing a focus on the needs of the children, resource depletion through spending money on purchasing alcohol, increased hostility and aggression, particularly at times of withdrawal and risk of accidental injury to children through withdrawal of supervisory competence. My assessment concludes that such risks are more likely to be evident in [Ms Eliasco’s] behaviour than [Mr Eliasco], subject to any findings of fact from the Honourable Court as to the alcohol use of either parent.
Subsequent to later events Dr N provided his second report dated 1 November 2014. In the report the children were engaged in by the reporter. The child B, although only young seemed to express a wish to remain living in his father’s household as his father was more sensible and the mother “yelled at us”, although complaining that his father could get “a little bit grumpy”.
Further as to the mother’s complaints in relation to inappropriate touching between the child B and the father the reporter notes:
90. I tried to discuss with [Ms Eliasco] the nature of the disclosures [B] had made to her and to why they became an issue in September and had not been an issue in May when I had interviewed her. [Ms Eliasco] merely said that [B] had made a number of random disclosures to her about how [Mr Eliasco] touched him in the bottom and then the penis in the wrong way but she said that because she was concerned that the Department of Community Services wouldn’t believe her (because they had seemed to have taken the view that she had made many nuisance complaints) she enlisted the support of her friend [Ms BB] to undertake the interview with her son. That interview is recorded in the Affidavit material and it shows clear evidence of coaching behaviour, but most importantly it demonstrates that when [B] was actually asked the question did his father touch him on the penis [B] is said to have replied with a no.
91. I spoke with her at some length to [Ms Eliasco] to try and understand what took place at that point. [Ms Eliasco] said that [B] seemed to have a strong emotional reaction and he ran out of the room. She said that she could see in his face that he was having a “flashback” to the abuse, as it was similar to how she felt about some of the abuse that she had allegedly experienced in the hands of [Mr Eliasco]. She said that [B] then ran into his room and he was really upset and hid under the bed. She coaxed him out of the bed and gently played with him, comforting him, and they then went and did something else.
92. It is clear from the account given that [B] had quite a severe trauma response. There are a number of different interpretations that are open to understanding this but one of them and I think the most reasonable one is that [B] is extremely traumatised by being forced to provide information that he knew was false about his father and that he was caught in a battle between his mother and his father for influence over him. [B] is simply unable to cope with the intense pressure that was being placed upon him by the adults in the situation. Indeed I believe that [B] is at significant risk of psychological harm to what I think are allegations that are likely to have very little basis in reality and as a consequence are likely to create in [B] not only a sense of victimisation but also a false view of behaviour that his father has alleged to have undertaken towards him. It seems to me that it would be necessary to be very cautious about how any exploration might occur in the future about these allegations.
Dr. N provides detailed and considered observations and conclusions in support of his ultimate recommendation. It is appropriate that they be repeated below:
127. Formulation. The current assessment has taken place in the context of likely exaggerated complaints by both parents against the other, and a pattern of shifting allegiances of support people such that considerable scepticism about the reliability of the affidavit material has been forged. As a consequence it has been difficult to work out what might be the best outcomes for the children when there are reasons to believe that both parents have exaggerated complaints about the other.
128. From the mother’s perspective she is a victim of severe and degrading violence and experiences fear reaction at any thought of having to contact [Mr Eliasco]. Whether all the alleged events are real or not the emotion appears to be strong and heart felt. From the father’s perspective, he is the victim of vilification and fabrication of child protection claims, and he views [Ms Eliasco] as psychologically deranged, vindictive and completely untrustworthy. [Ms Eliasco] has forged an alliance with [Mr E], [B’s] biological father, who presents as implacably opposed to [Mr Eliasco]. The grandparents in this dispute are now aligned with their respective child, although that has been a shifting landscape. As a result no facilitation of contact or shared parental responsibility can be envisaged between this couple given the state of enmity and the likelihood that each will seek to make accusations about the other that will create even further conflict and further distortions of any attempt to try and manage a child focused process.
129. A feature of the two assessments I have now undertaken is the relative coherence and similarity of [Mr Eliasco] presentation and comments, and the quite changeable and contradictory presentation of [Ms Eliasco]. It is possible that [Mr Eliasco] is simply more adroit at presenting his views, rather than such consistency implying any validity to his view. Nonetheless, the contradictions in the mother’s commentary and presentation (some of which she puts down to my misunderstanding or misrepresentation of her) are of concern.
130. Evaluation of the terms of reference.
131. (1) Any views expressed by the children and any factors, such as maturity level that are relevant to the weight to be given to the children’s views. Both children are quite young. I am quite concerned at the apparent lack of response by both children to their mother after such a long absence. I think [B] in particular is now well aware of the competition that exists around him and is developing an unfortunate reserve in the way he manages his parents. He has developed a superficial relating style, that is “playing safe”, in what I believe is an attempt to maintain neutrality. His apparent quick bonding with [Mr E] is I think an example of how he has developed a superficially accepting and warm relating style so as to avoid further pressure. However, at his age such an effort can be expected to take a toll on his ability to feel secure and loved by his parents. I think [B], who was the only child to state a wish, provided what was in effect a statement of the status quo as an example of his need to play safe. I do not think either child is able to make a clear statement of their preferences.
132. (2) The nature of the children’s’ relationship with each of the parents and any other relevant person (including grandparents or relative of the children). Despite the reserve, particularly in [B’s] relating style, I think it is apparent that both children have a close relationship with their parents, and one that could develop safely if somehow or other the parents could cease their hostility. Although I did not explore with the children their relationship with their grandparents I have no reason to believe that that is not also a warm and loving one. However, it can be expected that as the grandparents are now aligned with their respective child in this battle, it seems unlikely the grandparents can be called upon to take on a role of honest broker for the parents. In addition, the fact that both grandparents live in Melbourne suggest that they will not have a primary role in caring for the children, although the new found allegiance between [Ms Eliasco] and [Ms T] suggests that [Ms T] may be a frequent and reliable support to [Ms Eliasco]. Similarly the plans the father has to build an annexe for his parents to live in suggest that they, too, may become more frequent in their contact and support of the children.
133. The role of [Mr E] becomes important in regards to [B]. Despite a long period of no parental involvement, the way this battle has worked out has resulted in [Mr E] now being potentially an important person in [B’s] life. There seems no doubt that [Mr E] interest in [B] is genuine, and that he is seeking to have a greater role. [Mr E] rejection of the relationship between [B] and [Mr Eliasco] is likely to become a significant issue over time, and I have little doubt that both he and [Ms Eliasco] will do all that they can to cause an attenuation of that relationship. At the same time, however, [B] now knows [Mr E] is his biological father and [B] will likely need to develop his relationship with [Mr E] over time if for no other reason than identity, but realistically it is likely his mother will also seek to promote that relationship, at least for the next little while. As [B] is well bonded to his “father”, and likely to remain in his father’s care if the recommendations of this report are adopted, it will be a matter of continually exposing [B] to conflict if [Mr E] cannot become more reconciled about the relationship between [B] and [Mr Eliasco].
(14) (3) The extent to which either parent has taken, failed to take, the opportunity:
a. To participate in making decisions about the long term interests of the children
b. To spend time with the children
c. To communicate with the children
134. At the heart of this dispute lies the competitive approach of both parents to having single control of the children and avoiding sharing with or including the other parent in the lives of the children. Although [Ms Eliasco] has been unsubtle in that approach in recent times, it is her thesis that [Mr Eliasco] had been dominating and controlling in his behaviour and once the decision to break up had been made, he sought to underline her role as a mother in every way. Thus each parent has been excluded, such as when the marriage first broke up [Mr Eliasco] was not permitted contact for four months, and since then [Mr Eliasco] has sought to limit the mother’s contact to supervised contact only. Each parent so distrusts the motives of the others, that it is hard to see how a system of equitable and fair contact, conducive to the boy’s needs, can be developed. Thus I see no likelihood that both parents can share in making long-term decisions for the children: each will seek to undermine the other. In particular, if [Ms Eliasco] has her preferred orders [Mr Eliasco] will have no contact, let alone role, to play with [B]. I do not think there is any doubt that each parent wants to promote their individual relationship with both boys; the issue is that the alternate parent will do as much as they can to impede that from occurring.
135. (4) The likely effect of any change in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other significant person (including any grandparent or other relative of the children with whom they have been living);
136. The children currently live with [Mr Eliasco] and have no contact with their mother, and through that have no contact with their maternal grandparents or [Mr E]. The recommendations in this report are that the children continue to live with their father and have supervised contact with their mother, initially though a contact centre near where the children live, but moving to unsupervised but not overnight contact after one year, a necessary practicality as Contact Centres in the main will not provide services for more than a 12 month period. It should be open for [Ms T] or the grandfather to attend with [Ms Eliasco] on those contacts. It is also recommended that [B] have bi-monthly supervised contact with [Mr E] for a year as well. In that period of time I believe the children will settle into the routine of contact and with hostilities ceasing for a while, hopefully the children can develop their relationships with each parent. When the year is up a decision will have to be made to either move to unsupervised contact day time contact, or the matter will end up back in litigation. It is not possible or sensible to suggest that friends then supervise contact, or family members of [Ms Eliasco] as history has shown the highly partisan role such supervisors have taken.
137. In considering whether contact can move to unsupervised day time contact, the major issue will be an improvement in the communication and trust between the parents in the 12 month period of fortnightly supervised contact. It is a concern that having “won” [Mr Eliasco] will see benefit in maintaining conditions that foster distrust and conflict so as to prevent unsupervised contact occurring. It is to be hoped that his continued engagement with [Ms BB], and with the Brighter Futures program might see a reduction in such conflict-generation behaviours and attitudes on the part of [Mr Eliasco]. For her part, [Ms Eliasco] will have to show an acceptance of the status quo and cease what to my mind has been a self-defeating process of escalation of complaints. She will need to support the notion of [Mr Eliasco] as a psychological parent to [B]. A cessation of claims of child abuse, and developing a capacity to communicate in some fashion with [Mr Eliasco], even if through a proxy acceptable to both is necessary.
138. As an alternative to returning to unsupervised daytime contact, if the conditions do not foster that transition, then supervised contact on a reduced basis (for identification needs only) seems the only possibility until such time as something more appropriate to the needs of the children can be negotiated.
139. I believe that a change in the residence of the children will not be in the children’s best interests. A change in residence will ipso facto mean the destruction of any relationship between [Mr Eliasco] and [B], and will likely lead to further child protection allegations in regards to [C] as the mother or [Mr E] seek to exclude the father from the children’s lives. An important principle in children’s well being is that of continuity of care. [Mr Eliasco] is the psychological parent to [B] as well as the biological and psychological parent to [C]. The children, especially [B], have spent their entire primary attachment period with [Mr Eliasco]. It would be a significant wrench to the children, particularly [B], for that bond to be broken, especially as it would not only be a physical separation but there is no doubt in my mind that the mother and [Mr E] would seek to poison [B’s] memory of the care he received from his father. The ideal situation, in which the parent’s could cooperate and [B] could grow up in the secure knowledge and embrace of both his psychological and biological parentage is seemingly beyond this family.
140. (5) The practical difficulty and expense of the children spending time and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis. At issue in regards to this term of reference, apart from the hostility between the parents, is the geographical distance that has now occurred with the mother’s relocation. Clearly, if the children are to be with the father, and given [C’s] young age, travel will be best minimised, especially in the next few years. However, it is the parental hostility that remains as the greatest bar for the children to have an easy relationship with both parents. The practical consequence of the current situation remain the need to protect the children from the internecine arguments between the parents, and thus contact with one parent will have to be drastically reduced in order for this to happen.
141. (6) The capacity of each of the children’s parents and any other significant person (including any grandparent or relative of the children) to provide for the needs of the children including emotional and intellectual needs. Currently [Ms Eliasco] does not appear capable of providing for the psychological and emotional needs of her children. The children’s needs are secondary to her need to demolish [Mr Eliasco] as a parental figure to B, and her perceptions of [Mr Eliasco] as a devil in regards to her claims of family violence. A difficulty in evaluating the claims of family violence is the possibility that [Mr Eliasco] has been a controlling figure, but that [Ms Eliasco] has escalated her claims in line with her desperation as the legal process has wound on. In addition, as recorded in my original report, greater concerns about the extent to which [Ms Eliasco] had been incapacited by a habit of drinking remain. Although it is possible that her raised GGT markers were due to her as yet unconfirmed diagnosis of Coeliac disease, the evidence remains to my mind suggestive that she did have a greater problem with alcohol than she is willing to accept. Whether a relapse in the future may occur is unknown as no reliable assessment of her alcohol use is currently available. It is accepted that [Mr Eliasco] may have exaggerated his claims in order to gain advantage for his case, although the initial affidavits of [Ms CC] and her failure to fully retract her observations of midday drinking remain to my mind worrying.
142. [Mr Eliasco] appears to be a more consistent respondent and has articulated a clearer picture of parenting roles. However, a concern that cannot be easily evaluated is the extent to which he is a controlling individual and hence may be restrictive and punitive in his approach to the children. Too date I do not accept the claims that have been made he is punitive; although it is likely he is a controlling individual when it suits him to be so. However, as a single parent in full time work a certain adherence to routine is necessary in order to effectively manage. There is no evidence he does not meet the children’s emotional needs, and his preparedness to work in with Brighter Futures and [Mr H] suggests he is more open to suggestion and advice than he is presented in the mother’s account, or the more recent affidavits of [Ms CC] and [Ms T].
143. (7) The maturity, sex, lifestyle and background of the children (including lifestyle, culture and traditions) of the children and of either of the children’s parents and any other characteristics of the children the expert thinks is relevant. These details have been presented on the content of both of my reports on this family and not further described here.
144. (8) The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents. The report has outlined the parenting attitudes of both parents. There is no doubt that each parent loves the children. The possessiveness of the children is a problem that has emerged in this assessment, and it is hard to see how that can be in the children’s best interests. However, it is now a feature of the parental battle and does have the potential to distort the relationship between the children and the parent, for instance, as seen in what I refer to as the reserve and superficiality of attachment as observed in [B]. Although both parents claim to have accepted the responsibility of parenthood, it seems to me the escalation in child protection complaints of [Ms Eliasco] has exposed [B] to a severe conflict, which is not in his best interests and reveals a lack of insight in the mother as she seeks to find leverage in the litigation.
145. (9) Any family violence involving the children or a member of the children’s family. A vexed issue in this assessment has been the claims of family violence made by the mother, and the claims of child protection issues also raised by the mother. [Ms Eliasco] has asserted that the father is controlling, vengeful, and violent. An escalation in the nature of the claims occurred between assessments, but the thrust of the mother’s complaints have been present since the beginning of the assessment. It is likely the parental relationship was marked by discord and demeaning language at times. It is a matter for the honourable Court to determine if the father’s alleged violence was as sever as claimed. Given the claims of the mother as to the father forcing [B] to identify her “safe house” and then the subsequent harassment she asserts (tampering with the gas meter, tacks in her tires etc), if these are substantiated by the Honourable Court then my assessment of the father has to be viewed as fatally flawed and the recommendations made in this report cautiously evaluated.
146. Similarly, if the Honourable Court comes to the view that a child protection risk in relation to physical violence to [B], and sexual violence to [B] by the father exist, then equally my conclusions will be invalidated and my recommendations necessarily flawed. However, on reviewing the transcripts laid out in the affidavits, and with reference to nature of the escalation, particularly of the sexual abuse claims, it remains my view that the children are not at risk of harm from the father.
147. [Mr Eliasco] has counter claimed that his wife was aggressive, out of control, and manipulative in how she tried to set up a legend of family violence. If any credence is given to his account then concerns about the psychological stability of the mother, and hence her ability to restrain herself when with the children, has to be considered.
148. (10&11)Whether either parents has a significant substance/alcohol abuse issue and the nature and impact of any such use. Since my last report both parents have provided a further CDT test and LFT testing. There seems no reason to believe that either parent has engaged in uncontrolled sustained alcohol use since then. [Ms Eliasco] continues to show raised GGT results, which may be as a result of some metabolic disorder. As both parents claim to have avoided all alcohol since my initial assessment, and despite the affidavit material from [Ms Eliasco] camp suggesting otherwise for [Mr Eliasco], it seems to me likely that both parents have more or less complied with the need to remain sober. As indicated earlier, I believe that the mother may have had more of an alcohol problem than she wishes to accept, and hence relapse remains a concern. I believe that [Mr Eliasco] probably did drink at times excessively in the evenings although he does not meet criteria for an alcohol disorder. For the moment alcohol abuse is not considered a significant feature of the current assessment.
149. (12) Whether the children are at risk of physical or psychological harm in the household of either parent. My response to this term of reference has already been covered. It is likely the children, especially [B], are at risk of psychological abuse in the mother’s household as she seeks to escalate her claims of child abuse and child sexual abuse and cause significant conflict for [B] accordingly. To my mind, given how passionate the mother is in her condemnation of [Mr Eliasco], a real risk remains that [Ms Eliasco] will seek to alienate the children from [Mr Eliasco]. It is likely she will have support for this process from [Mr E] and her mother.
150. Although [Mr Eliasco] is alleged to have been overly rough in his care of the children, particularly [B], concerns as to the reliability of such claims is held. Although likely to be a controlling man with an organised approach to childcare, there are no major concerns in my mind as to his potential for abuse. His willingness to work in with Brighter Futures and [B’s] psychologist [Mr H] give ample opportunity for concerns about his parenting to be identified and notified by people independent of this battle and hence likely to be more objective. No such concerns have been raised.
151. Summary of Recommendations. I see no possibility of there being a reduction in hostility between the parents and attempts to place each other in the worst possible light. Under these circumstances it is difficult to see how parental responsibility can be meaningfully shared, and parental responsibility should go to whoever is regarded as the custodial parent.
152. It is recommended that the children remain in the care of [Mr Eliasco] and that fortnightly-supervised contact between the children and [Ms Eliasco] begin at a contact centre close to where the children live. Realistically such contact can only be expected to occur for one year. [Ms Eliasco] mother (and father) should be able to attend at least some of these contacts. Independently of contact between [Ms Eliasco] and the children, [Mr E] should have contact 6 times a year with [B] at the same Centre under the same conditions. It should be a requirement that no discussion with the children regarding child protection claims should occur.
153. Consideration of how to transition the contact from the Contact Centre will need to occur. Ideally contact should move to unsupervised daytime contact with the children on much the same frequency. For that to occur, there needs to be greater trust between the parties and [Ms Eliasco] should agree to support [Mr Eliasco’s] role as [B’s] psychological parent and cease her claims in regards to child sexual abuse. [Mr E] should also undertake to meet the same conditions, as it is likely if contact becomes unsupervised he will have increased frequency of contact with [B].
154. [Mr Eliasco] should continue involving Brighter Futures and [Mr H] for [B] until such time as those services indicate there is no need for ongoing work.
The Independent Children’s Lawyer
The ICL did not require the father or the single expert for cross examination.
The independent children’s lawyer provided to the court a minute of order proposed by the ICL (Exh G) that in summary provided as follows:
a)That all previous orders be discharged;
b)That the applicant father have sole parental responsibility for the children;
c)That the children live with the applicant father;
d)That the children spend time with the mother at the Suburb D Children’s Contact Centre or such other supervised contact centre as is agreed to by the parties or failing agreement as nominated by the ICL such time to occur fortnightly as nominated by the contact centre and that such time continue until the supervised contact centre is no longer willing to accommodate the parties and thereafter as the parties agree in writing or failing agreement as the father determines;
e)That the mother be restrained from approaching or spending time with the children at their schools;
f)That the child B spend time with his biological father Mr E not more than once every two months at the Suburb D Children’s Contact Centre or such other supervised contact centre as is agreed to by the parties and failing agreement as is nominated by the ICL for such duration as is nominated by the supervised contact centre and thereafter as agreed by the father and Mr E, and failing agreement as the father shall determine;
g)That a sealed copy of orders be served by the ICL on Mr E;
h)That the appointment of the independent children’s lawyer shall continue their a period of six months from the date of orders;
i)That each parent be restrained from discussing these proceedings with the children including but not limited to any child protection issues that have been raised during the course of proceedings by any person in relation to any other person;
j)That the father be permitted to apply for and obtain passports in the names of the children without the consent of the mother or any other person;
k)That the children be permitted to leave the Commonwealth of Australia with the consent of the father and without the consent of the mother or any other person;
l)Both parents shall keep the other advised at all times of their residential address, email address and contact telephone number and shall advise the other party within 48 hours of any change to either their residential address or telephone number;
m)That each parent be permitted to communicate directly with the children’s schools, sporting bodies and medical practitioners to obtain any necessary information and all documents about the children’s progress at this order shall constitute sufficient authority for such communication;
n)That both parents keep the other advised of the health of the children including any serious illness, medication or hospitalisation of either child as soon as reasonably practicable and to allow the other parent to visit the children if hospitalised;
o)That the children communicate with both parents by telephone at any reasonable time when they are in the other parents’ care and each parent shall do all things necessary to facilitate the children communicating with the other parent by telephone on a regular basis and that the mother’s communication with the children pursuant to this order be monitored by the father for a period of 12 months;
p)That each party shall at all times:
i)Be courteous and respectful to the other party and any members of the children’s families;
ii)Not to denigrate the other party or any members of the children’s families; and
iii)Be restrained from using profane language and making derogatory comments about the other party or any members of the children’s families in the presence or hearing of the children and shall remove the children from the presence of any person who is denigrating the other party or any members of the children’s families in the presence or hearing of the children;
q)That the father will:
i)Do all things and attend all appointments to continue his participation in the Brighter Futures program until advised by that program’s coordinator that his participation is no longer required and he will ensure that the children are available for participation in that program;
ii)Do all reasonable things to ensure the child B continuing attendance at an engagement with therapeutic counselling provided by Mr H until Mr H informs the father that the child’s attendance is no longer required; and
iii)Himself attend upon, and ensure B’s participation with, such other professionals in support services as either or both of Mr H and the Brighter Futures program may refer him to.
The orders sought by the independent children’s lawyer substantively reflect the position taken by the single expert.
Parenting
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply where:
a) There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b) In interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and
c) If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
Best Interests of the children:
The Additional Considerations: s 60CC(3)
Regard has been had to each of the additional considerations set out in section 60CC(3) of the Act. The relevant considerations are as follows:
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;
This is touched upon in the single expert’s report referred to above. Little weight should be afforded to B’s views save that he has expressed an undertone of protective concern that he should remain in his stepfather’s care.
The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);
The children are now settled in the circumstance of the father as primary carer. There are overshadowing protective concerns in relation to their relationship with the mother.
The observations and conclusions of the single expert are supported by the father’s evidence.
The extent to which either parent has taken, failed to take, the opportunity to participate in making decisions about the long term interests of the children, to spend time with the children, to communicate with the children;
The factual background is considered above. The father has in this regard been determined to address these issues in regard to the children, particularly the urgent issue of schooling for B. The mother has by reason of recent orders had her engagement with the children limited. It is hoped that she will give appropriate consideration to the children’s long term issues within the context of proposed orders and avail herself of the opportunity of time with the children.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The present circumstances in relation to this factor is considered above. It appears that B’s biological father has a poor record in relation to ongoing child support provision which is likely to continue into the future. The mother’s historical lack of employment means that the prospect of her providing reasonable support into the future is problematic. Historically the father and mother have relied upon the father’s full-time income for this financial support of the household.
The likely effect 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;
The single expert’s report has considered this factor in detail as set out above. The observations and recommendations of the single expert not the subject of challenge by the father or the ICL and they are accepted by the court.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affected the child’s rights to maintain personal relations and direct contact with both parents on a regular basis;
A consideration of this factor is complicated by the recent circumstance that the mother appears to have relocated to Victoria, presumably to live with the maternal grandparents. That circumstance renders the efficacy of orders providing for the mother to have supervised contact in the western suburbs of Sydney somewhat problematic as are the mother’s willingness to participate in that supervised contact is a matter of conjecture only.
Similar considerations relate to the biological father of the child B.
The capacity of each of the child's parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;
The single expert has considered the question of parental capacity in detail above. The evidence of the father is supportive of the conclusions of the single expert and the single expert’s conclusions are adopted by the court.
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 children are young and require appropriate, considered and careful care and supervision. This imposes an obligation on the father that he is able to meet. On the other hand there are significant reservations as to the mother in this regard especially in relation to the child B and his biological father.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
This has been touched on in considering the above factors. At present as submitted by the independent children’s lawyer there a significant reservations as to the mother as discussed above.
As opined by the single expert:
Although both parents claim to have accepted the responsibility of parenthood, it seems to me the escalation in child protection complaints of [Ms Eliasco] has exposed [B] to a severe conflict, which is not in his best interests and reveals a lack of insight in the mother as she seeks to find leverage in the litigation.
Any family violence involving the child or a member of the child's family;
There are untested allegations in this regard by the mother. She has not engaged in the hearing. As the single expert opines:
147. [Mr Eliasco] has counter claimed that his wife was aggressive, out of control, and manipulative in how she tried to set up a legend of family violence. If any credence is given to his account then concerns about the psychological stability of the mother, and hence her ability to restrain herself when with the children, has to be considered
The father’s evidence in this regard is not in contest and accepted.
If a family violence order applies…
There is no current order.
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;
The mother has failed to engage in the proceedings at hearing. It is appropriate that the matter be finalised in the interests of the children having certainty.
Any other fact or circumstance…
This is not a relevant consideration.
The Primary Considerations: s 60CC(2)
The primary considerations are:
(a) The benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 520; Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The father’s relationship with the children as primary carer in the overshadowing circumstance of the mother’s conduct and health issues is important to the children and must be maintained.
On the other hand the mother’s relationship presents objective physical risks for the children in her care and difficulties presented by her health issues identified above. It cannot be important and valuable for the children to be exposed to the mother in that circumstance. Orders for controlled time between the children and the mother are clearly indicated.
Section 60CC(2)(b) – need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Much of the discussion in relation to this factor is set out above. There is concern expressed for the children in the mother’s care by the independent children’s lawyer and the single expert arising from the circumstances detailed above. The evidence is clearly supportive of those concerns.
This factor is given more primacy by reason of s 60CC(2A). Indeed this issue is almost determinative of the orders to be made.
The presumption as to equal shared parental responsibility
In the circumstances of this matter and arising out of the discussion above it is not appropriate that the presumption apply. There are reasonable grounds to believe that the mother has engaged in family violence. However otherwise there is sufficient in the circumstances above to make it inappropriate for the presumption to apply.
Section 65DAA
In light of there being an no order for equal shared parental responsibility, there is no requirement to give consideration to whether the child spending equal time or substantial and significant with each of the parents is in the best interests of the child and reasonably practicable.
The children’s best interests
Orders to be made are determined by the best interest considerations set out above.
In considering the evidence and the considerations discussed above it is appropriate in the best interests of the children that orders be made substantially as sought by the ICL.
Orders will be made accordingly.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 December 2014.
Associate:
Date: 19 December 2014
Key Legal Topics
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Family Law
Legal Concepts
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Injunction
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