Emson & Makin
[2021] FedCFamC1F 62
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Emson & Makin [2021] FedCFamC1F 62
File number(s): NCC 212 of 2018 Judgment of: CLEARY J Date of judgment: 20 September 2021 Catchwords: FAMILY LAW – Parenting – Where there are competing applications for parenting orders concerning three children – Where both parties during the hearing resiled from their formal positions – Where the parties have a fractious relationship and cannot communicate - Where the father has engaged in family violence in the presence of the two elder children – Where the mother suffered from postnatal depression now in remission – Where the father has narcissistic personality traits – Where the father believes the mother is mentally unstable – Whether there is unacceptable risk of harm to the children – Where despite several suites of orders and professional guidance by a single expert psychiatrist and a child court expert the dispute over all aspects of parenting has continued – Where the children have loving relationships with each parent – Where complete separation from either parent will be detrimental to the emotional wellbeing of the children – Where the safety of the mother is a consideration – Where the ultimate proposal of each party, does not promote the best interests of the children – Ordered the mother to have sole parental responsibility and for the children to live with her – Ordered the children to spend time with the father on a supervised basis progressing to alternate weekends and special occasions – Where there are restraints by injunction on the father from contacting or communicating with the mother and children other than in accordance with these orders Legislation: Family Law Act 1975 (Cth) ss 60CC, 61C, 61DA, 64B(2), 65AA, 68B Division: Division 1 First Instance Number of paragraphs: 192 Date of hearing: 17-20 August 2021 Place: Newcastle Counsel for the Applicant: Mr Allen Solicitor for the Applicant: The Law Office of Conrad Curry Counsel for the Respondent: Mr Weightman Solicitor for the Respondent: Mullane & Lindsay Solicitor Advocate for the Independent Children's Lawyer: Ms Blackman Solicitor for the Independent Children's Lawyer: Legal Aid NSW - Newcastle Family Law Table of Corrections 18 November 2021 The date of judgment referred to on the front cover sheet and after the certification clause on the last page has been corrected to read 20 September 2021 and not 16 September 2021. 18 November 2021 The date of order referred at page i of the orders has been corrected to read 20 September 2021 and not 16 September 2021. ORDERS
NCC 212 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR EMSON
ApplicantAND: MS MAKIN
Respondent
ORDER MADE BY:
CLEARY J
DATE OF ORDER:
20 SEPTEMBER 2021
Amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law Rules 2021 (Cth) on 18 November 2021
THE COURT ORDERS
1.All prior parenting orders with reference to X born 2014, Y born 2015 and Z born 2018, (“the children”) are discharged.
Parental responsibility
2.That the mother have sole and exclusive parental responsibility for making decisions concerning all aspects of the care, welfare and development of the children.
3.That the mother advise the father in writing (including by text and email) of the following matters in relation to the children:
(a)Any change to the enrolment of the two elder children at school;
(b)The pre-school and school in which Z is enrolled;
(c)Any diagnosis, specialist medical dental or other therapeutic treatment and hospital admission taking place for a child;
(d)Prescription and other medication (including dosage and times due);
(e)Any significant injury or illness (including allergic reaction).
Residence
4.That the children live with the mother.
Time and Communication
5.That the father spend time with the children as follows, unless otherwise agreed in writing between the parties:
5.1For a period of six months from the date of acceptance of the parties and children by Supervision Service B or another supervision service:
5.1.1On one day in each alternate weekend for two hours supervised by Supervision Service B or a similar supervision service, with the costs of supervision to be borne by the father;
5.2Thereafter:
5.2.1X and Y:
5.2.1.1Each alternate weekend from 10.00 am Saturday to the commencement of school Monday (or 10.00 am if not a school day).
5.2.2Z:
5.2.2.1For a period of six months thereafter, on each alternate weekend from 10.00 am Saturday to 10.00 am Sunday;
5.2.2.2Thereafter until Z starts school, on each alternate weekend from 10.00 am Saturday to 4.00 pm Sunday;
5.2.2.3From the time Z starts school each alternate weekend from 10.00 am Saturday to commencement of school Monday (or 10.00 am if not a school day);
5.2.3Whenever occurring in each year, if the children are not already in the father’s care:
5.2.3.1From 10.00 am to 6.00 pm on Father’s Day; and
5.2.3.2From 2022 onwards from 3.00 pm on Christmas Day to 3.00 pm on Boxing Day.
Changeovers
6.Until Z starts school, or with respect to Order 5.2.1.1 by the father delivering the two older children to school, changeovers for all children shall take place by a supervisor from Supervision Service B collecting the children from, and returning them to, the home of the mother and delivering the children to, and collecting the children from, the father at Handover Location C with the cost of the supervised changeovers to be borne equally between the parents.
Thereafter:
(a)The mother or her nominee shall, deliver the children to the father at Handover Location C at the beginning of the children’s time with the father; and
(b)The father shall deliver the children to their respective schools (if a school day) or otherwise to the mother or her nominee at Handover Location C at the conclusion of the children’s time with the father.
Specific Issues
7.That in the event that one or more of the children is unable to attend school for any reason while spending time with the father, the father is to:
7.1Notify the school of the child or children’s absence in accordance with the respective school procedure;
7.2Notify the mother via SMS and email no later than 8.30 am that day;
7.3Return the child or children to the mother or her nominee at Handover Location C at 10.00 am.
8.That the mother facilitate the reasonable and uninterrupted communication of the father with the children by means of telephone, email or internet-based communication as follows (if not already in the care of the father for that night):
8.1Each Wednesday;
8.2On the children’s respective birthdays; and
8.3On the father’s birthday;
with the father to initiate the call between 6.00 pm and 6.15 pm, the mother to make the children available for the call, and the length of the call to be at the children’s discretion.
9.That the father facilitate the reasonable and uninterrupted communication of the mother with the children by means of telephone, email or internet-based communication as follows (if not already in the care of the mother for that night):
9.1Each Sunday;
9.2On the children’s respective birthdays; and
9.3On the mother’s birthday;
with the mother to initiate the call between 6.00 pm and 6.15 pm, the father to make the children available for the call, and the length of the call to be at the children’s discretion.
10.That in the event the children require medical treatment during the time spent with the father, the father shall:
10.1Notify the mother in advance of any planned attendance on a medical practitioner (other than in the case of emergency where as much notice as possible be provided - and/or on arrival at the hospital or medical facility; with such notice to be provided by SMS and email);
10.2Meet all costs associated with the child’s attendance on that medical practitioner;
10.3Provide to the mother all reasonably available information in relation to the child’s symptoms, reasons for treatment and any diagnosis provided;
10.4Provide required information, access and consents to enable the mother to:
10.4.1Attend the hospital or medical facility; and
10.4.2Communicate with the treating medical professionals and the child.
11.That the father otherwise inform the mother of any:
11.1Injury or illness (including allergic reaction); and
11.2Prescription or other medication (including dosage and times administered);
as soon as practicable and within 1 hour of the conclusion of the father’s time with the children.
12.That the mother shall provide a copy of these orders to the schools which the children attend and shall authorise the schools to provide copies of the school reports of each of the children to the father (at his own expense if any).
13.The parties each have leave to provide a copy of these orders to the paternal grandparents.
Restraints
14.That the father be and hereby is restrained from attending the children’s school, sporting and other extra-curricular activities which fall outside of the time that the children spend with the father, unless expressly invited in writing by the mother to do so.
15.That other than in compliance with Order 10 the father be and hereby is restrained from contacting or communicating in any way with the children’s treating medical professional and their staff, unless expressly invited in writing by the mother to do so.
16.That each of the parties be and hereby is restrained from exposing the children to family violence, including physical violence, verbal abuse or derogatory language.
17.That each of the parties be and hereby is restrained from discussing these proceedings or any other litigation involving the parties in the presence or within the hearing of the children.
18.That each party be and hereby is restrained from denigrating the other party or any member of the other party’s household or extended family in the presence or within the hearing of the children or allowing any person to denigrate the other party or any other member of the other party’s household or extended family in the presence or within the hearing of the children.
19.Pursuant to s 68B of the Family Law Act 1975 (Cth), the father is restrained by injunction from:
19.1Contacting or attempting to communicate with the children in any way whatsoever, including through a third party, other than as expressly authorised by these orders;
19.2Attending within 200 metres of:
19.2.1The children’s home;
19.2.2Any school or pre-school attended by the children or any of them, subject to the operation of Order 5.2;
19.2.3Any out of school hours or vacation care venue attended by the children or any of them;
19.2.4Any venue attended by the children, or any of them, for any sporting, dancing, cultural, or extra-curricular activity.
20.Pursuant to s 68B of the Family Law Act 1975 (Cth), the father is restrained by injunction from:
20.1Contacting or attempting to communicate with the mother in any way whatsoever, including through a third party, other than as expressly authorised by these orders;
20.2Contacting or attempting to communicate with the mother’s employer;
20.3Attending within 200 metres of:
20.3.1The mother’s home;
20.3.2The mother’s workplace.
Independent Children’s Lawyer to Explain Orders
21.That the mother shall make arrangements with the Independent Children’s Lawyer, to bring the children to an appointment with the Independent Children’s Lawyer for the purposes of explaining these orders to the children and answering any relevant questions they may have.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 18 November 2021
CLEARY J
INTRODUCTION
These are competing applications for parenting orders concerning three children, a girl X, aged seven years, and two boys, Y aged six years and Z aged three years.
The parties met in late 2012, and quickly formed a relationship. Shortly after, in 2013, they began living together. Two children were born in quick succession, in 2014 and 2015. A third pregnancy miscarried in 2016. The parties first separated in 2016, then reconciled tentatively. A third child was conceived during this period. The parties finally separated in November 2017 whilst the mother was pregnant with the youngest subject child.
The children have lived with the mother and spent time with the father over the four years since final separation. Proceedings were commenced in the Federal Circuit Court (“FCC”). More than one suite of orders has been made in that Court.
There has been a report by a forensic child and adolescent psychiatrist and two reports of a family consultant prepared before and after the single expert report. Despite this professional guidance the dispute over all aspects of parenting has continued.
THE PARTIES
The Applicant Father
The father is 46 years old. He lives in regional New South Wales. He has worked as a tradesperson, manager, professional, and presently as a professional.
The father asserted at trial that he lives alone but has a partner Ms D who lives independently with her young adult son. In October 2020 the father had told the court child expert (“CCE”) (formerly known as a family consultant) that he and Ms D lived together “in a rental property which was stable and suitable for the children”.
However and wherever they have lived, when the father has spent time with the children it seems likely that the father’s partner has usually been present.
The Respondent Mother
The mother is 43 years old. She lives with the children in a suburb of City E. The mother is a skilled professional and runs a business where she teaches this skill.
The mother denies a current partner. There is no evidence to the contrary. There were forceful assertions by the father that the mother did have a partner, a man whom the mother acknowledged as a family friend.
APPLICATIONS
The Father
By his Minute of Order contained within his Case Outline document[1] the father proposed time for the mother with the children on both days of each alternate weekend for blocks of six hours.
[1] Exhibit 1.
In the alternative, that is if the children remained living with the mother, the father proposed shared care on a week about basis during term and half school holidays (with shorter periods for Z until he started school).
During his cross-examination the father resiled from proposing any unsupervised time for the mother with the children. He reverted to the position in his Further Amended Application filed in February 2020 namely supervised time for the mother in a supervision facility, conditional on the mother attending upon a psychologist/psychiatrist and following the recommendations of that therapeutic practitioner.
The Mother
By her Amended Response the mother proposed sole parental responsibility, that the children remain living with her, and a progression of time for the father to alternate weekends and some special times. There were various restraints and orders for specific issues around provision of information and communication.
During the trial the mother stepped back to a proposal[2] for the father to spend time with the children for two hours on one occasion each month supervised by a service such as Supervision Service B with no progression to unsupervised time and restraints on the father approaching herself and the children otherwise.
[2] Exhibit 5.
Contained within that Minute of Proposed Orders was a Notation that the mother intended to arrange for the children to spend time with the paternal grandparents on around three occasions per year in the absence of the father.
The Independent Children’s Lawyer
The Independent Children’s Lawyer (“ICL”) supported the revised position of the mother that there be monthly supervised time for the father with the children without progression to unsupervised time.
The concern of the ICL about the children being exposed to damaging criticism of the mother when spending time with the father is valid. Likewise, concerns about exposure to verbal and physical conflict attack when the parents are together.
The ICL properly conceded that supervised time for an indefinite period would not deliver a good outcome legally or practically.
THE ISSUES
Parental responsibility
Should the mother continue to have sole parental responsibility, as she has had since 16 January 2019 pursuant to an interim order made in the FCC (as it then was)?
Alternatively, should parental responsibility now be allocated to the father to the exclusion of the mother?
Should the presumption of equal shared parental responsibility apply or not, given allegations of family violence? Are there grounds to otherwise rebut the presumption?
Residence
Should the children continue to live with the mother as they have since final separation or should they now move to live with the father?
Time and communication
In the context of both parties during the trial changing their proposals in a far reaching way about time and communication with the other parent, what arrangement will be in the best interests of the children?
HISTORY OF RELEVANT EVENTS
Within two months of meeting in 2012 the parties were engaged. They lived together in the former home of the paternal relatives. The mother bought that property, under some pressure or persuasion from the father and his family to do so.
By Easter the mother was pregnant with the parties’ first child. X was born in 2014.
The mother suffered postnatal depression and struggled to get through the days. In 2014 the father took up a job in Sydney with a lucrative salary. He commuted each day. The mother was alone with the baby all day.
The mother did not want to move to Sydney and the father was still expressing strong resentment about that during the trial.
In May 2015 the mother sold a block of land she owned because the parties were failing financially. Towards the end of that year the mother was pregnant with the parties’ second child. Y was born in 2016.
The mother returned to work at Business F. The father became increasingly aggressive and insulting towards the mother. The father concedes that he called the mother a “slut” or a “cunt” at times.
In February 2016 the father injured the mother’s hand by grabbing it and shaking it while telling the mother to “do as you’re told”. The mother referred to her wrist being broken. The father drew the attention of the Court to medical records which did not report “break” or “fracture”. The father conceded that he had injured the mother’s hand and had himself strapped it for her to relieve pain. The father did not appear to place any significance on his own act of violence which caused the injury. What mattered to him was to prove that the mother had “lied” about it being broken.
By June 2016 the parties were sleeping in separate rooms. On this occasion the father came into the mother’s room got into her bed and demanded sexual intercourse. The mother said no and got out of bed. The father threw a pillow at her, she fell against a piece of furniture. The mother yelled at the father to “Get out of my bed and go to your own”. The mother used her legs to push the father out of bed. The father then punched her repeatedly on the same place on her thigh, causing bruising.[3] Y was in a cot in the room, X sleeping next door.
[3] Affidavit of the mother filed 30/06/2021, par 51.
In July of that year the mother miscarried her third pregnancy and was diagnosed with a gynaecological condition. Two days later the father left for a surfing holiday in Country M.
On 10 October 2016 the father became enraged when one of the children fell down some stairs. He blamed the mother. He punched a hole in the laundry wall. The mother fell and injured her elbow she says as a result of the father shoving her, causing her to fall.
In late 2016 the father was arrested. Relying on the evidence of the father about this incident,[4] he says “the mother was in a heated state for two hours. … I tapped the respondent on her forehead …”.
[4] Affidavit of the father filed 3/06/2021, par 39.
The relevant fact sheet, including admissions by the father, paint a much more aggressive and physical event,[5] the two older children aged two and one were present in the house:
About 9.00 pm on [a] Friday [in late] 2016 the accused and victim were at home with the children when they became involved in a verbal argument over ongoing prior tensions in their relationship. The accused became aggressive and verbally abusive towards the victim who was seated at the time, and has hit her hard with the palm of his right hand in her forehead, which forced her head backwards and caused some pain and discomfort.
The victim stood up out of the chair but the accused pushed her back down and she fell over the chair and onto the floor. The accused kept pushing the victim down towards the floor so she started kicking and lashing out at him in an attempt to get him away. He then pushed her down forcefully be her head causing her to fall heavily onto the floor and hurt her right elbow.
Their 1.5yr old son [Y] was in the room and witness to this occurring and he ran towards the victim, clutching onto her right shoulder. The accused backed away at this time but continued to abuse her verbally, calling her a “cunt” and telling her she was “selfish”. He then took [Y] from the victim’s shoulder and walked off to the bedroom, locking the door behind him.
The victim sustained redness to her face and right elbow so she took some photographs of the injuries and sent them to her brother, [Mr G], explaining to him what had occurred. [Mr G] then called police on her behalf and requested their attendance to [H Street, Suburb J].
[5] Exhibit 11.
When the father was cautioned and questioned he stated “Yeah I pushed her in the forehead and yeah I did it quite hard”. He was arrested and taken to the police station where he offered a further verbal admission:
I pushed her twice in the forehead, then we became involved in a physical altercation on the floor. Yes I held her down on the floor, because she was hitting me and I’ve just had shoulder surgery. Then I backed away.
The father was charged with common assault, pleaded guilty and was ultimately given a Section 10 Bond with no conviction.
Following that event the parties separated but maintained a sexual relationship over a period of about 12 months. The mother referred to vengeful threats by the father if she did not stay with him, “If you don’t get back together with me I will take your life apart and take the children”, so that fear played a part in the relationship continuing.
In November 2017 the mother was no longer willing to stay in the relationship, saying to the father, “Take me to Court and get it over with”.
Proceedings commence
On 25 January 2018 the father filed an Initiating Application in the FCC. At that time he sought orders for equal shared parental responsibility, residence with himself, supervised time for the mother conditional on her attendance on a psychologist or psychiatrist.
There followed many hostile Court events and several suites of orders. The conflict was aggravated by a dispute over medical treatment for X and the birth of the youngest child in July 2018. DNA evidence was required to establish that he was the biological child of the father.
An order was made for a single expert to undertake a psychiatric assessment of both parties. The report released in September 2019 could have reassured the father that the mother was not suffering from any mental illness or disorder and was well. The report could also have reassured the mother that it was unsurprising that she found the father confronting and unreasonable given his personality traits but that he was not mentally ill or disordered.
Whatever each party took from the report there was no respite from conflict nor resolution of dispute.
On 9 September 2019 the proceedings were transferred to this Court.
In August 2020 an updating family report was ordered to include the youngest child and the father’s new partner.
On 19 November 2020 there was a heated argument between the father and staff members on an Orientation Day at school for Y. The principal asked the father to leave the school.
THE TRIAL
The trial took place over four days commencing 17 August 2021. The parties were represented by solicitor and counsel. The ICL was represented by a solicitor advocate.
At the conclusion of the father’s case on the second day, proceedings were suspended for the afternoon.
The Court allowed the parties to hold discussions not with an expectation of resolution of the issues but because the mother had reconsidered her position having heard the cross-examination of the father. She no longer proposed progress to more substantial and significant time for the father with the children.
Her foreshadowed proposal was for less time for the father, contact on four occasions per year. Ultimately her proposal became monthly supervised contact with no progression.
The trial resumed on the morning of the third day and proceeded to conclusion within the allocated time.
The request of the father’s lawyers to withdraw when the evidence was concluded was granted by the Court. The father presented submissions himself.
Orders made pending further order - 20 August 2021
The Court made orders suspending current operative orders for time, but not for communication, pending delivery of final orders and reasons.
Judgment was reserved.
EVIDENCE
The documents relied on were as follows:
The Applicant Father – [Mr Emson]
(a)Further Amended Initiating Application filed 3/02/2021; superseded by a Minute of Order contained within Case Outline (filed 12/08/2021);
(b)Notice of Risk filed 03/02/2021;
(c)Affidavit of [Mr Emson] filed 3/06/2021;
The Respondent Mother – [Ms Makin]
(d)Response to Amended Initiating Applicant filed 5/02/2021; superseded by a Minute of Order tendered during the trial;[6]
(e)Affidavit of [Ms Makin] filed 30/06/2021;
Reports
(f)Family Report of [Mr K] dated 20/07/2018;
(g)Family Report of [Mr K] dated 10/11/2020;
(h)Single Expert Report of [Dr L] psychiatrist dated 31/08/2019.
ORAL EVIDENCE
[6] Exhibit 5.
The Father
The father did not acquit himself well as a witness. He did not listen carefully to questions in order to respond. He was often writing instead of listening. He made unprompted speeches and tacked on previous answers to his next answer on many occasions. He spoke over the top of counsel. When directed by the Court to cease such conduct the father thereafter looked up, listened and gave two word answers to a few questions but then quickly reverted to the earlier conduct.
The Court took into account that the father had previously represented himself in the FCC over three years and had clearly formed habits around managing his own case. That was not the complete explanation. The father was keen to express his antipathy to past orders and towards the Family Law system itself. There was a crusading element to the father’s speech and behaviour. For example, his repeated description of an interim order for the mother to have sole parental responsibility as “a disgrace to Australia.” At the end of his submissions, “This system is archaic, with respect.”
The evidence of the father in his affidavit and in response to cross-examination was relentlessly critical of the mother. He very often stated, not always responsively, “the mother lies and manipulates”. He gave her no credit for the care of the children or for any of the positive attributes identified by the court child expert or the single expert. He maintains that the mother is either mentally ill or psychologically disabled, despite the clear evidence of the single expert that the mother is not impaired in those ways or at all.
The father revealed in the witness box that although he had, by his new Minute of Order, proposed unsupervised time for the mother on the basis of legal advice that was not his true position. The Court cannot infer that the father had considered the impact on the mother of that conduct, he may not have, but if he did the father would have realised what an undermining effect on any remaining trust and confidence it would have.
Overall the presentation of the father was unimpressive. He appeared to be guarding his position that the mother was unfit to care for the children so they must therefore live with him. He tried to distract from and minimise his physical assaults on the mother.
The father himself, and by his instructions to counsel, attempted to persuade the Court that contra to professional opinion the mother was mentally ill and not coping.
The Mother
The mother presented as calm, open and self-disciplined. She appeared to be a woman of considerable strength of character.
The mother was cross-examined on several emotionally challenging and painful events from her past, including childhood events. It was apparent that the cross-examination was undertaken to establish that the mother was mentally unstable as a result of these events.
The mother described herself of being aware of adult behaviours towards children but was not hypervigilant.
What emerged from the evidence of herself and the single expert was an impressive effort made by the mother to seek appropriate help and guidance and to make the most of her life. After completing Year 10 she began a career in her profession, working overseas in Country N, Country O and Country P. At age 28 she suffered injuries in an accident which ended her first marriage. She returned to Australia.
The mother made concessions readily about the children enjoying time with the father and benefitting from two different parenting styles.
She conceded remaining in the relationship with the father despite episodes of domestic violence. The mother was not regretful about doing so, “There had been love in the relationship. I was hopeful that our family could be made to work”.
I conclude that the mother is satisfied that she did everything she could but ultimately the relationship could not be sustained safely.
With respect to her change of position to supervised time without progression the mother was unable to provide answers about the effect on the children of supervised contact going on for years. She said that if the children suffered distress as a result “their psychologist can pick up the pieces”.
I attribute this answer to the mother not having had sufficient time to think through the impact on the children of seeing their father only once per month, in the presence of a third party, until each attained adulthood.
It may be that watching and listening to the father during his cross-examination, hearing his disgraceful references to her as “dirty”, “unclean”, “an unfit mother” and worse, reminded her too strongly of years of similar insulting language and provoking conduct.
She expressed having been hopeful that the father might have softened in his attitude but realised he had not.
The Court Child Expert (CCE) – Mr K
During his cross-examination the CCE expressed his concerns about the father especially if he was continuing to minimise his role in domestic violence and declining responsibility for his actions, “Unless there is ownership, no behavioural change.”
The CCE also expressed the opinion that residual mistrust, blame and dislike/hatred would continue to impact the parental relationship. The Court accepts that opinion.
One example is that in concluding submissions the father (himself), opened with a calculation of the income he had lost between 2016 and 2020 through having to give up his job in Sydney. This submission resonated with the cross-examination of the mother on her refusal to move to Sydney so the father could work there, although she had said when the parties first met that she would.
The father was angrily dismissive of the proposition that things had changed since that early conversation, the mother had given birth to their first child and wanted the support of her mother close by and friends with children.
The father was also provocative and insulting during submissions, with his theory about what the mother could be released to do by sending Z to pre-school, and on several other topics none of which require repeating in these reasons.
The CCE assessed the father’s parenting as good “but the risk of parental denigration is there.” There is ample evidence to support that risk.
He suggested, and the Court accepts, that “handover is a risk point”.
Most helpfully the CCE explained during oral evidence how emotional harm is done if one parent is “openly critical and disdainful of the other” and children see it hear it or learn about it.
There is a significant effect psychologically. Children see both parents as care givers and protectors. If there is a challenge to that belief it can lead to children doubting themselves; to anxiety hypervigilance and stress. Even the growth of the brain can be affected.
The Single Expert – Dr L
The single expert had been appointed to conduct a psychiatric assessment of both parents, which he did in July 2019.
He was not asked to see the children but read the first family report.
The single expert considered that the mother was well functioning, now in remission from major depressive disorder (postnatal). The single expert found no corroborative evidence in medical records or interview of the father’s belief that the mother had Borderline Personality Disorder (“BPD”) or of his report that the mother lied, was manipulative and had trouble controlling her anger.
He concluded that the father has narcissistic personality traits. The number of features fell short of the five required for a diagnosis of a full disorder.
The single expert reported, in summary, that the father demonstrated a pattern of grandiosity and need for admiration. He conveyed a grandiose sense of self-importance, a sense of entitlement and showed arrogant attitudes.[7] Such senses and attitudes were on display throughout the trial to a lay observer.
[7] Single Expert Report dated 31/08/2019, line 560.
The single expert was also asked to report on the extent to which, if at all, condition/disorders impinged upon parenting capacity.
He reported that the mother presented as capable and willing to provide for the children’s needs. In the event of a return of depressive symptoms the single expert was confident that the mother has the capacity to again access medical assistance.
He reported that the father presented as generally capable and willing to provide for the needs of the children. However the father’s proposal that the children live only with him reflected negatively on his deeper understanding of the children’s emotional needs.
He also reflected that narcissistic personality traits were widespread in the community and did not inevitably lead to the same toxic result as a full disorder. He considered that the father struggled to understand the thoughts, emotions and points of view of others.
He concluded “Psychological therapy may assist a parent with narcisstic (sic) personality traits to ‘keep the children in mind’”.[8]
[8] Single Expert Report dated 31/08/2019, lines 602-609.
The Court is comfortably certain, given the father’s sarcastic dismissal of the opinions of the single expert, that the father will not take up this suggestion.
THE LAW
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
(i)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
(j)Children are protected from physical and psychological harm;
(k)Children receive adequate and proper parenting to help them achieve their full potential; and
(l)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child or family violence. In addition the presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.[9]
[9] Family Law Act 1975 (Cth), s 61DA.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the interests of these children.
Parental Responsibility
An interim order allocating sole parental responsibility to the mother was made on 16 January 2019 in the FCC. This Court must[10] disregard the allocation of parental responsibility made in the interim order when making a final parenting order in relation to the children.
[10] Family Law Act 1975 (Cth), s 61DB.
Accordingly, the allocation of parental responsibility will be considered afresh.
There are reasonable grounds to believe that the father has engaged in family violence. An Apprehended Violence Order for the protection of the mother was made in March 2017 after one such incident when the father was charged with assault. There were other episodes. Accordingly, the presumption of equal shared parental responsibility does not apply.
As a result the Court is at large as to what order in respect of parental responsibility should be made.
Each parent asks for an order for sole parental responsibility. This is a reflection of the fact that they are unable to make decisions jointly. The evidence supports a finding that the mother has made sound decisions for the children with regard to health and education to date. She also understands that the children have relationships with the father quite separate from her relationship with him. The mother is supportive and appropriately protective of those relationships.
The father either believes that the mother is mentally unstable so that the children are not safe with her or he is determined to have the children in his full time care and is using that asserted belief to achieve that goal. Whichever is the case the father would not consult with the mother, he is unlikely to readily accept professional advice from medical practitioners and he would not be protective of the loving and dependant relationships the children have with the mother.
The intervention by the father which led to prolonged delay in X having her tonsils and adenoids removed is an example of how ineffective shared parental responsibility would be in this case. The fact that the father regards himself as having been protective of the child’s health and safety (with regard to appropriate surgery and a medical investigation) does not diminish the need for one parent to have clear authority with third parties. A medical specialist withdrew from treating the child as a result of the father’s confronting conduct.
I conclude that it is appropriate for parental responsibility to be allocated to the mother to the exclusion of the father for all long term decision making for the future welfare of the children.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
Whether meaningful relationships can be maintained in future is a live issue in this case.
In his report[11] the single expert expressed the following views having both assessed the parents and read the first family report:
The father’s proposal to move the children wholly to his residence and to exclude contact with the mother, could be considered to be emotionally harmful to the children. The father’s proposal presented as struggling to facilitate a close and continuing relationship between the children and the mother. In my interview with the father regarding this issue, the father said he acknowledged the importance of the children’s relationship with the mother. He indicated that his request for orders was out of his concerns about the mother’s alleged mental health problems and that the children may experience potential harm from this. The writer did not find sufficient evidence to support the father’s reasoning in this regard, apart from the mother’s own account.
The mother’s proposal to have the children live with the mother and to spend significant time with the father was considered to be emotionally nurturing for the children, and encouraging the children’s relationship with the father. The mother accepted that [Z] would spend increased time with the father as they (sic) grew up.
Complete separation from the mother will be detrimental to the emotional wellbeing of the children given their evidently strong and positive attachment to the mother (family report by [Mr K]).
Complete separation from the father will be detrimental to emotional wellbeing of the children because the children evinced a positive attachment to the father (family report by [Mr K]).
[11] Single Expert Report by [Dr L] dated 31/08/2019, page 19, lines 611-629.
Ultimately, the single expert did not recommend separation of the children from either parent.
The mother does not propose total separation even on her amended proposal for limited supervised time.
The father effectively does make such a proposal. His preferred position, despite his formal position, is that the children spend supervised time with the mother subject to her ongoing attendance on a psychiatrist or psychologist. The mother does not consider that she needs to do so. There is no evidence to the contrary. Further, the mother is supported in that view by the single expert who assessed her to have Major Depressive Order in remission (postnatal onset). She had received effective treatment from her general practitioner and psychologist.
Since the father does not accept the mother’s own assessment of her current mental health nor the psychiatric assessment which confirms her opinion with her view, the father would probably not permit the children to see the mother at all.
I accept that it would be emotionally harmful for the children to be cut off from the mother in that way. Most probably devastating since she has been the one to meet all or most of their needs throughout their lives.
The children should continue to live with the mother.
Having heard all the evidence I accept the assessment of the single expert that “given the fractious nature of communication between the parents with allegations voiced about each other it seemed unlikely that they that they would communicate effectively with each other and resolve difficulties that may arise.”[12]
[12] Single Expert Report dated 31/08/2019, par 640.
The evidence before me suggests that the parents’ relationship is just as “fractious” now as it was two years ago when the assessment was undertaken by the single expert.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
The two elder children have been exposed to family violence since birth. The youngest child has had a less tumultuous experience of conflict between his parents through being born after their final separation.
Additional Considerations
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
Family Reports: Report One dated 20/07/2018 and Report Two 10/11/2020
Z had not been born when the interviews for the first family report took place.
He was two years and four months of age at date of interview for the second family report. Given his age he was not interviewed. Z was observed to be a healthy child who had met all relevant milestones. He was communicating in brief sentences or single words. He responded to the name which each parent uses for him Z by the mother, ZZ by the father and his partner.
Y was three years old at the first interview and was not interviewed. He was observed to be physically healthy, quiet and reserved with the CCE.
An important observation for the Court is this. Y nodded yes when he was asked whether he would like to see his father. He then turned to his mother and said “can you go when Daddy comes”. The mother told him she would and explained that she would be in a room nearby, “the child appeared comforted by this response.” [13]
[13] Family Report dated 20/07/2018, par 66.
The CCE described this reaction as unusual and explained why:[14]
The report highlights that this is a significant response of the child, which the report writer suspects is an indication that the child is not fearful about his own interactions with the father, but he is fearful about his mother’s interactions with father. This also indicates that the child does have some anxieties around the threats he perceives to his primary attachment figure (his mother), and that he is acting in protective ways. In most cases of separated parents, children still hold a strong desire to spend time with both parents together, and this has typically been the family consultant’s experience in the bulk of family reports completed. In this case, the child’s desire for his parents to be apart when he spent time with them is unusual, and perhaps indicative of the degree of family violence that the child has witnessed.
[14] Family Report dated 20/07/2018, par 67.
The father was cross-examined about Y’s request. The father explained that in his opinion “[Y] said that because he’s uncomfortable showing his mother that he’s happy with me”. It is an unlikely explanation for a three year old child’s unusual reaction of not wanting both parents in the room at the same time.
Y was five years old at the time of the second interview. He was non-committal, positive in response about both parents and their households. By then he was having counselling because of “anxiety issues, nervousness, fidgeting”. The mother attributed this as being due to “longer times with the father”.[15] It seems less likely than the impact of exposure to escalating conflict between the parents.
[15] Family Report dated 10/11/2020, par 71.
X was four and a half years at the first interview. She was observed to be quiet and withdrawn, somewhat unwell with ongoing issues around tonsillitis and unable to be interviewed alone.
X was almost seven years at the second interview. She was well, happy at school. She described her mother’s home as “really good”. She answered that she looked forward to spending time with her father. She commented spontaneously “I’d like to have a bit more time with Dad”.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
The children have loving relationships with each parent, with the maternal grandmother and to the observation of the CCE with members of the extended paternal family.
The father’s partner did not provide an affidavit although that course had been foreshadowed when directions were made. The Court was unable to make any assessment of her. The father responded in cross-examination that his partner did not wish to become involved in the litigation.
If the father and his partner do live together, or would in future, some information about Ms D’s son and his attitude to the children would also have been of assistance.
There was an allegation by the mother that Ms D had been critical of her in the presence of the children, which the father acknowledged. The Court could have been assisted by some evidence from Ms D on that incident.
The CCE in October 2020 asked Ms D about communication between the parents. She said there was not a lot of communication and attributed fault to the mother in that respect.[16]
[16] Family Report dated 10/11/2020, par 57.
On a more positive note Ms D stated that she was more focused on being supportive of the father and on providing a nice environment for the children “when they were with them”.
The consequences of the father not calling as a witness someone who has regular contact with the children in a family context falls on the father, not the mother. The nature and character of the father’s household is unclear.
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
Removal of the children from the care of the mother would be emotionally harmful to them. I accept the opinion of the CCE about that. To then deprive them of any time and communication with the mother would likely destroy their trust in both parents and cause immense sadness and mistrust.
Deprivation of contact with the maternal grandmother would aggravate the emotional harm. She has always played a role in their care and activities.
Short periods of supervised time with the father once per month as a permanent arrangement is unlikely to be sufficient for the children to maintain their relationship with the father. Without some experience of home life with the father and shared activities, relationships would attenuate. There is no prospect of such an arrangement continuing once each child starts high school. Resistance would be inevitable.
The ultimate proposal of each party, as referred to above, does not promote the best interests of the children.
The practical difficulty and expense of a child spending time with and communicating with a parent
The distance between the parties’ homes is about five kilometres, a five to ten minute car trip.
The parties live in close proximity and are both employed. There are no financial or logistical impediments to the children travelling between households.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The father revealed an absence of insight into both the impact of his own belligerent conduct towards the mother and the apprehension his children feel when their parents are together.
The father pressed for a change of residence for the children with no reference to the emotional upheaval that would create for them nor how he would manage their inevitable emotional distress.
Tendered into evidence by the ICL[17] was a record of Mr Q a Clinical Psychologist who met with the father on 3 August 2017. The meeting was in the context of workplace conflict involving the father and a co-worker. The psychologist makes this comment:
In discussing his difficulty connecting with his emotional response during the incident it became clear that [Mr Emson] [the father] is unable to identify feelings of upset or distress easily. It appears that he is not connected to feelings which correlate with distress (fear, anxiety, sadness etc.). [Mr Emson] tends to intellectualise problems and attempt problem solving, leave a situation when he is feeling upset or being confronted angrily by others…
[17] Exhibit 12.
In my view, this assessment throws further light on how the father, who loves his children dearly, could be so oblivious to the emotional harm his proposal would cause.
By commencement of trial the father had shifted his formal position to the extent that the mother could have unsupervised time with the children after they moved to live with him. Quite quickly he resiled from that position and reverted to the need for the children to be supervised due to the incapacity, in his view, of the mother to care for them.
I conclude that the father has impaired capacity to meet the emotional needs of the children.
The mother’s formal proposal for the children to spend significant time with the father was considered by the single expert to be “emotionally nurturing for the children and encouraging of their relationship with the father”.[18]
[18] Single Expert Report dated 31/08/2019, line 620.
It was linked to his opinion that the mother was capable and willing to provide for the children’s physical emotional and intellectual needs.[19]
[19] Single Expert Report dated 31/08/2019, line 580.
The fact that the mother changed her position after the cross-examination is likely to reflect the mother being forcefully reminded during those hours, of events during the relationship (and since) which have been physically painful for the mother and emotionally draining. I accept that she had hoped for signs of a more measured presentation by the father, much less hateful and insulting towards her. That was not the case.
The Court is satisfied that the mother not only understands that the children’s relationships with the father are very different from the relationship she has with the father, but also that she wants them to enjoy those relationships as much as possible.
It is readily understandable that the mother wants nothing more to do with the father herself.
I take into account the assessment of the single expert that both parents “presented as having sufficient capacity to follow parenting orders as stipulated by the Honourable Court.”
Put into operation, I conclude that if the parents are not brought into contact with each other, each will comply with orders despite each having profoundly adverse views of the other.
It is this factor which permits relationships for the children with the father to be maintained.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The parties see and understand different qualities in their children but there is no doubt that they both know the children well and love them.
X aged seven and a half years
The father described X as very outgoing, plays tennis, a leader, a funny child, intelligent, loves school environment, quirky, sometimes short tempered. He later commented “[X] will rebel”.
The mother described her as fun loving, a little bit shy when she first meets people, very very creative, very intelligent. Great value.
X suffered repeated episodes of viral illness and tonsillitis between 2016 and 2019 when she had her tonsils and adenoids removed. A dispute between the father and treating medical specialist created delay to surgery taking place. She has been well since.
Y aged six years
The father described Y as different, does not want to do [Activity R], wants to play basketball, very intelligent, good at maths, knowledge with technology, funny, musically minded.
The mother described him as a gentle soul, very aware of his own feelings and other peoples’, super intelligent, creative and artistic, engaged by Activity R.
Both Y and X were assessed by the CCE to be “reluctant to be with their parents when they are together” and are possibly aware that the father does not support the activities for them arranged by the mother, including “[Y] attending [Activity R].”[20]
[20] Family Report dated 10/11/2020, par 109.
Z aged three years
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
The father described Z, in a humorous way, as “an experience in itself” also extremely intelligent, funny, he banters, a powerful child - he’ll be the leader of them all. His attributes are “by the Grace of God”.
The mother described Z as a cheeky little scallywag, into everything, rambunctious lots of fun.
The father usually calls Z “ZZ”. The name “ZZ” is the child’s middle name. The child was born after the parties separated, six months after legal proceedings commenced.
The father was, and continues to be, offended that the mother named the child without reference to him and nominated his surname as Makin. On 16 January 2019 an order was made for the Birth Certificate to be changed, with a middle name to be given by the father and included.
The father chose “ZZ”. The evidence suggests that the father uses that name to remind the mother of those events and perhaps as a lead in to explaining it all to the child. The father has already explained to the two older children “that I got to give him a middle name”. When asked by the solicitor advocate for the ICL whether the older children called him ZZ the father’s response was “they are being told by their mother to call him Z”. The father acknowledged that his partner “calls him ZZ on occasions”.
This is not the playful use of a nickname by the father. If he persists it could cause division between the children and totally unnecessary conflict just to prove a point.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
There has been family violence in this relationship. The mother has borne the brunt of more than one assault on her by the father. The children, more particularly the two elder children, have been exposed to arguments between their parents which have become highly charged. They have seen their mother treated roughly by the father.
Details of many incidents of physical assault and verbal abuse were included in affidavits. Agreement was reached between counsel for the parties that not every allegation would be explored. There is ample evidence established of violent behaviour by the father towards the mother and of rage fuelled verbal arguments between the parties.
In March 2017 an Apprehended Violence Order was put in place for the protection of the mother for one year.
The original incident giving rise to a charge took place in late 2016.
In his trial affidavit the father referred to “tapping her [the mother] on the forehead”. Such language was designed to minimise the incident.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
There are almost fifteen years of parenting ahead for the parties, until the youngest child turns 18 and becomes an adult. Inevitably circumstances of the parties and the children themselves will change over such a period.
Given the state of their relationship the parents would be unlikely to negotiate different arrangements, although it is possible that could happen.
In future a request for variation of an order can be made by one parent but if the other parent does not agree then that is the end of the matter, the orders apply.
The Court has concluded that there may be orders which if made now could make it less likely that future proceedings would again be instituted. One instance would be block holiday time for the father. However the Court is satisfied that presently there are no additional orders which could be made without creating an imbalance between safety and risk.
The final orders made now could be operative for all that time.
Any other fact or circumstance that the court thinks is relevant
The outcome of this case is a balance of risk between the children losing their relationship with the father they love and the risk of their exposure to the father expressing his vitriolic opinions of the mother they love.
The father impressed as a man with a very strong unshaken self-belief.
The father himself attributes his certainty about his own views and opinions to “personal power” which he defined in oral evidence as “an ability to influence people or events with or without external authority.”
The single expert who assessed both the father and the mother diagnosed the father with narcissistic personality traits. The father, showing no sign of doubt, rejected that diagnosis:
I don’t accept his assessment. There is a difference between narcissistic personality traits and personal power. He has misinterpreted.
The Court concludes that the father will not explore the possibility of the psychiatric diagnosis being accurate. He will continue to “tell his truth” which in practice can result in his telling people what he thinks of them, and others, without holding back.
The mother indicated to the Court that she intended to have the children spend time with the paternal grandparents in the absence of the father. That was in context of the children having supervised time only with the father. By these orders the father will be able to take the children to see his parents so the mother’s intention may fall away for that reason. Nevertheless an order will be made allowing both parties to provide a copy of these orders to the paternal grandparents.
CONCLUSION
By these orders, time and communication for the father with the children will be restored after a few weeks of not spending time with him between trial and judgment.
For six months, short periods of supervised time should be fun for the children. The presence of a supervisor has been ordered to ensure that the children are not exposed to any pent up feelings about the trial and its outcome which the father may be experiencing.
The cost of this supervision will be borne by the father to ensure that he has responsibility for organising the supervision and there is no reason for the parties to be brought together.
After a period of six months, time will become unsupervised. Changeovers until the youngest child starts school shall be effected by a supervision service. This will ensure that the parents are never brought in contact with each other in the presence of the children and that there is no reason for the father to be present at the mother’s home.
The costs of this period of supervised changeovers will be borne by the parties equally. The connection with the supervision service will be established by then.
Time will gradually progress to two day alternate weekends for all three children but no long periods of time. That is the point of balance between benefit and risk for the children.
There are other specific orders drawn deliberately from the orders proposed by the mother. It is critical to the operation of these orders that the mother considered them to be workable and that there is as much clarity as possible about their operation.
There are also restraints by injunction pursuant to s 68B of the Act on the father contacting, communicating and approaching the mother, the children and the mother’s employer at home, school and work other than in accordance with these orders.
Those orders are made as proposed by the mother in her fresh Minute of Order[21] for her protection, and to amplify certainty about the limits being imposed around time and communication for the father.
[21] Exhibit 5.
The orders are remote from those sought by the father. He may be unable to accept them.
Given the history which has given rise to these orders, any proven contravention of them by the father may lead to a cessation of time and communication for the father with the children, to the detriment of the children in the long term.
Orders are made accordingly.
I certify that the preceding one hundred and ninety-two (192) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary. Associate:
Dated: 20 September 2021
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