EULALI & EULALI

[2021] FamCA 206

FAMILY COURT OF AUSTRALIA

EULALI & EULALI [2021] FamCA 206

FAMILY LAW – CHILDREN – Interim Parenting – Change of schools – high conflict – children’s best interests.

Family Law Act 1975 (Cth) ss 60A, 60B(1), 60B(2), 60CC(1), 60CC(2), 60CC(2A), 60CC(3), 61DA

APPLICANT: Ms Eulali

RESPONDENT: Mr Eulali

INDEPENDENT CHILDREN’S LAWYER: L.G. Lawyers

FILE NUMBER: ADC 1643 of 2018

DATE DELIVERED: 5 March 2021

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Mead J

HEARING DATE: 5 March 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dickson QC

SOLICITOR FOR THE APPLICANT: AM Legal

COUNSEL FOR THE RESPONDENT: Mr Roberts of Counsel

SOLICITOR FOR THE RESPONDENT: Dixon Gallasch Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Gross

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: L.G. Lawyers

Orders

1. During the period of the adjournment:

   (a)the children X born … 2009, Y born … 2010 and Z born … 2012 live with the mother who shall have sole parental responsibility;

   (b)the said children spend time with the father from 5.00 pm Friday to 5.00 pm Saturday each week commencing 5 March 2021 with handovers at Hungry Jacks at Suburb K;

   (c)the said children communicate with the father in accordance with the terms of paragraph 7(b) of the order of 10 February 2021 SAVE AND EXCEPT that the words “and Sunday” be deleted therefrom;

   (d)the mother neither record the said telephone communication nor have the telephone on loud speaker at any time during the communication.

2. That during the period of the adjournment, X, Y and Z remain attending at L School and M School respectively.

3. Until further order the parties be restrained and injunctions are hereby granted restraining each of them from:

   (a)       physically disciplining the children;

   (b)approaching, entering or remaining upon any place at which the other of them and/or the children shall be from time to time;

   (c)denigrating the other of them in the presence or hearing of the children or allowing any other person to do so;

   (d)discussing these proceedings or issues in dispute between the parties with or in the presence of the children or allowing any other person to do so;

   (e)harassing or text messaging the other of them save with respect to any text message regarding urgent health issues concerning the children or any of them; and

   (f)        removing the children from the state of South Australia.

4. Until further order the husband be restrained without admission from assaulting or molesting the wife and/or the children.

5. The Independent Children’s Lawyer forthwith do all things necessary to facilitate the obtaining of a Family Assessment Report from Ms N at the equal shared cost of the parties NOTING THAT the Court is advised that she is available for such purpose in early June 2021 and that the total cost is likely to be approximately $4,500.

6. That the report include observation of interaction between each of the children and each of their parents as well as observation of the children together and take into account any views or perceptions expressed by the children as to their parenting arrangements and the weight that should be placed on such views.

7. The Independent Children’s Lawyer provide Ms N with all applications and affidavits filed in these proceedings since their commencement in 2018 together with any published judgments of Berman J, any Child Dispute Services memorandums and a settled copy of today’s reasons.

8. Pursuant to section 69ZW of the Family Law Act 1975 the Department for Child Protection shall provide the Court with the following documents or information:

   (a)copies of any notifications regarding abuse allegations arising relating to the children X born … 2009, Y born … 2010 and Z born … 2012;

   (b)any details of investigations into such abuse allegations;

   (c)the outcome or findings of any such investigations; and

   (d)copies of any reports received by the Department for Child Protection in the course of investigating any such notifications.

9. Pursuant to section 69ZW of the Family Law Act 1975 the South Australian Police Department shall provide the Court with the following documents or information:

   (a)copies of any notifications regarding abuse allegations arising relating to the children X born … 2009, Y born … 2010 and Z born … 2012, and the parties MS EULALI born … 1970 and MR EULALI born … 1976;

   (b)any details of investigations into such abuse allegations;

   (c)the outcome or findings of any such investigations; and

   (d)copies of any reports received by the South Australian Police Department in the course of investigating any such notifications.

10. That directions and interim issues be adjourned to 28 July 2021 at 9.00 am (1 hour allowed).

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

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

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1643 of 2018

MS EULALI

Applicant

And

MR EULALI

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me this morning with respect to parenting issues.  It is a very difficult matter.  Proceedings commenced between the parties in 2018.  I do not intend to discuss in any detail what happened then, but suffice it to say, the proceedings came about after the parties went by agreement to Country H.  The mother was firmly of the view at all times that it was for a holiday.  The father said that it had originally been for a holiday, but the mother changed her mind.

2. On 13 July 2018 Berman J made orders providing for the husband to remain restrained from leaving the Commonwealth of Australia and providing for the children to come back to Australia.  They did so and arrived back in Australia around about the end of July of 2018.

3. The parties were engaged in litigation during the balance of 2018, 2019 and up to 26 November 2020, when final orders were made by consent.  They provided for the children to live with and spend time with each of the parties as agreed and restrained the parties from removing the children from the Commonwealth of Australia for a period of 10 years or until the children attain the age of 18 years.  The children’s names were to be placed on the AFP watch list and their passports were to be held by the Adelaide Registry of the Family Court of Australia.  The husband’s passport held at the Court was to be returned to him and the parties were restrained from applying for a passport for any of the children in any country, including Australia and Country H, except as permitted by an order of the Court.  All extant applications were otherwise dismissed, including an application for a divorce that had been filed as long ago as 2 September 2019.

4. The reason that happened at the end of 2020 was that by then, the parties had separated, reconciled and separated and reconciled so many times that I think probably they, let alone the Court, lost count.  The matter would proceed for a certain time, and then adjournments would be sought because the parties were trying to resolve issues.  It was clear from the commencement of the proceedings that the mother was alleging domestic violence and, in particular, coercive control over her by the father.  It was the father’s position that the parties’ difficulties were caused by the mother’s acknowledged long-term bipolar effective disorder, on her evidence that had come into play shortly after the birth of the second of her older two children.

5. The parties managed to co‑exist without, it would appear, the intervention of the police or the Court for a couple of weeks after the final order in November of 2020.

6. According to the mother’s affidavit filed with her initiating application on 12 January 2021, she became increasingly concerned about the father’s intention to leave the Commonwealth of Australia.  She arranged for rental accommodation at a property in Suburb O and subsequently moved to that property.  She sought final orders and interim orders essentially in the same terms, namely:

   ·for the children to live with her;

   ·for her to have sole parental responsibility for the children;

   ·for the children to spend time with the father under such terms and conditions as agreed or in default, as determined by the Court;

   ·that the children be enrolled to attend at L School from the commencement of Term 1, 2021, otherwise another private school in the area; and

   ·certain injunctive orders as set out in paragraph 9 of the application.

7. The application was returnable for 10 February 2021.

8. On 5 February 2021 the father filed a response.  He interim orders restraining the parties from changing the enrolment of the children’s school.  They had been, for the balance of 2018 when they returned from Country H, 2019 and 2020, attending at P School, a Muslim school at Suburb R.  He proposed that in the event that the wife lived within a 30 kilometre radius of P School that the children live with each of their parents on a week‑about basis.  In the event that the mother relocated outside of that radius of P School he proposed the children live with the parties week‑about during school holiday time, and during term time live with him and spend time with the mother on alternate weekends from 5.00 pm Friday to 5.00 pm Sunday.

9. The father also sought injunctive orders together with a section 69ZW order directed to SAPOL. He sought that there be a section 11F intervention, and of course, both parties sought final orders.

10. The mother sought for the children to live with her in almost exact terms as in the interim orders.  The father sought final orders for equal shared parental responsibility, for the children to attend at P School, and the same provisions about living arrangements as proposed in the interim orders he sought.

11. The parties did not manage to remain reconciled for very long.  The mother says that after the finalisation of a property transaction on 1 December 2020, some earlier discussions that she maintained had occurred about the family moving to the southern areas of the metropolitan area, proved unfruitful and the father changed his mind.  In her affidavit filed on 6 January 2021 she deposed to the father having contacted SAPOL, mental health services and her GP on multiple occasions, to make allegations that she was recklessly spending money, making bad decisions, manic and a risk to the children.

12. The mother arranged forthwith to be assessed by a mental health service and her GP, and annexed to a later affidavit filed on 19 February 2021, reports relating to her mental health.  I do not intend to go into them in any detail, suffice it to say they confirmed the diagnosis of her mental health disorder, but both her GP and a Dr S, a psychiatric registrar, were satisfied that the mother’s mental health was stable, she was complying with her medication and she was at no risk to herself or to the children.

13. The mother deposed at paragraph 96 of her affidavit filed on 6 January 2021 that at approximately 3.00 am on the morning of 27 December 2020 she went upstairs to check the children.  The father was sleeping upstairs in a room next to the girls, and with Z in his bed.  There was a discussion about whether or not Z should be in his bed.  The parties started talking about moving with the children to Suburb O.  An argument ensued.  She deposes in paragraph 97 to the father grabbing her by the arm and dragging her out of the house with so much force that she nearly fell over and ended up with a bruised arm.

14. She said that between 18 and 27 December 2020 the husband had not allowed her to take the children out of the house or to be alone with the children.  She deposed in paragraphs 21 and following to an incident where she said that the father threatened her.  She deposed to him telling her in front of the children that if she tried to remove the children from the house he would kill her with an iron bar.  She said at the time that the husband had an iron bar in his hand and was banging it against his palm.

15. The father said he had a metal strut not a bar.  He denied making any threat against the mother or the children.  He conceded he bent down and picked up the metal strut and tapped it on the palm of his hand, intending to convey the impression that he would defend himself against any action against him by the mother’s brother, Mr T, who apparently was coming to the house.

16. It is perfectly clear that there is no dispute that there was a metal device of some kind or implement of some kind held by the father, and that he was banging it on his palm.  Whatever the reason he said he might have been holding or banging the piece of metal, it was clearly done in a threatening way.  I am confident in finding even on an interim basis, that people do not have iron bars, struts or any other such thing in their hand and/or bang it on their palm without an intention of at least conveying a threat of harm in conflicted situations.

17. In any event, the children then remained in the care of the father.  SAPOL came to the house.  The mother expresses concern in her affidavit material about what the father told SAPOL.  She said they were little interested in her complaints about violence, but rather in her mental health.

18. The children spoke with the police.  They went with the father to the other property of the parties.  The mother remained in the property where she had been living.

19. Eventually on 3 January 2021, after an agreement between the parties’ respective solicitors, the children came into the mother’s care, she having provided confirmation about the status of her mental health to the father, either through his solicitors or otherwise.  The agreement that the mother concedes was put in place was a week‑about arrangement for the rest of the holidays.  The children however have remained in the care of the mother since that time.

20. According to the mother, there was no place at L School for all three children, but only for X, the oldest child, who is eleven and a half.  Y and Z have been attending at M School where there was a place available for them.  According to the mother and the Independent Children’s Lawyer, all three children have settled in well at their schools.  The Independent Children’s Lawyer has spoken with the children and with the principals of the schools.  Both of the older children have indicated that although they quite like their new schools, they would like to go back to P School.  Z seems not quite so concerned either way.

21. The father is very concerned that L School and M School are Christian schools not Muslim schools, that the children have always attended at a Muslim school and, the one constant in their lives over the last three years of what can only be described as clear turmoil on the case of either party, has been their attendance at P School.

22. I have to determine the parties’ respective interim applications in accordance with the provisions of the Family Law Act 1975 (‘the Act’).  Section 60B refers to the objects and principles underlying Part VII of the Act which relates to children. The objects as set out in section 60B(1) are as follows:

    (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.

23. The principles underlying those objects, as set out in section 60B(2), are that:

    (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)(not relevant)

24. The Court is told, in section 60A of the Act, that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

25. In section 60CC(1), the Court is told that it must consider the matters set out in sub‑sections (2) and (3) of the said section.  Section 60CC(2) is headed “Primary considerations”, which 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.

26. In applying those considerations, the Court is to give greater weight to the issue of protecting the children from physical or psychological harm.[1]

    [1]Family Law Act 1975 (Cth) s. 60CC(2A)

27. All three children love both of their parents.  They have lived with both parents in the same household for most of their lives, save and except for the period that they were separated from their mother in 2018.  At this time the father made it clear to the mother and also to Berman J that he intended that he would return to Country H and that he and the children should live in Country H, both on an interim and on a final basis.  Because of that position, on 28 July 2018 Berman J restrained the father from leaving the Commonwealth of Australia and made an order that the children be returned to Australia.

28. The children have had an opportunity to speak to the Independent Children’s Lawyer Ms Gross.  They told her that they love both of their parents.  Both X and Y have said that they would probably prefer to go back and live with their father, but that they love their mother.

29. Generally there was nothing of any particular concern that Ms Gross put to the Court in terms of the children being reasonably content with their living arrangements at this point in time.  There is no doubt that the children love both of their parents, a point not contested by either of the parties and implicit in the orders proposed by the father.  The children’s love for their father and the fact that they are missing him is acknowledged by the mother.

30. The most important issue however is the need to protect the children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.  If the Court takes into account the affidavit material filed by each of the parties, it is clear that these children have been exposed to and, on the mother’s case, subjected to abuse and family violence.  It is not possible to make a finding as to that issue on an interim basis.  I am not satisfied that there is anything that would suggest the children have been neglected.

31. The parties’ relationship has been toxic and it continues to be toxic.  The main concern of the mother is that the father exerts coercive control over her and that he has done so for many years, based on his emphasis on the state of her mental health and his complaints to SAPOL, medical practitioners, schools, and the like, about the state of her mental health.  The position of the mother is that the reason she has constantly reconciled with the father is because she has not been able to break away from the relationship in that the behaviours the father has exhibited towards her and the threats he has made towards her have coerced her into staying in the relationship.

1. It is for that reason that she is very anxious to remain living in the southern suburbs where she is physically distant from the father.  She deposes to that being a particularly helpful move for her in terms of being able to remain separated from the father.  She expresses concern that if she is living back near him or in the same house as him, she will ultimately capitulate and resume the relationship.

2. It has long been the mother’s position that the father’s control over her was evidenced by his actions in 2018.  It is her case that he insisted on remaining in Country H with the children, and without her consent or even discussing the issue with her, attained the children’s Country H passports in order to pursue claims for settlement of property, or alternatively, live a life based on the income generated primarily on her case, by her.

3. I am satisfied that any orders that the Court makes, on the cases of both parties, need to involve orders that protect the children from physical or psychological harm, from being subjected to or exposed to abuse or family violence.  It is important that these children have a period of time where they can be apart from constant conflict between their parents.

4. I must then consider the section 60CC(3) factors.

5. I have already referred to the children’s views.  They like living with their father.  That would also mean, of course, they could go back to P School.  The older two children have indicated that they are happy at their new schools and like them.  They like the friends they have made there.  They would however prefer to return to P School.  That is where they have been for some time and they have got friends there.

6. I am not satisfied based on what I have been told today that it is a matter about which they have a vehement view either way at this point in time.  Z is particularly enthusiastic about his new school.

7. As to the nature of the relationship of the children with their parents and other persons, including grandparents, the father does not have any other family in Australia.  There is little evidence about the children having any particular connection with the mother’s family.  I am satisfied that the children love both of their parents and that both of their parents have played a significant role in their day‑to‑day care.

8. The mother says that she provided by far the greater care giving role.  It is common ground the father took the children to and from school.  The mother says that was because it was a Muslim school and because the men are expected to do that.  All three children have a close and loving relationship with both parents.

9. As to the extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues, the mother determined that the children remain in her care as of 3 January 2021.  That was a unilateral decision on her part.  She is opposed to them going back to live with the father and is also opposed to them going back to P School.

10. The father has not been able to be actively involved in any decision about the children’s schooling.  That has effectively been taken out of his hands by the mother.  He has not been permitted to spend time with the children, initially by the mother and after 10 February 2021 by the Court, but he has communicated on a regular basis with them.  The mother makes some complaints about him having not telephoned on some occasions but there has clearly been telephone communication between the father and the children, in respect of which the mother has some complaints.

11. In terms of the parents’ obligations to maintain the children, I have heard no submissions about that, but it is primarily the mother who is providing for the children at this point in time.

12. As to the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents or any child, the proposal of the mother would involve the children either seeing the father on a supervised basis at a children’s contact service, or at most, on alternate weekends from Friday evening to Sunday evening.  The proposal on the part of the father would have the children living week‑about if the parents lived within a 30 kilometre radius of P School, or alternatively, if the mother elected to remain in the southern areas, with the children living with him and spending time with their mother during school term on alternate weekends and during the school holidays, for alternate weeks.

13. Both proposals involve significant changes to these children’s circumstances.  It is important, to my mind, that the children be relieved of exposure to ongoing violent behaviour, which is what I consider the hitting of a hand with a metal bar or strut for whatever reason such that it can be seen by the mother and/or the children might be, and also that the children need to be removed from an environment where their parents are in constant conflict.

14. Both parents talk about how the other one screams and yells.  The mother alleges that the father is physically violent.  The father alleges that the mother is violent.  The father alleges that the mother’s mental health means that she behaves irrationally.  The parties do not have a single good thing to say about the other of them.

15. The children’s circumstances would change on either party’s scenario, but if I return them to the care of the father they would have yet another change in school.  It might be back to P School, but it is still a change during the school year.  Ms Gross speaks about the children coping with their change in schools.

16. The father says that they must return to the P School because he is of the Muslim faith.  It is clear from the mother’s documents that she might best be described as having momentarily flirted with the Muslim faith, but is a Christian of Country Q background.  I accept the submission of Ms Dickson that at this point in the children’s lives, the need to protect them from physical or psychological harm is of greater significance than whether they go to a Muslim or a Christian school.  I am satisfied that they would be getting a perfectly adequate education at both schools.  The mother says they have more sport and extra‑curricular activities at their new schools.  That may be so, and it may be that is good from the point of view of the children, but it is not the be all and end all.

17. I am satisfied that although the children are clearly missing their father, there is no objective evidence before the Court to suggest that they are suffering any significant stress as a result of living away from him and living in their mother’s household.

18. I have no doubt at all however that they would enjoy spending some time with him, until such time as the Court is in a better position to consider the parties’ alternate proposals, and have before it something like a family report.  Such a report might provide some greater insight into issues of concern to both parties, such as the mental health aspect on the part of the father and the father’s alleged coercive control and aggressive behaviour being the concern of the mother.  In those circumstances I am not persuaded that this is a particularly significant factor in this matter.

19. As to the practical difficulty and expense associated with living arrangements, the mother now lives in the southern suburbs and the father lives in the northern suburbs.  There is a fair amount of distance between them, but it is not insurmountable in the circumstances of this case.  The father has extensive experience in transport and both parties have vehicles.  Where the difficulty comes in is if the children were returned to P School, and if the mother remained living in Suburb O, there would be great difficulty in getting the children to and from school.  Likewise, if the children remained at the L School and M School schools, there would be difficulty for the father getting the children to school if they lived with him during the week, but otherwise that matter is not of particular significance.

20. To my mind the capacity of each of the children’s parents and other persons to provide for the needs of the children, including their emotional and intellectual needs, is a very significant matter in the lives of these children.

21. I have no doubt at all that both parties can cope with and provide more than adequately for the children’s day‑to‑day care – a roof over their heads, food on the table, facilitating attendance regularly at school, all of the sorts of things that children need on a day‑to‑day basis.  I am also satisfied that they could provide for the children’s intellectual needs.  The father is not suggesting they do not go to school but rather that they go back to P School.  The mother is suggesting that the children remain at L School and M School schools.  I have no doubt they are all perfectly good schools.

22. What I am concerned about however is the capacity of both parents to provide for the children’s emotional needs, particularly in terms of how they behave regularly in front of their children and how, in particular, the father has behaved.

23. The best indication of those concerns is a consideration of some text messages referred to, firstly by the father in his affidavit filed on 27 February 2021, and then deposed to by the mother in her affidavit filed on 2 March 2021.  I am going to refer to all of the text messages to which each of the parties refer because to my mind, they have somewhat of a different flavour.

24. The father deposes in paragraph 8 of his affidavit filed on 27 February 2021 to a message from the mother on 5 January 2021, two days into what is acknowledged by her was an agreement for a week‑about care arrangement, where she says to the father:

    Keep dreaming that they will be with you for Sunday.  Over my dead body will I ever let them be with you ever again You have used and abused us all enough times.  It ends now and forever.  Have a great life without us in it.

25. The father says in paragraph 2 of that same affidavit that he has been subjected to an ongoing stream of text message abuse from the mother since 3 January 2021.  He deposes to reading abusive texts from her at any time day or night, on multiple occasions every day, to the mother denigrating him, his culture, his family and his character, to the mother telling him to return to Country H, and boasting that she will never let him see the children again.  He said he cannot understand this.  There is no reference in that affidavit to any text messages from him to the mother.

26. The father refers in paragraph 13 to the mother saying to him by text message on 28 January 2021:

    The children are so happy at their new schools.  X is just loving L School and has already made lots of friends.  She said she will never ever go back to P School and loves and appreciates what I have done for them by introducing them to a new school and to nice and genuine children and people and to the fun life they now have.

27. In paragraph 31 of that affidavit he deposes to the mother sending him the following text message on 1 February 2021:

    You sent them to a Country H slutty school with teachers wearing mini skirts., high heels and plastered makeup and you want to talk about schools.  Go jump in the ocean you have NO RIGHT TO TALK.  My children are happy at their schools if you are not that’s you’re problem go and live in Country H with the slutty teachers and leave us alone.

28. He said that she was boasting by text on 7 February 2021 that the children are no longer Muslim – they are Christian.  He said that on 19 February 2021 she sent him another text:

    My children will have a father that’s normal and that will NEVER BE YOU! So go back to Country H land And leave us in peace You piece of money hungry Shit.  Stop wasting MY children’s money and assets and go back where you came from.

29. On 19 February 2021, according to the father, she sent another text:

    Don’t worry my children wont be Muslim anymore 9., 10 & 11 years of listening to that rubbish was more than enough they can learn some different cultures and religious beliefs.

30. The messages were appalling, unnecessary, tasteless and insulting at the very least.

31. I then move, however, to the mother’s affidavit filed on 2 March 2021.  She says in paragraph 4:

    The husband asserts at paragraph 2 that he has been subjected to an ongoing stream of text message abuse from me since Sunday 3 January 2021…

32. She concedes that they have both engaged in that fashion.  She says the husband sent her many texts and has made many statements, about everything from his opinion of her and her mental health, to what he’s going to do to her and others.  She then provides a series of examples.  On 5 January 2021 at 8.20 pm she said she received a text:

    Who talks to you anyway?  From your family except some blood succers who talks with you? Who respects you?  Guess what I know the answer…NO ONE…

33. Nine minutes later she deposes to him sending another text:

    You can love anyone of course but the main issue is do they love you.

34. Two days later on 7 January 2021 she said he sent her the following text:

    I can go to Country H as I am a dual citizen but for you I can not say the same things you’ve stuck here all your miserable life…

35. A further text message was sent some half an hour or so later:

    Keep dreaming control freak they want to go and see their cousins why it’s bothers you?  Do you want them to be sick like you and isolate them from everyone?

36. The mother says that it was bothering her because the cousins the father was referring to were in Country H.

37. She says he sent another text message two days later, at 12:55am:

    You are a monster and very selfish one…for your enjoyment you are destroying my kids life…But you know that over my dead body I will not allow you…

38. On 10 January 2021, another text message was sent:

    I will be here Until I die and will see your miserable sufferings day by day.

39. A further message some two and a half hours later:

    You will see from tomorrow only thing you can sell is yourself.

40. And almost immediately thereafter:

    But the question is how much you worth?

41. About one minutes later:

    You are worthless creature you know it.

42. And a further minute later:

    By the way this house [Suburb U] will be mine&kids family home you can f off…

43. Shortly after that, another message:

    When I finished with you you will not have anything to pack lazy, chrtrr accountant hahaha…you couldn’t even get high marks to pass…hahaha.

44. I imagine “chrtrr” stands for chartered accountant.

45. A little later after that, on the same day:

    I got this darling you and Ms V will have very long conversations behind the bars…Click, Click.

46. On the same day, a little later:

    if your mental illness causing you issues and not capable of looking after your kids its my fault I will accept that in the court.

47. Two minutes later:

    It’s OK mate, they deal with people everyday and they can judge who is piece of work..and don’t worry all their report will be in the court too..count down darling you almost there.

48. And another minute later:

    They will trust me.

49. And another minute after that:

    and I will have very nice surprise too..wait till court you will be delighted and surprised…

50. And another minute after that:

    Bye now already gave you hint enjoy your freedom…

51. And another minute after that:

    As long as you are out there enjoy every minute of it liar psychopath creature.

52. On 11 January 2021 at 7.11 am:

    You and your beloved lawyer tortured my kids neglected&abused since 2018.  I have witness and evidence remember sleeping somewhere else instead at home? Coming home very late not even thinking about your kids, now you can do the same thing.

53. And again two minutes later:

    Soon your lawyer will feel the pain too.

54. Six minutes later:

    I am not threatening anyone’s life because you guys are worth nothing..I have long and beautiful future with my kids..of course it doesn’t mean that I will let you guys getaway with all this problem you guys caused..Justice will be served..

55. Five minutes later:

    You are sick..you are scared to work and so lazy..how much more you can go on like this?

56. An hour and a half or so later:

    Only person going to be upset from now on will be you…just keep watching…

57. Four minutes later:

    I’ve got surprises for you from every direction you will be so happy..

58. The next night:

    You can not be a bitch as most of them do what they do to be able to survive in this world..but you ruin peoples life including your own kids..I have no name for you..

59. Three minutes later:

    You will die very lonely miserable old person not one person even feel sorry for you psychopath.

60. Two days later:

    All you life if you didn’t do anything wrong this alone will enough for you to burn in hell..Enjoy..

61. 20 minutes or so later:

    Go to hell..

62. Six days later:

    Stop been a liar bitch you are a disgusting piece of shit.

63. A day later:

    You are pieces of shit Ms Eulali nothing else and funny part is you know it..

64. About three weeks later on 23 February 2021:

    Good on you..couldn’t expect anything else from slut like you..

65. Three days later:

    Read the report [with smiley winking emoji].

66. A reference to a letter apparently from the Independent Children’s Lawyer.  And then half an hour or so later:

    You have serious issues with your brain..

67. And then a few minutes later:

    Will see lazy retarded head..

68. I have read all of the text messages out, from both affidavits, because as I say, my view is that the messages sent by the father – although I have already referred to the completely inappropriate messages sent by the mother – are threatening messages.

69. They are threatening against the mother.  They are threatening against the mother’s lawyer, and they very much fit the description of the coercive behaviour that the mother alleges she has been subjected to for some considerable period of time.  Although the mother’s messages are angry, they do not carry anywhere near the level of threat that the father’s messages carry.

70. He tells her that she is going to burn in hell.  He tells her that he is going to sit and watch her living her miserable life.  He infers that he will have the children and she will have nothing.  They are efforts, to my mind, to wear the mother down.

71. He is well aware of her mental health issues, and he is attempting to coerce the mother to give in, which is, of course, the very behaviour that the mother has brought to the Court’s attention and deposed to having suffered from the father for a long period of time.

72. I am concerned about the ability of a parent, who exhibits that kind of behaviour, to appropriately provide for a child’s emotional needs.  Adding onto that is the evidence adduced by the mother in two subsequent affidavits, about phone conversations between the father – first with Z (which was, according to the mother, accidentally recorded for a period of eight minutes) and then conversation with the children when the mother was present.

73. They are conversations that essentially dismiss the mother entirely as being of any significance in the lives of these children at all.  Matters raised in those conversations are matters that go to the issue of the father attempting to control what the children say and what the children do.

74. I am concerned, as I say, from the perspective of the threats inherent in the text messages of the father to the mother, that the children’s emotional wellbeing is at risk if exposed to any significant degree to the father’s views and beliefs about their mother.

75. These children have the benefit of having Country Q Christian and Country H heritage, a rich heritage indeed for any children to have the ability to share.  They should be able to share that with each of their parents, but it must be such that it is not to the detriment of their own mental health, and that they are not subject to forms of control by either parent.

76. It might be said that the mother has exerted a level of control by moving to Suburb O and changing the children’s schools.  There is no doubt that is a level of control.  I am satisfied, however, that it is much more benign control than that illustrated by the father’s text messages to the mother that I have read out.

1. There are no orders for family violence currently operative and no intervention orders in place.  During the course of these proceedings, it was submitted on the part of the mother that two interim intervention orders were granted, but withdrawn at her request, on both occasions.  My view is that the injunctive orders sought by both of the parties are appropriate in this matter.  I am concerned to ensure that these parties have as little to do with each other as possible.  It is important to have injunctive orders in place.

2. In terms of section 61DA of the Act regarding the issue of equal shared parental responsibility and the presumption that there will be equal shared parental responsibility, unless there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   a)abuse of the child, or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   b)family violence.

3. I am satisfied that the father has engaged in family violence to the extent, at the very least, of the threats contained in the father’s text messages.  They were not threats of physical harm but were emotionally harmful to the mother.  To suggest that the other parent of your children should “burn in hell” is nothing short of an expression of family violence.

4. I find that it would not be in the best interests of the children for their parents to have equal shared parental responsibility at this interim stage.  In those circumstances, I intend to make an order on an interim basis, that the mother have parental responsibility for the children.  It follows from that and for the reasons that I have given, that during the period of the adjournment, I intend to make orders for the children to live with the mother.  I find that the children should spend time with their father.

5. I am hopeful that with the injunctive orders in place and noting the comments that I have made today, the father will consider very carefully his behaviour to the mother and around the children because, as I said, his very own words have effectively illustrated some of the mother’s significant concerns.

6. I do not consider, however, at this stage, that the time spending should be supervised.  These are children who love their father dearly, and want to spend time with him.  My view is that rather than it be alternate weekends, from Friday evening to Sunday evening, it should be every week, from Friday evening to Saturday evening.  I also find that it is in the children’s best interests for the existing communication order to remain in place, with the provision for Sunday communication to be removed therefrom.  The mother should not have the phone on loud speaker, and nor should she record any phone messages between the children and the father.

7. These children are not babies.  I am aware that the mother is concerned that from the children’s point of view they are concerned that if they say anything that is at odds with what the father wants or tells them that they should say or do, that they will be too frightened to tell anyone.  That has not been the case recently when they had an opportunity to speak to the Independent Children’s Lawyer, and although they expressed a view about P School, as I say, it was not a vehement view.  There was no vehement view expressed by the children about living with the father.  In short, to the extent that it is necessary, I am satisfied that the children’s current arrangements are satisfactory for them.

8. They have had an opportunity to be heard, and these orders, in any event, are interim and not final orders.  So for those reasons, I make the following orders.

ORDERS DELIVERED

1. I would usually make an order that says “other than by written agreement” or “an order of this Court”.  Having had this matter in my docket now since 2018, I am not prepared to be so generous because of the ongoing and almost constant conflict between the parties.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mead delivered on 5 March 2021.

Associate:

Date: 16 April 2021