Fontain & Pretre (No 2)
[2022] FedCFamC1F 200
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fontain & Pretre (No 2) [2022] FedCFamC1F 200
File number(s): SYC 5143 of 2018 Judgment of: ALTOBELLI J Date of judgment: 31 March 2022 Catchwords: FAMILY LAW – PARENTING – Assessment of Risk – Where the father asserts the mother poses a risk of harm in circumstances where the mother’s partner was found to engage in the grooming of a young person – Where the mother asserts the father poses a risk of harm due to a lack of parenting capability and perpetration of family violence – Where the best interests of the children is assessed as to which parent poses the least risk of harm – Risk of harm is exacerbated where one child is diagnosed with a number of developmental disabilities hindering their self-protection capability – Finding that the mother’s risk of harm can be isolated to her partner and can be managed by the making of protective orders – Finding that the father poses as a risk of harm due to lack of parenting capability thus requiring supervision to support him – Orders made for the children to live with the mother and spend supervised time with the father – Protective orders made for the mother to undergo therapy and education and restraining her from exposing the children to her partner – Orders made extending the Independent Children’s Lawyer’s appointment for 12 months as a further protective measure. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Cases cited: MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Oberlin & Infeld (2021) 63 Fam LR 88; [2021] FamCAFC 66
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Division: Division 1 First Instance Number of paragraphs: 131 Date of hearing: 1–4 November 2021 Place: Sydney Counsel for the Applicant: Mr Lloyd SC Solicitor for the Applicant: Jordan Djundja Lawyers Counsel for the Respondent: Ms Friedlander Solicitor for the Respondent: Sharah & Associates Solicitors And Conveyancers Counsel for the Independent Children's Lawyer: Ms Shea Solicitor for the Independent Children's Lawyer: Crawford Ryan Lawyers Pty Ltd ORDERS
SYC 5143 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FONTAIN
Applicant
AND: MR PRETRE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
31 MARCH 2022
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the children, X, born in 2014 and Y, born in 2016 (“the children”).
2.The children live with the mother, conditional upon her compliance with Orders 8, 9 and 10.
3.The children spend time with the father for three hours:
(a)On each alternate Saturday or Sunday;
(b)On 25 December each year; and
(c)On Catholic Easter Sunday each year
and such time be supervised by a person or agency agreed between the parties in writing but failing agreement, L Services, with specific times to be agreed between the parties subject to the availability of the supervisor/agency.
4.For the purposes of Order 3:
(a)The father is to meet any costs associated with the supervision; and
(b)The father may be accompanied by up to three family members unless otherwise agreed between the parties.
5.The mother is permitted to suspend the children’s time with the father in accordance with Order 3 for the purposes of taking the children on holidays provided that:
(a)Each period of suspension affects no more than one occasion of the children’s time with the father;
(b)There are no more than two suspensions in each calendar year; and
(c)The mother notifies the father and the supervisor in writing at least 28 days prior to the occasion to be suspended.
6.The father is permitted to liaise directly with the children’s day care facility, and/or school to receive information in relation to the children’s progress and any newsletters, reports and order forms for the children’s school photographs.
7.Both parties are permitted to liaise directly with any doctor, medical practitioner, dental practitioner, mental health practitioner (including counsellors, psychologist or psychiatrists) or any hospital, medical, therapeutic or other health service provider or institution attended by either child to obtain information about the physical, dental and/or mental health of either child and the progress of any treatment the child may be receiving and these orders will be sufficient authority to authorise the release of such information including copies of medical reports to the parties and the person making such requests will pay for any costs associated with the request and/or provision of information including any telephone calls for updates.
8.Pursuant to s 68B(1)(a), the mother is hereby injuncted and restrained from:
(a)Bringing either of the children into contact with Mr M at any time;
(b)Permitting or allowing any third person to bring either of the children into contact with Mr M at any time;
(c)Allowing the children to remain in the presence or vicinity of Mr M at any time whatsoever;
(d)Encouraging, facilitating or allowing either of the children to communicate with Mr M by any means whatsoever including but not limited to telephone or any form of electronic communication, including social media; and
(e)Permitting or allowing any third person to encourage, facilitate or allow either of the children to communicate with Mr M by any means whatsoever including but not limited to telephone or any form of electronic communication, including social media.
9.Within 14 days of the date of these orders, the mother is to make an appointment with a therapist nominated by the Independent Children’s Lawyer for the purposes of:
(a)Undertaking therapy to assist her to understand the risk posed by Mr M and develop her capacity to protect the children from that risk; and
(b)Arranging for the children to be educated in relation to protective behaviours in an age and developmentally appropriate manner.
10.For the purposes of Order 9, the mother is to:
(a)Notify the Independent Children’s Lawyer of the date of her first appointment with the therapist;
(b)Attend appointments with the therapist as recommended by him/her for as long as the therapist deems appropriate;
(c)Arrange for the children to attend appointments with the therapist as recommended by him/her for as long as the therapist deems appropriate;
(d)Meet the costs of the therapy; and
(e)Authorise the therapist to provide to the Independent Children’s Lawyer any requested information as often as reasonably requested by the Independent Children’s Lawyer.
11.For the purposes of Order 9, the Independent Children’s Lawyer has leave to provide to the therapist:
(a)A copy of the Family Report of Ms P dated 10 September 2021;
(b)Exhibits ICL 7 and 8;
(c)A sealed copy of these orders; and
(d)A copy of the Honourable Justice Altobelli’s judgment dated 31 March 2022.
12.The appointment of the Independent Children’s Lawyer is extended for 12 months from the date of these final orders to monitor the progress of the therapy referred to at Order 9.
13.Leave is granted to the Independent Children’s Lawyer to relist the matter before me on seven days’ notice.
14.Both parties are hereby injuncted and restrained from:
(a)Except as provided for in these orders, providing any documents pertaining to these proceedings to any other person than their legal representatives;
(b)Discussing any allegations raised in these proceedings with or in the presence and/or hearing of the children;
(c)Permitting or allowing any third person who is not appointed by the Court, to discuss with the children or in their presence and/or hearing any allegations raised in these proceedings;
(d)Making any negative, critical, belittling or derogatory comments in relation to the other parent or members of the other parent’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of the children or via written correspondence or on social media which may be viewed or accessed by the children and each parent will use their best endeavours to ensure that no other person does so.
15.Each parent is permitted to provide a copy of these orders to their and the children’s:
(a)Health care professionals;
(b)Schools, before and after school care providers and pre-school the children may attend; and
(c)Any professional supervisory agency supervising the children’s time with their father.
16.Liberty is reserved to the parties to have any subsequent application listed before the Honourable Justice Altobelli, subject to his Honour’s reasonable availability and subject to any other application being made.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fontain & Pretre has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
This case concerns two children, X born in 2014, who is seven years old, and Y born in 2016, who will be six years old by the time this judgment is delivered (“the children”). The children currently live with the mother and spend supervised time with the father. The Court had to decide whether the children continue to live with the mother and spend time with the father, or alternatively live with the father, and spend time with the mother. This case primarily concerned risk of harm assessment. The decision as to which order is in the best interests of the children is made by reference to where there is the least risk of harm for the children. These reasons for judgment explain why the Court has decided that the children should continue to live with the mother, on certain conditions, and spend supervised time with the father.
BACKGROUND
The father is 43 years old, and the mother is 29 years old (“the parents”). The parents commenced cohabitation in 2012 when the mother was 19 years old. The mother asserts that she commenced an intimate relationship with the father in 2008, when she was 15 years old. The mother maintained this assertion in cross-examination. The father contends their intimate relationship commenced when the mother was 18 years old. Irrespective of which age it was, there is a significant age difference between the parents.
The relationship was tumultuous. Each parent makes very serious allegations against the other, all of which are denied. The allegations include family violence including coercive and controlling violence, neglect and abuse of the children, mental health difficulties, and abuse of drugs and alcohol. By the time of the final hearing, however, the only relevant allegations related to family violence, including coercive and controlling violence. As will become evident, there were also concerns about the parenting capacity of both of the parents.
Shortly after the parents separated, with the father leaving the matrimonial home located in Suburb S, New South Wales (“the matrimonial home”), an informal agreement was reached between the parents whereby the father would spend time with the children each Tuesday and Saturday from 9.00am to 5.00pm. In August 2018 the mother and the children moved from the matrimonial home into the maternal grandparent’s home in Suburb C, New South Wales. The father subsequently moved back into the matrimonial home. Between 10 August and 22 August 2018 the father retained the children contrary to the parents’ agreement. The father contends that his reasoning was that he had concerns about the children’s welfare in the mother’s care. The mother commenced the present proceedings in August 2018 and on 22 August 2018 Baumann J made orders for the father to return the children to the mother by 5.00pm that day. On 24 August 2018 Baumann J made orders that the children were to live with the father each Tuesday from 9.00am to 5.00pm, each alternate weekend from Friday 5.00pm until Monday 9.00am, and each alternate Thursday from after day care to Friday 5.00pm, with the children to live with their mother at all other times.
The mother subsequently filed an Application in a Case seeking to discharge the orders made by Baumann J, and for the children to live with her and to spend supervised time with the father. On 27 August 2018 McClelland J (as his Honour then was) suspended the orders made 24 August 2018, and ordered that the children live with the mother, spend supervised time with the father and appointed an Independent Children’s Lawyer.
On 24 September 2018 Johnston J in the Family Court of Australia (as it was then known) varied the orders in relation to the father’s supervised time and made a further order that the mother was to ensure that the maternal uncle not care for the children, or be present with the children without her likewise being present. No party to the present proceedings has sought a variation to that order.
In December 2018 the children were assessed by a paediatrician, and Y was diagnosed as having expressive and receptive language delay, a degree of global developmental delay, and autistic features that warranted further assessment by a developmental paediatrician.
Late in 2018, or early 2019 the mother commenced a relationship with her present partner, Mr M. The Court will find that, based on the evidence before it, Mr M presents a risk of harm to the children because of his online grooming activities of a young person.
Between 29 January 2019 and 9 July 2019 the mother asserts that the father did not spend time with the children.
On 7 February 2019 Dr K, a developmental paediatrician, formally assessed Y and diagnosed him to have autism spectrum disorder level 3 and global developmental delay.
In July 2019 the father filed an Application in a Case seeking unsupervised time with the children. On 5 September 2019 Senior Registrar Campbell (as he then was) dismissed this application, but did make an order that the father spend not less than eight hours’ time weekly with the children supervised by a commercial agency as agreed, but failing agreement through L Services. Such supervision was to be at the father’s cost. On a without admissions basis, the mother was restrained from permitting the children to be in the unsupervised care of the maternal uncle, and in the unsupervised presence of Mr M.
Between 31 December 2019 and 17 October 2020 the father did not spend time with the children.
On 22 December 2020 the father filed an urgent Application in a Case seeking to restrain Mr M from spending any time with the children. On 23 December 2020 I made that order.
In April 2021 the parents sensibly settled all matters outstanding in relation to alteration of property interests. In September 2021 the Family Report prepared by Ms P was prepared and subsequently released. The matter was heard by me between 1 and 4 November 2021. The children had the benefit of an experienced Independent Children’s Lawyer, with an equally experienced counsel appearing on behalf of the Independent Children’s Lawyer. Both parents were represented by experienced family lawyers and family law counsel, including senior counsel for the mother.
COMPETING PROPOSALS
By the time of closing submissions, the competing proposals were as follows.
The Independent Children’s Lawyer proposed that the mother have sole parental responsibility, and that the children live with her subject to a number of conditions. The conditions included that she be restrained from bringing the children into contact with Mr M or allowing anyone else to do so, or allowing the children to remain in his presence or vicinity, or encouraging, facilitating or allowing the children to communicate with him, or allowing any third person to facilitate such communication. A further condition was that the mother undertake therapy to assist her to understand the risk posed by Mr M and develop her capacity to protect the children from that risk, and further that she arrange for the children to be educated in relation to the said protective behaviours. A further condition was that the mother was to notify the Independent Children’s Lawyer of the dates of appointments for the said therapists.
The Independent Children’s Lawyer’s proposal included that the father would spend supervised time with the children for three hours on each alternate Saturday or Sunday, on Christmas Day, and on Catholic Easter Sunday yearly. The supervisor was to be the person or agency agreed between the parties in writing but failing agreement, was to be through L Services. The supervision would be at the cost of the father who would be entitled to be accompanied by up to three family members unless otherwise agreed. There are a number of other orders proposed which will be discussed where necessary. The precise minute of order proposed by the Independent Children’s Lawyer is reproduced in Schedule A to these reasons.
The mother’s proposal was contained in her minute of final order which is reproduced in Schedule B to these reasons. She proposed that she have sole parental responsibility, that the children live with her, and spend supervised time with the father between 9.00am–12.00pm each alternate Saturday, on Father’s Day, Christmas Day, New Year’s Day, and Catholic Easter Sunday. The mother also proposed that she undertake a parent training course provided by Autism Spectrum Australia. She also proposed a number of injunctions against the husband and including herself. The mother did not propose any specific injunction in relation to her partner, Mr M, but nor did she seek a discharge of the injunctions made by the Court on 23 December 2020.
The father’s proposal has evolved during the course of the hearing. The evolution will be discussed in the reasons for judgment below. The father’s final proposal was contained in his further amended minute of order emailed to chambers on 4 November 2021 and reproduced in Schedule C to these reasons. He proposed that he have sole parental responsibility, that the children live with him, and spend time with the mother from Monday to Friday after school to 6.00pm and from 9.00am–6.00pm each alternate weekend, seven days during the school holidays, 14 days during Christmas holidays, and alternate years for special occasions. He also proposed that the mother be restrained from entering her home with the child without a supervisor knowledgeable of the risk of harm Mr M poses and that should the child come into contact with him, the mother’s time with the child be suspended until further order of the Court.
THE EVIDENCE BEFORE THE COURT
In support of her case, the mother relied on the following documents:
(a)Her Affidavit filed 17 October 2018;
(b)Affidavit of Dr K filed 25 September 2020;
(c)Her Affidavit filed 20 October 2021;
(d)Her Case Outline filed 26 October 2021, and the attached proposed minute; and
(e)Various documents tendered and marked as exhibits A1–A3.
In support of his case, the father relied on the following documents:
(a)Affidavit of Ms Pretre filed 3 September 2018;
(b)Affidavit of Mr N Pretre filed 3 September 2018;
(c)His Affidavit filed 25 October 2021;
(d)His Case Outline filed 26 October 2021; and
(e)His Costs Notice, tendered and marked as exhibit R1.
In support of their case, the Independent Children’s Lawyer relied on the following documents:
(a)Various documents tendered and marked as exhibits ICL1–ICL15, including the Family Report of Ms R dated 7 January 2019 (ICL11) and the update Family Report of Ms P dated 16 September 2021 (ICL10).
THE APPLICABLE LAW
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if 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)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)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, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
CREDIT FINDINGS AND OBSERVATIONS
This is a case where credit finding are, regrettably, necessary. The Court finds the evidence of all lay witnesses in this case to be unsatisfactory to some extent.
Both parents were uncooperative and unresponsive at times in cross-examination, the father more so, both quantitatively (in terms of frequency) and qualitatively (both as to the depth and range of issues). In addition the father often presented as evasive, controlling and manipulative in his answers to questions. The Court did not experience the mother in the same fashion. As regards the main issues in this case, the mother’s evidence will be preferred over that of the father, with the notable exception of the risk posed by Mr M. Evidence was given by the father’s brother and sister-in-law. From fragments they observed at times, they drew conclusions and formed impressions adverse to the mother. This is probably the natural response of partisan witnesses who have a close emotional connection to the father, but otherwise lacked objectivity. The weight to be given to their evidence is minimal.
Where considered necessary, these findings will be elucidated below.
FINDINGS OF FACT
The text messages between Mr M and a young person
The evidence about the text message exchange between Mr M and a young person is found in exhibit ICL7. A transcript is found at ICL8. The source of these records is documents produced by New South Wales Police. There are other police records that provide some context about the complaints made against Mr M, and the police investigation. For present purposes, the Court must make a number of findings in relation to the nature and character of the text message exchange between Mr M and a young person who is 13 years old.
The Court is comfortably satisfied that the evidence referred to above demonstrates grooming behaviour between Mr M and the young person. The family consultant Ms P, also characterised it as such. Some of the messages are chilling to read. There is no need to reproduce the messages here in these reasons for judgment. The Court’s finding is consistent with the submissions made by both the Independent Children’s Lawyer, and counsel for the father.
The Court finds that there is, thus, a risk of harm to the children, and particularly to Y. There is a risk that Mr M will groom the children for the purposes of a sexual relationship, or any other form of inappropriate relationship.
The Court notes the absence of any submission made by senior counsel for the mother that would contradict the Court’s findings in this regard.
The mother’s attitude towards Mr M and his communications with a young person
It is clear that at all relevant times the mother was aware of the allegations made against her partner, Mr M, and became aware of the communications between him and the young person. In cross-examination she confirmed that she discussed the same with him. She does not believe that there is a risk of harm to the children. The Court formed the strong impression that the mother would like to resume her relationship with Mr M and to reinvolve him in the children’s lives. Whilst the mother’s proposal to the Court did not contend for the lifting of the restraints on Mr M that had existed since December 2020, in cross-examination she conceded that she did not think the restriction was necessary. Nonetheless, the mother indicated that she will abide by orders of the Court, and with the outcome of this case. Whether her relationship with Mr M will continue may depend on the orders made. She seemed to acknowledge, however, that it may be difficult to continue the relationship if the current restraints remain in place. In cross‑examination she indicated that there were no current plans for them to cohabit, but they had discussed marriage.
The Court finds that the mother is blind to the risk of harm that Mr M presents to her own children, and especially to Y who, because of his disability, lacks self‑protective capacity. Her own risk assessment is based on the absence of anything that Mr M has either said or done to make her concerned about the safety of her children.
The mother lacks insight in this regard. The family consultant, Ms P, described it as a serious concern about the mother’s parenting capacity. The Court agrees.
Has the mother complied with the orders restraining the children from having any contact with Mr M?
On 23 December 2020 the Court made the following order:
The mother’s partner, Mr M (Mr M) be restrained from spending any time with the children…
The mother do all acts and things as required to ensure compliance with this order.
The mother’s evidence insists that she has complied with this order at all times since it was made. In cross-examination she indicated that she would continue to abide by any such order.
The father’s case in relation to the mother contravening the order is based on the evidence contained in his affidavit filed 25 October 2021 at paragraphs 13–17. The father deposes to comments made to him by X, as well as comments made in the presence of a supervisor. He asserts that the consistent theme of these comments is that X, and indeed by inference Y, continues to have contact and communication with Mr M.
The Court finds that whilst the comments do, in fact, create that impression, and understandably caused the father great concern, the comments do not establish that the mother has breached the orders made by the Court on 23 December 2020. The Court accepts that the comments were made. However, in the absence of other evidence which corroborates the allegation that the mother has breached the orders, the comments do not satisfy the Court on the balance of probabilities that the mother has breached the orders by bringing Mr M into contact with the children.
For example, the comments made by X referred to in the father’s affidavit filed 25 October 2021 at paragraphs 13 and 15 are not placed in any chronological context. X was probably referring to contact and communication with Mr M preceding the date of the restraint. X’s comments at paragraphs 14 and 16 do not support the contention the father makes about the children being in contact or communication with Mr M since the order was made. The comment at paragraph 17 is a generalised comment, without any reference to a timeframe. The Court emphasises that whilst X’s disclosures to the father may well have caused him concern, when viewed and interpreted objectively by the Court, they do not indicate that the mother has breached the orders. The Court has concerns about Mr M, but the Court is not concerned about whether the mother will abide by orders of the Court.
In support of the Court’s finding in this regard is the father’s own evidence about surveillance of the mother’s home. If, as a result of this surveillance, Mr M had been identified as attending the mother’s home, such evidence would have been before the Court. The inevitable inference in the circumstances of this case is that the surveillance did not establish the breach of the orders contended by the father.
Has the father perpetrated coercive and controlling violence on the mother?
The mother alleges that throughout their relationship, and even after separation, the father engaged in coercive and controlling violence against her. The father’s case, advanced in cross‑examination of the mother and in closing submissions, is that the reverse was true. The mother’s evidence about this in her trial affidavit is extensive. She deposes, for example, that she commenced an intimate relationship with the father when she was 15 years of age, and he was 29 years of age. In cross-examination the mother confirmed that she was 15 years old. There is no reason to doubt the mother’s evidence. Whether she was 15, or 16, the fact is that the father was nearly twice her age and, as the family consultant observed in cross-examination, this would have created a dynamic of control simply because of the age difference.
The mother’s evidence establishes that the early years of their relationship had to be hidden from her parents who did not approve. She describes the father’s persistent, indeed insistent efforts to continue a relationship with the mother. Even though the mother, with hindsight, characterises the father’s approaches to her as relentless, it is possible that at the time she would not have described it in the same terms.
The mother described their relationship as intimate. The father did not cavil with the mother’s evidence in this regard. Even if he did, the Court would have preferred her evidence over his.
The mother describes their relationship as one in which the father exerted financial and emotional control over her, and sometimes physical violence. The mother’s evidence in this regard is detailed. The Court has no doubt that that is how she experienced the father to be.
The father was cross-examined about these allegations. The Court found him to be uncooperative, unresponsive and evasive when confronted with these allegations.
The Court finds that the father did perpetrate coercive and controlling violence, including physical violence at times during their relationship. His denials were minimalistic and unconvincing.
The father’s case that the mother perpetrated coercive and controlling violence on him seems to be based on evidence that more objectively illustrates that, especially in the later years of their relationship, it was a turbulent and dysfunctional one that involved manifestations of significant conflict between them, including physical conflict, which regrettably took place in front of the children, or otherwise in their general presence. The father’s accusation of the mother being controlling reflects his experience in the post separation period when the mother limited his contact and communication with the children, a matter that will be discussed in more detail below.
The family consultant was firmly of the view that the father had perpetrated coercive and controlling violence on the mother, and that she was a victim of the same. Indeed, she described it in terms of it being a “textbook case”. The family consultant, however, was particularly concerned about an aspect of the father’s control of the mother during the very early years of their relationship, primarily caused by the age difference. Her concern was that insofar as their relationship was an intimate one, that in effect the father had groomed her. This was significant in this case because it provided, in effect, a possible explanation for the mother’s very blinkered view about the risks posed to her children by Mr M. The family consultant opined that it was possible that due to the mother having herself been groomed by the father, that she was thus desensitised about the risks of grooming by Mr M.
The Court notes this evidence. It is given by an expert. It is clear that Ms P’s experience includes child sexual assault. It is not necessary to find whether or not the father groomed the mother in terms of their intimate relationship. The grooming is part of the father’s coercive and controlling behaviour of the mother, which is amply demonstrated by other evidence. Nonetheless, Ms P’s hypothesis does provide one explanation for what was described as the mother’s blinkered approach to the risks presented by Mr M.
During submissions it was contended both on behalf of the mother and the Independent Children’s Lawyer, that the father’s surveillance of the mother was another indicator of his controlling and coercive violence. The Court accepts this as another possibility and that at least one of the motivations for the father undertaking the surveillance of the mother was to track her movements. Nonetheless, the Court is of the view that the main reason for the surveillance was to establish whether or not the mother was contravening the restraints in relation to Mr M. Thus the surveillance was certainly part of the pattern of conduct that constitutes coercive and controlling violence, but may well have been primarily motivated by legitimate concerns that the father had in relation to Mr M and the risks presented to his children.
The father’s parenting capacity
Both the Independent Children’s Lawyer and the mother framed their case against the father’s proposal that the children live with him and spend time with their mother, in terms of his lack of parenting capacity. The Court’s impression of the father’s response to this was, interestingly, not so much to argue the contrary proposition, but to assert that the risk of harm was so great in the mother’s care that, in fact, the least risk for the children was to live with their father.
The Court acknowledges that ultimately it is likely that assessment of risk will be the determining consideration in this case. Nonetheless, the father’s parenting capacity is a critically important issue. There is every reason to be concerned from the evidence about the father’s parenting capacity.
The first concern arises from the proposal that was advanced on the father’s behalf, no doubt on instructions, and with the benefit of the advice provided by his solicitor and counsel. His proposal was that the children would live with him, but spend time with their mother every afternoon from after school until 6.00pm, and each alternate weekend Saturday at 9.00am–6.00pm and Sunday at 9.00am–6.00pm. He proposed that the mother would collect the children from school and drop them off to the house of the paternal uncle, or the father’s house, at the end of their time with the mother. As counsel for the Independent Children’s Lawyer submitted, on the father’s proposal there would be 24 transitions each fortnight, as the children move from being with their mother, back to being with their father. The Independent Children’s Lawyer in effect submitted that even if this were not the high conflict relationship that it plainly is, this would be an enormously disruptive arrangement for the children, and expose them to the risk of an outbreak of parental conflict many times each week.
The family consultant’s evidence spoke loudly and clearly of the fundamental problems associated with this proposal. Apart from the risk of exposure to conflict, the arrangement would be highly confusing and disruptive to the children. Ms P described the proposed arrangement as “antithetical to any social science research I have ever read, or anything I have ever recommended”. Specifically, in the context of Y who suffers from autism spectrum disorder, Ms P explained that he needs consistency, stability and routine and, thus, an arrangement that minimises stress and, thus, minimises changeovers.
With great respect to the father, who undoubtedly loves his children, and who has every reason to be concerned about the risk of harm to them from Mr M, his own proposal reveals a significant lack of insight into the needs of the children and is a strong indicator of very poor parenting capacity.
The family consultant commended the father on his enthusiasm, but otherwise described his proposal as manifesting a “core lack of child focus”, and reflecting the reality that his historical involvement in the care of the children has actually been quite limited.
The evidence the Court heard about the father’s recent involvement with Y’s specialist, Dr K, and his occupational and speech therapist, all suggest that this was a newfound, belated, and litigation-motivated interest in supporting his son’s autism spectrum disorder. For example, the father’s own evidence demonstrated an eight month delay between accepting the offer for a joint training session to help him cope with the needs of Y, a delay that is not explained solely by reference to COVID-19.
The father’s first proposed order was even more curious than the final order proposed by him. When the hearing commenced his initial proposal was that the children live with him, and spend time with their mother for up to 10 days and 10 nights in a fortnight, under supervision. When the father was cross-examined on 2 November 2021 he confirmed that that was his proposal, and that he had given it serious thought. He explained that the supervision was needed to ensure that the children did not come into contact with Mr M. In cross-examination he agreed that the effect of his proposal was that the children would continue to live with their mother, provided she was supervised all the time. He accepted that the children should have a relationship with the mother, but explained that his intention was that they be safe. In that regard, he considered himself the safer carer.
When further pressed in cross-examination, he explained that his proposal for 10 nights and 10 days was, firstly, a transitionary measure, and secondly what he meant to say was “up to” 10 days and 10 nights. He accepted that the children having more time with their mother was good for them, but he said that he would otherwise have simply given her two nights per week. Again, he emphasised that his main concern was protecting the children from Mr M. As for the supervisor, he clearly had not given it any thought, and was content for the mother to arrange someone who was trustworthy, responsible and “not a criminal”. Once again, the father’s commitment to the safety of the children from Mr M is acknowledged, but a significant lack of insight into the needs of the children is also apparent from his initial proposal. It is reassuring to the Court, however, that the father’s main concern was the safety of the children from the mother’s partner, Mr M.
There were extensive periods after separation when the father did not see the children. For example, it is clear that between 31 December 2019 and 17 October 2020, he did not see the children at all. This is significant from the perspective of the father’s parenting capacity because, once again, it reflects a lack of consideration as to the potential impact on the children of the various proposals that he himself advances to the Court. In cross-examination the father explained that the reason why he did not see the children in that period was partly because of a hernia operation, partly because of the onset of COVID-19 and partly because he could not afford supervision. The order for him to spend time with the children required supervision by a supervised contact centre. The Court accepts each of these explanations by the father, but is not satisfied that it adequately explains why the father could not see the children at all over a 10 month period.
Moreover, the Court is satisfied from the evidence that the mother did commendably well in seeking to keep the father advised of matters relating to the children’s welfare during that period. When the father was presented with this in cross-examination he was both evasive and unresponsive, which led the Court to form the strong impression that his denial of the mother’s attempts to keep him involved in the children’s life was an empty one.
The father’s lack of parenting capacity is again reflected by his failure to properly financially support the children, once again reflective of lack of insight into their needs. The father was evasive about many things in cross-examination, but his lack of transparency about his finances was notable. The strong impression formed is that he has been earning an income that is greater than the amount in respect of which he has received an assessment under the child support scheme.
There was evidence in cross-examination about the motor vehicle used by the mother to transport the children becoming deregistered, thus making it even more difficult for her to care for the children. He agreed that the motor vehicle 1 in question was in their possession during the relationship and it was the only vehicle they had. He denied taking it from the mother, or causing it to be deregistered and insisted that he was not the owner of the motor vehicle. He agreed that his father removed the motor vehicle from the driveway of the home. When asked whether the motor vehicle was still available for the mother and children to use, he explained that he did not know, as he was not the owner. The strong impression formed by the Court from the evidence is that the father and the paternal grandfather may well have been complicit in the removal of the motor vehicle from the mother, thus depriving the children of the benefit of the same. The paternal grandfather had originally provided an affidavit, but subsequently that was not read in the father’s case. In any event, if the father had maintained a clear and unequivocal child focus, he would have done much more to ensure that the mother and children continued to have the benefit of that motor vehicle.
The father’s capacity to meet the children’s needs was further undermined by the evidence of the father’s attitude at the time that Y was first diagnosed with autism spectrum disorder and global development delay. Despite the father’s denials, the Court accepts that it is more likely than not that he originally formed the view that Y’s condition was attributable to the mother’s neglect as a parent, and not to matters beyond her control. The Court finds that the father only more recently came to accept the diagnosis made by Y’s specialist, Dr K.
The father’s lack of understanding about the children’s needs was again apparent in cross‑examination when he was asked about the period after separation when he retained the children in his care for between 10–12 days. He accepted that the children were aged four and two at the time. He accepted that one of the reasons behind retaining the children was his belief that the children had told him that they did not want to return to the mother’s care. He also believed that they were being abused or neglected in her care. He did not seem particularly concerned about the fact that the children were only allowed one communication with their mother via phone and FaceTime. He said that the children experienced no problems in being away from their mother for 12 days. He used a nanny to care for them during this period.
In cross-examination it emerged that the father had initially agreed to contribute towards the cost of a tonsillitis procedure for X, but then decided not to pay, suggesting to the mother that she should approach the parents of Mr M to meet the same. The stress that this would have caused to the mother, and the potential delay in the operation for X, seems to have escaped the father’s consideration.
There is ample reason to be concerned about the father’s capacity to care for these children, and to meet their needs, both physical and emotional. The reality in this case is that he has actually had very little to do with their care for many years. He presents as being immature and at times irresponsible in terms of his attitude towards the children and the needs that they have. There are disturbing undercurrents of attempts to control throughout the evidence.
If there is absolutely no other way to protect the children from the risk of harm presented by Mr M, then it may well be that the father presents as being the least risk of harm to the children, despite these clear issues in terms of his parenting capacity.
The Family Report and the evidence of the family consultant
Ms P prepared a Family Report dated 16 September 2021, following an order made 22 April 2021. The report is based on interviews via Microsoft Teams with the parents and Mr M. There was no interview with the child Y, and X was observed by way of Microsoft Teams. Ms P had available to her all of the relevant affidavits, applications and responses, and Court orders available at that time. She was also able to access materials produced on subpoena by the Department of Communities and Justice, New South Wales Police, and the supervised contact service known as L Services.
She noted that Y had been diagnosed with autism spectrum disorder and global developmental delay. He is non-verbal and has a number of additional needs. Based on the report of the mother, she noted that Y attends regular occupational therapy and speech therapy for support concerning his social and communication development. Due to Y’s condition, he was not able to be observed by the family consultant. The information noted by the family consultant is consistent with the other evidence before the Court.
Ms P observed the highly conflicted nature of the parental dispute, and the polarised allegations and denials. She observed that the family was well-known to the New South Wales Police, and the Department of Communities and Justice.
In terms of the proposals, she correctly observed that the mother’s proposal was that the children live with her, and spend supervised time with their father. The Court notes that this has been the mother’s consistent proposal for the children. In relation to the father’s proposal, however, she observed that in the father’s Amended Application on 21 August 2018, apart from proposing equal shared parental responsibility and that the children live with him, he proposed that the children spend time with the mother each alternate weekend from 9.00am–5.00pm, on both Saturdays and Sundays, in addition to holidays and special occasions. The father expressed his concern primarily on the basis of the risk of harm presented by Mr M but, indeed, he noted in the last sentence of paragraph 29 of the report:
He said that, with assurances that Mr M does not have contact with the children, he would agree to such time occurring without the restriction of supervision.
When the family consultant met with the mother, the mother provided a history of family violence and abuse, including controlling behaviour. In the Family Report at paragraph 37 she explained that she was 15 years old and “still a child” when she commenced the relationship with the father, then aged 29 years. She told the family consultant that she felt brainwashed by the father, and that she was so young and naïve. She lamented the loss of her youth and doing “normal 15 year old things”. The family consultant notes about the mother:
She strenuously asserted that, “There was absolutely kissing and touching private parts when I was 15 years old”. The mother reported that when their relationship became known to her parents after she turned 18, she experienced the father as isolating her from her family and friends.
As regards to Mr M, the Family Report notes at paragraph 39:
Ms Fontain asserted that “the kids absolutely love Mr M” (Mr M). She said that X and Y do not spend time with Mr M currently, but that they are “always asking about him and want to see him”. She said that she has explained to the children that the Covid-19 restrictions currently prevents their contact with Mr M, but that “he hasn’t forgotten about you”. Ms Fontain said that she “first read or heard” about the allegations levelled at Mr M, being that he groomed a 13 year old boy online, in September 2020, when she reviewed the subpoenaed material in this matter. Ms Fontain said that Mr M “had no idea either. He’s as shocked as me”. She said that the police and state child protection agency conducted a five week investigation, but the matter has reportedly been suspended. Ms Fontain said that Mr M has not yet been contacted by the police or interviewed concerning this allegation. She said that Mr M is mortified and cannot explain the text or social media messages, which do appear to have been sent by him. Ms Fontain acknowledged the importance of prioritising the children’s safety above their relationship with Mr M at this time, and she conveyed her confidence that he is innocent of this crime.
(As per the original)
The mother’s depiction of the father’s controlling behaviour is referred to at paragraph 41 of the Family Report:
Ms Fontain asserted that Mr Pretre had “total control” over her during their relationship and she described him using various systems, for example, the police, the State child protection agency and this Court, to extend his control over her beyond their separation. Ms Fontain described Mr Pretre “pretty much from the beginning” of their relationship employing an arsenal of abusive tactics, the severity of which apparently increased over time. She claims that, for example, there were “cameras placed all around” and Mr Pretre monitored her movements, including “following” (stalking) her whenever she left the former marital residence or arranging for others to stalk her. She said that she had her own business and Mr Pretre reportedly placed cameras in her workplace to observe her throughout the day. She said that he would not permit to communicate with male clients and she depicted him as jealous and possessive. According to Ms Fontain, Mr Pretre monitored her communication and electronic devices, restricted her access to finances and scrutinised her spending, and, as noted previously, isolated her from her friends and family.
It is clear from the report that the mother experienced the father as continuing to abuse and seeking to control her after separation, and through the legal proceedings.
The family consultant met with the father. At paragraph 47 of the Family Report she records:
Mr Pretre did not attend his scheduled Family Report interview on 17 August 2021. It is understood that Mr Pretre contacted Child Dispute Services on 16 August 2021, noting that an up to date paediatric assessment had not yet been completed, and he would not participate in the family assessment without this. Child Dispute Services informed Mr Pretre that his participation in the family assessment on 17 August 2021 was necessary and expected. It is understood that Mr Pretre contacted Child Dispute Services again on approximately 23 August 2021 and requested he be interviewed. An interview was subsequently scheduled for Mr Pretre and occurred on 30 August 2021.
The Court observes that during his cross-examination, the father often exuded a sense of entitlement, and a desire to control the questioning. This sense of entitlement is also evident from the manner in which he sought to control when the Family Report interviews occurred. The father was as unresponsive to the requirement to attend for an interview when requested, as he was to the entirely appropriate requests made in cross-examination that he answer the question. Another example of the theme of entitlement and control is found in the Family Report at paragraph 90 which discusses the L Services reports. The context was the father allowing the children to interact with other persons, contrary to the limitations of the supervised contact arrangement.
At paragraph 51 of the Family Report, during his interview with the family consultant, the father categorically denied that the relationship commenced when the mother was 15. He insists that he commenced going on dates with her in 2011 when she was about 18 years old, and then commencing cohabitation in 2012. The Court finds it was, more likely than not, when the mother was 15 years old. Despite credibility issues pervading the evidence of both parents, the Court has far more concerns about the father’s evidence than the mother’s. The father gave to the family consultant a report of being psychologically and physically abused by the mother. The mother denied this in cross‑examination, and the Court found her denials far more convincing than the father’s denials about coercive and controlling violence.
At paragraph 53, the family consultant reports:
Mr Pretre said that he has been giving careful consideration to the most appropriate parenting arrangements.
The father’s various iterations of the “appropriate parenting arrangements”, do not, in fact, reflect “careful consideration”. Precisely the opposite is the case.
The family consultant interviewed Mr M. This is found at paragraphs 59–64. For present purposes, only paragraphs 59 and 61 will be reproduced. The Court observes that Mr M was not called to give evidence in the mother’s case, despite the fact that both he and the mother acknowledged that they were in a relationship together. At paragraphs 59 and 61 the family consultant reports:
59.Mr M presented as polite and friendly. He said that he is in a relationship with Ms Fontain, but that they do not reside together. Mr M said that, for approximately two years, he spent time with X and Y “three or four times a week after work”, and for part of the weekend. He said that he does not currently spend time with X and Y because there are Court Orders which restrain him from having contact with them. Mr M said that he misses the children immensely. He said that “I’m in love with Ms Fontain and I love the kids”. He said that he is saddened by the children’s circumstances and worries about the impact of these legal proceedings on them.
61.Concerning the allegations levelled at him about grooming a child online, Mr M was observed to sigh and shake his head despondently, before apologising and explaining that he has been instructed by his legal representative “not to say too much” about this, as the matter has not been finalised. Mr M said that he has not been contacted by the police about this allegation, and became aware of same when “Ms Fontain stumbled over it” in some subpoenaed material. He categorically rejected the claims made about him and asserted, “I was in shock and didn’t know what to think”. He said that he immediately sought legal advice. He acknowledged that he knows the child in question and their family. He said that he has met the child approximately six times. He said that the child has attended upon his business to say hello to him and his family, or borrow money. He portrayed the child’s family as somewhat dysfunctional.
(As per the original)
The family consultant interviewed X. She impressed as an endearing, gregarious, precocious child who engaged well by way of video interview. Indeed, Ms P reported that, “It was a pleasure to spend time with X as she cheerily chatted about her family, school and some of her favourite activities”. She is clearly missing spending time with Mr M, her mother’s partner. Indeed, the family consultant observed that X appears to be “missing Mr M terribly”. Nonetheless, X described a full and happy life in her mother’s care and made many comments that would indicate “she adores” her mother. She misses her father very much and made positive comments about the time spent with him.
The family consultant summarised the material produced by the Department of Communities and Justice, New South Wales Police Force, and L Services.
The evaluation commences in the Family Report from paragraph 91. The family consultant explained that the material unfortunately highlighted a number of concerns for the children in terms of possibly having been exposed to coercive, controlling family violence, possible adverse parental mental health problems, maternal stress and a dysfunctional co-parenting relationship. This placed the children at a heightened risk of experiencing possible psychological injury, developmental deficit and mental health problems. Nonetheless, other than concerns about Mr M, and the concerns raised by the father, there was nothing to suggest that the mother’s parenting capacity was currently compromised.
The competing allegations and denials made by each parent, particularly about family violence and coercive control, was problematic. Nonetheless, at paragraph 93 the family consultant observed that the parents’ interactions could easily have crossed over into mutual aggression at times “…but it would be important to consider that many victim survivors characterise their actions as defensive in nature or as necessary to prevent further and more serious harm occurring to them”. She observed that the mother’s reports of family violence to the police were made after separation, and the father made no such allegations to the police. The family consultant emphasised, however, that this did not rule out the possibility that there has been family violence between the parents. She explains:
This is because the nature of psychologically abusive behaviour is complex, and many victim/survivors remain living with abusive partners for a variety of reasons…further, the reality is that many victim/survivors fail to recognise their partner’s behaviour as abusive, at least during the relationship. This is because perpetrators of coercive controlling family violence tend to be master manipulators who can exhibit charming and endearing behaviour, leading to victim/survivors absorbing the message that they have perhaps overreacted, misjudged or misinterpreted abusive behaviour. This is sometimes referred to as “gaslighting”.
The family consultant was concerned about aspects of the mother’s account of the history of her relationship with the father. If this account were accepted by the Court, it could be considered congruent with grooming dynamics, especially if the Court found that the parents commenced an intimate relationship. The family consultant observed that the issue is not so much whether an intimate relationship commenced at a time when the mother was able to give legal consent, but rather the issue was of a relationship involving intimacy at a time when there was a very clear power imbalance by age and status, and that this would potentially speak to the father’s propensity for control and dominance. The family consultant was also concerned about the mother’s account of the father’s post separation manipulation and control. She found this account both “detailed and compelling”. At paragraph 99 the family consultant states:
It is not possible for the Court Child Expert to determine which parents’ account of family violence holds merit, and this would be an important determination to be made by the Court. If either parent is found to have fabricated their allegations about this, there would be concern as this would potentially indicate the presence of a mental health problem, which would require further comprehensive assessment, particularly in relation to the impact on their respective care of children. If, on the other hand, the Court determines that there is merit to either parents’ account of family violence, this would be concerning, because it cannot be ruled out that X and [Y] would eventually experience this side of their parent, posing possible long term detrimental effects on their psychosocial health, development and emotional wellbeing.
At paragraph 102 the family consultant emphasised that whether there is merit to the mother’s concerns about the father or not, she assessed the mother as being genuinely concerned that the father poses serious risks to the children. The impact on her, therefore, of any order for the children to either live with or spend time with their father would be an important consideration. Her mental health may be compromised should she be required to continue facilitating time between the children and their father in circumstances where she is concerned about their physical and psychological wellbeing. This is because any further stress and anxiety the mother experiences would have the potential to be transferred to the children which would not be in their best interests.
At paragraph 104 the family consultant states:
Mr Pretre presented in interview as somewhat self-aggrandising, which would potentially support Ms Fontain’s claims about him.
The family consultant’s observation is consistent with the Court’s own impression of the father as one seeking to assert his entitlement and to control the agenda.
At paragraphs 106–108 the family consultant reports:
106.There have been serious risks raised about Ms Fontain’s partner, Mr M, engaging in the cyber-grooming of a 12 or 13 year old child known to him during these legal proceedings. A review of the subpoenaed material has revealed some records from the Department of Communities and Justice (DCJ) about this, and it is difficult to disagree with Mr Pretre that the messages do appear to have been sent from an account seemingly belonging to “Mr M”. At the time of writing, however, Mr M denies the allegations and the children do not currently spend time with him. The reality is, there remains much unknown about the allegations against Mr M, and it is therefore difficult to make further comment about this at this time. That said, Ms Fontain’s refusal to accept the possibility that Mr M has perpetrated grooming behaviour, despite being aware of the information before the Court, would potentially suggest her capacity to be protective of the children is compromised.
107.This leads to Ms Fontain’s claim that Mr Pretre groomed and commenced an intimate relationship with her when she was 15 years old. This has been denied by Mr Pretre. It would be important to note that all interactions between an adult and a child or young person under the age of consent, which tend to vary from State to State, would be considered abusive. This because children and young people under the age of consent are not considered cognitively and emotionally developed enough to understand and make decisions about sexual activities and consent.
108.It is not possible for the Court Child Expert to determine if there is merit to the allegations about Mr M or Ms Fontain’s claims about Mr Pretre. It would be important to note, however, that if Mr Pretre and/or Mr M’s psychosexual health is compromised, there would be serious risks to the children of physical and psychological harm in their respective care. In such a scenario, it would be immensely important that there remain protective strategies in place, for example, the restriction of supervision being placed on any time the children spend with Mr Pretre and/or Mr M, if ordered.
(As per the original)
At paragraph 109 the family consultant notes that the mother has been the children’s primary source of love, care and nurturing for all of their lives, and, thus, it would be immensely stressful and confusing for them if they were to leave her primary care. Y would be particularly vulnerable to expressing stress and anxiety because of his autism spectrum disorder diagnosis, and, thus, he would benefit from as little disruption to his routine and environment as possible.
As for the father, she thought there were a number of options. He could commence unsupervised time, thus giving him the opportunity to further develop his relationship with the children, outside of the artificial setting of supervision. However, if the Court formed the view that the father had perpetrated coercive and controlling family violence against the mother, this would be contraindicated. Supervision would be needed. If such a finding were made, then the children would be at possible risk of harm in his unsupervised care. The children might be exposed to new acts of coercive and controlling behaviour, particularly by way of systems abuse, and the children being used as weapons of control. She noted that the history of this matter already included one example of the father withholding the children for an extended time from the mother. The benefit of supervised time of the father would be to not only mitigate the risks to the children, but to reassure the mother. The family consultant was cognisant of the fact, however, that supervised time was not always an appropriate long term option.
The family consultant also observed that if the potential risks are found to exist, the Court may need to consider the option of no time between the father and the children. Of course, the children would probably experience grief and loss and their memories of the father would eventually fade over time. The grief and loss may extend over a long period.
In relation to parental responsibility, the family consultant noted at paragraph 114:
Ms Fontain and Mr Pretre are unable to communicate, jointly problem solve and negotiate on the children’s behalf. This would therefore raise questions about how shared parental responsibility could be achieved in a situation of distrust and conflict. This would potentially be challenging for the parents, particularly for Ms Fontain, given her account of Mr Pretre’s post-separation behaviour. It is therefore possible that joint decision making may result in further tension between the parents, and place the children directly in the midst of conflict, which would not be in their best interests. The Court may therefore need to consider Ms Fontain, as the children’s primary carer, having sole decision making responsibility for X and [Y].
The Family Report recommendations are found at paragraphs 115–118:
115.It is recommended that Ms Fontain have sole parental responsibility for X and [Y].
116. It is recommended that X and [Y] live with Ms Fontain
117.No recommendation is made concerning the time the children spend with Mr Pretre. This would be dependent on the [Court’s] finding concerning the allegations of family violence and determination concerning Mr Pretre’s psychosexual health.
118.No recommendation is made concerning [Mr M] and his contact with the children. This would be dependent on the [Court’s] finding concerning the allegations of cyber-grooming made about him and determination concerning his psychosexual health.
The family consultant was extensively cross-examined. After counsel for the Independent Children’s Lawyer explained to her the father’s proposal at the final hearing, which involved 24 transitions from one care to another in a fortnight, the family consultant explained that this was not a good idea in a high conflict case because a transition provided an opportunity for the children to become exposed to conflict. It was also very confusing and disruptive, and certainly not consistent with social science research, or with her own experience. For in particular, as a child with autism spectrum disorder, he depends on consistency and routine and minimising stress. Moreover, in relation to Y, his autism spectrum disorder diagnosis seems to have improved as a result of the recent assessment, and there was a risk that he would backslide as a result of the imposition of a spend time with father regime that would be so destabilising for him.
When the family consultant was taken to the evidence of the text message exchange between Mr M and a young person 20 years younger, she described the behaviour as grooming behaviour. She was deeply concerned that the mother did not believe that the text messages were of concern. Indeed, she was confident that Mr M was engaged in grooming behaviour. Nonetheless, she was reassured by the fact that the evidence indicated that the mother did comply with Court orders and would do so. If the mother maintained her relationship despite an order that there be no contact between the children and her partner, this would cause the children confusion: they will want to know why they cannot have a relationship with him. Maintaining the relationship, therefore, would present many complexities. Over time, the children might be able to develop their own self-protective behaviours, and even the mother could increase her knowledge about both the risk, and protecting the children from such risk.
In cross-examination the family consultant conceded that if the parents commenced an intimate relationship at an early age for the mother, when the father was so much older than her, this in itself could be conceptualised as a grooming relationship which is of particular concern in the context of the mother’s relationship with Mr M. It potentially makes her own capacity for self-protection much weaker and, thus, limits her capacity to protect the children. Nonetheless, these were skills that could be developed through education and therapy.
The family consultant was concerned about the father’s lack of child focus and insight arising from not only his proposal to the Court but the evidence he gave in cross‑examination that he did not think his proposal would be a significant change for the children, or that they would struggle to cope, or that they would find separation from their mother difficult. Ms P reiterated that the mother was the children’s long term carer and attachment figure, and to take the children away from her and place them in the care of someone who has had limited time with them, would be enormously stressful for them. They would not be able to tolerate their absences from their mother, especially in a high conflict case such as this one. This was particularly the case for Y, given his autism spectrum disorder diagnosis. The father’s lack of insight and understanding about the children’s needs was further evident from his lack of involvement in, for example, Y’s treatment and therapy.
In cross-examination the family consultant emphasised that the mother would struggle to cope with, and her parenting thus would be adversely affected, by an order for unsupervised contact between the children and the father.
When cross-examined by senior counsel for the mother, the family consultant observed that whilst on the one hand the mother showed the capacity to be protective, any ongoing relationship with Mr M was problematic, as the evidence suggested that he is someone who grooms children for sexually abusive purposes.
The family consultant presented to the Court as being somewhat alarmed when counsel for the father explained to her that in cross-examination the mother had indicated that she wanted the restraining order against Mr M lifted, on the basis that she saw no need for it. Whilst this reflected poorly on the mother’s protective capacity of the children, a possible explanation for this was the recognition that she was a survivor of coercive and controlling family violence who had a depleted sense of self-esteem, and who is even now in a state of distress. The cumulative effect of this impinges on her protective capacity. Nonetheless, to want the restraint lifted is concerning as it creates the impression of prioritising a relationship with her partner, over the children’s safety. In these circumstances, the father’s concerns were very understandable. The family consultant emphasised that Y was particularly vulnerable to someone like Mr M because of his autism and indeed the relationship with the mother herself was congruent with the behaviour of the perpetrator of child sexual abuse.
Counsel for the father challenged the family consultant on her views that the mother was the victim of, and not the perpetrator of family violence. In particular, it was suggested that the mother’s own violence to the father contraindicated this. The family consultant was insistent that this was not her impression, based on her knowledge and experience, the interviews conducted, and the evidence that she had seen. She explained that there are many women who fight back, but this does not lessen the fact that they are victims, and indeed it becomes victim blaming to focus on this form of resistance. She described the father’s behaviour as strongly suggestive of “textbook” coercive and controlling violence. When the mother sought to control the father’s time after separation, the family consultant explained that a different dynamic was at work. The mother had concerns about the father’s ability to care for the children, and thus was trying to be protective of the children. The father might experience that as controlling, but a more objective framework would be to regard it as protective. The family consultant strongly resisted the suggestion that it was the mother who was in fact the abuser in the relationship and not the father.
Counsel for the father suggested that the number of transitions inherent in the father’s proposal was not problematic, when considering the number of transitions that the children already make each week, indeed each day, to and from school etc. The family consultant categorically rejected that. Those routine transitions did not involve moving from the care of one parent to another in a highly conflictual arrangement. Her view was that it was much better to have an independent third party facilitate changeover, not a family member. The father’s proposal added to the stress of the children. It did not reduce it.
The family consultant recommended that if it was necessary for the Court to move the children into the father’s care, it would need to be managed slowly to minimise a stress response by the children. It could not be done suddenly. It could start by incorporating overnight time with the father, and slowly expand it, but this would involve a very different skill set which, implicitly, the father did not yet possess.
The family consultant was cross-examined as to the rationale of her recommendation that the father’s time with the children should involve ongoing continued supervision. Whilst recognising that it was for the Court to decide whether these risks existed, the risks included that the father had perpetrated coercive and controlling violence, had sought to continue to control the mother after separation, and that the father may have groomed the mother when she herself was young.
The family consultant agreed that it would be concerning if the Court found that the mother had coached X to make allegations, for example that her father had assaulted her. Nonetheless, even this serious allegation would need to be seen in the context of the case overall, which was undoubtedly high conflict, and with mutual very serious allegations and denials. Whilst this did not justify anything that either parent may have said to the children, the fact was that in desperation parents sometimes say the wrong things to their children. In the mother’s case, this was not control, it was desperation to keep the children safe as a result of the family violence that she experienced.
The family consultant was taken to the evidence in the father’s case about the disclosures made by X on at least four occasions during supervised contact in relation to Mr M. The family consultant said that if X was referring to events that had actually occurred (whether before or after the restraining order had been made) it would be of deep concern. In her opinion, if X referred to Mr M as a stepfather, it would be unusual if this were not in the context of actually spending time with him. The comments made by X were certainly indicative of Mr M spending time with them. However, the Court notes, the family consultant was not specifically asked to consider in cross-examination whether the children’s comments were suggestive of recent contact with Mr M, or indeed contact within any chronological period.
The Court found the family consultant to be an impressive and convincing witness. The concerns that she raises about both parents are soundly based. The Court will find, consistent with the totality of the evidence, that the father did perpetrate family violence, including coercive and controlling family violence, both before and after separation. In the course of a volatile relationship, the mother was also abusive and violent towards the father and that, more likely than not, this was both the result of, and the response by, a long-term victim of violence and controlling behaviour. It is more likely than not that the children were exposed to this behaviour. The Court will find that it is likely that the father’s intimate relationship with the mother commenced when she was young, before she was 18, and at a time when there was a significant differential in the balance of power between the parents as a result of the father’s much greater age and maturity. However, the evidence does not allow the Court to conclude that the father groomed the mother when she was under the age of 18 years. The Court will make findings consistent with the family consultant’s concerns about the father’s lack of adequate parenting capacity, and the significant adverse impact of any change on the children if they were to revert to living with their father. The Court will find that the father’s proposal for the children to live with him, but spend time with their mother, not to be in their best interests, and not reasonably practicable. The Court will otherwise accept the evidence of the family consultant.
ORDERS IN THE BEST INTERESTS OF THE CHILDREN?
The task of the Court is one of risk assessment. There are risks to the children whether they are in the care of their mother or father. The risks are different, however. They are thus manageable in different ways. The risk to the children in the care of their father is that he lacks parenting capacity and, in all likelihood, will struggle to meet their needs on an unassisted basis. His lack of experience in caring for the children full-time, and his manifested lack of understanding about their fundamental needs, combined with the findings by the Court that he has perpetrated coercive and controlling family violence to which the children have been exposed, all raise grave concerns for them. In many ways, the father’s own proposal reflects this. As unrealistic as it was, the father’s proposal for the children to spend time with their mother reflects his appreciation of the need that the children have for their mother. The Court believes, however, that the father’s proposal also reflects the reality of his own limitations as a parent. The Court has no doubt that the father would be assisted in parenting the children by his brother and sister-in-law, and by his parents. That is reassuring, but they are not the children’s parents, and human nature would suggest that they will align themselves with the father (if they have not already done so) in terms of his attitudes about the mother. The making of orders in terms of the father’s proposal would be an enormous change for the children. On the father’s proposal, it is almost inevitable that the children will be traumatised in the short-term and be at risk of harm of sub-optimal parenting in the medium to long-term. He would be a less than optimal role model to them because of the violence he perpetrated. Managing this risk is challenging. For one thing, the father’s own evidence demonstrates his lack of insight into the very problem and risk that is being sought to be managed. Unlike the mother, who the Court is confident will undergo the education to be ordered, the Court cannot be assured that the father will undertake any necessary education and therapy, because he does not understand that there is a problem to be remedied. The making of the orders proposed by the father, therefore, involves almost inevitable trauma for the children, and almost a certain risk of psychological harm and possibly even neglect, in both the medium and long-term, because of the deficiencies in the father’s parenting capacity.
If the children live with the mother as proposed by the Independent Children’s Lawyer none of the issues identified above arise. Of course, the risk to the children in the mother’s care directly relates to her relationship with her partner, Mr M. He presents a very real risk to the children, and the mother’s blinkered view about him, and his grooming activities, represent a major deficit in her parenting capacity.
The mother’s blinkered view about the risk posed by her partner can, however, be addressed by the making of Orders 8–10 of the minute proposed by the Independent Children’s Lawyer. Order 8 is a detailed restraining order which the Court could make with reasonable confidence that the mother will abide by the order, in the same way as she has abided by restraining orders since December 2020. Order 9 provides for the mother to attend on a therapist so that she might better understand the risk posed by her partner, and develop her capacity to protect the children from that risk. Order 9 also provides for the children to receive education in what amounts to self-protective behaviours. Order 10 provides a mechanism to make the mother accountable.
Perhaps the most significant protective measure in the suite of orders proposed by the Independent Children’s Lawyer is Order 2 which articulates that the children live with the mother conditional upon her compliance with Orders 8–10. The Court finds the mother to be a parent who is very much focused on the best interests of her children except as regards to the risk posed by her partner. What Order 2 does is to make the mother confront the reality that she will either have to choose the children, or her partner. That is a terrible dilemma to impose upon a parent, but one needed in this case in order to adequately manage the risk presented by the mother’s partner.
It may well be that the accountability mechanism contained within the Independent Children’s Lawyer’s proposed order is not adequate. For example, Order 12 states that the Independent Children’s Lawyer is discharged once she has provided certain documents to the therapist assisting the mother and children. From the Court’s perspective, however, and with the cooperation of the Legal Aid Commission of New South Wales, greater accountability can be achieved by extending the appointment of the Independent Children’s Lawyer for a period of 12 months after these orders are made, and not only granting to the Independent Children’s Lawyer leave to relist the matter before me on seven days’ notice, but also to monitor the progress of the therapy undertaken by the mother and children.
A further precaution which is for the benefit of the children and the parents is that should this matter be further litigated in future, it should first be listed before myself, should I be reasonably available and subject to any application that the parents may wish to make at the time. This adds to the accountability of both parents.
Thus, the risks presented by the father and mother to the children are different. The risk to the children in the father’s care is harder to manage compared to the risk to the children in the mother’s care.
Another difficult issue is, of course, if the children live with their mother what time should they spend with their father. There is much complexity that surrounds this. The family consultant predicted that the mother would not cope with an order for her children to have unsupervised contact with their father, given the history of this matter, her experience of the father as being coercive and controlling, and the concerns raised about his parenting capacity. The Court agrees with the family consultant in this regard. It would undermine the mother’s own capacity to adequately care for these children if she were constantly concerned about their welfare whilst in the father’s care, especially when she is confronted with the Court’s findings about her partner and the reality of the choices she must make.
The issue of the father’s parenting capacity is a real one. His lack of insight about their needs is profound. The Court even has concerns about his motivation in seeking an order that the children live with him in circumstances where he proposes such generous time with the mother, as unrealistic as that proposal was. His concern about the risk to the children from the mother’s partner was undoubtedly real, but even his own evidence suggests that if he could have been reassured, he might have taken another view. The risk to the children from the mother’s partner is not, however, a bargaining chip that is used to leverage a better outcome in terms of the children spending time with him. This issue is an entirely separate one. If the risk from the mother’s partner can be managed, as seems feasible on the Independent Children’s Lawyer’s proposal, then the father’s application for time with the children must be dealt with on its own merits. In this regard, the family consultant even raised as a possibility that the children would have no time with their father on the evidence of this case. No one proposes that, not even the mother.
However it begs the question as to whether the father’s time needs to be supervised, as is proposed by both the mother and the Independent Children’s Lawyer. The answer is, regrettably, yes. The concerns raised about the father, particularly around his parenting capacity, create a profound concern about his ability to care for the children without adequate supervision. The supervision is needed not just to ensure that he adequately meets the children’s physical needs (of which there is little doubt) but also their emotional needs, which include the need to be protected from the parental conflict, and to have their father as a stable, predictable and consistent positive impact on their life.
Of concern is the potential implications on the children of the father having perpetrated coercive and controlling family violence on their mother, and to which they were exposed, with the consequential concern about the role model he will be for the children, and his underlying attitude as a parent, and to the responsibilities of parenthood. The father’s sense of self-entitlement and self-elevation are also of concern, for example, at the supervised contact centre, sometimes accompanied by aggression. Further, one must not forget that Y is a special needs child.
If the Court contemplates supervised contact, as the evidence suggests that it must, the issue is whether it should be open-ended, or time limited. The answer to this dilemma lies very much in the hands of the father, and the extent to which he positively engages in the opportunities he is given to spend time with the children, even if these opportunities are not what he aspired for. The making of an order for supervised contact on an open-ended basis makes it almost inevitable that the matter will be further litigated in future, and perhaps so it should be. The prospect of further litigation is always to be avoided, for the sake of the children, but sometimes for the sake of the children parenting orders need to be reviewed. Moreover, the Court does not discount the possibility that, consistent with the history of this matter, the father will simply disengage with the children as soon as he encounters some form of obstacle or adversity such as pandemic-related lock-downs, ill-health, unemployment etc.
The order proposed by the Independent Children’s Lawyer imposes the financial cost of supervision on the father. The use of a paid professional supervision service is the alternative to finding an agreed supervisor. A cost, therefore, is not inevitable but may well be likely at least in the short-term. The order proposed invites the participation of the father’s family members as well, thus maintaining that link between the children and the paternal family. The Court encourages the father to persist for a few years in spending consistent quality time with the children on the best terms available. A positive track record may well be the strong foundation for a review of the orders including the lifting of supervision.
This is a difficult case which involves the making of predictions into the future, which predictions are surrounded by the vagaries of human life. Change is a constant feature. X will grow up, as will Y. For one hopes that the positive trajectory of improvement in his autism spectrum disorder will continue. Both parents may re-partner, hopefully with partners who are a very positive influence on them, and the children. All of these are factors which suggest that in the circumstances of this case the finality of a parenting order cannot be guaranteed indefinitely.
Having regard to the matters identified above, and subject to the amendments referred to above, the Court believes that the orders proposed by the Independent Children’s Lawyer are the ones that reflects the orders that the Court believes are in the best interests of X and Y, and which also present the scenario of least risk to them. Order 15 of the Independent Children’s Lawyer’s proposed minute, however, refers to the practical obstacle that the father will confront in seeking to vary these orders in future, that is, Rice & Asplund (1979) FLC 90-725. Order 15 of the Independent Children’s Lawyer’s minute is not an order the Court can make, as well-intended as it is (Oberlin & Infeld (2021) 63 Fam LR 88).
I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 31 March 2022
·
SCHEDULE A
The Independent Children’s Lawyer’s Proposed Orders
1.The mother have the sole parental responsibility for the children, X, born in 2014 and Y, born in 2016 (“the children”).
2.The children live with the mother, conditional upon her compliance with Orders 8, 9 and 10.
3.The children spend time with the father for 3 hours:-
a.On each alternate Saturday or Sunday;
b.On 25 December each year, and
c.On Catholic Easter Sunday each year,
such time to be supervised by a person or agency agreed between the parties in writing but failing agreement, L Services, with specific times to be agreed between the parties subject to the availability of the supervisor/agency.
4.For the purpose of Order 3:
a.The father is to meet any costs associated with the supervision and
b.The father may be accompanied by up to three family members unless otherwise agreed between the parties.
5.The mother be permitted to suspend the children’s time with the father in accordance with Order 3 for the purposes of taking the children on holidays provided that:-
a.Each period of suspension affects no more than one occasion of the children’s time with the father;
b.There are no more than two suspensions in each calendar year, and
c.The mother notifies the father and the supervisor in writing at least 28 days prior to the occasion to be suspended.
6.The father is permitted to liaise directly with the children’s day care facility, and/or school to receive information in relation to the children’s progress and any newsletters, reports and order forms for the children’s school photographs.
7.Both parties are permitted to liaise directly with any doctor, medical practitioner, dental practitioner, mental health practitioner (including counsellors, psychologist or psychiatrists) or any hospital, medical, therapeutic or other health service provided or institution attended by either child to obtain information about the physical, dental and/or mental health of either child and the progress of any treatment the child may be receiving and these Orders will be sufficient authority to authorise the release of such information including copies of medical reports to the parties and the person making such requests will pay for any costs associated with the request and/or provision of information including any telephone calls for updates.
8.Pursuant to section 68B(1)(a), the mother is hereby injuncted and restrained from:-
a.Bringing either of the children into contact with Mr M at any time;
b.Permitting or allowing any third person to bring either of the children into contact with Mr M at any time;
c.Allowing the children to remain in the presence or vicinity of Mr M at anytime whatsoever;
d.Encouraging, facilitating or allowing either of the children to communicate with Mr M by any means whatsoever including but not limited to telephone or any form of electronic communication, including social media;
e.Permitting or allowing any third person to encourage, facilitate or allow the either of the children to communicate with Mr M by any means whatsoever including but not limited to telephone or any form of electronic communication, including social media.
9.Within 14 days of the date of these Orders, the Mother is to make an appointment with a therapist nominated by the Independent Children’s Lawyer for the purposes of:
a.Undertaking therapy to assist her to understand the risk posed by Mr M and develop her capacity to protect the children from that risk, and
b.Arranging for the children to be educated in relation to protective behaviours in an age and developmentally appropriate manner.
10.For the purposes of Order 9, the mother is to:
a.Notify the Independent Children’s Lawyer of the date of her first appointment with the therapist;
b.Attend appointments with the therapist as recommended by him/her for as long as the therapist deems appropriate;
c.Arrange for the children to attend appointments with the therapist as recommended by him/her for as long as the therapist deems appropriate, and
d.Meet the costs of the therapy.
11.For the purposes of Order 9, the ICL has leave to provide to the therapist:
a.A copy of the Family Report of Ms P dated 10 September 2021;
b.Exhibits ICL 7 and 8;
c.A sealed copy of these Orders, and
d.A copy of Justice Altobelli’s judgment.
12.The appointment of the ICL is discharged following compliance with Order 11.
13.Both parties are hereby injuncted and restrained from:
a.Except as provided for in these Orders, providing any documents pertaining to these proceedings to any other person than their legal representatives;
b.Discussing any allegations raised in these proceedings with or in the presence and/or hearing of the children;
c.Permitting or allowing any third person who is not appointed by the Court, to discuss with the children or in their presence and/or hearing any allegations raised in these proceedings;
from making any negative, critical, belittling or derogatory comments in relation to the other parent or members of the other parent’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of the children or via written correspondence or on social media which may be viewed or accessed by the children and each parent will use their best endeavours to ensure that no other person does so.
14.Each parent is permitted to provide a copy of these Orders to their and the children’s:-
a.Health care professionals;
b.Schools, before and after school care providers and pre-school the children may attend;
c.Any professional supervisory agency supervising the children’s time with their father.
15.The father has leave to make further application to this Honourable Court for review of Order 3 made herein on the basis that such application is to be made within 2 years of the final Orders being made and for the purposes of this Order the principles of Rice v Asplund shall not apply as a threshold determination of any such application.
16.That within 3 months the mother pay to Legal Aid NSW the sum of $8,292 being her contribution to the ICL’s costs in these proceedings.
17.That within 3 months the father pay to Legal Aid NSW the sum of $8,622 being his contribution to the ICL’s costs in these proceedings.
SCHEDULE B
The Mother’s Proposed Orders
1. That the Applicant Mother have sole parental responsibility for the children, namely:
(i)X born in 2014 and;
(ii)Y born in 2016
(“the children”)
2. That the children live with the Mother.
3. That the Father spend supervised time with the Children, monitored by L Services at the following times:
3.1.Each alternate Saturday;
3.2.Father’s day;
3.3.Christmas day;
3.4.New years day; and
3.5.Catholic Easter Sunday.
All of which shall be between the hours of 9am to 12 noon.
4. That the father be responsible for the costs of and incidental associated to and by L Services.
5. That the transportation of the Children to and from the father’s place of residence be undertaken by L Services.
6. That the mother’s place of residence be kept confidential from L Services.
7. That the Father undertake and attend a parent training course provided by T Company (telephone…).
Conduct
8. That neither party denigrate the other party or any other current or future partner, family members or friends whilst in the presence or hearing of the children or allow, with their knowledge, a third party doing so.
9. That each party will encourage, and not undermine, the child’s relationship with the other party.
10. That each party will undertake to ensure that the child is not exposed to any person denigrating the other party and will remove the children from the presence or hearing of any denigration.
11. That the Respondent or other persons or agent employed or directed by the Respondent be restrained by injunction to section 114(1)(b) of the Family Law Act 1975 from entering or approaching:
11.1.The property situated at and known as Q Street, Suburb C in the state of New South Wales or any other property at which the Applicant may reside;
11.2.The children’s school or pre-school or any venues where extra-curricular activities take place which the children may attend from time to time; and
11.3.The Applicant Mother at any time, including but not limited to any future place of employment
12. That the Mother be at liberty to obtain and retain an Australian Passport for both of the children.
SCHEDULE C
The Father’s Proposed Orders
1.That the father have sole parental responsibility in relation to the X born in 2014 and Y born in 2016 (‘the children’) except for medical matters for which the parents will have shared parental responsibility. In the case of a disagreement regarding medical matters, the parties will make an appointment and attend mediation at the first possible opportunity.
- That the children shall live with the father.
- That the mother will spend time with the children every afternoon after school until 6pm and every alternate weekend Saturday 9 am - 6 pm and Sunday 9 am – 6pm. The mother will collect the children from their respective educational establishments at the end of the school day, and drop them off to the house of Ms Pretre and Mr N Pretre, or the father’s house, in the event that the children are unable to be dropped off to Ms Pretre and Mr N Pretre’s house.
- The mother will spend time with the children from 9am - 6 pm on 7 days during the school term holidays or as agreed between the parties and failing agreement, for the first half of the school term holidays in even years and the second half of the school term holidays in odd years.
- The mother will spend time with the children from 9am - 6 pm for 14 days during the Christmas school holidays, or as agreed between the parties and failing agreement, for the first and fifth week in even years and for the second and sixth week in odd years.
- The mother will spend from 9am – 6pm with the children on (i) Boxing Day and 27 December in odd years and Christmas Eve and Christmas Day in even years (ii) Mother’s Day. The mother will spend at least 3 hours with both children on their respective birthdays.
- The children will spend time with the father, when they are not spending time with the mother.
- That the mother provide her residential address to the father.
- The mother is restrained from taking the children to her home, unless accompanied by a supervisor.
- The mother is to sign an undertaking that she will not allow the children to come into contact with Mr M, either in person or by electronic means.
- Any supervisor of the children’s time with the mother is to be informed about the Court’s concerns regarding Mr M and will sign an undertaking to the Court that he/she will not allow the mother to bring the children into contact with Mr M, either in person or by electronic means, in the presence of the supervisor.
- If the mother or the supervisor allows the children to be brought into contact with Mr M, the mother’s time with the children will be terminated until a further order of the Court.
- That the mother provide the father with all details regarding the NDIS funding for Y, sufficient for him to deal with the agency, if it becomes necessary.
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