Friseal & Friseal
[2025] FedCFamC2F 75
•28 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Friseal & Friseal [2025] FedCFamC2F 75
File number(s): HBC 14 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 28 January 2025 Catchwords: FAMILY LAW – parenting – mother alleging unacceptable risk due to father’s pervasive family violence including coercion or control – meaning of coercion or control – exercise of powers by child safety services without adequate assessment of facts – factual findings that children’s views not coerced or controlled by the father – child safety services actions adverse to interests of the children – resulting entrenched alignment of older children to father – younger child removed from father’s care and placed with mother without prior warning – not in the best interests of older children to live with mother – older children have made assessment of parenting and have strong wishes not to have contact with the mother – no unacceptable risk to children in father’s care – parenting orders for father to have sole decision making responsibility for the older children and that they reside with him – parenting orders for mother to have sole decision making responsibility for the younger child and that she reside with her – separation of siblings required Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Amendment Act 2023 (Cth)
Children, Young Persons and Their Families Act 1997 (Tas)
Cases cited: Aldridge & Keaton (2009) 235 FLR 450
Brauner & Brauner (No 2) [2024] FedCFamC1F 748
Carlson & Fluvium [2012] FamCA 32
Carter & Wilson [2023] FedCFamC1A 9
Cottey & Backe (No 2) [2020] FamCAFC 206
Danton & Lancaster [2024] FedCFamC2F 1045
Dasreef v Hawchar (2011) 243 CLR 588
Fox v Percy [2003] HCA 22
Garrido & Garrido [2024] FedCFamC2F 634
Hall & Hall (1979) FLC 90-713
In the Marriage of Boman (1981) 7 Fam LR 586
In the Marriage of Wotherspoon & Cooper (1981) FLC 91-029
Isles & Nelissen [2021] FedCFamC1F 295
Isles & Nelissen [2022] FedCFamC1A 97
Lennon & Sanil [2020] FamCAFC 109
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mitchell v Mitchell (1983) 9 Fam LR 267
MRR & GR [2010] HCA 4
Olivier & Olivier [2020] FamCA 639
R & R [2000] FamCA 43
Division: Division 2 Family Law Number of paragraphs: 147 Date of last submission/s: 14 January 2025 Date of hearing: 11-13 June 2024, 8-10 July 2024 and 7-8 November 2024 Place: Hobart Counsel for the Applicant: Ms Ryan Solicitors for the Applicant: Ms Daniels, PWB Lawyers Counsel for the Respondent: Mr Strong Solicitor for the Respondent: Ms Dalwood, Butler McIntyre & Butler Solicitor for the Intervenor: Mr Lee, Office of the Director of Public Prosecutions Counsel for the Independent Children's Lawyer: Mr Verney SC (direct brief) ORDERS
HBC 14 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FRISEAL
Applicant
AND: MR FRISEAL
Respondent
SECRETARY, DEPARTMENT FOR EDUCATION, CHILDREN AND YOUNG PEOPLE
Intervenor
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
28 JANUARY 2025
THE COURT ORDERS THAT:
Parental responsibility and live with
1.All previous parenting orders in respect of X born in 2008 (“X”), Y born in 2009 (“Y”) and Z born in 2015 be and are hereby discharged.
2.MR FRISEAL ("the father") have sole parental responsibility for the children X and Y and sole decision-making authority in respect of all decisions concerning their major or long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth).
3.X and Y live with the father.
4.Upon revocation of the current Child Protection Order made July 2023 in respect of Z, MS FRISEAL ("the mother") have sole parental responsibility for Z born in 2015 ("Z") and sole decision-making authority in respect of all decisions concerning her major or long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth).
5.Z live with the mother.
6.For the purposes of Order 2 and 4 of these Orders and exercising sole parental responsibility:
(a)The father must within seven (7) days of making a decision advise the mother in writing of any decisions that he has made for X and Y that concern "major or long-term issues".
(b)The mother must within seven (7) days of making a decision advise the father of any decisions that she has made for Z that concern "major or long-term issues".
Spend time with arrangements for Z if all children are residing in Tasmania
7.For a period of six (6) months from the date of these Orders, Z is to spend time with the father and X and/or Y at dates and times that can be facilitated by a professional supervision service agreed by the parties and in default of agreement at City B Children’s Contact Service.
8.For the purpose of Order 7 of these Orders, the mother and father are to do all acts and sign all documents required for enrolment with the professional supervision service.
9.After the father has spent six (6) consecutive months of time with Z referred to in Order 7 of these Orders, Z is to spend unsupervised time with the father, X and Y in Tasmania as follows:
(a)For two (2) months, every second Saturday from 10 am until 2pm; and
(b)After the expiry of two months referred to in order 9(a) every second Saturday from 10 am until 3pm Sunday; and
(c)For five days in the first week of each term school holiday commencing after the end of Term 3 in 2025 and each year thereafter; and
(d)For seven days during each Christmas/summer school holiday period; and
(e)Such other additional times agreed in writing between the parties.
Spend time with arrangements for X and Y and the mother in Tasmania
10.From the date of these orders X and Y are to spend time with the mother in accordance with their wishes in Tasmania, which wishes may be communicated by them through their treating psychologist to the mother and father.
11.In the event that X or Y express a wish to spend time with the mother as referred to in order 10 the father must facilitate X and Y's wishes in respect of them spending time with the mother and must attempt to reach agreement with the mother as to the dates, frequency and duration of visits in writing and, if agreement cannot be reached, will be as follows:
(a)For two hours each fortnight on the opposite week to when Z spends time with the father, X and Y; and
(b)Changeover will be at or outside D Venue.
Spend time arrangements for the children if the mother and Z live in Western Australia
12.Each year in the school holidays after end of Term 2, providing X and Y wish to spend time with the mother and communicate this through their psychologist to the mother and father, they will spend the first week of those holidays in Western Australia with the mother and Z.
13.Each year in the school holidays after end of Term 3, Z will spend five days with the father, X and Y in Tasmania.
14.Each year in in the summer school holidays after Term 4, Z will spend seven days with the father, X and/or Y in Tasmania.
15.X and Y are to spend time with the mother in Western Australia at such other additional times as may be agreed in writing between the parties.
Cost of airfares and travel between Tasmania and Western Australia
16.For the purpose of the spend time arrangements referred to in Orders 13 and 14 of these Orders, the mother is to pay for the airfares and travel costs for Z to travel to Tasmania.
17.For the purpose of the spend time arrangements referred to in Order 12 and 15 of these Orders, the father is to pay for the airfares and travel costs for X and Y to travel to Western Australia.
18.For the purpose of the spend time arrangements referred to in Orders 12, 13, 14 and 15 of these Orders:
(a)The parent obliged to pay for the cost of travel will arrange the bookings and make payment for return flights at least seven (7) days before the date of travel and must provide a copy of the itinerary to the other parent; and
(b)The primary care parent who is facilitating the child or children to spend time interstate with the other parent is to ensure that the children are at the departure airport and board the booked flight; and
(c)The parent who is to spend time with the child/children must ensure they collect the child/children from the destination airport.
Electronic communication between siblings and parents
19.The father is to facilitate X and/or Y communicating with Z and the mother as follows:
(a)At least once per week for a period of up to 20 minutes on a day and time agreed between the parties in writing and in the event of no agreement, each Sunday at 5:00pm; and
(b)At such further times as requested by the children.
AND FOR THE PURPOSES OF THIS ORDER the father is to initiate the means of communication and the mother ensure any relevant communications devices are charged and ready for use and Z and the mother engage in the communication.
20.The mother is to facilitate Z communicating with X and/or Y and the father as follows:
(a)At least once per week for a period of up to 20 minutes on a day and time agreed between the parties in writing and in the event of no agreement each Wednesday at 5:00pm; and
(b)At such further times as requested by the children.
AND FOR THE PURPOSES OF THIS ORDER the mother is to initiate the means of communication and the father ensure any relevant communication devices are charged and ready for use and X and/or Y and the father engage in the communication.
21.The means of communication for the purposes of Orders 19 and 20 of these Orders are to be in an electronic mode agreed between the parties in writing and in default a messaging app.
22.All communications and written agreements between the parents required by these Orders must be by text or email and the parties are to:
(a)Only communicate in respect of arrangements to give effect to these Orders; and
(b)Confine communications to child focused and parenting related matters pursuant to these Orders.
Psychological treatment and supports
23.Within twenty-eight (28) days of the date of these orders the father is to obtain a mental health care plan for each of X and Y, which treatment plan will be with a child psychologist nominated by the Independent Children’s Lawyer and the father must ensure that treatment proceeds according to recommendations made by any treating professional.
24.If either party wishes to suggest a child psychologist for treatment referred to pursuant to order 23 of these orders, they must provide their suggestions in writing to the Independent Children’s Lawyer within fourteen (14) days of the date of this order.
Injunctions
25.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children and each other, the parties are each hereby restrained by injunction from the following:
(a)Physically abusing or disciplining the children or physically abusing each other;
(b)Being verbally abusive, yelling or denigrating the children or each other;
(c)Being physically or verbally abusive, yelling or denigrating the other parent in the presence of the children;
(d)Denigrating the other party's family or loved ones to the children, and the parties will each remove the child/children from any third party doing so whilst the child/children are in their respective care; and
(e)Discussing these proceedings and parenting disputes with or in the presence of the children.
26.The Independent Children's Lawyer, as soon as practical is to inform Z of the orders made by the Court, explain them, and answer any questions she may have in an age-appropriate way.
27.The Intervenor has leave to provide a copy of the orders made today and Reasons for Judgment in these proceedings to the Magistrates Court, Children’s Division.
28.The Independent Children’s Lawyer and/or the parties have liberty to provide copy of the orders made today and Reasons for Judgment to:
(a)Any treating child psychologist for X and Y;
(b)Any medical or allied health professional who treats the children; and
(c)Any school the children are attending or may attend in the future.
29.The appointment of the Independent Children’s Lawyer be extended for a period of 2 months from the date of these orders.
30.The Father is to deliver X and Y to the Hobart Registry of the Federal Circuit and Family Court of Australia at 2.00pm today 28 January 2025 for the purpose of the Court informing them of the final parenting orders made and for this purpose the Independent Children’s Lawyer is to be present.
AND THE COURT NOTES THAT:
A.Pursuant to s 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if they hold reasonable belief that the Orders for personal protection in Order 25 of these Orders have been breached.
B.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Attachment A and these particulars are included in these Orders.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
These parenting proceedings concern three children: X, Y and Z, who are aged 16, 15 and 9 respectively (collectively “the children”). The children’s parents are Ms Friseal (“the mother”) and Mr Friseal (“the father”), who were in a relationship for approximately 15 years. When the parties separated in late 2022 the children were 14, 13 and 8 years of age.
The foundational issue in dispute in these proceedings concerns whether all three of the children should reside primarily with the mother and spend no time with the father or alternatively whether the two older children should reside with the father and the youngest child reside with the mother while spending some time with the father.
This somewhat unusual foundational issue concerning primary care arrangements has arisen out of relatively complex and protracted events and circumstances that evolved in December 2022 after the parties finally separated. At this time, the father arranged for the children to travel to New South Wales to spend time with his family and the mother formed a belief that the children had been unilaterally removed from Tasmania, perhaps permanently.
The findings relevant to the Court’s determination in relation to the children’s primary living and care arrangements will also inform the spend time arrangements for the children with the parent who does not have primary care. Those findings will inform which parent should have parental responsibility and major or long-term decision making for each of the children.
EVIDENCE BEFORE THE COURT
The volume of affidavit material and documentary exhibits received, and oral evidence given under cross-examination over the course of the defended hearing was extensive. In the interests of determining the parenting proceedings in a timely fashion and to minimise any further risk of emotional harm to the children, it is desirable that the evidence is not recited in granular detail in these reasons. Instead, it is preferable to identify topics in relation to which the parties’ evidence and cases are opposed and refer to the evidence that is material to determining those disputed facts or issues.
INTERVENTION BY THE DEPARTMENT
It is necessary to address the intervention of the Department for Education, Children and Young People (“the Department”) as it occurred after the defended hearing had already commenced.
On the basis of information contained in Child Safety Services section 69ZW reports, the Court had invited the Department to intervene on two previous occasions, in January 2023 and January 2024. Despite the reports noting concerns for the children based on allegations of family violence including coercive control by the father, instability or insecurity of housing for the children when in the father’s care and inadequate attention to the children’s medical and psychological needs, the Department declined to accept the Court’s invitations to intervene in January 2023 and 2024. Despite this, they chose to exercise state-based powers under the Children, Young Persons and Their Families Act 1997.
Shortly prior to the defended hearing commencing, the Independent Children's Lawyer (“the ICL”) apparently made a forensic decision that it was necessary to call evidence from the Department’s employees who had been involved with the children and parties from approximately February 2023. For convenience, in these reasons when referring to any involvement by delegates of the Secretary of the Department (“the intervenor”), child safety officers, staff of the Department, Strong Families Safe Kids or Child Safety Services, the acronym “CSS” is used.
The ICL obtained the cooperation of the CSS principal practice manager in Tasmania, Ms C, and her affidavit was filed by the ICL on 7 June 2024. Ms E, a practice leader at CSS, also cooperated with the ICL and her affidavit was filed on 22 May 2024. Ms C’s affidavit was taken as read unopposed on the first day of the defended hearing. The other parties predictably exercised their right to cross-examine.
During the course of her oral evidence on 11 June 2024, Ms C stated for the first time, and well outside anything written in her affidavit or the reports from CSS referred to above at [7], that:
(a)This case involved serious matters of coercive control and family violence behaviour that the children had been subject to for the entirety of their lives and continued to be subject to;
(b)The “ongoing legacy” of the father’s pattern of controlling behaviours remained problematic for the mother who still suffered the effects of such to this day and this has an ongoing impact on the children who have lived in this situation since they were young and know nothing else;
(c)Most of the professionals involved hold “deep fears” for the children’s current and ongoing safety, particularly while in the father’s care. Further, that there were ongoing concerns about return of the children to the mother’s care because of the “harmful impacts” they had experienced whilst in the father’s care and the attitudes they now hold in relation to their mother’s capacity to care for them;[1]
(d)The “deep fear” that was held was that if there were “any interventions then [the father] may well seriously harm himself, the children or [the mother] or even kill them”;[2] and
(e)Under cross-examination by counsel for the father, she maintained that the father’s family violence history was profound, extensive and it was not unreasonable to suggest he may take “further action” if the children were ordered to live with the mother. However, she then agreed that this fear of the father harming his children was not based on any assessment of evidence or evidence of physical harm, nor was it such that CSS had continued to exercise state-based powers in relation to the two older children.
[1] Transcript of Ms C evidence, 11 June 2024, p 4.
[2] Transcript of Ms C evidence, 11 June 2024, p 4.
In light of the evidence given by Ms C I enquired how it was, given the seriousness of her concerns for the children, that the Department had previously declined to intervene in these proceedings. I became concerned that regardless of what this Court decided there was a distinct risk that the Department would, if not in agreement with the Court's conclusion, bring child protection proceedings in the state jurisdiction at a later time.
Ms C sought leave of the Court to instruct the Department's legal advisor to take urgent steps to intervene. Ultimately, having only heard the evidence from Ms C, I determined that the prudent course was to permit late intervention. Particularly because the affidavit of Ms F[3] was to be read into evidence and was said to provide highly relevant evidence to assist the Court in making parenting orders. Further, it was prudent to allow late intervention because CSS had obtained interim assessment orders in respect of all three children in March 2023,[4] and later obtained interim and then final care and protection orders in respect of the youngest child, Z.[5] It was necessary to ensure cohesion between the state based orders and the parenting orders to be made by the Court and this would most likely be achieved by hearing fully from CSS about their proposed exercise of state-based powers.
[3] That was subsequently filed on 4 November 2024 and taken as read by the Court.
[4] Exhibit I4 and Exhibit I5.
[5] Exhibit I6 and Exhibit I7.
The unusual and delayed intervention by the Department made the conduct of these proceedings protracted and, in my view, somewhat obscured rather than clarified the relevant risk concerns for the children because the evidence adduced by them was partially based on selective facts and/or unqualified opinion for the reasons that follow.
PARENTING ORDERS SOUGHT
Although the mother had filed an Amended Initiating Application as recently as 2 May 2024, by the end of the defended hearing on 8 November 2024, the orders she sought had altered somewhat. Although still seeking that all three children live with her, she no longer sought an order for the children to spend time with or communicate with the father. The orders previously sought had contemplated a period of no contact with the father for 90 days but invited the Court to make orders that the children spend time with the father thereafter.
In the Amended Initiating Application filed 2 May 2024, the mother had not committed to a firm arrangement about whether she would remain living with the children in Tasmania if the Court ordered that the children primarily live with her. By the close of the defended hearing on 8 November 2024, the mother’s case was very clearly that she would relocate to Western Australia with all three children. The mother sought an order for sole parental responsibility/decision making of all three children.
The father filed an Amended Response on 27 May 2024 seeking orders that the two older children live with him and that their time and communication with the mother be in accordance with their wishes. In respect of the youngest child, he sought an order that she live with the mother and upon the expiration of the care and protection order obtained by CSS, that he spend each weekend with her from 4:00pm on Fridays until 4:00pm on Sundays.[6] The father sought orders for sole parental responsibility/decision making for the older children and joint decision making in respect of the youngest child.
[6] Although counsel for the ICL suggested orally during the hearing that the father only sought fortnightly weekend time.
Belatedly, the intervenor filed a Response to Final Orders on 5 July 2024 seeking orders consistent with those sought by the mother.
Each party also sought various protective orders and injunctions pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) as well as orders about communication and changeover. For present purposes it is not necessary to detail all of the orders sought.
In opening submissions, the ICL made it plain that in his views were that the orders sought by the mother in her Amended Initiating Application were the preferable orders to make as they were said to be in the best interests of the children. However, he expressed those views with a caveat. Namely, that he reserved his right to make further and other submissions in closing once he had the benefit of hearing all the evidence.
With the agreement of all counsel, given the number of parties involved, time constraints and the volume of evidence likely to be heard, only the ICL gave an overview opening statement in respect of the issues of the case. In summary, that overview was as follows:
·There was almost nothing that the parties were agreed upon;
·From the ICL’s perspective, the most important evidence would be that of the Court Child Expert and Dr G, a consultant psychiatrist, rather than the parties themselves;
·Both parties described themselves as victims of family violence but CSS had accepted and adopted the mother’s position, being that she should have sole parental responsibility and primary care of all three children in the context of a history of significant and extensive family violence by the father;
·That, on the evidence, the Court may not be able to make positive findings in respect of the conflicting allegations of family violence but he did not consider it necessary to do so; and
·The decision about live with arrangements and parental responsibility or major and long term decision making for the older two children should not be left for them to decide as, although they are effectively estranged from the mother and are currently 16 and 15 years of age, the evidence is such that the Court can be satisfied their views have been significantly influenced by the father.
RELEVANT LAW
In addressing the issues outlined above and determining what parenting orders are in the best interests of the children, the principles of law are well established. As briefly addressed in Garrido & Garrido [2024] FedCFamC2F 634 at [21] to [23], parenting cases determined after 6 May 2024 are to be determined pursuant to amended provisions in Part VII of the Family Law Act 1975 (Cth).
I have had regard to the amended provisions of the Act that require the Court to make parenting orders that are in the child’s best interests according to the non-exhaustive, non-hierarchical considerations in ss 60B, 60CA and 60CC, and the discretionary evaluation of the same.[7] Considerations of family violence remain an important consideration in the evaluation of what parenting orders should be made in a child’s best interests, as do the wishes of a child.[8]
[7] Family Law Amendment Act 2023 (Cth), Schedule 1, Part 1 and Part 2; and Aldridge & Keaton (2009) 235 FLR 450.
[8] Sections 60B and 60CG of the Act.
Further, considerations relating to whether a parent poses an unacceptable risk of physical or emotional harm due to conduct, conditions or other attributes remains important because of the need to make parenting orders that promote the safety and welfare of children.[9]
[9] Section 60CC(2)(a).
I consider that the assessment of risk of harm to a child remains informed by the principles established MRR & GR [2010] HCA 4, Isles & Nelissen [2021] FedCFamC1F 295 and Isles & Nelissen [2022] FedCFamC1A 97.
A significant aspect of this case was the alleged coercion or control exerted by the father towards the mother and children. The meaning of coercion or control is developing but has been addressed in authorities referred to by counsel for the mother in written closing submissions.[10]
[10] Submissions of 8 November 2024.
In summary, the present principles that emerge are:
(a)Coercion is defined as “to restrain or constrain by force, law or authority”, “to force or compel as to something” and “compel by forceable action”;[11]
(b)Control is defined relevantly as “to exercise restraint or direction over” and “to dominate or command”;[12]
(c)Although coercion or control is expressed disjunctively in the Act, the concepts are related and form part of an expanded concept of exercising power to restrain another or to cause another to act, by force, domination or command;
(d)Where the result of conduct is an exercise of power by force, domination or command, it constitutes coercion or control and amounts to family violence under the Act;[13]
(e)Coercion or control may encompass conduct that is not physical assault or violence, but mere assertion that the conduct is coercive or controlling does not make it so;[14]
(f)Mere disagreement does not automatically equate to family violence and the disagreement must derive from, and be informed by, its form, intensity, context and impact on a person;[15]
(g)The context in which conduct occurs is relevant to the assessment of whether there has been coercion or control.[16] Referring to this principle, I also consider the context in which statements are made to be relevant because restraint, direction or domination by force may be achieved by verbal interaction, including threatening statements; and
(h)Intention on the part of the perpetrator is not a necessary component of family violence including coercion or control, but the conduct or statements must be designed to dominate or intended to control.[17]
[11] Submissions of 8 November 2024 at [1], citing Olivier & Olivier [2020] FamCA 639 at [46].
[12] Submissions of 8 November 2024 at [1], citing Olivier & Olivier [2020] FamCA 639 at [47].
[13] Submissions of 8 November 2024 at [1], citing Olivier & Olivier [2020] FamCA 639 at [50].
[14] Submissions of 8 November 2024 at [1], citing Olivier & Olivier [2020] FamCA 639 at [51].
[15] Submissions of 8 November 2024 at [1], citing Olivier & Olivier [2020] FamCA 639 at [52].
[16] Submissions of 8 November 2024 at [2], citing Carter & Wilson [2023] FedCFamC1A 9 at [10].
[17] Submissions of 8 November 2024 at [3], citing Carter & Wilson [2023] FedCFamC1A 9 at [80] per Bennett J.
The notion of command or dominating influence, whether by physical or verbal means, that causes another to comply, act or agree contrary to their own will is at the core of coercion or control and amounts to family violence under the Act. Compliance that occurs due to ambivalence, acquiescence or indifference is unlikely to constitute coercion or control.
THE PARTIES’ EVIDENCE
All parties sought to rely on affidavits from their respective witnesses in support of their case. The following affidavits were taken as read by the Court:
·Affidavit of the mother filed 2 May 2024;
·Affidavit of Ms H, the maternal aunt, filed 27 May 2024;
·Two affidavits of Ms J, the maternal grandmother, filed 18 January 2023 and 3 February 2023;
·Affidavit of the father filed 27 May 2024;
·Affidavit of Mr K, the older children’s school principal, filed 18 May 2024;
·Affidavit of Ms C, principal practice manager at CCS, filed 7 June 2024;
·Affidavit of Ms E, practice leader at CSS, filed 22 May 2024.
·Affidavit of Ms F, a child safety officer, filed 4 November 2024; and
·Affidavit of Mr L, practice manager at CSS, filed 4 November 2024.
All parties tendered documentary evidence that has been marked as exhibits and considered by the Court. This evidence is specifically referred to in these reasons where considered to be material to the issues to be decided.[18] All dependents of affidavits were cross-examined.
[18] Exhibits A1 to A41, Exhibits R1 to R3, Exhibits ICL1 to ICL20 and Exhibits I1 to I9.
Evidence of Dr G
No party contested the expertise and qualifications of Dr G, but he qualified many aspects of his evidence due to the existence of disputed facts and corrected or revised evidence he had initially given regarding some topics during cross-examination. He also produced a supplementary report partway through the defended hearing at the court’s request to clarify his views, because he only had been provided with the father’s medical records and not all those relevant to the mother at the time of preparing his initial report.[19] Taking the totality of his evidence as revised through various cross-examination and updated views contained in his supplementary report, his evidence is summarised as follows:
[19] Exhibit ICL18, supplementary report of Dr G dated 30 September 2024.
(a)Regarding the assertions contained in the minutes of the CSS meeting dated 23 May 2024,[20] that some stated facts appeared to be assumptions which were relied upon in coming to their assessment of risk and he gave two examples;[21]
[20] Exhibit ICL1.
[21] Transcript of Dr G’s evidence, 13 June 2024, p 4.
(b)There is no factual basis for saying someone, including the father, is a high risk of homicide or filicide, although the father’s suicidal ideation and family violence are risk factors;[22]
[22] Transcript of Dr G’s evidence, 13 June 2024, p 5.
(c)His assessment of the father was such that he was of the view that there was never any intention to murder the mother;[23]
[23] Transcript of Dr G’s evidence, 13 June 2024, p 5.
(d)The father would not admit to assaults he had not perpetrated;[24]
[24] Transcript of Dr G’s evidence, 13 June 2024, p 9.
(e)If the father did not have his needs met or get what he wants, he would eventually resort to physical aggression when in an emotionally aroused state;[25]
[25] Transcript of Dr G’s evidence, 13 June 2024, p 10.
(f)Telling the children their mother is a perpetrator of domestic violence if that is not true would not foster a supportive relationship with a parent. Rather, it would lead to children concluding that adults who care for and love them cannot be trusted, which is emotionally damaging. He noted the term “gaslighting” is a term popularly used for this;[26]
[26] Transcript of Dr G’s evidence, 13 June 2024, pp 10-11.
(g)The situation described in the preceding subparagraph seemed to be what was happening with the older children because saying that “I didn’t commit this violence” or “I only did it in defence of the children” did not seem compatible with pleading guilty to those offences.”[27] I note that this involves an assumption that the father has said these things to the children where there is no evidence to that effect. Rather, the children were present when the events in September 2022 and final separation occurred and witnessed those for themselves;
[27] Transcript of Dr G’s evidence, 13 June 2024, p 11.
(h)The evidence suggests that the father has mental health disorders and some examples of this were given including passive aggression and his not engaging generally or with services.[28] Mental health disorders can entail difficulty regulating emotion, negotiating interpersonal relationships, attempting to manipulate situations to have needs met, and intense distress leading to suicidal ideation. These traits involve a person feeling they have a better understanding of the world than others, overlooking their own deficiencies and projecting those onto others, and disregard for the rights and feelings of others because you are more important than them;[29]
[28] Including not engaging consistently with mental health services. See transcript of Dr G’s evidence, 13 June 2024, pp 24-25.
[29] Transcript of Dr G’s evidence, 13 June 2024, p 12.
(i)Both parties have an adjustment disorder, either resolving or partially resolved, with depressive and/or anxiety traits;[30]
[30] Transcript of Dr G’s evidence, 13 June 2024, pp 11 and 14-15.
(j)Although the mother claims, and her medical records refer to, a diagnosis of post‑concussive syndrome, he doubted she suffered such a syndrome from the assaults by the father.[31] I accept this evidence and am not persuaded that the mother suffered post-concussive syndrome as a result of multiple hits to the head allegedly inflicted on her by the father;
[31] Transcript of Dr G’s evidence, 13 June 2024, p 16; and Exhibit ICL18, Dr G supplementary report at p 5, [1] under the heading “Comments”.
(k)The mother had dependent traits and had decreased her vulnerability through education about boundaries;[32]
[32] Transcript of Dr G’s evidence, 13 June 2024, p 17.
(l)He did not wholly agree with the Court Child Expert that the father’s parenting and family violence behaviour was all cognitively informed and conscious decision making, stating that some responses were reactive. For example, the assaults were not planned and executed according to a reason but the alleged manipulation and coercion, if it occurred, was more cognitive and did not occur impulsively on emotion;[33]
[33] Transcript of Dr G’s evidence, 13 June 2024, pp 22-23
(m)His clinical experience of coercion or control was that it rarely occurred in isolation and usually presented with emotional abuse backed up by violence or the threat of violence where violence is the pathway to maintain control.[34] He noted that he is not up to date on the recent literature relating to coercion or control;
[34] Transcript of Dr G’s evidence, 13 June 2024, p 26.
(n)He initially agreed that if coercion or control exists and there is loss of control, it can lead to an escalation in behaviour and often physical violence but then qualified this by stating it did not “often” lead to physical violence;[35]
[35] Transcript of Dr G’s evidence, 13 June 2024, p 26.
(o)Having a conviction for family violence increased the risk of it occurring in the future as compared to the general population;[36]
[36] Transcript of Dr G’s evidence, 13 June 2024, p 27.
(p)He initially stated that the father had pleaded guilty to more assaults than he admitted to during their interview but later through cross-examination corrected this and agreed the father had been consistent in his evidence;[37]
[37] Transcript of Dr G’s evidence, 13 June 2024, p 29.
(q)There was no evidence of the mother experiencing multiple concussions, although this was stated as fact. Further, that there was no evidence of her seeking a family violence order or support prior to the last few months of the relationship. However, he later qualified this evidence in his supplementary report effectively stating that he accepted the mother’s medical records showed she sought a mental health plan in July 2022 due to family violence and had asked that this not be included in the plan for fear the father would find it and read it;[38]
[38] Transcript of Dr G’s evidence, 13 June 2024, p 30; and Exhibit ICL18, Dr G supplementary report, p 5 at [2]-[3] under the heading “Comments”.
(r)That to put a lot of weight on CSS’ views would require knowledge of what evidence they are based on;[39]
[39] Transcript of Dr G’s evidence, 13 June 2024, p 31.
(s)He placed some reliance on the inconsistency between CSS saying they were contacting the father about arranging communication with Z and the father saying he did not trust CSS because he believed there was an order for contact between him and Z.[40] I note that there were non-specific orders for contact with the father, as which simply provided contact was to be by agreement with CSS.[41] Further, the evidence of Ms F makes it plain that CSS were telling the father that Z did not want any contact and they did not make or invite proposals for contact, except to suggest the father and older children could write to Z;[42]
[40] Transcript of Dr G’s evidence, 13 June 2024, p 33.
[41] Exhibits I4 to I7.
[42] Affidavit of Ms F filed 4 November 2024 at [149], [154], [155], [160] and [161].
(t)The father would have grounds for being suspicious of the CSS behaviour if he had not known about the plan for the children to be removed from his care in February 2023 and that would be consistent with what the father told him;[43]
[43] Transcript of Dr G’s evidence, 13 June 2024, pp 33-34.
(u)To assess whether the children could be be parented by the mother, you would need a situation where they are encouraged to speak and engage without feeling certain responses are required, and where they could speak freely without it affecting their relationship with the father. Working with a therapist who could explore the relationship and why they held the beliefs they have expressed would assist;[44]
[44] Transcript of Dr G’s evidence, 13 June 2024, p 35.
(v)It would be important to know why the children had not engaged with the interview with the Court Child Expert;[45]
[45] Transcript of Dr G’s evidence, 13 June 2024, p 36.
(w)Referring to Z’s report to the Court Child Expert that the mother yelled and the father yelled back, it would be concerning if Z’s knowledge of information about the mother’s allegations of violence had been discussed with Z;[46]
[46] Transcript of Dr G’s evidence, 13 June 2024, p 37.
(x)He agreed there had been arguments during the parties’ relationship but noted the mother denied assaulting the father. He did not have a reference in his notes or report to whether she admitted or denied “yelling”;[47]
[47] Transcript of Dr G’s evidence, 13 June 2024, p 37.
(y)Following orders, is protective of risk of perpetration of family violence;[48]
[48] Transcript of Dr G’s evidence, 13 June 2024, p 38.
(z)There was no evidence of the father’s passive aggression escalating towards the children or causing them not to speak freely other than the father saying to Y that he would pin his ears to the wall, whether in jest or not;[49]
(aa)The older children are of an age where they can express their own opinions about their upbringing and exposure to domestic violence;[50]
(bb)The mother was a good historian and the father less so,[51] but I note that Dr G resiled from some of his evidence in chief about the father’s inconsistencies and in my view this impacts on whether the father was a less good historian;
(cc)The father had limited capacity to develop insight into his family violence. This opinion was premised on a conclusion that the father had not fully acknowledged the offences to which he pleaded guilty and this is something he corrected his view about. He thought the father was wholly wrong to externalise blame and portray himself as the victim of the mother and system;[52]
(dd)The mother was not able to coparent with the father and that was likely to be a permanent situation;[53]
(ee)An average person has a level of 5 on “insight” and the father’s level is 3. Further, that the father’s parenting style was concerning, but not highly concerning, and there was some evidence of manipulation;
(ff)Although he had not assessed the children, he thought they may have been influenced and might be limited in their ability to think critically about the situation.[54] This seemed at odds with his evidence referred to above at [30](aa). He added that when children are home schooled they have less influence from peers and are likely to be more strongly aligned to their parents;[55]
(gg)The proposition that the father ought not have sole parental responsibility for the older children depended on the veracity of the allegations of physical and emotional abuse against him, and “there weren’t a lot of examples actually consistent with that”, adding that “the view of police at the time seemed to be that this is a parenting matter”;[56]
(hh)He did not think anything in the father’s prior convictions was inconsistent with what the father had told him, which he had clarified,[57] and that this was reassuring in terms of future risk of violence;[58] and
(ii)Persons with dependent personality traits are likely to tolerate high levels of violence within a relationship because they have a psychological need in the relationship, but he assessed the mother as not having a great deal of dependency, perhaps 3 out of 10. He described the mother as a bit more acquiescent, not setting boundaries, acting as a peacemaker and seeking to avoid conflict.[59]
[49] Transcript of Dr G’s evidence, 13 June 2024, p 38.
[50] Exhibit ICL2, report of Dr G, p 81.
[51] Transcript of Dr G’s evidence, 13 June 2024, p 39.
[52] Transcript of Dr G’s evidence, 13 June 2024, p 40.
[53] Transcript of Dr G’s evidence, 13 June 2024, p 41.
[54] Transcript of Dr G’s evidence, 13 June 2024, p 42.
[55] Transcript of Dr G’s evidence, 13 June 2024, p 42.
[56] Transcript of Dr G’s evidence, 13 June 2024, p 43.
[57] Transcript of Dr G’s evidence, 13 June 2024, p 43.
[58] Transcript of Dr G’s evidence, 13 June 2024, p 43.
[59] Transcript of Dr G’s evidence, 13 June 2024, p 45.
Other evidence
The mother gave her evidence under cross-examination in a forthright and confident manner. Her answers were detailed and she made no concessions about suggestions put to her that she had also been abusive, threatening or violent during the relationship. The only concession made was that there had been arguments between the parties.
The mother presented and behaved since separation with a high level of organisation and planning which demonstrated assertiveness and confidence not entirely consistent with the demeanour one would reasonably expect of a chronically coerced and controlled individual. While her presentation was somewhat at odds with what would be expected of a victim of coercion or control arising from physical and verbal abuse as alleged, I find this likely, in part, explained by the opinion of Dr G of improved mental health and personal development leading to improved views of herself.[60] However, the mother’s presentation and evidence overall caused me to conclude that she was diminishing her contributions to the conflict during the period the relationship was breaking down.[61]
[60] Exhibit ICL2, report of Dr G dated 25 March 2024, p 79.
[61] Danton & Lancaster [2024] FedCFamC2F 1045 at [30]-[31], citing with approval Carlson & Fluvium [2012] FamCA 32 at [165], Lennon & Sanil [2020] FamCAFC 109 at [20], and Fox v Percy [2003] HCA 22 at [31] per Gleeson CJ, Gummow & Kirby JJ.
The father presented his evidence in a minimalistic and literal manner. When challenged during cross-examination his responses were consistent with passive aggression, which aligned to Dr G’s assessment of his personality traits.[62] Despite this, there was consistency and plausibility in his evidence, and he admitted the incidents of family violence in 2022.
[62] Exhibit ICL2, report of Dr G dated 25 March 2024, pp 79-80.
While the father admitted family violence in 2022, he denied widespread allegations of family violence, and coercion or control throughout the parties’ relationship. He maintained that the mother had also been verbally abusive and at times physically violent towards him or the children.
Whether the mother or father’s account of family violence is to be accepted is difficult to assess, particularly because mutual conflict, abuse and violence may arise as a response to a pattern of behaviour by the perpetrator.[63] However in any given case scrutiny of the evidence before the Court is necessary in order to make relevant findings.
[63] Australasian Institute of Judicial Administration Inc, National Domestic and Family Violence Bench Book (last updated July 2024).
The maternal grandmother also gave evidence in the mother’s case. While I do not make adverse findings about her credibility, her evidence was not objective as she clearly has alignment to her daughter. Accordingly, I give it little weight, except where it is consistent with objective evidence or evidence I prefer.
AGREED FACTS AND FACTS IN DISPUTE
Family violence and separation
The nature and extent of family violence perpetrated by the father was disputed. Despite this, the father agreed he had pleaded guilty to common assault.
The father had been charged with other offences of violence but ultimately no evidence was tendered in respect of those. Given his plea of guilty to the three counts of assault and to breach of the family violence order issued in late 2022 by living at the former matrimonial home from time to time until December 2022,[64] I have no hesitation in finding that the father perpetrated family violence against the mother on at least three occasions between August and December 2022.
[64] Exhibit A39.
The mother has made other allegations of family violence by the father prior to August 2022 and I heard the parties’ evidence about this. The mother claimed there had been specific episodes of physical violence perpetrated towards her by the father prior to 2022, in particular:
(a)In 2006, the father punched the top of an item of furniture and cracked it;[65]
[65] Mother’s affidavit filed 2 May 2024 at [227].
(b)In or around 2007, the father smashed a chair to pieces and damaged the kitchen bench with a weapon, which cracked it;[66]
[66] Mother’s affidavit filed 2 May 2024 at [228].
(c)In 2008, the father kicked her legs out from underneath her on three separate occasions and on one of these occasions, the bruising was such that she could not walk;[67]
[67] Exhibit I9, bundle of section 69ZW responses, Tasmania Police report dated January 2023, p 111.
(d)In 2009, the father was verbally abusive and denigrated her by telling her she “has no class” and is “a bogan”;[68]
[68] Mother’s affidavit filed 2 May 2024 at [221].
(e)In early 2014, the father told her to address him as “Mr Friseal” and he addressed her as “bitch” and other derogatory names;[69]
[69] Mother’s affidavit filed 2 May 2024 at [223].
(f)Between 2014 and 2022 the father destroyed her personal possessions by burning, throwing or cutting them;[70]
[70] Mother’s affidavit filed 2 May 2024 at [222] and [225].
(g)In or around 2017, the father began pressuring her to initiate contact with other men;[71]
[71] Mother’s affidavit filed 2 May 2024 at [229].
(h)The father increased his assaults of her in 2019, including throwing her out of the house on numerous occasions, either by use of physical force, pulling her hair, verbally abusing her and insisting she leave, or throwing her belongings out the door;[72]
[72] Mother’s affidavit filed 2 May 2024 at [233]-[234].
(i)The father’s verbal abuse of her escalated between 2019 and 2022, and involved standing over or cornering her, shouting insults or yelling in the car nonstop for an hour;[73]
(j)The father frequently slapped her across the head between 2020 and 2022;[74]
(k)In early 2021, the father threw her phone away and destroyed the replacement phone she bought such that she was unable to use it;[75]
(l)The father insisted she eat regardless of whether she was hungry with the aim of making her put on weight and made her drinks that he told her he had crushed antidepressants into;[76]
(m)She locked herself in the bathroom and the father hit the door with a weapon, yelling at her to open it and then slapping her after she did so;[77]
(n)The father made her stay in a hotel alone for a week to do “self-improvement”;[78]
(o)During 2021 and 2022, the father punched her if she did something that upset him and would specifically punch her in the same spot;[79]
(p)The father threatened to call an animal welfare agency about the animals or call child safety about her parenting;[80]
(q)In early 2022 the father told her she was making him suicidal and that he felt like killing himself, and said this in front of the children.[81] Further, in early 2022 he grabbed her by the hair and threw her to the ground, and repeatedly punched her thighs;[82] and
(r)In 2023 the father manipulated the events relating to the family pet being run over, effectively causing coercion or control of the mother and the children.[83]
[73] Mother’s affidavit filed 2 May 2024 at [255].
[74] Mother’s affidavit filed 2 May 2024 at [238].
[75] Mother’s affidavit filed 2 May 2024 at [231].
[76] Mother’s affidavit filed 2 May 2024 at [244]-[246].
[77] Exhibit I9, bundle of section 69ZW responses, Tasmania Police report dated January 2023, p 111.
[78] Mother’s affidavit filed 2 May 2024 at [251].
[79] Mother’s affidavit filed 2 May 2024 at [232].
[80] Mother’s affidavit filed 2 May 2024 at [253].
[81] Mother’s affidavit filed 2 May 2024 at [254].
[82] Exhibit I9, bundle of section 69ZW responses, Tasmania Police report dated January 2023, p 111.
[83] Father’s affidavit filed 27 May 2024 at [51]; mother’s affidavit filed 2 May 2024 at [67] to [69]; and Exhibit I9, relevant s 69ZW extracts of Tasmania Police.
The father admitted some of the allegations but denied others,[84] or in effect stated that the mother had embellished things said or done by him to portray them in a threatening or violent manner.[85]
[84] Father’s affidavit filed 27 May 2024 at [115] to [135].
[85] See, eg, father’s affidavit filed 27 May 2024 at [129] and [134].
In relation to the mother’s many allegations of family violence perpetrated by the father prior to 2022, I am not persuaded of then on the balance of probabilities because:
·There are express denials by the father in his evidence and I give considerable weight to these because he has made admissions where the facts are not in dispute;
·Where there are partial admissions by him, I accept that the incidents arose in the context of situational disputes between the parties and not as part of a concerted pattern of behaviour by the father, noting there is nothing in his history of charges or convictions in New South Wales or Western Australia where he previously resided to suggest a prevalent and continuing history of violence or coercion;
·I find on the basis of the medical records, that both parties were experiencing psychological symptoms due to the deterioration in the marriage from 2020 onwards, causing me to infer that there were mutual actions at play in causing the marital friction and conflict;
·The evidence establishes that the mother, not the father, controlled the family finances;
·Most significantly, the mother has been starkly inconsistent about the period over which she was allegedly subjected to family violence perpetrated by the father, claiming 15 years, numerous assaults in 12 months and later stating it was four years.[86] In addition, the mother has reported some instances of violence by the father to police but not deposed to them in her affidavit evidence; and
·Despite having taken the opportunity to update police on historical allegations of family violence, it was only during her oral evidence in chief that the mother alleged a bruise to her chest, which she had previously reported to her general practitioner in July 2020 as being caused by an “[injury] from [an animal]”, had been the result of the father punching her. This was denied by the father and I give considerable weight to the denial because it is to be reasonably expected that a serious incident of this nature would have been reported to the police in her updates.[87]
[86] Exhibit ICL18, supplementary report of Dr G dated 30 September 2024 at pp 2 and 5.
[87] Exhibit I9, bundle of s 69ZW responses from Tasmania Police.
The evidence in relation to the father’s conviction for breach of the family violence order at [13] to [24] of his affidavit filed 27 May 2024 is unchallenged. This evidence is also consistent with the text messages exchanged between the parties immediately after the children went to New South Wales to spend time with the paternal family.[88] That is, they corroborate those communications occurred about reconciliation and trying to make the marriage work.
[88] Exhibit A40.
As the father’s evidence was corroborated by information the mother provided to the M Clinic on 28 October 2022,[89] I accept that he attended the former matrimonial home either at the invitation of the mother or with her consent until the dispute occurred in December 2022, which led to their final separation. Although the mother stated she had asked the father to leave many times, that statement is inconsistent with her report to the M Clinic.
[89] See [30](w) of these reasons and Exhibit ICL18, supplementary report of Dr G, p 2.
In the lead up to the father sending the children to New South Wales in December 2022, the text communications between the parties do not reflect a power imbalance in favour of the father.[90] Instead, they demonstrate that the mother avoids responding to questions about reconciliation, the father responding to multiple enquiries by the mother, and the mother giving directions about payment of expenses, making enquiries about pleas to police charges and other matters. The content and style of the mother’s communication is not indicative of her being coerced or controlled by the father.
[90] Exhibit A40.
Both parties give different accounts of final separation in December 2022. I largely prefer the accounts of the father to that of the mother because they are partly corroborated by the mother’s affidavit concerning things the children said and by statements made by the children to police immediately upon their return to Tasmania. Accordingly, I find that:
·The mother was agitated;
·The mother lectured and yelled at the children;
·X called her mother a liar and accused her of abusing the children;
·The mother was verbally abusive towards the children, including referring to Y as toxic and X as dumb;
·The children’s reactions and statements demonstrate that they sided with the father. The mother agrees she left the family home and I am satisfied she likely threatened not be there when the children returned;
·The children remained in the father’s care until they happily left for New South Wales in December 2022; and
·The children had phone contact with the mother in December 2022, including discussions about possible travel to New South Wales.
If events in December 2022 had occurred as stated by the mother, it is implausible that she would not have made reports to police of further assaults and violence by the father towards her because she had made previous reports to police. Yet no such reports exist in reference to the events of December 2022 and the days following. Instead, the only information she gave police relevant to this time was that the father had been staying at the family home in breach of the police family violence order.
The mother has given extensive and sometimes detailed evidence of a long history of controlling or coercive behaviour by the father, and I accept that in hindsight the mother regards some of the father’s conduct as coercive or controlling. But she did not state in evidence that at the relevant times she was commanded, dominated or overborne by acts or statements which were contrary to her will. Overall, the finding I make is that the parties’ relationship deteriorated and in the last few years was marred with mutual grievance and dissatisfaction that eventually escalated to physical violence. I consider that the mother has given a narrative of pervasive coercion or control by the father formulated in retrospect and that is somewhat inconsistent to findings made on the evidence which I have preferred or considered more reliable.
I find that the relationship since 2020 was characterised by frequent arguments, mutual verbal abuse, yelling and some physical violence, which sadly and inappropriately are common in marital breakdowns. I am also satisfied that much of this was witnessed by the children, noting they were often in the home because they were home schooled, but their attitudes and views towards the mother reinforce the conclusion that the conduct was not confined to the father.
I agree with the submission of the ICL that it is not possible or necessary to make findings about each of the historical allegations made by the mother and referred to at [39] of these reasons. It is sufficient to find that I am satisfied that there is little risk of future physical violence, coercive control or any other family violence being perpetrated by the father towards the mother, noting that there has been no contact or communication between them for many months.
There is no evidence of physical violence or inappropriate discipline by the father towards the children and I find accordingly. However, I accept that the children have witnessed the parents mutual conduct as described in these reasons at [45] to [48], which is likely to have caused them emotional harm.[91]
[91] See, eg, Exhibit ICL16, Family Report dated 24 January 2024, [90]; and transcript of Dr G evidence, 13 June 2024, pp 10-11.
The admitted family violence by the father arose predominantly in the context of the breakdown of the marriage and has not reoccurred since separation. I accept Dr G’s views that the father is unlikely to pose a threat or risk of physical harm to either the mother or the children. The father has not communicated with the mother and admitted he had not encouraged the children to spend time with or communicate with her. This is entirely consistent with the passive aggressive traits and defence response when CSS attempted to prevent the children returning to his care.[92]
[92] In February 2023 and 3 March 2023: affidavit of Ms F filed 4 November 2024 at [40]-[43], [49], [52] and [66].
The parties’ mental health
I accept that the father’s mental health was particularly poor and compromised in December 2022 and led to his admission to N Hospital for psychological and other treatment in early 2023.[93] The father also has history of anxiety and depression since 2020, including suicidal ideation, as evidenced in the records of his general practitioner.[94]
[93] Exhibit ICL2, report of Dr G dated 25 March 2024, pp 49-50.
[94] Exhibit A29.
Accepting Dr G’s expert views, I find that the father has a partly resolved adjustment disorder with mixed anxiety and depressed mood.[95] Further, that he has a mental health disorder, but whether this has resulted in coercion or control of the children and influence on their views is less clear according to Dr G.[96]
[95] Exhibit ICL2, report of Dr G dated 25 March 2024, p 79.
[96] Exhibit ICL2, report of Dr G dated 25 March 2024, p 79.
I find that in December 2022, there was a general discussion between the mother and father about the children travelling to New South Wales to spend time with paternal family, but the mother did not expressly agree. Based on the mother’s own evidence her concern was largely based on the children travelling unaccompanied and it is unclear whether she clearly conveyed to the father that she objected to the children visiting his family.[97]
[97] Mother’s affidavit filed 2 May 2024 at [14].
The father arranged for the children to travel to New South Wales unaccompanied and neglected to inform the mother of that travel until the children left in December 2022. I accept that his failure to inform the mother of the children’s travel was likely contributed to by his poor mental health, poor communication and passive aggressive and other personality traits, as opined by Dr G.[98]
[98] Exhibit ICL2, report of Dr G dated 25 March 2024, pp 76, 78 and 79.
The father had another episode of acute mental health difficulty in early 2023, but acted protectively of the children by seeking treatment and placing the children in the care of a friend.[99]
[99] Affidavit of Ms F filed 4 November 2024 at [102].
The first reference to the mother experiencing mental health symptoms appears in O Medical Clinic records for a consultation in July 2020 and notes recent anxiety and her wishing to have a mental health care plan due to recent life events and tensions in her relationship. These reports support the findings made earlier in these reasons about the nature and duration of family violence. Dr P provided the mother with a mental health care plan in July 2020.[100]
[100] Exhibit A15.
Notably, the experience of poor mental health by the mother and father coincides in July 2020.[101] I find this is reflective of likely escalation of trouble in the marriage from at least mid‑2020, but the parties’ difficulties are mutual and it is not possible to be satisfied that one party is the perpetrator or victim from the contemporaneous medical records.
[101] Exhibit A8, Exhibit A15 and Exhibit A29.
The mother’s medical records also disclose that she suffered postnatal depression and reported suicidal ideation in 2020.[102] I accept the views of Dr G that she presently suffers from a resolving adjustment disorder with anxiety and experiences current psychological symptoms qualifying for a diagnosis of post-traumatic stress disorder.[103]
[102] Exhibit A15 at pp 3-4.
[103] Exhibit ICL2, report of Dr G dated 25 March 2024, p 79.
Coercion or control by influence or control of the children
The mother asserts that the father has engaged in behaviour to adversely influence the children’s views of her and to portray her as abusive and controlling of them and him. The mother’s case is largely, but not wholly, supported by the views of the Court Child Expert (“CCE”) and evidence of CSS’ witnesses. As examples of their evidence, the following summary is provided:
(a)The CCE maintained that the older children’s views in interview appeared rehearsed and were unnaturally similar to the views expressed by their siblings, and attributed her concerns about the veracity and independence of their views to this.[104] However, under cross examination by counsel for the father she conceded that the fact that the children had been home-schooled together for a long period could have been a cause of this type of presentation;[105]
[104] Transcript of CCE evidence, 7 November 2024, pp 4-5.
[105] Transcript of CCE evidence, 8 November 2024, p 9.
(b)The CCE considered their minimal explanation or lack of justification when questioned about their strong views towards their mother to be indicators that their views may have been influenced;[106]
[106] Transcript of CCE evidence, 7 November 2024, p 5.
(c)While accepting that transitioning the older children to the mother’s care would be highly challenging, complex and would likely require a longstanding, high level of therapeutic intervention by CSS (whether in Tasmania or Western Australia), the CCE maintained that the significant risk issues warranted the children having no contact with the father but gave no rational logic or reasoning for this;[107]
[107] Transcript of CCE evidence, 7 November 2024, pp 7-8.
(d)Despite agreeing there was evidence the older children would abscond and place themselves at risk, no matter where they were in the country, she maintained the risks posed by relocation and removal of the children from the father’s care were significantly less than allowing them to remain living with him.[108] Again no explanation or reasoning was given for this assessment;
(e)The CCE described the risks to the older children if they remained in the father’s care to be their mental health, their ability to be able to flourish under his care and their access to services or supports;[109]
(f)When examples of family violence admitted by the father were put to her, the CCE stated that the inconsistency between what he told her and his evidence raised concerns about his ability to reflect on his behaviour and whether such behaviour may reoccur in the future.[110] However, I note that these inconsistencies were not identified by the CCE;
(g)Noting the additional information she was provided between writing her report and giving evidence at the hearing, the CCE confirmed her views and concerns were unchanged and she remained concerned the father was manipulating information he presented to the children and utilising them as an extension of his coercive control of the mother;[111]
(h)The CCE accepted the mother’s statements about the children’s exposure to a coercive or controlling environment and family violence and attributed their mistrust of professionals, reliance on the father and resistance to spending time with the mother to this exposure;[112]
(i)Ms C stated it appeared the reason the children had run away from the mother and returned to their father following the failed CSS interventions was because the father had convinced them the mother was unable to care for them;[113]
(j)Ms C stated that CSS were aware of “scripts” the father had taught the children about being abducted that made them fearful of CSS and unwilling to return to the mother’s care.[114] The source of this information was said to be Z, via her counsellor, and Ms C agreed there were no other sources that had confirmed these conclusions;
(k)Ms C confirmed she considered the father to be an extreme example of a coercive and controlling partner and father, posing both a current and future danger to the children.[115] She believed the children were not willing to “risk their father’s anger” by stepping outside their life with him;[116]
(l)When specifically asked about information provided and relied upon by CSS regarding Y and X, that they were being isolated and their progress curtailed, Ms C conceded that CSS did not appear to have recently spoken to their school or the children themselves.[117] Further, she agreed that the evidence from the school principal in his affidavit was very positive;[118] and
(m)Ms C stated that she believed the father had not engaged the children with a counsellor at Q Organisation to genuinely attempt to support them but rather to “make a point” about their fears of being abducted.[119]
[108] Transcript of CCE evidence, 7 November 2024, pp 8-9.
[109] Transcript of CCE evidence, 7 November 2024, p 9.
[110] Transcript of CCE evidence, 7 November 2024, pp 14-15.
[111] Transcript of CCE evidence, 7 November 2024, p 15.
[112] Transcript of CCE evidence, 8 November 2024, p 5.
[113] Transcript of Ms C evidence, 11 June 2024, p 5.
[114] Transcript of Ms C evidence, 11 June 2024, p 10.
[115] Transcript of Ms C evidence, 11 June 2024, p 12.
[116] Transcript of Ms C evidence, 11 June 2024, pp 13-14.
[117] Transcript of Ms C evidence, 11 June 2024, pp 17-20 and 22.
[118] Transcript of Ms C evidence, 11 June 2024, p 20.
[119] Transcript of Ms C evidence, 11 June 2024, p 24.
The father conversely asserts that the older children have formed their own views and prefer to live with him because of their experience of the mother and the actions of CSS, which they experienced as threatening and were fearful of. I consider the father’s case is largely supported by the evidence of Ms F, which I prefer to the evidence of either Ms C or Mr L for reasons given below.
Ms F presented her evidence in a frank and honest manner based on facts or information within her knowledge, whereas Ms C and Mr L generalised, were defensive, gave evidence largely based on speculation, assumption or conclusions drawn without factual basis, and expressed views beyond their expertise and qualifications, being social workers rather than psychiatrists.[120] For example:
(a)As noted above in these reasons at [10](d), Ms C gave evidence that CSS were concerned that any interventions could lead to the father seriously harming himself, the children or the mother, or even kill them;
(b)Mr L initially stated that CSS had been involved in a discussion with Z’s counsellor at the R Organisation, Ms S, about X’s “deterioration” over a period of some months. He subsequently conceded that Ms S had likely obtained this information from the mother and that the mother had spent little, if any time with X over the relevant period. Further, he conceded that X’s school had not raised any concerns regarding a “deterioration” and that rather, X’s school principal had confirmed he was not concerned about her absences from school or her presentation otherwise; and
(c)Mr L expressed similar concerns to Ms C, being that CSS was concerned about the level of control the father appeared to have over the older children and that they lacked the ability to respond with their own views. After expressing such a concern, he then conceded he was not aware that CSS had followed up with X and Y’s counsellors or their school, admitting these enquiries would have been helpful in reaching a decision on whether the children’s wishes had in fact been controlled or coerced.
[120] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and Dasreef v Hawchar (2011) 243 CLR 588.
Further, Ms C admitted that their formulation of the father as a perpetrator of extensive family violence who posed a serious threat of killing the children or the mother was a “fear”, and the formulation was without evidence, assessment or investigation.[121] I add it was formulated without necessary expert psychiatric opinion.
[121] Transcript of Ms C evidence, 11 June 2024, pp 28-29.
Notably, under cross-examination Ms F confirmed that the older children had consistently resisted CSS’ attempts to remove them to the mother’s care. She agreed that, as far as she was aware, the children had enjoyed spending time with their mother until the first attempt by CSS to remove them in early 2023, and that this attempt could have resulted in trust issues between the older children and the mother.
Accordingly, I reject the position adopted by CSS that the father is the perpetrator of longstanding family violence, including a concerted pattern of coercion or control.
Since about mid-2023, the youngest child has expressed a desire to live with the mother and has been enabled and assisted to do so by CSS and actions taken by its staff under the Children, Young Persons and Their Families Act 1997 (Tas).
As the father does not oppose the youngest child living with the mother, there is no need to focus on findings about what is in her best interests and it is sufficient to say that the evidence satisfies me that the youngest child is physically safe, satisfactorily cared for by the mother and there is no foreseeable risk of harm to her in the mother’s care, other than the possibility of permanent estrangement from the father. The youngest child’s attitude to her father as expressed ought to be given some weight in view of the fact that she has lived only with the mother for about 18 months and has experienced that positively, based on the evidence of Ms F, Ms S, and the R Organisation records.[122] However, I also note that it appears she has been exposed to the mother’s narrative about the father due to the nature of questioning by and discussion with CSS staff, the mother, and Ms S.
[122] Exhibits ICL5, ICL7, ICL8, ICL9, ICL10 and ICL11.
To assess the parties’ competing claims regarding the two older children, it is necessary to closely scrutinise the evidence of what occurred from December 2022, as this is a critical and pivotal time when the older children began making statements demonstrating grievances with their mother and expressing their wishes.
I have already found that the father sent the children to New South Wales without the mother’s express consent. For the following reasons, I do not accept the inference in the mother’s case that the father intended this to be permanent, that it was contrary to the children’s wishes or that he would not comply with orders that the children spend time with the mother in Tasmania in the future:
·The father did not travel with the children to New South Wales and was experiencing very poor mental health at the time, so his actions were likely protective of the children by shielding them from the effects of his psychological symptoms in circumstances where the children did not want to be in the mother’s care due to the events of December 2022;
·The recordings of telephone discussions between the children, the mother and maternal grandmother while the children are in New South Wales reflect them being happy and content, consistent with being on a holiday with paternal family. Although there was a suggestion that the recordings were illegally or improperly made and should not be received in evidence, ultimately this objection was not pursued and the recordings were marked by the Court as an exhibit.[123] Regardless, I consider the desirability of admitting the evidence outweighs not receiving it, because it has probative value and it is not disputed that the recordings evidence the children speaking with the mother and maternal grandmother by telephone while they were in New South Wales. Further, there is no suggestion that the person who made the recordings is subject to any proceedings for an offence and that person could well be a child;
·The father had booked and paid for a return airfare for the children;[124]
·The father had agreed that the children would spend time with the mother after arriving back in Tasmania and he facilitated this, even though no orders had been made to this effect;[125] and
·During the time the children were in New South Wales, the father was being treated for mental health symptoms, including being hospitalised and there is no evidence that he was communicating with the children to influence their views of the mother. More likely, he was experiencing an acute psychological episode and his treatment was such that his communication with the children was probably limited.
[123] Exhibit ICL19. See also s 138 of the Evidence Act 1995 (Cth).
[124] Exhibit A25.
[125] See, eg, affidavit of Ms F filed 4 November 2024 at [39] and affidavit of the father filed 27 May 2024 at [33]. Noting the first interim parenting orders for the children were made on 24 January 2023 and the children were spending time with the mother.
I am satisfied that the two older children formed their own views about preferring not to spend time with the mother due to their experience of her, including in the lead up to the parties’ final separation. I consider that the children genuinely felt the mother had treated them and the father poorly and so chose to remain with the father. This conclusion is supported by the following:
·The children were expressing their own opposition to the mother and support of the father at separation, when he was staying at the family home as found above at [38], and until that time, there were no allegations of coercion or control of the children by the father. It is implausible that the older children, aged 13 and 14 at the time, made the spontaneous statements, which the mother herself admits they did,[126] other than by their own accord and will. This is consistent with the mother stating to her treating doctor in July 2022 that she had no concerns for the safety of the children when she disclosed family violence towards her;[127]
·I largely reject the evidence of the mother about what occurred in December 2022 where it is inconsistent with the evidence of the father and police records;
·The children remained with the father after December 2022 and they communicated by phone with the mother, yet there is no evidence of them expressing any desire to return to live with her. I consider the children were of an age and maturity that they were able to express such a desire had they wished to, and I prefer the evidence of the father that he did not involve himself in telephone calls between the mother and the children;[128]
·The mother and maternal family had a number of telephone calls with the children while they were in New South Wales and probed them to have conversations. I infer the children were reluctant to have these conversations based on the recordings admitted into evidence, which demonstrate frequent questions by the maternal family and reluctant or brief answers from the children.[129] I do not accept the evidence of the maternal grandmother that the conversations at this time were “lovely and free flowing”;[130]
·The text messages from the maternal grandmother,[131] although perhaps well intentioned were not helpful and in my view are capable of being interpreted by the children as intrusive and overbearing because of the number and frequency of them;
·The children told police in early 2023 that the mother was a liar and the father had been caring for them. This is consistent with X’s statements and the evidence of the father that the children remained in his care following the dispute with the mother in December 2022 because she had left the family home, the evidence of the mother herself and the findings above at [45]; and
·The father was not present at City B Airport when the children returned and did not attempt to interfere with the agreed arrangement that the mother would collect them. Instead, the police contacted him when the children refused to go with the mother and maternal grandmother.[132]
[126] See, eg, affidavit of the mother filed 2 May 2024 at [276].
[127] Exhibit ICL18, supplementary report of Dr G, pp 3-4.
[128] Affidavit of the father filed 27 May 2024 at [25] and affidavit of the mother filed 2 May 2024 at [14].
[129] Exhibit ICL19.
[130] Affidavit of Ms J filed 18 January 2023 at [8].
[131] Exhibit A1.
[132] Exhibit I9, bundle of section 69ZW responses, Tasmania Police report January 2023, p 112 at “… –2023”.
Following the children’s return from New South Wales, I find that the involvement of CSS entrenched the older children’s views of their preferred living arrangements as they felt fearful and threatened. It caused alienation of the children towards to the mother who was aligned with CSS and had signed an agreement giving CSS powers in early 2023, something of which the older children were aware.[133] The motivation for the mother doing this is unknown. As she had already commenced proceedings in this Court in January 2023, there was already a proper forum for resolving the parenting issues.
[133] Affidavit of Ms F filed 4 November 2024 at [11].
The extent to which CSS went to remove the children from the father and place them with the mother contrary to their wishes given their expressed experience of the mother, their age, maturity and preference was also likely harmful to them and destabilising.
It ought to have been reasonably apparent to CSS from the first interaction in February 2023, when they attempted to send the children away with the mother, that they ought not force this without first thoroughly investigating the veracity of the mother’s widespread allegations and obtaining expert opinion justifying their actions. Instead, they appear to have acted on wholesale acceptance of the mother’s claims, assertions and their unqualified opinions that portrayed the father as highly dangerous and an unacceptable risk. Ms F stated she interpreted the children’s responses in early 2023 to be paranoid and inferred that a “safety plan” the children spoke of was premeditated by the father as a means of control, but this ignores the reported experiences of the children prior to and at separation and their reactions at City B Airport in early 2023.
It is likely that the older children have felt supported and safe with the father because of their experience of him over many years and the fact that he has respected their wishes. I find that they have genuinely preferred living with him. I do not accept that the father has coerced or controlled them in this regard.
The statements made by Y to Ms F in early 2023 are telling. I accept the statements were Y’s genuine views and consistent with what he expressed from the outset to police. The statements recorded by Ms F at [101](q) to (s) and [133] of her affidavit filed 4 November 2024 are consistent with the initial statements of the children that the mother was also implicated in the conflict at separation, that she was not truthful and that she had abused the children during the relationship.
Since CSS’ involvement, as evidenced by Ms F’s affidavit, the younger child has formed a different attitude and view of the father to the older children. This too suggests that the children have not been influenced by the father. Rather, the older children are of an age and maturity that exposed them to greater knowledge and awareness of their parents’ conflicts and conduct, which have informed their attitudes.
The actions of CSS instigated by the mother have had a lasting and detrimental effect on the two older children, and this has further aligned them with the father.
The children’s current circumstances
The youngest child Z has been in the sole care of the mother since 18 May 2023 as a result of the actions of CSS, of which the father had not been given prior notice.[134] All evidence before the Court is to the effect that Z is cared for and safe, although involved in the allegations the mother makes against the father.[135]
[134] Affidavit of Ms F filed 4 November 2024 at [137].
[135] Affidavit of Ms F filed 4 November 2024 at [152], [154] and [161]; Exhibits ICL9 and ICL10, case notes from the R Organisation dated between October 2023 and June 2024; and Dr G’s views as summarised above at [30](w) of these reasons.
Z has expressed a wish not to have contact with the father but has conveyed that she misses her siblings. Her views of the father are likely influenced by the relative calm, stability and bond with the mother who has devoted herself entirely to Z since May 2023. The involvement of Z in discussions with CSS, the mother and R Organisation about the mother’s allegations against the father, which I have not wholly accepted, has also likely contributed to her views.
The older children are in the sole care of the father and have now formed entrenched views about wanting to remain residing with him and having no contact with the mother. They have been in the father’s care since about March 2023 and he has ensured that their essential needs are met, including attending school. Although the mother has been critical of the father’s care of the children, I do not wholly accept her evidence as will be apparent from the reasons that follow.
EVALUATION OF RELEVANT CONSIDERATIONS
Arrangements to promote the safety of the children and the parents
There is extensive evidence that all three children are, at present, physically safe and cared for living respectively with the father and mother. Although there were assertions by Ms C and Mr L that the father may physically harm the older children and is capable of harming them or the mother, this is pure unqualified speculation and contrary to expert psychiatric evidence before the Court. It is unreasonably provocative in the context of the history of intervention by CSS and evidence discussed at [62](a), [62](c), [63] and [71] of these reasons. In my view, had CSS genuinely believed this they would not have made the assessment that the children were at greater risk due to running away from the mother than by leaving them with the father in June 2023.[136] There has been no plausible or reasonable explanation for the change in CSS’ assessment of risk to the older children between June 2023 and May 2024.[137]
[136] Affidavit of Ms F filed 4 November 2024 at [147].
[137] Referring to the assessment as demonstrated in Exhibit ICL1, the interagency meeting minutes.
I accept the views of Dr G which are, overall, to the effect that the father likely does not pose a physical risk of harm to the children. This is consistent with the fact that there have been no reports of physical abuse of the children by the father other than an allegation that the father engages in sport with the girls to the point that they cry out for help.[138] Although this allegation is reported to be the subject of a notification by a professional, it is plainly hearsay and the veracity of the source and information being demonstrative of physical violence to the children is limited. I consider it likely that it has arisen from a statement made by the mother and accordingly, I give it little weight. There is certainly no evidence of the children being treated for an injury or hospitalised.
[138] Affidavit of Ms F filed 4 November 2024 at [14]; and Exhibit I9, bundle of section 69ZW reports, CSS report dated 13 January 2023, p 115.
I am satisfied that as the parties’ relationship deteriorated from around 2020, all children have been exposed to witnessing serious and escalating verbal abuse between the parents that culminated in physical violence, all amounting to family violence. I cannot be satisfied that the father has been the sole perpetrator given the statements made by the older children and their attitude to the mother since the time of separation.
I am conscious that victims of family violence and particularly coercion or control may act violently in retaliation but there is insufficient evidence to persuade me that the mother’s behaviours described by the children were purely retaliatory. Given the evidence of both parties experiencing psychological symptoms at the same time in 2020, I infer that there was a degree of mutuality to their conduct, except that the father became more physically violent in September 2022.
The children are not presently experiencing any risk to their immediate safety. Although the mother, the ICL and CSS claim that the father is a risk to the older children’s emotional safety due to him adversely influencing their views, alienating them from their mother and community, and acting coercively or controllingly, I do not accept this for reasons already given and because of the evidence of Mr K and Mr L. Their evidence was that the older children have a small circle of friends and participate in school and other activities where they are in the view of persons who would be obliged to make mandatory notifications. There have been no new established notifications concerning the children for in excess of about 18 months and no professional or mandatory notifications either.
As the older children refuse to have contact with the mother and the youngest child refuses to have contact with the father, I accept that there is risk of emotional harm in the future from the fracturing of their relationship with the relevant parent.[139] However, this potential harm is capable of being prevented or ameliorated with appropriate therapeutic supports.
[139] See, eg, transcript of CCE evidence, 8 November 2024, p 27.
The psychological symptoms of both parents have improved since mid-2023 when the interventions of CSS ceased, and the children then fell into a stable living arrangement consistent with their expressed wishes.
In view of the reasoning above at [69] to [87], it is clear to me that the current living arrangements are promoting the safety of all three children, the mother and father.
A change to the current living arrangements according to the proposal advanced by the mother, the ICL and CSS is highly likely to destabilise the current satisfactory and safe, although imperfect, arrangements. A deterioration in the emotional state of the older children and the father is likely to occur if the Court were to order that the older children live with the mother as that is the consensus of the expert evidence before me. This likely deterioration will be more than fleeting or temporary and the risk to safety for all is unwarranted when current arrangements are sufficiently stable and safe and will be for the foreseeable future.
Further, if the older children are forcibly removed from the father’s care, regardless of how that may occur in practical terms including with all the supports offered to the mother by the CSS and her family, I consider it highly likely that they would take independent action to remove themselves from the mother’s care given their history of doing so previously. This will expose the children to the significant risks inherent with being teenagers at large in an unfamiliar state and environment, possibly on the street with limited funds, transport, clothing and food, and likely seeking to avoid authorities including child safety officers, who they clearly do not trust.
I am not persuaded that the plan now proposed by the mother and CSS is materially different to the failed attempts in the past and I consider it is fraught with both physical and emotional danger for the two older children. The plan is also premised on a conclusion about the father and the risk of harm he presents to the children that I have rejected.
In addition, even if the older children did not seek to abscond or flee from the mother’s care, it is highly likely that they will rebel, act out and cause conflict with the mother, which will impact emotionally, if not physically, on all three children, including Z.[140]
[140] Transcript of CCE evidence, 8 November 2024, pp 29-30.
The mother, ICL and CSS were also critical of the father’s ability to ensure the children’s medical, psychological and health needs are met. Consistent with the father’s passiveness and permissiveness, I am satisfied that he is not as proactive as the mother would be in ensuring required treatment occurs and appointments are kept. However, there is no evidence that his actions although somewhat delayed have been neglectful or have harmed the children. Instead, the examples given by the mother reflect a difference of opinion in relation to the priority of the care required and the father being more likely to give greater consideration to the attitudes of the children.
Views of the children
In the context of what the children have witnessed, the instability and threats to their living arrangements, their bonded relationship with the father and their safety, it is likely they have all experienced some degree of emotional harm, the long-term effects of which are unknown. To prevent exacerbation of this harm, it is necessary to give considerable weight to the views each have expressed.
The older children consider that their mother is a liar, that she has verbally if not physically abused them and that she has caused the father alone to be blamed for the events around separation and since. In my view, ignoring these strongly held views,[141] will entrench the older children’s distrust of the mother, of authority and their belief that they are not being heard. This presents a greater risk of emotional harm which is to be avoided.
[141] In the Marriage of Wotherspoon & Cooper (1981) FLC 91-029.
I accept that the older children are of age and maturity to make the assessment they have made and choose not to presently spend time with their mother.[142] If forced against their views to do so, I consider this will further fracture their relationship with the mother, possibly losing the opportunity to repair that relationship in the future.
[142] In the Marriage of Boman (1981) 7 Fam LR 586; and Mitchell v Mitchell (1983) 9 Fam LR 267. See also, the summary of Dr G’s evidence at [30](aa) of these reasons.
I have rejected the proposition that the older children’s views are influenced by pressure, coercion or control by the father, and this is also relevant to giving their views considerable weight. I accept the father has done nothing to promote or encourage the older children to communicate and spend time with the mother since February 2023, but equally there is no evidence that the mother or CSS have done anything to promote the younger child communicating or spending time with the father.
Regarding the younger child, her views are based on stability and current alignment with the mother and are consistent with her age, development and maturity. Although she does not currently wish to have contact with her father, this may be a temporary situation. To some degree her views are protective of the mother whose experience she has not been shielded from given CSS’ involvement and the level of involvement of the mother in her counselling with R Organisation.
Adopting the intuitive synthesis approach required and discussed in R & R [2000] FamCA 43, I give great weight to the older children’s wishes and moderate weight to those of the younger child.
Developmental, psychological, emotional and cultural needs of the children
The evidence of the parties, corroborated by CSS’ evidence, is that both parents accepted the children needed psychological support post-separation but could not agree who should provide it, which led to the children’s engagement being delayed. This is consistent with the view Dr G took of what had occurred.
The mother stated that it was inappropriate for the children to be seen by Ms T at Q Organisation because she had initially been engaged with the father for counselling. That counselling ceased and the children were instead supported through the school counsellor. In my view, the father arranged for the children to see Ms T because he knew and trusted her, and he gave evidence that he intended to prioritise her seeing them, rather than himself. The mother did not want them seen by Ms T because she saw her as aligned to the father.
It is unfortunate that the parents could not cooperate and communicate effectively to ensure the children were seen by a suitably qualified psychologist, but this is not unusual in the context of their circumstances and consistent with Dr G’s opinion that the parents could not make joint decisions. Regardless, the undisputed evidence is that the father did arrange for the children to speak with a Ms U to provide some support to the children in early 2023, although the mother also seems to have objected to this. The children also had support from their school counsellor and pastoral care.
Similarly, each parent had different views about schooling, and I find that the father did not act coercively in enrolling the children at V School and was instead taking steps to ensure they attended school and were educated. However, consistent with his passive aggressive personality traits, I accept that he did not communicate directly with the mother about this. The mother was reluctant to concede that she knew of the father’s intention to enrol the children at V School prior to their starting. However, I find that she was aware of this on the basis of Ms F’s evidence, but did not agree to the enrolment for unknown reasons, instead wanting the children to be enrolled at W School.[143]
[143] Affidavit of Ms F filed 4 November 2024 at [85].
While ideally the parties should have directly discussed school enrolment and other needs for the children and reached agreement about such, in the face of their disagreements it was in the children’s interests for an enrolment to be made rather than them being absent from school indefinitely. It was important that the children’s education occur at a school and not at home as this had the benefit of formal structure and presence of educational professionals capable of giving objective oversight on how the children were progressing and coping.
Through their father, the children have aboriginal culture and identity. Little evidence was before the Court about the importance of this to the children during the relationship and I give some weight to this consideration on the basis that at least the younger child and therefore likely the older children self-identified as aboriginal.[144] There was no evidence about this from the father at all.
[144] Affidavit of Ms F filed 4 November 2024 at [154](i).
The children have Country Z culture and identity through the maternal family. It appears that they identify with their extended maternal family and have had a good relationship with them in the past but not presently. I take this into account and consider there may be benefit in the children having opportunity to explore and experience Country Z culture, however the older children are of an age where they may do this independently if they wish. The younger child has had the opportunity to continue experiencing Country Z culture because she resides with the mother who has an apparently good relationship with family, noting the evidence of the maternal grandmother and maternal aunt.
I give some weight to the children’s Country Z culture in determining the children’s best interests.
Based on the undisputed evidence of the children’s school principal, Mr K, I accept that the children have received pastoral care and support at their school. They have also received very limited counselling support.[145] Given the limited counselling or emotional support the older children have had and their experiences since late 2022 in the face of the parents’ conflict and marriage breakdown, they ought to be engaged with a qualified child psychologist.[146]
[145] Exhibit ICL20.
[146] Transcript of Dr G’s evidence, 13 June 2024, p 42-43, as summarised at [30](u) of these reasons.
The younger child has had extensive emotional support through R Organisation but I am not persuaded it has been entirely in her best interests. This is because the input of the mother in that counselling has entrenched the narrative that the father is a serious perpetrator of chronic and longstanding family violence, a narrative I have rejected.
Capacity of parents to provide for the developmental, psychological, emotional and cultural needs of the children
Although the father could be more assertive in ensuring the children had access medical treatment and health support, in view of the children’s ages it must also be recognised that their adolescent traits and maturity will cause treatment that is not willingly and happily undertaken to be ineffective and possibly counter-productive.
The mother seems highly motivated and intense in her desire to have the children attend to various health issues. I am satisfied she has capacity to attend to the developmental, psychological, emotional and cultural needs of the younger child. But in view of the reports and experiences of the older children referred to above at [45] and [102], the mother’s approach to parenting the older children will likely lead to conflict between them.
For the foreseeable future, I am satisfied that the father will satisfactorily although perhaps not promptly ensure the older children’s developmental, psychological, emotional and cultural needs are met.[147] This is supported by evidence given by Mr K about their progress and improved performance and attendance at school, friendships and social interactions. The claims by the mother and CSS contrary to this appear based on speculation and inferred because the father was not forthcoming in volunteering information. In recent times, the older children have spoken directly to Mr L and there is no suggestion that the father is neglecting their needs.[148]
[147] For example, engagement with general practitioner and paediatric services referred to by the father in cross-examination by counsel for the mother: Exhibit R3.
[148] Affidavit of Mr L filed 4 November 2024 at [28]-[31].
If the mother were to have all three children in her primary care, I consider she would struggle to manage all three children’s needs because of the challenging behaviours that can be expected of the older children.[149] This creates a real risk for deterioration of the wellbeing of all three children and the mother.
[149] See, eg, transcript of Ms C evidence, 11 June 2024, p 7; transcript of CCE evidence, 7 November 2024, p 9; and transcript of CCE evidence, 8 November 2024, p 31.
Benefit of children having a relationship with parents and extended family
The CCE was of the view that it would be of benefit to the children that they be primarily cared for by a nurturing and empathetic parent, considering the mother to be one and the father not based on their presentations to her and as described by CSS records.[150] This view was entirely formulated on the basis that the father had been a chronic perpetrator of family violence, including coercion or control. No alternative was considered as to why the children were traumatised and aligned to the father, a forensic exercise that the Court has now undertaken, reaching alternate findings to those premised by the CCE.
[150] Exhibit ICL16, Family Report dated 24 January 2024, at [90] to [95].
I find that unless the older children’s views of the mother and maternal grandparents improve there is no discernible benefit to them having a relationship.[151] There is benefit to the older children having a meaningful relationship with the mother in the future, but this seems only possible once the children have had adequate therapeutic support from a child psychologist.
[151] Exhibit ICL16, Family Report dated 24 January 2024, at [97].
There is benefit to the older children having a relationship with the father because despite the criticisms of him by the CCE, CSS and the mother, he has provided stability, accommodation and satisfactory care and attention to the children’s needs. This has occurred in circumstances where they have rejected it from the mother although having had ample opportunity through the interventions of CSS to remove themselves from the father if they assessed him to be unloving or uncaring and preferred to live with the mother.
The father will likely provide the children with opportunity to remain connected to the extended paternal family, with whom they spent enjoyable time in December 2022 and January 2023.
The younger child will benefit from the individualised care and nurturing provided by the mother since May 2023. The extended maternal family have spent time with her and this can be expected to continue in the future.
In the context of other relevant considerations referred to in s 60CC of the Act, due to the children’s current circumstances discussed at [77] of these reasons and following, this consideration is of less weight than others in determining what parenting orders are to be made in the children’s best interests.
Family violence including abuse and coercive control
I have made extensive findings about this consideration which is highly relevant to informing what orders should be made. I have not been persuaded that the father was or will in the future be a pervasive, long-standing and chronic perpetrator of family violence (including coercion or control).
More likely, the family violence emerged and developed in connection with the deterioration of the parties’ relationship from around 2020 onwards. Although the father was the perpetrator of physical violence, the context in which that occurred is informed by the older children’s attitude to the mother. This does not excuse the father’s conduct. However, whereas he admits his role and conduct consistent with the factual findings I have made, the mother steadfastly denied the children’s statements about her and I do not wholly accept her denial.
There was no time for the father to pressure or coerce the children into making the statements about the mother’s conduct towards them at final separation and their statements have been consistent since then. It is therefore hardly surprising that the children reacted as they did to CSS interventions, which were effectively based on the mother’s say-so, when there was no unacceptable or immediate risk to the children while they remained in the father’s care and were spending time with the mother after returning from New South Wales.
I give weight to the family violence perpetrated by the father but in light of all the current circumstances and the separation of the parties, I do not consider it poses a material risk to the children’s safety and welfare in the future. This conclusion is supported by the totality of Dr G’s views about risk because I have not accepted all the mother’s allegations of family violence.
ASSESSMENT AND DETERMINATION
In light of the factual findings and reasoned considerations to which I give greater discretionary weight, it is not in the older children’s interests for them to reside with the mother or for the younger child to reside with the father.
I am not persuaded that it is safe or in the best interests of all three children for there to be an order for them to relocate and live with the mother in Western Australia. That “plan” is not realistic and is fraught with physical and emotional risk to the children based on the earlier findings and reasoning above. The ICL submitted that the risk of the older children absconding or fleeing from the mother’s care was less in Western Australia than in Tasmania and this supported making the orders he sought. However, this submission isolates the risk assessment required by legal principles. Although the chance of the children absconding if they are in Western Australia may be less due to it being an unfamiliar environment, the nature of the harm if the risk eventuates will be far greater. The required risk assessment entails both assessment of the chance of risk of physical and emotional harm eventuating and the nature and extent of that harm.
The risk of harm and endangerment to the older children’s safety is too great if there were to be an order for them to live primarily with the mother in Western Australia. Although there is a risk of emotional harm to them if they remain in Tasmania living with the father, that being permanent estrangement from their mother, I consider this less harmful to them than the harm likely to occur both physically and emotionally in the high chance they abscond if in Western Australia living with the mother. Further, I consider that there is greater prospect of the children being prepared to spend time with the mother if permitted to decide this in their own time and on their own terms once they process their feelings towards her about what has occurred since separation.
Although declining to make the order sought by the mother will mean that the primary residences of the children will differ, I do not consider this unacceptable or contrary to their best interests in the circumstances of this case. There is a notable age difference between the two older children and Z, and they have been stable in this arrangement for about 18 months without obvious detriment, as assessed by objective markers such as school attendance and performance.
There is evidence that the older siblings miss the younger one and vice versa, but this can be remedied by an order for them to spend time with each other either in a neutral environment or, hopefully over time, in either parents’ home if there is improvement in the relationship between the older children and the mother or the younger child and the father.
The children can also spend time and communicate with one another by electronic means and an order will be made for this to occur.
Given the orders the Court will make about which parent will have primary care of the children, it is neither practical or in the children’s best interests for there to be an order for joint decision making about major and long-term issues for the children. The parents demonstrated that they were incapable of making joint decisions in the past relating to health and schooling and this is likely to be a permanent situation.[152]
[152] See above in these reasons at [30](dd), accepting the views of Dr G.
Instead, there will be an order that the father have sole decision-making responsibility for X and Y, noting that this is likely to be for a short time given their ages. In any event, the father’s decisions will most probably align with those of the two children, who are relatively mature and capable of making many such decisions for themselves.
There will also be an order for the mother to have sole decision-making responsibility about major and long-term issues for Z. As the father’s relationship with Z is fractured and he is unaware of her current needs or development, an order for joint decision making is not in Z’s best interest as the parents are incapable of making joint decisions.
It will be particularly important that the Court make orders that each parent inform the other of major decisions made for the children as this is likely to promote the prospect of repair of the relationships that have broken down by providing a source of communication and reconnection.
Turning to the formulation of the issues by the ICL,[153] I have rejected the contention that the older children’s views have been materially caused by coercion, control or otherwise by the father. I agree that I cannot be satisfied on the balance of probabilities of all the allegations of family violence or coercive control against the father. I also agree that it is unnecessary to make such findings given other findings I have made. I have given weight to the family violence and coercive control in respect of which findings have been made, but that does not outweigh the findings I have made about other relevant considerations that I have given greater weight to in determining the best interests of the children.
[153] As set out above at [20] of these reasons.
The ICL submitted that the views of Dr G and the CCE would be most probative, but it is critical to note that Dr G gave somewhat inconsistent views overall as demonstrated in the summary of his evidence,[154] and the totality of his views properly understood do not support a conclusion that the father is an unacceptable risk to the children. He also formulated his initial views contingent upon what factual findings the Court would make about family violence, including coercive control.
[154] See the summary at [30] of these reasons.
I do not accept the opinion expressed by the CCE that the views of the older children were wholly influenced or controlled by the father or that their demeanour in observations reflected this. Rather, in my view the older children were acting protectively of the father and demonstrating their genuine alignment and allegiance to him due to their experience of the mother and interventions by CSS. In addition, their presentations are not materially different to the description of their characters and presentation away from this dispute.[155]
[155] For example, in the school setting: affidavit of Mr K filed 18 May 2024 at [7]-[10].
Because of the volume of information provided by the mother and the avoidant behaviour of the older children and the father during engagement with the CCE and CSS, the latter consistent with defensiveness in light of the actions by CSS and passive aggressive traits, it is unsurprising that the CCE formed the conclusion she did, but that conclusion is not established on the findings I have made. The CCE was steadfast in her formulation of the risk the father posed for the children but I do not accept her formulation because, similarly to the assessment by CSS, it was based on assertions, conclusions and speculation not borne out by the factual findings made by the Court. In this regard, it is worthy to note the principles that clearly inform how the Court should approach evidence from a CCE or expert, which principles I have applied.[156]
[156] Hall & Hall (1979) FLC 90-713 at 78, 819-78, 820; recently followed in Brauner & Brauner (No 2) [2024] FedCFamC1F 748 at [18].
I accept that the children also had their own genuine motives for presenting as they did and felt threatened by the actions of CSS and were likely wary of the Court process and what the outcome may be. I do not exclude the likelihood that the father in some part also heightened the children’s concerns and it is likely he did not promote the children’s relationship with the mother, but I do not accept he initially caused the children to form the views they did post-separation by coercion or control.
Dr G’s views greatly assisted in understanding the psyche of the parties and how that has impacted on conflict dynamics between them, as well as their capacity to care and provide for the children, and it is the function of the Court to ultimately conclude what is in the best interests of the children. His initial formulations about the father, his parenting capacity and risk to the children considerably changed when his evidence overall was properly understood and were of assistance to the Court.
The ICL submitted that the children should not be left to decide with whom they reside. I agree, but it is necessary for their safety, wellbeing and required by law that I give their views due consideration. I have done so, attributing significant weight to those of the older children for reasons previously given. Further, my findings and evaluation of other relevant considerations are consistent with respecting their views. Based on my reasoning and particularly the older children’s safety and welfare, they should remain residing with the father.
For all the foregoing reasons, the father is not an unacceptable risk to any of the children. It is in the best interests of the children that their relationship with the non-resident parent be repaired and promoted and a gradual reintroduction of time between Z and the father and her siblings is justified.
The older children’s views are held so strongly that there is an unacceptable risk of forcing them to spend any time with the mother in the near future. The best chance of re-establishing a meaningful relationship with their mother exists if they have treatment with a child psychologist who can carefully work with them to address their distress, grievances and fears towards the mother. Until they are open to willingly spending time with the mother in person, they ought not be forced to do so and orders will be formulated for their time with the mother accordingly.
There is no basis to resist electronic communication between the siblings and their non-resident parent and short periods of regular communication are likely to assist the repair of relations. Each parent will need to ensure that the children engage in the communication according to the Court’s orders. In this respect, the father will need to be pro-active and ensure the older children engage.
All parties to some extent sought injunctive restraints, recognising the need to afford protection to one another and the children from family violence. I agree that such orders are required given the finding that have been made.
CONCLUSION
For all the foregoing reasons, the orders sought by the mother and endorsed by the ICL and CSS will not be made.
I have not arrived at this conclusion lightly and am aware that the orders the court will make has the effect of separating siblings. I am conscious of the established principles requiring caution when making parenting orders that separate siblings.[157] Ultimately, the findings and reasons given cause me to be comfortably satisfied that the risks to all children and the parties of reunification of the children in the mother’s primary care in Western Australia are simply unacceptable, particularly when the risks of emotional harm to the children of remaining in their present arrangements can be ameliorated by carefully framed spend time and communication parenting orders.
[157] See, for example, Cottey & Backe (No 2) [2020] FamCAFC 206 at [74] onwards.
I will give the parties an opportunity to make brief oral submissions in relation to the orders drafted to give effect to the reasons for judgment before formally pronouncing the orders.
I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 28 January 2025
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