Frye & Colbett (No 2)
[2022] FedCFamC2F 1770
Federal Circuit and Family Court of Australia
(DIVISION 2)
Frye & Colbett (No 2) [2022] FedCFamC2F 1770
File number(s): LNC 432 of 2021 Judgment of: JUDGE TAGLIERI Date of judgment: 21 December 2022 Catchwords: FAMILY LAW – parenting – parental responsibility – disagreement as to vaccination of the children – orders that the father have sole parental responsibility for the elder child and the mother have sole parental responsibility for the younger child
FAMILY LAW – parenting – with whom children ought to live and spend time – separation of siblings – where allegations that the mother and the step-father use physical discipline – where elder child exhibiting problem computer gaming behaviours – orders that children live with both parents together and separately on four-weekly rotation – injunctive orders regarding use of alcohol and drugs, denigration, physical discipline, and the children’s use of electronic devices
Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60CA, 60CC(2), 60CC(3), 60CC(3)(h), 61B, 61DA(1) to 61DA(4), 65DAA, 65DAC Cases cited: Aldridge & Keaton (2009) FLC 93-421
Dieter & Dieter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346
Marvel & Marvel [2010] FamCAFC 101
MRR & GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 195 Date of hearing: 11 - 12 August 2022, 20 September 2022 and 29 September 2022 Place: Hobart Counsel for the Applicant: Mr Trezise Solicitor for the Applicant: Friend & Edwards Solicitor for the Respondent: Mr O’Dea, O’Dea & Associates Counsel for the Independent Children’s Lawyer: Ms Mooney SC Solicitor for the Independent Children’s Lawyer: McVeity Dean ORDERS
LNC 432 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FRYE
Applicant
AND: MR COLBETT
Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
21 December 2022
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
Parental Responsibility
2.The Applicant Mother MS FRYE (“the Mother”) have sole parental responsibility for X born in 2011 (“X”) and the Respondent Father mr colbett (“the Father”) have sole parental responsibility for Y born in 2008 (“Y”) (collectively “the children”) subject to the terms of Order 3.
3.Notwithstanding Order 2:
(a)Each parent will give the other parent fourteen (14) days prior written notice of an intended decision being taken, (except in case of emergency) and during such time, the other parent may express a view or comment in writing which is to be considered by the parent with sole parental responsibility before the decision is taken; and
(b)Except in the case of a subsequent court order, the decision taken by the parent with sole parental responsibility will apply and the filing of an application with the Court will not prevent making a decision pursuant to this order.
Living and Time with Arrangements
4.Between the date of these Orders and 1 January 2023, Y will live with the Father and X will live with the Mother.
5.Commencing 1 January 2023, Y is to live and spend time with the parties on a four weekly rotation as follows:
(a)with the Father for two nights;
(b)with the Mother for five nights;
(c)with the Father for nine nights;
(d)with the Mother for five nights; and
6.Commencing 1 January 2023, X is to live and spend time with the parties on a four weekly rotation as follows:
(a)with the mother for nine nights;
(b)with the Father for five nights;
(c)with the Mother for nine nights; and
(d)with the Father for five nights.
AND for the purpose of illustrating what is required by the court’s orders and to assist the parties, the rotations are shown in Annexure “A”.
7.Notwithstanding Orders 5 and 6, the children will spend time with the parents on Christmas day/Boxing day as follows:
(a)From 5:00pm Christmas Eve until 11:00am Christmas day, with the father in 2022 and each alternate year thereafter;
(b)From 11:00am Christmas day until 10:00 am Boxing day, with the mother in 2022 and each alternate year thereafter;
(c)From 11:00am Christmas day until 10:00 am Boxing day, with the father in 2023 and each alternate year thereafter;
(d)From 5:00pm Christmas Eve until 11:00am Christmas day, with the mother in 2023 and each alternate year thereafter; and
(e)For the purposes of this Order, the changeover location will be outside the maternal grandmother’s residence.
8.The Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her.
9.The Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.
Changeover
10.Unless otherwise agreed between the parties in writing twenty four (24) hours in advance, for the purpose of Orders 5 and 6:
(a)Changeover will occur at each child’s school at the completion and/or commencement of school on school days; and
(b)Changeover will occur outside the maternal grandmother’s residence on non-school days with:
(i)The party with whom the child is living prior to changeover to deliver the child to the maternal grandmother’s residence at 9:00am; and
(ii)The party with whom the child will be living after changeover to collect the child from the maternal grandmother’s residence at 9:00am
Communication
11.The parents communicate (in respect of the children) via email or text message, except in the event of an emergency communication may be by telephone call.
12.Responses to communication pursuant to Order 11 are to be given within 24 hours, except in the event of an emergency in which case responses should be as soon as possible.
13.During any period where the child is living or spending time with a parent for a period of five (5) nights or more, they will be permitted to communicate with the other parent on at least one occasion by telephone and for this purpose:
(a)the parent with whom the child is living/spending time will ensure that the child is given privacy to speak with the other parent and made available at 7:30pm on Thursdays for a conversation of up to 15 minutes’ duration; and
(b)the parents are to agree and nominate in writing a mobile phone and telephone number to be used by the child for this purpose within 7 days of these orders.
14.The Mother and Father must keep the other informed in writing of their preferred mobile and email contact information and residential address.
15.The Mother and Father will do all things necessary to ensure both are each named on the child’s:
(a)school or extra-curricular enrolments and a direction is provided to the children’s school that both parents are primary contacts for the child and that each parent is to receive school notifications, including in the event a child is unwell; and
(b)medical, health and allied health service contact and/or consent authorities.
16.The Mother and Father are each entitled to attend any and all school events and extra-curricular activities and sporting events involving the child, that parents normally attend including but not limited to:
(a)Parent-teacher interviews;
(b)School sporting events; and
(c)Non-school extra-curricular events.
17.The Mother and Father are to each inform the other as soon as practicable of any hospitalisation, significant injury or health problem suffered by the child and details of any treatment received or medication prescribed by the child whilst under their respective care.
Parenting Course
18.The Mother and Father must enrol in the free online B Program parenting course within fourteen (14) days of this order and complete such course with three (3) months of the date of these Orders.
19.Within seven (7) days of completion of the parenting course ordered in Order 18 of these Orders, the Mother and Father are to provide a copy of the completion certificate to Chambers by email.
Restraints and Injunctions for the personal protection of the children
20.Pursuant to section 68B of the Family Law Act 1975 (“Cth) and for the personal protection of the children X born in 2011 and Y born in 2008 (“the children”), the parents mr colbett and MS FRYE are restrained by injunction from allowing the children to be in the presence of any person under the influence of alcohol or illicit drugs.
21.Pursuant to section 68B of the Family Law Act 1975 (“Cth) and for the personal protection of the children X born in 2011 and Y born in 2008 (“the children”), the parents MR COLBETT and MS FRYE are restrained by injunction from making any denigrating critical, abusive, insulting, belittling, or negative comments in relation to any other party or members of any other party’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of another party) to or in the presence or hearing range of the children or via written correspondence or on social media which may be viewed or accessed by the Children.
22.Pursuant to section 68B of the Family Law Act 1975 (“Cth) and for the personal protection of the children X born in 2011 and Y born in 2008 (“the children”), the Father mr colbett is restrained by injunction from allowing either child to engage in electronic games or devices for longer than two (2) hours at a time and more than three (3) hours per day on school days and four (4) hours on non-school days.
23.Pursuant to section 68B of the Family Law Act 1975 (“Cth) and for the personal protection of the children X born in 2011 and Y born in 2008 (“the children”) the Mother MS FRYE is restrained by injunction from smacking, hitting, punching the children or using any form of physical discipline on them.
24.Pursuant to section 68B of the Family Law Act 1975 (“Cth) and for the personal protection of the children X born in 2011 and Y born in 2008 (“the children”), the parents Mr Colbett and MS FRYE are by injunction restrained from withholding the children in their care otherwise than in accordance with Orders 5, 6 and 7 of these Order.
25.Pursuant to section 68B of the Family Law Act 1975 (Cth) and or the personal protection of the X born in 2011 and Y born in 2008 (“the children”), the parents Mr Colbett and MS FRYE are restrained by injunction from:
(a)discussing parenting issues and these proceedings in the presence or hearing of the children, or allowing the children to remain in the presence of any third party who is doing so; and
(b)Influencing, persuading, or otherwise seeking to pressure the children to live with or spend time with them other than in accordance with these Orders.
AND THE COURT NOTES THAT:
A.Pursuant to section 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if he/she holds reasonable belief that the order for personal protection in Orders 20 to 25 of these Orders have been breached.
B.The Court will provide a copy of these Orders to the Tasmania Police liaison officer.
Provision of Orders
26.The Independent Children’s lawyer provide a copy of these Orders to the children’s schools.
AND THE COURT NOTES THAT:
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 B and these particulars are included in these orders.
“A”
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Frye & Colbett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
Background
These proceedings concern the parenting arrangements for Y born in 2008 (“the elder child”) who is almost fourteen years of age and X born in 2011 (“the younger child”) who is now 12 years of age (collectively “the children”).
The children’s parents Ms Frye (“the mother”) and Mr Colbett (“the father”) separated in about 2015. They have had previous disputes about parenting arrangements for the children. The previous disputes were resolved when final consent orders were made by the Federal Circuit Court of Australia on 16 May 2018 (“the 2018 final orders”).
The 2018 final orders provided for the children, then aged nearly 10 and 7, to live with the mother and spend time with the father. The orders also provided for equal shared parental responsibility.
The current proceedings began in May 2021, when the mother filed an application seeking final and interim orders, upon an undisputed background that the father had retained the children at the end of a period of time they spent with him pursuant to the 2018 final orders. She sought return of the children to her care. The father claimed that the mother’s partner Mr C (“the step-father”) had assaulted the elder child.
In June 2021, the father filed a Response in which he sought interim and final orders that the children live with him. Accordingly, he sought a change of residence for the children and injunctive orders restraining the children from being in contact with the step-father.
On 8 June 2021, interim orders were made by consent which vacated in part the orders made in 2018 and provided for the children to reside with the father and spend time with the mother (“the 2021 interim consent orders”).
In July 2021, the Court ordered that the parties and the children participate in interviews for preparation of a Child Inclusive Conference Memorandum and appointed an Independent Children’s Lawyer (“the ICL”). An interim hearing was also scheduled because the parties no longer agreed with the 2021 interim consent orders.
On 6 August 2021 when the interim hearing was to occur, the parties had conferred with the ICL and considered the Child Inclusive Conference Memorandum dated 5 August 2021 (“the CIC Memo”). This led to the parties again seeking interim orders by consent which largely returned the arrangements to those existing pursuant to the 2018 final orders.
Noting the contents of the CIC Memo, I held reservations about future conflicts that could arise between the parents. I was also somewhat concerned by the unresolved question of whether there was truth in the allegation that the mother and step-father physically discipline the children.
Despite my reservations, I accepted the ICL’s recommendation that this potential risk was manageable by restraints against physical punishment. I made further interim orders according to the consent minute prepared by the ICL, but also ordered:
(i)that the parents participate in a post-separation parenting program; and
(ii)restraints against the use of illicit substances/alcohol and the use of corporal punishment to discipline the children.
On 24 August 2021, the father made an urgent application to the Court seeking orders that the children reside with him, which resulted in a defended interim hearing on 24 September 2021.
After the defended interim hearing, I gave an ex-tempore judgment and reasons. Relevantly, I stated amongst other things:
The history of the parties parenting arrangements evidence a recurring pattern of conflict disruptive to the stability and happiness for the children. This is clearly not in the interests of the children….. Whether or not there is truth in the allegations about physical discipline, there seems to be an increasing rift in [the elder child]’s relationship with his mother and step-father. The cause of this cannot presently be determined.
It is predictable given the history since at least 2018, that there will be ongoing difficulties between these parties. The veracity of each parent's account has never been tested nor determined by a court. Until that occurs, there is a strong likelihood that each party will continue to promote their own causes in a manner that is highly dysfunctional to the children. The contents of the CSS report and social work notes overwhelmingly demonstrate adverse impact on the children from the parties’ behaviours. Neither party has fully engaged with the recommendations in the child inclusive memorandum, but instead have chosen a litigious pathway. There has been delay in instigating family therapy, delay in undertaking parenting programs and the court has received no information about the father engaging in the caring dad's program or progress of the mother engaging in family violence counselling. Although I was informed that the father had sought out psychological counselling, I was told that there is delay in accessing that on the [Region D].
I am doubtful that the course urged upon me by the ICL will prevent the children from being exposed to ongoing conflict due to the dysfunction in co-parenting……Equally, I am not persuaded to make the orders sought in the father’s application in the case. I am gravely concerned that there is a clear pattern of repeat allegations by the mother against the father and by the father against the mother. I do not know to what extent [the elder child] is manipulating the situation. I have reviewed the materials filed in the 2018 proceedings, they contain reports that the mother was subjected to family violence, but I have limited evidence of that to date before me. Similarly the allegations relating to the father’s drug use and mental health are unsubstantiated at this stage. Interestingly, the allegations made against the mother presently were similar in 2018. (Notice of Risk filed in the earlier proceedings and 67ZA response report from CSS.)
I concluded by dismissing the father’s Application in a Case and observed that while there were assertions of further assaults on 11 and 18 August 2021, it was curious that the elder child remained in the care of the mother after this time and only sought to be collected by the father after Father’s Day in 2021. I stated that there were no undisputed facts permitting a finding that there was an unacceptable risk to the elder child if he lived with the mother.
I also stated that while it was possible that the elder child would remove himself from the mother’s care again, this prospect would be less if the father facilitated the elder child’s return assisted by the ICL and if the elder child received independent psychological therapy to assist him cope with the conflicts to which he was exposed.
In giving the interim judgment, I highlighted the school social work notes put in evidence,[1] stating that they are notes made independently of the parties and in places they tend to convey similar sentiments to those in the CIC Memo that the father influences the children inappropriately. For example, the entries relating to the younger child on 8 September 2020 and 12 June 2018, and to the elder child on 14 November 2018 and 5 December 2018.
[1] Exhibit 1 of 24 September 2021.
The reservations and concerns I held at the defended interim hearing about the impact of the parental conflict on the children, very sadly and disappointingly, have materialised, as will be apparent from the findings I make below.
Relevant law and PrincipleS – Parenting
In parenting proceedings, the paramountcy principle applies and the Court is required to make orders that are in the best interests of the child/children.[2] Express direction is provided in section 60B(1) of the Family Law Act 1975 (Cth) (“the Act”) that this object is to be achieved by ensuring that the child has the benefit of both of their parents having meaningful involvement in their life, to the maximum extent consistent with the child’s best interest. The Court is to inform itself of the child’s best interests by the considerations in ss 60CC(2) and (3) of the Act.
[2] Section 60CA of the Act.
Section 60CC(2) of the Act requires the Court to make orders that are conducive to a child having a meaningful relationship with both parents, but not if this would detract from necessary protection of the child from physical or psychological harm or exposure to abuse, neglect or family violence. The assessment required also involves consideration of the many considerations in section 60CC(3) as relevant to the circumstances of any given case, but there is no ranking of importance or order of consideration of the relevant considerations.[3]
[3] Aldridge &Keaton (2009) FLC 93-421; Slater & Light [2011] FamCAFC 1.
The evaluation of risk of harm required by subparagraphs (a) and (b) of section 60CC(2) is a challenging one to be undertaken on the basis of findings of fact about the nature and degree of risk of harm to the child and the likelihood of it eventuating.[4]
[4] Dieter & Dieter [2011] FamCAFC 82 and Marvel & Marvel [2010] FamCAFC 101.
In addition to the foregoing, the Court is also to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility.[5] This presumption accords with the objective referred to in section 60B(1) of the Act. The meaning of parental responsibility is expressly but not exhaustively provided for in the Act.[6]
[5] Section 61DA(1) to 61DA(4).
[6] Sections 61B and 65DAC.
Except in the case of consent orders, if the Court is satisfied that the presumption of equal shared parental responsibility applies and is not rebutted it must first consider if the child spending equal time with each parent would be in their best interest and if practicable, make such an order.[7]
[7] Section 65DAA.
If not persuaded to make an equal spend time with order, the Court must then consider whether the child spending substantial and significant time with each parent would be in the child’s best interests and if so and it is reasonably practicable, an order for substantial and significant time should be made. The meaning of the phrase substantial and significant time is provided for in subsection 65DAA(3).
In MRR & GR [2010] HCA 4, the High Court provided guidance in relation to how the provisions in section 65DAA of the Act are to be applied and I have had regard to that authority.[8] I am also mindful of the required decision making pathway established in Goode & Goode [2006] FamCA 1346. All the considerations in section 60CC of the Act are to inform what is in the best interests of a child, which is relevant to making an order for equal shared parental responsibility if the presumption in section 61DA(1) of the Act does not apply by virtue of section 61DA(2), or making orders about equal or significant time when the presumption has been rebutted.
[8] Especially at [9], [12], [13] and [14].
The Mother’s case
For the purposes of the final hearing, the mother relied on documents as set out in her Case Outline filed 4 August 2022, being:
(a)Her affidavit filed 7 July 2022;
(b)Her affidavit filed 26 May 2022;
(c)The Further Amended Application for Final Orders filed 8 July 2022;
(d)The Specific Issues Report dated 21 January 2022 (“the SIR”) completed by Court Child Expert Ms E (“the Court Child Expert”); and
(e)The Single Expert Report dated 2 May 2022 (“the Single Expert Report”) completed by Mr F (“the Single Expert”).
The mother also relied on the following documents tendered into evidence:
·Exhibit M-1: Two student information validation forms for the elder child, dated 5 December 2019 from G School and 21 December 2021 from H School; and
·Exhibit M-2: School attendance summaries for the elder child for 2021 and 2022.
The mother seeks the following orders as also set out in the Case Outline filed 4 August 2022:
·Sole parental responsibility for the younger child and that he live with her;
·That the younger child spend supervised time with the father at Region J Children’s Contact Service for two hours each fortnight.
Notably, the mother did not seek any orders in relation to the elder child. However, as will be apparent below, her evidence about the orders she sought was confused by the answers given to questions put in cross-examination by counsel for the ICL.
Evidence in the mother’s case
The mother
The mother’s affidavits were read in evidence unopposed. Counsel for the father cross-examined her at length about topics particularly relevant to the father’s case, being:
(a)Alleged family violence by the father against the mother;[9]
(b)The mother’s capacity and willingness to communicate with the father about the children;[10]
(c)The mother’s relationship with Ms K, the Family Therapist who had been engaged to assist rebuild the relationships between the elder child and the mother and step-father;[11]
(d)The parties’ attitudes to facilitating the elder child spending time with the mother;[12]
(e)Allegations of physical abuse or discipline of the children by the mother and the step-father;[13]
(f)Allegations that the mother has not complied with orders for the children to spend time with the father and has acted to alienate him from the children;[14] and
(g)Vaccination of the children.
[9] Extract of Transcript of Proceedings (“Transcript”) on 11 August 2022 at pages 4 to 15.
[10] Transcript on 11 August 2022 at 16 to 25.
[11] Transcript on 11 August 2022 at pages 26 to 30.
[12] Transcript on 11 August 2022 at pages 30 to 34.
[13] Transcript on 11 August 2022 at pages 35 to 55.
[14] Transcript on 11 August 2022 at pages 56 to 65; Transcript on 12 August 2022 at pages 1 to 9.
In broad terms, the mother maintained that the father had been both physically and emotionally violent and had used controlling behaviours towards her. Despite this, it would seem that when she and the children initially moved to Tasmania, there was a mutual expectation that the father would address his use of drugs with the intention that the family unit would be reunited in Tasmania thereafter.[15]
[15] Transcript on 11 August 2022 at pages 9 and 10.
Extensive cross-examination about whether the father stayed in her home with the children for four days or considerably longer in December 2014 did not dilute her evidence of the father exposing her to considerable family violence during the relationship.
The mother’s evidence in cross-examination about her capacity and willingness to communicate with the father about issues relating to the children involved a number of adverse concessions. For example, that she had not kept him informed, had breached the 2018 final orders, had not consulted with the father about long-term or major issues before taking decisions despite there being an order for equal shared parental responsibility, and frequently not replying to communication initiated by the father about the children.[16]
[16] Transcript on 11 August 2022 at pages 16 to 25.
Cross-examination about the allegation of some kind of friendship between the mother and Ms K was entirely unhelpful and the mother maintained that there was no such relationship, despite what the children may have told the father.
The mother’s evidence was that the family therapy ended because the father had stopped taking the elder child to the appointments,[17] but the father’s evidence was that Ms K advised there was no purpose or utility in it continuing because the elder child was not engaging.[18]
[17] Transcript on 11 August 2022 at pages 29 and 30.
[18] Transcript on 12 August 2022 at page 85, lines 14 to 17.
Unambiguous and forthright evidence was given by the mother that the father did not and would not facilitate or ensure that the elder child spend time with the mother. The tone of her evidence was that this was a deliberate ploy on the father’s part. She stated, for example, that if he could get the elder child to attend school, then he had capacity to get him to spend time with her.
The mother denied being physically abusive to the children, including stating that the reports made by the children to the Court Child Expert and the Single Expert were inventions they had been told to convey by the father. In some cases, she said the children were not telling the truth; for example, in respect of the quite detailed account the elder child gave to the Court Child Expert about the mother smacking him over an incident relating to the ICL’s business card.[19]
[19] SIR at [86].
Concerning instances of non-compliance with court orders for the children to spend time with the father, the mother stated that there was either good reason because the children had participated in conflicting extra-curricular activities or, more recently when withholding the younger child from late July 2022, to protect him from emotional abuse by the father.[20]
[20] Transcript on 11 August 2022 at pages 64 and 65; Transcript on 12 August 2022 at page 51, lines 18 to 24.
Through cross-examination by counsel for the ICL, it was apparent that the mother was willing to have the children vaccinated for many recognised diseases for which children are commonly vaccinated according to the recommendations of doctors. She supported the children being vaccinated against Covid-19.
The responses to questions by counsel for the ICL about the mother’s attitude towards the father conveyed distain of him and her answers conveyed that she had never positively portrayed the father to the children.[21]
[21] Transcript on 11 August 2022 at page 25; Transcript on 11 August 2022 at pages 25, lines 15 to 20.
The evidence given by the mother under cross-examination by counsel for the ICL about the family violence issues elicited concession that she had not told the father about an assault conviction against the step-father in 2015 or of any violence within her home.
Cross-examination about physical discipline used towards the children and her denial of any elicited what I interpreted as emphatic denial but then the mother also conceded that she had smacked the children when younger. The evidence she gave causes me to infer that she understated the extent of this because of the internal inconsistency in the answers she gave.[22] She was did not appear to be fully frank about this topic.
[22] Transcript on 12 August 2022 at page 35, line 25.
The step-father
The affidavit of the step-father filed 28 January 2022 was read unopposed and he was cross-examined.
The salient aspects of his evidence after cross-examination by the father’s counsel was as follows:
(a)He admitted to tapping the elder child on the head with an empty plastic water bottle on 24 May 2021. He has not been charged with assault by police regarding this incident;
(b)He had attended just one appointment with Ms K concerning the parties and the children, but he had not attended with her for family therapy regarding his daughter from a previous relationship, L (“the older half-sister”);
(c)He did not attend appointments with the Single Expert;
(d)He had commenced his relationship with the mother in around 2013-2014 and had been in a stable relationship thereafter, apart from separating in 2015 following an incident which resulted in him being charged with assault of the mother;
(e)He had denied being violent to the mother, but “police deemed I had assaulted [the mother]”. He could not recall specifics of the incident resulting in him being charged with assault, but guessed the children would have been present at the time of the incident. He pleaded guilty because he did not want to put the mother through court;
(f)He disputed that he had breached, on three occasions, the Police Family Violence Order (“PFVO”) put in place to protect the mother. He admitted that he had been charged with one count of breaching the PFVO, but not three counts as shown on his record of prior convictions.[23] The record shows three charges for breach of the order where no evidence was tendered;
(g)He denied fighting with the mother, throwing things, and having police attend their home because of disputes; and
(h)Denied being accused by the mother of “not contributing, not earning enough money, not helping with children, not spending enough time with her”. He said he is not contributing to the mortgage repayment, but he is contributing financially to the children and household.
[23] Exhibit F-6.
The step-father did not agree that it was reasonable to suggest that the children were fearful of him because of domestic violence between him and the mother or that it would be better for them to live with their father.
Through cross-examination by the ICL’s counsel, the step-father gave evidence about the detrimental emotional impact that the elder child moving to live with his father had on him, the children’s younger half-sister and the mother.
The step-father also stated that after the incident when the younger child had left school and gone to his father’s on 22 June 2022, he had a stern talk with the younger child, as he had done at the school. The step-father said that he started to get upset and the younger child then broke down and said that it had not been true, that he had made up that the mother had smacked him with the wooden spoon. The step-father said that at the time the younger child admitted to lying, he had been two metres away from the younger child in front of the bedroom door.
When asked about the incident when he hit the elder child with the water bottle, he confirmed it occurred when the elder child was squeezing into the car and he had told the elder child to be careful of the car door. The elder child muttered something and the step-father told him to stop ‘mouthing off’ then tapped him on the head with an empty Mt Franklin water bottle. It was a significant enough incident that he had told the mother about it and that he and the elder child apologised to one another later.
Concerning the assault of the mother in 2015, the step-father said that he was intoxicated, that it was in the evening and dark, and that the children “would have been sound asleep”. The children had not mentioned the incident to him since, but he conceded that if they witnessed it then it may make them hypervigilant to similar behaviour.
The step-father described the elder child as being quiet and social, while the younger child wants to be noticed, is vocal and more sensitive.
Asked about the relationship with the older half-sister, he said that she is now in Year 11 at school, lives with her mother at Town G, and spends time with him and the mother regularly. He described the relationship between her and the children as close, and agreed that the older half-sister treats the children “like brothers”. He stated that they play on the trampoline together and ride motorcycles together.
The step-father stated that in 2015 when there were difficulties, he and the older half-sister and sometimes the mother went to counselling with a private counsellor, Ms M. He said that there had been no other episodes of violence between him and the mother since 2015.
Counsel for the ICL asked about the step-father being present at an incident at the G Primary School. He stated that he had received a call from the mother because the father had arrived early at the school to collect the younger child, noting that the father was to spend time with the child according to the interim orders. She was on her way to the school, and because they expected the father to be present he would attend but go through another entrance. He denied that he had been threatening and that the school had called the police because of his conduct.
The Father’s case
The father relied on his Case Outline filed 8 August 2022 and documents referred to in it. He asked the Court to read the following affidavits which were read unopposed:
(a)His affidavit filed 27 January 2022;
(b)His affidavit filed 20 July 2022 and affirmed 20 June 2022; and
(c)His affidavit filed 20 July 2022 and affirmed 27 June 2022.
He also relied on a number of documents tendered into evidence in the course of the hearing, being:
(a)Exhibit F-1: a school enrolment for the elder child, possibly incomplete;
(b)Exhibit F-2: the s69ZW response report from Tasmania Police dated 1 November 2021;
(c)Exhibit F-3: a Notice of Child Abuse, Family Violence or Risk filed by the mother on 31 May 2021;
(d)Exhibit F-4: 3 photographs;
(e)Exhibit F-5: 9 purple-tagged pages removed from the bundle of N Counsellors subpoenaed documents;
(f)Exhibit F-6: prior convictions of the step-father removed from bundle of Tasmania Police subpoenaed documents, subject to disputed points marked in red;
(g)Exhibit F-7: school attendance record for the younger child for the latter half of 2022; and
(h)Exhibit F-8: an email from the father’s solicitor to the mother’s solicitor dated 7 September 2022, and the reply from the mother’s solicitor to the father’s solicitor dated 13 September 2022.
The father sought to rely on a report of Dr O dated 10 May 2022 to support his case that the children ought not to be vaccinated against Covid-19. After hearing submissions from counsel, I determined that the report was inadmissible because the father had failed to make Dr O available for cross-examination.
When the hearing resumed on 20 September 2022, the Father also sought to rely on two further affidavits filed 13 and 16 September 2022, in addition to his trial affidavit. It was contended that the further evidence should be received because it provided an update of events that had occurred since the trial had initially been adjourned and the mother’s alleged obstruction to the younger child spending time with the father. Submissions were made by counsel and I then refused leave to the father to rely on those affidavits, given the trial directions made previously and the extensive affidavit material already before the Court. Some annexures to those affidavits were accepted into evidence as exhibits.
The father’s evidence
The father was also cross-examined about discrete considerations that inform what is in the best interests of the children. In summary, the effect of his evidence was:
(a)He does variable contract work earning between $100 and $400 per week and otherwise relies on Centrelink as his primary source of income;[24]
[24] Transcript on 12 August 2022 at pages 54 to 55.
(b)A typical day involves the elder child and him getting up at 7:30am, the elder child having opportunity for breakfast and getting ready for school. They leave home around 8:10am and he drops the elder child at school at around 8:40am. He then returns home and does work or housework as required and sometimes has a nap as he is not a great sleeper. He used to drive to Town H to collect the elder child from school, but that has changed as he now gets a bus home;[25]
[25] Transcript on 12 August 2022 at page 56.
(c)He persisted in obtaining information about how the elder child can get a bus home because of the cost of him making two return trips to the school each day. The investigations and enquiries took months, and he was pretty frustrated by the misinformation which he had been given during this process;[26]
[26] Transcript on 12 August 2022 at page 57.
(d)He considers the mother has positive values such as being compassionate, has a good regime, is personable or effervescent, bubbly, strict and firm which may be overbearing at times for the children;[27]
[27] Transcript on 12 August 2022 at pages 58 to 59.
(e)He admitted he had also described the mother as narcissistic, self-absorbed, ignorant and self-righteous. He agreed that he dislikes the mother;[28]
[28] Transcript on 12 August 2022 at page 59; Transcript on 20 September 2022 at page 4.
(f)He had on many occasions tried to agree an amicable arrangement with the mother about the children spending time with her and a reasonable amount of time with him, but has received nothing but hostility and condescending remarks;[29]
[29] Transcript on 12 August 2022 at page 60.
(g)The blame for not reaching an agreement is not only the mother’s, and he admits he could have remained calmer instead of being loud and insisting;[30]
[30] Transcript on 12 August 2022 at page 60.
(h)The father gave evidence about the health-related issues for both children and his desire to be involved in decision making about them, which have been entirely dealt with by the mother satisfactorily to date;[31]
[31] Transcript on 12 August 2022 at pages 61 to 62.
(i)The father maintained he had consistently tried to have the elder child spend time with his mother, but was not successful except on very limited occasions;[32]
[32] Transcript on 12 August 2022 at pages 63 to 64 and 107 to 108.
(j)He had changed his attitude to potential consent orders after July 2022 due to the allegations that he influenced the younger child to make a false claim that the mother hit him with a wooden spoon, and also what he described as the mother being incapable of following court orders;[33]
[33] Transcript on 12 August 2022 at pages 64.
(k)He maintained that he had not influenced the younger child to say, on 22 June 2022, that his mother had hit him with a wooden spoon. Rather, that is what the younger child had told him;[34]
[34] Transcript on 12 August 2022 at pages 64 to 69.
(l)He had sought to have the ICL removed because the children had reported corporal punishment by the mother after there had been orders restraining such conduct, but the ICL had failed to address the issue and was dismissive of it;[35]
[35] Transcript on 12 August 2022 at page 70.
(m)He is not persuaded that the children have aboriginal heritage, does not support education about aboriginal culture and custom at the expense of the main curriculum, and believes that all aspects of culture should be taught rather than just that which is “glorified”. He thinks it unlikely they need to continue aboriginal studies, but would reconsider this if it is proven over time that they have aboriginal heritage;[36]
[36] Transcript on 12 August 2022 at page 72 to 74.
(n)The father does not support the children being exposed to education about transgender issues until they are adults and considers there is inappropriate information disseminated about sex and gender to children. However, he accepts there are persons who live with genuine gender dysphoria;[37]
[37] Transcript on 12 August 2022 at pages 74 to 77.
(o)He agreed that the elder child’s attendance at school deteriorated for a time after he commenced living with him, but says it has now improved. There were also some behavioural issues which he says have been addressed and were not just related to the elder child, but also others at the school;[38]
[38] Transcript on 12 August 2022 at pages 77 to 81.
(p)He conceded he has things to learn as a parent and will be more hands-on;[39]
[39] Transcript on 12 August 2022 at page 82; Transcript on 20 September 2022 at pages 3 to 5.
(q)He agreed that he had told the elder child that the mother is delusional and he conceded that this was not child-focussed;[40]
[40] Transcript on 12 August 2022 at pages 87 to 88.
(r)He accepts that the younger child may have heard him discussing these proceedings with his lawyer, but this was a ‘slip’ and he usually shields the children as much as possible;
(s)He confirmed that he considered Court Child Expert to be biased, but denied that Ms K and the Single Expert were. He also denied that he was controlling or intimidating as opined by the Court Child Expert and stated that his behaviour in Court is the same as during his interviews with her;[41]
[41] Transcript on 12 August 2022 at page 88; Transcript on 20 September 2022 at page 10 and 13.
(t)As a child he had been excessively physically disciplined and he opposes any form of physical discipline;[42]
(u)He believes in freedom of choice, and that children should be left to make mistakes and learn from them. He admitted having failed to set appropriate boundaries at times, including that he had trouble successfully limiting the elder child’s gaming on computers, and said that he is seeking to influence positives from the elder child’s use of and interest in computers;[43]
(v)He disputed a number of the Court Child Expert’s opinions, including that:
(i)his behaviours through the court proceedings were consistent with a person who previously perpetrated family violence and had mental health issues; and
(ii)he had undermined the mother’s relationship with the elder child;[44]
(w)His evidence was that he was opposed to Covid-19 vaccination for the children because there was insufficient evidence of them being safe for children, but that he is not generally opposed to vaccination per se. Despite this he had not consulted with the children’s general practitioner Dr P about vaccination of the children, except in respect of the Covid-19 vaccination in the context of determining if Dr P would give expert evidence in these proceedings;[45] and
(x)He encourages the elder child to instigate a relationship with his mother and younger half-sister, but agrees they are currently estranged. He maintained that he has made attempts to ensure the elder child sees them, but the mother has not co-operated. He has encouraged the elder child to work at his grandmother’s house as a means of starting the process of reconnecting, but the elder child is reluctant. As at the present time, despite court orders, the elder child is not spending time with the mother.[46]
[42] Transcript on 12 August 2022 at page 89; Transcript on 20 September 2022 at pages 17 and 18.
[43] Transcript on 12 August 2022 at pages 90 to 93; Transcript on 20 September 2022 at pages 7, 8, and 10.
[44] Transcript on 12 August 2022 at page 94 to 96.
[45] Transcript on 12 August 2022 at pages 97 to 102; Transcript on 20 September 2022 at page 20.
[46] Transcript on 12 August 2022 at pages 103 to 105; Transcript on 20 September 2022 at pages 5 to 7.
The ICL’s CASE
As outlined in her Case Outline filed 7 June 2022, counsel for the ICL relied on the SIR and the Single Expert Report. In addition, she tendered into evidence a number of documents, being:
(a)Exhibit ICL-1: Consultation note of Dr P dated 10 February 2022 concerning vaccinations for the elder child;
(b)Exhibit ICL-2: Letter dated 9 August 2022 from school authored by the principal of G Primary Mr Q (“the school principal”) to the parties;
(c)Exhibit ICL-3: 2021 and 2022 H High School Attendance records for the elder child;
(d)Exhibit ICL-4: Letter dated 19 June 2020 from Ms R, the principal of G Primary School, to the father;
(e)Exhibit ICL-5: consultation notes from 24 June 2022 and 14 July 2022 for the younger child, from the bundle of Town H Medical Practice subpoenaed documents (4 pages);
(f)Exhibit ICL-6: a Child Dispute Conference Memorandum dated 6 July 2021 (“the CDC Memo”);
(g)Exhibit ICL-7: the CIC Memo;
(h)Exhibit ICL-8: The SIR; and
(i)Exhibit ICL-9: the Single Expert Report.
The school principal
Oral evidence was led without objection from the school principal by counsel for the ICL and the other parties cross-examined him.
His evidence was that the younger child is not very resilient and he is immature compared to his peers. The younger child sometimes comes to school unsettled and non-compliant on days when he has spent time with the father, however, that it is not on every occasion and he is also unsettled at other times.
He was aware that the younger child had not been spending time with the father since July 2022, and the younger child’s teachers had mentioned to him that the younger child has been unsettled after the adjournment of proceedings in this Court in early August 2022.
The bulk of the school principal’s evidence related to an incident at the school at around late July 2022 where the mother, the step-father, and the father were on the premises at the same time to collect the younger child. The school principal deposed that he was not at work that day, but advised his staff by telephone to call the police as a precaution given the confusion as to with whom the child was to leave the school. He said he was unaware whether the police then spoke to anyone in particular.
The Court Child Expert
The Court Child Expert prepared three reports for the Court:
·the CDC Memo, being Exhibit ICL-6;
·the CIC Memo, being Exhibit ICL-7; and
·the SIR, being Exhibit ICL-8.
I was told that, by agreement, the Court Child Expert was provided with a copy of the Single Expert Report to review before giving evidence at the hearing.
The Court Child Expert was questioned extensively by counsel for all parties in these proceedings. Her evidence in chief led by the ICL was that:
(a)The father was aggressive in his manner with her and that he appeared to not believe he had to answer her questions as she expected him to do. She is unsure whether the father recorded the SIR interview;
(b)The children mentioned to her that the father had smoked in their presence, but she did not pursue what they had seen him smoke as they were already struggling with the interview;
(c)Her concern at the time of the SIR was that the elder child’s gaming behaviours would develop in to a mental health disorder, and this appears to be occurring now. Had she known the extent of it at the time of the SIR she would have focussed more on how to protect the child from the behaviour developing into an addiction;
(d)The younger child becomes dysregulated when he spends time with the father, which was evident at the SIR interviews and from her conversations with the younger child’s teacher;
(e)She recommends that the younger child spend one night per fortnight with the father during term time and several consecutive nights in school holidays;
(f)The elder child holds the view that the father is the final authority in respect of his living arrangements, not the Court, and the father will bring about the result the elder child wants. He reacted negatively and strongly when the Court Child Expert challenged this notion.
In response to further questioning by me, the Court Child Expert gave evidence that:
(a)The father did not present to her with the parenting skills to manage the elder child’s gaming behaviour, and that this was an issue of his capacity and not his desire. However, the father is new to parenting and he is intelligent, with the capacity to learn the skills needed;
(b)The mother and the step-father would need support to rebuild their relationship with the elder child if he was to return to her care and consideration would need to be given to the risks this would present to the younger child and the half-sister;
(c)Any transition of the elder child to the mother’s care would rely, at least partially, on the father’s support as the elder child idolises him;
(d)The mother has an inflexible, black-and-white parenting style, which has been influenced by her experiences of trauma. Despite this, she has shown capacity to be reflective on what has occurred and her contribution to it;
(e)The elder child is immature for his age and his gaming behaviours have been established at a developmentally vulnerable time; and
(f)It is unlikely that the child’s gaming behaviours would have escalated to this extent had he been living with the mother, although he may have acted out in other ways.
Cross Examination by Counsel for the Mother
The substance of the Court Child Expert’s evidence when cross-examined by counsel for the mother is that:
(a)There may be some benefit in engaging a home intervention provider if the elder child returns to live with the mother, although they are usually designed as early intervention;
(b)In the event that the elder child returns to live with the mother and proper supports are engaged, then he should spend time with the father provided that there is a substantial change in the father’s approach to the parenting situation;
(c)The mother’s presentation at the SIR interviews was consistent with previous interviews in that she was open to reflecting on situations and receiving advice in addressing the difficulties;[47]
(d)The “types of behaviour survivors of family violence describe taking place in coercive controlling relationships”[48] with which the mother presented included recalling details of specific incidents, but in an unfiltered, overly-detailed, and disjointed fashion;
(e)She stated that she cannot be biased against the father as she has no investment in these proceedings, but conceded that the father’s behaviour during the interviews made her uncomfortable. Specifically, she referred to the father’s statement to her that he intended to record the SIR interview;
(f)In relation to father’s critical description of the mother as “narcissistic, self-absorbed, ignorant and self-righteous”, presenting herself as a “victim” and seeking the “court’s sympathy”,[49] the Court Child Expert confirmed the father himself displayed these characteristics in his interviews. She excepted the description “narcissistic” as this would require thorough psychological assessment;
(g)The father’s history of physical abuse as a child, as reported to the Single Expert, could make him hypervigilant to the risk of the children experiencing the same. She stated that withholding the elder child after the water bottle incident was a definite overreaction;
(h)The elder child’s reporting of physical discipline in the mother’s household is inconsistent;[50]
(i)She holds serious concern about the elder child’s psychological development if the current situation continues, noting that the elder child is not spending time with the mother or other members of her household
[47] SIR at [39].
[48] SIR at [41].
[49] SIR at [57].
[50] SIR at [96].
Several times during the SIR interview the father stated that he “begged and implored” the elder child to spend time with the mother, but the Court Child Expert found this confusing given the opinions he expressed about the mother, including to the elder child,[51] and that the elder child believes that the father has control of the parenting arrangements.[52]
[51] SIR at [98].
[52] SIR at [99].
The Court Child Expert was asked by counsel for the mother for her recommendations in the event that the elder child was ordered to live with the mother and not spend time with father for a period. Her recommendations were:
(a)The younger child’s time with the father ought to also be suspended. The period of suspension should cover the whole of one school term and school holidays;
(b)The relationship of the children with the father would then need to be rebuilt with day time only visits on a weekend, and she suggested from 10:00am to 6:00pm once a fortnight on a weekend then an overnight visit after a month or two;
(c)To ensure that the elder child did not fall back into his problematic gaming behaviour the father would have to have other activities arranged. It would not be beneficial for either child to spend the whole of the first visit gaming as this would undo the benefits of removing them from that environment; and
(d)Once the single overnight visits were established, the time could build up to four consecutive nights with the father.
The Court Child Expert addressed the proposition that the younger child would become estranged from the mother if there were an order for him to spend time with the father by saying that this would occur if the father has not changed his behaviour. There is, in her opinion, a risk that the father will encourage the younger child to remain living with him. When asked about the June 2022 bus incident, the Court Child Expert said that it is cause for concern if the father did encourage the younger child to enter his care.
Cross Examination by Counsel for the Father
Counsel for the father asked the Court Child Expert whether she accepted the account of the father’s violence as presented to her by the mother. She replied that her assessment was that the mother presented in manner consistent someone who had experienced family violence and that the father’s presentation was consistent with that of a family violence perpetrator. She also examined family violence reports which confirmed the mother’s perspective.
A number of paragraphs from the CDC Memo and the CIC Memo were challenged by counsel for the father. The Court Child Expert’s stood by her assessment as contained in her reports on the basis of the information presented to her at the time of the interviews. The topics these paragraphs covered were:
(a)The mother’s denial of family violence in the relationship with her current partner and the Court Child Expert’s assessment of it;[53]
(b)The alleged physical discipline in the mother’s household and the Court Child Expert’s assessment that this was not a basis for the father to retain the children;[54]
(c)The categorisation of the father’s behaviour towards the mother during their relationship as family violence, and the father’s mental health;[55]
(d)Her description of the father’s presentation during interviews conducted by her;[56] and
(e)The documentary evidence on which she based some of her assessment.[57]
[53] CDC Memo at [19].
[54] CDC Memo at [48]; CIC Memo at [40] to [41] and [81].
[55] CDC Memo at [12], [13] and [58]; CIC Memo at [85].
[56] CDC Memo at [26].
[57] CIC Memo at [9].
The Court Child Expert accepted, when referred to documents in evidence by counsel for the father, that a family violence incident occurred between the mother and the step-father in 2015, that a Family Violence Order was issued,[58] and that this information would have of assistance in her assessments. Counsel for the father asked whether it was important for the mother to disclose this family violence to the father. She responded that it would not have been easy for the mother to share this information with the father given the difficult nature of their relationship at the time and that she cannot speculate as to the motivation for the mother not telling her of the assault charge.
[58] Section 67ZA response document from Tasmania Police dated 7 June 2021; Exhibit F-6.
When asked whether she now accepts that there may be some truth to the allegations of physical discipline raised by the father and the children in light of the family violence in the mother’s household, the Court Child Expert said that she never dismissed it as untrue. The accounts of the elder child at the time of the CIC Memo interviews would be excessive,[59] however that information was not present in later interviews. She did not resile from her recommendations.
[59] CIC Memo at [40] and [41].
In respect of the younger child’s low self-esteem,[60] the Court Child Expert deposed that his comments about himself may be learned behaviour to please the father or as a result of his conflicted environment. She said she that linking comments in the subpoenaed medical records[61] to low self-esteem was beyond her scope. She was pressed again to resile from her recommendation of reducing the younger child’s time with the father, but would not do so.
[60] Reported by the father in the CDC Memo at [45] and comments recorded in the SIR at [107].
[61] Exhibit ICL-5.
As to her assessment of the father’s character, the Court Child Expert said that she received the impression that the father would not feel as though she had “listened to him” unless she accepted what he told her without critical thought, which is not her role in completing the assessments. From her perspective she gave him the same amount of time and same opportunity to respond to allegations as she did the mother.
Counsel for the father referred the Court Child Expert to the Single Expert’s assessment that the father is “doing something right” for the elder child and that there is “goodwill” between the father and the children.[62] Her assessment is that their relationship is more nuanced and that this assessment is overly simplistic. She cannot see how this “goodwill” would extend to the mother as the father has been very negative about her; this statement did not make her change her opinion in that regard.
[62] Single Expert Report at page 23.
Counsel for the father asked whether the father, in the Court Child Expert’s opinion, has the capacity to support the elder child’s time with the mother. She said that he does not, based on the father’s attitude towards the mother and that time has not occurred. Whether the mother’s alleged lack of attempts to spend time with the elder child would cause her concern would depend upon the context of offers made by the father.
The Single Expert
Counsel for the ICL provided the Single Expert with the details of the incident on June 2022 when the younger child caught the bus to the father’s house as this occurred following the Single Expert Report interviews. She also advised him of the children’s current living arrangements.
The evidence led by counsel for the ICL in respect of the second paragraph of the Single Expert Report at page 23 was that:
(a)When writing his report, he did not have documentation from the schools to the elder child’s school attendance, but understood that it was “patchy”;
(b)The school social worker notes to which he had access did not reflect physical violence in the mother’s household;
(c)By stating that the elder child was living with the father “against all odds”[63] he meant that this occurred despite court orders to the contrary and despite the structure and order in the mother’s household while the father struggles to afford basic necessities. He accepts that the freedom to play games and the lack of chores may have influenced the elder child’s decision;
(d)By stating that the father was “doing something right”[64] for the elder child he meant that the father persisted in trying to maintain contact and to form a relationship with the children;
(e)It was the elder child’s view that he was escaping something unpleasant by living with the father, in reference to the alleged physical abuse; and
(f)At the time of writing this paragraph, he had considered police s 69ZW response documents and was aware of the father’s criminal history, including that he had spent time in prison for robbery and assault.
[63] Single Expert Report at page 23.
[64] Single Expert Report at page 23.
Concerning the third paragraph of the Single Expert Report at page 23 about smacking in the mother’s household, the Single Expert said that he received the impression from the children that this no longer occurs. The younger children’s presentation at the interview for the Single Expert Report indicated that he felt safe and loved in the mother’s care. The Single Expert agreed that the mother ought not to use physical discipline on the children.
Cross Examination by Counsel for the Mother
When questioned as to the deterioration in the elder child’s psychological wellbeing reported to him by the mother and the maternal grandmother,[65] the Single Expert agreed that the impression he received from everyone except the elder child himself was that he was cheerful and active in the lead up to his transition to the father’s care in 2021.
[65] Single Expert Report at page 21.
In respect of the father’s reporting of his childhood,[66] he said that the father made passing reference to physical discipline, but they did not discuss it in detail. Asked to accept the father’s evidence to the Court that the physical discipline he experienced was severe, the Single Expert agreed that this could lead him to be hypervigilant of the children being subjected to the same.
[66] Single Expert Report at page 7.
The Single Expert Report records that the father does not believe that he has a mental health problem.[67] Counsel for the mother asked the Single Expert whether the father would benefit from psychological therapy. He opined that he would not, given the father’s fixed views and inflated sense of his own capabilities. He did not think the father would accept assistance from a counsellor.
[67] Sing Expert Report at page 9.
The Single Expert’s understanding is that at the time of the home visit conducted for the Single Expert Report, the elder child was absent from school because he refused to have a nasal test for Covid-19 which the school required rather than because of suspected infection. He confirmed that while he was present at the home, the extent of his interaction with the elder child was limited to what was expressly stated in the Single Expert Report. His comment that the elder child “essentially switched onto his game” and ignored “everything in the real world”[68] was based on his own observations during the home visit.
[68] Single Expert Report at pages 13 and 14.
The Single Expert was asked about differences between the mother and father’s scoring of the elder child on the Child Behaviour Checklist for ages 6-18. He said that the father’s denial that the elder child has problem behaviour and his belief that the elder child is behaving in a normal manner when he is not may stem from his inexperience as a parent. The Single Expert’s assessment was that the mother is more “tuned in” to normal behaviour for a child of that age and has seen the elder child’s maladaptive behaviour develop.
Further to his statements directly addressing the Terms of Reference,[69] the Single Expert said that:
(a)If the elder child still engaged in the pattern of gaming behaviour as at June 2022 then he would now meet the diagnostic criteria for a gaming addiction as set out in the World Health Organisation’s manual ICD-11;
(b)The elder child has discovered that if he refuses to comply with parental directions that there is “very little the world can do about that”. He has permission to do what he wants in the father’s care; they share love of computer games, but the elder child plays for longer periods and more intensely than the father does;
(c)Having the elder child in his care has been a constructive influence on the father and motivated him to be more responsible, and ultimately the elder child is the beneficiary of this;
(d)There still needs to be further modification of the relationship between the father and the elder child. For example, it would have been appropriate for the father to remove the elder child’s headphones or turn off his game when he refused to stop playing at the interview for the Single Expert Report; and
(e)It is very difficult for the parents to co-parent and share parental responsibility. At the time of his assessment there were a number of issues between them, such as Covid-19 vaccinations, the mother’s concern about coming into contact with the father, and unilateral decision-making.
[69] Single Expert Report at pages 20 to 25.
Counsel for the father asked for the Single Expert’s opinion on the June 2022 bus incident. His reply was:
It sounds like a concocted story to justify a particular approach to the boys. Um, I was alert to the possibility that perhaps [the elder child]’s story about being bashed and hit at the mother’s house had been suggested to him by other parties, but I could not find evidence of that. Although, there was certainly a lot of hostility between [the father] and [the mother] …So if there was, if that wooden spoon story was concocted and it was [the father] trying to seek some sort of advantage out of it and play on allegations the boys have made about physical punishment, and fortunately [the younger child] is a bit of an open book and, er, he was happy to tell the truth.
The Court Child Expert’s recommendations regarding intensive home intervention were put to the Single Expert. While familiar with the services, he does not know of them being used and has not experienced them in families with which he has worked.
Cross Examination by Counsel for the Father
The Single Expert was aware of family violence between the mother and the step-father from what the children told him. He was unaware of the step-father’s common assault conviction, but this would not cause him any more concern than the children’s account of the mother as a quite controlling figure.
When asked about the mother’s partner breaching a Family Violence Order, he said that he could not comment as the context is important and in his experience these are prosecuted without further investigation. He is unsurprised that the mother did not volunteer information about family violence in her household as participants in family law assessments do not usually offer self-damaging facts.
The Single Expert, when asked whether in his view the children were telling the truth about physical discipline in the mother’s household, said that he has doubts about what the elder child told him while the younger child accounted the facts as he saw and understood them.
When further questioned regarding the family violence between the mother and the step-father, the Single Expert said it may not be relevant to the assessment of the current parenting arrangements as it was seven years ago and appears to have resolved. During his home visit the mother and the step-father seemed to be working well together as a team. His impression of the step-father is that he is a reasonable person who was open about his historic mental health issues. He did not consider it relevant to any opinion he has expressed whether the step-father had a Family Violence Order made against him for the protection of a previous partner prior to his relationship with the mother.
I observe that the evidence referred to at [87] of these reasons appears to be somewhat inconsistent with the views expressed by the Single Expert in the Single Expert Report at page 23.
CLOSING SUBMISSIONS
The parties’ closing oral submissions about the final orders sought did not completely align with the orders sought in the Case Outlines. Noting that the oral submissions were made following the testing of evidence and accounted for it, it is most appropriate that I confine my deliberations to address the oral closing submissions.
ICL’s submissions
Counsel for the ICL submitted that both parents were “stuck in their trenches” and the ICL had grave concerns that the children want to self-select variously based on gaming obsession, excessive discipline, somatic problems related to the conflict, and the level of food in the father’s home.
Counsel for the ICL relied on the written outline in regard to the consideration set out in s 60CC of the Act and said that the Court’s orders should be directed to harm minimisation. Accordingly, she submitted that I ought to conclude that:
(a)The mother is more attuned to what is acceptable parenting and childhood behaviour;
(b)The father has denigrated the mother to the children;
(c)The father has not shielded the children from the parental conflict;
(d)The father fabricated the wooden spoon allegation in July 2022 in an attempt to have the younger child live with him;
(e)There are a number of concerns about the father’s parenting capacity, including basic food issues, deterioration in school attendance, the elder child’s inappropriate conduct at school and development of a gaming addiction in the father’s care. It was emphasised that the elder child is not yet 14 years old, yet the father treats him as if he is older by allowing him to make choices and by his inability to have the elder child spend time with the mother;
(f)The allegations of abuse in the mother’s household have been exaggerated, but she and the step-father must commit to a calm home and to not use physical discipline;
(g)Although significant emphasis was not placed on the children’s aboriginality, it is significant that the father was dismissive of it altogether; and
(h)Based on the foregoing, it is submitted by the ICL that the mother should have sole parental responsibility for both children and they should live with her. This would also permit the siblings, including the younger half-sister, to all be united.
Regarding parental responsibility, counsel for the ICL acknowledged that it was a significant step to remove a parent’s parental responsibility by court order, but as there were limited decisions to be taken and there is little possibility of the parents respectfully conferring for the purpose of joint decision-making, the Court should make an order for the mother to have sole parental responsibility for both children.
Alternatively, it was submitted that if I were to conclude that it is in the elder child’s best interest to remain living with the father, the father “may have sole parental responsibility” for him.
I asked the ICL’s view about the children living in an equal shared time arrangement, given the underlying tenor of the father’s case that he had been excluded from participation in parenting the children. Counsel for the ICL submitted that this would not alter the father’s views of the mother and that the Court should not pander to the father’s feelings of resentment by making orders of that kind as that would not be consistent with the children’s best interests.
Counsel for the ICL submitted that the Court should make orders for a graduated return to the children spending up to four nights a fortnight with the father and half the school holidays on the basis that they were ordered to live with the mother. Because the mother’s case outline submitted that the father’s time should be supervised initially, I interpret this oral closing submission to be that final orders could eventually provide for four nights unsupervised time in the father’s care.
The mother’s submissions
Counsel for the mother largely agreed with the submissions of Counsel for the ICL. However, he submitted that parental responsibility should follow (which I took this to mean, be consistent with) the Court’s determination about primary care and with whom each child lives.
Regarding the question of vaccination, the mother’s counsel submitted that the authorities were clear and that decided cases consistently have favoured orders that permit vaccination. In this case, he submitted, there is no evidence that the children have health issues that contraindicate them receiving Covid-19 vaccinations.
It was submitted that the evidence clearly establishes that the elder child is on a path to potential disaster, that this has all occurred while the elder child has been in the father’s care, and that it is due to the father’s lack of parenting skills, including being permissive and being blinded by hatred of the mother.
Agreeing with Counsel for the ICL, the tenor of the mother’s position is that it is necessary to make orders that the children both live with the mother to prioritise their protection from harm. In addition, the Court should make injunctive orders that restrain the father from spending time with the children outside of the time ordered by the Court. It was submitted that once the children return to the mother’s care there will need to be a ‘cooling-off’ period of about one month where they do not spent time with the father, after which they can then recommence spending time with him.
Counsel for the mother and ICL implied that I should find that the father had concocted the younger child’s claim that the mother hit him with a wooden spoon as an excuse for having him travel to his father’s home and stay there.
I have not been persuaded to make such finding. The father emphatically denied that this was the case and I have found him to be a largely credible witness. Regarding the father’s message to his solicitor, as evidenced by the mother’s affidavit filed 7 July 2022 at Annexure 1, it appears to have been a sporadic reaction seeking legal advice about what to do in view of the interim orders. It was sent before the younger child apparently said the story about being hit with the wooden spoon was not true which is in my view inconsistent with a person who has deliberately set out to devise a story justifying retention of the child. His statement that he would return the younger child to school the next day rather than to the mother immediately appears consistent with what is apparent from his evidence, namely that he has difficulty affording travel and transport costs.
Further, the ICL’s advice to the parties dated 27 June 2022[70] notably does not say that the story was invented by the father, simply that she believes it was invented. Nobody seems to have considered the possibility that the children were complicit with each other, noting the elder child’s involvement in the events of that afternoon.
[70] Affidavit of the mother filed 7 July 2022 at Annexure 3.
The father’s submissions
Counsel for the father submitted that the father was an honest witness, whereas the mother was prepared to hide things from the Court. Further, that the mother had misdirected the school about the reason why the younger child was not attending school when he should.
It was said that the mother withheld the younger child from spending time with the father for twelve weeks on the basis of manipulation, in circumstances where the ICL had advised that there was no reason why the younger child should not be spending time with the father.
It was submitted that there was no evidence before the Court that the mother had attempted to see the elder child outside of family therapy, but that she had every opportunity to do so without needing to contact the father.
Counsel for the father submitted that he made no criticism of the experts who gave evidence, but if the mother had been frank with them then they may have made different recommendations. For example, the Court Child Expert was unaware of the family violence between the mother and the step-father.
It was submitted that the mother has difficulties in managing her emotions and this warranted the children spending shorter periods in her care. Counsel went further to submit that the mother’s time with the children should be supervised by the maternal grandmother, with whom the children have a good relationship.
Supervision of the mother’s time with the children was said to be needed because:
(a)The mother lacked insight into her behaviours and use of physical force;
(b)The mother does not encourage the children to spend time with the father;
(c)The mother left Adelaide and then did not let the children spend time with the father, necessitating that he commence proceedings in this Court;
(d)The father is better able to meet the children’s needs; and
(e)The mother has kept the younger child from school to defeat the father spending time with him.
Responding to the criticisms about the father’s parenting capacity, Counsel submitted that this has been in part due to lack of financial resources, but that he has made improvements; for example, getting the elder child to and from school, and that there is no suggestion that the elder child is unhappy.
Counsel for the father submitted that the Court should be concerned about the family violence committed by the step-father and that it warranted protecting the children from further risks of such behaviour.
Responding to the suggestion that the Court should make orders for both children to live with the mother and suspend the children’s time with the father for a period, Counsel for the father submitted that the father had demonstrated an ability to support the children’s relationship with the mother, but the mother did not support his relationship with them.
It was submitted that the children should live with the father for all the foregoing reasons and over time as the children mature and tensions would fall away, the mother’s time can increase and progress from supervised to unsupervised.
Emphasis was also placed on the importance of not separating the children, implying that this relationship was of greater importance than that between the children and the younger half-sister.
Evaluation of evidence and findings
Primary considerations
Given the manner in which the mother conducted her case, it is not necessary to make any express finding about whether the father perpetrated family violence on the mother prior to their separation, but I note that the only Police Family Violence order against the father post-dates the parties separation.[71]
[71] Exhibit –F2
As I understood the mother’s case, she maintained family violence had occurred in the past but said that it was not particularly relevant in the present proceedings.[72] The concession was consistent with having consented to a final order in 2018 for the parents to have equal shared parental responsibility.
[72] Transcript on 11 August 2022 at page 15, lines 12 to 29.
Based on the evidence of the parties, there is consensus that, despite the conflict between the parties, the children have had a loving and meaningful relationship with both parents. However, I find on uncontentious evidence from all sources that the relationship between the elder child and the mother is fractured. I also find that the relationship between the younger child and the father has been similarly impacted, although probably less seriously.
I find that both children have likely suffered emotional harm to varying degrees due to their knowledge of and exposure to their parents’ conflicts. I find that each parent has to some degree contributed to this because:
(a)The mother has a derogatory view of the father and it is likely the children have appreciated this because she has not shielded them from such awareness;[73]
(b)The father has called the mother delusional and similarly the children likely appreciate that his opinion of the mother is poor;[74]
(c)Both parents have at different times failed to comply with court orders, leading to disagreements in the presence of the children or of which the children have become aware;[75] and
[73] Transcript on 12 August 2022 at pages 25 and 26.
[74] At [56(q)] of these reasons.
[75] For example, see [31], [36] and [56(x)] of these reasons.
Although each parent claims to support the promotion and maintenance of a positive connection between the children and the other parent, their actions have not been consistent with this. Instead, they have continued to disagree, have not compromised, and have not acted to ensure that the children spend significant time with both parents.
The father has consistently alleged that the mother has physically abused the children. I find that the mother has used physical means to discipline the children, but it is not to the extent portrayed by the father and has been exaggerated.
I have arrived at the above finding because of:
(a)The mother’s admission that she had used physical smacking when the children were younger;[76]
(b)The younger child’s innocent and frank report of his mother having a temper;[77]
(c)The opinion of the Court Child Expert that the mother’s parenting style is rigid and authoritarian;[78]
(d)The children’s reports of physical discipline to the Court Child Expert and the Single Expert sounded as if they had a “ring of truth” and in some instances were detailed accounts;[79] and
(e)The Single Expert’s view that there was probably underlying credibility in the children’s accounts of this occurring in the past.[80]
all of which collectively persuade me that the mother has resorted to physical discipline at times and is likely to present a risk of physical discipline for the children into the future. The degree of this risk is hard to assess, but noting the fractured relationships and the children maturing and wanting to assert independence, it is at a level which cannot be ignored.
[76] Transcript on 12 August 2022 at page 35, lines 23 to 27.
[77] SIR at [75].
[78] At [65(d)] of these reasons.
[79] SIR at [60], [86], and [95]; Single Expert Report at page 23; at [91] of these reasons.
[80] Single Expert Report at page 23.
However, the father’s hypervigilance trait,[81] combined with his own experience of receiving extreme physical discipline as a child has likely influenced him to over-react to the children’s reports. His response to the children’s reports are also likely influenced by a strong sense of grievance that the mother has limited his opportunities to be a part of the children’s lives. Because of the mother’s actions and attitude of the father referred to at [121] above, I consider that there is some substance to his grievance.
[81] Single Expert Report at page 15.
Section 60CC(3) considerations
I make the following findings based on evidence I accept or prefer, and for the reasons given.
The younger child has conveyed inconsistent wishes about the parent with whom he wants to live.[82] More lately, the mother has said that he is anxious about spending time with the father and he has in fact not spent time with the father since about July 2022.
[82] SIR at [82] and [108].
I am satisfied that the younger child’s failure to spend time with the father has arisen due to multiple factors. I find that the immediate reason is the mother’s failure to act consistent with the ICL’s advice[83] and in compliance with the court orders. Underlying this reason is the younger child’s reaction to being embroiled in this dispute of which he is acutely aware and probably feels caught in the middle. This predictably would provoke anxiety.
[83] Affidavit of the mother filed 7 July 2022 at Annexure 3.
I also make the above finding based on my acceptance of the evidence that the younger child is more malleable, wants to please, is immature and has been emotionally impacted by the parenting dispute, noting the content of the general practitioner progress notes and the Court Child Expert’s views.
The elder child has conveyed a strong desire to live with the father.[84] He has, for all practical purposes, rejected any contact with the mother. However, the reasons for this are likely complex, ranging from a preference of freedom in his father’s care, resistance to the rigid structure and authority in his mother’s home, and immaturity which has left him closed and resistant to reunification.[85]
[84] SIR at [84].
[85] At [56(u)], [65(e)] and [79(c)] of these reasons.
The elder child has a close and loving relationship with the father and idolises him. They have a highly focussed and common interest in computers and gaming, and the father’s values of freedom of choice enable the elder child to meet his immediate preferences and desires about which he is not yet mature enough to make good decisions.[86]
[86] At [64(f)] and[65(e)] of these reasons; Single Expert Report at page 13.
I find that the elder child’s relationship with the mother is loving and historically well-founded, but currently fractured. I find that the cause of the fracturing is his immature preferences and choices and also being aware that his mother has categorically denied any form of physical punishment of the children.[87]
[87] Transcript on 12 August 2022 at page 105, lines 26 to 32.
The mother has been the elder child’s primary carer for his entire life until mid-2021 and, accepting the views expressed by the Court Child Expert, I find that there is a reasonable prospect that in time a more positive relationship will be re-established between the elder child and the mother.
Despite the present difficulties with the relationship of the younger child and the father,[88] the observations and views of the Court Child Expert and the Single Expert demonstrate that there is a loving and solid basis, which has been eroded temporarily due to the events within these proceedings.
[88] At [121] of these reasons.
The mother has always been the younger child’s primary carer apart from a number of weeks in mid-2021, and I find that their relationship is stable and loving, despite findings that at times the mother has used physical punishment to discipline him.
Both the children had a very loving and close relationship with their younger half-sister until the events of around mid-2021. It is evident that the relationship between the younger child and the younger half-sister has been restored since he has returned to live with the mother. Sadly, because the elder child has resisted spending time with the mother, he has missed spending time with his younger half-sister and she with him. The negative effect of this is obvious and is referred to clearly by the Court Child Expert[89] and in the step-father’s evidence,[90] which I accept.
[89] SIR at [47], [105], and [125].
[90] At [44] of these reasons.
The majority of the evidence points to there being a positive and supportive relationship between the step-father and the children. From about 2015 until about mid 2021 he has been a co-caring unit with the mother. Since the younger child returned to live with the mother, the step-father has continued to assist the mother with care for the younger child.
I find that there is limited probative evidence of any physical abuse/discipline of the children by the step-father. The only particularised evidence relates to the water bottle incident. The step-father gave a detailed account of it and was not challenged in cross-examination. I accept the description of the incident he gave, which appears to have been exaggerated in the account given to the police.[91]
[91] Exhibit F-3 at page 4.
While it was not optimal to tap the elder child on the head with the empty water bottle, I do not consider it was done in spite or that it was intended to physically harm him. It is likely that there remains a prospect of a good relationship between the elder child and the step-father, noting the observations of the Court Child Expert.[92]
[92] SIR at [10] at [105].
The father says he has not participated in decision making in the past for the children. This is consistent with the mother’s evidence. I find this has likely resulted due to the mother’s primary care role and her authoritative parenting style, whereby she likely did not see fit to involve the father whom she regards negatively.
In addition, based on her concessions, I find that she has avoided contact with the father and did not communicate with him about major decisions, despite agreeing to an order for equal shared parental responsibility. It appears that she was intent on limiting any need to experience interaction with the father as she found it unpleasant.
I find that, to the extent the father has not participated in decision-making, it has been because the mother has not included him or has only advised him after decisions were taken. That said, I find that the father has agreed or not disputed the decisions taken until recently in respect of Covid-19 vaccination[93] and now where the children should reside.
[93] At [56(w)] of these reasons.
I find that prior to the commencement of these proceedings, the father had sought to ensure he spent regular time with the children in accordance with the 2018 final orders. However, there have been difficulties on a significant number of occasions,[94] and the mother has also at times failed to comply with those orders.
[94] Exhibit F-2, categorised as family arguments
The he father has also failed to comply with the 2018 final orders when he withheld both children in mid-2021 and then later after the interim orders were made on 24 September 2021 when the elder child was not returned to live with the mother.
I find that both parents have communicated with the children. In the father’s case such communication was not always in a reasonable and child-focussed manner. In the mother’s case, I accept that she has endeavoured to communicate reasonably and in a child-focussed manner, but she has not shielded the children from her views of the father. These findings arise from concessions given in evidence and from the views of the Court Child Expert and Single Expert.[95]
[95] SIR at [119]; Single Expert Report at page 24; at [56(q)] and [56(r)] of these reasons.
Little emphasis was placed on the respective ways in which the parents have contributed to the maintenance of the children. It is uncontested however, that the father has had limited means to contribute to the children’s maintenance. I infer from this and the fact that the mother and step-father have had primary care of the children for years, that they have principally maintained the children from their earnings. More recently, I infer from the evidence that the father has contributed to the elder child’s maintenance as he has primarily lived in his care.
The changes to the children’s living arrangements since mid- 2021 have caused complete instability and each parent has at different times acted contrary to court orders. I find that in this regard the collective actions of the parents have likely caused instability and emotional harm to the children.
A further change to the current primary living circumstances for each children is likely to be a cause for concern given the Court Child Expert and the Single Expert’s views.[96] However, the younger child is likely to adjust to spending more time with the father if:
(a)Both parties desist from denigrating the other, restrain from discussing the proceedings and disputes about their arrangements with the children and abide by court orders;
(b)The mother encourages and facilitates him to spend time with the father and speaks positively of the father; and
(c)The younger child is assured by the father that he will return to the mother’s care after spending time with him, which can be achieved by mandatory injunction.
[96] At [64(d)], [65(b)] and [69] of these reasons.
Despite the above, I find that the younger child would not well tolerate living primarily with the father and requiring him to do so would be a further change in circumstance likely to cause aggravation of emotional harm to him given the findings at [122], [123] and [128] to [130] of these reasons.
Given the strength of the younger child’s relationship with his younger half-sister, there is likely to be a further negative emotional impact on both of them if he were no longer living primarily in the mother’s household.
Noting the inability of the ICL and the parents to facilitate the elder child’s return to the mother’s care following the interim hearing, I infer that he will again be defiantly resistant and refuse to live primarily in the mother’s care. Alternatively, there will be real risk of emotional dysfunction and negative impacts on other members of the mother’s household, including the younger half-sister if he was forced to do so contrary to his wish. This finding is based on the acceptance of the evidence the Court Child Expert, in response to my enquiries about the proposals outlined at [68] and [99] of these reasons. It was:[97]
Well, if we then test the possible solution of a circuit breaker and moving [the elder child] into the care of [the mother] and [the step-father], the impression I have from the events since the middle of – or when these proceedings first came before me is that [the elder child], as a fairly strong-willed, now nearly 14 year old, is going to push back, potentially rebel, and if that’s occurring in [the mother]’s household, isn’t it important for me to also give consideration of the impact of that on [the younger child]? Yes.
And the [half-sister], the [younger half-sister]. So it is a really delicate balancing exercise of managing those risks and it seems to me that it’s not straightforward. What’s your comment about that? Look, I definitely agree and, like I said, the risk to [the elder child] is different to the risk to [X] and to – I think it’s [younger half-sister], isn’t it? Because it seems likely that [the elder child] may at times become physical. He certainly, you know, accused [the mother] and [the step-father] of being physical with him. He’s large enough to become physical. So that is a challenge that they would need to be managing. In saying that, yes, he was previously quite a compliant child and, again, some of it would be depending on [the father] in terms of not picking him up or actively, you know, letting him know that he can return home, like making it very clear that that’s – well, to his home, because if he isn’t able to do that then, you know, it’s going to be really challenging for [the elder child] to – if he’s getting mixed messages, he has been getting mixed messages now for some time. [the elder child] loves [younger half-sister] and [the younger child], and he was observed to be very kind to them, but that was a very short observation and is different from if you have a nearly 14-year-old in a – you know, who’s at home, bored, wanting to go on gaming and, you know – and I think that they’re going to need a lot of support. If I were – I would suggest that [the mother] and [the step-father] would probably benefit from one of the intensive intervention programs, like an [IFS] program, if that did happen. So it is complex. The interplay of risk is complex, because what the risks are to [the elder child] isn’t necessarily the risks for [the younger child] and isn’t necessarily the risks to [the mother] and [the step-father] or to [younger half-sister], and the risks will change as the situation evolves. So, I mean, having a professional in there to do safety planning as things happen would probably be really useful, but I don’t think a family therapist is necessarily appropriate for that, but someone who – like an integrated family support worker who manages risks for child protection would be probably useful in relation to that. So, yes, I can’t say that [the younger child] wouldn’t be negatively – or [younger half-sister] wouldn’t be negatively affected to quite a substantial agree, but the hope would be that [the mother] and [the step-father] would access support to protect them.
[97] Transcript on 29 September 2022 at page 8 line 44 to page 9 line 31.
No submissions were made about the practical difficulty or expense of the children spending time with and communicating with their parents regardless of what orders are made. Accordingly, I make no findings about this consideration.
The mother has proven capacity in providing for the children’s daily needs as she has been their primary carer for years. I also accept the evidence of the Single Expert, that she is more attuned to the children’s needs.[98]
[98] At [85] of these reasons.
Based on the father’s concessions[99] and the apparent deterioration in the elder child’s functioning as opined in the reports of the Single Expert, CCE and the H High attendance records,[100] I find he has limited capacity as a parent to provide for the children’s needs. In addition, I find that his attitudes or values about freedom of choice are not suitable for the children.[101]
[99] At [56(i)], [56(o)], [56(p)] and [56(x)] of these reasons.
[100] Exhibit 1CL- 3
[101] SIR at [123].
However, the father’s evidence demonstrated some capacity to inform himself of issues relevant to parenting. For example, Covid-19 vaccines, “coaching” techniques he said was addressed in parenting programs, and public transport for the elder child. I consider that his application of information and learnings appears somewhat misguided and not always appropriate. That is, he demonstrates some good intent. For example, he refers to principles of coaching, but he has not been able to apply them successfully to ensure the elder child spent time with his mother or to limit the elder child’s gaming time.
I find based on the evidence, that both children are not particularly mature for their ages.[102]
[102] SIR at [124]; at [59], [65(e)] and [85] of these reasons.
There was no evidence in chief by the mother about there being aboriginal culture in her family. The ICL elicited without objection some evidence about this, but it is apparent from the mother’s evidence that it is not a large feature of her identity and her case outline states that s 60CC(3)(h) of the Act is “not relevant”. The father’s evidence about this consideration demonstrates he would not be sensitive about or promote aboriginal culture.
Both parents have at times demonstrated a less than satisfactory attitude to the interests of the children and responsibilities to parenthood.[103]
[103] SIR at [119] and [127]; Single Expert Report at page 24.
Although counsel for the ICL and the mother both submitted that the evidence demonstrated that the father had deliberately influenced the children to falsely accuse the mother and the step-father of physically abusing them, I am not satisfied on the balance of probabilities that is so. More likely, the children have complained about physical discipline and the father has over-reacted and not dealt with the issue in an appropriate manner.
I find that the father has to a degree encouraged the elder child to spend time with his mother, but he does not have the parenting skills to ensure the elder child is persuaded to do so. His philosophy of freedom and permissive parenting means he does not go far enough to encourage the elder child and he has not effectively used techniques such as withdrawing privileges or positive reinforcement of attendances.
At a minimum, the children witnessed verbal abuse and arguments between their parents[104] and quite possibly also witnessed the incident between the step-father and the mother in 2015. It is probable that children were present at the time of the 2015 assault by the step-father and they may well have some awareness of the events surrounding it.
[104] Exhibit F-2; Exhibit F-6.
I find both parents have demonstrated less than optimal attitudes and approaches to parenting by their actions in these proceedings, including conveying pejorative sentiments of the other, and non-compliance with court orders.
I consider it unnecessary to make a specific finding about whether the father committed family violence against the mother because of the concession that it was historical and not particularly relevant to the present proceedings. Further and in any event, I am satisfied for other reasons given below that the parties should not have equal shared parental responsibility.
The father seems to have little appreciation that objectively his manner is experienced by others as overbearing. However, it would seem that he has gained some insight about this.[105]
[105] At [50(g)] of these reasons.
I find that the children have been subject of and exposed to parenting proceedings and witnessed disagreements about implementation of the 2018 final orders and the 2021 interim orders. Accepting the evidence of the Court Child Expert about the impacts of this on children, I agree with the submission by counsel for the ICL that it is necessary to make orders that as much as possible limit the emotional harm continuing. However, given my findings above about the mutual conduct of the parties, this will be a very difficult balancing exercise of competing risks for both children.
DETERMINATION AND CONCLUSION
Parental responsibility
Having heard and observed both parties extensively under cross-examination and having considered the reports of the Single Expert, whose views I largely accept, I acquired a clear understanding of their personalities. Those personalities, in my view, have played a considerable part in the unfortunate recurring disputes to which they have exposed the children.
In psychometric testing conducted by the Single Expert, both parties returned significant elevation in particular paranoia sub-scales, the mother’s relating to persecution and the father’s to hypervigilance. The results indicate the father is likely to be vigilant/guarded and the mother quick to believe she is being treated inequitably, [106] which in combination tends to a high level of mutual distrust and inability to cooperate.
[106] Single Expert report 22 April 2022 at page 15 - 16
Both parents were regarded as likely to have strained working relationships and in the mother’s case strained personal relationships too.[107]
[107] The Single Expert Report at pages 15 and 16.
The mother tended to diminish, deflect or seek to excuse facts and events that did not suit her case. For example, her evidence about the significant incident of family violence with the step-father, justification for seeking to make changes to collection or changeover arrangements pursuant to the 2018 final orders and non-compliance with the 2021 interim consent orders concerning the younger child. An example of her persecutory personality trait was the evidence she gave at [34], which did not appear to acknowledge the character of the elder child and the father’s limited parenting experience.
I accept the submission by counsel for the ICL that the mother was not as forthright as she ought to have been. This causes me to be cautious about accepting her evidence as wholly reliable and I do not uncritically accept the views of the Experts about her having a better capacity to encourage the children’s relationship with the father.
I consider the father was somewhat more frank about shortcomings in his parenting capacity, but I accept that he lacks full insight into his personally and how it impacts on parenting. He attributed the shortcomings to lack of experience. But in part it is due to absence of full insight and also his manner of communication and demeanour which is blunt and arrogant. He does not appear to be aware of how he is received and in particular, negatively experienced by the mother and possibly the younger child based on the mother’s evidence.
Further, each parent had almost diametrically opposed views of their children and those views no doubt have led to a lack of correlation or harmony in parenting approaches which has capacity to confuse and unsettle the children.[108]
[108] The Single Expert Report at pages 17 and 18.
Collectively my findings lead to the conclusion that the parents are incapable of effective and harmonious joint decision-making. Their conduct to date also leads me to the view that no matter what intervention is taken, that will not likely change.
Accordingly, regardless of whether the presumption of equal shared parental responsibility is rebutted because of family violence, it is not in the children’s best interests for there to be an order for equal shared parental responsibility. Instead, the parent with whom each child primarily lives ought to have sole parental responsibility for that child, however they should also inform the other parent of intended decisions before taking major or long term decisions about each child.
As to the question of vaccinations, there is no evidence about the elder child being particularly susceptible to Covid-19 and while there is commonly distributed information about the benefits of vaccination generally, I consider there is insufficient evidence to make a specific order about this. No expert evidence was sought to be adduced about this topic by the mother and the evidence sought to be relied on by the father was determined to be inadmissible. In these circumstances, I consider that no specific order for vaccination of the elder child is necessary and the father who will have sole parental responsibility for him will need to make decisions as and when they arise about vaccination. The mother will make those decisions for the younger child consistent with the order for her to have sole parental responsibility for him.
Where the children should live
Weighing and evaluating the factual findings about the relevant consideration in s 60CC(3) of the Act and guided by the paramountcy principle, I conclude that the elder child should primarily live with the father, but subject to specific restraints about the time he spends on computers and gaming.
Given the entrenched fracturing of the elder child’s relationship with the mother, unimproved with family therapy, and the ICL’s inability to have him return to the mother’s care, it is not conceivable that a change of residence could be successfully achieved without further emotional harm to all the children. Further, even if he did return to live the mother’s residence pursuant to a court order, the consequent detrimental impacts on other members of the household are such that this is to be avoided.
For the elder child, continuing to live with the father is the least harmful and the risks of harm can be satisfactorily addressed by appropriate restraints and injunctions. The view of the Child Court Expert about how the eldest child could be successfully transitioned to live with the mother was unpersuasive.[109] The difficulties likely to arise if such an approach is taken are discussed in my findings and I was not convinced that they could be overcome by use of a parenting support service. There was no evidence that the service was in fact available, could be funded and I doubt the mother would readily accept advice and guidance given the findings about her personality and parenting style.[110]
[109] At [65] of these reasons.
[110] Findings at [168] to [170] of these reasons.
I conclude that the younger child should primarily live with the mother, noting that he is stable and presently secure living there. I reject the proposition that the mother exposes him to unacceptable risk because of use of physical discipline, emotional harm or non-compliance with orders because these risks can also be satisfactorily ameliorated by restraints and injunctions. Further, the spotlight of these proceedings and the Court’s orders have operated to warn the mother that such discipline is not to be used.[111]
[111] For example, at [80] of these reasons.
Essentially, it is in each child’s best interest to live with the parent with whom they currently respectively reside, as this involves minimising exposure to various risks of either physical or emotional harm referred to in the above reasons.
Each child should spend more than a token amount of time with the parent with whom they do not primarily live, and with their younger half-sister and step-father. This is necessary to ensure their sense of belonging and recognition of the importance of this to their identity, stability and security as they grow up. Significant time in each parent’s care will also enable maintenance of mutually loving and meaningful relationships which have been more recently fractured. It creates opportunity to rebuild relations that have been adversely impacted in the last couple of years.
I am not satisfied, given my reasons at [126] that the elder child’s time with the mother needs to be supervised, but it is in the children’s best interests that there be injunctive restraints for their personal protection which restrains both the mother and the step-father from using physical discipline on the children. In addition, the elder child is of an age he is likely to report physical discipline and self-protect/self-select.
I am not satisfied that the younger child’s time with the father needs to be supervised because I am not persuaded the father orchestrated the lie about being hit with a wooden spoon.[112] In addition, the restraint orders I propose to make will guard against what I assess to be a low but possible risk of the father manipulating him. In any event, the amount of time he will spend with the father and how it is structured pursuant to the Court’s orders will minimise the risk of him being alienated from the mother, subjected to emotional harm, deteriorating at school or becoming overly reliant on gaming due to limits in the father’s parenting capacity.
[112] At [106] and [107] of these reasons.
The primary living and spend time with arrangements necessarily should differ for each child given the weight I attribute to their wishes noting their respective ages and quality and nature of their relationship with each of the parents. In the elder child’s case, I consider the risk of either emotional or physical harm attaching to being forced to live primarily with his mother is more than those attaching to remaining in the father’s primary care on the proviso injunctive restraint orders are made.
In the younger child’s case, his routines, interests and activities are more likely to be supported and promoted in the structure within the mother’s home. However, if he spends no time with his father this is likely to be emotionally harmful noting the loving and meaningful relationship he has had with the father as reported by the Single Expert and Court Child Expert.
The Court’s parenting orders need to shield the children from the risks of physical or emotional harm which each parent poses for different reasons, while preserving as much as possible the loving sibling relationship with their younger half-sister.
The children will live and spend time with the father and mother in a fortnightly arrangement, involving rotation of 2/5/7 for the elder child and 9/5 for the younger child. This will permit them to overlap their time in each household and also have some time alone in each household. In practical terms, the elder child will spend nine nights a fortnight with the father and five with the mother involving two changeovers in the fortnight. The younger child will spend nine nights a fortnight with the mother and five with the father, involving one changeover per fortnight.
In concluding as I have at [186], I have not ignored the submission by counsel for the ICL referred to at [98] of these reasons. The conclusion I have arrived at recognises necessary risk minimisation for both children and providing an effective avenue to the repairing of the children’s fractured relations with both parents.
In order to avoid or minimise the risk of ongoing conflict arising from the communication difficulties or barriers I have described elsewhere, there will be an order that the parents communicate using text or email and responses are to be given within 24 hours, except if it is an emergency in which case responses should be as soon as possible. Otherwise, the arrangements will essentially entail parallel parenting and each parent will not interfere when the children are in the other party’s daily care.
Further, to avoid conflict the orders will provide that all changeovers occur at the beginning or end of school and, should changeover fall on non-school days, outside the maternal grandmother’s residence.
To avoid complication, which in my view will only create a risk of ongoing conflict and dispute, there will be no orders directed to special occasions as the rotation of days is sufficiently frequent such that over time those occasions will be experienced by the children at times with each parent as “swings and roundabouts” are likely to occur. In any event, there is nothing preventing the parent who does not have one of the children on their birthday or Father or Mother’s Day celebrating the occasion on the next opportunity the children are together in their care, which will occur frequently and regularly.
The only exception to the above is that the children will spend alternate Christmas Days or Boxing Days with each parent. To the extent this interrupts the regular live with and spend time orders, they are suspended and must then continue according to the regular rotation as if it had not been interrupted.
There will be restraints against non-denigration and involving the children in discussion about these orders or parenting arrangements similar to those that were in the interim orders, albeit that in the past the parties seem to have not complied with them. Both parents should be aware that the Court will take very seriously any further or continuing non-compliance with its orders in view of the sad history and impact on the children which was forecasted in the interim reasons for judgment, but not heeded.
As the orders I intend to make are not ones that any party proposed the Court make, I will hear submissions about the draft orders circulated with this judgment, but confined to practical issues or unforeseen consequences.
I certify that the preceding one hundred and ninety-five (195) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 21 December 2022
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