Galaska & Galaska
[2021] FCCA 1371
•18 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Galaska & Galaska [2021] FCCA 1371
File number(s): BRC 9651 of 2020 Judgment of: JUDGE TONKIN Date of judgment: 18 June 2021 Catchwords: FAMILY LAW – Children – application for interim parenting orders – two children – numerous affidavits filed – approach to parenting disputes – nature of interim proceedings – application to re-open interim parenting hearing – costs. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 60I, 61C, 61DA, 63B, 63DA (1), 65D, 65F (2), 65F (3), 69ZN
Family Law Rules 2004 (Cth) rr1.05, 24.03 (1)
Cases cited: Bankruptcy v Bradshaw[2006] FCA 22
Carver & Hahn [2014] FamCA 470
Cook & Cook (No. 6) [2010] FamCA 810
Deiter & Deiter[2011] FamCAFC 82
EB v CT[2008] QSC 306.
Fiato & Chimin [2020] FamCA 61
Goode & Goode [2006] FamCA 1346
Marvel & Marvel[2010] FamCAFC 101
Reid v Brett[2005] VSC 18
SS & AH [2010] FamCAFC 13
Suell & Suell (Re-Opening) [2009] FamCA 55
Number of paragraphs: 240 Date of hearing: 26 March 2021 and 1 June 2021 Place: Brisbane Counsel for the Applicant: Mr Page Solicitor for the Applicant: Michael Dwyer Solicitor Counsel for the Respondent: Mr Dodd Solicitor for the Respondent: Best Wilson Buckley Family Law Counsel for the Independent Children’s Lawyer: Ms Bertone Solicitor for the Independent Children's Lawyer: TLG Law ORDERS
BRC 9651 of 2020 BETWEEN: MR GALASKA
Applicant
AND: MS GALASKA
Respondent
ORDER MADE BY:
JUDGE TONKIN
DATE OF ORDER:
18 JUNE 2021
THE COURT ORDERS THAT:
1.The application to re-open the interim parenting dispute is refused.
2.The interim orders made by consent on 15 September 2020, on 10 December 2020 and 26 March 2021 remain in force and shall continue until further order save that Order 7 of the orders made on 15 September 2020 is varied as follows:
“The children shall spend time with their father at all times as agreed and failing agreement as follows:
(a)Each alternate Saturday and Sunday from 9 a.m. to 5 p.m. commencing 19 June 2021; and
(b)On Father’s Day from 9 a.m. to 5 p.m.”
3.The Independent Children’s Lawyer has authority to communicate with the Men’s Behavioural Change Program co-ordinator in relation to the progress being made by the applicant in that Program and has authority to provide a copy of the expert’s report to that person.
4.Each party is restrained and an injunction hereby issue:
(a)Prohibiting each party from discussing the parenting arrangements with the children and/or asking either child where the child wants to live and/or how much time the child wants to spend with a parent and each party is restrained from allowing any other person to do;
(b)Prohibiting each party from discussing these proceedings and/or the content of any affidavit filed in the proceedings and/or discussing the content of any expert report or counsellors report or any other material subject to these proceedings with or in the presence of the children and each party is restrained from allowing any other person to do so; and
(c)Prohibiting each party from recording and/or filming the children and allowing any other person to record or film the children.
5.Order 22 of the Orders of 15 September 2020 in relation to the parties attendance at Mediation be and is hereby discharged.
6.The applicant shall within seven (7) days pay to the respondent the sum of $981.50 for his half share of the counsellor’s costs pursuant to Order 12 of the Orders made on 15 September 2020.
7.The applicant shall continue to pay his half share of the counsellor’s costs pursuant to Order 12 of the Orders made on 15 September 2020 as and when those costs fall due.
8.The applicant shall solely be liable for the payment of any invoice rendered by Ms B with respect to her attendance for cross examination by the applicant’s Counsel on 26 March 2021.
9.Costs with respect to the proceedings on 12 February 2021 are reserved to the trial.
10.The proceedings remain listed for trial commencing 15 November 2021.
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 under the pseudonym Galaska & Galaska is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TONKIN:
INTRODUCTION
These proceedings commenced with the applicant (father) filing an initiating application for parenting orders a few weeks following final separation without first complying with the provisions of the Family Law Act 1975 (Cth) and/or the applicable Rules of the Court prior to litigating. Legal practitioners have an obligation to advise their clients regarding the alternate dispute resolution services available prior to commencing proceedings.
The approach to be taken in parenting disputes is set out in section 63B of the Family Law Act1975 (Cth). The use of the legal system is a last resort rather than a first resort. Proceedings were commenced no more than 4 to 6 weeks following the parties’ final separation. The applicant did not file a Section 60I certificate as required under the Family Law Act arguing that the application was urgent notwithstanding that he was seeking a reconciliation of his relationship with the respondent.
The family dispute resolution procedures were implemented for a purpose. That purpose being that research has shown that the best outcome for children following the breakdown of the relationship is for parents to reach a decision or reach agreement about arrangements that are in the best interests of their children. There is a high level of emotion, uncertainty and disruption for all involved including the children at the point of separation. Had the parties utilised the family dispute resolution procedures in my view the outcome for these children is likely to have been less stressful and less intrusive with the children feeling more supported and settled moving forward. Sadly that has not been the case.
It is likely that the manner in which the parties have conducted these proceedings has had a negative impact on the children. Multiple affidavits have been filed in complete disregard of Practice Direction No 2 2017. The applicant has filed no less than 19 affidavits and the respondent 8 affidavits. There have been 6 court events, 3 applications in a case filed, a family report prepared, leave sought to cross examine the family consultant and an application to re-open the interim proceedings notwithstanding that the nature of interim proceedings does not permit the Court to make findings of fact where those facts are in dispute.
As Cronin J said in Carver & Hahn [2014] FamCA 470 at [14] “It is trite to say that in such a limited hearing, I am not able to make any significant findings of fact on controversial and untested evidence”. At [20] he referred to the procedure for making interim parenting orders set out in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 where the Full Court observed “where findings of fact could not be made, the Court should not be drawn into issues relating to the merits of the substantive case which required findings to be made and where those findings were not possible. Any order made in interim proceedings is an order “until further order”.
This matter serves as a timely reminder of how not to approach interim parenting matters. As will be seen from my judgment the children in this matter have been exposed to a highly acrimonious and conflictual environment between their parents and have been heavily drawn into the adult dispute.
BACKGROUND
The parties commenced a relationship in 2001, married in 2004 and separated on a final basis in June 2020. There are two children of the marriage X born in 2011 (now 10 years and 6 months) and Y born in 2012 (now 8 years and 8 months).
Both parties worked prior to the birth of the children. Both children attended C Early Learning Centre for day care and kindergarten from the age of 2 while the applicant worked full time and the respondent worked part time.
According to the applicant the relationship encountered difficulties when the respondent’s father died in 2016.
Both parties alleged they were subjected to family violence during the relationship.
At separation the children were in receipt of paediatric care from Dr D for various health issues.
The applicant contends the parties separated on 22 June 2020 when the respondent left the former matrimonial home with the child. The respondent contends separation occurred following an incident on 11 June 2020. The applicant commenced proceedings for parenting orders on 23 July 2020.
The applicant remains living in the former matrimonial home at Suburb E. The respondent is living with the children in her mother’s home at Suburb F. The applicant runs a business which he established in 2004. The respondent works full time as a professional for Employer G.
The children attend H School and attend counselling with Dr J.
COMPETING PROPOSALS
The applicant sought interim orders for the children to spend time with the parties “equally”. In his affidavit filed on 23 July 2020 he deposed that he hoped the respondent would engage in marriage counselling and reconcile their relationship.
The respondent filed her response on 25 August 2020 seeking interim parenting orders for the children to spend time with the applicant supervised, the children to continue counselling with Dr J, the parties to enrol and complete in a Parenting After Separation Program and orders for the preparation of the Family Report inter alia. In addition the respondent made an application for property orders.
The applicant filed an amended application on 15 September 2020 seeking both final and interim orders for the father to have sole parental responsibility for the children in addition to the following interim orders “that the application be treated as urgent, the time be abridged, the matter be heard ex parte, the children live with equally with each party (sic), the children spend time with the mother as agreed failing agreement each alternate Friday until Sunday” and additional orders for holiday time, special days at the like. The applicant also sought orders for property adjustment.
On 16 March 2021 the respondent filed an amended response seeking interim orders for the children to spend time with their father each alternate Saturday and Sunday, the paternal grandmother to be present and the father to ensure that no person record or film the children inter alia.
On 24 March 2021 the applicant filed an application in a case seeking to set aside order 7 of the orders made on 15 September 2020 and in lieu the children spend time with the father each alternate weekend from after school on Thursday until before school Monday and each Wednesday from after school until 7 p.m., telephone calls each Tuesday and Thursday between 5.30 p.m. and 6.30 p.m. and each alternate Saturday between 8 a.m. and 8.30 a.m. and both parties on a without admission basis “do not drink alcohol to excess”.
On 16 April 2021 the applicant filed an application in a case seeking the application be heard on an urgent basis, the time be abridged and the interim hearing be re-opened prior to judgment being given.
On 30 April 2021 the applicant filed an application in a case that the order for the parties to attend private mediation made on 15 September 2020 be vacated and the matter be transferred to the Evatt list.
On 30 April 2021 the respondent filed a response to the application in a case seeking that the application filed on 16 April 2021 be dismissed, the applicant pay the mediator’s cancellation costs of $3850, the applicant pay his share of the valuation fee for valuation of the Suburb E property and costs.
Documents filed in support of interim parenting orders
As indicated the applicant has filed 19 affidavits in these proceedings while the respondent has filed 8 affidavits. A family report has been prepared dated 10 December 2020. Given the manner in which these proceedings were conducted by the lawyers and the volume of material I reserved my decision.
ISSUES IN DISPUTE
The issues in dispute are as follows:
(1)Family violence;
(2)Alienation;
(3)Children’s involvement with counsellors and other professionals
(4)Compliance with Court orders
A. INTERLOCUTORY PARENTING APPLICATION
Approach to parenting disputes
Section 63B of the Family Law Act1975 (Cth) provides that parents of a child are encouraged:
(a)to agree about matters concerning the child; and
(b)to take responsibility for their parenting arrangements and for resolving parental conflict; and
(c)to use the legal system as a last resort rather than a first resort; and (underlining my own);
(d)to minimise the possibility of present and future conflict by using or reaching an agreement; and
(e)in reaching their agreement to regard the best interests of the child as the paramount consideration.
Pursuant to subsection 63DA (1) of the Act there is an obligation on an adviser (which includes a legal practitioner) when giving advice or assistance to people in relation to parental responsibility for a child following the breakdown of the relationship between those people to (a) inform the person that they could consider entering into a parenting plan in relation to the child; and (b) inform them about where they can get further assistance to develop a parenting plan and the content of the plan.
Subsection 65F (2) of the Act provides that subject to subsection (3) a Court must not make a parenting order in relation to a child unless:
(a)the parties to the proceedings have attended family counselling to discuss the matter to which the proceedings relate; or
(b)the court is satisfied that there is an urgent need for the parenting order or there is some other special circumstance (such as family violence) that makes it appropriate to make the order even though the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or
(c)the Court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a).
Subsection 65F (3) of the Act provides that subsection (2) does not apply to the making of a parenting order if:
(a)it is made with the consent of all the parties to the proceedings; or
(b)it is an order until further order.
These proceedings were commenced in circumstances where the applicant deposed in his affidavit filed on 23 July 2020 at paragraph [35] that “the purpose of this application is to try and put in place a regime that will work for our children in the hope of resolving and continuing our marriage”. He was in fact seeking reconciliation of the marriage. This is not disputed by the respondent.
The applicant claimed the proceedings were urgent alleging he was denied spending time with the children. When he filed his application he was spending weekend time with the children though not overnight.
The applicant deposed that he consented to a Domestic Violence Order on 24 July 2020 for a period of 5 years. He sought to reduce the term of that order and vary the conditions imposed. Notwithstanding the existence of that order the applicant was spending time with the children during the day on weekends. The Domestic Violence Order did not prevent the applicant from spending time with the children.
The respondent deposed that the applicant was in City K from 25 June to 6 July 2020. He contends he returned on 3 July 2020. The respondent contends that when she became aware that the applicant had returned she arranged for the children to spend weekend time with their father. She said the children had spent regular time with the applicant each Saturday and Sunday between 12 July and 16 August 2020.
It is common ground that at the time he commenced proceedings the applicant was spending time on the weekends with the children. In addition he was seeking a reconciliation. It is inexplicable why the applicant commenced litigation in those circumstances.
Requirements under section 60I of the Family Law Act
In his affidavit filed on 23 July 2020 the applicant asserted that the matter was urgent “because the respondent was alienating the children from him, forcing the children to attend a psychologist without his consent, involving the police in his time with the children and in their presence to boost her telling them that he and their home is a risk”. He alleged that the children’s demeanour and general attitude towards him had changed dramatically since separation “late last month in that they seem to be different persons…”.
In his Notice of Risk filed on 23 July 2020 the applicant deposed that “the applicant’s state of mind is affecting her from acting in our children’s interests by denying them time with me and without my knowledge or consent taking them to a psychologist”. He alleged that the respondent was alienating the children and she was brainwashing them. He alleged there was a history of domestic violence “on a lower scale” made worse by the respondent’s alcohol abuse.
Section 60I of the Act requires a party to attend a family dispute resolution conference prior to applying for a Part VII parenting order. The Family Court website stipulates that under the Family Law Act1975 (Cth) a person is required to make an attempt to resolve disputes about parenting issues using family dispute resolution services before applying to the Court for a parenting order (or another parenting order). That was not done in this case.
There exists Compulsory Family Dispute Resolution procedures and requirements for families to try and resolve any parenting disagreement without going to Court. Subsection 60I (2) of the Act provides that the dispute resolution provisions of the Family Law Rules2004 impose the requirements for dispute resolution that must be complied with before an application is made to the Family Court for a parenting order. Pursuant to subsection 60I (3) of the Act the dispute resolution provisions of the Family Law Rules2004 impose the requirements for dispute resolution that must be complied with before making an application to the Federal Circuit Court for a parenting order. See Schedule 1 Part 2 of the Family Law Rules (see Rule 1.05) which applies to all parenting cases. Schedule 1 Part 2 of the Family Law Rules applies to all financial cases.
Subsection 60I (7) of the Act provides that subject to subsection 60I (9) a court exercising jurisdiction under the Family Law Act must not hear an application for a Part VII order in relation to a child unless the applicant files in a Court a certificate given to the applicant by a family dispute resolution practitioner under subsection 60I (8). The certificate must be filed with the application for the Part VII order.
No certificate was filed by the applicant in this matter.
There are exceptions to the requirement for filing a certificate. Subsection 60I (9) of the Act provides that subsection (7) does not apply to an application for a Part VII order in relation to a child if:
(a)the applicant is applying for the order:
(i)to be made with the consent of all the parties to the proceedings; or
(ii)in response to an application that another party to the proceedings has made for a Part VII order; or
(b)the Court is satisfied that there are reasonable grounds to believe that:
(i)there has been abuse of the child by one of the parties to the proceedings; or
(ii)there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii)there has been family violence by one of the parties to the proceedings; or
(iv)there is a risk of family violence by one of the parties to the proceedings; or
(c)all the following conditions are satisfied:
(i)The application is made in relation to a particular issue
(ii)A Part VII order has been made in relation to that issue within the period of 12 months before the application is made;
(iii)The application is made in relation to a contravention of the order by a person;
(iv)The court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order; or
(d)the applicant is made in circumstances of urgency; or
(e)one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or
(f)other circumstances specified in the regulations are satisfied.
There were no circumstances that would bring this matter within the exceptions. There was no reason for the parties not to engage in family dispute resolution procedures particularly in the circumstance where notwithstanding the Domestic Violence Order in place the respondent had organised for the children to spend time regularly with the applicant unsupervised. It was a mere 4 to 6 weeks since the relationship had ended. There was an opportunity for the parents to engage in family dispute resolution procedures notwithstanding the existence of the Domestic Violence Order. There exists an abundance of social science research indicative of the fact that exposing a child to conflict (including litigating parenting disputes) has a negative impact on the child and is inimical to the child’s welfare. Both the children in this matter have been drawn into adult issues between their parents to their detriment.
Section 69ZN of the Act confirms that litigating parenting matters should be the approach of last resort. Pursuant to section 69ZN of the Act that the Court must give effect to the principles under that section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child – related proceedings; and
(b)in making other decisions about the conduct of child – related proceedings.
Subsection 69ZN (2) provides that regard is to be had to the principles in interpreting this Division.
Principle 1
s.69ZN (3) The first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
s.69ZN (4) The second principle is that the Court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned from being subjected to or exposed to abuse, neglect or family violence; and
(b)the parties to the proceedings against family violence.
Principle 4
s.69ZN (6) The fourth principle is that the proceedings are as far as possible to be conducted in a way that will promote cooperative and child – focused parenting by the parties.
Principle 5
s.69ZN (7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality as possible.
The principles under section 69ZN of the Act apply when exercising jurisdiction in interlocutory parenting matters. I reiterate the statements made by the Full Court in Goode & Goode [2006] FamCA 1346 that the procedure for making interim parenting orders is to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court is to consider the less contentious matters, such as the agreed facts and issues not in dispute and must have regard to the care arrangements prior to separation, the current circumstances of the parties and their children and the parties’ respective proposals for the future.
In Marvel & Marvel[2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence during interim proceedings:
“[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted……”
In SS & AH [2010] FamCAFC 13the majority discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
In Deiter & Deiter[2011] FamCAFC 82 the Full Court said at [61]:
“... Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”
Consistent with the principles that apply when considering applications for interim parenting orders the Federal Circuit Court implemented the following Practice Direction:
“Practice Direction No 2 of 2017:
“5.Interim orders may be sought at the time of filing an Initiating Application for final orders or during the proceedings by way of an application in a case. Applications for interim orders must be supported by an affidavit.
6.Pursuant to section 51 of the Federal Circuit Court of Australia Act 1999 the Court directs that unless express leave is granted by the Judge into whose docket the matter has been allocated, affidavit material in support of an interim application must not:
Exceed 10 pages in length for each affidavit;
Contain more than 5 annexures
8.Any interim hearing will be conducted as an abridged process with a circumscribed scope of inquiry….
9.The relevant facts to be relied on by a party at an interim hearing must be set out succinctly in their affidavit material complying with paragraph 6 above. Division 15.4 of the Federal Circuit Court Rules 2001 sets out the rules in relation to affidavits.
10.Where the respondent seeks interim orders additional to those sought by the applicant and the applicant opposes the orders sought, the applicant may file a second affidavit in answer complying with paragraph 6 above, and setting out;
(a)any additional orders sought;
(b)any additional relevant facts relied on in opposition to the respondent’s orders.
12.If a party proposes to rely upon an affidavit which does not comply with paragraph 6 above, parties and practitioners should expect that:
(a) in the discretion of the judge:
(i)non complying affidavits will not be read; or
(ii)the responsible party will be required to select 10 pages out of their non - complying material that they seek to rely upon;
(b) specific costs orders may be made.
13.Documents files less than 48 hours prior to hearing (electronically or otherwise) (“a late document”) cannot be relied upon at the hearing without leave of the Court. A party or practitioner seeking to rely upon a late document must seek leave to tender a copy of the document at the commencement of the hearing.”
There has been a total disregard in this matter to the approach to parenting disputes in Family Law matters. No attempt was made to comply with the pre-action procedures, the relevant provisions of the Family Law Act and/or the Family Law Rules, the Practice Direction and/or the abridged nature of interim parenting proceedings.
EVIDENCE
In his affidavit filed on 23 July 2020 the applicant referred to the history of the parties’ relationship and his involvement with the children. He deposed to “some problems in the marriage due to low levels of family issues potentially defined as family violence with the respondent regularly abusing me both physically, verbally and emotionally”. No particulars were provided. He deposed “while I accepted that abuse, she also raised concerns of similar issues that had arisen for her.” He deposed to an incident on 11 June 2020 which was “an unfortunate incident after I had been home alone and had consumed some alcohol.” The applicant did not depose to the circumstances surrounding the incident. He said the respondent made a complaint to the police that resulted in a “low level Domestic Violence Order.” The applicant deposed that he consented to that order though he sought that the children be removed from the order and restrictions on the applicant approaching the respondent’s home be removed. In addition he deposed that he brought the application in the hope or “resolving and continuing our marriage.” He confirmed that he spent time with the children on 18 and 19 July 2020.
The applicant filed a further affidavit[1] on 26 August 2020.[2] He deposed to two incidents on 11 June 2020 and on 22 June 2020 both incidents having occurred prior to the applicant filing his affidavit on 23 July 2020. The applicant deposed that the parties “continued to live and work as a family unit between 11 and 22 June 2020 and lived in harmony in our home with the children. [paragraph 4 (v)]” He deposed to the time that he had spent with the children. He inferred that the respondent’s sister had encouraged the respondent to take out a Domestic Violence Order against him and accused her of “trying to destroy our marriage.” He alleged that the respondent’s sister had come into his home without invitation on 23 July 2020 and police “needed to be called quickly”. He said he had applied for a Protection Order against the respondent’s sister. He deposed that he was “continuing with marriage counselling in the hope that the respondent will also seek marriage counselling with a view to trying to resolve matters”
[1] Affidavit of Mr Galaska filed 26 August 2020 62 pages (50 pages of Annexures)
[2] No leave was sought to file that affidavit
The applicant claimed the respondent had “serious mental health issues……influenced by her sister”. He alleged that the respondent had a psychotic episode and broke a picture frame over his head in February 2020. He alleged that the respondent was over medicating the children with Ritalin.
On 15 September 2020 the applicant filed a third affidavit.[3] He referred to his amended application filed on 15 September 2020 in which he sought an order that the children live with the applicant “as the respondent refuses to allow the children to spend time with me”. In addition he deposed that he had abandoned his request for marriage counselling. In the affidavit the applicant responded to the respondent’s application for adjustment of property interests.
[3] Affidavit of Mr Galaska filed 15 September 2020 92 pages (70 pages of Annexures)
In the affidavit filed on 15 September 2020 the applicant referred in detail to the incident on 11 June 2020 and alleged that the respondent snapped and demanded that the pet budgies not be with the children and an argument ensued. He alleged the respondent was “yelling and swearing in my face until we both acted out of character”. He said “I believe we both would not be very proud of what happened that night”. The applicant said that the respondent remained in the home that night and the next morning he received a text from her requesting that he apologise for his behaviour.
He alleged that he was a victim of financial abuse on 16 July 2020 when the respondent “exhausted all joint accounts and monies present and withdrew the active credit card”. He deposed that the respondent threw over his head a picture frame to smash in front of the children. He said that both children were visibly distressed and frightened. He alleged that the respondent self – confessed “to heavy drinking and alcoholism”. He deposed that he believed the respondent’s judgment was clouded “and cloaked by her deranged state of mind”.
He alleged that after 22 June 2020 the parties spent time together on 7 July 2020 in the park at Suburb L and on 12 July 2020 at dinner at the M Hotel. He continued to deny that he spent regular time with the children. He raised issues regarding the respondent’s mental health and alleged that she attended upon a psychiatrist in 2017. The affidavit filed on 15 September 2020 included opinions and beliefs expressed by the applicant largely irrelevant to the issues in this matter.
The applicant’s mother filed two affidavits in support of the applicant. She deposed that the respondent attended her home on 18 July 2020. She complained that the respondent brought the police though she acknowledged that the children did not see the police. She deposed to an argument between the applicant and the respondent’s sister on 23 July 2020 about removing some items belonging to the children and feeling intimidated by the respondent.
The applicant relied on an affidavit from his brother filed on 23 July 2020 who deposed that the children’s demeanour had changed and they seemed “totally withdrawn” and X was initially hostile to his son. He deposed that the children seemed to be “brainwashed”. I place little weight on this affidavit. The parties had been separated for a matter of weeks.
The respondent deposed in her affidavit filed on 25 August 2020 that the children had been in her primary care since she left the former matrimonial home on 22 June 2020. She deposed that the applicant was in City K following separation and returned on 6 July 2020. She said she organised for the children to spend time with their father during the day on the weekend and he spent each Saturday and Sunday with the children between 12 July and 16 August 2020. She deposed that she had registered to attend mediation on 29 June 2020 with N Counselling Centre.
She deposed to being the victim of family violence and said on 11 June 2020 she was assaulted by the applicant when he threw objects at her, physically hit her into a door and dragged her to the top of the flight of stairs to push her down the stairs. She said the children intervened and stopped him. Her daughter used her mobile phone to call the mother’s sister and her mother for help. She claimed the applicant told her in front of the children that he was going to kill himself. She deposed that police applied for a Protection Order on her behalf.
The respondent said when she moved out with the children on 22 June 2020 the applicant did not contact her to request to speak with the children between 25 June and 6 July 2020. She sent him a text message on 5 July 2020 enquiring whether he wanted to spend time with the children and he did not respond. She said she arranged for the children to spend time with their father on 7 July, 9 July, 10 July and 12 July 2020. She offered time on 8 July 2020 but he declined. She offered time on 18 and 19 July 2020 but requested that time not occur in the former matrimonial home as the children were distressed about returning to the home. She said in response she received a letter from the applicant’s lawyers threatening to commence legal proceedings and threatening her with indemnity costs. She said despite her requests the applicant spent time with the children in the family home. She said the children were very distressed.
The respondent deposed that she agreed for the applicant to spend day time with the children but not overnight as she was concerned about his “alcoholism, his violence and his mental health”. She deposed that despite her objection to the children spending overnight time with the applicant on 15 and 16 August 2020 the applicant retained the children overnight. The applicant alleged that the respondent’s repeated requests that he return the children to her care constituted “harassment”.
The respondent deposed that through her solicitor she requested that the applicant sign an undertaking that he would not in future retain the children overnight. She said in response his solicitor wrote to the Court requesting that the matter be brought forward and heard on an urgent basis alleging the respondent was “mentally unstable”.
The respondent deposed that on 21 August 2020 she attended the children’s school early only to find that the applicant was already present at the school making his way towards the office front to collect the children. She deposed that she went to the Principal’s office with the children and tried to close the door. The applicant obstructed the doorway with his foot and arm so she couldn’t close the door. She asked him to remove his foot and told him she was scared and did not feel safe. She asked him three times to remove himself. She deposed that the children were very distressed over the incident.
The respondent deposed that the applicant’s request that she resume their marriage caused her great distress. She deposed that on 16 July 2020 the applicant filed an application for a Domestic Violence Order against her. The Court declined to make a Temporary DVO in his favour. In the application the applicant stated that “whilst I say I was provoked by Ms Galaska on 11 June 2020 I regret what happened that day and have accepted a Domestic Violence Order on a ‘without admission’ basis”.
The respondent deposed that she was the victim of family violence during the relationship. She said the applicant caused bruising to her and in May 2016 during a disagreement and when drunk forcibly pushed her and she fell backwards and injured her arm. The respondent said the next day while he was at work, without his knowledge, she drove herself to the R Hospital to have her arm x-rayed, fearing her arm was fractured. She said she lied about how the injury was caused saying she had slipped in the shower.
The respondent deposed that as part of his abuse and to scare her the applicant would punch holes in the walls at our former home in O Street, and then again at the family home in P Street. He would regularly yell and swear and spit at her and threaten to hurt her by ‘shoving his foot up my arse’. She said “it distresses me to hear the girls repeat this same violent threat to each other”.
She deposed that when the applicant was drunk and angry she would hide under the children’s bed or under the office desk to avoid him finding her and physically hurting her. She said he would monitor her spending and would question every transaction including minimal amounts such as coffee purchased during work hours. She said she began to avoid meeting friends for coffee, or her trusted work colleagues would purchase coffee or other items on her behalf.
She deposed that during the relationship, the applicant did not approve of her enjoying close relationships except for his family members. He dissuaded her from having any personal relationships with her immediate family including her mother and her sister Ms Q and close friends such as Ms S. He would often ask her for passwords to her email accounts and her phone. She said he read her emails and personal messages and would comment that it was okay for him to do so and would question whether she was hiding anything.
She said on multiple occasions, the applicant accused her of having an affair, and disclosed his suspicions to the respondent’s mother, sister, his family members and close friends. On occasion he would attempt to coerce her to have sex. He would threaten that he had ‘blue balls’ and ‘if you don’t put out’, it would leave him with no option but to go to the strip club which he frequented with his brother Mr T. He was aware this distressed her and on each occasion he would spend a minimum of $300 at the strip club.
The respondent raised concerns about the applicant’s mental health. She deposed that he has suffered bouts of depression and has used alcohol to cope and to disconnect from reality. He has admitted to her on numerous occasions of his alcohol abuse, the most recent in correspondence sent to her post separation on 28 June 2020. She said the applicant would consume alcohol in the afternoons and forfeit picking up the children from school or from her mother’s home on days he was not at work or finished work prior to 3pm. She said frequently she would ask him if he could pick up the children from school if she was caught in traffic. He would inform her that he was at home and had already consumed beer. He lost his licence in 2018 for 12 months for driving under the influence.
She deposed that often when she and the applicant had a disagreement or argument, he would threaten to self-harm or kill himself. The most recent occasion was witnessed by the children on the 11 June 2020. In September 2019 after an argument, he told the respondent that he drove to the U Bridge and sat in his car for a long time while he considered self-harm. Other times, he would tell the respondent that he wished he crashed his car to end his life.
She said in 2018 the applicant became more aware of his ‘up and down’ behaviour, and upon encouragement from the respondent he saw a therapist to seek support for his depression, anxiety and was no prescribed anti-depressants. He stopped taking the anti-depressants after only two weeks. She said following separation his behaviour became more erratic and unpredictable. She said when the parties were still together X said to her in private “I am worried dad would do something to you and then Y and I will have to live with him on our own”.
She denied that she had shown hostility to the applicant’s mother. She denied that she was abusive towards the applicant and denied she had an alcohol abuse problem. She denied she acted unilaterally and without the applicant’s consent in engaging a psychologist. She said she sent a message to the applicant on 28 June 2020 advising him that she wished to engage a psychologist for the children and invited him to contact the person to discuss this. She said he did not object to her making those arrangements.
The respondent relied on an affidavit from counsellor and mental health worker filed on 11 September 2020 attaching an assessment report. The author deposed that she considered the respondent suffered from PTSD, anxiety, hyper – vigilance and sleep issues as a direct result of domestic abuse she received previously and ongoing currently post separation. She indicated that the respondent would benefit from therapeutic work to support her.
Regarding the applicant’s complaint that the respondent over medicated the children she deposed that X has ADHD, dyslexia, dysgraphia and a language disorder. She was prescribed a low dose of Ritalin in 2019 by Dr D and complies with that medication. According to the respondent there has been a vast improvement in X’s capabilities.
According to the respondent Y has ADHD and a hearing impairment. She also was prescribed a low dose of Ritalin by Dr D and complies with that medication. According to the respondent there has been an improvement in Y’s academic and social ability.
Interim Consent orders
On 15 September 2020 the Court made orders by Consent that the children live with the mother and spend time with the father each Saturday 12 to 5 p.m. and each Sunday 9 to 2 p.m. with changeover to occur at Coles Suburb F. Further orders were made for the children to communicate with their father each Wednesday at 5.30 p.m. via video or viber and for the children to continue counselling with Dr J with the parties to share equally the costs of appointments. The parties were to undertake a Post Separation Parenting Course and an order was made for the preparation of a family report with the costs of that report to be shared equally. I was satisfied on the evidence that those orders were in the children’s best interest and should continue until further order. Orders were also made by consent with respect to property matters including an order that the parties attend mediation in respect of the property matter sharing those costs equally. The matter was adjourned to 10 December 2020 for mention.
Notwithstanding the interim consent parenting orders the respondent filed a further affidavit on 17 November 2020 and the applicant filed two further affidavits.
In her affidavit filed 17 November 2020 the respondent complained that the applicant behaved inappropriately during the time the children were in his care speaking to the children about the Court proceedings and parenting arrangements. She deposed that the children raised concerns that they would not be returned to their mother after visiting their father. X engaged in self harming behaviours by scratching herself and picking at sores. She deposed that the children complained that their father places pressure on them to disclose what they reveal to Dr J during counselling. She deposed that the children stated that the father told them he was disappointed with them for telling Dr J they were scared of him. He questioned the children about which parent they wanted to live with. According to the respondent the children told her they lie to their father to appease him.
In addition the respondent alleged that the applicant continues to denigrate her and her family to the children and remarked that their mother was mentally unwell, “is being manipulated just like a puppet”, “he wanted mama to return home so they could be a family again”, their aunt “is the worst person in the universe…and has ruined everything and is to blame for mama leaving”.
The respondent argued that the applicant demonstrates an inconsistent attitude towards the children’s counselling sessions with Dr J. Though he agreed to an order that the children continue counselling with Dr J the applicant sent the respondent a text message on 22 September 2020 advising that he did not consent to the children attending a therapy session with Dr J “who he said was used as a false pretext to deceitful purposes” and the greatest therapy for the children was to spend time with their father. She said without notice to her the applicant attended X’s therapy appointment with Dr J on 23 September and Y’s appointment the following day. The parties received a letter from Dr J dated 30 September 2020 raising the following issues:
“The ongoing conflict between the parties has impacted her and she has experienced some of the applicant’s statements as threatening and intimidating….”
“The children are in need of therapy and would have benefitted from psychological support..”
“…It is likely the children have experienced high levels of anxiety for some time, which might be associated with exposure to conflict…”
The respondent said upon receipt of the letter she emailed the applicant confirming she thought Dr J was best placed to support the children. The respondent said she did not receive a response from the applicant until 12 October 2020 wherein he said he strongly disagreed with the children seeing Dr J due to his “serious concern of bias and manipulation.” He proposed the children engage with new counsellors. She denied that she provided the children with “bracelets” to remind them of the father’s violence or drinking as alleged by him and denied that she encouraged the children to keep secrets.
The respondent said she advised the applicant that she would continue to facilitate the children attending upon Dr J. She did not receive a response however on 31 October 2020 without her knowledge or consent X reported that the applicant took the children to a counselling session with Ms V. X reported to her mother that her father told her to tell the counsellor that “she wanted to live with dad” and that “mum is not a good mum” and “AA and baba are bad people”.
The respondent raised a concern regarding a dispute between the parents over the children’s continued attendance upon Dr D. She said in July 2020 Dr D advised the respondent that the children’s low dose of Ritalin required review and required one parent to be the account holder. The respondent said the applicant did not respond to her email about the matter and Dr D advised that the children would be referred back to the G.P. A further dispute arose as to who the children would attend upon the respondent suggesting Dr W the applicant disagreeing stating that he did not agree to the children seeing any paediatrician.
A further issue arose between the parties regarding the applicant’s request for consent forms for the children to attend Z Country dance classes, the applicant threatening to contact the Z Country community. The respondent said there are no forms and the children have continued with those classes.
The respondent said the applicant alleged that she was in breach of court orders in failing to inform him of all medical appointments for the children.
The respondent complained that the applicant would not organise a time for her to collect her personal belongings. The applicant complained the respondent was involving the children in the parenting dispute and alleged that the children had told him he was withholding their mother’s shoes. The respondent alleged that the applicant continued to involve the children in the parenting dispute in complete disregard of Court orders.
The applicant filed a further affidavit on 2 December 2020[4]. He recounted numerous conversations he alleged occurred with the children during the weekends that he spent time with them some of which included:
X said “mum told me that she can call the police on you dad if we sleep over…”
Both children stated “mum does not have much money”
X said “the bracelet is to remind me when you said you were going to push mum down the stairs AA told me to say that”
Y said “…..I really want to stay with you but I’m not allowed to..”
[4] Affidavit of Mr Galaska filed 2 December 2020 59 pages (44 Annexures)
The applicant alleged that the children were being encouraged to keep secrets. He complained that the children ignored his mother “as something horrendous had been said….”
The applicant included in his affidavit a response to the affidavit filed by the respondent on 17 November 2020. He alleged that the applicant had lied about the children’s time with him, stating that he was not comfortable using Dr J as the children’s therapist, accusing the separation as being “frivolous and upsetting”, alleging the respondent “fabricated pathological lies,” alleging the respondent had failed to comply with the interim parenting orders, complaining about Dr J’s conduct during counselling and alleging that the respondent provided false information. He complained that he was not informed about a scheduled appointment with Dr D and refused to consent to the children seeing another paediatrician.
The applicant filed a further affidavit on 8 December 2020.[5] He complained that the children knew words to a song and the words were offensive. He alleged the children had been exposed to information that included restrictive content and was inappropriate. He deposed that he had “serious concern of continuous mental torture and abuse presented to the children through fearmongering and inappropriate comments made to them about police and me getting arrested or the constant police comments made to them to scare them”. He said as a consequence he took the children to the police station at Suburb BB on 6 December 2020 and spoke to a constable to reassure them that the police were there to help and the station was a safe place. As can be seen the numerous allegations and counter allegations and involvement of the children in the parenting dispute consumed the parties in this matter. It appears that little regard was given to the interim consent orders agreed upon on 15 September 2020.
[5] Affidavit of Mr Galaska filed 2 December 2020 59 pages (44 Annexues)
The expert released the family report on 10 December 2020 and made the following recommendations:
(a)The Court consider the suitability of equal shared parental responsibility on an interim basis noting the current challenges and allegations of risk within the co-parenting dynamics.
(b)The children live with the mother.
(c)The children spend time with the father from 10 a.m. to 4 p.m. on alternate Saturdays and Sundays rather than shorter times occurring weekly. It is recommended the paternal grandmother remain in attendance.
(d)The children continue to attend therapy.
(e)The issue precluding the ongoing review and treatment of the children with Dr D be resolved.
(f)The father complete the Men’s Behavioural Change program.
(g)Each parent continue with individual therapy.
(h)The Court is likely to be assisted by the appointment of an Independent Children’s Lawyer
(i)The parents strongly consider providing an undertaking not to drink alcohol when the children are in their care.
(j)Future decisions about the introduction of overnight and increase in time between the two homes is likely to be determined by the court relating to allegations of family violence as well as an assessment of positive behavioural change relative to co-parenting and parental attitudes and behaviours.
On 10 December 2020 the Court made additional interim orders by consent that the applicant complete a Men’s Behavioural Change program through CC Counsellors and continue to attend upon his own counsellor. Orders were made for the respondent to attend upon her own counsellor and the parents be restrained from consuming alcohol when the children are in their care. An Independent Children’s Lawyer (“ICL”) was appointed. Orders were made in relation to the property matter by consent including an order that the parties set a date for mediation with the cost of mediation to be met equally between the parties. The matter was adjourned for further interim hearing the family report having been released to the parties.
The applicant filed two further affidavits and the respondent filed a further affidavit. In her affidavit filed on 8 February 2021 the respondent deposed that following spending time with the applicant on 12 December 2020 the children reported to the respondent that their father said “it was all our fault this has happened and that we lied in the family report interviews…we are to blame for everything…the family report was filled with lies….that his plan backfired…X was particularly at fault because of what happened that night with the budgies, mama is the worst fucking person and a complete bitch and mama doesn’t deserve to live”.
The respondent deposed that the children told her their father took them to work “to concrete” and his was punishing them for what they said to the family consultant. She deposed to further statements the children made to their mother about comments made by their father and said that the children had expressed fear that something may happen to the mother. She deposed that X has approached the respondent’s sister and asked her if she could live with her if something happened to her mother.
The respondent deposed that she and the applicant continued to be in dispute over items of furniture and the applicant’s involvement of the respondent’s workplace. She alleged that on 15 December 2020 he emailed her workplace as follows: “To whom it may concern. I am currently going through a frivolous separation with an employee for Employer G. Whilst sorting through personal possessions I’ve come across items that seem to be company property of significant value”. She deposed that she was distressed and upset following his involvement with senior management at her workplace.
The parties continued to argue over the children’s paediatric care. The respondent deposed that on 10 December 2020 the applicant unilaterally contacted Dr D and requested that she reinitiate care for the children and nominated himself as the account holder.
The respondent alleged that the applicant had failed to comply with the consent orders as follows:
(a)Failed to contribute equally to the costs of the children’s counselling with Dr J;
(b)Failed to provide financial disclosure;
(c)Failed to sign the joint letter of instruction for the valuer to value the family home;
(d)Failed to file a financial statement;
(e)Failed to respond to the respondent’s request to arrange a date for mediation.
The respondent deposed that the applicant placed the mortgage on the family home on hold with the bank shortly after separation and continued to occupy that property. She alleged he had only met interest payments and had failed to respond to the respondent’s request that he meet the payment for home and contents insurance. She stated she has taken over those payments. She receives $36.92 per month for the children based on the applicant’s 2018 taxable income which was $23,102. She disputes that income.
The applicant filed an affidavit on 11 February 2021 of 18 pages (6 Annexures) and recounted the time he spent with the children between December 2020 and January 2021. He deposed to the children “being upset of losing time together”, and said Y told him “mum said Santa won’t buy you presents cause you’re bad is this true?” He deposed that the children “polished rocks together and were visibly distraught when they wanted to take them to the mother’s house and were talking amongst themselves what to say to their mum”.
He complained that the maternal grandmother speaks “bad about my dad I stick up for you”. He deposed that “both children carry a heavy burden of a negative household in their mother’s care regarding their father and must be tumultuous having to constantly battle their inner thoughts and feelings”. Throughout the affidavit he repeated comments made by the children about the respondent’s home.
The applicant responded to the family report complaining that he had been denied “any phone calls from the children’s request”. He complained that his 30 minute viber calls had been cut short with the mother’s repeated intrusion. He deposed that the children told him they cut the calls short by pretending to have dinner “it’s our thing with mumma”. He commented on some matters recorded by the expert not relevant to the current matter.
As can be seen from the filing of further affidavits both parties discussed the other parent with the children. I suspect the children are aware of the intense dislike each parent has for the other and perhaps report to the parent what the child believes the parent “wants to here.” I am gravely concerned at the level these children have been involved in the parenting dispute.
The applicant said he explained to the expert that he was a victim of family violence and alleged that the respondent punched him whilst he was in bed, picked up a picture frame and threw it over his head which smashed the incident occurring in the children’s presence, verbally assaulted him by saying “fuck you Mr Galaska fuck you, you’re a piece of shit” and similar comments. He said that the respondent’s expressed fear of being pushed down the stairs by him was “mindboggling to comprehend”. He denied making derogatory or negative comments about the respondent’s sister and mother and denied accessing the respondent’s emails. He alleged that the respondent’s sister was “addicted to speed/ice intravenously and both Ms Galaska and the mother were heavy users of cannabis with the mother using cocaine, ecstasy and cannabis and heavily reliant on alcohol”. He deposed that “several bottles of vodka and boxes of wine were consumed on a daily basis”. He denied “his bin was full of cans”. He denied he called the respondent “bitch/slut” in the children’s presence. He claimed he was a victim of continuous emotional, psychological and physical abuse “presented by the respondent”. He denied he compared the children to other people’s children. The issues of family violence could have been particularised in the first affidavit filed by the applicant.
The applicant denied that he withheld personal items from the respondent. He claimed that the respondent attended his home in the company of police and attempted to ransack the children’s bedrooms “before police stopped her”. He denied the children were scared of spending time in his home.
He said he went on holiday from 25 June to 3 July 2020 and during this time the respondent removed all money from the joint account and cancelled the credit card.
He denied the respondent’s version of events regarding the incident at the school on 21 August 2020.
He claimed the respondent breached the strict policy put in place by Dr D regarding separated parents. He said the issue regarding Dr D providing treatment was now resolved.
He denied he asked the children whether there were cameras in the respondent’s home. He claimed that his presentation was always positive when the children were in his care. He deposed “the constant fear mongering and scare tactics used and progressed to the children has been exhausting.” He claimed that he had been exposed to “mental torture”.
The applicant filed a further affidavit on 12 February 2021. He made allegations that the respondent was “fabricating” matters and denied much of the comments made in the respondent’s affidavit filed on 8 February 2021. He revisited the incidents between December 2020 and January 2021 again in this affidavit. He denied the allegations about the failure to pay insurance and deposed that he continues to pay child support.
On 12 February 2021 the Court ordered the interim orders continue until further order and on the application of Counsel for the applicant that leave be granted for the applicant to cross examine the expert on 26 March 2021.
On 16 March 2021 the respondent filed an affidavit with respect to parenting and property. She deposed that she was concerned that the applicant was filming the children. She said she was told by the children on 13 and 14 February 2021 that the applicant had installed cameras in the children’s bedrooms. X said her father told her about the cameras and said “it’s for when you’re asleep to make sure you are okay”. Y told her mother “I don’t like it. I feel like I’m being watched and that makes me feel uncomfortable and unsafe”. X said “when we are in front of the camera dad asks us where we want to live. I try and change the conversation. I know what he’s doing. He tries to make us say bad things to record us”.
She said the children told their mother that their father continues to interrogates them regarding parenting matters. She deposed to numerous statements allegedly made by the children. On 19 February 2021 the respondent said she wrote to the applicant seeking an explanation for the cameras. No response was received.
On 24 March 2021 the applicant filed an application in a case seeking to set aside the Orders made by consent on 15 September 2020 and in substitution seeking interim orders for the children to spend time with the father from 3 p.m. Thursday until 9 a.m. Monday each alternate weekend, each Wednesday from 3 p.m. to 7 p.m. and to communicate with the children each Tuesday and Thursday between 5.30 pm. and 6.30 p.m. and each alternate Saturday between 8 a.m. and 8.30 a.m. He sought an order that the parties on a without admission basis do not drink alcohol to excess.
Cross examination of the expert
On 26 March 2021 Counsel for the applicant cross examined the expert. Counsel for the respondent and for the ICL did not require the expert for cross examination.
Counsel for the applicant referred to paragraph 215 of the family report noting the expert’s recommendation for interim parenting orders included that the children should spend time with the father on Saturdays and Sundays in each alternate week. The expert acknowledged that the father was currently spending time with the children each week on Saturday and Sunday. She confirmed her view that the children’s time with their father should be reduced.
When cross examined the expert agreed that she recommended that the paternal grandmother continue to remain in attendance for the children’s visits with their father. She said the basis for this order was that the children identify her “as being a big emotional support to them while there’s a lot of stress in the family going on”. She did not stipulate whether that needed to be under the guise of supervision. She said that would be depended on the Court’s assessment of risk.
The expert was asked whether she recommended that the father’s mother take some responsibility in the sense of supervision. She said she had not made the recommendation around supervision but on the basis that the children talked about their anxiety about the circumstances of what was happening and the incident in June 2020. In her opinion there was a high level of stress still being felt by the children and particularly for X with regards to her time with her dad. She said the child “feels quite secure and comfortable with Grandma”. She made the recommendation “more in the concept of that the goal here is to help restabilise these relationships with the children with their dad, so that they’re healthy and secure again for them……. having met with the family, that the grandmother would be a meaningful contribution to that”.
Counsel for the applicant enquired whether the paternal grandmother’s presence was to “step in and stop the contact if she felt it was appropriate, sending them home if she thought it was appropriate, reporting the position to the court at any time or obtaining police assistance if that was needed…. or is it just that they be there for the purpose of the children being comfortable”. The expert replied predominately for the purpose of being comfortable. She opined “I think that society and certainly the court would expect that anybody would morally intervene if there was a situation going on placing any child at risk, but certainly my recommendation was more about the emotional support that the children feel with her company”.
The expert agreed that the children had returned to their mother saying that the father had said to them things that are critical of their mother and repeated those to the mother. She said the children told her about those things during interviews. She accepted that she was aware that the father denied he said those things to the children and denied making the comments attributed to him by the children. When put to the expert that she did not believe him (the father) she said “my assessment isn’t whether I believe the father or mother but about the children’s emotional needs and their best interests to assist them to have healthy relationships with both parents”.
Counsel suggested that “if they weren’t said and the children were going back to their mother and saying things that were not true, there would be a different perspective taken in relation to their relationship with each of their parents, wouldn’t there?” She replied “the over-guiding principle in that would be that, well, there would still be children in that instance who were feeling that they were in a position with that level of stress that they were needing to do that in the first instance, which the matters of fact about that existed or not”.
It was suggested to the expert that if the comments were not said to the children by the father, “they could have been easily the result of the anxiety or stress that they were under in the interchange between the father’s place and their mother’s place?” She said she wouldn’t exclude that as an hypothesis. She said she based her assessment of the statements made by the children.
When asked about the role of the paternal grandmother again Counsel enquired whether the expert would expect that she might be a person who would be required to record the interchange of the children with their father on each occasion that they came to him, so that that question could be more easily determined. She said the Court may find that of benefit. She said her recommendation was around the grandmother providing a level of emotional stability to the children in being there. She said “As I said, if the court was then to increase that to a level of supervision, then there are things that would need to be considered and about her impartiality to fulfil that role”.
She disagreed that she relied on the mother’s evidence of what the children had said to her to reach her conclusion. She said she primarily relied on what the children reported to her and what Dr J the children’s counsellor talked about being that the children were aware of the adult conflict. She recommended that the children both continue therapy until determined it was no longer necessary by their treating therapist. She said at the time of interview Dr D had referred the children back to the G.P. due to some procedural outstanding issues in dispute. She was aware that the children were attending upon Dr D for needs relating to their medication for Ritalin around their ADHD and other diagnoses. The expert was asked whether she thought it important if the children were being treated with a Ritalin-type medication for ADHD they see the same normality in the relationship between the father and the mother on a regular basis. In response she said she disagreed and said on the contrary due to the children having neurodiversity within their brain development, they require high levels of reduced stress in their environment, including their school, their family life, wherever they are.
The expert confirmed that she had considered the report from Ms DD psychologist and accepted that the psychologist had remarked that the parents were “…very committed and warm family-orientated couple. They had a high level of love for each other and their two children”. She said that was not her assessment of the parents when she interviewed them. When she met them they were in crisis. She said “I certainly found that they both had a high level of love for their children and that’s undisputed”.
She accepted that Ms DD had reported that “they both engage well within therapy, presented as being continually attentive towards their family’s needs”. She said she did not find the parents that way. She said “the information provided by the mother in my assessment was that her capacity to have a genuine level of engagement within the counselling session and to then have full disclosure about her level of concern within the relationship was hampered by her worries of repercussions that might come out of that in a family violence context. I think also what the court could consider with regards to weighing that up is around the information relating to the father’s behaviour and certainly his reports to myself about the counselling with Ms DD was that it was very validating for him. He felt that she aligned with his views about quality of family time being important. So in that situation, when you also then weigh that up with Dr J’s experience of him when he acted in an intimidating manner when things weren’t going along with what his views and wishes were, and potentially with the court considering if there’s any evidence about a similar notion existing around the agreements for the paediatrician, you could see that in therapeutic situations where the father isn’t under pressure or his views and ideological positions aren’t challenged, that he would engage very well”.
Counsel suggested that in terms of the parties’ presentation with Ms DD who reported that the father “presented as a very family-orientated loving father, who continually put the best interests of others in front of his own and the mother presented as being a very protective loving mother, who wanted the best for her family”. She said that was not her impression. She saw the parents in late November 2020. She did not agree that the parents presented to her in the manner described by Ms DD. I note that Ms DD engaged with the parents prior to separation and the escalation of the parenting dispute between them.
The expert did not agree with Counsel that when interviewed by her the parents “both presented with good communication skills individually and they, when communicating amongst themselves, they both found it difficult to discuss their perceptions, thoughts, emotions and needs”. Her experience was that they both found communication difficult. The expert said she did not experience the parents in the same manner as Ms DD who said “Throughout the couple’s sessions, they discussed many situations that utilised ineffective communication strategies that resulted in misunderstandings”. She said the reality was when she interviewed the parents they were clearly in conflict and they reported to her becoming emotionally overwhelmed, emotionally dysregulated and informed her of their difficulties in working towards common goals. The expert reported that throughout the majority of the sessions, the respondent reported feelings of being overwhelmed and irritated in relation to communications with the father, whilst the applicant reported many unsuccessful attempts to fulfil the mother’s needs.
Counsel asked the expert what she meant when she said at [215] “…the court considers the suitability of equal shared parental responsibility, at least on an interim basis in the first instance, noting the current challenges and allegations of risk within the co - parenting dynamics”. She said as follows:
“I understand that to be that both parties would contribute to agreed decision-making about significant needs related to the children, such as health, education, religion. My caveats for the considerations around that were because both parties told me that the children’s engagement with the paediatrician had been interrupted, because they were unable to come to agreements. The father also expressed to me his concerns about the continuing role of Dr J as the child’s psychologist, and certainly the child’s psychologist had communicated to me that he had advocated his – his disappointment and frustrations with – with her role and – and issues of impartiality. And there are also very serious allegations of family violence, which I understand are a relevant consideration for the court with determining factors of parental responsibility.”
The expert explained that the Court should strongly consider whether equal shared parental responsibility was suitable, given indications that the children’s needs were being unmet by interruptions in the co- parenting cooperation of the parties.
When she was asked about the time arrangements for the children the expert said “the parties agree that the children both have an anxious disposition. They are both highly anxious children and they are being treated with regards to a neurodiversity. In relation to their attention deficit hyperactivity as well, they have a child psychologist who identifies both children having an ongoing inability to obtain a strong sense of trust and security, which is compromising their emotional wellbeing at this time. On top of that, however, we have two children who also had elements and very positive times in their relationship with their father outside of all of these other issues that are being identified that the court need to work through. So it is a matter of balancing the children’s opportunity to stabilise their own emotional wellbeing, hence the reduction from weekly to fortnightly. This is about prioritising their needs to say Mum and Dad’s needs to come secondary right now. We have two vulnerable, neuro diverse girls, who are highly distressed, which is not in dispute by the mother or the father, nor their child psychologist. What we need to do then for their needs is to step back and say, “How do we reduce the stressors and anxiety for them?” What we know assists with that is limiting children’s exposure to other people’s stress and anxiety. We know that Mum and Dad at the point of time that I met with them and certainly again supported by Dr J were in a high level of stress between each other and that the children are acutely aware of that. So reducing that frequency of the children having to navigate between those homes is a first step in being able to maintain and re-establish the integrity of the children’s relationships with their dad. The applicant also has some great qualities of parenting, which the children have enjoyed for a long time, so this is an interim intervention to ask everybody to put the children’s needs first and to say, “Let’s take the stress off of them, so that they are able to deal with their grief and their loss and their incredible confusion about the incident that occurred in June”, which is now particularly for X questioning all of the previous conflicts she reports she heard between her parents. And then she’s unpacking that in a way that makes her currently feel very unsure about her dad and mistrusting, because he broke that trust. This is a way to try and re-establish that trust in a way that’s healthy and safe for them.”
Counsel suggested that given the expert’s assessment that the children suffer from anxiety that overnight time with their father would reduce the opportunity for interchange between the parents. She replied: “From a mathematical perspective, that would be accurate. What we also have to consider though is these children don’t have the emotional security at this time with the applicant to support the benefits of them staying overnight in a home that they feel insecure in at this time is actually going to decrease their level of stress and help them meet their developmental needs”.
The expert disagreed that there was nothing to suggest the children were anxious in their father’s home she said “I would refer you back to both of the children’s interviews with regards to talking about their relationships with each parent”.
Counsel suggested to the expert that it was important to resolve the factual disputes between the parties as to what the children were telling their mother. She replied that was not her focus both rather “in an assessment of these children’s emotional and developmental needs, those things are – are less weighty for us when you have a – the children’s actual psychologist who meets with them and has those professional qualifications saying that the children are presenting in a way that is highly stressed at the moment and they’re unable to manage all of this discord going on in the separated context”. She said her focus and rationale about the parenting arrangements was to balance what the children’s developmental needs were and what are their emotional needs were and to try and create an opportunity on an interim basis that provides for the children to continue to meet their academic needs, their psychological needs, their therapeutic needs, their medical needs and to balance time and relationships with both parents.
On the question of the benefit of the children spending one overnight with their father the expert said “the children that I met with were very congruent with the children reported to me by their child psychologist, is that they were still in a very heightened state of distress and I cannot strongly enough impress to the court that it is my very clear assessment it is outside of their emotional capacity right now to have to manage that overnight time in that household”. She added “these children don’t currently have the emotional capacity to do that (commence overnight time with the father) and when we place children in a position to have to do things that are outside of their emotional capacity, the consequences on their mental health, on their physical health, on their academic health, these are children who already have neurodiversity and complex experiences every moment of their life to have to manage all of the executive functioning things that their brain requires of them. To ask them to do that, in a way that could then give evidence of the court is – is incredibly simplistic in disregarding that these children are not in the emotional place to manage that. And it’s my assessment that the harm we cause them by doing that would counteract any evidence that would then be put towards the court”.
The expert said “It would be appropriate, in my opinion, for the court to consider that when the children’s psychologist is able to report back to the parties and the ICL that the children are emotionally ready to move to that next step. If we were to do that too early, the consequences for these children’s development long term would be very, very compromised. And I don’t think that there are any benefits that the court could otherwise weigh up that that would warrant that simply for the fact of an overnight arrangement. I understand that you’re talking about the children being exchanged between the parents and I suspect that’s where we’re having some parallel discussions here. I’m talking about the children’s sense of emotional safety, and right now we need to create that for them”.
Both parties allege that family violence was a feature of the relationship both during the relationship and on 11 June 2020. The respondent deposed that she was assaulted by the applicant and the children intervened and contacted their maternal grandmother for help. The applicant acknowledged there was an incident but claimed both were at fault. Both parents agree that the children were exposed to family violence on 11 June 2020 and were extremely distressed by the events of that day. I am unable to determine precisely what occurred on that occasion but take into account the children were exposed to a violent, frightening incident between their parents.
The applicant deposed that the children were exposed to an incident earlier where the respondent threw a picture frame at him. The respondent deposed that she was the victim of family violence during the relationship where the applicant had caused her bruising and when drunk forcibly pushed her and she fell backwards and injured her arm. She alleged he punched holes in the walls of their homes and would yell and swear and spit at her and threaten to hurt her. She alleged she would hide when he was drunk and angry. He would monitor her spending and did not approve of her enjoying close relationships except for his family members. He would attempt to coerce her to have sex.
More recently on 21 August 2020 there was an incident at the children’s school in the Principal’s office when the respondent attended with the children and tried to close the door and she alleges that the applicant obstructed the doorway with his foot and arm so she couldn’t close the door. She deposed that she did not feel safe and the children were very distressed by the incident.
The applicant consented to a Domestic Violence Order for a period of 5 years. The children were placed on that order. I do not accept the applicant’s description of “low level” violence. The term “family violence” is defined at section 4AB of the Family Law Act. “Violence” is defined in the Macquarie Dictionary as “behaviour involving physical force intended to hurt, harm or damage”. I place significant weight on the fact that family violence has been a feature of the parties’ relationship and the children have been exposed to family violence in circumstances when their parents have been in close proximity.
The expert discussed both parties account of family violence within the relationship. She noted at [190] that the applicant’s account of the respondent’s volatility “was experienced by him as being reactive to her emotional distress and was more often than not dismissed by him as being non – threatening in nature”. Whereas the respondent’s account [192] indicated that she experienced coercive and controlling behaviours from the applicant during the relationship with features of physical, psychological and verbal abuse. More importantly the children identified [195] the father as the perpetrator of the incident on 11 June 2020 and associated worry and insecurity with the father “currently”. She observed “it is clear that the emotional consequences for the children as a result of this incident remain significant”. Interviews were conducted as recently as December 2020. I am unable to make any specific findings of fact regarding family violence but accept that the children have been exposed to incidents of violence between the parents. I take into account the risk of harm to the children in being exposed to family violence between the parents and assess that risk is significant. In addition I take into account X’s concern that her father may hit her (though he has not done so) and her fear of him expressed to the expert.
Both parties allege that each party suffers from mental health issues. The respondent deposed that the applicant would threaten to self-harm or kill himself. The most recent occasion was witnessed by the children on the 11 June 2020. In September 2019 after an argument, he told her that he drove to the U Bridge and sat in his car for a long time while he considered self-harm. Other times, he would tell the respondent that he wished he crashed his car to end his life. I take into account allegations that both parents raised issues of concerns regarding the other’s mental health. The respondent made a concerning allegation regarding the applicant suggesting he may self - harm and though I am unable to make any finding I take that allegation into account in assessing the potential risk to the children.
Additional matters
The Court is required to consider the additional matters under subsection 60CC (3) of the Act. I am unable to determine the children’s wishes nor would I place significant weight on those wishes at present. It is only 12 months since the children’s parents separated and they are likely to feel unsettled and confused. Further these children have been immersed in the parenting dispute. Any expressed wish may be the result of pressure brought to bear or feelings of anxiety.
I accept there are positive aspects to each of the parents and their ability to provide the children’s physical and educational needs does not appear to be in question. The issues of family violence and each parents emotional stability and reactively are issues to be determined at trial.
The children have demonstrated significant distress being exposed to the conflict between the parents. Both parents allege the other has involved the children in the parenting dispute. The applicant inferred that the respondent’s sister has been coaching the children. The respondent alleged that the applicant was recording the children’s conversations with him and including that information in his affidavits. He denied that however he indicated that the paternal grandmother did record the children. No doubt the children found being recorded by the paternal grandmother intimidating and distressing.
I reject the applicant’s assertion that the respondent “alienated the children” as deposed by him on 23 July 2020. It is common ground that he was spending weekend time with the children unsupervised shortly after separation.
Concerns were raised by the children that the applicant had installed cameras in their room and would “film” the children in circumstances where the applicant would ask the children who they wanted to live with. The children reported this was distressing. The applicant denied he installed cameras or filmed the children. The applicant denied the children were being filmed.
I am satisfied that each of the parents have involved the children in the adult dispute to a lesser or greater extent. One need only read the representations made by the children about incidents, comments and events that take place in each parent’s home included in the parent’s numerous affidavits to reach that conclusion. This conduct casts a shadow over the parents’ capacity to care for the children, their insight into the impact of their conduct on the children and the ramifications for the children in being immersed in the dispute between their parents. The children are at risk of being placed under pressure and exposed to conflict to their detriment. I intend to make an order prohibiting the parents from discussing the parenting dispute with the children and allowing any other person to do so and prohibit each of them from involving the children and recording or filming the children.
At present these parents are completely incapable of co-operating regarding arrangements for their children and are unwilling to communicate and compromise for the benefit of their children. This is having a significant negative impact on the children. The respondent alleged that she requested post separation that the children not spend time with the applicant in the family home due to the level of distress they suffered as a result of the incident on 11 June 2020. She deposed that notwithstanding her request the children spent time with the applicant in the home. Further she alleged that notwithstanding she did not agree for the children to spend overnight with the children he withheld them and kept the children overnight. She alleged they were distressed by this. I intend to minimise the opportunity for the parents to engage with each other in the interim as a mechanism for protecting the children from exposure to parental conflict.
Child support is an issue. The respondent has taken responsibility primarily supporting the children financially post separation. A significant amount of money no doubt has been spent on legal fees money that could well have been spent on supporting the children. The applicant maintains he pays child support as assessed. This issue will be determined at trial.
Though the applicant had consented to an order for the children to continue counselling with Dr J on 15 September 2020, weeks later he advised the respondent that he did not consent due to Dr J continuing as the children’s counsellor. He suggested an alternate counsellor to which the respondent disagreed. Notwithstanding her disagreement he took the children to a counsellor Ms V. According to the respondent the applicant has not paid his share of Dr J’s costs despite a court order requiring him to share that cost.
Prior to separation the children were attending upon Dr D. The applicant alleged the children were being over medicated. In July 2020 Dr D advised the respondent that the children’s low dose of Ritalin required review and required one parent to be the account holder. The respondent said the applicant did not respond to her email about the matter and Dr D advised that the children would be referred back to the G.P. A further dispute arose as to who the children would attend upon, the respondent suggesting Dr W, the applicant disagreeing stating that he did not agree to the children seeing any paediatrician. The respondent alleged that the applicant did not respond until December 2020 when without notice to her he nominated as the account holder for Dr D.
The applicant accused the respondent of failing to inform him of all medical appointments for the children and breaching court orders.
The numerous affidavits filed in these proceedings demonstrate the extremely high level of acrimony that exists between the parents. Any orders made need to be tailored to ensure that the children are not directly exposed to their parents’ conflict.
There are no open lines of communication between these parties. The parties have demonstrated an inability to conduct themselves in a polite, business - like manner for the benefit of their children. It is my view that these parties would have benefitted from engaging in family dispute resolution procedures before the conflict between them escalated to its current level.
I accept the expert’s assessment that these children are vulnerable children. X has ADHD, dyslexia, dysgraphia and a language disorder. She was prescribed a low dose of Ritalin in 2019 by Dr D and continues with medication. She suffers from anxiety. Y has ADHD and a hearing impairment. She also was prescribed a low dose of Ritalin by Dr D and continues that medication.
During cross examination the expert said in her opinion there was a high level of stress still being felt by the children and particularly for X with regards to her time with her dad. She observed that Dr J the children’s counsellor talked about being that the children were aware of the adult conflict. She said given that the children have neurodiversity within their brain development, they require high levels of reduced stress in their environment, including their school, their family life, wherever they are.
The expert observed that when she interviewed the parents they were clearly in conflict and they reported to her becoming emotionally overwhelmed, emotionally dysregulated and informed her of their difficulties in working towards common goals. She noted that the respondent reported feelings of being overwhelmed and irritated in relation to communications with the father, whilst the applicant reported many unsuccessful attempts to fulfil the mother’s needs.
When she was asked about the time arrangements for the children the expert said “the parties agree that the children both have an anxious disposition. They are both highly anxious children and they are being treated with regards to a neurodiversity. In relation to their attention deficit hyperactivity as well, they have a child psychologist who identifies both children having an ongoing inability to obtain a strong sense of trust and security, which is compromising their emotional wellbeing at this time. …… We have two vulnerable, neuro diverse girls, who are highly distressed, which is not in dispute by the mother or the father, nor their child psychologist. ….. So reducing that frequency of the children having to navigate between those homes is a first step in being able to maintain and re-establish the integrity of the children’s relationships with their dad.”
The expert did not recommend an introduction of overnight time at present. She said “What we also have to consider though is these children don’t have the emotional security at this time with the applicant to support the benefits of them staying overnight in a home that they feel insecure in at this time is actually going to decrease their level of stress and help them meet their developmental needs”.
When cross examined on the question of the benefit of the children spending one overnight with their father, the expert said “the children that I met with were very congruent with the children reported to me by their child psychologist, is that they were still in a very heightened state of distress and I cannot strongly enough impress to the court that it is my very clear assessment it is outside of their emotional capacity right now to have to manage that overnight time in that household”. She added “these children don’t currently have the emotional capacity to do that (commence overnight time with the father) and when we place children in a position to have to do things that are outside of their emotional capacity, the consequences on their mental health, on their physical health, on their academic health, these are children who already have neurodiversity and complex experiences every moment of their life to have to manage all of the executive functioning things that their brain requires of them. To ask them to do that, in a way that could then give evidence of the court is – is incredibly simplistic in disregarding that these children are not in the emotional place to manage that. And it’s my assessment that the harm we cause them by doing that would counteract any evidence that would then be put towards the court”.
The expert went on to say “It would be appropriate, in my opinion, for the court to consider that when the children’s psychologist is able to report back to the parties and the ICL that the children are emotionally ready to move to that next step. If we were to do that too early, the consequences for these children’s development long term would be very, very compromised”.
CONCLUSION
The children’s exposure to high levels of conflict between their parents has had a detrimental impact. They have had little time to adjust to their fractured household and the fact that their parents no longer live together. They are vulnerable children and have been placed in situations they heighten their anxiety. X appears significantly distressed regarding an implication she perceives that she is to blame from the current situation where the children spend no overnight time with their father.
The children require a level of protection from being exposed to conflict. According to the expert neither party is coping emotionally with the breakdown of their relationship and the consequences that flow from that. One can only imagine how difficult it has been for the children.
Balancing all the relevant evidence before me I am satisfied that it is in the children’s best interests to live with their mother and spend time with their father each alternate Saturday and Sunday from 9 a.m. to 5 p.m. with changeover at Suburb F. The children will also spend time with their father on Father’s Day in the event this is not their scheduled weekend time. They will continue to communicate with their father in accordance with the consent orders made on 15 September 2020 and the paternal grandmother is to continue to be present during the children’s time with their father primarily to support the children emotionally. The children will continue to attend upon Dr J their counsellor.
I intend to order that no party is to discuss the parenting matter with the children nor permit any other person to do so. No party is to enquire of the children what they said to Dr J or to the expert or what their wishes are with respect to future arrangements. No party is to record or film the children or allow any other person to do so. I am satisfied that the orders I make are in the children’s best interests.
Interim property orders
On 26 March 2021 I made orders in relation to property matters including that the applicant adduce evidence that he has the capacity to refinance the former matrimonial home by 4 p.m. on 22 April 2021, the applicant comply with Orders made on 15 September 2020 and provide disclosure in accordance with Rule 24.03 (1) by no later than 4 p.m. 22 April 2021 and that the applicant provide copies of all bank records and statements from 1 June 2020 to present no later than 4 p.m. on 22 April 2021.
On 1 June 2021 Counsel for the respondent made submissions with respect to financial matters. The mediation was scheduled for 6 May 2020. Counsel for the applicant made the concession that prior to 6 May 2020 the applicant would adduce evidence that he has the capacity to refinance the former matrimonial home. That has not been done. He said mediation could not go ahead solely due to the applicant’s failure to comply with financial disclosure and court orders. The applicant had not produced any bank statements at all and no superannuation statements and “we don’t have any information relating to anything else except the tax returns”.
Counsel argued that the applicant was not currently paying the mortgage though he continued to reside in the family home. When the respondent moved out of the home on 22 July 2020 the applicant placed the mortgage on hold. Between 29 July 2020 and 15 January 2021 interest accumulated of $4152.74. His application for hardship on 23 January 2021 with respect to the mortgage was refused. He was in March 2021 $668 in mortgage arrears. On 18 January 2021 the respondent received the signed joint letter to the valuer’s to value the property. This had been requested and an order was made on 15 September 2020 for the parties to organise this. He filed an amended initiating application that the Suburb E property be transferred to him. The respondent sought the sale of the family home. On 12 February 2021 the respondent advised the applicant regarding the dates for mediation and when Ms GG was available. On 18 February 2021 the applicant replied indicating he would advise of a suitable date in due course. Counsel for the applicant advised the Court he “was not instructed in the financial matters”.
Counsel for the respondent sought an order that the respondent be reimbursed $1925 being half the cancellation costs for Ms GG. The respondent had paid the mediator and she had retained a cancellation fee. The applicant was pursuant to the orders on 15 September 2020 required to bear the costs of mediation equally. Counsel for the respondent agreed of necessity due to the applicant’s conduct the order for mediation made on 15 September 2020 be discharged. I make that order. Further I am satisfied there are justifying circumstances to make an order that the applicant within 7 days pay to the respondent $1925 being his share of the cancellation fee for mediation.
Counsel for the respondent sought orders for costs thrown away on an indemnity basis with respect to the court event on 12 February 2021. He argued that the respondent and the ICL were ready to proceed to interim hearing on that day. They did not require an adjournment and did not require the expert for cross examination. I reserve those costs to the trial.
Counsel for the respondent sought an order that the applicant pay the expert’s costs for her attendance on 26 March 2021. He argued that the expert was put on notice by the father’s legal representative that she was required for cross-examination and indicated she was available for cross-examination at 2.30 on 26 March 2021. Counsel submitted that nothing in what was said by the expert in any way would have the court consider a change in her recommendations on an interim basis. Counsel for the applicant opposed that order arguing that he was entitled to cross examine the witness and it was not appropriate to make that order.
I reject Counsel for the respondent’s submissions. The Court does not automatically accept recommendations of an expert when made. However in my view given the nature of interim proceedings and the limitation on the Court making findings of fact where evidence is in dispute the application to cross examine the expert on an interim basis was unlikely to yield much in circumstances where the remainder of the evidence had not been heard. I accept the application was likely made on the applicant’s instructions however neither the respondent nor the ICL wanted to cross examine the expert and even though she made herself available neither took the opportunity to cross examine. I am satisfied there are justifying circumstances to make an order that the applicant be solely liable for any invoice rendered by the expert for her appearance on 26 March 2021.
Counsel for the respondent indicated that the applicant was not paying his half share of the children’s appointments with Dr J and he currently owed $1000. She sought that he comply with the previous order in relation to payment of the costs. I make orders as sought by the respondent with respect to the costs of Dr J.
I certify that the preceding two hundred and forty (240) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin. Dated: 18 June 2021
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
-
Equity & Trusts
Legal Concepts
-
Consent
-
Costs
-
Injunction
-
Remedies
-
Procedural Fairness
-
Constructive Trust
0
5
0