HALSEY & JACOMBS
[2020] FCCA 136
•5 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HALSEY & JACOMBS | [2020] FCCA 136 |
| Catchwords: FAMILY LAW – Parenting – high conflict – serious allegations made – parenting orders in the best interests of child – alteration of property interests – assessment of contribution and future needs – just and equitable orders. |
| Legislation: Crimes (Sentencing Procedure) Act 1999 (NSW), s.9 |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MS HALSEY |
| Respondent: | MR JACOMBS |
| File Number: | WOC 691 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 16 – 18 October 2019 & 5 November 2019 |
| Date of Last Submission: | 5 November 2019 |
| Delivered at: | Wollongong |
| Delivered on: | 5 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ford |
| Solicitors for the Applicant: | Hansons Lawyers |
| Counsel for the Respondent: | Ms Humphreys |
| Solicitors for the Respondent: | Williamson Isabella Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr White |
| Solicitors for the Independent Children's Lawyer: | Acorn Lawyers |
ORDERS
Property
Within 6 weeks of the date of these Orders the Husband shall pay to the Wife the sum of $60,208.00
Simultaneously with the payment in Order 1 the Wife shall do all acts and things necessary to refinance the mortgage over the property located at A Street, Suburb B being the whole of the land contained in Folio Identifier …27 into her sole name.
Simultaneously with the refinance and payment referred to in Order 2 the Husband shall do all things necessary to transfer to the Wife his right, title and interest in the property located at A Street, Suburb B to the Wife.
Thereafter the Husband shall retain his right, title and interest in the property at C Street, Suburb D being the whole of the land contained in Folio Identifier …27.
Within 14 days the Husband shall transfer all his right, title and interest in the Motor Vehicle 1 to the Wife.
In accordance with Section 90XT(1)(a) of the Family Law Act 1975, (the Act), whenever a splittable payment within the meaning of Section 90XS of the Act becomes payable to or on behalf of Mr Jacombs from his interest in Super Fund E, Ms Halsey is entitled to be paid $107,221.00 of the splittable payment and there shall be a corresponding reduction in the amount Mr Jacombs would be entitled to receive but for these Orders.
These Orders bind the Trustee of Super Fund E.
The operative time for these Orders is four business days after the service of the Orders on the Trustee.
Parenting
All previous parenting Orders be discharged.
The Mother have sole parental responsibility for X born 2010 (‘the Child’), and:
(a)In exercising sole parental responsibility for the Child, is to notify the Father of all major decisions affecting the Child which she intends to make, including but not limited to health and schooling, by email within 14 days of such a decision being made;
(b)The Father may respond to the Mother with his suggestions by email which the Mother may consider but is not obliged to act upon.
The Child live with the Mother.
For a period of 6 months from the date of these orders, the Child spend time with the Father, as agreed, but failing agreement as follows:
(a)Each alternate Sunday from 9:00am to 5:00pm, which such time to be supervised by F supervision agency, or such hours within 9:00am to 5:00pm as supported by the F supervision agency.
Following the conclusion of the period above in Order 12, the Child spend time with the Father for the following 6 months, as agreed, but failing agreement as follows:
(a)Each alternate Sunday from 9:00am to 5:00pm, which such time to be supervised by the paternal grandparents.
Following the conclusion of the period above in Order 13, the Child spend time with the Father for the following 6 months, as agreed, but failing agreement:
(a)Each alternate Saturday and Sunday from 9:00am to 5:00pm, which such time to be substantially in the presence of one or both of the paternal grandparents.
Following the conclusion of the period above in Order 14, the Child spend time with the Father for the following 6 months, as agreed, but failing agreement:
(a)Each alternate Saturday 9:00am to 5:00pm Sunday, which such time to be substantially in the presence of one or both of the paternal grandparents.
Following the conclusion of the period above in Order 15, and for the following 6 months, the Child spend time with the Father as agreed, but failing agreement:
(a)Each alternate Saturday from 9:00am to Sunday 5:00pm.
Following the conclusion of the period above in Order 16, thereafter, the Child spend time with the Father as agreed, but failing agreement as follows:
(a)Each alternate weekend from 5:00pm Friday to 5:00pm Sunday; and
(b)For up to 4 block periods of up to 7 days each year as nominated by the Father during school holidays with such agreement not to be unreasonably withheld by the mother, provided at least 28 days’ notice is provided.
In accordance with supervision requirements set out above, the Child spend time with the parties on special occasions as agreed, but failing agreement as follows:
(a)On the Child's birthday;
(i)If the Child’s birthday falls on a non-school day; with the party who the Child is not living or spending time from 9:00am to 2:00pm.
(ii)If the Child’s birthday falls on a school day; with the party who the Child is not living or spending time from after school to 5:30pm.
(b)On the parties’ birthdays;
(i)If the party’s birthday falls on a non-school day; with that party from 9:00am to 5:00pm.
(ii)If the party’s birthday falls on a school day; with that party from after school to 7:00pm.
(c)With the Father on Father's Day from 9:00am to 5:00pm.
(d)With the Mother on Mother's Day from 9:00 am to 5:00pm.
(e)At Christmas:
(i)In odd numbered years with the Father from 9:00am Christmas Eve to 2:30pm Christmas Day and with the Mother from 2:30pm Christmas Day to 5:00pm Boxing Day.
(ii)In even numbered years with the Mother from 9:00am Christmas Eve to 2:30pm Christmas Day and with the Respondent from 2:30pm Christmas day to 5:00pm Boxing Day.
(f)At Easter:
(i)In even numbered years with the Father from 9:00am Easter Saturday to 2:30pm Easter Sunday and with the Mother from 2:30pm Easter Sunday to 5:00pm Easter Monday
(ii)In odd numbered years with the Mother from 9:00am Easter Saturday to 2:30pm Easter Sunday and with the Father from 2:30pm Easter Sunday to 5:00pm Easter Monday
For the purposes of changeover, the parties meet at a public location as agreed, but failing agreement, at KFC Suburb G.
For the purposes of the parents communicating in respect of the time the Child spends with the Father, such communication is to occur by email unless otherwise agreed.
The parties be restrained from making critical or derogatory remarks about each other or members of each other's family in the presence of the Child and the parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of their family in the Child's presence.
The parties be restrained from questioning the Child about the other parent’s personal life, household, family or friends.
The parties shall ensure to install child-appropriate safeguards on computer and computer-like devices to which the Child has access.
Each parent is to ensure that the other parent is kept informed as soon as is reasonably practicable of:
(a)Any medical problems or illnesses suffered by the Child.
(b)Any medication that has been prescribed to the Child that needs to be taken while the Child is in the care of the other parent.
(c)Any specialist medical appointments with any medical doctor, psychologist, psychiatrist, counsellor regarding the Child.
(d)Any sporting, social, school or religious functions which the Child is to attend.
(e)The residential address of the parent.
(f)An email address for the purpose of communicating in accordance with these orders.
(g)The telephone contact number for the other parent.
(h)Any other matter relevant to the welfare of the Child.
The Father is at liberty to contact the Child’s school, treating doctor, psychologist or medical practitioner to discuss matters regarding the Child and obtain any information from that professional that might be requested.
Within 7 days, the Father is to provide an Undertaking to the Court in the proper form that he will:
(a)attend on his treating psychologist and comply with all reasonable directions given for a period of at least one year from the date of these orders; and
(b)That he will not consume alcohol beyond the legal limit 12 hours before and during any time spent with the child.
Within 7 days, the Mother is to provide an Undertaking to the Court in the proper form that she will:
(a)attend on a general practitioner for a referral to a new treating psychologist for the Child with whom the Child is to consult with alone; and
(b)will attend upon the treating psychologist, if and as directed for the purpose of Family therapy; and
(c)she will comply with all reasonable directions given for a period of at least one year from the date of these Orders, including notifying the Father should he be required to attend for the purpose of Family therapy; and
(d)cause the scheduling of such Family therapy appointments at convenient times to herself and the Father.
Subject to order 31 below, on no more than one occasion every four calendar months and within 48 hours of receipt of a request to do so from the Independent Children’s Lawyer with such request to be communicated by email, SMS communication or facsimile transmission to the Solicitor for the party or the party directly, the Father attend upon his respective treating general practitioner(s) to obtain a referral to undertake a Carbohydrate Deficient Transferrin (“CDT”) test noting that the CDT test is to be analysed using the High Performance Liquid Chromatography analysis method.
Within 24 hours of receiving the test results, the Father cause a copy of the results to be sent to the solicitor for the other party (or the party themselves if self-represented) and the Independent Children’s Lawyer.
The Father pay for the costs associated with the testing required of them by these Orders.
The Legal Aid Commission of NSW is requested to extend the appointment of the Independent Children's Lawyer in these proceedings for a period of 12 months.
Pursuant to Section 11 of the Australian Passports Act 2005 (Cth), the Applicant Mother is to have sole parental responsibility for an application to apply for, or renew an Australian Passport for the Child namely X, born in 2010, such passport shall be issued to the Mother without the consent of the Father.
That pursuant to section 65Y the Mother be at liberty to remove the Child from the Commonwealth of Australia for the purposes of an overseas holiday on the basis that the holiday will not interfere with the time the Child is otherwise to spend with the Father.
In the event that the Mother intends on removing the Child from the Commonwealth of Australia pursuant to Order 33 she will provide the Father with at least 60 days prior notice including providing details of the return tickets and location for the holiday.
THE COURT NOTES THAT:
A.The Court notes that the Paternal Grandparents, Ms H and Mr J, have agreed to provide Undertakings to the Court in the proper form in which they agree to adequately supervise the Child’s time with the Father where required under these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Halsey & Jacombs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 691 of 2013
| MS HALSEY |
Applicant
And
| MR JACOMBS |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about X, born in 2010, 10 years old. These Reasons for Judgment explain the Orders that the Court has made for X to live with his mother and to spend time with his father.
Background
Unless indicated to the contrary, the following represents findings of fact by the Court. The Applicant in this case is X’s mother. She is 45 years old and lives in the Region K of New South Wales. The Respondent is X’s father. He is 47 years old and lives in the Region L of New South Wales. X has two siblings on his mother’s side; Ms M, who is 20, and Ms N, who is 18.
The parents commenced a relationship in 2002, but co-habitation did not start until shortly after X was born.
The relationship between X’s parents was a volatile one, in the sense that they separated at least once before reconciling. The separation occurred in 2013, and the reconciliation occurred a few months later. The final separation took place in September 2016.
The relationship was also volatile in the sense that there was family violence. The evidence in this regard is clear, and largely undisputed. Three apprehended violence orders were made against the Father in relation to violence, as defined in the relevant legislation, against the Mother, or one of her children. There were three contraventions in respect of the apprehended violence orders, each established. The Father was charged with several offences relating to the family violence, including the contravention of the apprehended violence orders. On one occasion the charges were established, but he was discharged under s.32 of the Mental Health Act2007 (NSW). On another occasion, the Father was convicted and sentenced to a bond under s.9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for six months. On the next occasion, he was convicted and sentenced to a section 9 bond for 12 months. Even though the Father put in dispute the nature of the violence and the Mother’s role in the same, the facts are that he did not dispute the matters raised in the various apprehended violence orders taken out against him, and thus the Court accepts that the facts on which are they based have, in fact, been established.
The Father struggled with his mental health during the relationship. The objective and independent evidence before the Court, in the form of various medical records pertaining to the Father, indicate that at various times he experienced, and was diagnosed with severe anxiety, severe stress and moderate depression, anger management issues, difficulty with coping and suicidal ideation without active plans. There was a mental health admission following a self-harm attempt in 2013. It is also clear from the same evidence that the Father was drinking alcohol to excess. For example, in 2013 he told his doctor that he had been “drinking 25 units recently”. The impression from this evidence is that the Father’s alcohol abuse contributed to his mental health issues. A review of the evidence relating to the family violence also creates the strong impression that his alcohol abuse, and mental health issues contributed to the violence and the volatility in the relationship with the Mother.
The Father’s case is that all of these matters are now in the past, that he experiences no mental health problems, and that he manages both his aggression, and alcohol consumption. The Mother’s case, however, is that both she and X continue to suffer the consequences of the Father’s behaviour and are fearful of the Father. One of the difficult issues in this case is to assess what risk might exist for X to spend time with his father, and how that is best managed.
The evidence indicates that X was, at the very least, exposed to the family violence, the Father’s alcohol abuse and mental health issues when it was taking place. With the benefit of hindsight, it is possible to say that the parents acted unwisely, to say the least, to reconcile, to separate but remain living in the same home for a period, and thus continue to expose X to what was then a toxic and probably dangerous environment for him. The Father wanted to spend time with X. The Mother probably wanted to facilitate that, but to ensure that X was safe. There was probably economic necessity, at times. All of this is understandable but, from X’s perspective, it continued to expose him to an unsatisfactory environment.
Almost immediately after separation in September 2016, the Mother observed deeply worrying behaviour about X which, she believed, was attributable to the breakdown of the relationship and, in particular, to the Father’s behaviour. This will be discussed in much more detail below, but X’s behaviours included urinating and defecating on toys, aggressive and defiant behaviour.
By about February 2017, X started spending time with his father every second or third weekend, usually from 9:00am until 5:00pm on Sundays. According to the Mother, X became even more unsettled. She tried supervising X’s time with his father, but experienced him to be abusive and harassing towards her. The Mother ceased any time between X and his father between January and June 2018.
The first Order for X to spend time with his father was made in May 2018 and provided for him to spend time with his father supervised by the private supervision agency known as F. This actually commenced on 2 June 2018 and, indeed, has continued almost continuously since then, including, to the best of the Court’s knowledge, to date.
The overwhelming impression created from a review of the F contact reports that were in evidence is that X’s time with his father has been positive.
The Mother’s evidence, however, suggested, based on X’s statements to her, the psychologist he has seen, and his behaviour, that X is simply not coping with contact with his father, in the sense that he is unwilling to let it progress to something other than F supervision.
On 29 May 2019, further interim Orders were made by the Court providing for the Father’s time with X to progress from F supervision, to supervision by the paternal grandparents, for six hours each alternate Saturday. On 17 September 2019, shortly before it was to progress to supervision by the paternal grandparents, pursuant to an Application in a Case filed by the Mother, the Court varied the Orders so that F supervision continued. This was based on evidence which will be discussed in much more detail below, but to the effect that X’s behaviour at home indicated he was not coping.
These Reasons for Judgement also explain the Orders that the Court has made by way of alteration of property interests. This will be dealt with in a separate, later section of these Reasons.
Each of the parents were represented by experienced solicitors and counsel, and X had the benefit of the appointment of a very experienced Independent Children's Lawyer.
The competing parenting proposals
The precise minutes of order proposed by the parents and the Independent Children's Lawyer are reproduced in the First Schedule to these Reasons. The following is a summary.
The Independent Children's Lawyer and the Mother both proposed that she have sole parental responsibility. The order proposed by the Independent Children's Lawyer, however, contained some conditions requiring the Mother to provide information to the Father. The Father proposed equal shared parental responsibility.
All parties accepted that X should continue to live with his mother.
The main issue in this case relates to the orders for X to spend time with his father.
The Independent Children's Lawyer proposed that X’s time with his father would evolve over six stages progressing over two years. For the first six months, X would spend time with his father supervised by F, each alternate Sunday between 9:00am and 5:00pm. In the next six months it would be alternate Sundays, 9:00am to 5:00pm, but the paternal grandparents would provide supervision rather than F. In what is effectively stage 3, by which time X will have turned 11, for a period of six months he would spend time with his father alternate Sundays, 9:00am to 5:00pm, with the paternal grandparents, or one of them, being substantially present. For the next six months it would be alternate weekends from 9:00am Saturday to 5:00pm Sunday, with the paternal grandparents, or one of them, substantially present. After this, X would have turned 12. For the first six months after he turns 12 he would spend time with his father alternate weekends from Saturday 9:00am to Sunday 5:00pm without any form of supervision and then, thereafter, each alternate weekend from Friday after school to Sunday at 5:00pm together with special days, as well as four 7-day blocks during the school holidays.
Based on the submissions made on behalf of the Independent Children's Lawyer, as well as the evidence led in his case, the proposal was intended to ensure X’s continuing relationship with his father whilst seeking to address X’s underlying anxieties, and also reflecting his growing autonomy.
Before describing the Mother’s proposal, it is important to recognise the significant evolution which took place in this regard during the Hearing. At the commencement of submissions on the last day of the Hearing, 5 November 2019, the Court was provided with an amended order sought by the Applicant Mother, and the Mother’s Counsel announced on her behalf that she was not pressing order 5. Order 5 is reproduced in the First Schedule. As will be seen, the Mother had initially proposed that X spend three hours on the last Saturday of each month with his father supervised by F. In other words, the Mother was proposing a permanent supervised contact order. In any event, the proposal that the Mother in fact advanced is summarised as follows. For the first six months after the making of orders, X would spend time with his father alternate Saturdays between 1:30pm and 6:30pm, supervised by F. Thereafter, and until he turned 13 years old, it would be alternate Saturdays between 1:30pm and 6:30pm, supervised by the paternal grandparents. Thereafter, it would be alternate Saturdays between 9:00am and 6:00pm, with the Father’s time with X to be in the substantial presence of the paternal grandparents.
Once again, the Court records this was a substantial evolution in the Mother’s case. Amongst other things, the Mother’s trenchant opposition to the paternal grandparents providing supervision, deposed to at length in her Trial Affidavit, was abandoned. The Mother is to be commended for doing so. The paternal grandparents gave evidence. They were the most impressive witnesses in this case. They are both 70 years old, in good health, are active, and presented as no-nonsense grandparents, whose paramount consideration is the welfare of X. The Court has no concerns about their suitability to be involved in the supervision of X’s time with his father. The Court can only assume that the Mother must have come to this conclusion herself because of the sensible evolution in her proposal.
The Father’s proposal was for equal shared parental responsibility, and this is a matter in respect of which the Court will need to adjudicate. His proposal for time with X is summarised as follows. For the first three months, X would spend time with him each alternate Sunday between 9:00am and 5:00pm, supervised by the paternal grandparents. For the next three months it would be each alternate Saturday and Sunday between 9:00am and 5:00pm on each day, in the substantial presence of the paternal grandparents. For the next three months it would be each alternate weekend, from Saturday 9:00am to Sunday 5:00pm, in the substantial presence of the paternal grandparents. For the next three months it would be each alternate weekend from Saturday 9:00am to Sunday 5:00pm unsupervised. Thereafter, and this means for all practical purposes from when X is 11 years old, it would be each alternate weekend, from Friday 5:00pm to Sunday 5:00pm, special days, as well as four 7-day blocks during school holidays.
The evidence before the Court
In the Mother’s case, she relied on the following documents:
a)Initiating Application filed 19 May 2017;
b)Notice of Risk filed 19 May 2017;
c)Affidavit of Ms Halsey filed 4 October 2019; and
d)Financial Statement of Ms Halsey filed 4 October 2019.
In the Father’s case, he relied on the following documents:
a)Response filed 17 November 2017;
b)Affidavit of Mr J filed 25 January 2019;
c)Affidavit of Ms H filed 25 January 2019;
d)Affidavit of Mr Jacombs filed 4 October 2019;
e)Affidavit of Dr O filed 4 October 2019; and
f)Financial Statement of Mr Jacombs filed 9 October 2019.
The Independent Children’s Lawyer relied on his case outline document which was filed on 11 October 2019.
The following material was tendered as evidence during the course of the proceedings:
a)Family Report completed by Consultant Ms P dated 25 October 2019
b)Exhibits to the Affidavit of Mr Jacombs filed 4 October 2019;
c)Applicant Mother’s tender bundle;
d)Applicant Mother’s supplementary tender bundle;
e)Affidavit of Mr Jacombs filed 25 June 2009;
f)Affidavit of Mr Jacombs filed 27 April 2007;
g)Photo of ‘firewood for sale’ sign with Respondent Father’s telephone number;
h)Email from Williamson Isabella Lawyers to Hansons Lawyers dated 15 August 2019;
i)Respondent Father’s hand written notes;
j)Three letters from Hansons Lawyers to Williamson Isabella Lawyers;
k)Applicant Mother’s surgery consultation records;
l)Dr O’s session notes with the Respondent Father;
m)Respondent Father’s referral to Dr O;
n)Respondent Father’s second referral to Dr O;
o)Respondent Father’s psychological testing results;
p)Letter from Dr O to Williamson Isabella Lawyers;
q)Letter to Ms Q;
r)Respondent Father’s superannuation statement;
s)Drawing of paternal grandparents house layout as completed by the paternal grandmother;
t)Documents produced pursuant to subpoena on Suburb R Hospital;
u)A copy of the Respondent Father’s Police record; and
v)Father’s trust account records.
The Family Consultant, Ms P, the parents and paternal grandparents, each gave evidence and were cross-examined. The other witnesses in this case were Dr O, the Father’s treating psychologist, and Ms Q, the treating psychologist for the Mother and X. Both were cross-examined.
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Evidence of the Family Consultant, Ms P
The Court believes that it is both appropriate, and convenient, to deal with the evidence of Ms P before considering the other evidence in this case. This is because Ms P was the only independent expert evidence in this case. As will be seen, it does not mean that Ms P’s evidence is determinative, but it is certainly a useful starting point. Indeed, her evidence provides the opportunity, at times, to explore the other evidence before the Court.
Ms P’s first involvement with the family was through the Child Inclusive Conference that she conducted on 27 March 2018. The Memorandum produced became exhibit ‘ICL1’. The Child inclusive Conference Memorandum is reproduced in the Second Schedule to these Reasons, in its entirety. By way of summary, Ms P records that the parents agreed that, on an interim basis, X would spend time with his father supervised for three hours once each alternate Saturday. Ms P also noted that the parent’s agreed that X loves his father, wants to spend time with him, and ought to be given the opportunity to spend time with his father. The Court notes that during the cross-examination of the Mother, she disputed that she agreed to the matters referred to above. The Court does not accept her evidence in this regard. When the Mother’s Counsel cross-examined the Family Consultant, no challenge was made about this issue. The Court prefers the Family Consultant’s evidence in this regard.
What X told the Family Consultant is worth reproducing at this juncture:
X (aged 8 years 2 months) was assessed on his own. He said that he is in year three at school, enjoys science, maths and writing, has lots of friends and enjoys sports. His views and feelings are summarised below:
oX spoke only in positive terms about his mother, sisters and his mother’s partner, Mr W. He said that he is safe and feels happy when in their company and he said of his mother that she is “brave, nice and very protective (of him)”. He said that he is not worried about his mother in any way and thought that she is happy and healthy. He said that he likes living with his mother and would feel “happy” were he to continue to live with her. He described close and positive relationships with Ms M and Ms N.
oX said that he loves his father and described him as “always there for me” and as someone “who always helps me”. He said that he misses his father and would like to see him more often. He said that he has not seen him for “about a year” because “we are too busy with school and then chores and mums work on the weekend”.
oX’s only criticism of his father was that his father cries when X spends time with him. X said that this can be uncomfortable for him, that he tries to ignore his father’s crying and that he hopes that his father stops crying. X believes that his father is crying “happy tears”. He said that he would feel better were his father able to better emotionally contain himself so that he did not cry so often. It is noted that Mr Jacombs cried on the day of this assessment when X was taken to greet his father and that X appeared uncomfortable and uneasy. After a discussion with this author in which Mr Jacombs was asked to contain his emotions, X was brought to his father to say goodbye and the interaction appeared more positive including that X reciprocated a hug and had significantly more eye contact.
oX would like to spend time with his father and said that he is “always safe” when with his father. He worries about his father believing that this is due to not seeing his father regularly and therefore not knowing whether he is well and happy.
In this regard it is important to note that the Mother’s Counsel once again did not challenge the Family Consultant about this evidence. Thus, on 27 March 2018, X presented as relatively unconcerned about spending time with his father, apart from his father’s emotion making him feel uncomfortable. In particular, he wanted to spend time with his father, and said that he was always safe with him.
Ms P met the family once again, but on 6 September 2018, the context being the family report interviews held at the Wollongong Registry of this Court. Ms P met with the parents, with X, with the paternal grandparents, and with the Mother’s other children, Ms M and Ms N. The Family Consultant also had available to her all the documents available to the Court at that time.
At the time of the report interviews, the Mother’s proposal was that X spend time with his father as agreed. The Family Consultant noted that the Mother sought direction from the Court about whether, how and when X spent time with his father. The Mother’s concerns about X spending time with the Father are summarised at paragraphs 25 and 26 of the Report:
[25] Ms Halsey raised concerns about the possible negative impact on X from spending time with his father. She said that X’s behaviour began to deteriorate in several ways beginning mid-2016 (when X was aged six and a half years). She said that he began to act out with verbal abuse towards her and his siblings, including calling them derogatory names, and he would also defecate and urinate on his toys. Ms Halsey said that she took X to see health professionals (including the family general practitioner, psychologist and paediatrician) who assessed that X’s behaviour was stress related. Ms Halsey said that X’s behaviour improved significantly after X began seeing psychologist, Ms Q, in November 2016. She said that X was his most settled and positively behaved between January 2018 and June 2018, coinciding with the time that X spent no time with his father. She said that, since X resumed spending supervised time with his father in June 2018, X’s behaviour has again deteriorated. She said that X: has difficulty containing his frustration; will lash out physically at his sisters; has verbally abused her and his sisters; and punched her (Mr (sic) Halsey) in the back leaving her winded. Ms Halsey said that X will, apparently out of the blue, mention incidents that occurred with his father, and ask her whether she remembered them, for example, when his father drove recklessly, or when his father screamed abuse at them or said that he was going to hurt them. She said that X loves his father and clearly looks forward to spending time with him. However, Ms Halsey raised concerns about the impact on X of spending time with his father, for example, triggering negative memories about his father which results in X feeling confused and frustrated and his behaviour deteriorating.
[26] Ms Halsey said that she has recontacted X’s psychologist, Ms Q, for counselling for X. She said that his behaviour has deteriorated to a level that requires he attend further counselling. Ms Halsey said that the counselling previously helped X improve his behaviour and she hopes that X re-engaging with the psychologist will help again. She said that she made an appointment at the earliest available time (reportedly October 2018) and that X will then see her monthly.
As will be seen, and consistent with the Mother’s affidavit evidence, her concerns about X’s behaviour date back to mid-2016. According to the Mother, X’s behaviour seems to fluctuate depending upon whether he is spending time with his father or not. The Mother refers to X’s psychologist, Ms Q, whose evidence will be discussed in more detail below.
The Father presented to the Family Consultant as tearful, saying that he was fearful of losing his relationship with X. He spoke openly about his mental health problems, and alcohol consumption, at paragraphs 29 to 30:
[29] Mr Jacombs said that he experienced mental health problems in the form of anxiety and depression, resulting from his “toxic” relationship with Ms Halsey. He said that, once he and Ms Halsey separated, he gradually regained positive and stable mental health. He said that he no longer has mental health problems and that he has ceased his antidepressant and antianxiety medication, under his General Practitioner’s supervision, earlier this year. Mr Jacombs said that he has found counselling largely unhelpful and generally prefers to deal with things on his own. He said that he tries to shield his parents from the dispute about X with Ms Halsey as much as possible, and does not talk about his feelings or his past mental health problems with his parents.
[30] Mr Jacombs denies that he has a problem with alcohol. He said that he will have an occasional drink of alcohol which includes a glass or two of wine. He said that he has no alcohol in the house. Mr Jacombs said that he has consumed alcohol in a “binge” volume, especially at those times when feeling “low”. He said that he has never been reliant on alcohol. Mr Jacombs said that he does not use illicit substances. Mr Jacombs said that he attended all appointments with his probation and parole worker regarding his section nine bond received in February 2017 but, does not believe that he was asked to attend alcohol rehabilitation and, subsequently, has not.
The Court had available to it not just the Father’s evidence about his mental health, but that of Dr O, his treating psychologist. Other historical records about the Father’s mental health were also in evidence. That evidence leads the Court to conclude: firstly, that the Father’s assertion that separation led to an improvement in his mental health is, in fact, a correct perception; secondly, the objective independent evidence before the Court confirms that he no longer has mental health problems and is not taking medication in that regard. It will also be noted that the Mother’s subjective beliefs were to the contrary, but with no objective basis for such. As will also be seen, the Family Consultant’s concern, however, was about the risk of relapse for the Father.
In relation to the Father’s alcohol use, in evidence he continued to maintain that he does not currently have a problem with alcohol. He enjoys a drink, but not to excess, and has considered but rejected abstinence. The paternal grandparents, with whom the Father has lived for several years, gave corroborating evidence to the extent they were able, indicating that alcohol abuse was no longer a problem for the Father. Once again, it will be noted that the Mother has subjective concerns to the contrary, but with no objective basis.
The Father explained to the Family Consultant that he had historically been substantially involved in X’s care. This had changed significantly after separation. He found the current time with X to be positive and warm, but he did not understand why X’s time with him needed to be supervised. He was aware of the negative behaviour referred to by the Mother, but he had not observed the same. He was suspicious that the Mother was making up the alleged concerns about X’s behaviour to support her agenda for X to spend no time with him.
At paragraph 33 of the Report, the Family Consultant records the Father, in effect, openly recognising that if X were able to spend unsupervised time with him, the Mother would make “constant allegations of abuse”, both in relation to the Father breaching the orders, and in relation to X’s behaviour deteriorating. He based his concerns on his experience of the Mother’s action in not supporting the relationship of Ms M and Ms N with their father. The Court notes that the situation with Ms M and Ms N appears to be different, having regard to the limited information available to the Court. Nonetheless, the Court will conclude, having regard to all of the evidence before it, that the Father’s concerns are, in fact, well based. Having regard to matters to be discussed below about the Mother’s attitude towards X having a relationship with his father, it is indeed a possibility that further litigation will arise because of the very matters mentioned by the Father. Indeed, an unfortunate theme of the evidence discussed in these Reasons for Judgement is that of the Mother’s subjective belief (based on historical events) about future risks which have little objective basis.
The Family Consultant met with the paternal grandparents. Given the Mother’s acceptance of their suitability as supervisors, there is no need to discuss this part of the Report.
The Mother described what she described as the significant family violence perpetrated by the Father towards her and the children. It is significant to note, as the Family Consultant did at paragraph 41, that the Mother continues to feel “petrified” of the Father, and that she feels unable to regularly come into contact with him “due to her fear and anxiety at having to see him”. Indeed, the Mother continued to present as anxious about the Father right throughout her evidence, and her underlying anxiety about the Father, and the risk he presents to X, permeated her entire case.
The Court has already made findings about family violence, but at paragraph 42 the Family Consultant summarised the Father’s perspective on this issue:
Mr Jacombs said that he was overwhelmed and depressed and that his self-esteem was at an all-time low when he was in a relationship with Ms Halsey due to her alleged verbal abuse and constant criticism of him. He said that he reacted poorly to her reported provocation, stating that he was “prodded, pushed and poked by a violent woman”, resulting in his, at times, frightening and aggressive behaviour. He acknowledged making the threat that “he could kill” Ms Halsey for her behaviour, but denies that he threatened to kill her. He denies that he threatened to kill X or hurt any of the children. Mr Jacombs denies that he has threatened to run his car off Region T Hill and counter alleges that Ms Halsey has threatened that she “should have” killed herself and should have driven off Region T Hill with X. Mr Jacombs repeatedly stated that he has not ever behaved aggressively or had issues with his anger outside of his relationship with Ms Halsey. He maintains that his behaviour, albeit inappropriate, was in reaction to his toxic and unbearable relationship with Ms Halsey. He said that, with emotional distance from the relationship, he can see how significant an impact the relationship had on his emotional wellbeing and he said that he is motivated to maintain his reported greater balance and calmness.
The Father was extensively cross-examined about these issues, and the Mother to a lesser extent. It is important to record that in cross-examination the Mother made a number of limited concessions about her participation in verbal abuse. In the subpoenaed documents there is a record of the Father attending his doctor on 7 September 2012, in which he indicates fear of the Mother, and for the children’s safety. Insofar as the Mother contended that the Father had actually assaulted X, or threatened to do so, this is not a finding the Court can make on the available evidence. In cross-examination, the Father manifested a very low insight into the impact that his behaviour was likely to have on the Mother, X, and the Mother’s other children.
At paragraph 43, the Family Consultant noted a significant inconsistency in the Father’s case:
Mr Jacombs said, somewhat confusingly, that he proposes that he and Ms Halsey have equal shared parental responsibility for X, despite the difficulties he has experienced when interacting with her in the past. He said that Ms Halsey, since separation, has rarely included him in decisions pertaining to X and that he is not made aware of generally what is going on in X’s life.
Indeed, in cross-examination the Father’s expressed desire for equal shared parental responsibility seems to have been based on an unrealistic perception about his current and future abilities to communicate with the Mother. Indeed what the evidence of both the Mother and Father plainly demonstrated was that they not only could not communicate effectively with each other, or indeed at all, but did not trust each other, and doubted each other’s motives.
Ms P met with X. At paragraphs 44 to 47 she notes:
[44] X (aged 8 years 8 months) said that he enjoys school and is in year three. He spoke positively about his teacher and peer group.
[45] X said that, compared with when he spoke with this author last (27 March 2018), the only change has been that he is “really happy” and that “things feel better than last time”.
[46] X said that his mother has organised for him to return to see “Ms Q” who has been his counsellor in the past. X said that, although he is happy to attend the appointment, he was unsure why his mother has made the appointment. He said that he cannot remember occasions in which he has felt upset or frustrated with his family or when he has had difficulties with his behaviour.
[47] X said that his mother and father are “friends” because they are “nice to each other on the phone”. He said that his mother wants him to see his father. X remembers that, prior to his mother and father separating, his parents would “fight all the time” including that his mother would yell “the loudest” and that he (X) would feel upset. X said that his mother and Mr W “never fight” and that his father “never fights” now when he spends time with him.
A number of matters emerge from this. X’s own perception of himself is dramatically different to that of the Mother. From his perspective, his life appears to have improved since 27 March 2018, when he met Ms P at the Child Inclusive Conference. He was unable to identify feeling upset or frustrated with his family, or when he has had difficulties with his behaviour. It is apparent, however, that X had been exposed to the conflict of his parents.
At paragraphs 48 to 51, the Family Consultant records a number of matters about the relationships that X has:
[48] X, as in his previous assessment, spoke positively about his father. At this appointment, he said that he has enjoyed spending time with his father since the last appointment, including having fished and walked along the foreshore with him. He said that he would like to spend more time with his father and he spoke about feeling safe when with his father.
[49] X spoke positively about his relationships with his “Nan Nan and Poppa” (paternal grandparents) including that they were present in the waiting area when he walked into the building and that they (he and his mother and paternal grandparents) were able to say hello to each other.
[50] X described having a close relationship with his mother, including his belief that she is good at talking to him about his feelings and at helping him feel more positively if he is sad. X said that, if he has misbehaved, his mother “gets cross at me and sends me to my room” until such time as he has calmed down. X said that he loves Mr W and likes that he is in a relationship with his mother. X said that he feels safe when with Mr W.
[51] X described having close relationships with Ms M and Ms N, saying that they are “good but can be annoying”. He said that he and the girls can “yell at each other” but he denies that their arguments become physical.
A number of matters emerge. On 6 September 2018, X told the Family Consultant that he felt safe with his father. As will be seen from evidence to be discussed below, this apparently changed within a year, according to his mother. The basis for this change is unclear. When all the evidence is closely scrutinised, particularly in the period between September 2018 and the date of the Hearing, it is hard to discern any objective basis for this change.
X speaks positively about the paternal grandparents. The Mother’s concession about their suitability as supervisors has already been noted. Notwithstanding that, in her Trial Affidavit filed 4 October 2019 at paragraph 76 she deposed, “X does not feel safe, at this stage, having them supervise the time”. This is perplexing. The Court infers that the Mother’s concerns about the paternal grandparents must have changed, as must have her belief that X was afraid of his grandparents. On a close scrutiny of the evidence in the relevant period, there is no discernible event or action that would objectively explain why, at least according to the Mother, X’s positive relationship with the paternal grandparents would deteriorate to one of fear?
It is also curious to observe X’s perception of his relationship with Ms M and Ms N. He described a close relationship, but acknowledged that they yell at each other, but denied that their arguments become physical. By contrast, in the Mother’s Trial Affidavit (e.g. paragraph 47) the Mother described X lashing out at his sisters “in a violent way”.
Finally, on this part of the Report at least, at paragraph 48, X speaks positively about his father and the time he spends with him. This was on 6 September 2018. However, according to the Mother in her Trial Affidavit of 4 October 2019, at paragraph 55, she deposes to a conversation with X in the car on 1 April 2018, in which she asserts that X said, amongst other things:
…I do not really like my Dad … Dad was always violent, I remember I woke up and heard Dad yelling at you and punching something really hard. I was so scared I hid under my blankets … Do you remember, Mum, when Daddy kicked me …
It is very difficult to reconcile the independent and expert assessment of X’s relationships with the Mother’s depiction of them.
The Family Consultant was able to observe the interactions between X, his parents and paternal grandparents. This is contained at paragraphs 57 to 59:
[57] X greeted his father with a hug and then walked with him to the observation room. They chatted about recent toys that Mr Jacombs had been considering getting X and X is noted to call his father “Dad”. They engaged in a joint activity and X was polite towards his father and took turns in the activity. Mr Jacombs was responsive to the interests that X showed in activities and he offered appropriate suggestions to further their interaction. The two spoke consistently and X appeared spontaneous in talk and confident to voice his opinions to his father. Mr Jacombs was consistently encouraging and supportive of X and the interaction appeared warm.
[58] The paternal grandparents were introduced to the observation between X and Mr Jacombs. X greeted his paternal grandparents politely. They asked him questions about his schooling and sporting activities and commented on and praised him on his activities within the observation and on the general information he provided them in conversation. X appeared comfortable answering the paternal grandparents’ questions, although he spoke less with them present as compared with when he was in the sole company of his father.
[59] X was observed with his mother. Ms Halsey appeared at ease and X became talkative, the most he had been throughout the day of the assessment. X was observed to giggle, joke and engage in regular eye contact with his mother and follow his mother’s lead with ease. Ms Halsey was talkative and made jokes and offered ideas about what activities she and X could do. Their interaction appeared congruent with a description of a close parent-child relationship.
The Family Consultant also met with Ms M and Ms N. The summary of the interview was found at paragraphs 52 to 56 of the Report. Neither Ms M nor Ms N, who were both adults by the time of the Hearing, gave evidence. No criticism is meant by making this observation. Equally, however, in the circumstances the Court places minimal weight on what the Family Consultant records that they told her. In short, their depiction of life with the Father was consistent with that of the Mother. The only part of the Report relating to them that is of some weight is paragraph 55:
Ms N and Ms M said that, prior to their mother separating from Mr Jacombs, X’s behaviour was “a lot worse” and “ruder”. They said that X would urinate and defecate on his toys in his room and would behave in ways appearing to mirror Mr Jacombs’ alleged behaviour. They said that X’s behaviour improves when he is not spending any time with his father. Ms N said that X has a week where he is “a bit off” following having spent time with his father. They said that his behaviour can include answering “no” to everything, and refusing to clean up after himself, commenting that he has “attitude”. They believe that, when he spends time with his father, X is “triggered” by negative memories of his father. Ms N and Ms M consider that X is physically safe within the current parenting arrangement in that his time with Mr Jacombs is supervised and they believe that X feels positively about the time occurring.
It is interesting to compare their depiction to that of the Mother in her Trial Affidavit. They experienced X’s behaviour to be worse before the parents separated. The tenor of the Mother’s evidence is that it became worse afterwards. Their depiction of X’s behaviour after spending time with his father is much milder than that described by the Mother. Curiously, nowhere is there any record of Ms N and Ms M telling the Family Consultant that X would lash out at them “in a violent way”, as deposed by the Mother.
At paragraph 60, the Family Consultant reports on the observation between Ms M, Ms N and X. This does not need to be reproduced. There is nothing in that record which is consistent with the Mother’s account of X’s behaviour towards his sisters.
The Family Consultant’s evaluation commences at paragraph 66. At paragraph 66, Ms P states:
Serious allegations of family violence, control, and aggression have been made by each parent. Ms Halsey said that she continues to be fearful of Mr Jacombs and wants strict and rigid boundaries clearly outlined within the parenting arrangement and adhered to by Mr Jacombs so as to provide her with reassurance that potential further incidences of family violence and conflict do not occur. Mr Jacombs said that, although he reacted inappropriately including with frightening behaviour to Ms Halsey’s alleged provocation and abuse, there is no longer risk due to them having separated and him having achieved more positive and stable mental health. For X’s safety, priority ought to be given to ensuring that further incidents of family violence between the parents do not occur. Regardless of whether Mr Jacombs is responsible for the alleged family violence, or whether the alleged violence was a result of mutual and interactional violence, this author has minimal reassurance that the dynamic between the parents has improved. There are no reassurances about potential further abuse occurring should the parents have regular contact with one another. Both parents hold the other parent as responsible for the past violence, there appears to have been an apparent lack of appropriate counselling and/or group therapy for the parent/parents, and there have been instances of ongoing conflict between the parents that has required further Orders by this Court. This author considers that parenting arrangements for X ought to occur with the parents having limited contact with each other.
In the second sentence, the Mother appears to articulate precisely what her concerns were, “…that potential further incidences of family violence and conflict do not occur”. In cross-examination, she agreed that there had been no further incidences for at least three years. The Family Consultant’s observation about the absence of even minimal “reassurance that the dynamic between the parents has improved”, is entirely correct. Throughout her evidence, the Mother’s perception of risk appeared to be locked in the past, rather than the present or the future. The Father’s minimisation of the impact of his past violence on his family meant that he could not understand how past events could affect the Mother and X into the future. At a human level, these responses are understandable.
The Family Consultant emphasised the need to ensure that the parents do not have regular contact with one another. The Mother’s proposal reflects this. She would have sole parental responsibility, and thus not be required to consult, or even notify the Father of her decisions. A changeover would take place at the home of the paternal grandparents. The Independent Children's Lawyer’s proposal is similar, except that the Mother would need to notify the Father of decisions by email, which would be the only communication between them. However, the Independent Children's Lawyer proposed changeover at a public location as agreed, or failing agreement, at KFC Suburb G. This possibly does not adequately address the concern expressed by the Family Consultant at paragraph 66. The Father’s proposal for changeover was identical to that of the Independent Children's Lawyer, and thus remains problematic. The Court observes that, in assessing the risk of future abuse occurring between the parents one must have regard to recent history. There is no evidence of such abuse occurring for as long as supervised time has been in place.
Ms P noted that both parents agreed that X should live with his mother. To the extent that the Father may have alluded to a different conclusion, no doubt based on his lack of faith in the Mother’s ability to promote X’s relationship with him, the Family Consultant ruled that out.
At paragraph 68, the Family Consultant observes, diplomatically the Court notes, that there is limited support for X to primarily live with his father.
At paragraph 69, the Family Consultant makes some observations about X’s awareness of the parental dispute:
This assessment indicated that X is largely unaware of the parental dispute, with his belief that his mother supports his relationship with his father and that his parents are, now, friends. He did not present to this author as being caught in the middle of parental conflict or as a child who feels under pressure to reject his father. Ms Halsey raised concerns about Mr Jacombs and, if accurate, her proposal would be considered to be protective of X, rather than trying to disrupt or damage an otherwise healthy and safe parent-child relationship. This assessment does not support the claims that X has been unreasonably restricted or discouraged in his relationship with Mr Jacombs.
X was having supervised time with his father at the time of the family report interviews.
At paragraph 70 and 71 the Family Consultant discusses the reports of X’s behaviour:
[70] X’s behaviour, as described by Ms Halsey, Ms M, and Ms N, if true, is concerning. X’s reported deterioration in behaviour could be hypothesised a number of ways: Ms Halsey, Ms M and Ms N have reported behaviour that is not occurring; X has always had problematic behaviour, regardless of whether or not he spends time with his father; X is under pressure to choose between his parents, due to parental conflict which is leaving him feeling confused and frustrated; or he has been traumatised by his father’s past behaviour and seeing his father triggers negative trauma responses. As previously stated, there is limited support within this assessment that X feels pressure to choose between his parents or is discouraged by his mother from having a relationship with his father. If Ms Halsey’s and her daughter’s accounts are to be believed and X’s behaviour has deteriorated in response to spending time with his father, on balance, there is support for the hypothesis that X is likely to be experiencing difficulties with his behaviour in reaction to triggers from spending such frequent time with his father. X is described as having made significant gains in his behaviour from the time of the parental separation, and it appears likely that the Psychologist, Ms Q, assisted with his progress. It is reassuring that Ms Halsey has reportedly made an appointment for X to re-engage with her.
[71] Although X’s behaviour has been reported as having deteriorated after he began spending time with his father, it is understood that his behaviour has remained more stable than when compared to the time in which Mr Jacombs and Ms Halsey lived together. X reports to this author feeling positive about spending time with his father and of wanting to continue to spend time with him. Although reassurances are required to ensure that X is not exposed to unsafe situations with Mr Jacombs, there ought to be consideration given to avoiding parenting arrangements that may result in a worsening of X’s behaviour. That said, there appears limited support to completely stop X spending time with his father. Such a dramatic step would likely leave X feeling distressed and saddened, as well as denying him the ongoing opportunity to continue his relationships with his father and paternal family. A conservative approach to X spending limited time with his father is suggested, along with concurrently supporting X with counselling.
Ms P explored four hypotheses for explaining X’s behaviour, on the assumption that the evidence given in this regard is true (and, inferentially, not exaggerated).
The first hypothesis was that the behaviour was not occurring. Having regard to all the evidence, the Court considers this to be an unlikely hypothesis. A hypothesis the Family Consultant may not have considered, however, was that the reports of X’s behaviour were exaggerated. The manner in which the Mother gave her evidence in cross-examination leaves open this hypothesis as a plausible one. Like the Father, she was not an entirely impressive witness. She was rarely clear in her answers. She accepted many, many things put to her as a “possibility”. As will be seen below, she found a willing ally in the form of Ms Q who seems, regrettably, to have been recruited to the Mother’s cause without reality testing the matters that both X, and the Mother, were supposedly telling her. The Court cannot rule out the possibility that the Mother was exaggerating the concerns in question.
The second hypothesis was that X has always had problematic behaviour. As will be seen from a survey of the Mother’s evidence, even the Mother’s evidence is consistent with this hypothesis. For example, the Mother gives evidence of some of the behaviours in question occurring well before separation.
The third hypothesis is that X is under pressure to choose between his parents, due to parental conflict which is leaving him feeling confused and frustrated. This is certainly a hypothesis available from the evidence. Even though the evidence indicates that the direct parental conflict has ceased, X’s mother is anxious, as would anyone who has been through what she has been through, particularly in the context of the ongoing litigation. It is even possible that the Father has said inappropriate things to X thus indirectly exposing him to the parental conflict.
The fourth hypothesis, that X has in fact been traumatised by his father’s behaviour, is another possibility. The difficulty for the Court is reconciling inconsistent evidence and seeking to ascertain what is actually happening, rather than what is said to be happening.
The evidence of Ms Q will need to be examined in detail. It is possible that the Family Consultant presented an optimistic assessment that Ms Q somehow assisted in X having made significant gains in his behaviour.
The Family Consultant appears, at least in her Report, to have embraced as the most likely scenario the hypothesis that X’s behaviour is a response to triggers of memories of his father’s behaviour. This is consistent with the fourth hypothesis. At paragraph 72 she states:
Given the concerns raised about X’s behaviour, if X’s deteriorated behaviour is in response to triggers of memories of his father’s behaviour, increasing X’s time with his father may lead to a further deterioration in behaviour. The current arrangement is considered to be, on balance, working, but not without difficulty. Ms Halsey remains cautious about supporting X’s current parenting arrangement and does not support further time. Ms Halsey’s allegations about Mr Jacombs’ violence and X’s behaviour are considered serious. This author is unable to support an increase in X’s time with his father without clarification from the Court about whether X is at unacceptable risk in his father’s care.
At paragraph 73 Ms P states:
If X’s behaviour, as described by Ms Halsey is accurate, X may benefit from reducing the frequency of time with his father from fortnightly to monthly. Such a plan may reduce the emotional disruption to X and expose him to less instances each month of triggers to negative memories of his father. However, reducing the frequency of X’s time with his father is against X’s expressed view and X may feel dissatisfied and upset with seeing his father less often than his preference. On balance, and when taking into consideration that X is attending counselling and his reported behaviour is perceived as improving, this assessment supports X continuing to spend time with his father fortnightly.
Ms P’s opinion is clearly predicated on an acceptance of the Mother’s description of X’s behaviour. The cross-examination of Ms P will be discussed below. She maintained that fortnightly time was preferable. Even the Mother embraced that in her proposal.
The question of supervision is dealt with at paragraph 74:
There is a question about whether or not X requires supervision when he spends time with his father. Mr Jacombs denies that he threatened to kill X and that he is no longer a risk of violence as he has separated from Ms Halsey. He said that he has maintained positive mental health and has become more balanced and less angry since December 2016. His medical records indicate that he has experienced long term mental health and frustration/tolerance problems, and his account of improved mental health is not obviously supported in the collateral material. This assessment, on the information available for this Family Report, does not support that X, at this stage, proceed to unsupervised time with his father. For this author to support the time moving to unsupervised time, the Court would need reassurance that Mr Jacombs does not pose an unacceptable risk to X due to: mental health problems; alcohol abuse; reckless and dangerous driving; and family violence. There are additional concerns that, were the time that X spends with his father to progress to unsupervised time, further allegations about Mr Jacombs’ behaviour might occur. The paternal grandparents are considered to be potential supervisors for X’s time with his father, however, they would be required to be aware of the concerns raised within this Family Report and required to commit to prioritising the needs of X above the needs of their son and their own needs.
It is interesting to note, notwithstanding the above paragraph, that even the Independent Children's Lawyer contemplated that by the time he was 12 years old, X would be spending unsupervised time with his father. From the Court’s perspective, after having heard all of the evidence, the Court is able to conclude that the Father does not present an unacceptable risk to X due to his mental health issues, alcohol abuse, reckless and dangerous driving, and family violence. That does not necessarily mean, however, that X’s time with his father does not need to supervised for other reasons.
At paragraph 75 the Family Consultant deals with parental responsibility:
The parental relationship is poor and the parents each agree that there are significant limitations in their ability to communicate and negotiate. Given that the parents and the collateral material identify that communication between the parents has been, over a longer period of time, conflicted, negative and problematic, there is limited support to suggest that any improvement will occur in the near future. The co-parenting relationship is of such a poor quality that this author suggests that, in order to protect X from further potential conflict and potential family violence, the parent with whom X primarily lives with have parental responsibility.
All of the evidence before the Court was consistent with this assessment.
The Family Consultant made the following recommendation at paragraph 76:
The following recommendations are suggested, notwithstanding further investigations by the Court:
a) That Ms Halsey have parental responsibility for X;
b) That X live with his mother;
c) That X spend supervised time with his father, once fortnightly, up to eight hours each visit.
Ms P was cross-examined on the third day of the Hearing, and after the parents had been cross-examined. By this time she had been made aware of the proposals made by the parties at that time, and had been given access to the trial affidavits. In response to a question by Counsel for the Independent Children's Lawyer as to whether the Family Consultant supported increases to X’s time with his father subject to safeguards, Ms P explained that she needed to be reassured about whether the Father was presently a risk of harm to X, and secondly needed to understand whether X continued to experience triggers from his past behaviour with the Father. Counsel explained to her that it was possible that X was still experiencing some negative memories from the past. Ms P explained that if what the Mother is saying is accurate, then the stress that he is experiencing is a concern. She accepted, however, that the stress could also be the result of exposure to parental conflict.
Thereafter the Husband shall retain his right, title and interest in the property at C Street, Suburb D being the whole of the land contained in Folio Identifier …27.
That within 14 days the Husband shall transfer all his right, title and interest in the Motor Vehicle 1 to the Wife.
In the alternative to the payment in Order 24, and subject to Super Fund E confirming the form of Order prior to 10am on 5 November 2019 the Court make the following orders:
That within 6 weeks of the date of these Orders the Husband shall pay to the Wife the sum of $243,773.86 (or any other such amount that provides an overall adjustment to the Wife of 75%).
In accordance with Section 90XT(1)(a) of the Family Law Act 1975, (the Act), whenever a splittable payment within the meaning of Section 90XS of the Act becomes payable to or on behalf of Mr Jacombs from his interest in Super Fund E, Ms Halsey is entitled to be paid $227,664.87 of the splittable payment and there shall be a corresponding reduction in the amount Mr Jacombs would be entitled to receive but for these Orders.
These Orders bind the Trustee of Super Fund E.
The operative time for these Orders is four business days after the service of the Orders on the Trustee.
That the Husband shall pay the Wife’s costs of and incidental to these proceedings on an indemnity basis.
Orders sought by the Respondent Father
That within 42 days of the date of these Orders the parties will do all acts and things and sign all documents as may be necessary to transfer to the Applicant all right, title and interest in the property at A Street, Suburb B being the whole of the land contained in Folio Identifier …19.
Subject to the transfer in Order 1, the Applicant is to refinance the existing mortgage over the property at A Street, Suburb B so as to discharge the Respondent from any obligation under that mortgage.
Contemporaneously with Orders 1 and 2 the Applicant indemnifies the Respondent in respect of all outgoings in respect of the property.
The Respondent indemnifies the Applicant in respect of all outgoings in respect of the property at C Street, Suburb D.
That within 42 days the Respondent pay to the Applicant the sum of $60,000.00.
That the Respondent retain all right, title and interest in the property at C Street, Suburb D, being the whole of the land contained in Folio Identifier …27
Superannuation split:
(a) In accordance with Section 90XT(1)(a) of the Family Law Act 1975, (the Act), whenever a splittable payment within the meaning of Section 90XS of the Act becomes payable to or on behalf of Mr Jacombs from his interest in Super Fund E, Ms Halsey is entitled to be paid $130,000.00 of the splittable payment and there shall be a corresponding reduction in the amount Mr Jacombs would be entitled to receive but for these Orders.
(b) This agreement binds the Trustee of Super Fund E.
(c) The operative time for this Order is four business days after the service of the Orders on the Trustee.
That within 28 days the parties are to sign all documents and do all things necessary to transfer the Motor Vehicle 1 into the Applicant’s sole name.
Within 28 days, the Applicant is to provide the Respondent with access to the Property at A Street, Suburb B and permit the Respondent to take possession of his personals effects, tools and motorcycles.
The parties are to otherwise retain all assets, liabilities, financial resources and superannuation in their sole name and/or possession.
That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
Parenting:
That the parties have equal shared parental responsibility for the child X born in 2010.
That the child live with the Applicant.
That the child spend time with the Respondent as agreed, but failing agreement as follows:
(a) Each alternate weekend from 5:00pm Friday to 5:00pm Sunday; and
(b) For up to 4 block periods of up to 7 days each year as nominated by the Respondent with such agreement not to be unreasonably withheld provided at least 28 days notice is provided.
That the child spend time with the parties on special occasions as agreed, but failing agreement as follows:
(a) On the child's birthday;
(i) If the child’s birthday falls on a non-school day; with the party who the child is not living or spending time from 9:00am to 2:00pm.
(ii) If the child’s birthday falls on a school day; with the party who the child is not living or spending time from after school to 5:30pm
(b) On the parties’ birthdays;
(i) If the party’s birthday falls on a non-school day; with that party from 9:00am to 5:00pm
(ii) If the party’s birthday falls on a school day; with that party from after school to 7:00pm.
(c) With the Respondent on Father's Day from 9:00am to 5:00pm.
(d) With the Applicant on Mother's Day from 9:00 am to 5:00pm.
(e) At Christmas:
(i) In odd numbered years with the Respondent from 9:00am Christmas Eve to 2:30pm Christmas Day and with the Applicant from 2:30pm Christmas Day to 5:00pm Boxing Day
(ii) In even numbered years with the Applicant from 9:00am Christmas Eve to 2:30pm Christmas Day and with the Respondent from 2:30pm Christmas day to 5:00pm Boxing Day.
(f) At Easter:
(i) In even numbered years with the Respondent from 9:00am Easter Saturday to 2:30pm Easter Sunday and with the Applicant from 2:30pm Easter Sunday to 5:00pm Easter Monday
(ii) In odd numbered years with the Applicant from 9:00am Easter Saturday to 2:30pm Easter Sunday and with the Respondent from 2:30pm Easter Sunday to 5:00pm Easter Monday
The parties be restrained from making critical or derogatory remarks about each other or members of each other's family in the presence of the child and the parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of their family in the child's presence.
Each parent is to ensure that the other parent is kept informed as soon as is reasonably practicable of:
(a) Any medical problems or illnesses suffered by the child.
(b) Any medication that has been prescribed to the child that needs to be taken while the child is in the care of the other parent.
(c) Any specialist medical appointments with any medical doctor, psychologist, psychiatrist, counsellor regarding the child.
(d) Any sporting, social, school or religious functions which the child is to attend.
(e) The residential address of the parent.
(f) The telephone contact number for the other parent.
(g) Any other matter relevant to the welfare of the child.
Orders sought by the Independent Children’s Lawyer
Parenting Orders:
That all previous parenting Orders be discharged.
That the Mother have sole parental responsibility for the child X born in 2010, and:
a.In exercising sole parental responsibility for the child, is to notify the Father of all major decisions affecting the Child which she intends to make, including but not limited to health and schooling, by email within 14 days of such a decision being made;
b.the Father may respond to the Mother with his suggestions by email which the Mother may consider but is not obliged to act upon.
That the child live with the Mother.
That for a period of six (6) months from the date of these orders, the child spend time with the Father, as agreed, but failing agreement as follows:
(a)Each alternate Sunday from 9:00am to 5:00pm, which such time to be supervised by F supervision agency, or such hours within 9:00am to 5:00pm as supported by the F supervision agency.
Following the conclusion of the period above in Order 4, that the child spend time with the Father for the following six (6) months, as agreed, but failing agreement as follows:
(a)Each alternate Sunday from 9:00am to 5:00pm, which such time to be supervised by the paternal grandparents.
Following the conclusion of the period above in Order 5, that the child spend time with the Father for the following six (6) months, as agreed, but failing agreement:
(a)Each alternate Saturday and Sunday from 9:00am to 5:00pm, which such time to be substantially in the presence of one or both of the paternal grandparents.
Following the conclusion of the period above in Order 6, that the child spend time with the Father for the following six (6) months, as agreed, but failing agreement:
(a)Each alternate Saturday 9:00am to 5:00pm Sunday, which such time to be substantially in the presence of one or both of the paternal grandparents.
Following the conclusion of the period above in Order 7, and for the following six (6) months, that the child spend time with the Father as agreed, but failing agreement:
a)Each alternate Saturday from 9:00am to Sunday 5:00pm.
Following the conclusion of the period above in Order 8, thereafter, that the child spend time with the Father as agreed, but failing agreement as follows:
(a)Each alternate weekend from 5:00pm Friday to 5:00pm Sunday; and
(b)For up to 4 block periods of up to 7 days each year as nominated by the Father during school holidays with such agreement not to be unreasonably withheld by the mother, provided at least 28 days’ notice is provided.
That in accordance with supervision requirements set out above, the child spend time with the parties on special occasions as agreed, but failing agreement as follows:
(a)On the child's birthday;
(i)If the child’s birthday falls on a non-school day; with the party who the child is not living or spending time from 9:00am to 2:00pm.
(ii)If the child’s birthday falls on a school day; with the party who the child is not living or spending time from after school to 5:30pm.
(b)On the parties’ birthdays;
(i)If the party’s birthday falls on a non-school day; with that party from 9:00am to 5:00pm.
(ii)If the party’s birthday falls on a school day; with that party from after school to 7:00pm.
(c)With the Father on Father's Day from 9:00am to 5:00pm.
(d)With the Mother on Mother's Day from 9:00 am to 5:00pm.
(e)At Christmas:
(i)In odd numbered years with the Father from 9:00am Christmas Eve to 2:30pm Christmas Day and with the Mother from 2:30pm Christmas Day to 5:00pm Boxing Day.
(ii)In even numbered years with the Mother from 9:00am Christmas Eve to 2:30pm Christmas Day and with the Respondent from 2:30pm Christmas day to 5:00pm Boxing Day.
(f)At Easter:
(i)In even numbered years with the Father from 9:00am Easter Saturday to 2:30pm Easter Sunday and with the Mother from 2:30pm Easter Sunday to 5:00pm Easter Monday
(ii)In odd numbered years with the Mother from 9:00am Easter Saturday to 2:30pm Easter Sunday and with the Father from 2:30pm Easter Sunday to 5:00pm Easter Monday
That for the purposes of changeover, the parties meet at a public location as agreed, but failing agreement, at KFC Suburb G.
The parties be restrained from making critical or derogatory remarks about each other or members of each other's family in the presence of the child and the parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of their family in the child's presence.
The Parties shall ensure to install child-appropriate safeguards on computer and computer-like devices to which the child has access.
Each parent is to ensure that the other parent is kept informed as soon as is reasonably practicable of:
a.Any medical problems or illnesses suffered by the child.
b.Any medication that has been prescribed to the child that needs to be taken while the child is in the care of the other parent.
c.Any specialist medical appointments with any medical doctor, psychologist, psychiatrist, counsellor regarding the child.
d.Any sporting, social, school or religious functions which the child is to attend.
e.The residential address of the parent.
f.An email address for the purpose of communicating in accordance with these orders.
g.The telephone contact number for the other parent.
h.Any other matter relevant to the welfare of the child.
Within seven (7) days, the Father is to provide an Undertaking to the court in the proper form that he will:
a.attend on his treating psychologist and comply with all reasonable directions given for a period of at least one year from the date of these orders; and
b.That he will not consume alcohol beyond the legal limit 12 hours before and during any time spent with the child.
Within seven (7) days, the Mother is to provide an Undertaking to the court in the proper form that she will:
a.attend on a general practitioner for a referral to a new treating psychologist for the child with whom the child is to consult with alone; and
b.will attend upon the treating psychologist, if and as directed for the purpose of Family therapy; and
c.she will comply with all reasonable directions given for a period of at least one year from the date of these Orders, including notifying the Father should he be required to attend for the purpose of Family therapy; and
d.cause the scheduling of such Family therapy appointments at convenient times to herself and the Father.
Notation
- The Court notes that the Paternal Grandparents, Ms H and Mr J, have agreed to provide Undertakings to the court in the proper form in which they agree to adequately supervise the Child’s time with the Father where required under these orders.
Schedule Two
Child inclusive Conference Memorandum dated 27 March 2018
| Child Inclusive Conference Memorandum to Court | File Number: | (P)WOC691/2013 |
| File Name: | Halsey & Jacombs |
| Attention is drawn to s121 of the Family Law Act of 1975 which, with certain exceptions, makes it an offence to publish or disseminate to the public, or a section of the public, any part of proceedings under the Act that identifies a party, a witness, or certain other persons. This prohibition would apply to Family Consultant Memoranda. |
| Name of family consultant: | Family Consultant Ms P |
| Application: | Application for Final Orders M3F |
| Source of referral: | Federal Circuit Court |
| Intervention: | Child Inclusive Conference |
| if other, specify: |
| Date and time of interview(s): | Tuesday, 27 March 2018 at 9:00 AM |
| Parties/adults interviewed: | Both separately |
| Children interviewed: | X (born in 2010) |
| If other, specify (including names and ages of children interviewed) | |
Documents read: | All documents in the current application |
|
X lives with his mother, Ms Halsey, Ms Halsey’s daughters from her marriage to Mr SS, namely Ms M (born in 1999) and Ms N (born in 2001) and Ms Halsey’s de-facto partner, Mr W (born in 1968) at A Street, Suburb B. Mr Jacombs lives at Town TT with his parents (names not obtained from this author).
AGREEMENTS REACHED
ISSUES IN DISPUTE
- The parents have agreed that, as a starting point and on an interim basis, X spend time with his father supervised for three hours once every alternate Saturday. Mr Jacombs does not consider that his time with X requires supervision, however in order to spend time with X he will support, on an interim basis, supervised time.
- There is no disagreement about where X ought to primarily live, with both parents proposing that X live with his mother.
- The parents agree that X loves his father, wants to spend time with his father and ought to be given the opportunity to spend time with his father.
- Parental responsibility – Ms Halsey proposes that she have sole parental responsibility for X, Mr Jacombs proposes that the parents have equal shared parental responsibility for X.
- X’s time with his father – Ms Halsey proposes that X spend supervised time with his father. Mr Jacombs proposal for X’s final parenting arrangement include that X spend time with him each alternate weekend, half of the holidays and that provisions be made for days of special occasion.
- Interim arrangements and whether they allow for the paternal grandparents to be present when X spends time with his father – Ms Halsey proposes that X spend supervised time with his father without the paternal grandparents being present, stating that the paternal grandparents are believed to be driving the dispute. Mr Jacombs said that, as X has a significant relationship with his paternal grandparents, that Mr Jacombs lives with the paternal grandparents and that the time is proposed to occur at the paternal grandparent’s home, he proposes that there are no restrictions on whether or not the paternal grandparents are present.
RISK FACTORS
- Family violence – There have been multiple Apprehended Violence Orders in the past protecting the mother from the father, with the most recent AVO protecting the mother and children from the father which expired in December 2017. Ms Halsey described significant family violence from Mr Jacombs towards her and the children. She alleges that Mr Jacombs has pushed her, threatened to kill her on three occasions in the presence of the children, made fists to both her and the girls threatening to punch them, stopped her from fleeing Mr Jacombs’ abuse by him disconnecting her car battery or standing behind her car stopping her from reversing out of the driveway, pinning her between a door and wall, chasing her from room to room, leaving her “frightened” and experiencing what, in hind sight, was an anxiety attack. She alleges that Mr Jacombs has threatened to kill himself on many occasion and has threatened to kill him and X by driving off Region T Hill, regularly screamed at the children “eat your fucking dinner”, called Ms M a “filthy pig” after her underwear was dirtied from her first period, called X “a cunt” when he was upset with him and threatened to hit the maternal grandmother with a beer bottle on their first meeting. Ms Halsey believes that Mr Jacombs would hurt X to get back at her. She said that he has refused to accept that they have separated, constantly asks her to reconcile with the last occasion being the previous time that X spent time with his father on Christmas Day 2017. She said that he had control over their finances, continues to have utilities in his name and that he has stalked her on those occasions when she has tried to end the relationship. Ms Halsey said that she has not ever behaved in a way that would be considered frightening to Mr Jacombs or the children. Mr Jacombs said that he has at times reacted inappropriately to Ms Halsey’s alleged provocation. He said that she would have, at these times, been frightened of him. He denied ever having threatened to kill Ms Halsey (he said that he said on one occasion that he “could kill you for this” but denied he said he would kill her) and denied that he has ever said that he would or could hurt X. Mr Jacombs said that he did not verbally abuse Ms M after she had her period. Mr Jacombs alleges that Ms Halsey has threatened that “she should have” drove off Region T Hill with the children in the car and has threatened that she “should have” killed herself (he said that her threats were made in past tense). He alleges that Ms Halsey has pushed him and that she was verbally abusive towards him throughout their relationship, which significantly impacted on his self-esteem and confidence.
- Mental health – Mr Jacombs said that he has experienced depression which is medicated with 100mg Zoloft. He said that his “toxic” relationship with Ms Halsey left him with significant self-esteem and confidence issues. He said that he would react angrily to triggers including meeting confrontation with aggression and retaliation and has been suicidal in the past. Mr Jacombs said that his mental health, at the time of this assessment and for the months leading up to this appointment, has been significantly more positive. He said that he is significantly calmer, more contained and does not react when he is faced with confrontation. Ms Halsey believes that Mr Jacombs has behaviours similar to those people who have “bi-polar” or “narcissism”. She said that she is frightened of him due to his behaviour and that she finds that he is angry, aggressive and volatile when interacting with her.
- Ms Halsey said that she does not experience mental health issues. She said that her child hood was “difficult” and that Mr Jacombs has said that the issues between she and him were caused by her child hood experiences (which she does not agree with). Mr Jacombs said that he believes that Ms Halsey’s childhood has resulted in her having a skewed perception of relationships and that this impacted on their relationship. He said that he suspects that Ms Halsey has an undiagnosed mental health issue.
- X’s relationship with his father – Mr Jacombs said that he is concerned that he is going to lose his relationship with X completely due to Ms Halsey being unable and unwilling to support X having a relationship with him. Mr Jacombs said that Ms Halsey was limited in her capacity to support X’s, Ms M’s and Ms N’s relationship with him prior to separation and he is concerned that she will have less ability to support X’s relationship with him post separation. Ms Halsey said that X loves his father and wants to spend time with him. She said that X’s relationship with his father is important and that wants X to spend time with his father, provided it occurs safely for X.
COPARENTING RELATIONSHIP
- There is minimal communication between the parents. They report that conflict and alleged abuse has decreased in the previous six months due to the limited contact that they have had. Ms Halsey is in the process of completing a parenting after separation program, this author did not ascertain whether Mr Jacombs has completed the course.
THE CHILDREN
- X (aged 8 years 2 months) was assessed on his own. He said that he is in year three at school, enjoys science, maths and writing, has lots of friends and enjoys sports. His views and feelings are summarised below:
- X spoke only in positive terms about his mother, sisters and his mother’s partner, Mr W. He said that he is safe and feels happy when in their company and he said of his mother that she is “brave, nice and very protective (of him)”. He said that he is not worried about his mother in any way and thought that she is happy and healthy. He said that he likes living with his mother and would feel “happy” were he to continue to live with her. He described close and positive relationships with Ms M and Ms N.
- X said that he loves his father and described him as “always there for me” and as someone “who always helps me”. He said that he misses his father and would like to see him more often. He said that he has not seen him for “about a year” because “we are too busy with school and then chores and mums work on the weekend”.
- X’s only criticism of his father was that his father cries when X spends time with him. X said that this can be uncomfortable for him, that he tries to ignore his father’s crying and that he hopes that his father stops crying. X believes that his father is crying “happy tears”. He said that he would feel better were his father able to better emotionally contain himself so that he did not cry so often. It is noted that Mr Jacombs cried on the day of this assessment when X was taken to greet his father and that X appeared uncomfortable and uneasy. After a discussion with this author in which Mr Jacombs was asked to contain his emotions, X was brought to his father to say goodbye and the interaction appeared more positive including that X reciprocated a hug and had significantly more eye contact.
- X would like to spend time with his father and said that he is “always safe” when with his father. He worries about his father believing that this is due to not seeing his father regularly and therefore not knowing whether he is well and happy.
FUTURE DIRECTIONS
- Provided that X is considered safe, this preliminary assessment indicates that X would benefit from spending time with his father as this is what X has said that he wants and the parents both believe that X has a valued and positive relationship with his father that ought to be given opportunity to continue;
- There are, however, significant concerns raised about family violence and mental health that would require reassurances before unsupervised time could be supported. It is noted that Mr Jacombs is supportive of supervised time occuring so that reassurances can be gained that he is a capable and safe carer for X. Such an arrangement appears to be a reasonable start for X to begin spending time with his father.
- Mr Jacombs has alleged that Ms Halsey was physically and emotionally abusive of him, threatened self-harm and made homicidal threats that included harm to her children throughout the time of the relationship. Whether or not Ms Halsey is a risk to the children from exposure to family violence or abuse to X is an issue that requires more consideration from the Court.
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