HARLE & NORCOTT
[2019] FCCA 1676
•12 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARLE & NORCOTT | [2019] FCCA 1676 |
| Catchwords: FAMILY LAW – Interim parenting application following Contravention Application that was withdrawn and dismissed – high conflict parents – where a child is allegedly refusing to spend time with the father. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Goode & Goode [2006] FamCA 1346 MRR v GR [2010] HCA 4 |
| Applicant: | MS HARLE |
| Respondent: | MR NORCOTT |
| File Number: | WOC 276 of 2018 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 24 May 2019 |
| Date of Last Submission: | 24 May 2019 |
| Delivered at: | Wollongong |
| Delivered on: | 12 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Maddox |
| Solicitors for the Applicant: | Bowral Legal |
| Counsel for the Respondent: | Mr Cook |
| Solicitors for the Respondent: | Access Law Group |
| Counsel for the Independent Children's Lawyer: | Mr Harris |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
Orders 9-10 made 10 August 2018 be suspended pending further order.
Pending further order, the Children live with the Mother.
Commencing on 21 July 2019 and pending further order, the Children spend time with the Father each alternate Sunday from 10:00am until 6:00pm.
The matter be adjourned to 18 October 2019 at 9:30am for Mention. The parents must attend in person with their legal representatives if the Report is available prior to the adjourned date.
THE COURT NOTES THAT:
A.The non-denigration Orders made 10 August 2018 and the restraints prohibiting the discussion of these proceedings with the children by the parents made 17 September 2018 remain in force.
B.The Court requests that the Independent Children’s Lawyer meet with the Children prior to the commencement of Order 3 above to explain these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Harle & Norcott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 276 of 2018
| MS HARLE |
Applicant
And
| MR NORCOTT |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about four children, [W] born … 2007, 12 years old, [X] born … 2009, 10 years old, [Y] born … 2011, eight years old, and [Z] born … 2013, five years old. The children presently live with their mother and, whilst there are orders for them to spend time with their father, this is not taking place.
The parents commenced a relationship in … 2005, were married in … 2006, and separated at the end of 2016, or beginning of 2017.
It is clear from the accounts of both parents as to their relationship, as well as the more objective material produced on subpoena, that theirs was a volatile one. It is likely that there were separations and resumptions of cohabitation, before the final separation. The Mother claims that there was violence and threats of violence and the Father claims that there was abuse and manipulation. Again, it is clear from the evidence of both parents, as well as the more objective material, that the children were frequently exposed to what is undoubtedly a high level of conflict between the parents.
A most disconcerting feature of this case is that both parents allege that the other has been physically abusive towards the children. There is evidence from the children to this effect, and there is further evidence in the objective material before the Court to this effect. The parents need to understand that this conduct is completely unacceptable. Children are entitled to expect their parents to regulate their own behaviour and how they respond to situations that may require appropriate disciplining of children. It is clear, even at this early stage of these proceedings, that both parents have let their children down in this regard. Moreover, what this case and their evidence before the Court demonstrates, is that the parents have been so inextricably caught up in the conflict with each other that they have renounced any form of discernment when it comes to what the children may be saying to them. Thus, for example, when one child makes a report of abusive behaviour perpetrated by the other parent against a child, the “innocent” parent unequivocally accepts what that child says. There is no test of plausibility applied. There is no attempt to understand the loyalty bind that the child reporting the incident experiences. There is no attempt to understand context. No, what one parent does is unequivocally except what a child says and, usually, reports to authorities as if it were fact. That is not to detract from the Court’s earlier observation that the evidence indicates that the children were subjected to physical abuse, and that this was entirely inappropriate. The manner in which the parents responded is the focus of present concern. If they had not been so focused on seeking to manipulate events for their own perceived advantage, life for these children would be entirely different.
After separation, the children experienced quite significant changes in their life. They saw the Father less regularly. They moved homes. In June 2017, the Father appears to have commenced spending alternate weekends with the children, plus one night in the alternate week. This arrangement only lasted a few months. The Mother says this is because the children complained about the Father’s treatment of them and because the Father said he could not cope with them. The Father, unsurprisingly, alleges that the Mother was denying him time with the children, and causing the children to resist spending any time with him.
From February 2018, the Mother alleges that the Father only wanted to spend time with [W] and [Y]. In March 2018, she insisted that the Father see all of the children together. The Mother commenced the present proceedings on 14 March 2018. It is interesting to note that the final orders the Mother sought in her application provided for equal shared parental responsibility between the parents but that the Mother have sole parental responsibility in relation to the children’s education and health. The children would otherwise live with the Mother and spend time with their father every second weekend from after school on Friday until 7:00pm Sunday, and half the school holidays. One of the interesting issues for the final hearing may well be whether the Mother genuinely believed that the orders she sought at the time were in the best interests of the children. At that time, of course, the arrangement for the children to spend time with their father had already broken down and he was not seeing them in accordance with what was then her proposal for final orders.
A number of interim orders have been made in this matter, including on a contested basis. Those orders are:
| 28/05/2018 First return date | Interim Consent Orders: · Children to have telephone contact with the Father each Monday and Thursday at 7:15pm · Without admissions, the children spend supervised time with the Father at CatholicCare Suburb A each alternate Sunday · Both parties complete intake for CatholicCare within 7 days Appointment of an Independent Children’s Lawyer |
| 10/08/2018 Interim Hearing | Interim Orders, by consent as between the Mother and the Independent Children’s Lawyer: · Equal shared parental responsibility · Non-denigration and non-discussion order · Children spend supervised time with the Father: o at CatholicCare Suburb A once each fortnight for two supervised contact visits, and thereafter; o each alternate Saturday from 10:00am until 6:00pm, unsupervised for two visits, and thereafter; o each alternate weekend from 5:00pm on Friday until 5:00pm on Sunday, half school holidays and various special occasions · Children to have telephone contact with the Father each Monday and Thursday from 7:00pm-8:00pm · Within 12 months, both parents complete various specified parenting courses · Both parents restrained from administering corporal punishment on the Children · Ancillary orders regarding responsibility for day-to-day decisions, both parent’s attendance at events, parental communication |
| 17/09/2018 Mention | Directions for the Father to file an Application in a Case and the Mother to file a Response |
| 21/11/2018 Mention | Father to serve Contravention Application on Mother and Independent Children’s Lawyer Family Report |
| 12/03/2019 Mention | Father to file Amended Contravention Application Father to comply with Order 7 made 17/09/2018 for the production of voice recordings of the children Matter listed for Contravention Hearing |
The Father filed his Response on 25 June 2018. In short, he proposed the reverse of the orders in the Mother’s application, with the children living with him in Queensland, and spending time with their mother.
As can be seen from the summary of orders above, following the interim hearing on 10 August 2018, the Court made further interim orders, including for the Father to have two sessions of supervised contact, and then progressing to unsupervised alternating weekend time. The supervised contact occurred on 23 September and 7 October 2018. The reports of these visits indicate, by any objective measure, that the visits were successful. In accordance with the orders made, his time progressed to unsupervised time, but by February 2019 this had ceased completely.
The present interim application relating to the children arose in the context of the Father filing a Contravention Application on 21 November 2018, alleging a number of breaches of orders relating to the children, but mainly focused on allegations of physical abuse and threats made by the Mother towards the children. On 4 April 2019, he filed an Amended Contravention Application alleging that the Mother had, without reasonable excuse, allowed him to spend time with the children since February 2019, in accordance with the interim orders made 10 August 2018.
When the Father’s Contravention Application came before the Court for hearing on 24 May 2019, both parents (who had been unrepresented for most of the proceedings up until then) appeared with both solicitor and Counsel. The Independent Children’s Lawyer also appeared with Counsel. By consent, the Father’s Contravention Application as amended was withdrawn and dismissed. This was a sensible decision for the Father to make. His Contravention Application was, unfortunately, technically deficient in many respects. It could not succeed. The Court made it very clear to the parents, and their legal representatives, that whether or not the Contravention Application proceeded, succeeded, or failed, the Court was going to revisit the issue of the most appropriate interim orders for these children given that the arrangement had clearly broken down. It was common ground that the Father had not seen the children since 28 February 2019. Time was given to the parties to seek advice, and to formulate, with their legal representatives, proposals for further interim orders.
The Court notes that it is possible on some interpretation of s.70NBA of the Family Law Act 1975 (hereafter referred to as ‘the Act’) that the application for interim orders was not pursuant to that section. Even if that were the case, however, it was patently clear from the manner in which the Court intended to proceed that it was granting leave to the parties to make oral applications for interim orders.
The Independent Children’s Lawyer proposed that, pending the receipt of a Family Report which had been ordered on 21 November 2018, and which is expected in October 2019, the existing orders for the Father to spend time with the children should be suspended. The children should continue to live with their mother, but spend time with their father each alternate Saturday from 10:00am until 6:00pm, and each Thursday by telephone between 7:00pm and 8:00pm. The Father’s proposal was, doing the best the Court can to understand it, that there be an order for equal shared parental responsibility, that the children live with him, and spend time with their mother each alternate weekend from 6:00pm on Friday until 6:00pm on Sunday, as well as half the school holidays and special days.
The Mother’s proposal for interim orders was that the children continue to live with her, that each child, with the exception of [X], spend time with their father each alternate Sunday between 10:00am and 6:00pm, but [X] be able to decide for himself whether he spends time with his father. She was opposed to any telephone calls.
The Court must record its disappointment, though not surprise, with the proposals advanced by the parents. The Father’s proposal that the children live with him is nothing short of extraordinary. It seems to have been predicated on the basis that he was innocent of any culpability in the current state of his relationship with the children, and that the Mother was entirely responsible for the present situation. Regrettably, this type of black/white thinking was endemic in the approach adopted by both the Mother and the Father throughout these proceedings. That the Father would propose this at an interim hearing in circumstances where he currently resides in a hotel room and gives no realistic evidence about how he would accommodate the children, let alone where, reflects poorly on him. And yet, as it turns out, it may well be that his proposal for the children to live with him on a final basis is plausible, provided he is willing to undertake the level of deep self-reflection that is required before a properly formulated proposal can be considered. The Mother’s proposal is equally disappointing, but not surprising. It was her case, in effect, that she had a reasonable excuse in relation to the Father’s Contravention Application because of the risk of harm to the children in his care, as well as their resistance to spending any time with him. How, one wonders, would the children be protected under her proposal? How, one wonders, could she possibly get the children to spend time with their father, even for eight hours each alternate Sunday? The hypocrisy in the Mother’s proposal, matched that of the Father’s.
The Court notes that it has been, and indeed will continue to be, trenchantly critical of both parents in these Reasons for Judgment. As already stated, children expect more from parents than what the Mother and Father in this case have provided. It is time for sober self-reflection, and possibly access to professional therapeutic assistance for both parents individually, so that there is some chance that they can emerge from the mire of dysfunction in which they presently find themselves, and thus provide to their children the optimal parenting experience they possibly can.
The Evidence before the Court
The parties all relied on their respective Case Outlines.
The Father relied also on the following documents:
a)Affidavit of Mr Norcott, affirmed 12 November 2018 and filed 14 November 2018;
b)Affidavit of Mr Norcott, affirmed and filed 17 October 2018;
c)Amended Contravention Application, filed 4 April 2019
d)Contravention Application, filed 23 May 2019;
e)Affidavit of Mr Norcott, affirmed and filed 23 May 2019.
The following documents were tendered during the Hearing:
·Documents produced pursuant to subpoena to the Department of Family and Community Services;
·Email dated 14 March 2019 from Ms B;
·Documents produced pursuant to subpoena to Dr C at The Psychology Clinic;
·Documents produced pursuant to subpoena to NSW Police;
·Documents produced pursuant to subpoena to Ms D;
·Documents produced pursuant to subpoena to Family Therapy;
The Applicable Law
The applicable law is found in Part VII of 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.
The Case Law
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 Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
The Relevant Events
An incident occurred on 16 December 2018 whilst the children were in their father’s care. The Father physically punished [X] following his misbehaviour towards one of the other children. The Father says that he slapped [X] on the bottom. It is alleged that [X] said that his father kicked him and yelled at him. Notwithstanding this incident on 16 December 2018, the Father continued to spend a period of two weeks with the children. Indeed, his contact with them remained unaltered until a report was made to the Department of Family and Community Services, which led to an investigation by the Department, and subsequently an agreed safety plan on 15 February 2019 that involved advice to the Mother (and from a legal perspective, it can be construed as nothing greater than advice to the Mother) that she not allow the children to spend time or communicate with their father. The Father agrees he slapped [X] in the context of disciplining him about the incident. The only other uncontested fact is that he has not seen the children since 28 February 2019.
It is necessary to consider the evidence about this incident in quite some detail. As will be seen below, however, there are a number of confounding and complicating factors. Whilst the Father’s evidence is clear, and largely consistent, it is untested. As will be seen below, the remaining evidence comes from the children themselves, and this evidence must be assessed with discernment. What is clear is that these children are abundantly aware of the conflict between their parents and experience some divided loyalties. As will be seen, the children’s accounts are inconsistent. Some of the evidence about the children’s account occurs in the presence of the Mother, and will be discounted as such because of the matters referred to above.
The Father gives evidence about what occurred in his Affidavit filed 23 May 2019 at paragraphs 13-21. He describes the incident that led to the need to discipline [X], at paragraph 13. At paragraph 14, he deposes: “I smacked [X] on the bottom and sent him into the bedroom. I then ushered the other children into the lounge room and calmed them down.” At paragraph 18, he explains that on 18 December, two days after the incident in which he disciplined [X], the Mother texted him saying:
Mr Norcott, [X] refuses to go back to you as you kicked him and slapped him in the head repeatedly, threw him on the bed and told him he was the reason why our family broke up and he was a disgrace to our family.
Whilst the Father strongly denied these allegations, he gives no evidence about any further text message exchange with the Mother. Curiously, the Mother gives no evidence whatsoever about these events. The Father deposes at paragraph 19-21, and it appears not in dispute, that whatever happened, the fact is that all four children spent Christmas holiday time with him between 28 December 2018 and 13 January 2019.
There may well have been some initial reluctance from [X] about spending time with his father, but it is clear that by 28 December that had dissipated. Thus, despite an incident which allegedly involved the Father kicking and slapping [X] in the head, throwing him on the bed and telling him that he was the reason why the family broke up, assertions apparently made by the Mother, the fact is that the Mother let [X] spend time with his father for two weeks over the Christmas school holidays.
The Father deposes at paragraph 23 of his affidavit that on Thursday, 28 February 2019 he received an email from the Mother. The email was annexed to the Father’s affidavit and bears reproduction in full:
Dear Mr Norcott,
After considering the outcome of having FACS involved in our lives from late January 2019 and the serious concerns they have raised with me whilst the children are in your care, I am writing to inform you that I will be keeping the children from your care for safety reasons which relates directly to their mental and physical wellbeing. They will remain in my care until such time The [sic] Federal Circuit Court can review the information from FACS and then make an appropriate decision for the time the children should spend with you.
I note that I am agreeable for you to continue to spend time with the children on your allocated weekends, however, that time shall be a day visit only and will need to be supervised by Contact Centre, or similar agency at your cost. I am also agreeable for your phne contact to continue on the Monday and Thursday nights between 7pm and 8pm, however, that time will also need to be supervised, similar to how FACS supervised last Thursdays call between yourself and the children.
Regards,
Ms Harle
A number of observations can be made. Despite the Mother sending [X], indeed, all the children, to spend time with the Father during the Christmas holidays, she obviously reported the matter to the Department of Family and Community Services. It is interesting that the Mother states that the children would remain in her care:
...until such time The [sic] Federal Circuit Court can review the information from FACS and then make an appropriate decision for the time the children should spend with you.
There is no evidence that the Mother, notwithstanding this, sought to relist the matter so that the Court could undertake the very process that she described. The Mother nonetheless offers the Father to have supervised time through Contact Centre, the previous supervisors, as well as supervised telephone calls.
It appears that on 18 December 2018 the Mother took [X] to see his doctor, Dr E. The records states as follows:
Had head clash with girl two weeks ago. Then hit the ground. He had tingling in the hands. Was with Father from 13-20/12. Father kicked him in the head on 20/12/18. He slapped him on the back of the head and was verbally abusing him. He fell to the ground, and his Father kicked him in the forehead. He was knocked out. He continued to verbally abuse [X]. He called him an idiot. He said he and his Wife had broken up because of the Child. He has a mild headache. Vision is normal.
No tingling in hands or feet. .....spoke to Mother. [X] appears to be in danger from his Father, and it appears he should not have access. Mother reported that he questions the children about her behaviour and turns them against her. She has trouble disciplining them because of this, and is frightened to say anything to them as they will report it to the Father.
There are a number of difficulties with this record. The incident could not have occurred on 20 December 2018 if [X] was seeing Dr E on 18 December 2018. The Mother appears to have been present during this consultation. It is unclear, therefore, whether this is [X]’s account, the Mother’s account, or [X]’s account influenced by the Mother’s presence. What will become apparent is [X]’s willingness to make an adverse disclosure about his Father, when his Mother is present.
On 21 December 2018, the Mother makes a report of the Father’s alleged assault on [X] to the police. The COPS entry for this event is lengthy but insightful, and thus will be reproduced in full:
The POI Mr Norcott and the PR Ms Harle (Harle) were previously married and are currently separated, with the PR residing in Town F and the POI residing in a unit in Sydney. They have four (4) children [W] (11), [X] (9), [Y] (7) and [Z] (5). Recent Family Law Court orders have been made where the POI has custody of all children every second weekend. There has been numerous Police interactions with both parties which has been documented in ------ Family and Community Services also have interactions documented, with a JIRT referral rejected due to insufficient criteria for investigation. These interactions occurred throughout 2018 and details constant accusations between both parties of each others [sic] behaviour and treatment of the children. Narrative 6 of the above event is of note which contains a report submitted by ------- (child and family caseworker – Uniting) who worked with the family in an early intervention program for 12 weeks since March 2018 and saw the family every week. This details a lot of information which portrays the PR in a very different light to what she attempts to led [sic] Police to believe. On Thursday 20-12-2018 the POI contacted Region G Police Station seeking advice regarding the PR not wanting one of their children ([X] – 8) to go with him back to his house this date as per the Family Law Court orders until Christmas day where they would be returned to their mother. Police explained their role regarding family Law Court matters however obtained the PR’s details in order to speak with her regarding the matter in order to prevent a possible breach of the peace later this date. Police spoke to the PR over the phone about 12:30pm this day where she then disclosed the following incident to Police as a reason she was not allowing [X] to go with the POI. On the afternoon of Sunday 16-12-18 the PR states she picked up their four children from the POI’s address in Sydney after they stayed there for the weekend. PR claims when the children got in the car, [X] (8) was acting strange and shortly after leaving disclosed to her that his father hit him several times to the back of the head, and also kicked him several times to the face, head and body while he was on the ground. When asked at this point if she observed any injuries on [X], the PR confirmed that there was no reported injuries by him, not injuries sighted or even slight red marks which would be consistent with the version she was just given. The PR has returned home and no report made to Police or any other agency at this time. On Tuesday 18-12-18 the PR has taken [X] to the Family Doctor for a check up [sic] and this also confirmed that no injuries or suspicious marks were able to be found on [X]. The PR has taken [X] to see Legal ---------------------) on Wednesday 19-12-1 where she stated that [X] has spoken to Clac [sic] in a private conversation about the matter however she was not privi [sic] to the details of the interview and as such could not provide details of this. The PR has not made any report to Police of the incident since it occurred. Police made several enquiries with the school teacher of [Y], -------------- with ------- without success, and then spoke with the POI over the phone. From these enquiries, and further enquiries with previous Police interactions, Police believe the following has occurred. Whilst all four children were at the POIs unit on Sunday afternoon, shortly before the PR was to pick them up, [X] has locked the youngest child [Z] (5) in the toilet and turned the light off which has caused him to become extremely frightened as he is scared of the dark which is known to all children. Seeing this, the oldest child [W] (11) has intervened to get [Z] out of the toilet. In doing so [X] has struck [W] to the side of the face causing him pain and this has alerted the POI to the situation who at the time was speaking with [Y] in another room. [W], [Z] and [Y] at this point were all in a highly emotional state with the POI then attempting to chastise [X] for this actions. The POI by his own admission smacked [X] on the buttocks and he was sent to his room. It appears [X] has fallen to the ground either by rebelling against the POIs chastisement or as a result of the smack. It is at this point where the POI is alleged to have kicked [X] several times to his body and to his face. It should be noted that at this time all three other children were still in a highly emotional stated and [X] was lying on the ground while the POI was in the process of chastising him and sending him into a room by himself to separate him from the other children. The POIs premises is a small inner city unit and the chance that all three of the children at this time had a clear view of what was occurring between the POI and [X] inside the doorway of one bedroom was slim. The POI stated that when the children were placed into the PR’s car, [X] made a comment to the PR regarding the POI kicking him. This comment was then allegedly followed by a comment from the oldest child [W] who stated, “No he didn’t”. This was denied by the PR. At this stage Police do not have enough evidence to determine if the alleged assault did occur, and are also unable to dismiss the possibility that it did not. Further investigation into this incident would require subjecting all children aged between 5 and 11 to Police interaction which may or may not provide further clarity in the end. Further to this no physical evidence exists to support the version that a grown adult has kicked an 8 year old child to the face and then several times to the body, which would highly likely leave at the most a faint mark. It appears the separation of POI and PR has caused a strong increase in the aggressive and defiant behaviour of all children towards both parents, but more in particular [X]. Its [sic] believed all children are suffering some type of behavioural problems however it appears [X]’s behaviour may be on a higher scale than his siblings. The short time spent with the POI after long period of no contact also appears to be a strong factor in [X]’s behaviour. The POI expressed to Police that he has been attempting to have [X] see a child psychologist however the PR was refusing to do this. This subject is also spoken about by ------- where she states that the PR was unlikely to involve a psychologist to assist in the families issues. Both parties informed a record only would be made at this time.
A number of observations can be made about this police record. Firstly, the reports that both parents have made about the other and the children, are matters known to the police. Indeed, a later COPS entry (23 January 2019) contains some concerning observations, not directly relevant to the present issue. Secondly, there was no evidence of physical injury on the child. Thirdly, the doctor’s appointment obviously took place on Tuesday, 18 December and, again, there was no physical evidence of injury. Fourthly, the police record gives some more detail about the context of the incident. Fifthly, the police record casts doubt on the possibility of the other children actually witnessing the events in question. Sixthly, whilst [X] may well have made a disclosure to the Mother in the car on the way home, the oldest child, [W], denied that it occurred.
The Court observes that this report is probably based on the police speaking to both parents, but not the children.
Documents are produced by Ms D, a counsellor. These documents became exhibit R5 and A3. The four children were referred to Ms D by a general practitioner in Suburb H, Sydney, thus suggesting that this referral was initiated by the Father. The referral, and accompanying mental health treatment plan, are dated 4 January 2019. The records produced by Ms D suggest that she met with each member of the family. The records produced cover the period 21 December 2018 to 16 February 2019, a total of eight sessions.
On 21 December 2018, there are records of the first session between Ms D and [W] and [Y]. [Y] is recorded as disclosing that she would like to live with her father, and only visit her mother. The session on 29 December 2018 was with all siblings together. [Y] chose three sad cards, one of which explained that she feels sad when “mummy hurts me”. The session on 3 January involved seeing all the children individually. [Z] reported: “...mum says she doesn’t hurt us, but she does...” The record notes that he feels unsafe at home because everyone fights. He prefers to live with his dad. [Y] believes that mum broke her foot: “Mum picked her up and dropped her for no reason and threw her across the room”. (There is another record from [Y] which is completely inconsistent with this.)
[Y] further reported that: “Mum squeezes her arm often, which hurts her. She is scared to live with mummy and that mummy makes her really sad.”
[X] said that he is scared of his dad and wants to spend time at his mums, however he is too scared to tell his dad. The note says that he claims he likes it more at his mum’s house because he can play computer games, whereas at his dad’s house he has to do things outside and he always feels tired. He recalled a time when his dad kicked him on the head which made him scared of his dad. [X] states he feels like he is left out in his family which makes him feel really sad. This disclosure, on 3 January 2019, is the first unequivocal disclosure by [X] that his father kicked him.
[W]’s records indicate that he had concerns about his mother. He feels like his mother is trying to stop him from seeing his dad. He wants to live with dad. He reports that mum screams in his ear when he gets into trouble.
The fourth counselling session with Ms D was on 5 January 2019 and was both an individual and group session. [W] reported that when he visited mum, “Mum smelt of alcohol and was acting crazy”. He reported that he hid in his room because he felt scared. He said mum drinks a lot of beer and he does not like it. Mum gets mad at him for no reason.
Ms D’s file indicates that she made a report to the Department as a mandatory reporter on 8 January 2019. The report summarises the matters raised by the children with her in the sessions.
The sixth counselling session with Ms D was on 12 January 2019 with all the children together, and then the Father separately. Both [Y] and [W] expressed concern that they would not be able to see their father again. [X] reported that his mother is an alcoholic.
On 25 January 2019, [X] was interviewed by two Departmental caseworkers. The notes of this interview are in evidence. When [X] was asked when was the last time his dad smacked him, he answered that he could not remember. He was clearly afraid that one of his parents would get into trouble and possibly go to prison. He was asked if something had happened with his father and whether he got kicked in the head. [X] hid his face and said that he did not want to talk about it. He explained that the last time he saw his father was last week, that he missed him, and wants to live with him.
When asked whether he felt safe with dad he said yes. He described his Father as a safe person who he wants to live with. When asked why he did not want to live with his mother, [X] said that, “She’s scary, she yells at us, she overreacts to everything.”
It is clear that [X] made no disclosure about the assault during this interview.
[Y] was interviewed on 25 January 2019. She does not like it when her mum yells at her. She said that she had “never been smacked by dad, but he had smacked [X] once on the bum because he hit [W] on the ear. Mum gets angry too. She says the F word and swears.” When asked what she liked about mum’s house, she said she did not like it, she would like to visit mum and live with daddy.
[W] was also interviewed. He explained the incident as follows:
[X] was upset because dad smacked him. We went to dad’s and [X] was being naughty and he was angry because he had to look after [Z]. [X] punched me in the ear and I ran out and dad said, “What happened?” I didn’t see what happened, but I know what happened. I heard the smack and [X] was crying.
It is clear that [W] did not observe the incident in question. However, he went on to say that he likes his dad. He does not like things about his mum. He wants to live with his dad. He referred to his mother drinking six beers “with his pop” or three on her own. He stated:
…his mum used to have a boyfriend, Mr J, and he grabbed her arms when arguing about the dog. [W] stated that everyone was scared and the next day his mum said nothing had happened.
[W] stated he felt safe with his dad but not with his mum.
There is also a short note of an interview with [Z].
The interviews do not appear to substantiate the disclosure. However, the interviews with the children raise other issues about parenting in the Mother’s household, and their preference to live with the Father.
On 30 January 2019, there appears to be the record in the counselling notes that the counsellor Ms D made of the phone call from Ms B, the FaCS senior case worker. The record indicates that Ms D reported concerns around [Y] and [X]’s mental health and behaviour. She noted that there were individual needs and emotional needs that were not being adequately met. All the children reported that they wanted to live with their father. The children report a lot of misbehaviour at the Mother’s house. Ms D wrote down that Ms B noted that she believes the psychologist has only heard one side of the story and that if she spoke to the Mother, she may have a different account. Ms B stated that all children, except for [Z], want to live with their father. Ms B stated she believes that there is some coaching involved. She stated there is a history of domestic violence and the Family Court are still involved in the custody battle. Ms B also stated that a referral had been made for Family Therapy as the Mother had reported that she is struggling to cope.
The record of this conversation is, of course, a subjective one. The report nonetheless suggests that Ms B was somewhat dismissive of the matters raised by Ms D. Ms B’s suggestion that there may be coaching going on does not address the more fundamental issue. From this Court’s perspective, the question is not whether coaching is going on, but which parent is doing it, in what way, and to what effect? A relevant factor, of course, is that the children live with their mother, and only spend time with their father.
The seventh counselling session with Ms D occurred on 2 February 2019. [Z] is reported as saying as follows: “I like it at daddy, but mummy is scary, everyone fights … mummy said no talking about me … mummy asks me what I talk about and I say nothing and she gets angry … ”
[W] stated that “Ms B and Ms K had turned up at their house to speak to them about where they feel safe and what happens at home … [W] mentioned that mum overheard what he said and then got angry at him when Ms K and Ms B left …”
[Y] and [X] were interviewed again by the Department of Family and Community Services on 13 February 2019. The notes of these interviews were in evidence. The focus was on the alleged assault by the Father on [X]. The record states [Y] said:
[W] was playing with [X] and [Z] was on the toilet, [X] turned the light off on [Z] and he got scared and angry because it wasn’t funny. [Z] came out to have lunch. Then [X] went to the toilet and [W] didn’t know that [X] was in there and he washed his hands and turned off the light. [X] got angry at him and [W] said that he didn’t mean to, and then [X] punched [W] in the ear.
[Y] was asked if she saw what happened and she said:
No. I was on the couch eating lunch with dad and [Z] and then we went towards them to see what happened.
Dad said what happened and [W] said [X] punched him in the ear and then dad said: “See, that’s how it feels because [X] did that to [Z]” (turned the light off in the toilet). Then [X] was told to sit in the corner, then I went to see what happened and I got there before daddy. [X] said that he didn’t hit [W], and dad said “stop lying”. And [X] was on the floor crying and then dad kicked him in the head and was hitting him on his side and bottom, and then picked him up and told him to sit up. ([Y] demonstrated her dad kicking [X] in the head by standing up and doing a kicking movement)
[Y] then stated that [X] was lying down on his bed near a chair thing and “daddy said you can’t lie down and then smacked him”. [Y] stated that [X] was smacked once on the bottom using his hand. [Y] was asked if her dad was saying anything during this time and she stated:
Dad said he didn’t say this but he did, he said that [X] was a disgrace to the family and then walked out. He thought no one was standing there but me and [Z] were.
[Y] stated that she felt sad and was crying, and her dad had asked her why she was crying and she did not tell him why.
It is unclear why [Y] made this disclosure on 13 February during the second interview, but not on 25 January in the first interview. It is interesting to observe that when [Y] was asked about what her Father said during the incident, the first thing she said was:
Dad said he didn’t say this, but he did…
A reasonable inference to draw is that someone had discussed with [Y] what her father had said, or not said, in between the interview dates. It could have been discussed between the children. It could have been discussed with the Father who, at that time, was still spending time with the children. It could also have been discussed with the Mother. This is but one small example from the extensive evidence before the Court which suggests that these children have been drawn into the parental conflict by their parents.
[X] was also interviewed that day. The record indicates that during the interview with [X] he disclosed the following:
…he wanted to live with his dad because his dad is nice and kind and doesn’t really yell at all and his dad is finding a better place to live; that mum gives orders such hurrying up to have a bath and he doesn’t like to be told to hurry up; ..that mum yells at them when she is mad; that [W] had told him he was scared of mum because she said if we say bad things about her she will our computers away forever because she doesn’t want to look bad at court; that he was worried that his mum might break his things; [X] completed the “three houses” activity and stated that his dream is to live with his dad and for his dad to have his own house. [X] was asked if he had any worries about living with mum and he said, “She scares us”, however was not able to provide any information about how mum scares he and his siblings.
Not only did [X] not make a further disclosure, but he made it quite clear, on any reasonable interpretation of this record, that he wanted to live with his father, that he had concerns about life in his mother’s home and, perhaps most significantly, that mum had suggested that she would take their computers away if he said bad things about her, presumably in the course of the assessment.
A safety plan dated 15 February 2019 is signed by the Mother and by a Family and Community Services case worker. The danger articulated in the plan is described as follows:
FACS is concerned that [X] was physically assaulted (disclosure that Mr Norcott kicked [X] in the head during a visit). FACS are concerned that Mr Norcott may use physical discipline or assault [X].
In the column: “What will be done?” it states:
[X], [Z], [W] and [Y] will not attend scheduled contact visits or have phone contact with their father, Mr Norcott, until a safety review and discussion with Mr Norcott can occur.
In the column described: “Who will do it and when?” it states:
From 15/2/19 until 19/2/19, Ms Harle will keep the children in her care and not allow any visits or phone calls between Mr Norcott and the children.
In the final column: “Who will check?” there is reference to the case worker, Ms B.
It was certainly implicit in the Mother’s case that her decision to cease the Father spending time with the children was based on the safety plan. Given that the Mother led no evidence, however, it is hard to understand why she relied on a plan that had obviously expired after 19 February 2019?
There is a later note suggesting that on 15 February 2019, as the Department had not received any feedback from the police, and as the Mother had agreed to a safety plan of not allowing the children contact with the Father by phone on 14 February 2019, and that the weekend visit scheduled for 15 February-17 February 2019 was swapped for the following weekend, all this to allow a safety review to be conducted.
It becomes clearer that the Department was not suggesting an ongoing suspension of the Father’s time with the children, but that, as at 15 February 2019, they were suggesting that the weekend time be swapped whilst they conducted a safety assessment.
The final session at which documents are produced was the eighth counselling session with Ms D on 16 February 2019. The Mother attended this session. The note in relation to the Mother says:
Ms Harle stated [W] had a huge meltdown because he was informed that “[X]” was coming back into their life. Ms Harle stated that the children had been told that they were unable to see dad until dad had started cooperating with Ms B and the police investigation was over.
A number of observations may be made about Ms D’s involvement with the family. She saw both parents. She saw the children multiple times, albeit over a relatively short time span (21 December 2018 - 16 February 2019). During this period, of course, the children spent extended time with both their father and mother. The Father’s coaching of the children cannot be ruled out, but there was no overt evidence from the children that the Father was discussing anything with them, telling them what to say, asking them what they had said, or reacting to what had happened in sessions, unlike their mother.
The final documents produced on subpoena were from Family Therapy of Suburb A. The impression created by these records is that the intervention of this organisation was facilitated by the Department. It is hard to follow the documents chronologically, but the impression created is that the engagement commenced in February 2019 and the last record appears to be 30 May 2019. The notes suggest the first actual session occurred 21 February 2019. The note suggests that when the therapist arrived at the Mother’s home, “mum’s male friend” was talking to the children for the first 10 minutes and then left. The record then states: “Children joined in at table with mum and therapist.” The therapist makes a number of observations about the children, namely, that they were friendly and polite. The context of the note creates the strong impression that during this session, the Mother, the children and the therapist were all present at the same time. Part of the notes will be extracted as follows:
..Mum started to disclose her situation with the children’s father. Therapist asked if the children were aware of the situation. She stated yes. Mum had a notepad ready to take notes. Therapist stated that she appeared very conscientious. Mum stated that she is a secretary so is used to taking notes. Therapist stated, “Mum, you sound like you have been through a tough time, however you are determined to keep your family together. You sit at the table with pen and paper in hand to take notes. This shows commitment to your children and your family life”. When mum was telling therapist her story regarding the DV and how the dad was encouraging the children to be nasty to her when they got home from his place, therapist stated, “Dad sounds like he may be struggling with your close relationship with the children and feels threatened. The children may do as he asks now, however in time they may come to the understanding that you are both doing your best and care for them … Maybe the years of living with DV is having a snowball effect.”
If it is indeed the case that what is recorded above was actually said in the presence of the children, the Court would have deep concerns about the appropriateness of this.
The next session with Family Therapy Services occurred on 28 February 2019, again at the Mother’s home. This note again creates the strong impression that involved the Mother and children together. The note records as follows:
Mum states that there was DV for 10 years with dad, and now they are separated. He undermines Mum in front of the kids. Mum stated she is struggling with disciplining the children. Mum stated, they hit her and say nasty things to her. Mum stated that it all started after the break-up when they come back from visiting their dad. Mum stated that he brainwashes them to think badly of her. Mum stated that Dad kicked one of her children in the head and face. This was reported by the Child and his siblings to FACS. Mum also stated that all the children attack each other. Mum wants to know how she can get them not to listen to Dad about her and how to behave nicely to her when they come home from Dad’s. ....
There was a session on 5 March 2019. Again, the notes make clear that the children and their mother was present:
The oldest boy said that Mum had not let them see their Father on the weekend, and that when he had rung she had listened in on the call. Mum stated that the case worker did not want the children staying with their Father until he had a stable home base, but they are allowed to see him for a day with the case worker present. Mum stated that Dad declined the day visit. Mum then stated that Dad was saying nasty things about Mum to the children and that was why she was allowed to monitor the calls. ...
The boy then told the therapist that he finds it hard to talk to Dad with Mum listening in, and he thinks it’s all unfair, and he doesn’t understand why they can’t stay in the motel overnight with him...
The children stated they want to spend time with their dad and are confused regarding not being allowed to. The children appear to feel torn between loyalties because of mum and dad’s conflict with each other, and it sounds like it is stressful for the children.
The Departmental safety assessment dated 8 March 2019 is in evidence. It is a lengthy document and if there is a conclusion, it is very difficult to ascertain. It does appear that the Father did not accept the concerns raised by the Department.
Amidst further documents prepared by the Department there appeared to be documents produced by the Independent Children’s Lawyer, and tabbed by the parties as a document that the Court should look at as part of the tendered documents. There was no objection to the Court looking at this document. It is possibly a record of interview with the children. It is possibly a summary of the same. There is no reference to a disclosure about the Father assaulting [X]. The indication is that the fight between [X] and [W] was quite a bad one and that the Father needed to intervene. The following note occurs:
The other children have witnessed Ms Harle informing [X] he does not have to return to Mr Norcott’s home, as well as asking [X] further questions and leading him to request a meeting with the ICL. Something [X] would not know due to his one only visits and no contact for over 10 months. The other children have asked [X] after the meeting with the Independent Children’s Lawyer if he would like to go to his father and he has advised them he would. Since then, the other children have advised their father that Ms Harle has encouraged [X] to not go to his father’s house and he should stay with his mother for Christmas Day.
It is very difficult to work out what to make of this evidence. If the record accurately sets out what the children have told their lawyer, it is disturbing. In the circumstances, the Court places minimal weight on this evidence.
The further documents produced by the Department, part of exhibit A1, suggests that the Department treated the Father’s assault on [X] as being substantiated, even though [X] did not provide the substantiation, only [Y] did, and only at a second interview.
The records from Family Therapy Services indicates that on about 11 March 2019 the therapist rang the Mother and stated that she would like to get the Father involved in the sessions. The Mother stated that she could not have him in the same room as her because of past domestic violence. The therapist apparently rang the case worker, and she confirmed the Mother’s statement.
On 14 March 2019, the senior child protection case worker within the Department of Family and Community Services who was investigating the assault allegation emailed the Father to let him know that his contact with the children was to be organised between the Mother and himself as, “FACS are not withholding any contact”. Some advice was given in this email about how telephone communication with the four children could be managed.
The case worker noted that the Department would work with the Father:
In relation to addressing the child protection concerns relating to the incident with [X], and you agreed that you would have sessions on your own with Ms D to address parenting skills, behaviour management techniques, and increasing your understanding of each child’s age- appropriate emotional development, when they are in your care.
It is clear from the Father’s evidence that this email was somewhat of a turning point. He interpreted it as meaning that the Department no longer had any concerns with him spending time with the children in accordance with the Court orders. From the Father’s perspective, from this time on, the fact that he was not spending time with the children was attributable to the Mother, and not the Department.
The next session with Family Therapy Services was on 19 March 2019. Again, the context clearly demonstrates that the children and the Mother were present. The therapist commenced by showing a video on how divorce can affect children. This brought out a lot of talk from the children about their concerns and how they related to it. The therapist noted:
Mum tries to interject sometimes, however, the therapist reminded everyone that they would take turns.
The record continues:
The oldest child speaks up about wanting to understand why he can’t see Dad. The other children followed suit. Then Mum explained to them the reasoning behind this when it was her turn to speak. ... Mum appears to be one up in this family, and the therapist is trying to give the children a voice. When given the space they speak up and ask questions and convey their feelings. The oldest boy sounds protective of his mum and siblings but wants to know and understand what is happening. ... The children stated to the therapist that the second oldest child has been physically and verbally abused by their dad in front of them. They then spoke of the girl being dad’s favourite. The oldest Child stated he wanted to talk to the Independent Children’s Lawyer regarding things Daddy says. All four of them stated that they were scared when in Dad’s care. They all stated that they want to see him apart from the second eldest boy.
The contrast between the records of Family Therapy Services, and Ms D of Psychology, is clearly apparent here. The children told Ms D that they were afraid of their mother, but they tell the therapist in these notes that they are afraid of their father. Of course, the big difference is that the Mother is sitting with them at the time of this therapy.
The next session with Family Therapy occurred on 26 March 2019.
There was a session on 2 April 2019. At the session on 9 April, the record states:
...when we talked about protecting each other, the oldest child told of how their dad picks on the second eldest but spoils the daughter. All the children then opened up and stated they did not like the way the second eldest was treated by dad, and it was hard because they could not protect him. They also stated they did not like how their sister got special treatment from their dad. Therapist stated that it must be very hard to love your dad and want to see him but also dislike how he treats their brother. The boy that is targeted by dad got upset and left the room.
Under the heading “Action”, the notes record:
Therapist explained to the children that their brother was acting angry and treating them badly because he was hurting inside. Therapist also asked the children if they could try to ignore the boy’s bad behaviour a little and give him some extra play time with them. They said they would. Therapist asked if mum could try to give this boy some more one-on-one time and listen carefully regarding his concerns and feelings. She said she would.
The next session was on 16 April 2019 but did not happen as the maternal grandmother was in the home. The notes of 23 April 2019 record:
Before the session started, therapist asked the second oldest boy, who keeps leaving session upset, what we could do to help him stay in session. Therapist then asked the other children what they could think of. The boy whispered in the therapist’s ear “not talk about dad”. The other children heard and agreed and said they would also not talk about the boy’s outbursts of anger in the last week. The boy stayed for all the session and only had a scowl on his face once when his dad was mentioned by accident. …mum had asked that we tell the children about her new partner in session. This went well, with the children using their new feelings chart to express themselves. They all stated that they were happy to have this new partner around more, and the second eldest drew a picture of them getting married.
There was a session on 7 May 2019. The session on 14 May was cancelled, the record indicating that the Mother cancelled it. The record states:
Mum stated she had too much to do today. Mum stated in the call that she had spoken to her caseworker regarding therapy coming to a close and asked that it could be extended as the children were doing much better while having the therapy. But she also wanted support for them during the Family Court case. A caseworker agreed to this. Therapist to speak with supervisor regarding this matter.
The last recorded session was 30 May 2019.
There is much that can be said about the therapy provided by Family Therapy Services. It may, perhaps, be fertile ground for cross-examination at the final hearing. The Mother’s case, of course, is that the children have resisted spending time with their father since February. Having regard to the records summarised above, perhaps that is hardly surprising?
The assertion by the Mother to the caseworker at the Department, and to the therapist, that her relationship with the Father was one marked by family violence is of concern to the Court. Even though the Mother’s Affidavits filed in the proceedings to date were not read in the contravention proceedings, the Court had regard to them for the present application, as it was entitled to. The Mother’s evidence about violence and abuse is scant, and minimalistic. There is some reference to it at paragraph 36 of her Affidavit of 13 March 2018, and then at 21-27 of her Affidavit of 27 July 2018.
Of course, there is nothing surprising about a victim of violence presenting a minimalistic account of the same. It is of concern that both the family therapist and even the caseworker at the Department would unequivocally accept the Mother’s assertions of the Father’s violence. The Court notes the ample assertions from the children, and the Father, about the Mother’s violence towards the children.
Discussion
The totality of the evidence paints a grim picture of the terrible dilemma in which the children find themselves. They are caught in the metaphorical crossfire of this intense parental conflict. There is no shortage of professional and therapeutic involvement involving these children, but they seem to make disclosures depending on the context of who is asking, for what purpose, and is a parent present at the time? It is by no means clear whether the Father did anything more than smack [X] in the course of discipline. It is possible he did, and it is possible he did not. The children have had much to say about this, but their evidence is inherently unreliable, particularly when the Mother has been present at the time of their making a disclosure. There may well have been a period when it was the Department’s advice to the Mother to temporarily suspend the children’s time with the Father, but the independent Departmental records make it clear that it was for a temporary period only, and not the extended period that the Mother seems to have at least inferred from her evidence. Before the commencement of Family Therapy, it is clear that these children wanted to spend time with their father, indeed preferred to live with him. Somehow, during the course of this Family Therapy, that changed. The Court would not be surprised if the Independent Children’s Lawyer sought an order for that therapy to forthwith cease. Having regard to the records summarised above, perhaps the Mother, and her legal representatives, would understand why the Court would seriously consider such an application?
Should these children be living with their father, as contended by him? The answer is an unequivocal no. It would be far too great a change for the children in circumstances where the Father cannot satisfy the Court about how he would manage their day-to-day needs and where, in any event, there are many unresolved issues about whether, and if so why, they are resisting time with him, and how that situation should be changed. An order for the children to live with their father is not an impossible outcome at a final hearing depending, of course, on the evidence both lay and expert. The Mother would do well to consider this. The children are in an impossible situation of loyalty conflict and she is as much a cause of this as is the Father. The Father needs to undertake a detailed period of introspection if he is to become a serious candidate for primary carer of these children. He needs to make very significant changes in his life in order for that to happen. Is he prepared to do so? Does he have the capacity to do so? To forestall such a significant change in the children’s lives, the Mother has to equally undertake detailed introspection and perhaps seek to resolve her feelings towards the children’s father or at least better manage to contain them.
Both the Mother and Independent Children’s Lawyer propose that the children spend time with their father each alternate weekend, for one day between 10:00am and 6:00pm. The Mother’s case for this was not entirely clear. Her proposal’s similarities to the Independent Children’s Lawyer’s proposal suggest that it might have been both convenient, and strategic. The Court has already expressed its concern about how, on her own evidence, she could possibly facilitate this contact occurring. From the Independent Children’s Lawyer’s perspective, the Court accepts that there are many unresolved issues, expert evidence is needed, the evidence needs to be tested, and that in any event the Court should be cautious, and protective of the children. The Court agrees. What needs to happen is that these children forthwith resume spending time with their father with a view to restoring and rebuilding their relationship with him. The Mother has to actively, not passively, support this and the Father has to accept the outcome, as temporary as it may be.
The Independent Children’s Lawyer proposed Saturday, the Mother preferred Sunday. The Court will make an order for Sundays, commencing from the Sunday week after the making of these orders. The Court requests the Independent Children’s Lawyer to meet with the children, and explain the orders the Court has made.
The orders proposed by the Independent Children’s Lawyer make no differentiation between [X] and the other children. The Mother proposes that [X] decide for himself whether he should spend time with his father. The Court declines to do that. It places more pressure on [X]. He needs to be told that an order has been made after considering all the available evidence and the Court’s expectation is that he will go, together with his siblings.
The Independent Children’s Lawyer proposes telephone communication each Thursday between 7:00pm and 8:00pm. The Mother initially proposed between 6:00pm and 6:30pm, but by the time of closing submissions this had become a proposal for no telephone calls at all. This is clearly a pressure point for the children. Whilst they want to communicate with their father, it becomes yet another opportunity for the Mother and Father to have conflict about it. It is not worth exposing the children to further conflict and thus, in this period before the receipt of the Family Report, there will be no telephone communication.
The Independent Children’s Lawyer proposes a notation, to which the Mother agrees, in effect reminding the parents that the non-denigration orders made 10 August 2018 and the restraints prohibiting the discussion of these proceedings with the children by the parents made 17 September 2018 remain in force. The parents must give more than lip service to this.
The matter is stood over to 18 October 2019 at 9:30 am for mention. It is expected that the Family Report will be available by then and hence the parents have been directed to attend in person with their legal representative if the report is available. The future conduct of this matter will need to be considered on that date. It may well be that early hearing dates will need to be found in order to protect the children from the insidious situation which their parents have created. Depending on the terms of the Report, and if an early hearing date cannot be found, another interim determination may be necessary.
The parents are urged to reflect on the impact on their children of what they are doing. It is always a tragic situation when the parents’ mutual hatred of each other appears to exceed their love for their children.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 12 July 2019
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Remedies
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Stay of Proceedings