Harry & Harry (No 2)
[2022] FedCFamC2F 1746
Federal Circuit and Family Court of Australia
(DIVISION 2)
Harry & Harry (No 2) [2022] FedCFamC2F 1746
File number(s): MLC 12354 of 2021 Judgment of: JUDGE GLASS Date of judgment: 21 December 2022 Catchwords: FAMILY LAW – PARENTING – where mother of three year old child has failed to comply with numerous interim orders for the children to spend time with her father – where any suggestion that the child is at unacceptable risk of harm in the father’s care was abandoned after the conclusion of the evidence – whether the child should commence living with the father immediately – whether orders should be made for indefinite supervision of mother’s time with the child – whether orders should be made for therapy Legislation: Family Law Act 1975 (Cth), ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 64, 65DAA, 65DAC, 69ZN Cases cited: Bain & Bain (deceased) (2017) FLC 93-772
Blann v Kenny (2021) 64 Fam LR 120
Boyle & Zahur & Anor (2017) FLC 93-814
Defrey & Radnor [2021] FamCAFC 67
Fitzwater & Fitzwater (2019) 60 Fam LR 212
Isles & Nelissen (2022) FLC 94-092
Jacks & Samson (2008) FLC 93-387
Keskin & Keskin & Anor (2019) FLC 93-932
Kramer & Anor & Ward (2017) FLC 93-817
Lennon & Lennon [2011] FamCA 571
Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638.
Mazorski & Albright (2007) 37 Fam LR 518.
McCall & Clark (2009) FLC 93-405.
Oberlin & Infeld (2021) FLC 94-017.
Re Attorney General (Cth) & Another, Ex parte Skyring (1996) 135 ALR 29.
Rice & Asplund (1979) FLC 90-725.
Division: Division 2 Family Law Number of paragraphs: 119 Date of last submission/s: 9 December 2022 Date of hearing: 5-7, 9 December 2022 Place: Melbourne Counsel for the Applicant: Mr Puckey KC Solicitor for the Applicant: Pearsons Lawyers Pty Ltd Counsel for the Respondent: Ms Wheeler Solicitor for the Respondent: Elsum Family Law Counsel for the Independent Children's Lawyer: Mr Jackson Solicitor for the Independent Children's Lawyer: Joliman Lawyers ORDERS
MLC 12354 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HARRY
Applicant
AND: MS HARRY
Respondent
and: INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE GLASS
DATE OF ORDER:
21 December 2022
THE COURT ORDERS THAT:
1.Conditional upon the Mother complying with paragraph 6 below, and subject to paragraph 8, X, born in 2019 (“X”), live with the Mother.
2.X spend time with the Father as follows:
(a)On Thursday 22 December 2022 from 10am to 4pm.
(b)For Christmas in 2022 and each alternate year thereafter, from 3pm 25 December (Christmas Day) until 3pm 26 December.
(c)For Christmas in 2023 and each alternate year thereafter, from 3pm 24 December until 3pm 25 December.
(d)Commencing Wednesday 28 December 2022 until 2 February 2023:
(i)Each Wednesday from 4pm to midday Thursday; and
(ii)Commencing Friday 6 January 2023 and each alternate weekend thereafter from 4pm Friday to 4pm Saturday.
(e)Commencing Friday 3 February 2023:
(i)During X’s school terms, with each school term concluding on the Friday of the last week of term:
A.Each Wednesday from 4pm until 4pm Thursday; and
B.Commencing Friday 3 February 2023 and each alternate weekend thereafter from 4pm Friday until 4pm Sunday (with such time to be extended to 4pm Monday if a public holiday);
(ii)During X’s school holidays in 2023, with the school time being suspended:
A.In the term 1 school holiday period for two separate periods of two consecutive nights as agreed in writing between the Mother and Father and failing agreement on the first Wednesday from 3pm to 3pm Friday and the second period the following Saturday from 9am to 9am Monday.
B.In the term 2 and term 3 school holiday period for two separate periods of three consecutive nights as agreed in writing between the Mother and Father and failing agreement on the first Monday from 3pm to 3pm Thursday and the second period the following Friday from 9am to 9am Monday.
(iii)During X’s school holidays commencing from the conclusion of term 4 2023, for one half of each school holiday period as agreed in writing between the Mother and Father and failing agreement for four consecutive night periods commencing on the first Monday from 3pm until 3pm four days later, and recommencing every eighth day thereafter.
(iv)During X’s school holidays upon her commencing school, for one half of each school holiday period as agreed in writing between the Mother and the Father and failing agreement on a week about basis, from after school on the last day of term until 3pm seven days thereafter.
(v)Following the conclusion of the school holidays, the school term arrangements will recommence in the same cycle, as if the school holidays did not occur.
(f)On Easter, if not already in the Father’s care, from 2pm Easter Sunday to 3pm Easter Monday;
(g)On Father’s Day, if not already in the Father’s care, from 4pm on the day before Father’s Day to 4pm on Father’s Day;
(h)On X’s birthday, if not already spending time with the Father that day, from 2pm to 6pm;
(i)On the Father’s birthday if not already spending time with the Father that day from 4pm the day prior to his birthday to 10am the day following his birthday; and
(j)Such further or other times as agreed between the Mother and Father in writing.
3.The Father’s time with X is suspended at the following times and X spend time with the Mother:
(a)For Christmas in 2022 and each alternate year thereafter, from 3pm 24 December until 3pm 25 December (Christmas Day);
(b)For Christmas in 2023 and each alternate year thereafter, from 3pm 25 December (Christmas Day) until 3:00pm 26 December;
(c)On Easter from 9am Easter Saturday to 2pm Easter Sunday;
(d)On Mother’s Day, from 4pm on the day before Mother’s Day until 4pm on Mother’s Day;
(e)On X’s birthday, from 4pm the day prior to X’s birthday until 2pm on her birthday;
(f)On the Mother’s birthday from 4pm the day prior to her birthday to 10am the day following her birthday; and
(g)Such further or other times as agreed in writing between the Mother and Father.
4.For the purposes of changeover, the Father collect X from the Mother’s residence at the commencement of X’s time with him, and the Mother collect X from the Father’s residence at the conclusion of time.
5.X shall communicate with the Father by telephone at such times as she requests but otherwise every Monday, Wednesday and Friday (when X is not with the Father) from 5.00pm until 5.30pm with the Father to contact X via the Mother's mobile telephone or video call.
6.The Mother attend upon a qualified practitioner for intensive reportable therapy at such frequency as nominated by the treating professional, and for the purposes of such therapy, the Mother provide the treating professional with copies of the following:
(a)A copy of this Order;
(b)A copy of the Family Report prepared by Ms B dated 6 October 2022;
(c)A copy of the psychiatric assessments of Dr C dated 8 April 2022; and
(d)A copy of all Affidavits of the Mother and Father filed in these proceedings.
7.The parties be at liberty to provide copies of the following documents to any family therapist engaged by them:
(a)A copy of this Order;
(b)A copy of the Family Report prepared by Ms B dated 6 October 2022;
(c)A copy of the psychiatric assessments of Dr C dated 8 April 2022; and
(d)A copy of all Affidavits of the Mother and Father filed in these proceedings.
8.In the event the Mother does not make X available to spend time with the Father in accordance with these Orders on two occasions in any twelve month period, save unless otherwise agreed between the parties in writing or further Court Order, X forthwith live in the primary care of the Father.
9.In the event X lives in the Father’s primary care pursuant to the preceding paragraph, X spend time with the Mother as follows:
(a)Commencing 1 month after X commences living with the Father, for a period of 5 months, for two hours each fortnight at such times as are agreed and failing agreement from 12 noon to 2:00pm Saturday, supervised by either the Paternal Grandparents, or the Region D Children’s Contact Centre, or such other agreed supervisor;
(b)thereafter, conditional upon the Mother’s compliance with paragraph 6 above:
(i)each Wednesday from 4.00pm until midday Thursday;
(ii)Each alternate weekend thereafter from 4.00pm Friday until 3.00pm Sunday; and
(iii)As per paragraph 3 herein if X is not already in the Mother’s care;
(iv)During X’s school holidays in 2023:
A.In the term 1 school holiday period for two separate periods of two consecutive nights as agreed in writing between the Mother and Father and failing agreement on the first and second Thursday from 3.00pm to 3.00pm Saturday.
B.In the term 2 and term 3 school holiday period for two separate periods of three consecutive nights as agreed in writing between the Mother and Father and failing agreement on the first and second Thursday from 3.00pm to 3.00pm Sunday.
(c)Such further or other times as agreed between the Mother and Father in writing.
10.Both parties do all things necessary to facilitate X’s enrolment in, and attendance at, three year old kindergarten in 2023.
11.If the parties wish to take X for an interstate or international holiday they shall provide the other party with at least fourteen (14) days written notice of such intention as well as details relating to the travel itinerary, location and a telephone number where X can be contacted during such holiday.
12.The parents each keep the other informed of:
(a)Their residential address, telephone numbers and email addresses and notify the other of any changes to those contact details within 24 hours of such change taking effect;
(b)Any serious accident or illness suffered by X while in their care as soon as practical (and no more than 6 hours), including details of any treating health professional and to the extent it is necessary each party will authorise all such treating health professionals to communicate with the other party regarding X’s health; and
(c)Any medical treatment and preventative care recommendations obtained for X including the names of X’s treating medical practitioners and any other health professionals who treat X and any medical appointments made for X in advance (save for in the event of an emergency) and both parents shall follow the medical treatment and preventative care recommendations for X.
13.Without the parties admitting necessity, the Mother and Father and their respective servants and agents, be restrained by injunction from:
(a)Denigrating or abiding the denigration of the other parent or their respective family members in the presence or hearing of X including but not limited to the other parents’ religion and cultural beliefs and doing all acts and things reasonably necessary to prevent any other person doing so;
(b)Exposing X to family violence;
(c)Exposing X to conflict between parents and adult matters; and
(d)Using X to communicate with the other.
14.The Mother and Father shall communicate about parenting arrangements, including any issues affecting X, by SMS text message or agreed parenting App.
15.Both parties be at liberty to:
(a)Attend all kindergarten and school events and any extra-curricular activities, fixtures and events to which parents are ordinarily invited or to which parents ordinarily attend, including orientations, school tours, parent/teacher interviews, information nights, parents’ association meetings and activities, sports days and events, concerts, plays, presentations, recitals, curriculum presentation and excursions (regardless of whether X is in their care during the event);
(b)Receive copies of all notices, fixtures, letters, invitations, school reports, photographs, newsletter, and other like documents ordinarily given to parents from X’s kindergarten at their own expense; and
(c)Liaise with any medical, education or other professionals involved with X and obtain all information and documents ordinarily made available to parents.
16.Both parties shall be entitled to obtain any information regarding X from any medical and/or allied health professional and be at liberty to provide a copy of these Orders if required for that purpose.
17.The Independent Children’s Lawyer is hereby discharged.
18.All extant parenting applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Harry & Harry (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS
These proceedings concern X, born in 2019. X is now three years old.
Since her parents’ separation in February 2021, X has lived with her mother, Ms Harry. X’s father, Mr Harry, initially spent time with X for short periods of a few hours, partly at Ms Harry’s home, and partly outside that home. Those arrangements broke down in approximately October 2021. Despite a multitude of interim Orders having been made for X to initially spend unsupervised, and then supervised time with her father, she has only spent time with her father on one occasion since, being on 2 January 2022. She also saw her father during appointments for the preparation of a family report on 13 September 2022.
At the commencement of the final hearing, Ms Harry sought orders providing for X to live with her. She reserved her position with respect to X’s time with her father until the conclusion of the evidence. Her Outline of Case asserts that “X is at risk of emotional and physical harm and has been abused while in the Husband’s care.”[1] Substantial portions of Ms Harry’s affidavit material was devoted to the allegations of risk to X in her father’s care. Nevertheless, after the conclusion of the evidence, she conceded that Mr Harry posed no unacceptable risk of harm to X.
[1] Ms Harry’s Outline of Case filed 2 December 2022, page 6.
Ms Harry now proposes that X spend substantial unsupervised overnight time with her father, increasing to four nights per fortnight from February 2023. She also proposes that in the event X does not spend time with her father on two occasions unless otherwise agreed between the parties, X immediately live with Mr Harry. That proposal is particularised in Exhibit R5, subject to oral amendment that included proposing those orders be made on a final basis subject to the self-executing order being limited to a period of 12 months.
Mr Harry and the Independent Children’s Lawyer propose that X immediately commence living with Mr Harry and spend supervised time with Ms Harry for two hours each fortnight, supervised by a professional agency or the paternal grandparents. Mr Harry’s proposal is contained in his Further Amended Initiating Application filed on 11 November 2022. The Independent Children’s Lawyer’s proposal is particularised in Exhibit ICL2, although when concerns were raised by the Court about the desirability of an order for indefinite supervision, the proposal was amended to seek interim rather than final orders.
It is accordingly common ground that in the event Ms Harry is unable to facilitate X spending time with her father, X should live with him. Arising for determination is whether X’s best interests are met by continuing to live with Ms Harry in order to ascertain whether she is capable of prospectively facilitating X’s time with her father, or whether X should immediately be moved to live with her father.
Other issues arising for determination include the allocation of parental responsibility and the orders that should be made in the event X lives with her father, including whether orders for indefinite supervision of X’s time with her mother are in X’s best interests. Issues also arise with respect to the making of orders for therapeutic treatment.
Statutory framework
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth) (“the Act”). I am guided by the objects of that Part and the principles underlying those objects.[2] X’s best interests are the paramount consideration.[3] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
[2] Family Law Act 1975 (Cth), s 60B.
[3] Family Law Act 1975 (Cth), s 60CA.
I am to apply a presumption that it is in X’s best interests for her parents to have equal shared parental responsibility for her.[4] The presumption does not apply if there are reasonable grounds to believe either of X’s parents have engaged in child abuse or family violence. It may be rebutted by evidence that satisfies me it would not be in X’s best interests for her parents to have equal shared parental responsibility for her.
[4] Family Law Act 1975 (Cth), s 61DA.
If I am satisfied that X’s parents should have equal shared parental responsibility for her, I am required to consider whether X spending equal or substantial and significant time with each of her parents is in her best interests and reasonably practicable.[5]
[5] Family Law Act 1975 (Cth), s 65DAA.
It is convenient to first address the section 60CC considerations before turning to the presumption contained in section 61DA and, if applicable, the matters prescribed by section 65DAA of the Act.
Primary considerations
The benefit to X of having a meaningful relationship with both of her parents
Mr Harry submits this case involves a tension between the two primary considerations, what are sometimes described as the “twin pillars” of Part VII of the Act.[6] Given Ms Harry’s ultimate concession that X is not at unacceptable risk of harm in her father’s care, he submits the focus accordingly shifts to the first primary consideration.
[6] Mazorski & Albright (2007) 37 Fam LR 518 (“Mazorski & Albright”) at [3].
It is indisputable that Ms Harry, over a period of twelve months, has demonstrated a consistent inability to facilitate X’s relationship with her father despite Orders that she do so. On 28 April 2022, Ms Harry is recorded as having indicated to the Court that she intended to comply with the Court’s Orders for X to spend supervised time with her father for two hours each week. Subsequent review, stay and appeal applications never resulted in the substance of those orders being discharged.
In the opinion of the independent psychiatrist Dr E, Ms Harry continues to refuse to allow any contact between X and her father because of her various fixed beliefs. He described her as holding a “fixed and unshakeable belief of [Mr Harry’s] threat to X”[7] and displaying glimpses of a “steely resolve to prevent contact”[8] between them. He considers that her beliefs and behaviour are consistent with a psychiatric condition of some order. Dr E considered that there appeared little possibility of Ms Harry changing her views of Mr Harry and his alleged abuse of X in the short or medium term. I have no update to that assessment in light of Ms Harry’s position that she has now abandoned allegations that Mr Harry is an unacceptable risk of harm to X.
[7] Affidavit of Dr E filed 21 April 2022, page 11.
[8] Affidavit of Dr E filed 21 April 2022, page 17.
Mr Harry submits that I ought be circumspect about Ms Harry’s “enormous U-turn”. The Independent Children’s Lawyer expresses scepticism that Ms Harry has the capacity to so readily reverse course and now embrace the proposition that X ought to spend substantial time with her father. Consultant Ms B does not believe that Ms Harry has the capacity to allow any level of spend time between X and her father. Certainly past history suggests that Ms Harry is very unlikely to be able to comply with further Orders for X to spend time with her father. However, I need not rely on any optimistic assessment of Ms Harry’s capacity to do so. She herself proposes that if she is unable to facilitate X’s relationship with her father, X would immediately commence living with him.
Consultant Ms B opines that it is of “upmost importance that X be provided the opportunity to have a meaningful relationship with both parents.”[9] However, neither Mr Harry’s proposal, nor that of the Independent Children’s Lawyer would now facilitate such a meaningful relationship with both parents. Whilst “meaningful” in this context is a qualitative adjective and not a strictly quantitative one,[10] I accept Ms Harry’s submission that two hours of supervised time once a fortnight, and two hours of supervised time on Christmas Day, does not amount to X having a meaningful relationship with her mother.
[9] Family Report dated 6 October 2022, paragraph 97.
[10] Mazorski & Albright at [26]; McCall & Clark (2009) FLC 93-405 at [115, 121].
Consultant Ms B considers that, in effect, X needs an opportunity to settle into time with her father before more substantial time is introduced for X in approximately four to six months. Mr Harry submits that I can have confidence that an order for X to spend additional time with her mother as agreed between the parties will result in appropriate arrangements for X to spend time, or perhaps even live, with her mother in due course. Whilst I do not doubt Mr Harry’s bona fides in making that submission, I am not satisfied that the order he proposes for indefinite supervision will in fact facilitate X having a meaningful relationship with both of her parents. The Independent Children’s Lawyer’s solution to that dilemma is the making of interim orders, with the subsequent preparation of a further family report. Whilst the making of interim orders after a final hearing is permissible, “the Act exhorts the finality of child-related proceedings as a desirable objective.”[11]
[11] Blann v Kenny (2021) 64 Fam LR 120 at [48].
As it stands, the only proposal that has the immediate prospect of facilitating X having a meaningful relationship with both of her parents, is the one proposed by Ms Harry. In the event she is unable to comply with orders to facilitate X’s relationship with her father, she concedes that X’s best interests are then met by living with him.
Dr E opined in April 2022 that “in the absence of strong Orders from the Court, little contact is likely to ensure [sic] between Mr Harry and X, based on Ms Harry’s comments to the effect that she does not consider it appropriate or safe for X to have contact with her father until she was aged 15.”[12] When Dr E was informed that despite multiple interim Orders having been made for X to spend time with her father, no such time had occurred, he gave the following oral evidence:
I guess there are a number of scenarios here where perhaps working with the mother to perhaps further understand aspects of herself which prevents her doing so may be appropriate. However, having given a fair bit of evidence in the court and then noting that such endeavours are without accompanying strong orders often means that nothing really happens. And it’s usual, I think, for the court and perhaps the experts to look at other scenarios, which might involve change of residence and so on in those circumstances.
[12] Affidavit of Dr E filed 21 April 2022, page 17.
He also opined orally that “there needs to be some boundaries and consequences involved, I think, and hence my comment about strong orders, because often things won’t change of their own accord, and the court needs to ensure that that occurs by issuing orders (…) for the child’s wellbeing.”
The Independent Children’s Lawyer enquired of Dr E whether his evidence could be paraphrased as “in terms of boundaries and consequences, that from where you sit, the best option for X is a change of residence and the mother to attend intensive therapy with a particularly appropriate counsellor and, perhaps, then the matter could be revisited?” Dr E gave the following evidence:
Well, I – I think that that scenario is one which will allow [X] to have a relationship with her father and contact with her mother, and there is potential, therefore, in those circumstances, for the mother to actually face the reality of her – the consequences of her actions, in terms of the damage that she’s causing [X] and in terms of reducing and depriving her contact with her dad.
Whilst the Court expects its Orders to be complied with, and it is most concerning that Ms Harry has been unable to do so to date, she makes a proposal that will facilitate X’s relationship with her father irrespective of her future conduct. She herself proposes to be bound by an Order that will have the immediate consequence of X living with her father in the event of non-compliance. It is hard to envisage a stronger order, or one imposing more significant boundaries or consequences.
When the prospect of the type of self-executing proposal now advanced by Ms Harry was suggested to Consultant Ms B, she opined that she did not think it would be sustained or would last. She gave the following evidence:
I think it would be worse for [X] to be in, out, in, out. I can’t see that being a viable option, because of where – [Ms Harry]’s views, her perspectives, her actions over the last 12 months, since it has been in the court. I really – I wish that was an option, but I – I just can’t see how that would be a viable option.
I do not accept that the proposal now advanced by Ms Harry is not viable. There will not be a repeated change of residence for X, there will be one change if X does not spend time with her father in accordance with the Court’s Orders. If Ms Harry is unable to sustain the change she now proposes, X will live with her father.
Despite Ms Harry’s failure to comply with previous Orders of the Court to facilitate X’s time with her father, I am satisfied that her proposal will ensure X will have the benefit of a meaningful relationship with both of her parents. The alternative proposals before the Court provide for such a meaningful relationship only after a further hearing or by agreement between the parties.
The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This primary consideration is to be given greater weight than the first.[13] Although Ms Harry does not contend X is at unacceptable risk of harm in Mr Harry’s care in the relevant sense, she maintains allegations that Mr Harry has perpetrated family violence and child abuse. Mr Harry and the Independent Children’s Lawyer contend that X is at risk of abuse in Ms Harry’s care in the sense of causing her “serious psychological harm”.[14]
[13] Family Law Act 1975 (Cth), ss 60CC(2A).
[14] Family Law Act 1975 (Cth), ss 4(1).
Family Violence
Family violence is violent, threatening or other behaviour that coerces or controls a family member or causes them to be fearful.[15] I am required to ensure, to the extent it is possible to do so consistently with X’s best interests, that any order I make does not expose any person to an unacceptable risk of family violence.[16]
[15] Family Law Act 1975 (Cth), s 4AB.
[16] Family Law Act 1975 (Cth), s 60CG.
Ms Harry generally deposes to Mr Harry having perpetrated family violence upon her, and that X was exposed to such behaviour after her birth. That bald assertion is not capable of supporting the conclusion without reference to the facts underlying it.[17] Mr Harry credibly denied that he had been generally abusive and controlling of Ms Harry.
[17] Kramer & Anor & Ward (2017) FLC 93-817 at [10].
During Ms Harry’s pregnancy, she deposes to Mr Harry regularly arriving home from work angry. Mr Harry accepts that he was frustrated, and that if that term can be interchanged with him being angry, he accepts it. Either way, the allegation cannot sustain a finding of family violence. Both terms refer to Mr Harry’s state of mind and emotion. They do not of themselves amount to behaviour or conduct that coerces, controls, or causes fear.
Ms Harry deposes, during her pregnancy, that Mr Harry told her how much he hated his life, that he did not want the baby, and that she should get an abortion. She also deposes to him frequently yelling at her, telling her she was hopeless, that she did not know what it was like to work hard, and that she was “fucking useless”. He accepts that he may have called her hopeless in a moment of frustration, and that he may have said something to the effect that she did not know what it was like to work hard. He credibly denies yelling or swearing at her as alleged, although he accepts that he may have sworn at her on a rare occasion. Given Mr Harry’s concessions, I accept his denials which were given in a calm and non-defensive manner. By comparison, Ms Harry’s evidence was at times difficult to follow and occasionally non-responsive to the questions being asked of her.
During Ms Harry’s pregnancy, Mr Harry accepts that he occasionally slammed his computer keyboard in moments of frustration on the study table. He denies Ms Harry’s allegations that he slammed his phone or laptop or threatened to throw things at her. I accept those denials and Mr Harry’s evidence that his frustrations expressed through banging his keyboard were not directed at Ms Harry or X.
Also during Ms Harry’s pregnancy, she prepared a meal for Mr Harry which was a pasta dish with a yoghurt sauce. Mr Harry accepts that he was disappointed with the meal, and said words to the effect of: “what’s this? Did you make it?” and “so I was at work all day and all [sic] did was make me pasta with yoghurt for the sauce”.[18] He does not recall slamming the bowl down as alleged by Ms Harry. He denied stomping away and yelling “where’s my fucking dinner” as alleged by Ms Harry.[19] He also denied that he was angry. I prefer Mr Harry’s evidence in relation to the incident.
[18] Ms Harry’s Affidavit of 29 November 2022, paragraph 53.4.
[19] Ms Harry’s Affidavit of 29 November 2022, paragraph 53.4.
Ms Harry deposes that throughout 2019 and 2020, Mr Harry “would repeatedly grab and squeeze my lower thigh just above my knee”, wrapping his hand around her leg and causing her excruciating pain and bruising.[20] She deposes to him continuing to do so despite her telling him to stop. Mr Harry deposes to occasionally putting his hand on Ms Harry’s thigh as a gesture of love and affection. He gave oral evidence that he placed or rested his hand there. He denies that he grabbed and squeezed her leg, or that Ms Harry ever told him to stop or tried to move his hand away. I prefer Mr Harry’s evidence and find that he did not grab her leg to cause her pain.
[20] Ms Harry’s Affidavit of 29 November 2022, paragraph 53.5.
Ms Harry deposes to Mr Harry regularly speeding, causing her to be terrified and begging him to slow down, letting tyres slip around a bend resulting in Ms Harry considering they were going to crash into a tree, braking suddenly and driving quickly around corners. He denies the allegations, although accepts that he missed a roundabout exit on one occasion causing him to go around again. He denies that Ms Harry ever told him she was frightened by his driving. Mr Harry’s denials were given in a careful and considered manner, without defensiveness, and I accept them. I also accept his evidence that nothing about his driving could have given Ms Harry cause for alarm.
At Christmas in 2019, Ms Harry deposes to Mr Harry yelling at her due to having to sit next to one of her family members, to him subsequently driving erratically, and being furious. He denies having yelled at Ms Harry or driving erratically. I accept his evidence and do not accept it is impugned by his failure to recall whether he went for a walk on Christmas morning or whether the parties had driven home to pick up a bottle of whisky between lunch with Ms Harry’s family and later attending Mr Harry’s family Christmas. Whilst the allegation that Mr Harry drank straight whisky was given some forensic attention, Ms Harry does not allege that he was intoxicated.
For 9 months after X’s birth, Ms Harry deposes to Mr Harry being angry, swearing, stomping around the study and around the house, banging on things, and telling her he wanted to drive his car into a tree and that he thinks of shooting himself in the head. Mr Harry credibly denied each of the allegations. Those denials were not successfully challenged by Mr Harry giving evidence that he considered Ms Harry was not pulling her weight in terms of arranging outside care for X, including by maternal family members.
Ms Harry deposes that on many occasions in 2019 and 2020, Mr Harry became upset and “behaved as though he was going to throw his phone and laptop”[21] in her direction. She deposes to an occasion when he both motioned, and threatened, to throw his phone in X’s direction. Mr Harry credibly denied the allegations.
[21] Ms Harry’s Affidavit of 29 November 2022, paragraph 54.5.
Ms Harry deposes that in early to mid-2020, Mr Harry slammed his keyboard down repeatedly on the desk in the study, swearing loudly. She also deposes to him pacing up and down the backyard before whacking garden posts onto the trunk of a tree causing her fear. Mr Harry admits that although he became frustrated at his computer which he would bang or thump on the study table, it was on a rare occasion. He accepts that he swore loudly, but says he did so only rarely. He otherwise denies the allegations. He denies that it could have been very frightening to Ms Harry. I accept his evidence.
Ms Harry deposes that in May 2020, Mr Harry forced her to sign a purchase contract for a property in Town F, shouting at her, waving his arms at her and shaking the pen at her. She deposes to him threatening to purchase it anyway and using all of the parties’ joint savings instead of financing the purchase with a bank loan. Mr Harry credibly denied the allegations. His evidence that Ms Harry wanted to pull out of the contract after it was signed is consistent with his evidence.
Ms Harry deposes to Mr Harry criticising her appearance and weight, making her change her clothes, demanding she remove make up and undertake particular exercises. Mr Harry gave compelling evidence that he considered Ms Harry looked more pretty or beautiful without makeup, and that he suggested the parties do spin classes together at least three months after X had been born. I accept his denials of Ms Harry’s allegations.
In October 2020, the parties and X attended one of Mr Harry’s brother’s weddings. Ms Harry had driven and parked under a carport in close proximity to the venue. Mr Harry admits that he was wrong to get annoyed about where Ms Harry had chosen to park. Nevertheless, he credibly denied yelling at Ms Harry or that X was distressed. I accept his evidence.
Ms Harry deposes to observing a dog belonging to a friend of Mr Harry’s whimpering and cowering away from Mr Harry. He credibly denied that the dog behaved in that way. He deposes to having caught his housemate’s dog chewing on a third or fourth set of Mr Harry’s bedsheets and thereafter growling at him and hitting him sternly with a rubber thong. Ms Harry was not present at the interaction and did not successfully challenge Mr Harry’s evidence in relation to it. I also accept Mr Harry’s evidence and his denial of having hit his parents’ dog across the face “with great force with an open hand”.[22]
[22] Ms Harry’s Affidavit filed 29 November 2022, paragraph 54.13.
Ms Harry deposes to Mr Harry storing two axes in his car for several months in late 2020. Mr Harry agrees that the axes were in the vehicle, but gave evidence that he did not consider them unsafe. Ms Harry deposes to there being no reason for the axes being there, which evidence is directly contradicted by Mr Harry, who deposes to them being there for the purpose of cutting firewood. Mr Harry credibly denied that Ms Harry had ever raised any concerns with him about the storage of the axes. I note that the vehicle continued to be used by the parties to convey X in her baby seat throughout that period. Ms Harry gave oral evidence that when she removed the axes from his car, he said nothing. She does not contradict Mr Harry’s evidence that once the axes were removed from the vehicle they did not re-appear back in the car. When asked whether she was worried Mr Harry had some sinister motivation for having the axes in the car, she responded that she could not understand his reasons. That evidence is inconsistent with a finding that the storage of the axes constituted family violence as defined, even if Ms Harry avers to having been scared.
Mr Harry credibly denied that he constantly questioned where Ms Harry was going, or often parked behind her so as to interrogate where she was going if she left the home. I also accept his denials that he parked behind her and took his cars keys with him so that Ms Harry could not then move her car.
Mr Harry also credibly denied that he became furious or stamped his feet in late 2020 when Ms Harry stopped giving him praise. He accepted that he may have said words to the effect of “you don’t know how hard I work to provide for the family”. He also accepts that he may have called Ms Harry words to the effect of crazy or delusional. That he also admits that he become increasingly concerned towards the end of the parties’ relationship and became frustrated does not establish that he perpetrated family violence.
Mr Harry accepts that he did not show Ms Harry his business bank statements. The parties’ finances were deposited in joint bank accounts. Mr Harry gave credible evidence that the parties negotiated an agreed budget. He accepts that he did not agree to Ms Harry buying a TV cabinet or having a ceiling hole repaired. Mr Harry agreed he closed the parties’ credit card and transferred $50,000 out of one account to preserve a safety net amount to cover unexpected expenses for the parties’ investment properties. I am not satisfied his conduct coerced or controlled Ms Harry.
Mr Harry credibly denied that he suggested women were to blame for being killed in incidents of family violence in response to documentaries or media coverage.
Mr Harry accepts that after the parties’ separation he become frustrated at changeovers from time to time and told Ms Harry she was horrible and that he would not put up with her nonsense. He credibly denied Ms Harry’s allegation that he yelled at her, that any such conversation occurred in the presence of X, or that he had been angry in front of X.
I am not satisfied that the cumulative effect of the findings I have made leads to the conclusion that Mr Harry has perpetrated family violence against Ms Harry. When it was suggested to Ms Harry that Mr Harry’s nature is to be kind, grateful, caring and loving, she conceded that he was a lot like that.
Alleged Child Abuse by Mr Harry
Abuse is defined to be either assault, including sexual assault of X, involving X in sexual activity in which she is used directly or indirectly as a sexual object, causing X serious psychological harm as a result of subjecting or exposing her to family violence, or seriously neglecting her.[23]
[23] Family Law Act 1975 (Cth), ss 4(1).
When X was one month old, Ms Harry deposes to Mr Harry beginning to squeeze and pinch X’s upper arm. Mr Harry does not recall doing so and denies that Ms Harry ever raised such an allegation with him as she deposes to. Ms Harry does not depose to X ever being upset or distressed on any such occasion. I am not satisfied Mr Harry used excessive force on X by squeezing or pinching her arm.
In December 2020, X was baptised. Ms Harry deposes that “[d]uring this Mr Harry held X’s ankle and subsequently had bruises on her ankle over the following days where Mr Harry was gripping her that looked like finger marks.”[24] She attaches a copy of a photograph that she asserts shows bruising on X. The photograph is essentially unclear, but certainly does not reveal any substantial bruising, nor any bruising that looks like finger marks. Mr Harry denied that he held X too tightly on that occasion.
[24] Ms Harry’s Affidavit filed 29 November 2022, paragraph 54.11.
Ms Harry’s allegation must amount to an assertion that Mr Harry assaulted his daughter during the baptism. That allegation is surprising in that it is not supported by any reported distress exhibited by X at the time of it occurring. The video tendered into evidence of the baptism shows nothing of concern. It is fanciful to suggest that X was assaulted by her father during her baptism in the presence of numerous paternal and maternal family members. I do not accept that Mr Harry assaulted his daughter by holding her ankle, without any reported distress, during her baptism.
Ms Harry complains about an incident when X fell into a cargo net on play equipment while Mr Harry had his back turned. Mr Harry gave unchallenged evidence that X did not cry and that he had disclosed the incident to Ms Harry. I find no basis upon which to conclude that Mr Harry thereby abused or neglected his daughter.
Mr Harry admits that he put a clothes peg on X’s ear while she was being bathed in around December 2020 or January 2021. He denied that X was crying when he did so, as deposed to by Ms Harry. I accept his evidence in that respect. Ms Harry conceded that Mr Harry was not deliberately inflicting pain on his daughter, rather that he was being rough and silly. I am not satisfied the incident amounts to Mr Harry abusing his daughter.
Mr Harry also admits that he touched X’s nose while she was eating her dinner in May 2021. He gives evidence that he lightly pinched her nose. Ms Harry deposes to X being unable to breathe and choking on her food. She gave oral evidence that X “choked out” her food. Ms Harry was at the dining table, and although she did not observe the incident initially, she gave evidence that she could hear X struggling to breathe. When she was asked what she did about it in that moment, she simply described what she observed. That she would merely watch and observe her child be choked by Mr Harry is fanciful. I do not accept Ms Harry’s characterisation of the incident as abuse. I prefer Mr Harry’s evidence that he lightly pinched X’s nose as a playful action. He credibly denied that X was at any time distressed.
Mr Harry also credibly denied that he had asked his daughter to come into the bathroom while he was urinating, although accepted that she then entered the bathroom uninvited. He gives evidence that he said “Daddy’s making a waterfall”.[25] He also denied that there was another occasion when X walked in on him in the bathroom. I am not satisfied that Mr Harry’s actions were in any way inappropriate or abusive of X.
[25] Mr Harry’s Affidavit filed 2 December 2022, paragraph 4.34.
Ms Harry gives detailed evidence of injuries observed to X after spending time with her father. She gives detailed evidence of comments made by X to her to the effect that “daddy hurt me”, and that X has engaged in sexualised behaviours. It was not suggested to Mr Harry that he had sexually interfered with his daughter. Ms Harry herself gave evidence that she did not know whether she believed that Mr Harry had sexually assaulted X. The evidence does not support a conclusion that X has been sexually assaulted by her father.
Reports of physical abuse made by Ms Harry were investigated by New South Wales Police with the result that no charges were laid. 57 reports were made to the Department of Communities and Justice in relation to X’s welfare, predominantly relating to concerns of physical and sexual abuse of X by her father. Those reports have been assessed and were not substantiated.
The evidence does not support a conclusion that X has been abused in any way by her father. As Ms Harry now concedes, the evidence also does not support a finding that there is an unacceptable risk of him doing so in the future.
Alleged Child Abuse by Ms Harry
The Independent Children’s Lawyer submits that X will be exposed to an unacceptable risk of psychological and emotional harm if she continues to live with her mother. It is first contended that harm will be caused by X losing her relationship with her father. I reject that aspect of the submission. Ms Harry now proposes orders that will ensure X’s relationship with her father. No fundamental shift in X’s living arrangements is any longer required to prospectively guarantee that relationship. The second limb of the submission is that X will grow up with a belief that she has been abused by her father and that she is an abused child. There is a paucity of independent evidence that X presently has any such beliefs. She did not present to Consultant Ms B in a way that was consistent with believing she had been abused by her father.
Dr E was asked about the positive interaction that occurred between X and her father during assessments with Consultant Ms B. He gave the following evidence:
I mean, it’s so common, isn’t it, that children live in two worlds and they adopt the view of the parent with whom they’re with and happily, they go between one and the other and they maintain the two worlds separately within themselves…
And that despite all the woeful stories about horrible things and all the rest, the child experiences the father, if you like, as he is rather than in accordance with the narrative that has developed in the mother’s home. So she has split off the two, and we see this all the time, and in order to maintain a relationship with both parents in such circumstances, the child takes on the view of the parent they’re living with and changes when they move back with the other parent, so it doesn’t mean that there’s a happy set of circumstances for the child. We know that as children get older and their circumstances, in attempting to manage these two differing worlds, is actually quite harmful to them.
I am not satisfied that evidence supports a conclusion that it would cause X serious psychological harm to remain living with Ms Harry while spending substantial time with Mr Harry. Accordingly, I am not satisfied there is a risk of X being exposed to abuse in her mother’s care.
The Independent Children’s Lawyer submits that to leave X with her mother leaves her at very grave risk of Ms Harry being untreated and unchanged. The Independent Children’s Lawyer expresses concern that the level of enmeshment in X’s relationship with her mother will not disappear. The first thing to observe about those submissions is that in the event Ms Harry remains unable to facilitate X’s relationship with her father, X will live with him on her mother’s proposal. Secondly, Ms Harry herself proposes being bound by an order to undertake therapeutic intervention to deal with the issues raised by Dr E and Consultant Ms B.
I am not satisfied that X remaining in Ms Harry’s primary care leaves her at unacceptable risk of serious psychological harm, or abuse more generally.
Additional Considerations
Any views expressed by X and any factors (such as her maturity or level of understanding) that are relevant to the weight to be given to her views
X is three years old. She is not of an age where she has expressed any relevant views in relation to her living arrangements. I place minimal weight on Ms Harry’s evidence that X has reported being afraid of her father in circumstances where she did not display apprehension when seeing him in the presence of Consultant Ms B.
The nature of X’s relationships with each of her parents and other people, including any grandparent or other relative
Although Dr E did not meet with, or assess, X, he opines that “there were glimpses of an enmeshed and over-dependent relationship” between Ms Harry and X. Consultant Ms B did meet with both of them, and opined that “there was a presentation of enmeshment and possibly co-dependency on X to meet [Ms Harry’s] own emotional needs”.[26] It is clear that Ms Harry has become fixated on, and apparently obsessed with, her concerns about the risk she perceived Mr Harry posed to X. Until now, she has been unable to accept that X may be at no such risk of harm in Mr Harry’s care.
[26] Family Report dated 6 October 2022, paragraph 83.
Consultant Ms B opines that Ms Harry displayed an unhealthy emotional dependence on her daughter and an unhealthy emotional connection and parenting style. She considers Ms Harry displays hypervigilance around X, shows disproportionate anxiety about her safety in non-threatening situations, and consistently depicts X as a traumatised child. Consultant Ms B noted that Ms Harry appears to have isolated X from opportunities to form other relationships and social networks, and “seems to hold a strong and fixated belief that she is the only person who can care for and keep X safe.”[27] That expert opinion was not challenged and I accept it, although I note that Ms Harry’s current proposal is inconsistent with those previous beliefs.
[27] Family Report dated 6 October 2022, paragraph 91.
Consultant Ms B opines that X has a “happy and loving connection” with her father.[28] The opinion is founded on her observations of X appearing intrigued at the mention of “daddy” before meeting with him, and her immediate assent to meet with him. She also observed X not to be fearful or scared of her father, even if she was initially somewhat cautious. She observed X to be comfortable and settled in her interactions with her father within two minutes, and X thereafter being talkative and jovial with her father, smiling and laughing with him. She considers that they enjoyed their time together before X enthusiastically embraced her father at the conclusion of the visit.
[28] Family Report dated 6 October 2022, paragraph 79.
The quality of that interaction is significant given it occurred approximately 8 months after X had last seen her father and approximately 11 months since they spent any regular time together. As Ms Harry submits, X’s presentation is inconsistent with her having coached or influenced X to be afraid of her father. Her interaction with her father is also inconsistent with an assertion that X is being psychologically harmed by exposure to her mother’s fixed beliefs.
The extent to which each of X’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to her, to spend time with her, and to communicate with her
Both parties have participated and sought to participate in X’s life to the maximum extent that has been possible to date. Mr Harry persisted with spending time with X in Ms Harry’s presence, despite what he appropriately considered to be the undesirability of doing so.
The extent to which each of X’s parents has fulfilled or failed to fulfil their obligations to maintain her
Ms Harry deposes to Mr Harry financially abusing her in the period post separation. However, he gives unchallenged evidence that he meets the outgoings for the parties’ investment properties and Ms Harry receives the rental income from their property in Town F. By that indirect means, Mr Harry is providing financial support for X. It is his uncontradicted evidence that the amount paid to her is equal to, or exceeds, the amount that would otherwise be payable by way of child support. No administrative assessment of child support is in place.
The likely effect of any changes in X’s circumstances, including the likely effect on X of any separation from either of her parents, or any other child or other person, including grandparent or other relative, with whom X has been living
X has lived her entire life with Ms Harry. After her birth, X’s father was working long hours and accordingly her needs were primarily met by Ms Harry. After the parties’ separation, X has spent only limited time away from her mother. The impact of removing X from her mother’s care cannot be understated. Consultant Ms B agrees that it would be completely and utterly traumatic for X to be removed from Ms Harry’s care. She gave oral evidence that Ms Harry is a very important person in X’s life and has been her sole carer.
The practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect her right to maintain personal relations and direct contact with both parents on a regular basis
Ms Harry lives in City G and Mr Harry lives in Town H. In her Outline of Case, the Independent Children’s Lawyer submits that the practical difficulty and expense associated with the approximately one hour commute between the parties’ residences is minimal. No contrary suggestion is made by any of the parties. I accordingly accept the Independent Children’s Lawyer’s submission.
The capacity of each of X’s parents and any other person, including any grandparent or other relative of X, to provide for the needs of the child, including emotional and intellectual needs
Consultant Ms B opines that X is a bright, bubbly and happy child, and that so much is a credit to Ms Harry. Consultant Ms B observed that she “presented as a bright, independent and confident child”.[29] She also opined that X “presented as a surprisingly well balanced, confident and resilient child” despite her experiences after the separation of her parents.[30] Mr Harry acknowledged that Ms Harry has been a major contributing factor to those characteristics of X. Ms Harry has been primarily, if not almost exclusively, responsible for X’s care to date. Her capacity to generally provide for X’s needs is well reflected in those observations of Consultant Ms B which were not contradicted or challenged.
[29] Family Report dated 6 October 2022, paragraph 66.
[30] Family Report dated 6 October 2022, paragraph 93.
I have already referred to the enmeshed relationship that is described by the experts between X and her mother. So much is consistent with a finding that Ms Harry lacks capacity to provide for her daughter’s emotional needs. Dr E opines that there is a cost to both X and Ms Harry if the present situation continues, involving a very enmeshed relationship with a certain level of isolation occurring for X in those circumstances.
Consultant Ms B opines that there is trauma for X in not being able to have a relationship with her father and her extended family. Historically, it is certainly the case that Ms Harry has been unable to provide for her daughter’s needs in that respect. However, the orders she now proposes will ensure that X has relationships with her paternal family. In the event Ms Harry is unable to facilitate those relationships while X is living with her, she proposes that X live with Mr Harry.
Criticism is also made of Ms Harry for not presenting X with opportunities to spend time away from her mother. Consultant Ms B opines that there is trauma for X in her isolation. She considers X would have a more balanced lifestyle living with Mr Harry, having the chance to go to kindergarten. The unchallenged evidence before the Court is that Ms Harry arranged for X to spend 4 occasions of between 1 and 5 hours with a friend of hers. The evidence is uncontradicted, and neither inherently improbable nor inherently incredible and I accept it.[31]
[31] Bain & Bain (deceased) (2017) FLC 93-772 at [112] and the cases there cited.
The parties had enrolled X in three year old kindergarten at J School in City G. Ms Harry understands that the school may have a place available in 2023. She submits that there is no dispute that X will attend three year old kindergarten next year. That submission is consistent with Consultant Ms B’s recommendation that X attend three days per week of kindergarten.
Mr Harry was observed by Consultant Ms B to be appropriate and child focused with his daughter, as well as being conscious, and respectful of her cues. He was observed to shield his emotions from X at the conclusion of their interaction. I accept that evidence which is demonstrative of a significant capacity to provide for his daughter’s needs.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of her parents, and any other relevant characteristics of X
Aside from the present dispute and concerns that X’s social interactions (apart from her mother) have been limited, there is no evidence that X is not meeting her developmental milestones. No concerns were raised with Consultant Ms B in relation to X’s development.
If X is an Aboriginal child or a Torres Strait Islander child, her right to enjoy her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture), and the likely impact any proposed parenting order will have on that right
X is not an Aboriginal or Torres Strait Islander child.
The attitude to X, and to the responsibilities of parenthood, demonstrated by each of her parents
Mr Harry submits that X is growing up in a household and environment where her safety and security with her father is the subject of constant discussion and assessment. He submits that it is likely on the balance of probabilities that Ms Harry’s concerns will continue to generate disclosures from X and discussions about any injuries, however minor, incurred during her time with her father. It should firstly be observed that predictions about future facts are not susceptible to proof on the balance of probabilities.[32] But more significantly, the impact on X of those types of discussions was not explored with the experts who were called to give evidence. I decline in those circumstances to give significant weight to the suggested advantages of X not being exposed to such conversations in her father’s primary care.
[32] Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638; Fitzwater & Fitzwater (2019) 60 Fam LR 212 per Austin J at [135]; Isles & Nelissen (2022) FLC 94-092 at [50-51].
Mr Harry also submits that his case succeeds if I am satisfied that, in Ms Harry’s household, X will continue to raise complaints about her father, and Ms Harry will continue to be concerned about those complaints. I do not accept the submission. On Ms Harry’s proposal, whatever the nature of any future complaints, if they result in X not spending ordered time with her father, X will live with her father. Historically, what has been of central importance is the fact that Ms Harry has been unable to comply with the Court’s Orders because of her concerns. Further, Ms Harry proposes to be required to undertake therapeutic intervention to address what I have found to be her unfounded concerns.
Ms Harry displayed a poor attitude to the responsibilities of parenthood in facilitating X’s disposal of a photograph of her father. So much was inconsistent with her stated aim of not desiring X to have bad feelings about her father.
It is to Mr Harry’s substantial credit that in his appointments with Consultant Ms B, he remained child focused and did not denigrate or criticise Ms Harry, despite the substantial impediments she has created to X’s relationship with him. I reject Ms Harry’s suggestion that Mr Harry had some responsibility to get Ms Harry help after X’s birth, or that any failure in him doing so somehow reflects poorly on his attitude to the responsibilities of parenthood. She herself conceded that Mr Harry leapt to her defence in relation to X’s paternal grandfather’s disrespectful behaviour towards her.
Any family violence involving X or a member of her family
I have determined that Mr Harry has not perpetrated family violence. X has not otherwise been exposed to family violence.
If a family violence order applies, or has applied, to X or a member of her family, any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter
No family violence order applies, or has applied, to X or a member of her family.
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 X
All proposals now before the Court carry the risk of further proceedings becoming necessary. As Mr Harry submits, in the event Ms Harry’s self-executing order is made and triggered, it is likely proceedings will be necessitated to give effect to the order. However, such application would be by way of enforcement, rather than proceedings which would provoke a substantive new enquiry into X’s best interests.
If I accede to Mr Harry’s proposal, I am entirely reliant upon the parties being subsequently able to resolve their parenting dispute by agreement, to avoid the necessity for further proceedings to determine what parenting orders will be appropriate after a period of X’s time with her mother being supervised. Whatever optimism Mr Harry expresses about the parties’ capacity to resolve that dispute, I consider a substantial risk of further proceedings attends his proposal.
On the Independent Children’s Lawyer’s proposal, the proceedings would not now be concluded, with X’s family being exposed to further assessment and litigation. Whilst that proposal strictly obviates the need for further proceedings to be instituted, it inevitably causes X to be exposed to ongoing litigation and further delays in the determination of her living arrangements. So much is inconsistent with mandatory principles to which I must give effect.[33]
[33] Family Law Act 1975 (Cth), s 69ZN.
The Independent Children’s Lawyer proposes that, pursuant to paragraph 64(2)(g) of the Act, the parties be restrained from bringing further applications for parenting orders without prior leave of the Court. The Independent Children’s Lawyer submits that such an order may not be required given Ms Harry’s amended position. It is a very serious matter to deprive a person of access to the courts.[34] I am not satisfied that it is in X’s best interests to require the parties to seek leave to institute further proceedings. Any further application would be subject to the Rice & Asplund test in any event.[35]
[34] Re Attorney General (Cth) & Another, Ex parte Skyring (1996) 135 ALR 29 at 31.
[35] (1979) FLC 90-725; Defrey & Radnor [2021] FamCAFC 67 at [19].
Any other relevant fact or circumstance
Not relevant.
Parental responsibility
Consistent with the presumption in section 61DA of the Act, Ms Harry proposes that the parties have equal shared parental responsibility for X. As has been observed, the presumption may be rebutted by evidence that it is not in X’s best interests for her parents to have equal shared parental responsibility for her. Mr Harry proposes that he have sole parental responsibility for X. The Independent Children’s Lawyer proposes that sole parental responsibility for X be vested in Mr Harry for six months before being shared by both parties, subject to Ms Harry engaging with a psychiatrist, with Mr Harry having the final say.
The parties never implemented an earlier interim Order to communicate through the use of the My Family Wizard application. There is no evidence of any productive communication between the parties. Consultant Ms B opines that the parties’ co-parenting relationship appears to have been “fraught with difficulties from the start”, and that they “no longer have any trust in one another, or ability to communicate and have a functional co-parenting relationship.”[36] That opinion was unchallenged, and I accept it. There is no evidence to support a contrary conclusion. I cannot be satisfied that the parties can or will comply with the mandatory requirements prescribed by section 65DAC in light of that lack of cooperation and communication.[37]
[36] Family Report dated 6 October 2022, paragraph 81.
[37] Boyle & Zahur & Anor (2017) FLC 93-814 at [22].
I determine that it is not in X’s best interests for her parents to have equal shared parental responsibility for her. The statutory presumption is accordingly rebutted.
Nevertheless, I am not satisfied that it is in X’s best interests for one of her parents to be deprived of consultation and decision-making regarding major long term issues for her, which exclusion is a very significant interference with the parties’ fundamental rights.[38]
[38] Lennon & Lennon [2011] FamCA 571 at [108].
I consider X’s best interests are met by both of her parents retaining the parental responsibility with which they are invested by section 61C of the Act, which outcome dictates that no order as to parental responsibility be made.
Conclusions
Mr Harry submits that consideration of the factors prescribed paragraphs 60CC(2)(b), (3)(f) and (3)(i) of the Act point strongly in favour of X’s best interests being met by residing with Mr Harry about whom no similar concerns are raised. Certainly, if they were the only considerations, there would be significant merit in the submission. But that would be to overlook other important and weighty factors. I have found that only Ms Harry’s proposal affords X the opportunity of immediately having the benefit of a meaningful relationship with both of her parents. I have also found that the likely effect on X of being removed from the full time care of Ms Harry is likely to be very significant.
It might be the case that Mr Harry is able to ultimately provide better emotional security for X in his care. However, in the short term, on his proposal, she will be deprived of substantial emotional security in the form of continuing to live with her mother who has been primarily providing for her day to day needs throughout her life.
Ms Harry’s proposal ensures that the principal concerns raised by the experts in the case are addressed. One way or another, X will have the opportunity to spend substantial and significant time with her father. Issues of X’s social isolation will be addressed by spending such time with her paternal family, as well as by Ms Harry’s concession that X attend three year old kindergarten.
It may be the case, that even if I accede to Ms Harry’s proposal, X will move from living primarily with her mother to living primarily with her father. However, I consider her best interests are served by affording Ms Harry a final opportunity to facilitate the meaningful relationship between X and her father that she now contends to be in her daughter’s best interests. If she is able to comply with the orders she now proposes, X will avoid the trauma of being removed from her primary caregiver. I find that outcome to be in X’s best interests.
Ms Harry’s proposal for X to spend time with her father was not the subject of detailed submissions from him. As an alternative proposal, he sought a similar arrangement albeit with different times for changeovers. I prefer Ms Harry’s proposal which will ensure X is not travelling between her parents’ homes late into the evening, although determine that changeover should occur at 4:00pm in order to maximise X’s time with her father before being returned with enough time to undertake her usual evening routines.
Ms Harry’s proposal does not contemplate Christmas time beyond this year, nor school holidays beyond the conclusion of school in 2023. Mr Harry makes no proposal for school holiday time. I consider X’s best interests are met by alternating the Christmas period from year to year with each of her parents. I also consider her best interests are met by continuing to spend increased time with her father during school holiday periods over the coming years. For that reason, I conclude it is in her best interests to spend four nights at a time with her father during school holidays from the conclusion of 2023 and thereafter on a week about basis once she commences school in default of agreement between the parties.
Ms Harry proposes that the self-executing order providing for X to live with her father in the event X fails to spend 2 visits with her father unless otherwise agreed, be in place for 12 months. Certainly I accept that it should not persist until X is 18 years old. However, given the significant historical difficulty Ms Harry has had complying with orders to facilitate the relationship, I consider 12 months to be too short to ensure that X has the benefit of a meaningful relationship with her father in the medium term. I consider the proposed order should operate for 3 years, albeit that it should not be triggered unless there have been two missed visits in a twelve month period.
There is force in Mr Harry’s submission that in the event the self-executing order proposed by Ms Harry is triggered, for X to return immediately to her mother for extended unsupervised time may be disruptive. It is Consultant Ms B’s opinion that X “would need a little bit of a period of time to settle with her father, but I’m not saying it should be an extensive, long period and then for four to six months, we introduce the spend time.” Her written recommendation would see X spend 2 hours with her mother each fortnight on a supervised basis for that period of time. She also gave evidence that she considered it would be reasonable for there to be some kind of break, perhaps for a few weeks or a month. In Consultant Ms B’s opinion, the longer term arrangements would be dependent upon how X and Ms Harry have responded to appropriate therapy.
Mr Harry proposes that in the event X comes to live with him pursuant to the self-executing order, the Independent Children’s Lawyer’s proposal then comes into operation. The insurmountable problem with that is that the Independent Children’s Lawyer’s proposal is for interim orders to now be made. In light of Consultant Ms B’s evidence, I consider it to be in X’s best interests, in the event she commences living with her father, for there to be a moratorium of one month before the introduction of supervised time with Ms Harry. After five months, I consider her best interests are met by spending time with Ms Harry in accordance with her proposal unless otherwise agreed between the parties. So much will ensure that after the period of transition, X will have the benefit of a meaningful relationship with both of her parents. If X is to live with her father, it is proposed that she spend time with Ms Harry supervised either by a professional service or the paternal grandparents. Whilst Ms Harry raises concerns about the attitude of X’s paternal grandmother, given the present unavailability of the previously ordered professional service, I consider X’s best interests are met by maximising the number of available supervisors as proposed by the Independent Children’s Lawyer. I am not satisfied it is necessary for the paternal grandparents to provide a formal undertaking as to their obligations to supervised time.
Both Dr E and Consultant Ms B recommended that X’s family would be assisted by therapeutic intervention. Each of the parties propose orders to facilitate such intervention. All proposals are self-standing, and are untethered from any particular parenting order. As framed, the proposals are not parenting orders and could only be supported by section 67ZC of the Act.[39] Whilst these circumstances are perhaps particular, I am not satisfied they are “unique” so as to justify the invocation of that power.[40] Ms Harry’s willingness to engage in therapy does not lead to a different conclusion regarding the Court’s power.[41]
[39] Oberlin & Infeld (2021) FLC 94-017 (“Oberlin & Infeld”) at [51] and the cases there cited.
[40] Oberlin & Infeld at [52]; Jacks & Samson (2008) FLC 93-387 (“Jacks & Samson”) at [226].
[41] Jacks & Samson at [225].
Given Ms Harry’s prior inability to facilitate X’s relationship with her father despite Orders of the Court and fixated beliefs consistent with a psychiatric condition of some order, I am satisfied that X’s continued residence with her mother ought be conditional upon her undertaking therapy as she proposes. I am also satisfied that any progress of Ms Harry’s time from supervised to unsupervised time in the event X moves to live with her father ought be conditional upon her undertaking that proposed therapy. So much will militate against the risk posited by the Independent Children’s Lawyer of X’s mother remaining untreated and unchanged, and raising her daughter to believe she has been abused by her father.
Ms Harry also proposes that the parties undertake reportable child inclusive family therapy. Consultant Ms B does not recommend family therapy at this time. Dr E’s focus was on Ms Harry herself obtaining treatment. In circumstances where Ms Harry proposes to engage a treating practitioner for therapy, I am not satisfied that it is in X’s best interests to require the parties to also be involved in family therapy. Of course, that does not preclude the parties reaching agreement otherwise, but I am not satisfied positive orders should be made requiring them to so attend. I am also not satisfied that X’s time with either parent ought be conditional upon such attendance, or that it is within the Court’s power to make a standalone order to that effect. Nevertheless, it is in X’s best interests for any family therapist engaged by the parties to have access to relevant documents from these proceedings.
No specific submissions were advanced with respect to other therapeutic interventions proposed. Mr Harry and the Independent Children’s Lawyer propose that Mr Harry engage X with a paediatrician for assessment and a “specialist trauma informed child psychologist”. Consultant Ms B gave evidence that there are substantial delays in accessing psychologists. I am not satisfied it is in X’s best interests for those interventions to be imposed given the therapeutic intervention I will require to be a condition of X living with her mother. I am also not satisfied, in light of the other conclusions I have reached, that her best interests require her father to undertake a K program, which I note he has substantially completed in any event.
Ms Harry made no submissions in opposition to Mr Harry’s proposal that X have the opportunity to communicate with her father on Mondays, Wednesdays and Fridays that she is not in his care. I consider that proposal to be in X’s best interests.
Whilst no submissions were directed to Mr Harry’s proposal that the parties advise each other in the event they propose to travel interstate or internationally, I consider it to be in X’s best interests for her parents to be advised of any such travel and to have contact details for her.
Ms Harry does not propose a formal order that X attend kindergarten in 2023. She conducted her case on the basis that X would do so, consistent with the recommendations of Consultant Ms B. In light of the concerns about X’s historical social isolation, I consider her best interests are met by making a positive order to give effect to that recommendation.
Other orders providing for the sharing of information about X, her parents attending relevant events, and restraints on exposing X to negative things, including denigration, family violence and conflict, are agreed between the parents. Ms Harry also seeks a restraint on physical discipline of X. Absent any evidence that either party has done so, I am not satisfied that the injunction sought is necessary to protect X’s health or safety. No submissions were advanced by the Independent Children’s Lawyer in relation to the more expansive restraints sought by her. There is also no evidence in support of the relief sought by Mr Harry relating to extra-curricular enrolment or attendance which I am accordingly not satisfied is in X’s best interests.
It is common ground that the parties will communicate by text message or a communication application.
Ms Harry proposes an order that changeovers for X are “child focused”.[42] The meaning of that term is not explained. Absent submissions in relation to it, or indeed any evidence to support it, I am not satisfied the order sought is in X’s best interests.
[42] Exhibit R5, paragraph 15.
It is unclear to me why an order is needed as proposed by the Independent Children’s Lawyer for Consultant Ms B’s oral evidence to be transcribed and placed on the Court file. No submissions were advanced in support of the order sought which I decline to make.
It is implicit in the making of final orders that interlocutory orders are discharged,[43] with the result that there is no need to make an order discharging the previous interim orders.
[43] Keskin & Keskin & Anor (2019) FLC 93-932 at [31] and the cases there cited.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 21 December 2022
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