Haward & Haward
[2023] FedCFamC1F 47
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Haward & Haward [2023] FedCFamC1F 47
File number: SYC 6259 of 2018 Judgment of: REES J Date of judgment: 9 February 2023 Catchwords: FAMILY LAW – Parenting – The mother seeks an order for sole parental responsibility and that the child live with the mother – The father seeks equal shared parental responsibility and a week about arrangement – Where the mother has been subjected to family violence by the father – Where the child has witnessed family violence between the parents and between her adult brother and the parents – Where the child has developed significant anxiety – Where the adult brother has ongoing mental health difficulties – Where the father denies being a perpetrator of family violence – Expressed views of the child – Orders made for the mother to have sole parental responsibility relating to the child’s education – Orders made for the father to spend time with the child once a week with no overnight time – Costs for the ICL. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC Division: Division 1 First Instance Number of paragraphs: 158 Date of hearing: 31 January – 3 February 2023 Place: Sydney Counsel for the Applicant: Ms Spain Solicitor for the Applicant: Santone Lawyers Counsel for the Respondent: Mr Hodgson Solicitor for the Respondent: Cameron Legal The Independent Children’s Lawyer: Ms Karagiannis, Legal Aid NSW ORDERS
SYC 6259 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HAWARD
Applicant
AND: MR HAWARD
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
REES J
DATE OF ORDER:
9 February 2023
THE COURT ORDERS:
1.That the child X born 2011 live with the mother.
2.That the mother have sole parental responsibility for decisions relating to X’s education and that she advise the father of the decisions she makes within a reasonable time.
3.That X spend time with the father as agreed between the parents and, in the absence of agreement, each Sunday from 10.00 am until 5.00 pm, the mother to deliver X to the father’s residence and the father to return her to the mother’s residence.
4.That, in addition to the time specified in Order 3, X spend time with the father:
(a)On Christmas Day from 10.00 am to 5.00 pm.
(b)On X’s birthday, and the father’s birthday, if a school day, from after school until 6.00 pm, the father to collect X from school and return her to the mother’s residence or, if a non-school day, from 10.00 am to 2.00 pm, the father to collect and return X at the mother’s residence.
5.That X have telephone communication with the father as agreed and, absent agreement, each Tuesday and Thursday not earlier than 6.00 pm and not later than 6.30 pm.
6.That X’s time with the father is suspended:
(a)On Mothers’ Day.
(b)For two consecutive Sundays in the summer school holidays (not including Christmas Day) at the end of Term 4 if the mother wants to take X on a holiday, provided that the mother gives the father four weeks’ notice of her intention.
7.That each parent will inform the other immediately of any medical emergency involving X.
8.That the father shall be entitled to receive all correspondence and notifications usually provided to parents by any school that X attends and to participate in any activity that is usually attended by parents.
9.That within three months of the date of these orders, each party pay to Legal Aid NSW the sum of $5,000 on account of the costs of the Independent Children’s Lawyer.
10.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
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 Haward & Haward has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Ms Haward (“the mother”) and Mr Haward (“the father”) are the separated parents of two children. The older child, Mr B, is now an adult who lives with the father. Their younger child, X who was born 2011 and is now 11 years old, is the subject of these proceedings.
X lives with the mother and has done so since the parents separated in 2018. She initially, by agreement, spent time with her father under professional supervision but since January 2021 X has spent five hours each Sunday with him, without supervision.
In these proceedings, the mother seeks orders that X spend time with her father between 10.00 am and 5.00 pm each Sunday and specified time on special occasions. She opposes any overnight time between X and the father. The mother seeks an order that she have sole parental responsibility for X.
The father seeks a week about arrangement after an introductory period of day time only then weekends.
The mother relied on affidavits by herself, her aunt, Ms D and her treating psychologist, Dr F.
The father relied on an affidavit sworn by him and affidavits of his father, Mr C, his mother Ms E and affidavits of four treating practitioners – Mr G who is the father’s treating psychologist; Dr H who is Mr B’s general practitioner; Mr J who is Mr B’s treating psychologist and Dr K who is Mr B’s treating psychiatrist.
The court was assisted by an Independent Children’s Lawyer (“ICL”) for X and by a single expert psychiatrist, Dr L who prepared a report dated 20 October 2020.
BACKGROUND
The parents physically separated on 7 September 2018 when the mother left the home at Suburb M with X and went to a refuge. The father and Mr B remained in the home. On 28 September 2018, the mother filed initiating proceedings seeking interim orders for sole occupation of the home and that the children live with her.
On 15 October 2018, orders were made for X to live with the mother and spend four hours each weekend with the father under professional supervision.
On 31 October 2018, orders were made for the mother to have sole occupation of the home and for Mr B to live with the mother. The mother moved back into the Suburb M home with X and Mr B. The father moved to a property owned by the paternal grandparents at Suburb N.
On 31 July 2019, it was agreed that X’s time with the father be supervised by the father’s brother.
In late 2019, Mr B, then aged 17 years, left the Suburb M home and went to live with the father at Suburb N.
Final orders for property settlement were made in mid-2019. As a consequence of those orders, the father purchased the mother’s interest in the Suburb M property. The father put tenants in the Suburb M property and he and Mr B have remained living at Suburb N.
In late 2020, the mother and X moved to a property at Suburb O which the mother had purchased.
In January 2021, the parents agreed that X’s time with the father not be supervised but orders were made restraining him from using the internet while she was in his care.
At the time of the hearing, the father and Mr B were living at the Suburb N property and X was spending time with the father on Sundays. Mr B also spends time with X at the mother’s home.
THE ISSUES
The mother’s case is that the father had been violent towards her and towards Mr B and that X does not want to spend overnight time with him. She contends that Mr B’s violent behaviour in the past, as a consequence of Mr B’s mental health difficulties, poses a risk to X’s safety and that violence in the home during the marriage has caused X to be anxious, have difficulty sleeping and experience night terrors. She contends that the father’s viewing of material the mother classifies as pornographic, and his life choices, pose a risk to X, both because she might be exposed to his behaviour and the amount of time he spends collecting material and categorising his collection. However, she concedes that the latter is a minor consideration.
The father’s case is that there is no risk to X in his home, either from him or from Mr B and that any risk posed by X’s anxiety about staying overnight with him is outweighed by the benefit to her of extended time. He contends that the mother’s anxieties have negatively influenced X’s anxiety about spending overnight time with him.
THE EVIDENCE OF MS P
Ms P is a psychologist to whom X was referred in mid-2021. Both parents attended sessions with Ms P in mid-2021. Thereafter, X has attended upon Ms P approximately fortnightly.
Ms P objected to producing her notes and it was agreed that she would prepare a letter outlining her therapy with X. That letter, dated early 2023, was tendered without objection.
Ms P’s therapy has been addressed to X’s anxiety, including but not limited to, anxiety at separating from her mother. That therapy is ongoing.
THE EVIDENCE OF DR L
Dr L conducted interviews in July 2020. She recommended that the parents have joint parental responsibility for X and that X not spend overnight time with the father.
In relation to X’s views, Dr L reported:
[X] clearly expressed the following:
•She wanted the amount of time she spent with her mother to remain the same
•She enjoyed the time she spent with her father and wanted to be able to spend slightly more time with him
•She liked having her time with her father supervised because she felt that he asked her too many questions and felt hassled by this
•She did not want to spend time with her father overnight as she had significant fears that she would be exposed to the violence she had witnessed from him in the past
•She had ongoing fears that her father, mother and/or brother would be involved in physical fights again in the future
X told Dr L that, before her parents separated, they “were fighting every day” but that things were calmer after the separation but she worried that things would change and “the fighting would start again”. She said that she missed Mr B.
X told Dr L that her father and Mr B “fight a lot together”. She said,
I feel calmer, I don't have to listen to fighting anymore. I felt scared someone would get hurt. [Mr B] got hurt a lot of times.
X said, “I don't get to see [Mr B] much anymore. I don't get to see Dad as much, but I wouldn't want to see Dad every day because worried he would fight”.
Her biggest worry was that if her family were living together they would fight, as “dad still fights with [Mr B]”. Her hope for her family was, “that they won't fight ever again; that they stay safe.”
Asked about her paternal grandparents, X said, “I like Grandma and Papa but they make me feel uncomfortable... they say things about mum”. Dr L did not ask her to elaborate on her answer.
Dr L reported,
When asked if she enjoyed the time she spent with her father, she stated that she did and named some of the many activities they did together, such as going to the park, engaging in physical activities and doing crafts together.
When asked if she would like to spend some overnight time with her father, [X] stated that she did not, because she was scared that there would be fighting at her father's house. She was asked to elaborate further and reported that there had been frequent fights between her father and [Mr B] in the past and also fights between her father and her mother. She described fights during which “dad would push mum against the wall” and fights during which her father would “push [Mr B] down onto the floor and bang his head against the floorboards”.
Dr L stated,
While [X] did not meet criteria for the diagnosis of a disorder, she has clearly been psychologically affected by witnessing the verbal and physical conflict and violence which took place within the family home and is anxious and fearful about this recurring.
X and Mr B were observed together and Dr L reported that X appeared to enjoy spending time with Mr B. X said that she missed Mr B when she didn’t see him.
In relation to her interview with the paternal grandparents, Dr L reported,
They seemed to express genuine concern for the well-being of their grandchildren, [Mr B] and [X], and also for their son. They were particularly concerned that [X] was only seeing her father for four supervised hours weekly and that, as a result, they too had had very limited time with [X]. They felt strongly that it would be detrimental to [X's] well-being if she were raised exclusively by her mother as they believed that her mother was too anxious and even paranoid at times, could not cope with stressful situations, found parenting hard and had demonstrated little physical affection towards the children.
Dr L summarised the evidence of Mr B’s previous mental health history from the material produced on subpoena. Because Mr B is an adult and is not a party to these proceedings, it is not necessary to set out that summary or Mr B’s statements to Dr L in relation to his own perception of his mental health, other than to note that Dr L said that he demonstrated a good level of insight into his mental health and an understanding of his treatment. Mr B told Dr L that he self-medicates with a prohibited substance and alcohol to manage his anxiety and sleep difficulties.
Of her interview with Mr B, Dr L reported,
When asked about his parents' relationship and separation, [Mr B] stated that he had first noticed his parents arguing about six years ago and believed they had stopped being friends about four years ago. He said that things got to the point where his mother was always scared of something going wrong. When asked for an example, he said she was always scared that he and his father would get into a fight.
[Mr B] reflected that his parents were quite different, in that his father had had the perfect childhood, was logical and to the point, but did not always “get it”. Despite this however, his father was very supportive and caring and was always thinking about [Mr B's] needs. He said his mother had not had the perfect childhood, in that her father had been abusive to her mother, her mother was reclusive and she (the mother) was mildly anxious, although he could talk to his mother more easily than his father.
When asked to describe each of his parents in three words or phrases, he stated that his mother was brave, strong and understanding. When asked why he had described her as brave, he stated that his mother was managing to survive her worst nightmare (referring to the separation and the subsequent events). He described his father as smart, “copes well” and “wants to make himself and his family better”.
When asked about [X], [Mr B] said that he missed her; he stated that she was his closest relation and they had shared the same experiences. When asked how he thought [X] would cope if she had to spend her time equally between their parents, he stated that he did not know, but that [X] had always had a closer relationship with their mother and was “always next to her every step of the way”. When asked about the fact that his father was only able to have supervised visits with [X], [Mr B] stated that it was “nonsense” and “not necessary” and that he believed they had occurred because “mum feared dad because he was verbally aggressive during arguments”.
In relation to the issue of family violence, Dr L stated,
I formed the opinion that the children are at a significantly reduced risk of physical or psychological harm in the care of either of their parent, compared to the risk they were exposed to during the marriage. I have based this opinion on the following:
Prior to their parents' separation the children, [Mr B] and [X] were exposed to both verbal and physical violence within the home which would have, in turn, resulted in psychological harm. This violence occurred in the following contexts:
a)Between [Mr Haward and Ms Haward], because of marital discord or due to their conflicting opinions and approaches regarding the management of [Mr B's] problematic behaviour resulting from his mental health difficulties.
b)Between [Mr Haward] and [Mr B] in the context of [Mr Haward] attempting to manage [Mr B's] problematic behaviour resulting from his mental health difficulties
c)Between [Ms Haward] and [Mr B] in the context of [Ms Haward] attempting to set limits regarding [Mr B's] problematic behaviour resulting from his mental health difficulties.
She stated,
The family violence to which [X] has been exposed has caused her psychological harm in that she has significant anxiety about being exposed to it again. For this reason, she is fearful of spending time at her father's home, particularly overnight.
I believe [Mr B] has also experienced significant psychological harm in relation to having been exposed to family violence and this seems to have both exacerbated and perpetuated his existing anxiety disorder and depression.
Dr L assessed X’s relationship with the mother as a “secure attachment” and noted that the mother was emotionally responsive to X and “they seemed to share a loving bond”.
She stated,
[X's] interaction with her father was not as playful or comfortable as the interaction with her mother but this may be attributable to the fact that [X] has only been seeing her father for four supervised hours per week for the past two years. Nevertheless, he was attuned to her needs and interacted with her in a responsive manner.
[X] and [Mr B] clearly have a loving sibling relationship and they have each expressed that they have missed each other with the current parenting arrangements
[X] expressed that she liked her grandparents but they had said things about her mother which made her uncomfortable.
Dr L said,
I do not believe that [X] would cope well with spending overnight time with her father currently, given her young age, significant anxiety about the possibility of being exposed to family violence in his care and the fact that she has only been seeing her father for four hours weekly for the past two years. If expected to spend overnight time with her father at this time, [X] may develop anxiety symptoms. However, as [X] spends more time with [the father] and she becomes more comfortable in her father's care and as she gets older, the option of spending overnight time with him, may of course, be re-evaluated.
In relation to the father’s mental health, Dr L stated,
[The father] does not suffer from any diagnosable mental health disorder. Specifically, he does not meet diagnostic criteria necessary for the diagnosis of any paraphilic disorder as per the DSM 5 (American Psychiatric Association, 2013). However, he does have a history of […] and demonstrates […] behaviour, both of which seem to have negatively impacted his marital relationship.
While these behaviours certainly do not affect his parenting capacity, it would be important that he practices these behaviours in private, as witnessing her father engaged in these behaviours may be psychologically harmful to [X], particularly given her young age.
As to the mother’s mental health, Dr L stated,
[The mother] suffers from symptoms of anxiety in the context of having had a conflictual marital relationship and exposure to family violence over several years and on a background of a possible family history of anxiety. [The mother] has good insight into her anxiety symptoms and has demonstrated an understanding of the need to seek psychological therapy when required. She is currently attending therapy regularly and seems to have developed the necessary strategies in order to manage her anxiety effectively.
Based on my psychiatric assessment, the observations and the information provided, I formed the opinion that [the mother’s] anxiety does not impact on her parenting capacity.
FAMILY VIOLENCE
Section 4AB of the Family Law Act 1975 (Cth) (“the Act”) defines family violence in the following terms:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Thus it is clear that family violence, for the purpose of the Act, encompasses violence, not only by a party to the marriage, or relationship but by any family member, including children and adult children, towards any member of the family. It is also clear that self-harm, or threats of self-harm, fall within the definition.
The father, in his affidavit, categorically denied that he has ever been the perpetrator of family violence. He maintained this stance in cross-examination. As is demonstrated below, I do not accept his denial and, in the light of all of the evidence, I am unable to say whether that denial was mendacious or whether he simply does not accept that his actions constituted family violence. Either possibility has significance when considering X’s best interests.
The father has been charged and pleaded guilty to assaulting the mother. For that reason alone, his denial that family violence occurred cannot be accepted. However, there is other evidence of the father as perpetrator of family violence.
X told Dr L about,
…fights during which “dad would push mum against the wall” and fights during which her father would “push [Mr B] down onto the floor and bang his head against the floorboards”.
The mother in cross-examination said that, when X was three years old, she witnessed an incident where the father pushed the mother against a wall and that X remembers that incident. The mother deposed that the father, on that occasion, put his hand over X’s mouth to stop her crying. When she intervened, he grabbed her, shook her and pushed her to the floor. The mother deposed that X’s sleeping difficulties began after that incident, and that thereafter X suffered from nightmares, and wanted the light left on in the night or her mother to sleep with her.
The father denies that incident occurred. However, in cross-examination, he said that there was an incident where the mother “did go against the wall” in about 2016, when he said the mother “deflected” from him and X was present.
[THE FATHER]: I was at the end of the kitchen bench, where there isn’t a lot of width between the end of the kitchen bench and the wall. I think [Ms Haward] was wanting to get around. There was enough space, I guess, to squeeze around and she decided to barge into me and I just held my ground. I held my ground and she deflected onto the wall.
[COUNSEL FOR THE MOTHER]: So she kind of bounced off you and hit the wall did she?
[THE FATHER]: That’s right.
It is not in dispute that there was an incident of physical violence between the father and the mother in early 2018. The incident arose when the mother saw a number of images on the father’s mobile phone, which X was using, of the father dressed in a mock up costume. The mother forwarded one of the images to her own phone. In cross-examination, she said that she needed proof that the picture existed because, in the past when she confronted the father about such images, he denied them. The father tried to delete the images from the mother’s phone but could not do so because he didn’t have her password. He took her phone and kept it. About a month later, the mother told the father that she intended to report to the police that her mobile phone had been stolen. She tried to leave the house and the father grabbed her and restrained her. She ran from the house and he chased her. She locked herself in her car and he banged on the windows. She got out of the car and he threw the phone on the ground then picked it up and shoved it down her chest.
In cross-examination, the father denied that the mother ran from him, screaming or that he became increasingly angry during the incident.
In cross-examination, the father minimised the seriousness of this event, saying it was just a game. He said,
... It wasn’t an anger situation. It was a frustration like a game of, you know – I – I can elaborate if you like on what happened… I viewed it more like a game, not an anger situation.
The police record of the event notes,
Under caution, [the father] made certain admissions in police presence stating “I grabbed her with my hands and came towards her. I don’t know what I’ve done wrong. I just grabbed her” and “I only chased her until she screamed”…
Dr L reported,
[The father] stated he did not have a criminal record. He did, however, refer to an incident which took place [in early] 2018 during which [he and the mother] had an altercation about their mobile phones. [The father] admitted that he touched and grabbed [Ms Haward] but stated he did not think his actions would have caused her any undue fear.
The father was charged with assault. The facts to which the father pleaded are in evidence. Those facts include that he grabbed the mother; that he chased her to the boundary of their property as she was screaming and that he “forcibly shoved the mother’s phone down the front of her top.”
The father obtained a report from a psychologist, Ms Q, upon which he relied in relation to sentencing. In that report, Ms Q stated,
On the day of the offence, [the father] reportedly had a discussion with his wife, once again requesting that she delete the photo, as he was afraid it would damage relationships with his deeply religious parents. After this conversation, [the father] recalls his wife passing a comment to suggest that she had been videotaping their conversation and was going to publicise his confession. [The father] became increasingly angrier and commenced “frisking” (patting down) his wife for the device which she alluded to using to tape him. [The father] reported that his wife ran from him screaming, and he gave chase. [The father] acknowledged that he grabbed his wife’s arm, although he denied any intent to harm or scare her. [The father] noted that he stopped chasing his wife after realising that she was afraid, and soon after the police attended his house.
Ms Q also recommended, inter alia, that the father engage in therapy that addresses domestic abuse and that he participate in individual-based therapy to address anger management.
He pleaded guilty to the charge of assault. An Apprehended Domestic Violence Order (“ADVO”) for the protection of the mother was made for a period of a year.
They all remained in the home. The mother complained to the police about the father’s subsequent verbally aggressive behaviour towards her but was told that there was insufficient evidence to prosecute him for breaching the order.
Treating professionals have referred to aggressive behaviour by the father.
The mother’s treating psychologist, Dr F, gave evidence that during a conference in late 2016 with the father and the mother and Mr B and X about developing a safety plan to deal with Mr B’s behaviour, the father became aggressive towards her. She deposed,
111.This meeting was traumatic for [the mother] and for me but mostly for [Mr B]. [The father] became verbally and physically abusive towards me, because I mentioned that the altercation (between [Mr B] and the father in [late] 2016) was D/V, and that it was wrong to provoke his son. I added that it was a danger to all at home with [X] witnessing this very aggressive and traumatic altercation.
112.[The father] was intimidating and controlling and not at all focused on what was in his children’s best interests. [He] raised his voice at [Mr B] and I; pointing his finger at me with a glaring/fixed stare to threaten, and bully me. He the stood up, at a little distance from me and shouted loudly when I said I was going to call Security, provoking me to do that.
In cross-examination, the father conceded that X was present during this encounter and crying.
The father denied that he was aggressive towards Dr F and said that Dr F was the aggressor. I do not accept his evidence. In cross-examination, Dr F said that the incident was the most frightening experience in all her years as a therapist and that she wondered what situation might arise in the home if this was the way he reacted with her. I accept the evidence of Dr F.
Records produced by R Health Service (“R Health Service”) note that, in mid-2018, in a meeting with the mother, the father and a social worker, Ms T, violence was discussed. Ms T noted,
[The father] noted that he is “quite angry” about how the focus always seems to go to the “brief and isolated” incidents of aggression from him towards his wife. He made it plain that these incidents were towards his wife only and not witnessed by the children…
[The father] stated that he only resorted to verbal aggression with [Mr B] in total frustration as [Mr B] continued to be “manipulative and not compliant with his responsibilities”.
Of significant concern is the history of violent interaction involving Mr B and the father and related to Mr B’s mental health. There is a clear contrast between the father’s behaviour towards Mr B and that of the mother. There is no evidence that the mother has resorted to physical violence when dealing with Mr B.
The mother’s evidence about this behaviour was not challenged and it’s necessary to have an understanding of what occurred in order to assess both the mother’s concerns and X’s anxieties.
The mother deposed that, in 2013, Mr B, in the kitchen, was upset about an issue at school. He grabbed a knife and held it over his wrists saying “I just want to […] myself”. X was present and cried. Mr B was able to be calmed and the knife removed.
Later in 2013, there was an altercation between Mr B and the mother when he refused to leave a video game, threw the remote control on the floor, shouted and pushed the mother. X was present and crying.
In 2014, when X was present, Mr B threatened to seriously harm himself. X cried and hid behind the mother who removed her to another room and locked the door, while talking to Mr B and trying to calm him.
Also in 2014, Mr B told fellow students that he was going to seriously harm himself and, on another occasion he again threatened to seriously harm himself.
Notes produced by R Health Service of an assessment by Dr S involving Mr B and both parents record,
Father admitted 3-4 events of DV of which police were involved
He reported 12 months ago an altercation with [Mr B] where [Mr B] was verbally abusing him and then [the father] punched [Mr B] in the face a few times leading to a black eye.
(As per the original)
The father in cross-examination denied that he had punched Mr B and given him a black eye. He said that they had wrestled with each other for play. He denied that he said those things to Dr S. The transcript records the following passage:
[COUNSEL FOR THE MOTHER]: Did you tell [Dr S] that?
[THE FATHER]: No, not in those words, no. I can tell you what I told him.
[COUNSEL FOR THE MOTHER]: Did you tell him that you punched [Mr B], giving him a black eye?
[THE FATHER]: No.
[COUNSEL FOR THE MOTHER]: Did you punch [Mr B], giving him a black eye?
[THE FATHER]: No.
[COUNSEL FOR THE MOTHER]: Then how did [Mr B] get a black eye?
[THE FATHER]: He got it while we were wrestling.
[COUNSEL FOR THE MOTHER]: So …?
[THE FATHER]: A – a knock, an elbow.
[COUNSEL FOR THE MOTHER]: Were you having an altercation with [Mr B] at that time?
[THE FATHER]: A wrestling altercation.
[COUNSEL FOR THE MOTHER]: Was [Mr B] verbally abusing you?
[THE FATHER]: He was. He was, yes.
[COUNSEL FOR THE MOTHER]: And you punched [Mr B] in the face leading to a black eye, didn’t you?
[THE FATHER]: No. No, I didn’t.
[COUNSEL FOR THE MOTHER]: Do you have any explanation for why [Dr S] might have reported you as saying you punched [Mr B] in the face a few times leading to a black eye?
[THE FATHER]: I don’t know where he has gotten the word “punch” from. My words to him were, “I gave him a black eye.”
I do not accept the father’s evidence. It is more likely that the version recorded at the time by Dr S, a disinterested professional, is more accurate than the father’s recollection almost five years later.
In the same session, Dr S records that the mother told him there had been “several fist fights” between [Mr B] and the father and [Mr B] “reporting he let his father pin him to the ground and has been verbally abusive towards father / bidirectional verbal abuse”.
I accept the mother’s evidence that in mid-2016, there were a number of physical altercations where the father sat on Mr B and pinned his wrists to the floor. I do not accept the father’s explanation that these occasions were play wrestling.
In late 2016, in the course of an argument, Mr B threatened to kill either himself, according to the mother, or his father, according to the father, brandishing a knife. The father said to Mr B “Do it”. X was present. The father in cross-examination said, “I think she probably would have been crying. I can’t recall, but she probably would have been crying”.
The mother locked herself and X in a bedroom and called police. Mr B came upstairs to her and asked her to call an ambulance because he hurt himself and was afraid he would further, seriously harm himself. Mr B was taken to hospital for psychiatric evaluation and to treat his wounds.
The father, in cross-examination, initially denied that Mr B had hurt himself until he was referred to his own affidavit where he deposed to the injury. He said in cross-examination that he did not believe that it was “fully appropriate” that the mother called an ambulance on that occasion and agreed that he had called her a “traitor”.
In mid-2017 Mr B and the father fought when Mr B wanted to go out with friends and the father tried to stop him. The father, in cross-examination, said that “I restrained him by just sitting on top of him and just holding his arms down.” X was present. The mother called the police who attended and broke up the fight. Mr B was taken to hospital.
The mother deposed to a fight between the father and Mr B in late 2017. The father denied that assertion and said “I don’t believe I ever had a fight with him… I believe ever”. He agreed that Mr B has said they fought.
Records produced by R Health Service note that in a meeting in mid-2018 the mother said that Mr B had forcefully pushed his mother against a wall and that Mr B had “cornered both [the mother] and his little sister in a room…”
In 2018, in the course of an altercation between Mr B and the father, Mr B received a black eye.
Police records note that in mid-2018 they were called to the home by the mother when Mr B was threatening to seriously harm himself. Mr B was taken to hospital.
The notes of Mr G, the father’s therapist, indicate that in late 2018 the father spoke of wrestling with Mr B who was “defiant”. The transcript records,
[COUNSEL FOR THE MOTHER]: You told [Mr G], didn’t you, [that in late] 2018 that you and [Mr B] have a number of wrestles; is that right?
[THE FATHER]: That sounds right.
[COUNSEL FOR THE MOTHER]: You described [Mr B] as defiant?
[THE FATHER]: Yes.
[COUNSEL FOR THE MOTHER]: You had a fight with him about going out with his friends?
[THE FATHER]: Yes.
[COUNSEL FOR THE MOTHER]: And you held him down?
[THE FATHER]: Yes.
[COUNSEL FOR THE MOTHER]: So is that holding him down, is that what happened; you held him down?
[THE FATHER]: I – I guess you could say it was like pinning him down, yes. It was like a wrestling when I was on top of him.
[COUNSEL FOR THE MOTHER]: So you were just playing with him. It was part of a game, was it?
[THE FATHER]: It wasn’t a game.
In early 2019, when Mr B was living with the mother and X at Suburb M, he snorted a medication, became angry with the mother and demanded more. The mother called an ambulance and Mr B was taken to a psychiatric facility. Records produced by Mr B’s then therapist, Dr U, refer to Mr B “trashing the garage”.
In early 2019, Mr B took alcohol from his father’s house to school where the police were called by a neighbour.
In the same month, neighbours called police to the home because the father and Mr B were shouting and in the course of the altercation the garage door was damaged by Mr B kicking it.
In early 2020, Mr B showed the mother recent injuries on his arm from harming himself and told her that he had lost blood as a result of the injuries.
In late 2021, Mr B drank several bottles of beer, smashed furniture, threw damaged furniture parts through a window, smashing the window and smashed beer bottles in his room. X told the mother that she had seen the broken furniture and that she assumed that Mr B had been angry. The father in cross-examination said that he wasn’t aware whether Mr B was drinking on that occasion.
Mr B uses a prohibited substance and has done so for many years. The father permits Mr B to use the prohibited substance at home. In mid-2020, Mr B told his psychologist that he had used the prohibited substance every evening for a year. Mr B has also told his psychologist that he views pornography daily.
In early 2022, Mr B reported that he had been verbally abusive towards the father after drinking alcohol. He also reported that he suffers sleep disturbances and hallucinations during the night. He has not consistently attended his mental health professionals.
In late 2022, Mr B was involved in an altercation in a nightclub where he was punched and arrived home late at night with blood on his clothes and bruising. Dr F in cross-examination said that the mother had discussed this event as an example of what she feared might happen when X was staying overnight in the father’s home.
I accept that X has been exposed to family violence from the father towards her mother; from the father towards Mr B and from Mr B towards himself and both of his parents.
CONSIDERATION
This is a matter where the primary considerations set out in s 60CC(2) of the Act are to the forefront. Those considerations are:
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.
(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).
X has already been exposed to violence perpetrated by both her father and her brother. I accept the unchallenged evidence of Dr L that X has suffered psychological harm from the verbal and physical conflict and violence that took place in the family home before the mother and X left and that X is anxious and fearful about violence reoccurring.
In evidence in chief, for the first time, the father proposed that, if X were to stay overnight with him, he would ensure that Mr B was not present. It is to be remembered that the father proposes a week about arrangement so the effect of that proposal is that Mr B would leave home for every second week. The father conceded that he had not discussed that proposal with Mr B or with Mr B’s treating professionals and that such an arrangement might be both distressing for Mr B and harmful to him and that it might be harmful to X’s relationship with Mr B. The father said he would tell Mr B that the court required him to leave the home and that he, the father, was obliged to comply. When asked whether he would tell Mr B that this was his proposal, he said “I may not. I may – I may not. I don’t know. I would have to decide that later on”.
The father and Mr B live in the Suburb N property which is owned by the paternal grandparents. Both gave evidence and neither was asked if he or she would exclude Mr B from living there. The father does not own or lease the Suburb N property and has no legal ability to exclude Mr B from it.
I do not consider that the father’s proposal is either reasonable, considered or practicable.
I accept the evidence of Mr B’s treating professionals that, at the present time, his mental health has improved, but none of his doctors suggests that his mental health might not again decline.
There is no evidence before me that the father has taken steps to address his own violent behaviours. I do not accept his evidence in cross-examination that this aspect of his behaviour has been addressed in his therapy with Mr G. There is no mention of anger as a presenting issue in the referral by the father’s general practitioner to Mr G. Mr G has prepared two reports and in neither report does he mention the father’s anger and violent behaviour as an issue to be addressed. When asked in cross-examination about whether that was an aspect of the therapy, Mr G said there was no focus on anger management in the therapy.
Before me, the father maintained his denial that he had been violent, either towards the mother or towards Mr B. Perusal of the material produced on subpoena from police and from Mr B’s treating practitioners reveals that he has not, in the past, accepted his actions as violent.
I accept as valid the mother's concern that, in the future, if X is staying overnight in the father's home, there is a real risk that there will be altercations between Mr B and the father of the kind which have occurred before and that the father's reaction to Mr B's behaviour will be violent as it has been before.
Dr L in her oral evidence said that before any overnight time for X with the father is considered, the father would need to complete the therapy recommended by Ms Q.
I can have no confidence that the father understands the nature and effect of his actions or that he will not continue to behave in future as he has in the past.
Although I am required to give greater weight to the need to protect X from psychological harm, I am also required to consider the benefit to her of having a meaningful relationship with both of her parents.
In cross-examination, the father said that he and X have a close relationship; a loving relationship and a relationship that is very meaningful to both of them.
That relationship has been able to be maintained even though since October 2018 it has been fostered by X spending initially only four hours a week with the father under supervision and since January 2021, for five hours each week unsupervised.
It is not necessary for X to spend overnight time with her father to maintain their existing meaningful relationship.
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;
X clearly told Dr L that she does not want to spend overnight time with the father. I accept the evidence of Dr L that,
Given [X's] age, developmental stage, level of understanding and distress demonstrated when expressing her fear of being exposed to future violence within the family context … her view should be given substantial weight.
The mother deposed that over the past 18 months X has said to her on numerous occasions,
Dad has said that the pink room (the spare room at the [Suburb N] property) is for me when I start sleeping over. Don’t Dad and [Mr B] know that I am not going to be sleeping there?
There is no evidence that X has ever told anyone, including her father, that she would like to stay with him overnight.
I accept that X’s view is that day only contact with her father should continue.
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);
I accept the evidence of Dr L that X has a secure attachment to her mother and a loving relationship with both of her parents and with Mr B.
In relation to the paternal grandparents, Dr L reports X as saying that she “likes” them but that they have said things about her mother which make her uncomfortable. I note that both grandparents in cross-examination, denied ever saying anything derogatory to X about her mother. I accept that is what they believe.
The paternal grandparents live on a property in the V Region. They travel to Sydney at least once each fortnight and on occasions stay overnight at the Suburb N property with the father and Mr B.
They do not regularly attend on the occasions when X spends time with her father on Sundays. Each of them said in cross-examination that they don’t want to intrude on the father’s time with X. The paternal grandmother said that she last saw X on her birthday in 2022. The paternal grandfather said that he has seen X about twice every year since the parents separated.
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;
The father has never been to X’s current school. There is no restraint upon his doing so and he is provided by the school with all information available to parents.
He did not attend when X was performing on open day in 2022 although the mother told him about it.
He did not attend the “Meet the Teacher” event in early 2022.
He did not attend parent/teacher interviews in 2022.
He did not attend open day in mid-2022.
He did not attend the end of year assembly.
Other than attending an initial interview with Ms P in mid-2021, the father has had no contact with her since. He has not sought to obtain Ms P’s views about his proposals for X to spend overnight time with him.
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;
Dr L identified the detrimental effects for X if she were required to spend overnight time with her father against her expressed wishes.
Dr L also noted in cross-examination that X had developed anxiety symptoms which had not been observed when she saw X in 2020. Having read the material recently filed, she said that X’s separation anxiety was a new feature.
Further, I accept the evidence of the mother that X’s sleep difficulties and night terrors have abated since she moved away from the Suburb M home. The mother’s fear that those difficulties might be triggered again if X stays overnight at the father’s home is reasonable.
There is no evidence that there is any positive benefit for X in spending overnight time in her father’s home. Dr L did not, in her report, identify any benefit and neither was she asked in cross-examination to identify any benefit. There can be no assumption that overnight time with a parent is automatically beneficial. There must be evidence that there is a benefit to be gained.
I also accept, as Dr L stated in her report that, X, may, in the future, want to spend overnight time with her father. However, in cross-examination, she agreed that would be a “huge step” and she agreed with the proposition put by the ICL that such a step should not be undertaken without further assessment.
Dr L, in cross-examination, said that it would be detrimental to X to spend overnight time with her father if she is expressing concerns and fears about doing that. She also said that it is possible that X will blame her mother if she is forced to spend overnight time with her father and that would negatively affect their relationship. Alternately, she said, X might be resentful of her father and thus their relationship would be affected.
Dr L said that if X were to spend a night with her father and anything untoward occurred it would be very difficult to ever persuade her to go again.
In cross-examination by counsel for the mother, Dr L said X’s anxiety will be exacerbated if she is forced to spend overnight time with her father against her wishes. She agreed that, if X’s anxiety was heightened, then increasing the sessions with Ms P, to address X’s anxiety, would be disruptive to X’s schooling and that having to increase therapeutic involvement so that X can cope with something she doesn’t want is “not necessarily a good thing”.
Dr L confirmed that it was her opinion that X’s views should be given substantial weight, all the more so because X is now eleven years old. She was nine years old when Dr L saw her in 2020.
Dr L said that X’s therapist should be involved in any plan for her to stay overnight with her father and the therapist’s opinion sought about whether that was appropriate.
Asked whether she could confidently predict a time in the future when X would be ready to spend overnight time, Dr L said “No”.
The mother gave evidence that, if X wanted to stay overnight with her father, she would facilitate it and I accept that she would.
However, I am unable to predict whether that will ever happen or, if it does, when that might be and, for the reasons given by Dr L, I am not prepared to speculate. I do not propose to make any order for X to spend overnight time with her father.
The time that X spends with Mr B is not confined to the time she spends with her father. Mr B spends time with X independently of his father.
The paternal grandparents would like X to spend overnight time with them but there is no evidence that X would cope or that she has any wish to do so. X has anxiety about separating from her mother which is being addressed by Ms P in fortnightly therapy.
In 2022, the combined efforts of the mother, X’s teachers and Ms P persuaded X to go to the school camp but only on the basis of the mother’s assurance that she would come and collect X if she wanted to go home. X stayed one night. The mother in cross- examination said that X has refused to go on sleepovers to the homes of her friends. Ms P reported that X’s anxiety was such that she had difficulty getting out of the mother’s car and going into school.
Ms P reported that X is making progress. I do not propose to do anything which might jeopardise that progress.
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; and
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Both parents are capable of providing for X’s physical needs.
I have concerns about the father’s ability to provide for her emotional needs having regard to his insistence that she spend overnight time with him against her wishes and to his refusal or inability to accept that his violent actions towards her mother and her brother are a factor in that attitude on her part.
any family violence involving the child or a member of the child’s family;
This consideration has been dealt with earlier in these reasons.
SCHOOL HOLIDAYS
The father wants X to spend half of the school holidays with him. Consistently with my decision about overnight time, that order will not be made.
I have considered whether to make an order that X spend more time with the father in school holiday periods but I do not propose to make such an order. I am confident that the mother will facilitate additional time if X wants it and I do not intend to risk imposing on X more time with her father than she can tolerate.
PARENTAL RESPONSIBILITY
The presumption in relation to equal shared parental responsibility is rebutted by the findings of family violence perpetrated by the father against the mother.
When the mother and X moved to Suburb O in late 2020, having contracted to purchase the property in late 2019. X was enrolled at school in Suburb M. The mother’s solicitors wrote to the father’s solicitors on 3 August 2020, asking for his agreement to remove X from the Suburb M school and enrol her at a school close to her home. The father refused.
The mother’s solicitors wrote again on 23 November 2020, after the mother and X had moved. They said that X was travelling hours each day to and from school; that she was falling asleep in the car; her night time sleep was disrupted; she was tired; the time she had for homework was curtailed; she was anxious about being late and that, because of the time spent travelling, X could not participate in activities with friends in her local area.
The father maintained his refusal to allow X to be enrolled at a school close to her home. The mother was driving X to and from Suburb M. There was no offer of assistance from the father.
The mother filed an application for an order that she be permitted to enrol X at a local school. When the application came before the court in January 2021, the father consented.
On 21 June 2021, the mother’s solicitors wrote to the father’s solicitors in relation to sports lessons for X. The mother proposed that X attend at a local centre where some of her friends already attended. The father did not agree unless X had lessons at a centre at Suburb M.
There was no need for the mother to seek the father’s approval. Parental responsibility does not extend to day to day activities that do not interfere with the time a child spends with the non-resident parent. However, the father’s refusal to agree causes concern about how he might react in the future if his agreement is required in relation to another issue.
There is no agreement between the parents about where X will attend high school in 2024. In cross-examination about his proposals for X to spend alternate weeks with him during school terms, the father said that he expected X to be enrolled in a school that was half way between his home and the mother’s home. Setting aside the disadvantages to X of attending a school where none of her class mates are living near her home so that they can socialise after school and at weekends, and that it would be X who would endure the consequent travelling, the father’s evidence demonstrates that his views about where X goes to High School will depend on his convenience, rather than her best interests.
The father in cross-examination agreed that it would be “unfortunate” if he and the mother could not agree on a high school for X and a further application had to be brought.
I can have no confidence that there will be agreement.
The major long term issues that require parental agreement are defined in the Act as:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
The evidence does not demonstrate that there are likely to be issues related to matters other than education but it is appropriate, in the circumstances of this case, that the mother have sole parental responsibility for decisions relating to X’s education.
COSTS OF THE ICL
The ICL seeks an order that each parent pay half of the costs incurred in the representation of X, a total of $16,030.25. Neither parent agrees.
Each parent has spent in excess of $250,000 in legal fees in relation to this litigation. It is reasonable that they also each make some contribution to the costs of their daughter’s representation and I propose to order that they each pay $5,000.
I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rees. Associate:
Dated: 9 February 2023
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