HAYES & HAYES

[2020] FamCA 1057

FAMILY COURT OF AUSTRALIA

HAYES & HAYES [2020] FamCA 1057

FAMILY LAW – Parenting – where the parties agreed during final hearing for the mother to have sole parental responsibility and for the children to live with her – where the children have history of unhealthy alignment with the father – where the children presently reside with the mother – where the father accepted that the children should continue to live with the mother – where the mother contends that the father should have only supervised time with the children until they turn 18 – where there are significant concerns about the father’s capacity to parent, his mental health and his use of substances – where the children wish to spend time with the father – where supervised ordered to continue until oldest child turns 17

FAMILY LAW – EVIDENCE – where father sought to rely upon transcript of a recording made by child the subject of the proceedings – where mother contends transcript should be rejected on grounds of relevance, for contravention of Surveillance Devices Act 2007 (NSW), s 7 and s 138 of the Evidence Act 1995 (Cth) or under Court’s powers in Division 12A of the Family Law Act 1975 (Cth) – where held Court was unable to find the transcript had no probative value but should be rejected under powers in s 69ZX applying the principles in s 69ZN – where held inappropriate to make any finding that a child the subject of the proceedings had contravened Surveillance Devices Act 2007 (NSW), s 7 in circumstances where the child was driven to collect evidence on behalf of the father under influence of father’s narrative of victimhood – evidence rejected

Corporations Act 2001 (Cth)
Evidence Act 1995 (Cth) ss 55, 128, 138
Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61C, 61DA, 65D, 65DAB, 69ZN, 69ZT, 69ZX, 102NA(2)
Surveillance Devices Act 2007 (NSW) s 7

B & B (1993) FLC 92-357
Banks & Banks (2015) FLC 93-637
Bant & Clayton (2019) FLC 93-924
Bondelmonte v  Bondelmonte (2017) 259 CLR 662
Britt & Britt (2017) 56 Fam LR 526
CDJ v VAJ (1998) 197 CLR 172
Champness & Hanson (2009) FLC 93-407
Godfrey & Sanders (2007) 208 FLR 287
IMM v The Queen (2016) 257 CLR 300
In the Marriage of A (1998) FLC 92-800
Johnson & Page (2007) FLC 93-344
Jollie & Dysart [2014] FamCAFC 149
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
M v M (1988) 166 CLR 69
M & S (2007) FLC 93-313
Nagel & Clay (2020) 60 Fam LR 550
Napier & Hepburn (2006) FLC ¶93-303
N & S and the Separate Representative (1996) FLC 92-655
Potter & Potter (2007) FLC 93-326
R & R (Children’s Wishes) (2000) FLC ¶93-000
Sahrawi & Hadrami [2018] FamCAFC 170
Sigley & Evor (2011) 44 Fam LR 439
Stott & Holgar [2017] FamCAFC 152
Tibb & Sheean (2018) 58 FamLR 351

APPLICANT: Ms Hayes

RESPONDENT: Mr Hayes

INDEPENDENT CHILDREN’S LAWYER: Ms Newland

FILE NUMBER: PAC 1553 of 2018

DATE DELIVERED: 11 December 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 29 June – 3 July 2020 & 22 July 2020 – 23 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Longworth

SOLICITOR FOR THE APPLICANT: Swaab Attorneys

COUNSEL FOR THE 

RESPONDENT:

Mr Milanovic

SOLICITOR FOR THE RESPONDENT: David Leamey Solicitor & Barrister

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Rebehy

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: JLM Family Lawyers Pty Ltd

Orders

1. All previous parenting orders in relation to the children X born … 2004 and Y born … 2007 (“the children”) be discharged.

2. The Application – Contravention filed by the father on 13 May 2019 be dismissed.

By consent The Court Orders

1. That the mother shall have sole parental responsibility for the children

2. That the children live with the mother.

The Court Orders

1. That the children spend time with the father as follows:-

   (a)       From 10.00 am to 4.00 pm on the third Sunday of each month;

   (b)       On Father’s Day from 10.00 am to 4.00 pm;

   (c)       On the children’s birthdays from 4.00 pm to 8.00 pm;

   (d)       On 26 December each year from 10.00 am to 4.00 pm;

2. That the time the father spends with the children pursuant to Order 5 above:

   (a)       be supervised by way of a private supervision agency until 27 August 2021; and

   (b)       thereafter continue unsupervised.

3. That the father be solely responsible for the costs of supervision referred to in Order 6.

4. That for the purposes of supervising the father’s time with the children, the parents are to reach agreement in writing as to the agency to provide the supervision and failing agreement B Contact Centre shall supervise the father’s time with the children and thereafter both parents shall do all things necessary to facilitate the father’s supervised time with the children to commence as soon as practicable.

5. The father shall collect and return the children at the commencement of his time from a public place nominated by the mother in writing and for the purposes of the father’s time being supervised, the supervisor shall collect and return the children to the mother’s residence.

6. The father is restrained from contacting the children by any electronic means (including but not limited to telephone, SMS, email, Instagram, Whatsapp, Signal, Facetime or Skype) during school hours and after 8.00 pm, including on the days he spends time with the children.

The Court Further Orders by Consent

1. That the father has leave to provide to his treating clinical psychologist and current General Practitioner a copy of the Single Expert report prepared in these proceedings by Dr P and dated 7 June 2019.

2. That:

   (a)       The parents shall communicate by way of a web-based parenting communication application made for the purpose of separated families and within 7 days of the date of these Orders, the mother is to source such communication application and invite the father to access that application and both parties shall do all things necessary so they both have full use of the communication application.

   (b)       The father’s communications shall be limited to issues relating to the children and it is noted that this order does not vary an operative ADVO.

3. That the mother shall advise the father in writing via the nominated parenting application pursuant to Order 13 herein of any long term decisions she may be required to make for the children.

4. That within 14 days of the date of these Orders, the parents shall each provide to the other in writing their current residential address and shall keep each other advised of any change in their residential address as soon as practicable and not more than 24 hours after any such change.

5. The parents are restrained from speaking about the other parent, a member of the other parent’s family or household a derogatory manner in the presence or hearing of the children and will remove the children from the presence or hearing of any third party seeking to do so.

6. The father is restrained from drinking any alcohol, consuming illicit substances or taking prescription medication other than as prescribed, during the time the children are in his care and for 12 hours prior to spending time with the children.

7. The father is at liberty to obtain from the children’s school their school reports and school photographs, and this is sufficient authority for the school to provide this to the father.

8. The mother will continue to facilitate X attending upon his current treating psychiatrist, Dr C, or to any psychiatrist that X may be referred to by Dr C, and X shall continue to attend upon his treating psychiatrist until advised by his treating psychiatrist in writing that X no longer requires psychiatric care.

9. The mother will continue to facilitate X and or Y attending upon their current treating psychologist, Ms E, or to any psychologist that X and or Y may be referred to by Ms E, and X and or Y shall continue to attend upon Ms E or their treating psychologist until advised by their treating psychologist in writing that X and or Y no longer requires psychological care.

10. That as soon as practicable after the Court making Final Orders in this matter, the Independent Children’s Lawyer will arrange to meet with the children and explain the Final Orders to them and the mother shall facilitate such meeting upon request by the Independent Children’s Lawyer.

11. That upon the Court making Final Orders in this matter, and on the day of or the soonest possible date after the children are to meet with the Independent Children’s Lawyer, the mother is to make an appointment for X and Y with Dr C or Ms E on an urgent basis, and is to provide to Dr C or Ms E a copy of the Final Orders upon making that appointment.

12. That the mother is to provide to the children’s school and specifically the school counsellor, a copy of the Final Orders.

13. That the parents are restrained from speaking to the children about the Final Orders until after the children have met with the Independent Children’s Lawyer and Dr C or Ms E.

14. That the parents are restrained from speaking with the children or showing the children any document in relation to these proceedings.

The Court further orders that:

1. That the father:

   (a)       is at liberty to attend at the children’s school for the purposes of any function or activity normally attended by parents, upon the cessation of supervised time in accordance with these orders;

   (b)       shall provide to the mother no less than 48 hours’ notice of his intention to attend the children’s school in accordance with this order;

   (c)       shall remain no less than 10 metres from mother when present at the children’s school in accordance with this order;

2. The mother is restrained from commencing new extracurricular activities for the Children during any time the children are to spend with the father in accordance, unless the parties otherwise agree in writing.

3. That the parents are restrained from physically disciplining the children or allowing any other person to do so.

4. That the father be restrained from allowing the children to be cared for by Ms J, when otherwise in his care.

5. That should the children or either of the children require urgent medical care or be hospitalised, then the parent with care of the children pursuant to these Orders will contact the other parent by way of the nominated parenting application pursuant to Order 13 above and advise them of the location of the children or child and any diagnosis and prognosis and both parents shall be at liberty to attend upon the hospital or medical facility where the children have been admitted.

6. All outstanding parenting applications in these proceedings be otherwise dismissed.

COVID-19

1. At all times, both parties shall take all necessary steps to comply with any state and federal government orders and directions made by reason of the COVID-19 pandemic, including maintaining appropriate social distancing guidelines.

2. Without prejudice, the father may at any time determine at his sole discretion that by reason of the COVID-19 pandemic, including government restrictions, he is unable to spend any time with child specified in these Orders.

3. In addition to any statutory obligations for consultation to reach consensus about major long-term issues in relation to the child, both parties shall use their best endeavours to communicate regularly by phone, text message, email or other means, to seek agreement on the management of issues affecting the child arising from the COVID-19 pandemic.

Disputes or Variations

1. The process to be used for resolving disputes about the interpretation, implementation or enforcement of Orders 1 to 33 shall be as follows:

   (a)       The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) (“the Act”) or by the Commonwealth Attorney General; or

   (b) The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.

2. Before an application is made to a court for a variation of these Orders to take account of the changing needs or circumstances of the child or of the mother or the father:

   (a) The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Act or by the Commonwealth Attorney General; or

   (b) The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.

3. Pursuant to sections 65DA(2) and 62B of the Act, 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 the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

COSTS

1. If any party seeks an order for costs, an appropriate application to the Court may be made within twenty-eight (28) days of today’s date (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified, no order will be made as to costs.

THE COURT NOTES THAT:

1. Any application as to costs will be dealt with by way of written submissions, unless the parties request to be heard orally.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hayes & Hayes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 1553 of 2018

Ms Hayes

Applicant

And

Mr Hayes

Respondent

And

The Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is a parenting and property matter between the applicant mother, Ms Hayes (“the mother”) and the respondent father, Mr Hayes (“the father”) in relation to the children of the relationship, X born … 2004 and currently 16 years of age and Y born … 2007 and currently 13 years of age (together referred to as “the children”).

2. This judgment concerns the parenting aspect of the proceedings.

3. By the end of the trial, in summary, the parties and the Independent Children’s Lawyer (“ICL”) agreed that the children should live with the mother and she should have sole parental responsibility for them. Beyond this, the main area of debate concerned the time to be spent by the father with the children and whether it should be supervised because he posed an unacceptable risk.

4. The mother seeks orders for the father to spend professionally supervised time with the children, once every two months for a period of six hours up until the children turn 18. To justify long term supervision of teenage children, the mother relies upon allegations of risk in the father’s care, which will be discussed in detail later in these reasons. Although the father initially sought equal time, by the end of the trial he made a more modest proposal for no supervision, day time with the children only on weekends initially, with a graduated increase in time to include overnight time, and school holiday time. The ICL proposed supervision for a further six months, followed by day time only with the father, every third Sunday between 10.00 am and 4.00 pm, together with some special occasion time.

5. The parties also seek various restraints which will be detailed later in these reasons.

Background

1. The father was born on … 1973 and is currently 46 years old.

2. The mother was born on … 1975 and is currently 45 years old.

3. The parties commenced cohabitation in 1999 and were married on … 2002.

4. X was born … 2004.

5. Y was born … 2007.

6. In December 2010, the Australian Securities and Investments Commission (“ASIC”) contacted the father in respect of alleged contraventions of the Corporations Act 2001 (Cth) (“the Corporations Act”).[1]

   [1] Father’s Consolidated Electronic Court Book, Volume 2, p. S0431 - S0432.

7. In 2012, the maternal grandfather was diagnosed with cancer.[2]

   [2] Father’s Consolidated Electronic Court Book, Volume 1, p. R0130.

8. In 2012 the parties sold their then home at Suburb D to pay for the father’s legal costs in relation to proceedings commenced by ASIC. They moved to a rental accommodation at G Street, Suburb F NSW (“the matrimonial home”).[3]

   [3] Above n 1, p. S0287.

9. On 2 July 2013, the father’s registration as a finance professional was cancelled.[4]

   [4] Ibid, p. S0432.

10. In late 2014, ASIC commenced criminal proceedings against the father.[5]

    [5] Ibid.

11. On 3 June 2016, the father pleaded guilty to several offences under the Corporations Act. It is not necessary to set out the detail of those offences.[6]

    [6] Ibid, p. S0433.

12. On … 2016, the maternal grandfather passed away.[7]

    [7] Above n 2, p. R0009.

13. In early 2017, in the ASIC criminal proceedings, the father was sentenced to 18 months imprisonment to expire on 2 August 2018. The sentence was suspended upon the father paying a monetary sum and being placed on a good behaviour bond for a period of 18 months. The father also received bans on acting as a director or receiver and manager, and had his licence to act as a finance professional cancelled for five years. As a result he was unable to work for a period.

14. In early 2017, the paternal grandmother was diagnosed with cancer.[8]

    [8] Ibid.

15. According to the father, between February 2017 and March 2018, the mother was involved in a financial dispute relating to her late father’s estate, including a family provision claim in November 2017.

16. On the night of 16 March 2018, the parties separated on a final basis following an argument which took place at the matrimonial home.

Proceedings

1. The mother commenced parenting proceedings in the Family Court of Australia on 11 April 2018 seeking interim and final orders with respect to parenting.[9]

   [9] Mother’s Initiating Application filed 11 April 2018.

2. On 18 April 2018, the mother secured rental accommodation, being a three-bedroom property.[10]

   [10] Mother’s Affidavit filed 3 March 2020, p. 18 [75].

3. On 20 April 2018 the father was served with a Provisional Apprehended Domestic Violence Order (“ADVO”) for the mother’s protection.

4. The father filed a Response on 15 May 2018, seeking interim and final orders.

5. The matter first came before the Court on 15 May 2018 and on that day interim parenting orders were made by consent pending further orders for the children to live with the mother each Wednesday after school overnight, alternate weekends commencing Friday after school, and one half of school holidays. The children were to live with the father at all other times. An ICL was appointed and the mother was also to ensure the children were not to be in the company of the maternal grandmother, Ms H. The orders also restrained the parties from discussing the proceedings with the children, from showing the children any document associated with the proceedings and from denigrating the other party in the presence of the children.

6. On 2 June 2018, the father was arrested and charged with breaching the terms of the Provisional ADVO by sending text messages to the mother’s sister in which he sought she relay a message on his behalf to the mother.[11] The father states he pleaded guilty to the charges on 20 September 2018. A conviction was recorded but no other penalty was imposed.[12]

   [11] Father’s Affidavit filed 28 February 2020, p. 29 [135].

   [12] Ibid, p. 35 [175].

7. On 16 June 2018, a further violent incident took place between the parties when the mother was returning the children to the father’s residence. This is discussed further below under s 60CC(2)(b).

8. The matter was next before the Court on 19 July 2018 and on that day Senior Registrar Campbell made orders for the children to live with the mother and to only spend supervised time with the father on Saturday each week for a period of four hours, with such supervision to be undertaken by B Contact Centre or such other agency as mutually agreed, at the expense of the father. The paternal grandfather was to return the children to the mother at her residence at 6.30 pm.  

1. The orders provided for such time to be terminated if the father engaged in conduct such as denigrating the mother or making requests of the children relating to financial matters. The parties were additionally restrained by way of injunction from, broadly speaking, discussing or involving the children in the proceedings, drinking more than one standard drink of alcohol during the period the children were otherwise living with them or allowing the children to have contact with or be cared for by Ms J. The evidence showed Ms J was a one-time friend of both parties, was present at a number of incidents discussed in these reasons, became close to the father and gave affidavit evidence in his case.

2. The father was also restrained until further order from engaging with either of the children in any form of electronic communication. Both parties were to use their best endeavours to ensure no third party denigrated or discussed the other party or the party’s partner or family in a derogatory fashion to or in the presence of the children.

3. The father states that failing agreement between the parties, it was not until 11 August 2018 that he spent time with the children supervised by B Contact Centre.[13]

   [13] Ibid, p. 33 [158].

4. On 15 August 2018, the father filed an Application in a Case seeking review of Senior Registrar Campbell’s orders made on 19 July 2018.

5. On 2 November 2018, the father consented to the Provisional ADVO becoming final for a period of two years.[14]

   [14] Ibid, p. 35 [173].

6. On 13 December 2018, the father’s Application came before Rees J and, according to the mother, before the matter was called the father provided the mother with a positive hair follicle test result showing a positive reading for cocaine. Orders were made by consent by Rees J varying the orders of 19 July 2018, including, increasing the father’s supervised time to six hours each Saturday, finishing no later than 7.00 pm. Such time was to occur at the father’s residence, the paternal grandfather’s residence or such other mutually agreed place, with the children’s paternal cousins, Ms K and Ms L, and the children’s paternal grandmother, Ms M, at liberty to be in attendance, provided that no more than two people were in attendance other than the father, supervisor and the children at any one time.

7. The mother states the father’s time with the children increased by two hours so as to allow the children to spend time with the paternal grandmother and the father’s two nieces, but only two at a time.[15]

   [15] Above n 10, p. 5 [20].

8. The Orders also provided for the father to undergo hair follicle testing and for the parties to engage X with Ms E of GG Psychology for therapeutic support as directed by her. It was noted that Y had already engaged with Ms E and was to continue to do so.

9. Dr P was also appointed as Single Expert, with the cost of her report to be paid solely by the mother.  

10. The orders made on 13 December 2018 are the current parenting orders.

11. On 13 May 2019, the father filed an Application Contravention alleging that the mother had contravened the Orders made on 15 August 2018. This was listed for final hearing on the first day of the trial. The father did not press this application or make any submissions about it. It will be dismissed.

12. On 4 July 2019 the parties were divorced.

13. On 21 June 2019, I provisionally listed the matter for final hearing on 30 March 2020 for an estimated five days, and with s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”) to apply to any cross-examination occurring in the proceedings. Orders were also made by consent for the parties to engage in a mediation funded by Legal Aid NSW to take place by no later than 31 August 2019.  

14. On 11 September 2019, the matter was listed for mention and the parties advised that they had been unable to resolve their parenting and property disputes. The father’s application for a grant of Legal Aid for representation to comply with s 102NA remained unresolved.

15. On 6 November 2019, I confirmed the provisional final hearing dates and directed that only parenting issues were to be dealt with during the final hearing. Orders were also made by consent for the mother to contribute $300 each month towards the costs of supervision.

16. On 21 February 2020, the father’s application for a grant of Legal Aid was approved.

17. On 26 March 2020, as a result of circumstances brought about by the COVID-19 pandemic, the final hearing dates were vacated and the parenting aspect of the proceedings was provisionally listed for hearing across five days commencing on 29 June 2020. Orders were also made for the parties to co-operate to reach agreement in relation to the existing orders for the father to spend time with the children, since operational changes made to the supervision conducted by B Contact Centre meant supervision was not being conducted at their offices. 

18. The final hearing was conducted between 29 June 2020 and 3 July 2020. It was not completed on those days. The balance was adjourned part-heard for hearing on 22 and 23 July 2020.

Proposals

1. As noted above, by the end of the trial the parties and the ICL reached agreement that the children should live with the mother and that she should have sole parental responsibility for them. There was also material agreement about a range of other orders. These are detailed in the orders set out at the commencement of these reasons. The issues of supervision of the father’s time with the child and the extent of that time continued to be the subject of contest.

2. The orders which the ICL presses from Proposed Minute of Orders (Exhibit “ICL4”) are set out hereunder:

   4. That the children spend time with the father as follows:-

   a. From 10am to 4pm on the third Sunday of each month;

   b. On Father’s Day from 10am to 4pm;

   c. On the children’s birthdays from 4pm to 8pm;

   d. On 26 December each year from 10am to 4pm;

   5. That the time the father spends with the children pursuant to Order 4 above be supervised by way of a private supervision agency for a period of six months after the making of these Orders and that the father be solely responsible for the costs of such supervision.

   6. That for the purposes of supervising the father’s time with the children, the parents are to reach agreement in writing as to the agency to provide the supervision and failing agreement B Contact Centre shall supervise the father’s time with the children and thereafter both parents shall do all things necessary to facilitate the father’s supervised time with the children to commence as soon as practicable.

   …

   9. The father shall collect and return the children at the commencement of his time from a public place nominated by the mother in writing and for the purposes of the father’s time being supervised, the supervisor shall collect and return the children to the mother’s residence.

   …

   12. The father is restrained from contacting the children by any electronic means during school hours and after 8pm and on the days he spends time with the children.

   16. That should the children or either of them require urgent medical care or be hospitalised, then the parent with care of the children pursuant to these Orders will contact the other parent by way of the nominated parenting application pursuant to Order 10 above and advise them of the location of the children or child and any diagnosis and prognosis and both parents shall be at liberty to attend upon the hospital or medical facility where the children have been admitted.

3. The parties consented to part of proposed order 16, but the mother did not agree to the words “and both parents shall be at liberty to attend upon the hospital or medical facility where the children have been admitted”.

4. The orders which the mother presses from her Amended Proposed Minute of Orders (Exhibit “C”) are:

   6. The children shall spend time with the Father as follows:

   6.1. Commencing from the date of these Orders, and occurring on the first Saturday of every second month, [sic] for a period of 6 hours supervised by an agreed supervisor and failing agreement a professional supervising agency such as B Contact Centre, and;

   6.2. On the first Saturday after the following occasions, if the Children are not otherwise spending time with the Father, for a period of six hours:

   (a) The Father’s birthday;

   (b) X’s birthday;

   (c) Y’s birthday;

   (d) Father’s Day.

   In the event an [sic] events in 6.2(a)-(d) falls on a Saturday, then the children shall spend time with the Father in accordance with 6.1.

   7. That the Father otherwise have no contact with the children (being telephone contact, WhatsApp, or other).

   8. That in relation to the Father's time with the Children, the Children shall be transitioned between the parties by B Contact Centre or other agreed supervisor.

   Conditions of Supervision

   9. That the Father’s time supervised, shall be subject to the following conditions:

   9.1. be at the expense of the Father;

   9.2. occur at the Father’s home, or a mutually agreed location or, failing either of those, in a contact centre.

   9.3. be terminated in the event that the Father engages in any of the following conduct or behaviour:

   (a) The Father denigrates the Mother, or any member of her household or family;

   (b) The Father requests the children to ask the Mother about communicating with him by telephone or SMS;

   (c) The Father appears to be affected by alcohol or drugs (whether illicit or prescription).

   …

   Other Orders and Injunctions

   11. That the Father and Mother be restrained by way of injunction from the following:

   …

   11.3. allowing the children to have contact with all [sic] be cared for by Ms J.

   12. That the Father is restrained from attending the Mother's residence or entering the Mother's apartment or apartment

5. I note here, that during her cross-examination by counsel for the ICL, the mother acknowledged that her children and Ms J’s children attend the same school, so some contact was likely. For that reason, I understood that the mother ultimately agreed that her real concern to which the proposed restraint was directed was the possibility that the children may be cared for by Ms J.

6. I also note here, that at the commencement of the hearing, the mother sought orders for sole parental responsibility, and for the children to live with her, but different orders for the children to spend time with the father which embraced the possibility of unsupervised time, as set out in her Case Outline dated 6 April 2020:

   6. That the children shall spend time with the Father as follows:

   6.1 Commencing from the date of these Orders and continuing until the Father has provided to the Mother 4 consecutive hair follicle drug test results in a 12 month period evidencing a negative result for illicit substances and non-prescription medication, each Saturday for a period of 6 hours supervised by an agreed supervisor and failing agreement a professional supervising agency such as B Contact Centre.

   6.2 Commencing from the first Saturday after the Father has provided to the Mother 4 consecutive negative results for illicit substances referred to in paragraph [6.1], and continuing each Saturday thereafter from 9am to 5pm unsupervised.

7. During the course of the final hearing the mother submitted the Amended Proposed Minute of Orders which became (Exhibit “C”, above at [51]) in which she changed her position about time with the father, as can be seen on Order 6, resiling from the possibility of any unsupervised time. The mother, also no longer pressed for any requirement for drug and alcohol testing, on the basis that she sought indefinite supervision. I note here that the father consented to the ICL’s proposal to undergo testing prior to the commencement of any unsupervised time.

8. These amendments to the mother’s proposals were prompted in part by evidence of events on 1 November 2019, and the days thereafter, the details of which came to light when access was given to the mother on the first day of trial to records produced under subpoena by N Hospital (“N Hospital”). As will be detailed later in these reasons under s 60CC(3)(f), the father was taken to N Hospital by ambulance after ingesting Valium and scotch whiskey together. The father made no mention of this serious incident in his Trial Affidavit. I return to this incident and its implications below.

9. The orders which the father presses from his Proposed Minute of Orders (Exhibit “11”) are:

   5. The children shall spend time with the father on the following:-

   a. Commencing on the first weekend after the making of these orders from 10am to 5pm on Saturday for 5 weekends; thereafter

   b. from 10am Saturday to 5pm on Sunday every second weekend 5 times; thereafter

   c. from after school on Friday until 5pm on Sunday each alternative weekend; and

   d. Starting in the week commencing 1st November 2020, and thereafter each second week for one night on Tuesday or Wednesday night from immediately after school until the commencement of school the next day and if there is no school, from 5pm until 9am the next day.

   e. On each of the children’s Birthdays for two hours on a school day and 4 hours if it is not a school day.

   f. Father’s Day from 7pm the night before until the start of school on Monday.

   g. Father’s Birthday from 9am to 6pm unless it is a school day in which case from immediately after school until the commencement of school the next day.

   h. For an additional 3 nights during term 1, 2 & 3 holidays added to the first weekend after school breaks up for holidays when the children are next due to spend time with the father.

   i. During the Christmas School holidays, the children are to spend two additional periods of 4 nights with the father, to be appended to an existing weekend that the children are due to spend time with the father as agreed by the parties in advance and in the absence of agreement, then the first to be on the first weekend after school breaks up for holidays when the children are next due to spend time with the father and the second period to be the first weekend in January that he [sic] children are due to spend time with the father.

   6. For the purposes of appending additional time with the father during school holidays the time is added to the end of the existing weekend time.

   7. In 2020 Holiday time is suspended and commences in December 2020.

   8. Changeover point for the purpose of father’s time with the children shall at the children’s School [sic] and on non-school days at a mutually agreed location. The father shall attend changeover personally unless the children make their own way.

   …

   11. The mother and the father shall ensure any item of clothing worn by the children, or otherwise in the children’s possession at the commencement of their time with the children, shall be returned with the children at the conclusion of such time, the children can have their own clothing and items at the residence of the mother and of the father.

   12. The Mother and the Father are to ensure that any prescribed medication is administered to each respective child during the time they spend time with the children and they must follow all directions of the children’s Medical Practitioners. To facilitate this Order,

   (a) The mother is to ensure that any medication for the children’s use is to be handed over during the changeover and the Father shall return the unused medication(s) at the conclusion of his time with the children.

   (b) The Mother will keep the Father informed of Medical Practitioners instructions/Medication Requirements by sending the Father an email the night before the Father is to spend time with the children.

   13. That in the event of either parent or any other person taking the children on holiday outside the Sydney metropolitan area they shall notify the other parent in writing not less than fourteen days prior and shall provide written Itinerary, including the starting and finishing dates and contact details for where the children and where the children [sic] will be staying during such times.

   14. The mother and the father are each restrained from consuming alcohol and/or illicit drugs when the children are in their care, and shall not consume alcohol for a period of 12 hours prior to the commencement of their time with the children.

   15. The children may have the use and access to their own mobile phone whilst spending time with the Mother and the Father.

   …

   18. The parents are restrained from physically disciplining the children or allowing any other person to do so.

   …

   21. The mother is restrained from commencing new extracurricular activities for the Children and finalising the commencement of such activity or telling the Children that they can do such activity, if such activity affects the time that the children spend time with the father, unless the father is informed of the activities and provided such activities are not an unreasonable encroachment upon the time that the children are with the father.

   …

   24. The mother and the father are restrained from allowing or permitting the children to spend time with; communicate with; or be in the presence or sight of Ms H.

   …

   26. That each party is at liberty to attend at the children’s school for the purposes of any function or activity normally attended by parents.

   …

   28. That the Children may communicate with the parent (and their family members) with whom they are not spending time, according to their own wishes on a liberal and flexible basis, by telephone, sms, email, Facetime or Skype type video conferencing.

   29. The Mother and the father are to facilitate Face Time to provide by ensuring their usual place of residence has at all times, an active internet connection and mobile phone for use for the children to use for this purpose.

   30. The mother shall arrange for make-up time if any time that the Children is [sic] to spend with the father is cancelled or does not take place through no fault of the father.

   31. The mother shall provide to the father copies of all medical & dental reports within 24 hours of receipt of them.

Issues in dispute

1. The main outstanding issues between the parties are, as follows:

   a)Whether the father has exposed the children to family violence in respect of:

   i)incidents which have taken place with the mother in the presence of the children, some of which have led to the application or making of an ADVO against the father for the protection of the mother;

   ii)manipulating the children to become embroiled in the proceedings, and become his advocates; and

   iii)imposing his attitude of the mother onto the children making allegedly fictitious disclosures against the mother to a range of external parties not subject to these proceedings, including the authorities, noting X’s behavioural and mental vulnerabilities.

   b)Whether the father’s mental health problems combined with his consumption of alcohol and drugs, particularly with respect to the undisclosed incidents of 1 November 2019 and New Year’s Eve 2019, pose an unacceptable risk of psychological and emotional harm to the children.

   c)Whether the father should spend substantial and significant time with the children and whether the time shall include overnight time.

   d)Whether time between the children and the father should be supervised, and if so whether it is appropriate that such supervision continue in respect of each child up until each child respectively turns 18 or whether it would be appropriate for supervision for both children to continue up until X turns 18 and Y is 15.

   e)If supervision is appropriate, whether it be professionally conducted by an agency with the father to bear the associated costs alone.

   f)Whether the father should be restrained from any form of electronic communication with the children when they are not in his care up until they each turn 18, or upon X turning 18.

   g)Whether the mother should also be restrained from drinking any alcohol during the time the children are in her care and for 12 hours prior to spending time with the children as sought by the father.

   h)Whether the parties should be restrained by way of injunction from:

   i)allowing or permitting the children to spend time with, communicate with, or be in the presence or sight of the maternal grandmother; and

   ii)allowing the children to have any contact with or be cared for by Ms J.

Expert evidence

1. Dr P gave evidence as a Single Expert. Her report dated 7 June 2019, which formed part of Exhibit “ICL 2”, was based on the material filed by the parties so far in the proceedings, the Child Responsive Program Memorandums, some documents produced on subpoena and the interviews conducted, as set out at the commencement of her report. 

2. Dr P made recommendations in [258] and [260] of her report as follows:

   258. Ultimately, I think the children should remain in the primary care of the mother. If the Court could be satisfied that the father was absent from illicit substances, including abuse of prescription medication, for a period of at least 6 to 12 months, then unsupervised contact with the children would be indicated.

   …

   260. I am strongly of the view that X should continue to have treatment with Dr C. She has provided appropriate, neutral and critical care to X for many years. He is a very vulnerable young person and will need ongoing psychiatric monitoring and care. He is very anxious and easily prone to manipulation. He is less equipped to cope with conflict than most children and needs consistency and predictability in his living arrangements as well as positive, but assertive parenting.

3. I will refer to the content of the report as necessary during the course of these reasons.

4. Dr P gave oral evidence on 30 June 2020 and 22 July 2020. I will refer to this evidence as necessary in the course of these reasons.

THE CHILDREN

1. X was born on … 2004 and is currently 16 years of age, and Y was born … 2007 and is currently 13 years of age. Both children have attended Q School since kindergarten; currently, X is in Year 10 and Y is in Year 7.[16]

   [16] Above n 10, p. 3 [7].

2. The evidence is clear that X has struggled before and after separation. Y appears to be more robust, but has struggled as well.

3. At the beginning of 2014, X commenced seeing Dr C, child and adolescent psychiatrist for behavioural issues reported by his school. In a letter dated 26 February 2014, Dr C reported that X:

   …currently meets criteria for Oppositional Defiant Disorder, although worryingly he also has some features of Conduct Disorder (making threats, stealing). He also has features of ADHD (inattentive). I have commenced him on a trial of stimulated and plan to do so psychological work with him and his family around emotional expression and clear limit setting… X does not respond well to either negative or positive punishment, but it is important there is consistency across all his carers. He is waitlisted for the difficult behaviours clinic at HH University.[17]

   [17] Above n 1, p. S0464.

4. In a further report dated 1 February 2017, Dr C records that:

   1. X has been in treatment with me since 2014. I have met with Y during family sessions and I have assessed him at the request of Mr Hayes during our last appointment on 19 January 2017. I have recommended to Mr Hayes that Y receive further treatment.

   2. X has Attention Deficit Hyperactivity (combined, in partial remission). When I first assessed X he also had Oppositional Defiant Disorder. Y is currently suffering from Generalised Anxiety Disorder with a specific phobia regarding burglars in the family house.

   3. X was getting into trouble at home and school in 2014. He has improved considerably since then, such that he no longer meets criteria for Oppositional Defiant Disorder. He has been on regular stimulant medication and melatonin. The family has also worked with me and the school to support X at school and at home. These interventions have been effective in helping X to regulate his emotions and behaviour better.

   4. Mr Hayes disclosed to me in April 2014 that he had been accused of fraud and had been very stressed by this. The family needed to sell the family home and move. The stress of Mr Hayes’ legal matters, financial difficulties and moving house probably precipitated X’s oppositional behaviour at home and at school. Once interventions were in place, X’s behaviour settled considerably…

   At the last appointment I discussed Mr Hayes’ upcoming sentencing hearing with the boys. Y’s anxiety has increased greatly over the last few months… X appeared confused about the possibility of Mr Hayes receiving a custodial sentence… He appeared to be using denial as his main way of coping with the father’s legal problems. This is not a psychologically healthy or mature way to deal with stress…

   5. Mr Hayes has brought X to the majority of his appointments with me. The boys are relaxed and happy with their parents. X in particular appears close to his father. He seems more dependent on his father than most boys of his age. This is probably due to X’s emotional immaturity and that he finds it hard to confide in a large number of people, so Mr Hayes is one of his main confidants. It is also a reflection of his anxiety about what might happen to his father. Mr Hayes is appropriate and warm with both boys and he follows all recommended advice.[18]

   [18] Ibid, p. S0458-9.

5. According to the father, Dr C recommended that Y see another psychiatrist in her practice to treat his anxiety. He contends that Y did not attend a psychiatrist, due to the mother’s reluctance.[19]

   [19] Above n 11, p. 8 [37].

6. In a further report dated 19 September 2017, Dr C states that:

   …[t]he school has reported that X has fallen very far behind in his schoolwork this year. His output even when heavily supported by teachers is very low…

   On examination, X presented as more affectively flat than I have seen him before, but he is not depressed. There are no psychotic symptoms but I felt he did have poverty of content of thought. He still finds it very hard to described his emotional states. In fact he seems fairly unconcerned about being behind on his schoolwork. His mother reports it is very difficult to get him to do work at home and he can spend hours avoiding doing homework.

   I have increased his Ritalin LA 40mg daily and will review him more closely. I would be particularly concerned about the emergence of mood or psychotic symptoms.[20]

   [20] Above n 1, p. S0462.

7. It can be seen that Dr C has been an important health professional for X for a number of years. X continued to attend upon Dr C up until August 2018 when the father withdrew his consent for X to continue to receive treatment by Dr C, as noted later in these reasons

8. Dr P described X in her report at [18] in the following terms:

   X has Attention Deficit Hyperactivity Disorder (ADHD), anxiety and some learning difficulties. He has seen Dr C, Psychiatrist, since 2014 to address these issues. He has been prescribed with medication to assist in the management of his ADHD. The father withdrew his consent for X to continue to receive treatment by Dr C in August 2018. He receives special learning and behavioural support at school.

9. Dr P expressed the view that X presented as much younger than his chronological age in terms of his cognitive maturity. Dr P records at [225] of her report that:

   X has a range of significant vulnerabilities which pre-dated the parents' separation. He has presented with behavioural, psychological and learning needs over many years. He required psychiatric and educational support from as early as Year 3 (20[1]3). Initially he had a tentative diagnosis of Oppositional Defiance Disorder (ODD), although later his diagnosis was changed to ADHD and anxiety. There have been numerous serious incidents with X's behaviour with peers, dating back many years and generally relating to poor relationship and interpersonal skills. Some of these incidents have involved X being physically violent with other students, being non-compliant, allegations that he has bullied other students, lying and school refusal. Correspondence between Dr C and the Q School indicates that Dr C had some concern that X was prodromal for a major mental illness. X's symptoms have largely been managed by Dr C, psychiatrist, and the school learning support team. It is my strong view that he needs ongoing support of a treating psychiatrist as well as educational support to manage these significant vulnerabilities.

10. As already noted, Dr P also comments at [260] that X is “very anxious and easily prone to manipulation.”

11. Orders were made on 13 December 2018, for the parties to engage X with Ms E for therapeutic support as directed by her. It was noted that Y had already engaged with Ms E and was to continue to do so.

12. The mother states that X has a history of difficult behaviour, particularly at school and with other children, which had been slowly improving during the period leading up to the parties’ separation but regressed in the first half of 2018.[21] The mother contends that his behaviour was at its worst during the time which he resided with the father, and that since then under her care his behaviour has settled.[22] According to her, X’s behaviour is at its best during periods he has spent no time with the father, the longest being for about seven weeks in which she observed X to be most settled, focussed and less anxious.[23]

    [21] Above n 10, p. 3 [10].

    [22] Ibid.

    [23] Ibid.

13. The mother claims that X has settled considerably since about August 2018 following commencement of weekly supervised time with the father.[24]

    [24] Ibid, p. 3 [9].

14. According to the mother, X also has some learning and behaviour difficulties, is very immature for his age and finds it difficult to adjust to change, particularly adjusting to his parent’s separation and change of respective residence. He is comforted by familiarity and stability, and also receives special learning and behavioural support at school.[25]

    [25] Report of Dr PP dated 7 June 2019, p. 7 [18].

15. The father gave evidence that X still struggles. He states at [34] of his Trial Affidavit that:

    … X continues to suffer from a lack of focus and anxiety, has extremely poor handwriting, reading and comprehension, struggles to complete simple tasks, and is below the school and state average in all learning areas. The school has provided and implemented various strategies via their Special Learning Centre, under the care of Dr O and more recently Mr R.

16. At [258] of his Trial Affidavit the father gave evidence that:

    In November 2019, the vice-principal of Q School, Ms S arranged a meeting with myself and Ms Hayes separately to meet with herself and X's teachers Mr R, Mr T and Dr O. At that meeting Ms S advised that X had recently undertaken NSW State YARC testing and despite X being 15 years of age, his comprehension skills where equivalent to a 9 year old, fluency skills of an 11 year old and reading skills of a 7 year old…

17. In respect of Y, Dr P opines at [150] of her report that Y present as a mature, articulate and gregarious child and appeared much more mature than his chronological age.

18. The father states that on 1 August 2018, the solicitors for the mother wrote to his solicitors in relating to setting up an appointment for Y to attend upon Ms E. He states that on 22 August 2018, his solicitors responded on his behalf indicating he was making an appointment to speak with Ms E and he proposed that X also attend upon her.[26]

    [26] Above n 11, p. 51 [238]-[239].

19. The mother states that Y, is currently progressing well with his studies at school, is quite mature for his age, very social and is more adaptable to change than X.[27]

    [27] Above n 10, p. 4 [11].

20. The father states that Y is more extroverted than X. He states that he is doing well academically and socially at school and that he is about average in all of his core learning areas.[28]

    [28] Above n 11, p. 54, [259].

21. The children’s school reports support a conclusion that from July 2018, after they lived with the mother and the children’s time with their father became supervised, they settled better at school and made some improvement.

22. X’s school report for Semester 1, 2019 records that “X has come a long way this semester and seems to have a much brighter and more enthusiastic look about him. His consistency, co-operativeness and focus in Tutor Group have all improved”.[29] His report for Semester 2, 2019 record that he has “only recently adopted a slightly more positive outlook towards Tutor Group”, “has improved his attendance” but “is inconsistent when taking responsibility for his actions”.[30]

    [29] Above n 1, p. S0503.

    [30] Ibid, p. S0491.

23. On the other hand, not all problems were ameliorated. The father gave evidence that X has had numerous absences from school since July 2019, while in the mother’s care and a behavioural record shows some continuing problems for X during 2019.

24. Y’s school report for Semester 1, 2019 records Y as a “kind and respectful member of Year 6” and “enthusiastic and eager to apply himself to his learning”,[31] made “pleasing progress” in English and demonstrated “excellent application” in Mathematics and was within his Grade Level of Achievement, or above, in other subjects.[32] His school report for Semester 2, 2019 continued to record he was doing well at school.[33]

    [31] Ibid, p. S0537.

    [32] Ibid, p. S0538.

    [33] Ibid, p. S0546.

25. The evidence was unambiguous that X has significant vulnerabilities. As will become apparent later in these reasons these vulnerabilities have played into a very unhealthy dynamic of enmeshment between the father and X, resulting in, for example, the father treating X as a friend upon whom he can rely and attempts by X to gather evidence on behalf of his father for these proceedings. However, the evidence shows that since X has been spending supervised time only with his father, he has become more settled and progresses better at school, despite some continuing problems.

26. In her oral evidence, Dr P maintained the view that it is imperative that X continue treatment with Dr C and perhaps more regularly with Ms E and that Y may continue to benefit from attending upon Ms E with her being able to be a person with whom both children can confide in and for her to provide them with appropriate coping mechanisms. Dr P was clear that it is of the utmost importance that X have parenting and living arrangements which can give him the most stability and the best chance of a good outcome for the last few years of his schooling.

27. Y also has settled and is progressing better at school since supervised time with the father has been in place.

28. Orally, Dr P stated that while Y is competent, there are still vulnerabilities such that it would be wise for him to have the option to have some monitoring through school, school counsellors or someone like Ms E at quarterly intervals.

The father

1. The father is currently employed as a professional and earns $80,000 per annum plus super.[34] The father presented as a perplexing figure.  According to Dr P, he was capable of manipulating the children, particularly X. This is borne out by the episode, discussed later in these reasons, in which X tried to gather evidence on his father’s behalf by making a recording of an argument with the mother.  

   [34] Exhibit D.

2. I found the father’s evidence to be unreliable. For example, at [286] of his Trial Affidavit the father states: “[t]here is no disentitling conduct on my part to preclude me from continuing to be the father of the children. No Domestic violence [sic] and no substance abuse issues”. The evidence discussed later in these reasons makes clear that these assertions are not borne out. The detailed discussion of the events of 16 June 2018 under s 60CC(2)(b) and of the events of 1 November 2019 and 31 December 2019 under ss 60CC(3)(f) support this conclusion. They show the father has not been frank about his mental health, and has given versions of events which I have been unable to accept.

The mother

1. The mother is currently employed as professional.[35] On 30 June 2020, I issued a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) for the oral evidence of the mother in these proceedings in relation to breaches by her of orders made in these proceedings. Nonetheless, generally I found her to be a reliable and credible witness. She conceded matters against her interest, such as the use of cocaine at times during the marriage. Where the evidence is in conflict, I generally prefer her evidence to that of the father.

   [35] Mother’s Financial Statement filed 6 May 2020.

Legislative framework

1. Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s 61DA and s 65DAB of the Act.[36]

   [36] There is no relevant parenting plan so s 65DAB of the Act does not apply.

2. Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for the child. The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence: s 61DA(2) of the Act. The presumption may be rebutted if the Court is satisfied it would not be in the best interests of the children for their parents to have equal shared parental responsibility.

3. As already stated, the parties and the ICL agree that the mother should have sole parental responsibility. They accept that the presumption does not apply. I agree, in light of the evidence about family violence discussed in these reasons, the undisputed high conflict between the parents, and deficits in the father’s parenting capacity discussed below under s 60CC(3)(f). I am satisfied the presumption does not apply by reason of s 61DA(2), or alternatively has been rebutted for the purposes of s 61DA(4).

4. If no order is made allocating parental responsibility to either party both parents will continue to have joint and several parental responsibility: s 61C of the Act. I do not consider this to be in the best interests of the children, for essentially the same reasons that the presumption does not apply or is rebutted. I will make an order for the mother to have sole parental responsibility, and that the children live with her.

The best interests of the children

1. The best interests of a child are the paramount consideration: s 60CA of the Act. They are to be determined by an examination of the primary and additional considerations as set out in s 60CC of the Act. These factors are to be considered, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s 60B of the Act.

2. Although consideration of each statutory factor in s 60CC is mandatory, express discussion is not: Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36(at [48]; Tibb & Sheean (“Tibb & Sheean”) (2018) 58 FamLR 351; (2018) 337 FLR 149; [2018] FamCAFC 142; at [84]. The proposals of the parties, their evidence, and the manner in which they have run their case will largely determine what requires discussion: Tibb & Sheean at [87].

Primary considerations

1. The “primary considerations” are set out in s 60CC(2) of the Act:

   (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.

2. In applying these considerations the Court is to give greater weight to the consideration in paragraph 2(b): s 60CC(2A) of the Act.

Section 60CC(2)(a), “meaningful relationship”

1. A “meaningful relationship” as one which is “important, significant and valuable to the child”: Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520; McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92 (“McCall”). A “prospective approach” is the preferred approach, requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall at [118]; Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22. The legislation aspires to promote a meaningful relationship, not an optimal relationship: M & S (2007) FLC 93-313; [2006] FamCA 1408 per Dessau J; Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102 per Kay J and Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 per the Full Court).

1. As already pointed out, there was ultimately agreement that the children would live with the mother, and the benefit of, and maintenance of their prospective relationship with her, was therefore not the subject of any contest. There was no dispute that broadly speaking the children would benefit from a meaningful relationship with their father; the argument was how the children’s relationship with the father could be maintained and developed prospectively in the face of contentions about risk. The differences of view related to the amount of time the children should spend with the father and whether it should be supervised to any extent. I note here that reports of B Contact Centre (Exhibit 6) are generally positive about the children’s interactions with the father and show they have maintained a meaningful relationship with him during supervised time.

2. The resolution of these differences depends upon findings in relation to the other statutory considerations, including family violence and parenting capacity.

Section 60CC(2)(b), “abuse” and “family violence”

1. As to s 60CC(2)(b) of the Act, the terms “abuse” (see s 4) and “family violence” (see s 4AB(1)) are defined in the Act as follows:

   abuse, in relation to a child, means:

   …

   (c)  causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence…

   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.

2. Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include but are not limited to:

   (a)an assault; or

   …

   (c)  stalking; or

   (d)  repeated derogatory taunts; or

   (e)  intentionally damaging or destroying property; or

   …

   (h)  unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support …

3. A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence (see s 4AB(3)). The Act provides in s 4AB(4) examples of situations that may constitute a child being exposed to family violence, which include but are not limited to the child:

   (a)  overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

   (b)  seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

   (c)  comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

   (d)  cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

   (e)  being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

4. A Court will not make orders placing a child in the care of a parent if to do so would expose the child to an unacceptable risk of abuse: M v M (1988) 166 CLR 69. That “test” of “unacceptable risk” requires assessments of risk of future physical and emotional harm: In the Marriage of A (1998) FLC 92-800; (1998) 22 Fam LR 756.

5. In Napier & Hepburn (2006) FLC ¶93-303; (2006) 36 Fam LR 395; [2006] FamCA 1316 at [84], and [91], the Full Court said:

   [84] There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring.  This is not a search for a solution that will eliminate any prospect of serious harm.  It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.

   …

   [91] That brings us back to the need for the trial judge to have focused not only on the magnitude of the harm to which the risk related but on a likelihood of the conduct complained of occurring in the future.  Sometimes this is a very uneasy balance, but the denials of the alleged perpetrator of the alleged past abuse cannot be ignored and must be evaluated...

6. In Sahrawi & Hadrami [2018] FamCAFC 170 at [52], the Full Court also endorsed the following articulation of the correct approach in Stott & Holgar [2017] FamCAFC 152 at [38]:

   We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).

7. More recently in Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198; (“Bant”) the Full Court succinctly stated the law as follows at [38] to [41]:

   38. In M v M (1988) 166 CLR 69 at 78 (M v M) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:

   Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. ... courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   39. It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).

   40. The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:

   151....Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. ...

   41. As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.

8. In Bant at [51] the Full Court also made clear that the conclusion of the existence and magnitude of a risk should be based on all of the facts and circumstances, and it would not be proper to “atomise” the evidence by analysing each fact or circumstance to see whether that particular fact would support the conclusion of risk. Rather, a conclusion of risk is formed by a consideration of all aspects taking into account the necessary elements of prediction and assumptions about the future to which the Court spoke in CDJ v VAJ.

9. Against this legal framework I turn to give real and substantial consideration to the facts of the case concerning allegations of family violence and risk, which includes psychological harm.

10. Dr P opines at [2] of her report that:

    Each of the parents allege that the other parent exhibited violent, emotionally abusive, intimidating, controlling and threatening behaviour towards them during the relationship and after separation. The matter is high conflict and involves allegations and counter-allegations of lying, distorting events and manipulating the children.

11. Dr P also states that not only have the children been exposed to a great deal of family violence directly between their parents, but also involving other extended family members.[37]

    [37] Above n 25, p. 57 [226].

12. There was ample evidence from the parties to support this view of Dr P. The parties made allegations of aggressive or violent behaviour towards each other prior to separation. The father alleges that the mother has perpetrated emotional and physical abuse towards him and the children. The mother alleges that the father has perpetrated both physical violence and emotional abuse in the form of coercive and controlling behaviour towards her.[38]

    [38] Ibid, [235] – [236].

13. In view of the agreed position that the children should live with the mother and she should have sole parental responsibility, there is no necessity to make detailed findings about these competing allegations during the marriage. It is sufficient to find that the parties had a conflictual relationship during the marriage, and the children witnessed a number of hostile interactions which constitute family violence. This much was not in dispute.

Final separation

1. On the night of 16 March 2018, the parties separated on a final basis following an argument. The argument related to financial difficulties and the father’s employment. It took place when the children were present in the house. The mother states the father appeared to be intoxicated and had consumed several beers.[39] The father contends the mother “smelled strongly of alcohol”, had told him “she had already consumed one bottle of wine” and he saw that she was in the process of consuming “a large open bottle of Vodka”.[40] He said she had noticeable “traces of cocaine in her nostril”.[41] The mother asserts the father told her to get out of the house, but she refused to leave the children.

   [39] Above n 10, p. 9 [43].

   [40] Above n 11, p. 15 [79].

   [41] Ibid.

2. The father left on 16 March 2018. The mother says the aggressive and frustrated demeanour of the father caused her to fear for the children and her safety. In his absence she contacted the police who thereafter served an Application for an ADVO against the father on her behalf. This was later withdrawn on 27 July 2018, according to the father.[42] The father did not return home after he was served with the Application for an ADVO. He was at Ms J’s home. He states that the next day he was taken to hospital and did not return to the matrimonial home until around 22 March 2018.[43] The mother then left the matrimonial home and Y went with her, but X remained with the father at the former matrimonial home. The mother and Y went to the maternal grandmother’s home.

   [42] Ibid, p. 34 [164].

   [43] Ibid.

3. The mother states that on 27 March 2018 the father sent her a series of text messages which included: “[g]et serious and do the right thing by our boys and do not keep them separated. They need each other. Drop Y home after school” and “I believe you and your mother are emotionally abusing him and both are unhinged. Not good Ms Hayes”.[44]  According to the father, X remained with him while Y remained with the mother at the maternal grandmother’s house up until 31 March 2018, when the mother returned Y to live with the father.[45]

   [44] Above n 10, p. 13 [59].

   [45] Above n 11, p. 16 [84].

4. For the period 31 March 2018 to 15 May 2018 the father refused to allow the children to spend any time with the mother, other than under his supervision. The mother claimed the father purposefully withheld the children from her in an effort to extract money from her.[46] The mother states that after filing her Initiating Application on 11 April 2018, the father permitted the children to spend time with her without supervision but only for relatively brief periods and not overnight, beginning on 15 May 2018.[47]

   [46] Above n 10, p. 14 [63].

   [47] Mother’s Case Outline filed 6 April 2020, p. 5 [6].

5. Again resolving these factual differences is not necessary. The events of 16 March 2018, while not immaterial, have more limited importance given the agreement for the mother to have sole parental responsibility and for the children to live with her. Nonetheless, I find that on 16 March 2018 there was a hostile and aggressive interaction between the parties, witnessed by the children, after which the mother left the home with Y. X remained with the father at this point.

6. Following separation, there were several further incidents of hostile and violent interaction between the parties, one involving the maternal grandmother.

2 April 2018

1. According to the mother, on 2 April 2018 she rang Suburb U Police Station because she was concerned for the safety and wellbeing of the children, as the father had prevented her from seeing them for almost a week and the children had not answered their phones or responded to her text messages.[48] She alleges that the Police contacted her an hour or so later advising her that they had attended upon the matrimonial home and that no one had answered the door despite someone being home. She claims that they suggested she herself attend.[49] The mother thereafter attended the matrimonial home in company with the maternal grandmother, which led to an incident in which there are contested versions of what took place.

   [48] Above n 10, p. 11 [51].

   [49] Ibid.

2. On the mother’s version of what took place, after she had repeatedly knocked on the door and yelled for the children, X opened the door slightly. Something was blocking the door which appeared to be a piece of furniture.[50] She alleges that the father then moved the furniture and she “smelt a strong odour of alcohol”; as he swung the door open she backed away while the maternal grandmother moved forward.[51] She states the father said words to the effect of “[g]et off my property you are both trespassing” and “[e]verybody, this is Ms H. She is going to try and assault me”.[52] The father then stood very close to the maternal grandmother and pushed her back a few times.[53] The mother alleges this occurred in the presence of X and he was yelling words to the effect of “[s]top it, Dad, [s]top it”.[54] The mother states she rang the police and when they arrived they advised that the father alleged the maternal grandmother had scratched him on the neck when he had tried to remove her from the property. The mother states that she believes that the father fabricated the incident and the maternal grandmother denied harming the father.[55]

   [50] Ibid, p. 12 [53].

   [51] Ibid.

   [52] Ibid.

   [53] Ibid, p. 12 [54].

   [54] Ibid, p. 12 [55].

   [55] Ibid, p. 12 [57].

3. The father gave two versions of this incident which differed. On his first account, the father states that he and the children woke to the mother and the maternal grandmother screaming at the front door saying they had arrived “to take the boys”. The father claims the children asked them to leave “as it was very late and they were scaring them”.[56] He says he asked the maternal grandmother to leave multiple times, however she refused and physically attacked him in front of the children. Following this, he states that the mother rang the police.[57]

   [56] Above n 11, p. 17 [87].

   [57] Ibid.

4. On his second account, the father states that at approximately 11.00 pm he was upstairs with the children; when the doorbell rang and they heard banging and yelling, he went downstairs with X to the mother and the maternal grandmother yelling: “give me the kids, I want the kids”, and saying to X: “if you don’t come with me now you’ll never come to my house again and never see me again. X, come to the front door now”.[58] He alleges the mother asked to see Y and when he went upstairs Y refused to come down because he was scared. The father states he returned downstairs and heard Ms J’s voice, asking to come in. The father states that when he opened the door to let her in the maternal grandmother “tried to get in and she pushed her way past Ms J to get in to the house”, and he asked her to leave with X standing next to him.[59] The father claims that:

   Ms H retreated and I closed the door behind me as we stood outside. Ms H said, 'I'm going to put you in jail.” I said, “Please leave my property.” Ms H said, “I don't have to.” Ms H took a step back, and I said, “I want you off the property.” Ms H then lashed out at me and said, “You're fucking disgusting. You're going to go back to jail.” I said to Ms H, “Is this all going to plan for you?” Ms H then scratched the right side of my neck and chest. She also hit me on the left side of my head. I am not sure if she hit me with her hand or her handbag. Ms H continued to scratch and hit me. I yelled, “Stop it, you're assaulting me.” Ms H said, “I didn't assault you.” I said, “You have.” At some point, Ms J and X came outside. This continued back and forth until Ms Hayes said to Ms H, "We should go.” Ms Hayes and Ms H then left the Suburb F Property.

   I went back inside the home and contacted the police….[60]

   [58] Ibid, p. 34 [166].

   [59] Ibid, p. 34 – 35 [168].

   [60] Ibid, p. 35 [169]–[170].

5. The father’s second account is consistent with the statement he made to police dated 3 April 2018, however in the 2018 account he states:

   13. Ms H took a step back and I said I want you off the property she then lashed out and said you’re fucking disgusting, you’re gonna go back to gaol.

   14. I said to her “Is this all going to plan for you” which caused her to scratch me on the right side of my neck and chest. I think she scratched me with her left hand but I’m not sure. She also hit me on the left side of my head but I’m not sure what she hit me with and this time, if it was her hand or handbag.

   15. Ms H assaulted me approximately a further 4 to 8 times, scratching me and hitting me with her handbag…[61]

   [61] Above n 1, p. S0152.

6. There was no dispute that Ms J was present when the above incident took place; she had travelled in the same car as the mother and maternal grandmother to the matrimonial home to check on the children. She gave evidence of such for the father’s case, stating that the father let her in the house and she was a witness to the maternal grandmother assaulting the father.[62] Ms J also made a statement to the police dated 23 March 2018, in which she stated that she saw the maternal grandmother hit the father in the face.[63] The mother agrees that in November 2018, the maternal grandmother was found guilty of assaulting the father, but alleges the father fabricated the incident.[64]

   [62] Affidavit of Ms J filed 2 July 2020, p. 4 [13].

   [63] Above n 1, p. S150.

   [64] Above n 10, p. 12 [57].

7. In the maternal grandmother’s Electronically Recorded Interview of a Suspected Person (“ERISP”) she agreed that she, the mother and Ms J all travelled together to the matrimonial home and denied the allegations of assault, but stated that when the father grabbed hold of her arm she pushed him back.[65]

   [65] Affidavit of Ms H filed 20 March 2020, p. 5–6. 

8. I find that a violent altercation took place in the presence of X on 2 April 2018. I am satisfied that the maternal grandmother was present and that she and the father behaved violently towards each other. The maternal grandmother was physically aggressive, while the father was verbally provocative. There is no dispute that maternal grandmother was convicted of assault or that the X was made to witness this unseemly behaviour and became greatly distressed.

1. She expanded on this in her oral evidence, saying that the father is an incredibly intelligent man, very focused and if he feels something is incorrect or not just, then she believes he will perseverate on it and potentially behave in manipulative and dangerous ways because he feels righteous about it.

2. Ultimately, Dr P opined in her report that she did not think the father has any capacity to facilitate, or encourage the children’s relationship, or a connection, with the mother, because he simply does not believe these exist and regards the mother as dangerous and damaging to the children.[138]

   [138] Ibid, p. 63 [254].

3. Dr P was of the view that the mother has some capacity to encourage and facilitate the children’s relationship with the father. Dr P expressed the view that the mother appears to have generally maintained a neutral stance whilst trying to deal with the children’s objections and sometimes their challenging behaviours.[139] In particular, the mother was also able to talk positively about the father despite her own frustrations with him.[140]

   [139] Ibid, p. 63 [255].

   [140] Ibid, p. 64 [256].

4. I am satisfied the mother has a better capacity to provide for the children’s needs by promoting or encouraging their relationship with the father.

5. The father presents a difficult problem. He said in oral evidence that he just wants to draw a “line in the sand”, by which I understood him to mean, to put the past conflict behind him and start a fresh approach to parenting. I take account of his ultimate agreement during the trial that the mother should have sole parental responsibility and that the children should live with her. This may reflect a recognition by the father that his trenchantly negative view of the mother is not reasonably held and he should revise the way he deals with and speaks about her. He said in cross-examination that he was hopeful he and the mother would be able to eventually talk reasonably, and work collaboratively, perhaps with the assistance of mediation.

6. However, in light of Dr P’s views about the manipulative aspect to the father’s personality, mentioned several times already, and his clear desire to supress evidence about his behaviour in November 2019 and on New Years’ Eve 2019, there is reason to be cautious.

7. It is relevant to note that in his interview on 29 April 2019 with Dr P the father expressed similar hopes that the past could be let go. At [130] of her report Dr P notes the father said: “he can envisage a day where he and the mother can sit down together and solve problems”. At [131] Dr P records “[a]t an overall level, Mr Hayes expressed the view that he was hopeful that he and the mother could mediate. He said he wants to be able to ‘talk to her and get rid of the AVO crap’... He said he would hope that he can get on with his life and that the children can be protected.” The evidence discloses no progress consistent with these hopes.

8. Under questioning by counsel for the mother about the father’s desire for a fresh start; Dr P acknowledged the possibility that the father may have undergone a “personal transformation”, but she was unable to form a clear view without the benefit of a current assessment. She pointed to the father’s personality trait, in particular failing to accept responsibility, and “believing others have got it wrong” when “aspects of his behaviour are criticised or pulled up” as reasons to be cautious about accepting the father had changed. Dr P noted this was consistently present in the material she saw and “indeed, in [her] own interviewing of him”. Dr P said in cross-examination:  

   … if that is a personality characteristic that would exist across all areas of the father’s life, then it presents a problem to co-parenting, because it means that if the mother – or actually, anyone he was trying to negotiate with or to cooperate with or to formulate agreements with, would be wrong unless they agreed with him, or would be somehow malicious, or he would ascribe error, or some other issue to what they were saying.

9. Dr P said the father is extremely intelligent with a very capable mind, and “[she] thinks he has been largely idle” and “he hasn’t been working or focused, and so a lot of his attention has been focused on minutiae detail, in doing that, and particularly with the children and the mother and parenting, he has lost sight of really important basic things”, such as, “children should not be involved in their parents’ conflict”. Dr P pointed out that “if that continues, then it will continue to expose the children to forensic grilling.” In considering the force of this evidence, I take account of the fact that the father is now employed, and his attention will be taken by the requirements and pressures of work.

10. Dr P also emphasised under cross-examination that the father had exhibited a past conviction that the mother was an inveterate liar and this could remain a major impediment to co-parenting of any sort and be damaging to the children:

    … if the father is still fixated on the belief – view that the mother is a chronic liar, then it’s incompatible with being able to co-parent with someone, because at a minimum, that requires a basic level of trust. Not perfect trust, but it requires a basic level of trust, that if you say you will do something, then I can reasonably rely on you to do that thing. But if he has an unshakeable, unswayable belief that she is a chronic liar, then he won’t trust her to do any of the things that she says, and he is prone to, again, with that personality, forensically quiz and grill the children and other people about her behaviour, her intentions, and get them drawn into the very things that I think they have been drawn into to date.

11. Having considered the evidence of the father carefully and the views of Dr P, I am not persuaded that I can be satisfied that the father has undergone a “personal transformation” so that the Court can be comfortable that his earlier patterns of conduct and attitudes to the mother, which were unchanged up to the commencement of the trial, have changed or are likely to change, at least sufficiently to make any material improvement to his capacity to co-parent. I find that there remains a risk that the father would be inclined, during any unsupervised time with the children, to undermine their perception of their mother and thereby undermine the benefits of their more settled situation while living with her.

12. His self-destructive behaviours on 1 November and 31 December 2019 do not engender confidence in his ability to conduct himself responsibly as a parent, despite his apparent recognition in the witness box that he should not have put himself in those situations. The father may have had a personal epiphany and developed greater awareness of appropriate conduct as a parent during the trial but I am unable to form a definite view that he has. His past conduct remains a likely guide to the future.

(g)     the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

1. Dr P states at [223] that the children are of a religious faith and are educated in that tradition and appear to be thriving in their current school environment.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child’s parents;

1. I refer to the discussion above under s 60CC(3)(f), which also deals with the evidence relevant to each party’s attitude to parenting.

(j)      any family violence involving the child or a member of the child's family;

1. I have nothing further to add beyond the discussion above in connection with s 60CC(2)(b).

(k)      if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order;

1. The ADVO against the father for the protection of the mother was to expire on 2 November 2020.[141] As already noted above at [282], the father referred to the ADVO as “crap” and as Dr P opined, the father did not seem to take responsibility for his actions. I am persuaded that the father has been unable to take a reasonable and constructive perspective on his own conduct which lead to the imposition of the final ADVO.

(l)    whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

[141] Above n 1, p. S0270.

1. I note that in his oral evidence the father stated that he would appeal an order for supervised time. I take account of this, but I do not know how seriously the father held such a state of mind, and in any event the best interests of the children remain the paramount consideration.

Time with the Father

1. As noted, it was common ground between the parties and the ICL that the children should spend some time with the father; I come to the question of extent to which the children’s time with the father should be supervised.

2. It is helpful to repeat the different proposals in summary. The mother presses for professionally supervised time on the first Saturday of every second month, with supervision to last until both children reach 18 years. In the case of X, this would mean supervision until 27 August 2022, towards the end of his last year in school. For Y this would continue until 22 May 2025. The ICL proposes time with the father from 10.00 am to 4.00 pm on the third Sunday of each month, professionally supervised for a period of six months from the date of the Court’s orders. The mother includes the father’s and children’s birthdays and Father’s Day as special occasions. The ICL includes the children’s birthdays, Father’s Day and Boxing Day as special occasions. The father seeks unsupervised daytime with the children on Saturdays, progressing to overnight time, holiday time, and special occasions.

3. The question of time with the father and supervision of the father’s time is very difficult in this case.

4. I have given careful consideration to the views of the children as discussed under s 60CC(3)(a).

5. Dr P described the situation facing the Court at [257] of her report:

   In my view, the Court is in a real conundrum here, because of the children’s ages and expressed desire to resume unsupervised contact with the father. Unfortunately, however, I think there are risks to the children with a return to their father's care insofar as they are likely to be continually exposed to the conflict between the parents. It is my view that the father has personality characteristics that are likely to continue to fuel the conflict between the parents, particularly if the father feels aggrieved or poorly treated. The father has not demonstrated, in my view, a capacity to accept responsibility for his contribution to the marital breakdown or his behaviour towards the children in exposing them to conflict. Unfortunately, I think this means there is a high risk of the father continuing the previous behaviour and exposing the children to psychological harm. As mentioned previously, I am also concerned about the father's potential use of illicit drugs in his failure to explain his positive testing for illicit substances on the latest drug test. However, if supervised contact continues, the children are likely to continue to develop anger and hostility which will be directed towards their mother and potentially other members of the maternal family.

6. Although these opinions were expressed at a stage of the proceedings when the father still pressed for equal unsupervised time, I have taken account of them. I also take account of the greater stability and progress the children have enjoyed since their time with the father has been supervised (see [74] and [173] above).

7. It is important to note, that Dr P in her oral evidence expressed the view that her concerns in respect of X and Y had amplified after reading the subpoena material from N Hospital in relation to the incident which took place on 1 November 2019, and particularly the father’s lack of disclosure to the mother and the Court. According to her, a further concern is that the father still maintains that the children are actively engaging in their parents’ dispute in defence of him, because they wish to do so. She stated that the material from N Hospital persuades her more towards the risk of unsupervised time being greater than previously anticipated, and that supervision would at least protect the children from finding their father unconscious or him being intoxicated and under the obvious influence of drugs.

8. Dr P expressed the view, which I accept, that the father’s failure to mention the incidents on 1 November 2019 and on New Year’s Eve 2019 presents a situation which is dangerous for the mother because she has to make assessments about the children’s safety in the father’s care. Dr P also pointed out that she has to give recommendations based on a vacuum of information about these events, because the father was not forthcoming, which also places the Court in an undesirable position.

9. She also stated that she had turned her mind to various parenting arrangements in respect of the time the children should spend with the father, and noted that none of them were optimal.

10. Dr P also stated that if orders are made for the children to have no contact with the father or a continuation of the current status quo, being limited supervised contact, X in particular may be “very, very angry at his mother and maternal grandmother and view them as responsible”.

11. Dr P was also clear that an order for no contact, given the children’s ages, is not a practicable approach. The risk or likelihood of self-placement was high. No party seeks a no time framework in any event. However, I accept there is a risk of self-placement if supervision is ordered but the risk would not be as great. I note that the risk of self-placement has been present since supervised time with the father was first ordered, but has not happened.

12. In respect of having supervised daytime contact with the children such as once a week, as initially proposed by the mother at the start of the trial, Dr P stated that this would allow the children to access their paternal extended family, but at the same time would open up a whole set of risks. These include, the father continuing to improperly parent the children, and continuing to involve the children, and X especially, in his perception of himself as a victim of the mother, and her family, and seek to undermine the mother’s authority with the children. She also stated that he may seek to disrupt the healthy components of the mother’s parenting with the children and manipulate the children into behaviours that are going to unsettle them. She advised that she had seen nothing in the father’s Trial Affidavit that would quell these concerns. In this regard, I also take account of my conclusion above at [286] that I am not persuaded the father has undergone a “personal transformation” such that his earlier patterns of conduct and attitudes to the mother are likely to change.

13. Dr P was asked about “identity contact”, meaning contact limited to a certain number of times each year, such as quarterly contact. She expressed the view that an identity type contact with the father involved some of the same risks:

    But it is certainly something that should be on [sic] table of considerations in terms of the least worst outcome for the children, because it is protective of the issues that I’m talking about now on an ongoing basis, so that even if the father couldn’t restrain himself from denigrating the mother and her family, and launching into some of the 35 inappropriate behaviours he has engaged with the children, then it, you know – it’s time limited, and they’re – for the rest of the time, they are getting about with the normal tasks of childhood.

14. No party made a proposal for “identity contact” time. No reason was given why such time would have any benefit to the children above any other proposal which has been made.

15. When asked by the Court whether the considerations about the father’s mental health, unhealthy relationship with the children and deficits in parenting, discussed extensively above, militated more less in favour of supervision, Dr P said:

    At the moment, I would have to say supervised because I think the risk of unsupervised could undermine – I’m thinking about X, in particular, but the same would be true of Y, but particularly of X.  I actually might have a different opinion if Y was the oldest child actually and – and – but – but X – that – those emotional manipulation things that are going on, I actually think can undermine his schooling and – and I’m very focused on schooling.  But I think it’s really important that he finishes school, and I think it’s really important that he has the benefit of those very positive relationships with teachers and peers, and the support he’s getting from Dr C and the other networks in his life.  And I think that the risk with unsupervised time is that either those relationships will become threatened by what’s happening with his father. 

16. On the question of supervision, I find the following factors militate in favour of continuing supervision of the father’s time with the children:

    a)the tendency of the father to confuse his role as a parent with a perception that the children are his “friends” and confidants;

    b)the father’s parenting deficits, described at length under s 60CC(3)(f) above, including the risk of him continuing his previous behaviour, denigrating the mother, or engaging in extreme self-destructive behaviours with suicidal ideation;

    c)the likelihood that any change to the children’s circumstances such as immediate overnight or unsupervised time with the father would have an adverse effect on the children by disrupting the settled pattern of their lives with the mother;

    d)the father’s lack of insight into his own behaviour and its negative impact on the children;

    e)the discussion, above at [283] to [287], of the possibility that the father has undergone a personal transformation, and the conclusion that the Court cannot be convinced that he has;

    f)the maintenance a meaningful relationship between the children and the father during supervised time;

    g)the history of family violence; and

    h)the particular vulnerabilities of X to alignment with his father

17. I propose to make orders for supervised time with the father to continue. It is the least worst outcome. I have taken account of the views of the children about time with their father, subject to the reservations explained above under s 60CC(3)(a), the real possibility of anger in the children at continuing supervision, and of one or both children self-placing with the father. I have considered the cost to the father. I have taken account of his high intelligence being idle in the past, as Dr P stated, but note he now has employment which will occupy his mind. I have also weighed the need for supervision if orders provide for the children’s time with the father to be limited to one day each month with no overnight time, as the ICL proposed. These considerations do not outweigh those militating in favour of supervision. Clearly there are reasons for and against continuing supervision, but I am satisfied that the children’s time with the father should continue to be supervised.

18. The further question is how long supervision should continue. The matters canvassed in the previous paragraph, the views, and potential anger, of the children, and the risk of them self-placing are factors which weigh against continuing supervision indefinitely or a lengthy set period, such as until X attains his majority.

19. On the other hand, the factors set out in [308] above support a continuation of supervision until X’s 18^th birthday. As I understand Dr P’s evidence she held the view this was overall preferable, while clearly not optimal.

1. I take account of Dr P’s evidence that X in particular needs positive and assertive parenting (see above at [164]) and a level of protection which would allow him to complete his schooling without disruption. It would be to his detriment if the attempts of the mother to parent in such a fashion to achieve this end were undermined by the father.

2. I also accept that it is generally unusual to order supervision for a child who over 16 years old, and certainly until a child turns 18. However, in this case it is also true that X is immature for his age.

3. Both the mother and the ICL propose regular but limited time with the father, one Saturday every two months in the case of the mother, and one Sunday every month in the case of the ICL. The mother’s proposal is for supervision to continue for both children until they are 18. X will reach 18 years in 2022, about 20 months hence. Y will turn 18 in 2025. The mother’s proposal contemplates, therefore, nearly another nearly five years of supervision and for the majority of that time the supervision would relate only to Y because X would have turned 18 in 2022.  As already noted, Y has less vulnerabilities than X and is more robust emotionally. The mother’s proposal would result in the children spending less time with the children than they are under the existing orders. I consider the mother’s proposal too restrictive, especially in light of the matters canvassed in [309] above, especially the children’s views and likely anger at continued supervision.

4. The ICL proposes only a further six months of supervision from the date of the orders.

5. Once X turns 18 the Court no longer has jurisdiction in relation to him. In light of X’s vulnerabilities, if supervision is ordered until he reaches 18, this appears likely to afford him the greatest level of protection while he is a child, especially in light of his relative immaturity. If he was to begin spending unsupervised time with his father before this time, I accept this holds some risk of creating a situation leading to a disruption of a smooth completion of his schooling and a possible general regression.

6. On the other hand, if contact is limited to daytime once a month, such a risk is ameliorated. Furthermore, Dr P made clear that X would be angry at such lengthy supervision. I recognise supervision for that period may be seen by X as infantilising him, and be counterproductive for that reason. I also accept that the agreed order for the father to consult a clinical psychologist on ten occasions and to provide to that clinical psychologist a copy of Dr P’s report before any unsupervised time commenced will also ameliorate the risks of unsupervised time.

7. I take account of the problems exposed in these reasons with the father’s parenting, as risk factors. These are serious. However, it is also the case that none of those factors involve a risk of violence or physical harm to the children.

8. I have given close consideration to the further six months of supervision proposed by the ICL. I have also considered the possibility of ending supervision when X turns 17. This will happen on 27 August 2021, a date from the date of this judgment only slightly later than the six months proposed by the ICL.

9. I am satisfied that it is in the best interests of X for supervision of his time with the father should continue until he reaches his 17^th birthday. Despite the issues of risk identified in these reasons, especially above at [297] to [319], I am not persuaded that it is realistic to prescribe supervised time for a child after he turns 17 years old, even in the unusual circumstances of this case.

10. The discussion at [297] to [319], and the problems with the father parenting, discussed at length in these reasons, together with the need for supervision justify limited daytime contact with the father. I am satisfied 10.00 am to 4.00 pm on the third Sunday, with special occasion time, as proposed by the ICL is an appropriate framework. For the same reasons, I am not persuaded there should be any progression to more time or overnight time with the father. I am satisfied the interests of the children are best served by a stable and consistent framework of time with their father.

11. Y is in a different position to X. Dr P pointed out when considering supervised time, the risks are different for each child. Counsel for the ICL asked Dr P to express a view on a proposal for the children to both have supervised time with the father once a month up until X turns 18 with Y thereafter having unsupervised time once he turns 16 with the father once a month, Dr P opined that Y would be robust enough to manage that arrangement unsupervised. She said: “I don’t think that there are the behavioural, academic, social vulnerabilities with Y” and he could manage unsupervised situations where he spends time with the father, and X, after X turns 18.

12. I am satisfied that Y will be able to deal with time with the father unsupervised at a younger age. The evaluation of Y by Dr P, as more robust and emotionally strong lead her to believe he would be able to cope with supervised time once he turns 16 years. The problem is that when X turns 17, Y will be only 14 years and three months. This age is some distance from 16. By the time X reaches 18, Y will be approaching his 16^th birthday. He will turn 16 in 2023 and will therefore be 15 and three months when X turns 18.

13. It is also important to take account of the fact that it was assumed at all times by all parties that the children would spent time with the father together. I accept this is appropriate.

14. Therefore, even if supervision of time with the father ceases when X turns 17, Y will continue to spend time with the father in the company of X until X 18. Since I propose to make orders for the time to be spent by the children with the father to be limited to daytime once a month, as the ICL proposes, the exposure of both children to risk factors, even without supervision, will be limited.

15. Taking account of all these considerations, and my evaluation of the best interests of the children under ss 60CC(2) and (3), I am satisfied that the children’s time with the father should take place once a month, and on special occasions, supervised, until X reaches his 17^th birthday. Thereafter, the children’s time with the father should remain unchanged, other than the cessation of supervision.

Electronic communication

1. The mother also details her concerns that the father has continued to communicate with the children at times when they are not supervised by the Contact Supervisor, particularly via electronic means including their phones and applications such as: Whatsapp, Signal and Instagram which contravenes the orders made on 19 July 2018 for the father to be restrained until further order from engaging with the children in any form of electronic communication. The mother details several examples at [148] of her Trial Affidavit.

2. As I understood the oral evidence of Dr P, she did not favour electronic communication between the children and the father while in the mother’s care. She saw enormous risks if the restraint on the father against having electronic communication with the children was removed:

   …there’s a very strong learned response, particularly from X about that – is it goes way back to … when in 2018 X was texting and calling his father all the time during the school day, so much so that the staff members had to confiscate his mobile phone and ask the father to desist from doing this.  So, unfortunately, I think that X has had a tendency to telephone his father at times when he actually needed to develop appropriate coping skills himself and to deal with situations himself.  And so my real concern is … even if the father had desisted from asking X questions, I think that the behaviour has become so entrenched in X that it would continue and take a lot of effort of all the parents, quite frankly, to tell X that he not only doesn’t need to do that but he shouldn’t do that.  So I see more risks with that than benefits.

3. Dr P stated that it might be confusing for the children to have one hour of contact per night and that perhaps no contact at all would enable them to direct their attention on finishing school and thereafter setting boundaries themselves.

4. I do not lose sight of the fact, as the mother acknowledged in cross-examination, that it is unrealistic to expect teenage boys can now be effectively prevented from using mobile phones to contact their father. Nonetheless, I accept some restraint on the father making electronic contact with the children should be ordered.

Restraints

1. Each party sought a range of restraints.

2. The mother sought a restraint on the children having contact with Ms J, who has been mentioned several times in the course of these reasons.

3. It is clear from Dr P’s report that the mother holds Ms J responsible for encouraging both parties to use cocaine, had been "in and out of drug rehab", was aligned with the father and made allegations in 2018 that the mother was stealing money from church.[142]

   [142] Above n 25, p. 11 [33] & [35].

4. In cross-examination the mother said Ms J has had a drug issues, and has denigrated the mother to the children. The mother was concerned that this would continue should the children be in her care.

5. There appeared to be no dispute that the parties and Ms J had used drugs during the marriage. Ms J denied using drugs in the presence of the children in her affidavit.

6. In light of the significant issue in this case of the children being aligned in the past with the father, I accept that there is a risk Ms J may encourage this during unsupervised time with the father. Since unsupervised will commence under the orders I propose, albeit limited to one Sunday each month, I will make the more limited order that Ms J play no part in the children’s care when they are with the father.

7. The father contends that “it is in the best interests of the children for them not to have any contact or communication with [the maternal grandmother]”.[143]

   [143] Above n 11, p. 14.

8. I consider it unrealistic to attempt to exclude the maternal grandmother from the children’s lives. Despite her unhelpful interventions at times during the marriage and after separation, the children should not be denied contact with her, as one of only two surviving grandparents. I will not make any orders regarding the maternal grandmother.

9. The mother also sought an order restraining the father from attending or entering her residence. I am not satisfied this order should be made. Although there has clearly been considerable conflict and episodes of family violence in the past, and the father suffered recent episodes of self-destructive behaviour, discussed under s 60CC(3)(f), I am not satisfied it has been established the father presents a risk of stalking or entering the mother’s home.

10. The father sought a restraint on both parents consuming alcohol and/or illicit drugs when the children are in their care, and on consuming alcohol for a period of 12 hours prior to the commencement of their time with the children. The evidence discloses both parents have had problems with these substances in the past. However, I am satisfied that it is the father, who continues to struggle with these issues, while the mother has moved beyond her past difficulties. An order restraining the mother in the manner sought by the husband is inconsistent with the agreed order for the children to live primarily with the mother. I do not propose to make an order restraining both parents as sought by the father.

11. The father also sought an order that each party be at liberty to attend at the children’s school for the purposes of any function or activity normally attended by parents. This is not straightforward. On one hand, such an order appears inconsistent with supervised time. It could promote possible conflictual interactions at the children’s school. On the other hand, the children may want their father to come to support them at school activities. Since I accept the children want the father in their lives, I will make an order in these terms but it will not operate until the period of supervised time comes to an end when X has turned 17.

12. I refer to [49] and [50] above where I noted the parties agreed to most of Order 16 proposed by the ICL, but the mother did not agree to the words “and both parents shall be at liberty to attend upon the hospital or medical facility where the children have been admitted”. I am not satisfied the father should be prevented from attending hospital in the event of a medical emergency affecting either child. I am not persuaded this is the best interests of the children. If such a situation arose, the affected child may be comforted by the presence of the father as well as the mother.

13. Although no party raised this issue by their proposals, I note here also that the orders should take account of the impact of the COVID-19 pandemic.

Costs of the Independent Children’s Lawyer

1. The ICL submitted a costs notice seeking a costs order against the mother only, since the father was represented by legal aid. I will make orders providing for submissions about costs after the parties have had the opportunity to consider these reasons.

Conclusion

1. Having considered the matters referred to above, and having given such matters weight and for the reasons set out herein, I am of the view that the orders as set out at the commencement of these reasons are in the best interests of the children and accordingly, will so order.

I certify that the preceding three hundred and forty five (345) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 11 December 2020.

Associate: 

Date:  11 December 2020