Heaton and Heaton (No.2)
[2017] FCCA 557
•30 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEATON & HEATON (No.2) | [2017] FCCA 557 |
| Catchwords: FAMILY LAW – Determination of future parenting arrangements for four male children of relationship, all with special needs – Mother seeks an Order that she have sole parental responsibility and Father spend only limited supervised time with children – ICL and Father propose equal shared parental responsibility for children and significant and substantial time with Father – findings made in relation to Mother’s allegations of family violence – consideration of best interests matters – Orders made for equal shared parental responsibility and for Father to have substantial and significant time with children. |
| Legislation: Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.60B, 60CA, s.60CC, 61DA, 62G(2), 65DAA, 65AA, Pt.VII |
| Cases cited: Collu & Rinaldo [2010] FamCAFC 53 G & C [2006] FamCA 994 Heaton & Heaton [2016] FCCA 1740 MRR & GR [2010] HCA 4 |
| Applicant: | MR HEATON |
| Respondent: | MS HEATON |
| File Number: | MLC 8984 of 2014 |
| Judgment of: | Judge Jones |
| Hearing dates: | 3-7 October, 14-15 and 18 November 2016 |
| Date of Last Submission: | 18 November 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 30 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Dr Ingleby |
| Solicitors for the Applicant: | Aitken Partners |
| Counsel for the Respondent: | Mr Gates |
| Solicitors for the Respondent: | Moores Legal |
| Counsel for the Independent Children’s Lawyer: | Ms Stavrakakis |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
That all previous parenting Orders be discharged.
The parents have equal shared parental responsibility for the children, W born (omitted) 2002 (“W”), X born (omitted) 2003 (“X”), Y born (omitted) 2004 (“Y”) and Z born (omitted) 2006 (“Z”) (collectively referred to as “the children”).
The children live with the Mother.
The children spend time with the Father as follows:
(a)During the school term:
(i)each alternate week 10.00am Saturday to the commencement of school on Tuesday, or 7.00pm on a non‑school day, for a period of six months;
(ii)thereafter, each alternate week from 10.00am Saturday to the commencement of school on Wednesday; and
(iii)as otherwise agreed to between the parties in writing.
(b)During the school holidays:
(i)commencing at the end of Term two in 2017, for five nights in the term holidays and two blocks of five nights in the 2017 long vacation holidays by agreement. Failing agreement, the first five nights of each school term holiday, with time commencing after school and ceasing at 10.00am on the day after the fifth night; and the first five nights of the long vacation holidays, commencing in 2017, with time commencing after school and ceasing at 10.00am on the day after the fifth night; for five nights from 12 January in each January, with time commencing at 10.00am on 12 January 2018 and ceasing at 10.00am on the day after the fifth night at 10.00am.
(ii)Once Z commences secondary school, for one half of the school holidays by agreement or, failing agreement, the first half in each odd numbered year and the second half in each even numbered year with time commencing after school in the odd-numbered year and commencing at 10.00am the even numbered year, and ceasing at 10.00am; and
(iii)As otherwise agreed to between the parties in writing.
(c)As otherwise agreed to between the parties in writing.
For the purpose of changeovers that do not occur at the school, the parties will meet at Berry Street Children’s Contact Centre for a further twelve months, subject to availability and, thereafter, at McDonalds, (omitted). Where the Berry Street Children’s Contact Centre is not available in accordance with this Order, at the times specified in Order (4) above, the parties’ changeover shall occur at McDonalds, (omitted).
The Mother and Father shall facilitate telephone or video calls between the children, or either of them, and the other parent, whilst the children, or either of them, is in their care, as requested by the children, or either of them, and provide them with all assistance to make such telephone calls.
Both parents be restrained by injunction from;
(a)physically chastising the children, or any of them;
(b)criticising or speaking negatively about the other parents or their extended family in the presence or within hearing of the children, or any of them;
(c)exposing the children, or any of them, to family violence;
(d)in any way recording the children, or any of them, with any device, save for special occasion mementos such as, but not limited to, Christmas and Birthday celebrations; and
(e)questioning the children as to parenting arrangements.
The Father will continue to attend upon clinical psychologist Dr T for the purpose of counselling to address the recommendations in the report of Dr S. The Independent Children’s Lawyer is to provide Dr T with a copy of the Final Parenting Orders and Judgment in this matter.
The Mother will attend upon a clinical psychologist nominated by the Independent Children’s Lawyer and the Independent Children’s Lawyer is to provide to that professional a copy of the reports of Dr S, the two family reports and a copy of the Final Parenting Orders and Judgment in this matter.
The Mother, Father and children attend upon a family therapist as nominated by the Independent Children’s Lawyer for the purpose of reportable family therapy. The Mother and Father share equally in the cost of the said therapy and any reports prepared by the said therapist.
The Independent Children’s Lawyer shall provide all professionals and allied health professionals, including the children’s schools and Department of Health and Human Services (DHHS) as referred to in these Orders, with all relevant existing reports received in these proceedings.
The parties and the children attend upon a specialist to have the children cognitively reassessed and following the assessment the parties comply with the recommendations of the assessment and the parties will provide a copy of the assessment to the school, family therapist, parties’ psychologist, children’s psychologist and any other relevant professional involved with the children.
The parties do all acts and things to facilitate the children attending upon a psychologist with special expertise in autism for the purpose of reportable counselling and the Mother and the Father engage with said psychologist as directed by the said psychologist.
The Mother be restrained by injunction from permitting the children, or any of them, to attend counselling with Ms K.
The Father be restrained by injunction from posting on social media or other electronic means any information, photographs or any details relating to the children, the Mother or these proceedings, or allowing any third party to do so.
Each parent shall keep the other informed of any serious illness or injury occurring to the children as soon as reasonably practicable, and immediately in the case of any hospitalization of the children.
The Father be permitted to obtain from the children’s school or schools any notices, newsletters, reports, photographs and other information normally provided to parents in relation to their children, at his expense.
The Father will engage with the school for the purposes inter alia to address the children’s special needs.
The Father be permitted to attend the children’s school to participate in arranged activities that a parent would normally be invited to attend and these Orders shall act as an authority for same.
The Father be permitted to contact the children’s medical practitioner, psychologist or other allied health practitioners and that these Orders shall act as an authority for same.
The parents shall support the children, or any of them, to attend extra‑curricular activities, including basketball, when the children, or any of them, are in their care. Neither parent will commit the children, or any of them, to any additional activities without the written consent of the other parent.
The Mother authorise all treating and allied health professionals involved with the children, or any of them, to communicate and provide information about the children to the Father.
The Independent Children’s Lawyer will provide copies of the Final Parenting Orders to DHHS and the children’s schools.
The Independent Children’s Lawyer will explain the Orders to the children’s schools and to the children.
The Independent Children’s Lawyer be discharged subject to providing the necessary documents to the specialists and recommending the professionals referred to above and complying with Orders 23 and 24 above.
Pursuant to s.65DA (2) and s.62B, 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.
IT IS NOTED that publication of this judgment under the pseudonym Heaton & Heaton (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8984 of 2014
| MR HEATON |
Applicant
And
| MS HEATON |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns the future parenting arrangements for:
a)W born (omitted) 2002 (“W”);
b)X born (omitted) 2003 (“X”);
c)Y born (omitted) 2004 (“Y”); and
d)Z born (omitted) 2006 (“Z”)
(collectively “the children”)
The Mother of the children is MS HEATON (“the Mother”). The Mother was born on (omitted) 1978 and works full‑time as an (occupation omitted) at the (omitted). At the time of the hearing she resided with the children in the former matrimonial home.
The Father of the children is MR HEATON (“the Father”). The Father was born on (omitted) 1976 and is employed as a (occupation omitted). He resides with the paternal grandparents.
All the children have diagnosed developmental conditions. W has an auditory processing disorder and Asperger’s syndrome, X has Asperger’s syndrome, Y has Autism Spectrum Disorder and Z experiences developmental delay issues. It appears the diagnoses for each the children were made from around 2005 to 2008. All the children attend (omitted) College.
At the advice of the parties’ legal representatives, a final hearing in relation to children and property was listed for three days. On the first day of the final hearing, there was agreement that the proceedings be bifurcated and the property proceedings were listed for early February 2017. As it turns out, the estimate of three days, even for the parenting proceedings, turned out to be wholly unrealistic. Ultimately, eight days were taken up in the proceedings.
One reason for the length of the proceedings was the Mother’s unwavering proposal for Orders requiring that any time the Father spends with the children be supervised. In fact, during the proceedings, her proposed Orders were amended so that the supervision be by professionals only. These proposed Orders are based on the Mother’s fervent belief that the Father poses an unacceptable risk to the children if his contact with them is unsupervised. Much of the evidence concerned the Mother’s allegations of family violence during the relationship, at separation and post-separation. There were numerous allegations which were required to be tested. This should not be taken as a criticism of the Mother, but simply a reflection of the way the case proceeded with numerous issues in dispute.
The consideration of the evidence regarding the Mother’s belief that the Father poses an unacceptable risk to the children, is dealt with below under the heading ‘Family Violence’ and in considering risk factors under s.60CC(2)(b) the Family Law Act 1975 (“the Act”). Rather than recite the prolix evidence relied on by the parties, I have dealt with the evidence when considering those matters the Court is required to deal with under the Act; such as the statutory presumption of equal shared parental responsibility, and matters relevant to the children’s best interest under s.60CC of the Act.
I have, however, summarised the reports of experts and oral evidence given by them where they were cross‑examined.
Notwithstanding the stark difference between the parents about the proposed future parenting arrangements for their children, on the last day of hearings (18 November 2016), they consented on a final basis to the following Orders, as recommended by the Independent Children’s Lawyer (“ICL”):
1. the Father continue to attend upon Dr T to address the recommendations of Dr S, with the ICL to provide Dr T with a copy of the Court’s Final Orders and Judgment in this matter;
2. the Mother attend upon a clinical psychologist nominated by the ICL, with the ICL to provide that professional with a copy of the reports of Dr S, the two family reports and a copy of the Final Orders and Judgment in this matter;
3. the Mother, Father and children attend upon a family therapist nominated by the ICL for the purpose of reportable family therapy, with the parents to share equally in costs of said therapy and any reports prepared by said therapists;
4. the ICL provide all professionals and allied health professionals, including the children’s schools and the Department of Health and Human Services with all relevant existing reports received these proceedings;
5. the parties and children attend upon a specialist to have the children cognitively reassessed and following the assessment the parties to comply with the recommendation of the assessment and to provide a copy of said assessment to the school, family therapist, the parties’ psychologists and the children psychologist and any other relevant professional involved with the children;
6. the parties do all acts and things to facilitate the children attending upon a psychologist specialising in autism for the purpose of reportable counselling and the Mother and Father engage the said psychologists as directed by the said psychologist; and
7. the Mother authorise all treating and allied health professionals involved with the children or any of them to communicate and provide information about the children to the Father.
The parents are to be commended for this. In my view, it demonstrates an understanding, no doubt developed over the course of these lengthy proceedings, that each of them, and the family, requires intensive counselling in the best interests of their children. It further demonstrated an insight that it was in the best interests of their children to set aside their extreme levels of conflict and engage in therapeutic family counselling.
The effect of this is that, by the time this Judgment has been delivered and Final Parenting Orders pronounced, the parents and family will presumably have had the benefit of individual and family counselling for a period of time and will likely continue to do so. I say this because it was my observation of both the Mother and the Father that they genuinely appreciated the necessity for these Orders in the best interests of their children, and did not consent to then merely to appease the Court.
Evidence
The Father relied on the following affidavits and documents:
a)Initiating Application of the Father filed 7 October 2014;
b)Affidavit of the Father filed 7 October 2014;
c)Affidavit of Ms W filed 7 October 2014;
d)Affidavit of Ms E filed 7 October 2014;
e)Affidavit of the Father filed 2 December 2014;
f)Affidavit of the Father filed 23 January 2015;
g)Affidavit of the Father filed 26 November 2015;
h)Affidavit of Ms W filed 26 November 2015;
i)Affidavit of the Father filed 1 July 2016;
j)Amended Initiating Application of the Father filed 12 September 2016;
k)Affidavit of the Father filed 12 September 2016;
l)Outline of Case of the Father filed 28 September 2016;
m)Affidavit of the Father filed 29 September 2016; and
n)Affidavit of Dr T filed on 3 October 2016.
The Father tendered the following exhibits:
a)exhibit A2 – photo from Google Maps including McDonald’s at (omitted);
b)exhibit A3 – bundle of incident reports recorded by staff in relation to the children at (omitted) College during the period of July and August 2016;
c)exhibit A4 – (omitted) Family Services Report Summary dated 11 November 2016;
d)exhibit A5 – SMS messages between the Father and Ms Y dated 8 March 2014 and 2 May 2014;
e)exhibit A6 – bundle of SMS messages between the Father and the Mother from the period between January 2014 and June 2014; and
f)exhibit A7 – recording made by the Father of communications with the children dated 1 October 2015.
The Father, Dr T, Ms E and Ms W were cross‑examined
The Mother relied on the following affidavits and documents:
a)Response of the Mother filed 4 December 2014;
b)Affidavit of the Mother filed 4 December 2014;
c)Affidavit of the Mother filed 28 July 2015;
d)Affidavit of the Mother filed 27 November 2015;
e)Affidavit of the Mother filed 3 May 2016;
f)Affidavit of the Mother filed 13 July 2016;
g)Affidavit of the Mother filed 19 September 2016;
h)Amended Response of the Mother filed 19 September 2016;
i)Outline of Case of the Mother filed 30 September 2016; and
j)Affidavit of Ms Y filed 3 October 2016.
The Mother tendered the following exhibit:
a)exhibit R1 – interviews conducted by Detective Senior Constable L from (omitted) Sexual Offences and Child Abuse Investigation Team (“SOCIT”) with each of the children on 15 August 2014.
The Mother and Ms Y were cross-examined.
The ICL relied on the following affidavits and documents:
a)Affidavit of Dr S filed 24 August 2015;
b)Affidavit of Dr S filed 12 October 2015;
c)Affidavit of Ms M filed 24 April 2016;
d)Family Report of Mr B dated 8 May 2015;
e)Family Report of Ms B dated 5 September 2016;
f)Outline of Case of the ICL filed 29 September 2016;
g)Affidavit of Ms A filed 29 September 2016;
The ICL tendered the following exhibits:
a)exhibit ICL1 – two letters from the Father to the children dated 28 May 2015 and 1 June 2015;
b)exhibit ICL2 – bundle of correspondence between the ICL, Dr T and Mr D, and correspondence from the Father’s solicitor to the ICL, in the period of August 2016;
c)exhibit ICL3 – bundle of incident reports prepared by teachers and coordinators at (omitted) College; and
d)exhibit ICL4 – Family Report prepared by Family Consultant MS B, dated 5 September 2016.
Ms B provided an oral report to the Court in the course of the proceedings, following consultation with Ms K and an interview with W. Ms B was cross-examined.
There was also a Family Report prepared by Family Consultant MR B, dated 8 May 2015, which neither party sought to have tendered into evidence.
I have dealt with the evidence of Ms Y when considering the allegations of family violence, and the paternal grandfather when considering the capacity of the parents and others, under s.60CC(3)(f) of the Act. I have not, however, referred to the evidence of Ms E (the paternal grandmother) as it did not assist the Court in relation to disputed matters.
Background
The parties married and cohabitated on (omitted) 1998 and separated on 10 January 2014 when the Father left the former matrimonial home to live with his patents. They divorced in 2 November 2015.
Between separation and June 2014, the Father spent regular unsupervised time with the children during the following days each week – each Wednesday afternoon to 7.00pm, each Friday from 4:00pm to 10:00pm and each Sunday from 10.00am to 9.00pm. The children also spent overnight time one night a week with their Father.
In June 2014, the Mother applied for an Intervention Order. An Interim Intervention Order was granted on 23 June 2014, with the Mother and children named as affected family members.
The Father was charged sometime later in 2014, with nine counts of reckless conduct endangering life or serious injury, and one count of a threat to kill in relation to the Mother. The reckless conduct charges were with respect to the children. The incidents that are the subject of these charges occurred over the period from Christmas 2013 to January 2014, in relation to the children, and in June 2014, in relation to the Mother. The children were interviewed by the (omitted) Sexual Offences Child Abuse Investigation team (“SOCIT”) on 15 August 2014. The record of interviews was admitted as an exhibit in the proceedings on the basis that they disclose the interviews took place, and not the truth of the content of the interviews. Each of the charges was struck out by a Magistrate on 10 November 2015: Annexure H-1, Affidavit of Mr Heaton filed 26 November 2015.
On 7 October 2014, the Father initiating proceedings with respect to the children. By her Response filed on 4 December 2014, the Mother sought Orders with respect to the property of the parties. The following summarises the Interim Orders made and relevant procedural matters:
a)on 8 December 2014, Consent Orders were made requiring the parties to register at the Berry Street Contact Centre to enable the Father to spend supervised time with the children. The Father was permitted to deliver to the children, by post or courier, Christmas cards, birthday cards and presents to the Mother’s solicitor’s office;
b)on 29 January 2015, the Court requested the appointment of an ICL for the children and ordered the preparation of a Family Report pursuant to sub-s.62G(2) of the Act. The Mother was ordered to keep the Father informed of any illnesses or injuries affecting the children and requiring medical attention, and to authorise the school attended by the children to provide the Father with relevant information;
c)on 18 May 2015, copies of a Family Report prepared by Family Consultant Mr B were released to the parties;
d)on 22 May 2015, Orders were made for the children to live with the Mother, for the Mother and Father to attend upon Dr S for the purpose of psychological assessment, that the Father continue to attend counselling with a Counsellor (Mr L) from Family Care, that the Father spend supervised time as nominated by the Berry Street Contact Centre and that the ICL obtain reports from the Centre about the Father’s time with children;
e)on 30 November 2015, the Court ordered that a final hearing listed on 8 February 2016 be vacated and that the matter listed for final hearing commencing 26 September 2016, with an estimated time of three days. An Order was made for the preparation of a further Family Report;
f)on 13 April 2016, an application made by the police on behalf the Mother for an Intervention Order was dismissed;
g)on 5 May 2016, following an interim hearing, Orders were made for the Father to spend time with the children each Saturday from 9.45am until 1.45pm, subject to either of the paternal grandparents supervising such time on the first four occasions and, thereafter, to be in substantial attendance, with changeovers to occur at the Berry Street Children’s Contact Centre. The Orders also provided for the Father to utilise the services of a professional supervisor for an additional period of four hours during the school term or six hours during the school holidays, with changeovers to occur at a McDonald’s near the former matrimonial home. In accordance with the recommendations of Dr S, Orders were made for the Father to attend on a clinical psychologist nominated by the ICL. Restraints by injunction were placed upon the parties from posting on social media, or other electronic means, any information photographs or details relating to the children and the other party, or allowing a third party to do so, and restraints by injunction were placed on the Father from contacting the children by any means whatsoever (other than in accordance with the Orders). The Father and/or his agents were restrained from contacting or communicating with the Mother’s workplace for the purpose of discussing these proceedings. Finally, the Father was restrained by injunction from attending the children’s school;
h)on 7 September 2016, a Family Report, dated 5 September 2016, prepared by Family Consultant Ms B was released to the parties;
i)as indicated earlier, on 18 November 2016, Consent Orders were made with respect to the Mother and Father to engage in counselling, as well as the parties and the children attending family therapy.
The effect of both the Intervention Order made by the Magistrates’ Court and the Court’s Interim Orders are that:
a)from late June 2014 until December 2015, the Father spent no time with children;
b)the Father spent supervised time with the children at the Berry Street Contact Centre from 20 December 2015 to 10 April 2016;
c)from May 2016, the Father spent time with the children supervised, initially by his parents, and then with his parents in substantial attendance, each Saturday morning until lunchtime. In addition, he has spent additional time supervised by persons employed by the (omitted) Family Services.
From 17 July 2016, W has not spent time with his Father. Z has also not spent time with his Father on a few occasions in accordance with the extant Interim Court Orders.
Proposed Orders
The Parenting Orders proposed by the Father are as follows:
1. The Wife and Husband have equal shared parental responsibility for the children:
(a) X [sic] X born (omitted) 2002 (aged 14 years);
(b) X born (omitted) 2003 (aged 13 years);
(c) Y born (omitted) 2004 (aged 11 years); and
(d) Z born (omitted) 2006 (aged 9 years).
Collectively referred to as (“the children”)
2. The children live with the Wife.
DURING THE SCHOOL TERM
3. That for two months from the date of these orders the children spend time with the father each Wednesday from the conclusion of school until 7:45pm such time to be supervised by the paternal grandparents;
4. That twice from the date of these orders the children shall spend time with the father from 9:00am-5:00pm on Sunday;
5. That the children spend four occasions of time each alternate Saturday from 5:00pm to 5:00pm on Sunday, with the first two occasions to be spent in the home of the paternal grandparents.
6. That the children then spend a further four occasions of time with the father, each alternate week from the conclusion of school on Friday to 5:00pm Sunday.
7. That thereafter for a period of four months the children spend time with the father as follows:
(a) Each alternate week from the conclusion of school on Friday to the commencement of school on Monday or Tuesday if Monday is a Public Holiday;
(b) Each alternate week from the conclusion of school on Wednesday to the commencement of school on Friday.
8. That thereafter the children spend time with the father as follows:
(a) Each alternate week from the conclusion of school on Friday to the commencement of school on Monday or Tuesday if Monday is a Public Holiday.
(b) Each alternate week from the conclusion of school on Tuesday to the commencement of school on Friday.
9. As otherwise agreed between the parties in writing.
DURING SCHOOL HOLIDAYS
10. During four nights in each term break until Z is in secondary school by agreement or failing agreement from the day the children finish school until 10am on the night after the four nights have expired;
11. When Z has reached secondary school then for one half of the school holidays by agreement or failing agreement, the first half in each odd numbered year and the second half in each even numbered year.
12. As otherwise agreed in writing by the parties
Other times
13. That notwithstanding any orders to the contrary the mother’s time will be suspended as follows:
(a) For four hours on each of the children’s birthdays
13.a.1.1.1 If on a public holiday or school holiday from 9am – 1pm;
13.a.1.1.2 If it’s a school day then 3:30pm to 7:30pm;
(b) Each Father’s Day weekend from 3.30pm Friday until 9am on Monday;
(c) In each odd numbered year from 10am Christmas Day until 10am Boxing Day
(d) In each even numbered year from 10am Christmas Eve to 10am Christmas Day;
(e) In each odd numbered year from 5pm on Maundy Thursday to 10am Holy Saturday (for easter)
(f) In each even numbered year from 10am Holy Saturday to 10am Easter Monday
(g) In each odd numbered year from 3pm on New Year’s eve to 3pm on New Year’s day;
14. That notwithstanding any orders to the contrary the father’s time will be suspended as follows:
(a) Each Mother’s Day weekend from 3.30pm Friday until 9am on Monday;
(b) In each even numbered year from 10am Christmas Day until 10am Boxing Day
(c) In each odd numbered year from 10am Christmas Eve to 10am Christmas day;
(d) In each even numbered year from 5pm on Maundy Thursday to 10am Holy Saturday (for easter)
(e) In each odd numbered year from 10am Holy Saturday to 10am Easter Monday (for easter);
(f) In each even numbered year from 3pm on New Year’s eve to 3pm on New Year’s day;
OTHER ORDERS
15. That the Husband and Wife do all things and sign all authorities or other documents (if any) as may be required to authorise any school the children attend to forward to both parents, at their own expense, copies of school reports, photograph order forms, notices and newsletters normally provided to parents.
16. That by this Order, the Husband and Wife authorise any school to communicate with the Husband and Wife with respect to providing academic reports, providing newsletters and school/kindergarten photographs from time to time,
17. That the Husband and the Wife be at liberty to attend school events for the purposes of attending parent/teacher interviews, school concerts and special events to which parents are normally invited.
18. That the Husband and Wife keep the other informed as soon as reasonably practicable of:
(a) Any illness, accident, hospitalisation or medical condition in relation to the children or either of them when the children are in the parent’s care;
(b) Details of any medication to be taken by the children or either of them;
(c) Details of any medical appointments in relation to the children or either of them;
(d) Details of all medical and health care practitioners treating the children or either of them.
19. That the Husband and Wife follow the reasonable recommendations of the children’s treating medical practitioner with respect to her treatment provided that the full information and recommendations are provided to each party as soon as practicable.
20. That the Husband and Wife do all things and sign all authorities or any other documents (if any) as may be required to authorise any doctor, dentist or other health provided treating the children or either of them to communicate with the other parent in relation to the children or either of them.
21. That the Husband and Wife be at liberty to attend all appointments with medical or health care practitioners treating the children or either of them.
22. That the Husband and Wife facilitate telephone or video calls between the children or either of them and the other parent whilst the children or either of them is in their care as requested by the children or either of them and provide them with all assistance to make such telephone calls.
23. That the Husband and Wife keep each other informed of their current residential address, mobile and land line telephone numbers and any available email addresses and advise the other parent of any change within 7 days of such change.
24. That in the event any parent is unable to care for the children or either of them they offer the first right of refusal to the other parent;
25. That the parties be restrained by injunction from:
(a) Denigrating the other or their families, jobs, places of work or relationships to each of the children or either of them or allowing any person to do so;
(b) Posting on social media a photograph, video or other information about the children or either of them or allowing any person to do so;
(c) Using physical discipline to discipline the children.
26. That the husband and wife attend upon a counsellor for the further period of one year;
27. That the husband undertake any courses/programs as recommended by his counsellor;
28. That the parties and the children attend upon a specialist to have the children cognitively reassessed and following assessment the parties attend on all specialists to plan a consistent care proposal;
29. That the parties do all acts and things to facilitate the children attending upon a psychologist with specialism in autism.
30. That the parties communicate only via email or sms with sms messages to be used only in an emergency.
The Parenting Orders proposed by the Mother are as follows:
1. That all previous parenting orders be discharged.
2. That the Wife have sole parental responsibility of the children, W, born (omitted) 2012, X, born (omitted) 2003, Y, born (omitted) 2004, and Z, born (omitted) 2006 (“the children”).
3. That the children live with the Wife.
4. That the husband spend time with Y and Z as follows:
a. for 4 hours each alternate Sunday with time to be supervised by a professional supervisor and changeover to be between the wife and the supervisor;
b. any further other times as agreed between the husband and wife provided that a professional supervisor is present at the father’s time;
c. That all costs of the professional supervisor are to be met by the husband.
5. That W and X spend time with the husband as per paragraph 4 above only if they choose to do so; and the wife will use her best endeavours to encourage W and X to attend the time with the husband.
6. That the husband be restrained from attending within 200 meters of the wife’s property at any time or within 200 meters of the children’s schools or any of them.
7. That the husband be restrained from approaching or remaining within 5 meters of the wife and/or the children or any of them at any such times except as provided for in these orders.
8. That the husband continue to attend upon his clinical psychologist in accordance with their recommendations.
9. The husband be restrained by injunction for posting on social media or other electronic means any information, photographs or any details relating to the children, the wife or these or any other proceedings, or allowing any third person to do so.
10. The husband be restrained by injunction from contacting the children by any means whatsoever including via the internet, electronic means, telephone directly or by telephone through the school or any third person, or allowing any other person to do so.
11. The husband and/or his agents be restrained from making any contact or engaging in any communication with the mother’s workplace for any purpose relating to the wife or court proceedings or as an attempt to see or contact the children.
12. The husband be restrained by injunction from attending on the children’s school.
13. That the husband be restrained from physically disciplining the children at any time.
14. That the wife keep the husband informed of any serious illness or injury occurring to the children as soon as reasonably practicable and immediately in the case of any hospitalization to the children.
15. That the husband be permitted to obtain from the children’s school or schools any notices, newsletters, reports photographs and other information normally provided to parents in relation to their children at this expense. That these orders shall act as an authority for same.
16. That the husband be permitted to contact the children’s school, psychologist or other medical practitioners only in writing, and that those organizations be permitted to provide a copy of said correspondence to the wife and that these orders shall act as an authority for same.
17. That the wife be permitted to travel with the children interstate and/or overseas, provided that she provides at least 14 days’ notice in writing to the husband as to the dates that contact will not occur and provide proposed dates for make-up of time, and that the wife be excused from providing any particulars of those holidays to the husband prior to her travel; and the wife is not required to provide notice of any travel that does not interfere with the husband’s time with the children.
The Parenting Orders proposed by the ICL include those which have been agreed to by the parties and are incorporated in the final consent Orders made on 18 November 2016. The proposed Orders are as follows:
1. That all prior parenting orders be discharged.
2. The parents have equal shared parental responsibility for the children, W, born (omitted) 2002, X, born (omitted) 2003, Y, born (omitted) 2004 and Z, born (omitted) 2006 (“the children”).
3. The children live with the Mother.
4. The children spend time with the Father as follows: -
(a) Each alternate week 10.00am Saturday to the commencement of school on Tuesday or 7.00pm on a non school day for a period of six months;
(b) Thereafter each alternate week from 10.00am Saturday to commencement of school on Wednesday or 7.00pm.
(c) As otherwise agreed to between the parties in writing.
During school holidays
5. Commencing term two 2017 for five nights in the term holidays and two blocks of five nights in the long vacation.
6. Once Z commences secondary school for one half of the school holidays by agreement or failing agreement, the first half in each odd numbered year and the second half in each even numbered year.
7. Shared special occasions.
8. As otherwise agreed in writing by the parties
9. For the purpose of changeover of the children that do not occur at the school the parties will meet at Berry Street for a further twelve months subject to availability and thereafter McDonalds (omitted).
10. That both parents be restrained by injunction from;
(a) Physically chastising the children or any of them;
(b) Criticising or speaking negatively about the other parents or their extended family in the presence or within hearing of the children or any of them;
(c) Exposing the children or any of them to family violence;
(d) in any way recording the children or any of them with any device save for special occasion mementos such as but not limited to Christmas and Birthdays celebrations and
(e) questioning the children as to parenting arrangements.
11. That the Father will continue to attend upon clinical psychologist Dr T for the purpose of counselling to address the recommendations of Dr S. The ICL to provide Dr T with a copy of the final Orders and Judgement in this matter.
12. The Mother will attend upon a clinical psychologist nominated by the ICL and the ICL provide to that professional a copy of the reports of Dr S, the two family reports and a copy of the final Orders and Judgement in this matter.
13. That the Father be restrained by injunction for posting on social media or other electronic means any information, photographs or any details relating of the children, the Mother or these proceedings, or allowing any third person to do so.
14. Each parent shall keep the other informed of any serious illness or injury occurring to the children as soon as reasonably practicable and immediately in the case of any hospitalization to the children.
15. The Mother, Father and children attend upon a family therapist as nominated by the ICL for the purpose of reportable family therapy. The Mother and Father share equally in the cost of the said therapy and any reports prepared by the said therapist.
16. The ICL will provide all professionals and allied health professionals including the children’s schools and DHHHS as referred to in these Orders with all relevant existing reports received in these proceedings.
17. The Father be permitted to obtain from the children’s school or schools any notices, newsletters, reports, photographs and other information normally provided to parents in relation to their children at his expense.
18. The father will engage with the school for the purposes inter alia to address the children’s special needs.
19. The father be permitted to attend the children’s school to participate in arranged activities that a parent would normally be invited to attend. That these orders shall act as an authority for same.
20. That the Father be permitted to contact the children’s medical practitioner, psychologist or other allied health practitioners, that these orders shall act as an authority for same.
21. That the parties and the children attend upon a specialist to have the children cognitively reassessed and following the assessment the parties comply with the recommendations of the assessment and the parties will provide a copy of the assessment to the school, family therapist and parties psychologist and children’s psychologist and any other relevant professional involved with the children.
22. That the parties do all acts and things to facilitate the children attending upon a psychologist with specialism in autism for the purpose of reportable counselling and the Mother and the Father engage with said psychologist as directed by the said psychologist.
23. The mother be restrained by injunction from permitting the children or any of them to attend counselling with Ms K.
24. The parents shall support the children or any of them to attend extra-curricular activities including Basketball when the children or any of them are in their care. Neither parent will commit the children or any of them to any additional activities without the written consent of the other parent.
25. The mother authorise all treating and allied health professionals involved with the children or any of them to communicate and provide information about the children to the father.
26. The ICL will provide copies of the Final Parenting Orders to DHHS and the children’s schools.
27. The ICL will explain the Orders to the children’s schools and to the children.
28. Discharge the ICL subject to providing the necessary documents to the specialists and recommending the professionals referred to above.
29. Pursuant to s.65DA (2) and s.62B, 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.
Family Violence
The Mother’s allegations of family violence perpetrated by the Father during the relationship are that he:
a)engaged in controlling behaviour of her, including stalking;
b)assaulted the children by smacking them, inappropriately physically restraining them and choking X, Y and Z; and
c)subjected the children to emotional abuse by yelling and swearing at them, displaying an explosive temper and exposing them to the killing of birds in a garden.
After separation, the Mother alleges that the Father:
a)made a threat to kill her;
b)has stalked her by video recording her house and following her vehicle after changeover;
c)intimidated her by throwing a rock at her house and imitating movements of her car on changeover;
d)denigrated and humiliated her through postings on his Facebook page in May 2016; and
e)harassed her at her workplace by communicating with the (employer omitted) to have her dismissed and, through his relatives, discussing the family law proceedings with the (employer omitted).
I note that there are other incidents raised by the Mother, one of which flows from evidence-in-chief given by the Father. In summary, these are:
a)the Father taped a conversation he had with the children on 29 September 2016, the weekend preceding the first day of the final hearing;
b)the Father attempted to gain entry to the school portal on 14 April 2016;
c)the Father contacted the Berry Street Children’s Contact Centre on 19 April 2016 requesting contact with the children on the basis that the Intervention Order had been struck out;
d)during a supervised visit at the Berry Street Children’s Contact Centre, the Father spoke to W, out of hearing range of the supervisor, saying that he did not punch anyone;
e)the Father told the children during a supervised visit on 27 July 2016 how a man suicided; and
f)during a supervised visit in or around September 2016, the Father showed the children how they could locate where he was on their iPhone.
I consider that these incidents are more appropriately addressed by the Court when it considers risk factors, the capacity of the Father to attend to the children’s emotional needs: sub-ss.60CC(2)(b) and 60CC(3)(f) of the Act.
In his oral evidence, the Father conceded that he engaged in family violence during the relationship. He conceded that during the period preceding separation he was controlling and stalked the Mother, because of his apprehension about an affair he believed she was having with a colleague of hers at the (employer omitted). He stalked her by turning on an application in her mobile phone that enabled him to ascertain her movements. The Father concedes that he behaved inappropriately in attempting to manage or discipline the children by shouting and yelling at them. He agreed that he had an explosive temper at times. He agrees that both the children and the Mother would have been distressed by, and scared of, that conduct. He concedes that on occasions he would have used swear words when frustrated. The Father agrees that, at times, he used inappropriate physical restraint with the children, such as lifting them under their armpits and holding their face with both hands so they would focus on what he was saying, when he was disciplining them, and he also agreed that he smacked the children. He made appropriate concessions that all of this constituted family violence, both physical and emotional abuse, towards children and the Mother. The Mother dismisses these concessions, in light of the Father’s denial in his affidavits that he engaged in family violence and to the Family Consultants. The Mother claims these concessions were simply made by a person who is intelligent enough to know what to say. She argues that they cannot be relied on by the Court as a demonstration of the Father’s insight into his conduct. As is apparent below, I have accepted the genuineness of the Father’s concessions and reject the Mother’s argument that these concessions were simply an attempt to manipulate the Court.
The Father denies, however, the Mother’s allegations that:
a)on Christmas Day 2013, he choked X;
b)on 29 December 2014, he choked Z or, alternatively, he denies that he lifted Z using both hands around his neck, lifting him off the floor for a period of 15 to 20 seconds;
c)on 10 January 2014, he choked Y;
d)on 22 June 2014, he made a threat to kill the Mother;
e)he has stalked her by video recording her house and closely following her vehicle after changeover;
f)threw a rock at her house as he drove by and stalked her in his vehicle on three changeovers in 2016; and
g)harassed her at her workplace by communicating with the (employer omitted) to have her dismissed and, through his relatives, discussing the family law proceedings with the (employer omitted).
Before dealing with the specific allegations of family violence, it is appropriate to set out the evidence about the parenting arrangements and the communication between the parents between separation on 10 January 2014 and the making of the Interim Intervention Order on 23 June 2014, following which the Father’s time with the children ceased.
As noted earlier, from February 2014 until 23 June 2014, the Father spent regular time with the children without supervision. The Father has tended an exhibit containing SMS text messages between the parents from the period between January 2014 and June 2014 (exhibit A6). I have read these numerous SMS text messages. It is clear from those messages that the Father wanted to reconcile with the Mother, that he confessed to her that he inappropriately directed his frustrations with her towards the children and that his conduct was hurtful. There is also, though, throughout that period, evidence of what I would describe as respectful communication between the Mother and Father, regarding arrangements for the children. There is nothing to suggest from these text messages that the Mother felt anxious about dealing with the Father or had any concerns about the safety of the children in the Father’s care.
On 2 - 3 May 2014, the Mother participated in a fundraising walk for (omitted). The Mother agreed, in cross-examination, that the Father was part of the Mother’s support crew for the team, although she also said she did not want him to come. She agreed that when she got hypothermia during the last leg of the walk (around 10 km) he supported her, more or less carrying her. She agreed that he subsequently sat with her at the hospital, presumably while she was receiving treatment, and went to the paternal grandparents’ house, where children were being cared for during the (omitted) walk, to check on their wellbeing. The Mother’s oral evidence that she did not want the Father to support her during the walk is not consistent with the SMS text she sent to the Father. There is no SMS text message in which the Mother conveys to the Father that she did not want him to provide support. In my opinion, the tenor of the SMS text messages is that she was content about his involvement. The Mother said that she was uncomfortable with the Father remaining with her whilst she was in hospital, however, again the SMS text messages between the parties contradict this evidence.
When asked why she left the children in the Father’s care before 23 June 2014, given her serious allegations of family violence; particularly those that she alleged occurred in the period over Christmas Day 2013 to 10 January 2014 (see [33] above), the Mother said that she did not know the extent of the violence until the Department of Health and Human Services (DHHS) became involved, and until she saw the record of interviews conducted by SOCCIT in August 2014. She said she was also trying to keep the family together. The Mother was unable to explain why she had not reported these serious allegations to her good friend Ms Y, who is a manager at DHHS, until June 2014.
The Mother’s allegation that the Father made a threat to kill her was triggered by her conversation with Ms Y about events that transpired at the (employer omitted) on the evening of 22 June 2014.
Ms Y annexed to her affidavit, filed on 3 October 2016, a statement she made to the police on 13 August 2014. It should be noted that this statement, and the statements made by the Mother and children, formed the basis for the charges laid by the police against the Father. In the police statement, Ms Y described the Father as quite agitated and behaving erratically. In cross-examination, Ms Y said that his erratic behaviour involved him storming in and out of the room where the service was being held, going in and out of the foyer and that he was focused on the Mother the whole time. She said that this erratic behaviour occurred for the whole time he was there; that is, from when the (employer omitted) commenced at 6.00pm, to 8.00pm. She said she believed he was affected by some substance and was having a mental health breakdown. She said that he was yelling and ranting when he attempted to follow the Mother into a secure office and a member of the (employer omitted) stopped him from doing so.
At some point during the evening, Ms Y said the Father yelled out that if he was not in the former matrimonial home by 10 July 2014, “[the Mother] had better watch out”. Ms Y believed that this statement constituted a threat towards the Mother and that the Mother may be in danger. She told the Mother about this “threat” by the Father. It should be noted that this statement related by Ms Y to the Mother is the only basis upon which the Mother alleges that the Father made a threat to kill her. Ms Y said in her statement that the next morning; that is, 23 June 2014, the Mother told her that she feared for her safety and that the boys’ safety was at risk.
The Father denied that he behaved erratically, that he followed the Mother into the secure office area, that he was yelling and ranting and that he shouted out that if the Mother was not out of the house by 10 July 2014, she had better watch out. The Father gave evidence that for a period of time, he sat next to the Mother at the back of the (omitted), and that, in order for him to follow the Mother into the secure office, he would have had to walk past the (omitted)
Ms Y was cross-examined. I generally found her evidence unconvincing and at times implausible. I find it implausible that, if the Father was conducting himself in the manner described by Ms Y, the (employer omitted) would not have taken steps to escort the Father outside the (omitted). In my view, Ms Y embellished her evidence about the Father’s conduct. As I am not satisfied she is a credible witness and, in the absence of any other corroborating evidence to support her allegation that the Father yelled out during the (omitted) at the (employer omitted) held 22 June 2014, I do not accept Ms Y’s evidence that the Father yelled out that, if he was not in the former matrimonial home by 10 July 2014, “[the Mother] had better watch out.” Further, I find that the Father did not conduct himself in the manner described by Ms Y. I accept the Father’s evidence about how the events of this evening transpired.
The application for an Interim Intervention Order was made on 23 June 2014. A copy of this application is annexed to the Mother’s affidavit filed on 4 December 2014 (H-8). The explanation for why the Intervention Order is needed is as follows:
The AFM and Resp are husband and wife and 4 sons together. The Resp has not been living in the family home for nearly 6 months as a result of family violence. The AFM states that the Resp has been physically violent towards their children and is increasingly controlling and manipulative in his behaviour towards her. Most recently on 22/6/14 the Resp attended the AFMS workplace. He was aggressive and belligerent towards management and the AFM, then standing and just watching the AFM. On 18/6/14 the Resp demanded the passwords to her personal account, sending 13 text messages. AFM states that this sort of behaviour is a common occurrence and that the Resp will ring the children and asked them what her bank password etc are. On 15/6/14 Resp contacted AFMS workplace ordering that the AFM be fired. Resp also made threats towards the AFM regarding 12 July as that date marks six months since he left the house previously. On 5/6/14 the Resp text the AFM saying the only reason that he hurts the boys is to hurt her and that it’s all her fault. On 25 /12/13 the Resp strangled their son X. Around 29/12/13 the Resp strangled Z. On both occassions the boys struggled to breathe. On 10/1/14 Resp dragged Y by the hair through the house to the outside steps where he strangled him and yelled at him. As a result of these 3 incidents the AFM left with the boys. Later they returned to the home and Resp moved out. AFM states that through out the past few years the Resp has been controlling, stalking and tracking her movements.
The AFM is concerned that the date of 12 July is approaching and that the Resp’s behaviour is increasingly aggressive and intimidating. She seeks an order to protect herself and her sons.
The following can be said about the grounds for the Mother’s application for an Intervention Order. Firstly, she says that the Father has “strangled” X, Z and Y. Secondly, the Mother does not state that the Father has made a threat to kill her. Rather, she referred to threats to her in general terms, referring to 12 July 2014 as the date that marks six months since he left the house previously.
Fourthly, the characterisation by the Mother of the Father demanding the passwords to her personal account misrepresents the circumstances. From a perusal of the SMS text messages (exhibit A6), it is evident that the communication about bank accounts commenced when the Father discovered that the Mother had closed down the children’s bank accounts and transferred the money into their joint accounts. It is apparent that the Father, in the course of these SMS text message exchanges, asked the Mother whether she has changed her account. But this appears to be in circumstances where the Father and Mother accessed the same account.
Fifthly, the reference to the Respondent attending the Applicant’s workplace on 22 June 2014 and conducting himself in an aggressive manner, can only be based on the allegation made by Ms Y about the Father’s conduct during the (employer omitted) on that evening. I have found that the Father did not act in an erratic and aggressive manner as alleged by Ms Y.
Sixthly, the Mother’s evidence in support of her allegation that the Father contacted the Mother’s employer – the (employer omitted)– demanding she be dismissed is unconvincing. She was unable to identify with precision who told her that the Father had contacted management. She said that it might have been the Chairman of the (employer omitted), Ms Y’s husband.
Finally, the Mother relies on SMS text messages from the Father in which he concedes that he has hurt the children out of frustration with the Mother. However, again, this characterisation by the Mother is, in my view, misleading. As the Mother conceded in cross-examination, the Father’s SMS text messages to her were in fact an emotional outpouring out of his regret and feelings towards her and he did not say that it was all her fault.
It is appropriate to refer to the contents of the DHHS section 67Z Response (“Response”), as this also formed the background to the cessation of the Father’s time with the children and the preparation by experts called upon to prepare reports during litigation.
The DHHS Response is undated. It was prepared as a consequence of the filing of a Notice of Risk by the Mother. It was received into evidence by an Order made by the Court on 22 May 2015. It states that on 25 July 2014, a report was received by the Department raising concerns that the children were being exposed to, and the victims of, ongoing violence perpetrated by the Father. The Mother says that this report was made by the school following disclosures by the children. As is the practice, the DHHS has not disclosed the reporter. The Response goes on to say, “it was reported that on three separate occasions [the Father] had assaulted two children by choking them until they were crying and bright red, cutting heads of birds in front of the children and attending [the Mother’s] workplace and making threats.” The Response refers to the interviews by SOCIT and summarises the contents of the interviews with the children and their demeanour during the process. As a copy of these interviews has not been introduced into evidence before the Court on the basis of the truth of the content, I will not quote from this part of the report. It is apparent however, from the description by DHHS, that the Department gave weight to these interviews. The Response noted that a formal interview was conducted with the Father on 28 August 2014 by the Department, whereby he denied all allegations made against him. The Response stated that “[f]ollowing the Investigation being carried out, it has been assessed that the children had suffered from significant physical, psychological and emotional harm.” Subsequent interviews were conducted by DHHS with the Mother and the children. The Response noted that “[s]ince the Departments involvement, the children have thrived in her care and have made vast improvements at school.” In relation to interviews with the children, Z stated that he would be happy to see his Father, W stated he was unsure, while attempts to talk to X and Y proved fruitless. An approach was made to the Father on 17 February 2015 to interview him. The Response noted that the Father refused to engage on the basis that he felt he had been wrongly treated in the previous investigation. The Response noted that in light of the Father’s decision, the department was unable to assess what risks the Father posed to the children. The Response noted, however, that on 13 March 2015, it had received an L17 Family Violence report advising that the Father had, “been observed driving past the family home on two occasions on the 10/03/15 and once on the 12/03/2015, subsequently breaching the current Intervention Order. This indicates that [the Father] continues to lack insight into his behaviour.”
It is clear that this Response was crafted on the basis of allegations which are presently before this Court to determine. The probative value of this response will depend, therefore, on the findings of this Court about those allegations.
Threat to kill
The Mother deposed in her affidavit filed on 3 May 2016 at [11] that the Father made threats to kill her. She maintained this serious allegation during the course of the final hearing. The evidence is that the Mother did not hear the Father make a threat to kill her. Rather, she relies on Ms Y reporting to her, that during the course of the (employer omitted) on 22 June 2014, the Father yelled out that if he was not in the former matrimonial home by 10 July 2014, “[the Mother] had better watch out.”
The Mother maintained in cross-examination that this statement constituted a threat to kill. In my opinion, if the Mother believed that on the previous evening, the Father had made a threat to kill her, she would have specifically stated this in her application for an Intervention Order. It beggars belief that she would not recite, in specific terms, a threat by the Father to kill her, as grounds for needing protection for herself and her children. I do not accept that a pithy reference in the application to the Father also making “threats towards (the Mother) regarding 12 July” constituted an allegation being made by the Mother of a threat by the Father to kill her. The Mother gave evidence that her mind was focused on other things. In my view, in circumstances where a person believes their former partner has made a threat to kill them only the night before, it would be at the forefront of their focus in making an application for an Intervention Order.
I have earlier found that the Father did not make or yell out the statement Ms Y alleges, that if he was not in the former matrimonial home by 10 July 2014, “[the Mother] had better watch out.” I am not satisfied to the requisite standard (see s.140 of the Evidence Act 1995 (Cth)) on the balance of probabilities, that the Father made a threat to kill the Mother.
Accordingly, I find that the Father did not make a threat to kill the Mother. I am at a loss to understand why, in circumstances where the basis for this serious allegation was tenuous to say the least, the Mother made and maintained this serious allegation throughout the proceedings. I do not intend to speculate on her reason, save to say that it has affected, from the Court’s point of view, her credibility as a witness in relation to disputed allegations of family violence. Accordingly, in circumstances where there are disputed allegations of family violence, without corroborative evidence, I have generally preferred the evidence of the Father.
Choking the Children
The Mother alleged, in the application for an Intervention Order made on 23 June 2014, that the Father had “strangled” X, Y and Z. She reported this to Dr S during her interview for the purpose of the psychiatric assessment. The Mother deposed in her affidavit, and maintained in evidence, that she was told by both X and Y on separate occasions that the Father had choked them, and that she saw the Father choking Z. These incidents are said to have occurred over the period between Christmas Day 2013 to 10 January 2014. The Mother’s oral evidence about the Father perpetrating family violence through the choking of these children was inconsistent. Initially, during cross-examination by Counsel for the ICL, she said that she saw with her own eyes the Father choking all three children. However, once she was taken through her affidavit material, she corrected her evidence, stating that she saw the Father only choking Z.
Clearly, these are also very serious allegations which were not reported by the Mother to any authority or, in respect of which, she did not take protective action until the making of an application for an Intervention Order on 23 June 2016.
The Mother describes the allegation that the Father choked X at [34] to [35] of her affidavit filed on 4 December 2014. Her evidence is that the family were at the maternal grandparents’ house on 25 December 2013. She says that the Father had been drinking wine throughout the day. At around 1.30pm, the children were all about to open their presents, but X did not want to. She says that she saw the Father drag X from his hiding place to the rear of the house, at which time they disappeared from her sight. She said that after a few minutes, the Father stormed back inside, not saying anything but looking very angry. X then returned, his face was red and he was crying and very distressed. She says that X said that, “daddy choked me, I couldn’t breathe”. Her evidence is that after the children had opened their presents, she took the children out of the house to McDonald’s and the Father went to bed.
The Father denies that he was drinking heavily that day. He agrees that he took X outside so as not to embarrass him whilst he dealt with his behaviour. He says that he lifted X under the arms, so that X would focus on the discussion, but denies choking X. In the interview with family consultant, Mr B, X referred to an unspecified date when his Father picked him up under the armpits and put him on the grass with his foot on his stomach.
I am not satisfied that X told his Mother that his Father choked him. X’s description to Mr B about being lifted under the armpits is more consistent with the Father’s evidence. Had the Father placed his hands around X’s neck and squeezed his neck, I would expect that X would have recalled that incident, rather than recalling being lifted under the armpits.
Accordingly, I find that X was not choked by his Father on 25 December 2013. This is not to suggest that the Father did not engage in physical discipline which plainly scared X, and which I am satisfied amounted to family violence.
The Mother describes the allegation that the Father choked Z at [36] of her affidavit filed on 4 December 2014. Her evidence is that she and the children were in the kitchen/family room area of the house on 29 December 2014. She says that the children were playing loudly when the Father aggressively stormed into the room and went straight towards Z, who sat on the floor defensively. She said the Father picked him up by his neck and Z’s legs were dangling in the air. She says that he held Z in the air for around 15 or 20 seconds and then dropped him and walked out of the room. The Mother did not describe this incident in the affidavit as an episode of choking, however, in her application for an Intervention Order made on 23 June 2016, she relied on this incident for her allegation that the Father strangled Z.
In her oral evidence, the Mother disagreed with a proposition put by Counsel for the ICL that there was nothing in her affidavit to suggest that she witnessed Z being choked. Her evidence was that the Father’s actions, in putting his hands around Z’s neck, constituted an act of choking Z. She agreed with Counsel for the ICL that the definition of choking would be “stopped the breath by squeezing or obstructing the windpipe to strangle or to stifle.” She nevertheless, maintained that her description of the Father’s conduct in her affidavit “looked like” Z was being chocked.
The Father denies that he picked Z up by his neck. His evidence is that he held Z under his armpits.
The Father has also given evidence that, during the relationship, he has held the children’s face with his hands, when disciplining them, so that they look at him and focus on what he is saying. I have formed the view from the evidence and the Father’s concession that, when engaging in this action, the Father has been frustrated and angry, and this will have scared and distressed the children. There can be no doubt that this conduct, restraining them by holding their faces, whilst dealing with them in an aggressive manner, is not merely inappropriate parenting, but abusive, and constitutes family violence.
Z told the family consultant, Mr B, that one time his Father put him up against the wall holding his neck. Mr B described this as “a two hand choke”.
I am not satisfied that the act of putting hands around the neck constitutes choking or indeed strangling.
I have formed the view that the resort to the words “choking” and “strangle” have been carelessly used by the Mother and, indeed, Mr B.
The question then becomes whether, in fact, the Father put his hands around Z’s neck or under his armpits. Z’s version of events as put to Mr B, is only consistent with the Mother’s version so far as both say that the Father put his hands around Z’s neck.
Given the Mother’s general inconsistency about her allegations that the three younger boys were choked or strangled by the Father, I am unable to accept the Mother’s version of events that occurred on 29 December 2013. I am not satisfied, however, that the Father lifted Z by his armpits. Having considered the evidence carefully, I am satisfied that it is more probable than not, that the Father held Z’s face with his hands. When one considers that Z was a small child of the time, it may well have felt to him that the holding of the face by his Father included holding his neck.
Accordingly, I find that Z was not choked by his Father on 29 December 2013. I find, however, that the Father engaged in physical discipline with Z, which I am satisfied amounted to family violence.
The Mother describes the allegation that the Father choked Y at [37] of her affidavit filed on 4 December 2014. Her evidence is that on 10 January 2014, the family were at the paternal grandparents’ house for a family dinner along with the Father’s extended family. Y and Z were arguing in the computer room and she went into the computer room to calm the boys down, whereupon the Father came in from behind and grabbed Y by the hair, dragging him down the stairs and into the backyard. She says she was screaming to the paternal grandfather to make the Father stop. She says she tried to go out to help Y but was prevented from doing so by the paternal grandfather. She said she then went to the front of the house and collapsed on the front yard crying. She then says that Y came out to the front saying “daddy choked me, daddy choked me”. She says that he told her repeatedly that he could not breathe. Her evidence is that she sat with him and they cried, following which she took Y and W for a short walk and then left the paternal grandparents home.
In cross-examination, the Father agreed that he behaved aggressively in dealing with Y on that day. He conceded that he was shouting in what Y described as a “mean voice.” He said that he led Y by the arm and used his hand on the back of Y’s neck to take him downstairs to discipline him. The Father said that he did not hold Y by the neck. His evidence, in cross-examination, was that he did not think he lifted Y up, that it was likely if Y was trying to move away he would have held him on the shoulders or by the face to keep Y’s attention. The Father also conceded he may well have been swearing because, when frustrated with the children, he did swear. He also agreed that Y may well have been crying after he went upstairs. The Father said that Y was not crying whilst he was disciplining him outside the house. He agreed, however, that his conduct would have scared Y.
In the interview with Mr B, Y described an incident where his Father was “aggressive”. Y is reported as saying, “he went outside, holded me here” (which Mr B described as Y wrapping his hands around his throat), “and put me to the wall holding me on my head” (which Mr B reported Y describing a hand on each side of his head), “I was off the ground it hurt.”
In the report attached to the affidavit filed by Ms A on 29 September 2016, regarding supervised time of the Father with the children, the following is reported to have occurred during the supervised session on 7 September 2016 (at page 13):
Z said “W is still annoying me!” Dad said “That’s no good, but I’m sure you annoy him sometimes too Z.” Y said, “W choked me.” X replied quickly “No he didn’t Y, he grabbed your foot and held on to it.” Y said, “He choked my foot!” X said, “W doesn’t let anyone else in his room except me.” Dad said, “You have always been close to X.”
The Mother agreed in cross-examination that the reference to “choke” was a synonym for grab and that the word choke is being used loosely by the children.
This extract from the report, in my opinion, demonstrates that Y lacks an understanding about what the word “choke” means. Even if he told the Mother that the Father choked him, he may well have been referring to the fact his Father grabbed or “holded” him. Further, I have difficulty understanding how, if, as the Mother says, Y repeatedly said he could not breathe, she did not take any action to satisfy herself that the conduct she alleges the Father engaged in had not hurt Y in some way. It seems common sense that she might at least have taken him for examination by a general practitioner or at an emergency centre of the local hospital.
I prefer the Father’s evidence to the Mother’s evidence, which is that he led Y by the arm with one hand and with the other hand at the back of his neck, to the area underneath the house. I am satisfied that Y was again likely restrained by his Father, putting his hands on either side of Y’s face. I am satisfied that the Father was frustrated and angry, and yelled at Y, and that the young boy was very scared and upset. In these circumstances, it seems to me that Y may have confused the actions of the Father as he took Y below the house, and his actions underneath the house. Furthermore, Y’s alleged statement to his Mother that his Father choked him cannot be taken on face value in circumstances where Y appears to use this word when, in fact, he means grab a part of the body other than the neck.
Accordingly, I find that Y was not choked by his Father on 10 January 2014. I find, however, that the Father engaged in physical discipline with Y, which I am satisfied amounted to family violence.
Killing of birds
The Mother alleges that the Father trapped and killed birds in the presence of the children. The Father’s evidence is that the Mother was scared of the Indian Myna birds in the garden. He said he did trap three or four birds and killed them by twisting their necks or using secateurs. He said he was not aware whether or not the children had observed him do this.
I accept the Father’s explanation for his actions. I am not satisfied that the children were present when this occurred. There is no reference by the children to this in any of the material before the Court. There is no suggestion that the Father forced the children to watch. Consequently, I reject the Mother’s allegation that the children suffered emotional abuse as a consequence of watching the Father kill Indian Myna birds in the garden.
Stalking, Intimidation, denigration and humiliation, and harassment post‑separation
I now turn to consider the remainder of the Mother’s allegations about family violence towards her post‑separation.
The Mother alleges that that she has seen the Father drive past her house and that he has videotaped her house. On another occasion, she alleges that the Father threw a rock at the house from his car as he drove past. The Father denies these allegations. There is no corroborative or other evidence to support the Mother’s allegations. In relation to the allegation that the Father threw a rock at her house, the Mother was unable to recall when this occurred. I have already formed a view that many of the Mother’s allegations of serious family violence had no substance to them and that her evidence in relation to them was inconsistent. I have indicated that, where there is a dispute between the parties in relation to allegations of family violence, I would prefer the Father’s evidence. This is one of those instances. I find that the Father did not drive past the Mother’s house, either throwing a rock at the house, or for the purpose of videotaping her house.
The Mother alleges that the Father has harassed her at work, demanding her termination and complaining about people staying at her house. She could not recall who informed her that the Father had demanded her termination. The Father denies these allegations. There was no probative evidence placed before the Court to support these allegations. Again, for the reasons set out above, I prefer the Father’s evidence and do not accept that these incidents occurred. The Mother also alleges that the Father attempted to exercise control over her by contacting an electrician who had performed work at the former matrimonial home. The Mother alleges that the Father questioned the electrician about whether a security system had been installed. The Father said that he was aware that work had been performed and rang up to enquire what had been done. It is not clear to me whether the parties were sharing the costs associated with any improvements to the former matrimonial home. If they were not, this work was none of the Father’s business; if they were, then the Father was properly entitled to find out what work was being done. It is not clear when this occurred. In the absence of further information, I am unable to find that this was evidence of the Father attempting to exercise control.
The Mother alleges that the Father humiliated and denigrated her by way of Facebook messages he posted in or around 10 November 2015. I made findings to this effect in my interim decision: Heaton & Heaton [2016] FCCA 1740. The Father gave evidence that, following this decision, he disabled his Facebook account. I accept this evidence.
The Mother said that the Father stalked her and attempted to intimidate her on three occasions at changeover time. In her evidence-in-chief, having given evidence about these allegations, the Mother said that she was distressed by this behaviour and that she was worried the family violence would continue forever and never stop.
On the first occasion, on 10 August 2016, the Mother says that she was driving out of the McDonald’s car park in (omitted) and noticed the Father’s car parked on (omitted) Road (a street she says was adjacent to the car park). She says his car was parked around 40 meters from the car park, and that when she had to drive past him, he began to follow her, despite the fact that he was about to spend time with the children at McDonald’s, which is in the other direction. She said that she stopped driving and, when she stopped, he also stopped. She said she drove forward again and he drove forward and that this happened several times.
The Father denies that this occurred. He said that he parked further south in (omitted). He said he was parked where he could not see the McDonald’s car park, because his view was blocked by a 10 foot fence. Furthermore, he said that there is only one exit and entry point from McDonald’s and, in order for the Mother to return home, she would have had to turn left to go north to where she lived. He said that she would only have passed (omitted) Road if she had turned right.
A Google map of the McDonald’s car park, (omitted) and surrounding roads was produced by the Father and marked as exhibit A2. The Mother marked in orange highlight where she says she was parked and where the Father was parked.
The Mother did not seem to dispute the Father’s evidence that there was only one entry and exit point from that McDonald’s. The Mother’s evidence was that she was driving “down” and passed the Father. I must confess, having examined Exhibit A2, that I fail to understand what the Mother meant by the use of the word driving “down”. This was not the subject of any evidence but, it appears to me, from examining the Google map contained in Exhibit A2, that (omitted) Road commences as an exit from a main road, (omitted) Road, and passes the entrance to McDonald’s in a curve to (omitted) Road, further west. This curve appears to be a one-way street. (omitted) Road also, however, prior to the entry/exit to McDonald’s, travels adjacent to McDonald’s. This is a two way street. It seems to me that even if the Father was parked in the two way street of (omitted) Road, the Mother could only have exited from McDonald’s car park left, not right. No explanation was proffered why the Mother might have turned right and thus passed that part of (omitted) Road, which is a two way street.
Having considered the evidence, I am not satisfied that the Father engaged in the conduct alleged by the Mother on 10 August 2016.
The next two occasions on which the Mother alleges the Father stalked her were following changeover at the Berry Street Contact Centre. They are described by the Mother in her affidavit filed on 19 September 2016 as follows at [13]-[15]:
13. On 3 September 2016 at approximately 1.35pm, I was driving along (omitted) Highway on my way to Berry Street Contact Centre to collect the children. Shortly after turning on to the bypass, I noticed Mr Heaton following closely behind me in his own car. He had X, Y and Z in the car. The Husband stayed directly behind me from (omitted) all the way to (omitted). He did not change lanes or overtake me. He sat several metres behind me where he knew that I would see him.
14. On 11 September 2016 at approximately 9.40am, I was again driving to Berry Street Contact Centre, this time with the three younger children in the car with me. I once again saw Mr Heaton’s car following closely behind my car. Once again he did not change lanes or attempt to overtake and sat behind me all the way to (omitted).
15. I don’t know if the Husband was “lying in wait” for me to turn on the (omitted) Highway, deliberately timed his trip and route to coincide with mine or it was complete coincidence (two weeks running), however I am sure that his behaviour in sitting right behind me was a direct attempt to intimidate and unnerve me.
In my opinion, the evidence discloses that the Mother has not thus far facilitated the children’s relationship with the Father. Her oral evidence about the steps she takes to facilitate the relationship was unconvincing. Even accepting that children diagnosed with autism require regularity and guidance, her efforts, as she described them, to positively encourage them prior to spending time with their Father, were limited to the mechanics of waking them in the morning and assisting in their dressing and feeding. She gave no evidence about talking encouragingly to them about their Father or the time they would spend with him.
Her evidence was that, after his last supervised session with the Father, W had told her that he wished he was dead and that his brothers hated him. In cross-examination, she said she dealt with W’s distress by comforting him and telling him she loved him. She said, in response to a question from the Counsel from the ICL, that she did not reassure W that his feelings were not about the Father and that he had enjoyed spending time with him.
The evidence is that the Mother is unable to regulate her emotional response to the Father in front of the children. It is apparent that she is reduced to tears in front of the children, and that this is not necessarily uncommon. W’s report to Ms B about his exposure to the Mother’s sadness and anxiety about his Father is concerning. Ms B’s opinion about the potential impact of this on W is compelling. The Mother conceded that the children would be aware of her concern about them spending time with their Father and that she has cried in the car as she dropped them off to spend time with the Father.
On Saturday 12 November 2016, Z did not spend time with his Father in accordance with the extant Interim Orders. The reason for this is that he had a birthday party sleepover with friends on the Friday night. The Mother took no steps to collect Z earlier than the pickup time, which was two hours after Z’s time with his Father was to commence. The Mother’s only explanation was that Z wanted to stay later, so she agreed.
When presented with the observations by Ms B of the children’s time with the Father, the Mother was only able to say that the children “appear” to enjoy their time with the Father. She could not agree, even in cross-examination, that they do actually enjoy their time with the Father. Even when shown in Court, a video recording of the children who were clearly enjoying themselves at a birthday party, the Mother only reluctantly conceded they were enjoying themselves.
Even after giving evidence during the hearing that the Father was a positive role model for the children, the Mother did not agree that the children would benefit from greater time of being exposed to the Father.
In her Family Report, Ms B observed that the children have a secure attachment to their Mother and that they clearly perceive her as an emotionally nurturing and safe figure. Ms B recommended that the Mother continued to strengthen her emotional wellbeing, so that she can continue to provide the mostly reliable presence that the children need, and continue to attend counselling for at least a further twelve months: Family Report by Ms B at [162]. The Mother chose not to provide the Court with a report from a psychologist upon who she has been attending. I am not satisfied that the Mother’s present psychologist, who works at the same clinic as Ms K, and who apparently has liaised with Ms K, has assisted the Mother in strengthening the Mother’s emotional wellbeing.
I note that the Mother, to her credit, has consented to attend on a psychologist nominated by the ICL. This process will take time, as will the family therapy, which the parents have agree to be engaged in, to alter, what can only be described as the dysfunctional dynamics within this family. Thus, I am not satisfied that the Mother will, or is capable of, in the short term, facilitating a meaningful relationship between the children and the Father.
Given my findings that there is not an unacceptable risk of the children being subjected to emotional abuse by the Father where his time with them is not supervised, and that the Mother will not facilitate a meaningful relationship with the children, the Mother’s proposal that the Father have extremely limited supervised time with the children can only, in my opinion, undermine the benefit the children will derive from having a meaningful relationship with their Father. I accept Ms B’s opinion that the continuation of limited supervised time by Court Order will convey a negative message to the children about their safety in his care. Conversely, I accept that ordering a block of unsupervised time with their Father will convey to the children a positive message about the Father’s qualities as a parent.
Accordingly, I am satisfied that the Father’s and ICL’s proposed Orders will facilitate the benefit the children will derive from having a meaningful relationship with their Father.
I now turn to consider the evidence with respect to the additional considerations in the context of the proposals by the parties for parenting Orders.
Additional considerations
Section 60CC(3)(a) of the Act – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
Ms B’s opinion in her Family Report was that W’s wish to renew his relationship with the Father indicates a growing confidence for the boy that a meaningful relationship is possible, and indeed, is in place now. She observed that W would benefit from individual time with the Father, either at the paternal grandparents home on a regular basis, or in a shared activity: Family Report by Ms B at [164]. She further noted that, although the children have strong bonds with each other, it would benefit their individual development to be able to spend separate time with significant adults, and particularly with their parents.
Almost inexplicably, when Ms B conducted a further interview with W, some three or four months later, he had completely resiled from his desire to renew his relationship with his Father, at least in the immediate future. The report of this interview, and Ms B's opinion about the medium and long-term impact of W having no contact with his Father, is set out above.
In cross-examination, the Mother agreed that Y and Z strongly wanted to spend more time with their Father, and that X possibly did. She conceded that the children are “100%” happier with the Father now, than when the marriage was intact. Her evidence was that the children said that dad is not mean anymore and that he is nice.
The Mother argues that, because of the children’s special needs, little weight should be given to their expressed wishes. Rather, the Court should rely on the children’s actions. She says that W’s refusal to spend time with his Father, and X’s reluctance on occasions to spend time with his Father, should guide the Court.
I concur with Ms B’s opinion that the weight to be given by the Court to the children’s needs should take into account their special needs. However, as Ms B observed, the objective evidence: namely, her observations and the reports from the professional supervisors reveal that the children (Y, Z and X) enjoy and have a very comfortable relationship with their Father.
In my opinion, the Mother’s argument that weight should be given to the children’s actions and not their expressed wishes is undermined by the following; my finding that she has not facilitated the children’s relationship with the Father thus far; the evidence that the children are exposed to her anxiety and distress about the Father and the time they spend with him; and the fact that, in the case of W, she permits him to make his own choice about whether he spends time with the Father. She has also ceded to Z’s wishes. In addition, there is the unknown effect that counselling with Ms K has had on the children. The undisputed evidence is that Ms K has not supported the children in spending time with the Father. The evidence that she effectively gave permission to W not to spend time with Father is deeply concerning.
Section 60CC(3)(b) of the Act – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
The nature of the relationship of the children with each parent has been traversed in detail above.
The evidence is that the children have a close and loving relationship with both the maternal and paternal grandparents, although W’s relationship with the paternal grandparents will have sadly been compromised since July 2016, when he ceased spending time with his Father.
Notwithstanding the limitations evident in the supervision by the paternal grandfather of the Father’s time, arising from the fact that he took no steps to stop the Father to recording the conversation with the children in late September 2016, and the maternal grandmother’s engagement with the children’s school about the litigation process, I accept the opinion of Ms B that the maternal and paternal grandparents provide extended support for both parents. I also agree that it is evident that the children’s engagement with the church and sporting activities have provided, and ought to continue to provide, a support network for them.
Section 60CC(3)(c) of the Act – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about long-term issues in relation to the child and to spend time with the child and to communicate with the child
The evidence is that, during the relationship, the Mother took the lead in making decisions about the children’s schooling and the diagnoses and treatment for their special needs. The Father has said that he has agreed with the Mother’s decision in this regard. The Mother’s evidence supports this. After separation, the Father has been excluded from involvement in the psychological treatment for the children.
Under the Mother’s proposed Orders, this situation would continue. Under the proposed Orders of the ICL and the Father, the Father would play a greater role in decisions in relation to long-term serious issues affecting the children.
The Father has spent time and communicated with the children to the extent that Interim Orders of this Court have allowed.
Section 60CC(3)(ca) of the Act – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain their child
The Father pays child support in accordance with the assessment of the child support agency. As the children have lived primarily with their Mother and have special needs, it is safe to conclude that she has carried the financial burden in maintaining the children.
Section 60CC(3)(d) of the Act – The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including grandparent or other relative of the child), with whom he or she has been living
The Mother’s proposal for parenting Orders would see a reduction in the time spent by the children with their Father, and would significantly reduce the time spent with the paternal grandparents.
The proposals of the ICL and Father for parenting Orders will introduce a change in the children’s circumstances, given they have, from June 2014, either not spent any time with the Father or spent only supervised time with the Father.
I have earlier rejected the Mother’s argument that an Order for unsupervised time will have a deleterious effect on the children’s emotional wellbeing.
I agree with Ms B’s opinion that, taking into account the children’s particular developmental needs, time spent with the Father should be in blocks of time, to reduce the number of changes in their living arrangements. I also agree that the introduction of blocks of time should be an immediate rather than a graduated process. In my opinion, a graduated process is likely to put greater stress on the Mother and the children, as time is built up. I consider that it would not be conducive to the reduction of conflict between the parents if they engage in a graduated process of spending time.
The Father’s evidence is that initially, time spent with him will be in the paternal grandparents’ house. The children are obviously familiar and comfortable in this space, and this will assist in the introduction of blocks of time spent with their Father.
The Mother has argued that she cannot force W to spend time with his Father. She refers to W’s height and build. By implication, because the proposed Orders provide that both W and X spend time with their Father only if they choose to do so, I presume that she further argues that she cannot force X to spend time with the Father. In her proposed Orders, she says that she will use her best endeavours to encourage W and X to spend time with the Father. In light of the Mother’s evidence about how she says she encourages the children to spend time with the Father, I have no confidence that the Mother’s best endeavours would encourage W and X to spend time with their Father. In fact, in my opinion, not only has the Mother not engaged in strategies to encourage the children to spend time with their Father, her exposure of the children to her anxiety and distress about them spending time with the Father, is more than likely to have acted as a discouragement to the children spending time with their Father.
I am confident that, over time, through the therapeutic process the parties have agreed to, the Mother’s anxiety will progressively dissipate and this will be a positive benefit to the children and their relationship with their Father. As I said earlier, this will take time. I have taken into account W’s wish expressed to Ms B about not yet being ready to spend time with his Father. However, in my opinion, these wishes are likely to reflect multiple factors which I have referred to earlier in this Judgment. I have formed the view that it is important for these children to have the benefit of an Order that gives them a sense that it is safe and appropriate for all of them to spend time with their Father. It is, in the circumstances of this case, completely inappropriate and not in the best interests of these children, that W and X are given the burden of making a choice, effectively, between time with their Mother and their Father. For these reasons, I will not make the Order sought by the Mother, which gives W and X a choice about spending time with their Father. I agree with the proposal of the ICL that the future parenting Orders of the Court be explained by the ICL to the children. I trust that the Mother refrains from conduct which, whether intentionally or not, gives the children the responsibility of making a choice about the time spent with their Father and that, when these Orders come into effect, she is in a better place to regulate her emotional reactivity. I do not intend by this to be unduly critical of the Mother. As noted earlier, she has sought the assistance of professionals at a time when she was overwhelmed by the circumstances of separation, her experience during the relationship and perhaps other unresolved issues from earlier. She has relied on professionals to assist her children in counselling. Unfortunately, the professional she relied on to support her children involved herself completely inappropriately in parenting matters, and expressed views to the Mother, which I have no doubt only served to increase her anxiety about the Father and the children’s time with him. I trust that with the new therapeutic process, involving competent professionals who understand their role and can assist both parents and these children with special needs, the children will be given positive permission by both parents to spend time with the other parent.
The Father’s proposal involves a progression of time spent by the children with the Father during the school term, from alternate weekend time for a month, then for a period of four months for five nights in a fortnight and thereafter six nights a fortnight. The ICL proposes a progression of time spent by the children with their Father during the school term from three nights a fortnight for a period of six months, and thereafter four nights a fortnight. The Father’s proposal introduces a greater change in the circumstances of the children over a shorter period of time. Both the Father and the ICL propose spend-time arrangements during school holidays involving a block of time until Z is in secondary school, and then half of school holidays. The ICL proposes that the school holiday arrangement commence in term two of 2017. The Father proposes that the school holiday arrangement commence immediately. The Father’s proposal has the effect of introducing a change in the children’s living circumstances during the school holiday earlier. In my opinion, the children’s best interests are served by changes in the living arrangements which are introduced at a pace which enables the therapeutic process to assist all parties.
Section 60CC(3)(e) of the Act – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is no evidence to suggest that there would be any practical difficulties or expense with the children spending time with the Father.
Section 60CC(3)(f) of the Act – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The Mother has clearly taken responsibility for the children’s special developmental needs and has borne the responsibility of arranging the diagnoses and treatment in relation to these needs. I accept that she is a committed parent and has genuinely attempted to attend to their emotional needs.
Notwithstanding the Mother’s greater role in relation to the children’s intellectual needs, in responding to cross-examination by Counsel for the ICL, the Father displayed a detailed understanding of the diagnoses of each of the children, and how these different developmental needs were manifested in the children’s behaviour. He described in a cogent and considered way, how he now deals with Y and Z’s conflict with each other during supervised time and X’s behaviour; such as head banging. He gave evidence that W was an anxious child prior to separation, and conveyed an insightful example of how he managed W’s anxiety post-separation in the circumstances of a birthday party that was held around May 2016.
However, in my opinion, both parents need to develop greater insight into their impact on the children’s emotional needs. It is clear that the Mother has exposed the children to her anxiety about the time they spend with their Father, is emotionally reactive to any suggestion that they may want to spend time with their Father and has been unable to protect them from her distress (including crying) and anger about the Father and other stressors in her life. The report by W to Ms B, at his most recent interview, about his Mother’s capacity to regulate her emotional needs, is deeply concerning.
In her evidence in re-examination, the Mother said that she had, after the release of the Family Report by Ms B, asked Y whether he wanted to stay with his Father overnight, and that Y responded that he wanted to stay one night. The Mother then said to Y that he could not tell someone one night, as they will think it is more than one night. She said that Y then said that he had told the lady (presumably Ms B) one night, because he wanted to try it out. This conversation occurred less than a week before the commencement of the final hearing. This is direct evidence from the Mother that she conveyed to Y a very clear message that he should not be asking for overnight time with the Father. This is precisely the mixed messages that Ms B was concerned the Mother may be conveying to her children. The Mother showed no insight, in giving this evidence, about the impact her conduct might have on Y.
Having heard the evidence, I have formed the view that the Mother has been unwittingly influenced by the opinions of Ms K; namely, that the children should not spend time with their Father and that the time spent with their Father has contributed to the deterioration of their behaviour at school. A further influence may well be the maternal grandmother who appears to believe the children are “scared” of the Father. There is evidence before the Court that the maternal grandmother has inappropriately liaised with the school about matters relating to this litigation. There is also evidence that Ms N, the school co-ordinator responsible for assisting the children in managing their behaviours, has liaised with Ms K. This is unfortunate and, in my opinion, has not been in the best interests of the children. I do not criticise Ms N, after all, Ms K was the children’s counsellor. Unfortunately, Ms K acted beyond her remit and demonstrated, in my opinion, an unprofessional approach to the complicated parenting issues in this family.
I am satisfied that, at the end of the final hearing, the Mother has gained some understanding about the adverse impact of Ms K’s involvement in their lives. I believe she is committed to the children attending an independent and skilled clinical psychologist, who will be far better placed to liaise with the school. I am also confident that the Mother is committed to attending counselling with an alternate counsellor, to that which she has attended upon since 2013. This is positive because, clearly, the counselling the Mother has received to date has not assisted her to deal with the anxiety she suffers, as described in a helpful way by Ms B.
Section 60CC(3)(g) of the Act – 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
I have earlier dealt with, in detail, these considerations in relation to the children and the parents.
Sub-section 60CC(3)(h) of the Act, which sets out considerations where the child is an Aboriginal or Torres Strait Islander child, is not relevant in these proceedings.
Section 60CC(3)(i) of the Act – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I have earlier dealt with, in detail, these considerations in relation to the children and the parents.
Section 60CC(3)(j) of the Act – any family violence involving the child or
a member of the child’s family
Section 60CC(3)(k) of the Act – if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the Court in, or in proceedings for, the order, and any other relevant matter
These considerations have been dealt with in some detail in this Judgment and require no further discussion.
I was made aware that in March/April 2017, alleged breach(es) by the Father of an Intervention Order(s) were to be dealt with by the Magistrates’ Court. However, the details regarding this were so sparse as to be insufficient for me to consider in this decision.
Section 60CC(3)(l) of the Act – 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
Given the very acrimonious nature of litigation in these proceedings, and its subsequent adverse impact on the parents and children, there is no doubt that it would be preferable to make an Order that would be least likely to lead to the institution of further proceedings in relation to these children. I have taken this consideration into account in my decision as to Orders which are in the best interests of the children, and the framing of those Orders.
Section 60CC(3)(m) of the Act – any other fact or circumstance that the Court thinks is relevant
There are no other facts or circumstances which I consider relevant to these proceedings.
Sections 61DA and 65DAA of the Act
The Mother’s proposed Orders are that she have sole parental responsibility for the children, whilst the Father and ICL propose that the presumption of equal shared parental responsibility be given effect to in the Court’s Orders.
The evidence discloses that, up until June 2014, the parents were able to effectively communicate in relation to parenting matters after separation. The evidence is also clear that the parents have been unable to communicate effectively since that time. Attached to the affidavits of both parents is a plethora of correspondence between their solicitors regarding parenting arrangements, which could easily have been communicated and/or resolved by direct communication between the parents. It is my opinion that the reliance on legal representatives for communicating about parenting matters has only acted to reduce the parties’ capacity to communicate effectively. This is not a criticism of the parties’ legal representatives, but simply an observation that the style of communication as between solicitors is simply not conducive to improving the parties’ capacity to communicate with each other in a neutral and respectful way.
In cross-examination, the Mother agreed that she never had difficulty with the Father agreeing to her decisions regarding long-term issues affecting the children, such as that education and health. She gave evidence that she would like to be able to communicate with the Father but says she is unable to, as she is “terrified” of him.
Ms B correctly opined in her Family Report that it will be some time before the parents can communicate effectively about the children, given the events in their relationship and the post-separation acrimony. She stated, and I concur, that the parents need to continue to attend recommended individual counselling, not only to acquire additional skills, but also to strengthen their own emotional equilibrium: Family Report by Ms B at [168]. Ms B observed, however, that the parents present with the capacity to eventually manage more civil and respectful communication with each other, which will be crucial for the welfare of their children. She recommended joint counselling for the purpose of developing effective communication strategies as parents: Family Report by Ms B at [169].
The Mother is particularly distressed at the thought of having to communicate with the Father, even if it is only in writing, for example by SMS text messages. Her anxiety, generated by the Father’s bellicose and denigrating Facebook postings in July 2016, and his uncontrolled, and certainly impulsive, correspondence with the Children’s Contact Centre and maternal grandmother in an attempt to access the children’s school portal after the discharge of the Intervention Orders, is, in my opinion, justified. However, I am of the view that the Father now genuinely appreciates that this behaviour involved humiliation and denigration of the Mother, potentially posed an unacceptable risk that the children, particularly W, would be exposed to the parents’ conflict, and that it amounted to blatant disregard of the extant Interim Orders. Additionally, since that time, the Father has commenced attending, and has continued to attend, upon Dr T and I am satisfied that this provides a protective mechanism to ensure that the Father develops appropriate strategies to manage his hitherto uncontrolled and impulsive behaviour.
I concur with Ms B’s opinion that both parents have the capacity to eventually communicate in a civil and respectful manner with each other in relation to the children’s issues. Both parties will, by now, be attending individual counselling and engaging in family therapy. I anticipate that the children will, likewise, have commenced counselling with a clinical psychologist with expertise in their particular developmental needs. I am satisfied that in this therapeutic environment, the parents will be able to regain the capacity to communicate effectively without conflict, as they did for some six months post-separation.
I accept that family violence has occurred and have made findings to this effect. Nevertheless, for the reasons set out above, I am satisfied that the presumption of equal shared parental responsibility should apply and will make Orders to this effect.
I am now required to consider, firstly, whether it is in the best interests of the children, and is reasonably practicable, for the children to spend equal time with both parents and, if so, whether an Order for equal time should be made: sub-s.65DAA(1) of the Act.
The matters to be taken into account in determining what is “reasonably practicable” and the interplay of best interests and reasonably practicable was considered by the High Court in MRR & GR [2010] HCA 4, where the Court said at [9]:
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant,” “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.”
The High Court went on to say that sub-s.65DAA(1) of the Act is expressed in imperative terms, and obliges the Court to consider both the question of whether it is in the best interests of the child to spend equal time with each parent or significant substantial time, and whether it is reasonably practicable for either Order to be made. It is only where both questions are answered in the affirmative that consideration may be given, under paragraph (a), to the making of an Order for equal time or significant and substantial time.
No party sought an equal time arrangement for the children. Having regard to all the circumstances of this case, I am not satisfied that an equal time arrangement is in the best interests of the children. I am not satisfied that an equal time arrangement would be reasonably practicable as neither parent, in my opinion would be capable of implementing such an arrangement.
Having found that an equal time arrangement should not be made, I am now required to consider whether it is in the best interest of the children, and is reasonably practicable for the children, to spend substantial and significant time with each parent and, if so, whether an Order for substantial and significant time should be made: sub-s.65DAA(2) of the Act. Substantial and significant time is defined in sub-s.65DAA(3) of the Act as:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Both the Father and the ICL propose spend-times arrangements which involve substantial and significant time.
In my opinion, the Father’s proposal that the children progress to a period of block time, whereby they spend six nights a fortnight, after a period of five months during school term, are not in the best interests of the children. These arrangements, in my opinion, are premature given the circumstances surrounding the family. It may be that, as the children all progress through their later years in secondary school and the therapeutic process has brought about significant and positive changes to the functionality of this family, the Father’s proposed parenting Orders would be in the best interests of the children. In my opinion, taking into account all of the evidence before the Court, and having regard to the best interest considerations under s.60CC of the Act, the ICL’s proposed times spend arrangements during school term are in the best interests of the children and are reasonably practicable. The ICL proposes that the Father’s time commences on a Saturday morning, so as to enable the children to attend the (hobby omitted) on a Friday night. As I am satisfied that the children’s attendance at and participation in the (omitted) activities provides a measure of support for them, this proposal is clearly in the children’s best interests.
I am satisfied that a period of time should be allowed before different spend time arrangements are made during school holiday time. The proposal of the ICL is that arrangements for school holiday time commence at the end of term two 2017, and for two blocks of five nights commencing in the 2017 long vacation. Both the ICL and Father agree that once Z commences secondary school, Z should spend time with the Father in the school holidays by agreement, or failing agreement, in the first half in each odd-numbered year and the second half in each even-numbered year.
I do not consider it to be in the best interests of the children to make differing arrangements for time spent for special occasions. In my view, the parents can either make their own arrangements, or their time with the children on the special occasions will be in accordance with the spend time arrangements specified for school term and holidays. Thus, for example, if the parents are unable to reach agreement on time spent over Christmas, then under these Orders the children will spend Christmas in 2017 with their Father. I expect, however, that the parents will show some common sense about special arrangements, especially around the children’s birthdays and the Christmas period, so as to enable the parent with whom the children are not with at that time to have some time with the children. Having regard to the children’s birthdays, the parents will not have to confront this challenge until later in 2017.
I am not satisfied that the Father should be restrained, as sought by the Mother, from attending within 200 metres of her property or any of their schools, or from the approaching remaining within 5 metres from the Mother and/or the children, except as provided for in these Orders.
The Mother proposes Orders that permit her to travel interstate and overseas, provided she provides at least 14 days’ notice in writing to the Father and enables make up time. However, these proposed Orders were not the subject of evidence or submissions during the final hearing. It is, of course, in the best interests of children that they be permitted to travel with their parents interstate or overseas. I see no risk factors that should concern either of the parents about the children travelling with the other parent interstate or overseas. This is subject to, in the case of international travel, the travelling parent providing the other parent with adequate notice, an itinerary and communication details. I assume from the Mother’s proposal that she would oppose any Order that enables the Father to travel interstate or overseas. However, these nuances were not put before the Court. I decline, therefore, in these circumstances, to make any Orders in relation to travel.
I am satisfied that the Father should also be allowed to engage with the children’s school in relation to their special needs, as well is in relation to activities that a parent would normally be invited to attend.
There will be an Order facilitating communication between the parents and the children by telephone or video call during the time the children are not spending time with them.
Parenting Orders
The final parenting Orders incorporate the final consent Orders relating to therapeutic treatment made on 18 November 2016. They, of course, reflect this Judgment. I am satisfied that they are in the best interests of the children.
I certify that the preceding two hundred and ninety nine (299) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 30 March 2017
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