Holcott & Holcott
[2023] FedCFamC1F 234
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Holcott & Holcott [2023] FedCFamC1F 234
File number(s): SYC 5847 of 2019 Judgment of: HARPER J Date of judgment: 3 April 2023 Catchwords: FAMILY LAW – PARENTING – Where father has not spent time with children for three and a half years – Allegations of family violence – Where father concedes limited family violence – Where father demonstrates lack of insight into effect of behaviour on children – Where children consistently express fear of the father and decline to spend time with him – Where father does not believe children are afraid of him – Previous interim orders for supervised contact inoperable – Father argues that children have been coached by the mother – No evidence of coaching, however evidence suggests mother has expressed concerns to the children – Where father seeks staggered increase of time with the children – ICL and mother propose no time – Whether identity contact is appropriate – Where any form of contact would be distressing to the children – Where mother could not support any form of contract – Consent order for sole parental responsibility to the mother – Order for no time until the children turn 15, following which they may see the father according to their wishes. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CA, 60CC, 65D(1), 65DAB Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Champness v Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102
M v S (2006) 37 Fam LR 32; [2006] FamCA 1408
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall v Clark (2009) FLC 93-405; [2009] FamCAFC 92
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Division: Division 1 First Instance Number of paragraphs: 160 Date of hearing: 14–16 November 2022, 23 March 2023 Place: Sydney Counsel for the Applicant: Ms Ryan Solicitor for the Applicant: Inner West Solicitors Counsel for the Respondent: Mr Daniel Solicitor for the Respondent: Barry F. Cosier and Associates Counsel for the Independent Children's Lawyer: Mr Maddox Solicitor for the Independent Children's Lawyer: John Spence & Associates ORDERS
SYC 5847 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HOLCOTT
Applicant
AND: MS HOLCOTT
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARPER J
DATE OF ORDER:
3 April 2023
THE COURT ORDERS THAT:
1.All previous parenting orders regarding the children, X, born 2011, and Y, born 2013 (“the children”) be discharged.
2.The mother have sole parental responsibility for the children.
3.The children live with the mother.
4.The father spend no time with, nor communicate with, the children, except in accordance with Orders 5 and 6 below.
5.Each child spend time with the father according to her or his wishes, upon each child attaining the age of 15 years.
6.The father be permitted to send cards and/or letters and/or gifts, not more than four times per year, to an address nominated by the mother, whether a residential address or a PO Box.
7.The mother be permitted to open such cards and/or letters and/or gifts and provide them to the relevant child or children promptly, unless the mother considers in her absolute discretion that the card and/or letter and/or gift is inappropriate for that child or children.
8.The father be restrained from contacting the mother, including directly or through a third party, with such restraint to include but is not limited to telephone, text messages, or email.
9.The mother, at least once per six months, send an email to the father, using the father’s current email address, a summary of the children’s progress, including but not limited to their education, extra-curricular activities, health, and any proposed overseas travel.
10.Subject to Order 5, the father be restrained from attending on or approaching the children, and be ordered to remove himself from any location if he becomes aware that the children or either of them are present.
11.The mother and father pay the costs of the Independent Children’s Lawyer in equal shares, in the total sum of $11,901.00 including GST.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Holcott & Holcott has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These are final parenting proceedings between the Applicant Father, Mr Holcott (“the father”) and the Respondent Mother, Ms Holcott (“the mother”), in relation to the children of the relationship, X, born (aged 11), and Y, born 2013 (aged 10) (collectively: “the children”).
BACKGROUND
The parties commenced a relationship in 2010. They married in 2015 and separated on a final basis on 22 August 2019.
The mother has two adult children from a previous marriage, Ms B, aged 25, and Mr C, aged 23.
At the commencement of the relationship, the mother resided in a property she owned, located in Suburb D. At the time, Ms B and Mr C, together with two of the mother’s nieces, were residing with her. The father commenced residing with her in around late 2010, having previously resided with the paternal grandmother.
The mother’s nieces returned to their own mother shortly after cohabitation commenced.
The mother makes a number of allegations of family violence against the father before and after the birth of the children. These will be discussed as necessary in more detail below under s 60CC(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), but reference will also be made to certain events in this section of the judgment by way of background.
In mid-2011, the mother contacted the police following an argument with the father. An ADVO was obtained against the father to protect the mother, Mr C, and Ms B. The mother consented to the ADVO being dismissed in mid-2011.
In mid-2012, the parties purchased a property in E Town. The mother sold her Suburb D property and contributed $200,000 to the purchase of the E Town property.
In early 2014, the parties separated for a brief period, with the mother and the four children moving to reside with the maternal grandmother. The mother facilitated time between the children and the father. An incident ensued which resulted in the police being contacted. No charges were laid. The parties subsequently attended a counselling session but made no ongoing commitment. It is not clear when the mother and children returned to reside with the father.
The mother ceased her employment with a government agency in mid-2017.
The father reports that their relationship was beginning to deteriorate at the beginning of 2019, and that by February 2019, they were sleeping in separate beds.
In mid-2019, the father contacted a relationship counsellor. The parties spoke to the counsellor separately.
In June 2019, the mother contacted 1800 RESPECT for advice. She completed a DVSAT and a safety plan in anticipation of leaving the family home.
The parties separated, with the mother leaving the former matrimonial home on 22 August 2019 with the children. The father remained in the former matrimonial home. He asserts that her departure was unilateral and her removal of the children was done without his consent.
The children have not seen their father since August 2019.
In mid-2019, an interim ADVO was issued for the mother’s protection. The father consented to the ADVO on a without admissions basis for a period of six months. He did not breach the ADVO within this time, there were no intervening events, and the ADVO was dismissed.
The father completed a Parenting After Separation course in July 2020, and Circle of Security in December 2020.
PROCEDURAL HISTORY
The father commenced these proceedings in the Federal Circuit Court of Australia (as it then was) on 3 September 2019. The mother filed her Response on 19 September 2019.
The matter first came before the Court on 23 September 2019, where orders were made appointing an Independent Children’s Lawyer (“ICL”), for the parties to attend a Child Dispute Conference, and listing the matter for interim hearing on 1 November 2019.
The parties participated in a Child Dispute Conference on 25 October 2019.
Following an interim hearing on 1 November 2019, interim orders were made on 6 November for the children to live with the mother and spend supervised time with the father at the Children’s Contact Centre in G Town once per fortnight. Orders were made for the completion of a family report.
In December 2019 and January 2020, the parties engaged with the initial intake process at the Children’s Contact Centre in G Town in anticipation of the children spending supervised contact with the father. This time did not commence, because the contact centre declined to facilitate time.
On 5 June 2020, a judge of the lower court, Division 2 of the Federal Circuit and Family Court of Australia, dismissed the father’s further application, filed on 12 May 2020, seeking orders facilitating family therapy.
In October 2020, a Family Consultant, Ms H, conducted interviews for the purpose of preparing a family report. The parents were interviewed. I note that although the children were interviewed, they were not observed interacting with the father because they expressed fear of him and they had not seen him since they left the family home in August 2019.
On 27 November 2020, Ms H completed her family report (“the first family report”) which was released to the parties on 1 December 2020.
On 8 December 2020, the matter was listed in Division 2 for final hearing to commence on 17 May 2021 with an estimate of three days.
The father amended his Application for Final Orders on 5 May 2021 to seek, rather than week about time, a staggered increase in supervised, then unsupervised time.
On 14 May 2021, the final hearing set to commence on 17 May 2021 was vacated. On 18 May 2021, the matter was transferred to this Court, then called the Family Court of Australia. Notations explaining the decision to vacate the final hearing dates referred to the fact that there were a greater number of witnesses than anticipated.
The matter first came before me on 19 October 2021, when I placed it in a callover on 10 February 2022. On that day, orders were made listing the matter for final hearing to commence on 14 November 2022, with an estimate of five days.
On 16 March 2022, I granted leave for the mother to file evidence from her treating psychologist, Ms K, and that of the children, Ms J.
On 1 August 2022, the Court was informed that the father had become self-represented. Orders were made pursuant to s 102NA of the Act, with the consequence that the father would be unable to personally cross-examine the mother.
The final hearing commenced on 14 November 2022. Both parties and the ICL were represented by counsel. On the first day of hearing, the parties informed the Court that they had been unable to contact the author of the first family report, Ms H. The ICL indicated that attempts had been made to contact her in about mid-2022, but no response had ever been received. My chambers then made attempts to contact Ms H, as did the Court Child Services. She could not be found. Although the parties raised the possibility of issuing a subpoena for her attendance, I took the view that use of such a coercive measure would be futile, even if service could be effected, which was doubtful.
The parties consented to the preparation of a fresh family report, and arrangements were made for this to occur on an urgent basis. The proceedings were stood over part heard.
A fresh family report was prepared by Ms L and released on 15 February 2023 (“the second family report”). The matter then resumed on 23 March 2023 for one day.
CURRENT CIRCUMSTANCES
X is presently in Year 6. The mother reports that she is doing well and interacting positively with her peer group at her current school. She participates in sports, and there have been no behavioural or academic issues raised.
Y is presently in Year 5. He takes music lessons and plays a range of sports, and like X, there have been no academic issues raised by his teachers. However, his treating psychologist raised concerns that Y was suffering social difficulties at school, together with issues relating to low self-esteem and identity. There were also suggestions that he was being bullied by his peers.
The mother reports that both children enjoy spending time with the immediate and extended family, including their half siblings Ms B and Mr C.
Both children continue to attend upon a psychologist on a monthly basis. The mother reports that since leaving the marital home in 2019, they have become happy, outgoing, and confident in their interactions with others.
PROPOSALS AND ISSUES IN DISPUTE
In summary, at the start of the trial, the father sought orders for equal shared parental responsibility, for the children to live with the mother, and a staggered increase in time, initially supervised, and ultimately each alternate weekend. His proposed orders, as set out in his Case Outline, are found in Annexure “A” to this judgment. The mother sought sole parental responsibility, and for the children to live with her and spend time with the father at her discretion.
However, at the end of the trial the ICL provided a minute of proposed orders (Exhibit 2), as follows:
1.That all previous parenting order regarding the children [X] born [2011] and X born [2013] (“the children”) be discharged.
2.That the mother have sole parental responsibility for the children.
3.That the children live with the mother.
4.That the father spend no time with, nor communicate with, the children, except in accordance with orders 5 and 6 below.
5.That each child spend time with the father according to her or his wishes, upon each child attaining the age of 15 years.
6.That the father be permitted to send cards and/or letters and/or gifts, not more than four times per year, to an address nominated by the mother, whether a residential address or a PO Box.
7.That the mother be permitted to open such cards and/or letters and/or gifts and provide them to the relevant child or children promptly, unless the mother considers in her absolute discretion that the card and/or letter and/or gift is inappropriate for that child or children.
8.That the father be restrained from contacting the mother, including directly or through a third party, with such restraint to include but not limited to telephone, text messages, or email.
9.That the mother, at least once per six months send an email to the father, using the father’s current email address, a summary of the children’s progress, including but limited to their education, extra-curricular activities, health and any proposed overseas travel.
10.That, subject to order 5, the father be restrained from attending on or approaching the children, and be ordered to remove himself from any location if he becomes aware that the children or either of them are present.
11.That the mother and father pay the costs of the Independent Children’s Lawyer in equal shares, in the sum of $11,901.00 including GST.
The mother agreed with all the ICL’s proposed orders.
In closing argument, after counsel obtained instructions about the ICL’s proposed orders, the father made clear that he consented to allocation of parental responsibility to the mother as proposed by the ICL, and he then made submissions by reference to the ICL’s proposed orders, contending at the very least there should be identity contact between him and the children in tandem with therapy. He made no submissions in support of his earlier proposals. The father agreed with the ICL’s proposed Orders 1, 2, 3, 6, 7, and 11. He did not oppose Orders 8 and 10, although questioned whether they were necessary.
In lieu of Order 4, the father argued for “identity contact” between him and the children, that is, professionally supervised contact, four to six times per year, extending to including members of the extended paternal family on two or three of those occasions. He further argued that the age at which the children should spend time with the father in accordance with their wishes should be 14, rather than 15, for each child. These latter proposals were consistent with one of the alternatives proposed by the expert evidence, as will be explained later.
Consequently, the issues for determination were narrowed to the question of whether the father should spend no time and not communicate with the children other than through cards, letters or gifts, or whether they should have identity contact with him and the paternal family, and the age at which the children should be permitted to spend time with him in accordance with their wishes.
EXPERT EVIDENCE
The first family report became tangential, owing to the inability of both the parties and the Court to secure the attendance of Ms H to give evidence.
The second family report was based on the material filed by the parties so far in the proceedings, the Child Dispute Conference Memorandum, some documents produced on subpoena, and the interviews conducted as set out at the commencement of her report, as well as Ms H’s report. Ms L recorded the observations made by her as a result of conducting interviews with the parents, children, and the paternal grandmother.
I will refer to the content of the report as necessary during the course of these reasons.
Family Report Recommendations
The family report writer made recommendations at [94]–[98] of her report as follows:
94.If the Court determines that the children would be at risk of harm if they were to spend time with their father, due to finding that the concerns that [Ms Holcott] has raised in respect of [Mr Holcott] have veracity:
a) It is recommended that [X] and [Y] spend no time with [Mr Holcott].
95.If the Court determines that the children would not be at risk of harm if they were to spend time with their father, due to finding that the concerns that [Mr Holcott] has raised in respect of [Ms Holcott] have veracity, but that it would not be of benefit to the children to attempt re-introducing them to their father:
a)It is recommended that [X] and [Y] spend no time with [Mr Holcott].
96.Alternatively, if the Court determines that the children would not be at risk of harm if they were to spend time with their father, due to finding that the concerns that [Mr Holcott] has raised in respect of [Ms Holcott] have veracity, and that it would be of benefit to the children to attempt re-introducing them to their father:
a)It is recommended that [X] and [Y] spend supervised time with [Mr Holcott] with professional supervision, four to six times per year.
b)That paternal family be permitted to attend two/three of these visits per year.
c)The family engage in Family Therapy to support the introduction of supervised time and processing the emotions that arise in relation to the children re-establishing their relationship with their father.
d)It is recommended that [Ms Holcott] engaged [sic] in a comprehensive psychiatric assessment and follow any recommendations.
e)When the children reach the age of 14, the children spend time with [Mr Holcott] as per their wishes.
97.It is recommended that [Mr Holcott] not attend [Ms Holcott]’s home, work or the children’s school, activities or appointments unless explicitly invited to do so in writing.
98.It is recommended that both parents engage in individual therapeutic support and it may be of assistance if any professionals undertaking assessments/therapeutic intervention with either parent or the family receive a copy of this report.
It can been seen that the father ultimately proposed orders which diverged from the ICL’s proposal by reference to paragraph 96, although no concrete proposal for family therapy was ultimately pressed by either party or the ICL.
OTHER EVIDENCE
The mother also relied upon evidence by Ms J, a psychologist who has been treating the children since January 2020. Ms J produced a report dated 10 March 2022, which was contained in an affidavit. She was cross-examined.
She also called evidence from her own treating psychologist, Ms K, who was cross-examined.
The paternal grandmother, Ms M, also gave evidence and was cross-examined.
LEGISLATIVE FRAMEWORK
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions under s 61DA and s 65DAB.
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for them. The presumption does not apply if there are reasonable grounds for the Court to believe a parent has engaged in family violence as defined in s 4AB(1) of the Act, and can be rebutted if the Court concludes its application would not be in the best interests of the children (s 61DA(3)and (4)).
As already pointed out, the mother and the ICL ultimately agreed that there should be no order for equal shared parental responsibility. Since the father made no submissions in support of equal shared parental responsibility, I consider that he effectively abandoned the proposal. In any event, in cross examination, the father accepted that the children had experienced family violence. The evidence for this finding is contained below under s 60CC(2)(b). Accordingly, I am satisfied the presumption does not apply. I also accept the presumption would be rebutted in the best interests of the children. No submission was made to support an allocation of parental responsibility other than to the mother, who will be the primary carer. I will allocate sole parental responsibility to the mother.
When making a parenting order, the best interests of a child are the paramount consideration (s 60CA of the Act), determined by an examination of the considerations as set out in s 60CC of the Act and weighed and applied within the ambit of the objects and principles set out in s 60B of the Act. Whilst the Court must “consider” each of the primary and additional considerations in s 60CC, express discussion is not necessary: Tibb v Sheean (2018) 58 Fam LR 351 (“Tibb”) at [74]–[78]. I have considered each of the matters in s 60CC(2) and s 60CC(3), but I will primarily discuss those which have been given prominence by the manner in which the parties and the ICL conducted the final hearing, and the ultimate proposals of each party.
PRIMARY CONSIDERATIONS
In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act, which are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.
In applying these considerations, the Court is to give greater weight to the consideration in s 60CC(2)(b) (see s 60CC(2A) of the Act).
Section 60CC(2)(a), benefit of a “meaningful relationship”
The Full Court has endorsed the following propositions concerning s 60CC(2)(a). A “meaningful relationship” is one which is “important, significant and valuable to the child”, and a prospective approach to such a relationship is preferred: Mazorski v Albright (2007) 37 Fam LR 518 and McCall v Clark (2009) FLC 93-405 at [118]–[119]; Sigley & Evor (2011) 44 Fam LR 439. The legislation aspires to promote a meaningful relationship, not an optimal relationship: M v S (2006) 37 Fam LR 32; Godfrey v Sanders (2007) 208 FLR 287; Champness v Hanson (2009) FLC 93-407.
It was clear the children benefitted from a meaningful relationship with their mother. The father contended the children would benefit from a meaningful relationship with him also, to the limited extent one could be maintained by identity contact.
In his evidence, the father did not accept that the mother understood the need for the children to have a meaningful relationship with him. He maintained the position that the mother had exerted influence over the children and subjected them to a constant negative narrative about him. Almost to the end of the trial, he maintained that the mother, together with the maternal grandmother and the children’s half siblings, had been involved in the coaching of the children, to fear him and wish to spend no time with him. He claimed that the coaching extended to the children’s views expressed to a variety of third parties, including the children’s psychologist and Court Child Experts.
The father’s position was that up to the date of separation, he had a loving and meaningful relationship with the children. He argued that despite the long period of time since he last saw them, they would be able to resume a warm and meaningful relationship with him, initially by supervised contact.
The mother argued, as will be seen, that the children fear their father because he engaged in family violence, and the emotional and physical safety of the children should be prioritised over the benefit of any possible meaningful relationship that could be built or rebuilt with the father. She contended that the father was largely unable to take responsibility for his own conduct and the abuse and family violence experienced by the children precluded any regime for contact with the father.
An answer to the question whether the children would benefit from a meaningful relationship with their father, at least to the extent of having identity contact, can partly be found in a discussion of evidence of family violence.
Section 60CC(2)(b), “abuse” and “family violence”
It is necessary here to set out some statutory definitions. The terms “abuse” (see s 4) and “family violence” (see s 4AB(1)) are defined in the Act as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) …
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include, but are not limited to:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
A child is exposed to family violence if the child “sees or hears family violence, or otherwise experiences the effects of family violence”: s 4AB(3) of the Act.
In his affidavit, the father stated that he “acknowledge[d] that my relationship with [the mother] was sometimes difficult,” but denied “ever being violent towards her including but not limited to verbally, physically, emotionally, mentally, socially or financially”.
Nonetheless, the father accepted in cross-examination that the children had been exposed to family violence in his household, but his understanding of what this constituted remained limited:
[COUNSEL FOR THE MOTHER]: Do you accept that they have experienced family violence in your household?---Yes, I do now and I have a definition of it.
Right. What is the definition?---Could be arguing?
Could be arguing?---Loud – loud arguments is considered family violence.
Right. Yes? What else?---Could be abuse of some description.
Right?---Physical abuse. Anything that’s related to physical abuse.
Abuse, yes. What else?---Do you want – I don’t know the whole list of what could be considered family violence. I’m not a lawyer.
What about psychological abuse?---Potentially psychological, yes.
It’s not potentially. It’s part of it?---Okay.
Controlling, coercive behaviour: is that family violence?---Apparently yes, it is.
Take it from me it is. Right. Now, if the court is – and you said that you believe – correct me if I’m wrong – you believe the children have experienced family violence in your household?---Yes, I do.
Right. What’s your role in that?---The arguing.
Arguing in front of the children? Raised voices?---Raised voices.
(Transcript 14 November 2022, p.38 lines 11–38.)
The father expressed the belief that the mother was angry at him due to an addiction of his, and that this “resonated” through their “cold war”:
HIS HONOUR: Can I just interrupt for a moment? Why do you think the mother is angry with you?---Because I had [addiction] issues a couple of years ago, your Honour. And I think that that has resonated through the – what I call the cold war that we had before she left. I think that’s all about finances.
Got nothing to do with your conduct during the relationship, is that what you’re saying?---In part, yes, your Honour.
Sorry, you’re saying in part yes, it did have something to do with your conduct?---I think, in part, it had something to do with my conduct but I think mostly, it’s to do the with the finance area of our relationship.
So you say the mother is being vindicative (sic), withholding the children, because she is angry with you about – mainly, your [addiction]; is that correct?---That’s right.
(Transcript 14 November 2022, p.57 line 36 to p.58 line 2.)
This evidence leads to the conclusion that the father’s perception of what the children experienced was no more than arguing and raised voices, and anger expressed by the mother.
During interviews with the family report writer, the father claimed that it was the mother who was “more irritable, verbally and psychologically abusive and controlling”. He repeated similar assertions in his affidavit, stating that “[the mother] was always irritable and I felt as if I was doing everything wrong”. He also argued that “[the mother] regularly picked fights with me in the presence of the children,” and that he “always found myself to be the one saying, ‘[Ms Holcott], please lower your voice’”.
The mother, for her part, alleged a wider range of family violence, involving physical and verbal violence, and coercive conduct emotionally and over finances. There was evidence of frequent verbal abuse towards the children, including evidence from Ms B and Mr C. This showed that the father would yell at the children, for instance raising his voice at Y for being too loud whilst the father was watching television, as well as calling them “stupid” and “dumb”. The father either denied or minimised the severity of the events alleged by the mother and generally seemed to deny yelling at the children.
In light of the narrow issues which need to be determined, I do not consider it is necessary to rehearse the evidence and resolve the factual differences between the parties.
What was clear and ultimately undisputed was that the children express fear of the father and are extremely resistant towards spending any time with him. This fear has been consistent, and has been expressed to the family report writer, their treating psychologist Ms J, and to the ICL. The ICL indicated that she spoke to the children less than a week prior to the first tranche of the final hearing, and that the children continued to express fear and neither wished to spend time with the father for the foreseeable future.
The ICL tendered notes taken by Ms J no later than June 2020 in her sessions with the children. On 5 March 2020 she records that “Both said no to seeing dad” and X told her that she wished she had a phone “so if we saw dad we could call the police. Ms J recorded on 4 June 2020 the Y told her “Dad scares me – don’t want to see him…Dad will find me he will yell and scream…as that’s what he does”.
In her report to the referring GP, Dr N, dated 26 June 2020, Ms J recorded she had been seeing the children since January 2020 and explained:
Therapy has been focused on assisting transition for [Y] and [X] during this difficult time of parental separation and assisting in managing the family dynamics during this time. Both [X] and [Y] have expressed concerns about time spent with their father. During each session, both [X] and [Y] have stated that they do not wish to see their father or speak to him.
[Y] has stated 'I worry mum will give us to dad. I don't want to live with dad,' ‘I don't miss him,' 'I don't want to see him,' 'dad will get us, he will use GPS, dad will hurt us,'' I feel upset when reminded of dad,' I think dad will pull us over' and 'I wish we had a phone so if we saw dad we could call the police.' [X] has said 'I feel happy that I haven't seen dad in 6 months. '[Y] said 'someone came into the driveway and I thought it was dad, he will hurt me. I hid under my blanket' and 'dad spoke to me badly, I don't want to see him. He yells at me and calls me a fucking idiot.' [X] said 'I don't want to see dad' and 'what if he tried to force us to live with him?'
[Y] stated 'he scares me,' 'I'm not safe with him,' and 'he will find us and track us down and take us back to his house and tell us never to leave. I don't want to be at his house.' When talking about fears in session [Y] said 'what if he lies and the judge puts us back with him.'
When discussing their memories of their father, [X] and [Y] reported to not be able to think of 'happy things' related to their father. [X] stated 'I felt less loved than [Y] by dad, [Y] got all the presents.' And 'dad didn't like taking care of me. He didn't want me.'
[Y] stated 'he wouldn't stay with us.' [X] said 'they would fight about money, I could hear them yelling. dad yelled, mum was saying stop saying that.'
[Y] stated 'every night they would argue, dad would follow mum, keeps calling her mean words-like fucking idiot straight to her,' 'I heard dad always saying things to mum, he called mum an idiot, a fucking idiot, an imbecile bitch,' 'I heard him say those things, a lot of times, a million' and [X] said 'when we heard a clatter bang we thought he was throwing things at mum' and 'we heard him screaming at mum.'
[Y] said 'dad yells at me and calls me names,' 'dad called me an idiot and a dickhead,' and 'I couldn't say anything back.' [Y] stated 'I didn't like when he yelled at [the dog],' and 'when dad yelled at nanny we saw it.'
[X] stated 'he was always speeding,' 'he always lied to us, I knew it, dad would tell us we would go to Disneyland and the snow, we didn't go.' [Y] stated 'I didn't feel upset about the divorce I feel upset about leaving [the dog] though,' and [X] said '[Y] cries about [the dog] all the time.'
When asked if they would feel comfortable with dad being in with a psychologist and the both of them together [Y] and [X] both said they don't want to tell dad how they feel and 'I don't know what will happen' and ' dad will blame me if he knows how I feel.' [X] said 'I would feel afraid to tell him how I felt.'
In her report to the referring GP, Dr N, dated 10 December 2020, Ms J confirmed the same expression of views by the children.
Ms J’s report, dated 10 March 2022, established clearly that the children’s fear of the father persists, and that they believe he may take them away from the mother:
[X] and [Y] consistently have expressed significant concerns about time spent with their father and during each session both [X] and [Y] maintain that they do not wish to see their father or speak to him. This was reported in each session in a continued way during this recent contingency of sessions up to and including the most recent session dated 18 November 2021.
…
[X] and [Y] were asked whether they wanted to see their father at some point. [X] stated, 'no I hate him.' When asked if they would be willing to see him in a safe place, such as session with the writer where they could discuss their feelings towards him, [X] said 'absolutely not, he'll just be angry again as soon as you leave.' [Y] stated 'he would be acting good then break something' and 'It's scary to see him again.' [Y] also stated 'I have bad thoughts at night-time, I picture him the last time I saw him angry with a beard' and 'dreams of him at the house and pulled me away.'
When asked what would make seeing their father easier, [X] stated 'I don't know because I don't want to see him' and [Y] stated 'I just don't feel safe around him he's never been safe.' When asked how mum feels about them seeing dad [Y] said 'mum told us we can see dad if we want.'
[Y] stated 'he would try to make us go with him, I don't want to.' [X] stated that she does 'feel awkward talking to people about dad.' When asked about any cha to life or family that would feel more comfortable [Y] stated 'nothing I like it how it is.' 'I don't think about him all that much anymore.'
[X] stated when talking about dad 'I'm terrified of him, he used to always yell at me, it was paradise for [Y].' [Y] said 'I don't want to go back. If I accidentally did something wrong he yelled at mum, she would have to leave for a bit, he left nanny crying.' [Y] stated, 'no way I don't want to go back.' [Y] stated about his father 'I don't miss seeing him.'
During interviews with the family report writer, both children maintained their views that they did not wish to spend time with the father.
X commented that the father often showed favouritism towards Y, and was upset that “her father has not said sorry ‘for when he hurt us”. She stated that “she does not want to see her father again, and that there is nothing he can do to change this. X said that if the Judge decided that she had to see her father ‘I’d be very upset because I don’t want to see him’”. The mother reported that from a young age, X had been saving money so that they could live elsewhere away from the father.
Y echoed such views, saying that his message to me “is that he wants Court to end because ‘it is going on and on’ and that he would be ‘annoyed’ and ‘sad’ if the Judge decided he had to spend time with his father”. However, the mother reported that “[Y] missed ‘the idea of the father/son relationship’, but not Mr Holcott. She claimed that [Y] is upset and angry that he has ‘missed out’ on this relationship, due to his father’s ‘bad behaviour’”.
Since meeting with the ICL prior to the first tranche of hearing dates, the mother stated that the children had “reverted to their hyper vigilant state, including checking windows, doors, and the driveway”. However, the family report writer also observed that:
84.… [X] seemed less fearful of [Mr Holcott], and more that she did not think he deserved to spend time with them, given all that he has done wrong. For [Y], he expressed fear at the thought of seeing his father, as he fears that his father may hurt his mother or shout at him.
The father’s position was that he was involved in the lives of the children at all times prior to separation, including their day to day care both before and after school. In his affidavit, he gave an account of family activities that the family would engage in on weekends, such as going to restaurants, playing at the park, or playing games at home. He stated at [165] that:
I am an affectionate and loving father, and any suggestion that the children are scared of me is extremely hurtful. Whenever the children saw me after school, they would run up to me and hugged me. The children were always asking me to join their games, and always wanted to sit next to me on the couch whenever we are watching television or a movie together.
The father consistently refused to accept that the children fear him, at least until final submissions, to which I will return. He maintained this attitude throughout cross-examination, arguing that there has been significant coaching and that the children secretly wish to see him. He suggested the children had been manipulated by the mother, together with Ms B, Mr C, and the maternal grandmother.
The evidence of coaching was said to be found in the language used by Y, with the father contending “the relative detail that – of the information he’s provided since he has been seeing this psychologist, there’s a lot of adult terms that he used in responses to questions like that”. The children had used the word “scary” to describe the father, who was also “just yelling all the time”. The father argued that this was evidence of their views being rehearsed, as he simply “wasn’t yelling all the time”. Similarly, he suggested that when X informed Ms H that “if she were to see her father now, he might try to bribe her to get us to go with him,” it was unlikely that X would understand what “bribe” means.
The father contended that he needed independent expert evidence of his own choosing, in order for him to be satisfied that the children’s views were real and not the subject of coaching. He refused to accept the appointment of Ms J, arguing someone more experienced was required. He did, however, accept that he had had over three years to seek such an expert, and that there was no evidence from any expert, that would support his belief that the children actually wish to see him.
The father’s contentions were maintained during interviews with the family report writer, where the father reported that the mother
51. … has had a significant influence on [X] and [Y] and that they are recalling incidents and events that did not occur. He expressed serious concern that their untrue negative thoughts of him have become entrenched and he perceives this as a serious form of child abuse. He claimed that the children have been heavily influenced by [Ms Holcott] to say horrible, and untrue things about him, and that they are too scared to not abide by her instructions.
The family report writer expressed some concern that the mother had, at the very least, voiced her concerns to the children:
84. … It did seem that some of the issues and incidents raised by [X] and [Y] about their father and paternal grandmother, were not things that six and seven year olds would worry about (such as having junk food, and not wearing warm clothes while playing outside, their mother not being allowed to have friends) and it is possible that they have overheard [Ms Holcott] voice some of these concerns. [X] also mentioned that her mother told them that their father wanted [X] and [Y] to live with him in the majority and that [X] needed “to tell people” that she did not want that. This would suggest that [Ms Holcott] has been having some conversations with the children regarding their father and the Court matter. It must be said that, if [Ms Holcott] was talking to the children, in the context of her allegations against [Mr Holcott] being true, then perhaps she was having open and transparent conversations with [X] and [Y] regarding the Court process and keeping them safe. The fact that [Y] and [X’s] accounts were very similar to each other’s and [Ms Holcott’s], and similar to previous accounts provided, could suggest that this is due to their lived experience of [Mr Holcott].
85. Equally, if [Mr Holcott’s] position is more accurate, it may be that these were examples that have been encouraged by [Ms Holcott]. [Ms Holcott’s] intense feelings about [Mr Holcott] may have led her to directly share them with [X] and [Y]. If this is the case, this is very unfortunate for [X] and [Y], because they have a right to relationships with both parents, and to feel secure in knowledge that their parents are capable of prioritising, promoting and facilitating their relationship with the other parent. Some of the children’s comments during their interview were not consistent with worries or concerns of six and seven year olds (age at the time of separation) and much of their issues were related to what [Mr Holcott] did not allow their mother do/or made their mother do. It is possible that [Y] and [X] were repeatedly told about various events that occurred and they have internalised these accounts as their experiences, despite this not being their lived reality. If the Court finds this may be the case, it is extremely concerning that [Ms Holcott] would erode [Y] and [X’s] relationship with their father and paternal family, and ultimately their sense of identity.
I am satisfied that the relationship between the mother and the father was characterised by frequent angry, aggressive, and violent verbal exchanges, which at times involved the children. Both parents may have been responsible for these exchanges from time to time, but I find that the children witnessed predominantly the father expressing anger and frustration, at times in a physically violent manner. I am further satisfied it is likely he acted in an emotionally and financially controlling manner towards the mother. While I do not fully accept the evidence of either parent about the extent of abusive behaviour or family violence, I reject the father’s contention that he had a warm and loving relationship with the children up to separation and they have been coached to view him negatively. While I find it is likely the mother has maintained a negative narrative about the father since separation, this is also likely to based on her lived experience of him. Whilst I find that the mother has, to some extent, communicated about these proceedings and her views to the children, I do not find that the evidence supports a conclusion that she has coached them. It is clear that the children were expressing fear of, and no desire to see, the father in early 2020, less than six months after separation. I infer these views were and are also based on the children’s lived experience of the father. This evidence supports the mother’s version of events up to separation more closely, and is not supportive of the father’s claims of coaching.
In light of the way in which the issues narrowed, the question became whether supervised identity contact after three and half years between the children and the father would pose an unacceptable risk of psychological harm to the children because of their fear of the father.
ADDITIONAL CONSIDERATIONS
The Court must have regard to each of the “additional considerations” under s 60CC(3) of the Act, separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests. These are as set out below:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated at [34]:
In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
and at [35]:
... whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed.
I have discussed at length the evidence of the children’s views above under s 60CC(2)(b). While I accept that it is likely the mother has emphasised and accentuated the children’s fear by a negative narrative about the father, I have already found that the father’s own conduct engendered fear in the children. The children are 11 and 13. I accordingly give weight to their views.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
The children clearly have a very close and positive relationship with their mother, who has been their primary caregiver since August 2019. They presently have no relationship with their father, who they fear. This is discussed above under s 60CC(2)(a).
It is clear that for present purposes, the children have a fearful relationship with the father, but a loving one with the mother. The absence of any expression of loss by either child of a once loving relationship with their father specifically, noting that Y missed the idea of a father/son relationship, supports the conclusion that he has likely overstated the degree of warmth and closeness between him and the children prior to separation. It is entirely possible that his perception of his relationship with the children was never shared, or entirely shared, by them.
(ii) other persons (including any grandparent or other relative of the child);
The mother reports that both children enjoy spending time with their immediate and extended family members. They have a close relationship with their step-siblings, Ms B and Mr C. Ms B sees the children frequently, and whilst Mr C resides in City O, they speak on the phone regularly. The mother gave evidence that the four children are “very definitely siblings, so there’s sibling rivalry and ganging up on each other, but they get on very well and they’re a really happy cohort together”.
Prior to separation, the children also maintained a relationship with their paternal grandmother, Ms M, who shared school pickups and drop-offs with the maternal grandmother. They saw the paternal grandmother almost every weekday, and also spent overnight time with her. The children have spent no time with the paternal grandmother since mid-2019.
However, both children reported to the family report writer that they did not enjoy spending time with the paternal grandmother. X stated that they got on “kinda well” with her, but did not miss her because “she was like a day-care” and they were “dumped” there, when their parents worked. Y expressed that he does not “get on real well” with his ‘Nanna’, because “she blames everything on me” if he does not listen. He did, however, state that he “kind of miss[es] her, but I don’t know why”.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
I am satisfied that both parents have taken the opportunity, where possible, to be involved in making decisions about major long-term issues for the children. The father has not had any involvement with the children since mid-2019, with the mother being responsible for all decision making from that point onwards.
There was evidence that the parties are unable to communicate with one another, with the mother stating that their communication is “not only poor; it’s nonexistent”. There is plainly a complete absence of trust between the parents and each holds a strongly negative view of the other.
The father similarly accepted that communication with the mother, at present, would be difficult, and for at least the next few years.
(ii) to spend time with the child; and
(iii) to communicate with the child;
As the primary carer for the children, the mother has undoubtedly taken the opportunity to spend time and communicate with the children.
Although the father has not spent any time nor communicated with the children since mid-2019, I note he has persistently sought orders permitting him to do so. I am satisfied he has taken the opportunity where possible to spend time and communicate with the children, and remains eager to do so.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
There were no arguments that either parent was unable to fulfil their obligations to maintain the children.
The father has paid child support pursuant to an administrative assessment from 7 September 2019 to date.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
There was no dispute that the children should remain living with the mother. The question is what time, if any, they should spend with the father.
It was suggested that the children would become extremely distressed if separated from the mother, even on a temporary basis for the purpose of time with the father. As outlined by Ms J (above under s 60CC(2)(b)) the children continue to harbour fears of the father, with Y having “dreams of him at the house” where he “pulled me away”. Both stated they did not wish to go back to the father.
I accept that the children would suffer from anxiety, fear, and distress if separated from the mother for the purposes of spending time with the father for any substantial length of time. The family report writer recorded that if the mother’s account of the father’s behaviour was true, any involvement between the father and the children would seriously compromise the children’s psychological and physical wellbeing.
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children reside with only the mother. They have been largely separated from the paternal family. While the lack of contact with the broader paternal family is a loss to the children, the evidence does not suggest it has been very significant, and as noted above they have stated that they did not enjoy being cared for by the paternal grandmother.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The mother presently resides in the P Region, although her precise location is unknown for safety reasons. The father resides in Q Town, approximately a one hour drive away. Neither party pointed to any practical difficulties connected to facilitating time with either parent.
(f) the capacity of:
(i) each of the child’s parents, to provide for the needs of the child, including emotional and intellectual needs
The evidence indicates that the father continues to have limited understanding of the emotional needs of the children in circumstances where they fear him. I am satisfied he believes that their fear is irrational and a result not of any of his own conduct, but as a result of the mother coaching them in a false negative narrative about him.
During the first tranche of final hearing in November 2022, when the father was asked directly whether he agreed that the children feared him, and whether this was their perception, he said that he did not agree. He indicated that he would proffer an apology to the children, accepting they have a perception of him that is grounded in fear, but refused to accept that the perception is real, having been “coached and influenced to be fearful of [him]”. In cross-examination, he further stated:
I mean, when I look in hindsight now I regret I hadn’t spoken to the children at a more deeper level. I regret that I now think about every moment that I spent with the children. I could have taken a little bit more time to think about what they – what their thoughts and actions and requirements were. There’s a lot of things that I think about that I regret that I think back now that I wish I would have done better, but I wouldn’t say that would be something that I would apologise for.
(Transcript 14 November 2022, p.91 line 44 to p.92 line 3.)
When asked whether he had considered why the children fear him, he explained that this was due to “a perceived view of my anger. A perceived view of my arguments with [the mother] at the time”. The father stated that he did not believe he had anger issues towards the children, only the mother.
The father also expressed the belief that if he saw the children, they would respond warmly to him. He stated that “I don’t think they would respond to me in a fearful way. I think there would be anxiety, because of three and a half years of not seeing them,” but denied that they would be fearful.
During interviews with the family report writer, the father claimed that:
33. … in his opinion, he is far more insightful [than the mother] and empathetic to their needs. He said that he has done courses and programs, been honest and open in sessions, reflected on situations where he could have behaved differently, but [Ms Holcott] has not done this work.
I note that the father has completed an anger management course, as well as Circle of Security and Parenting After Separation. The family report writer recorded that:
80. In interview, [Mr Holcott] seemed committed to his children and desperately seeks to have involvement in their lives. He appeared to have taken on suggestions regarding obtaining therapeutic support to understand the impact of some of his less than ideal behaviour, on the children. He demonstrated insight into what [Y] and [X’s] experiences may have been, how they may have experienced the last three years, what it may be like for them potentially being told that their father is an unsafe person, and how their psychological wellbeing may be impacted.
I agree that the father appears committed to the children and seeks to be involved as a parent. Indeed, he has taken on recommendations to obtain support. However, whether that support has been effective, and whether the father has genuinely engaged with them is a different question. I disagree that the father demonstrates insights into the children’s experiences. As outlined above, the father clearly maintained the position that the children’s views about him are irrational. It is not entirely clear whether he accepts that the children are afraid of him, but regardless, I am not convinced that he demonstrates insight into his own behaviour, the memory of which clearly continues to affect the children. This is a major impediment to the father being able to provide for the emotional needs of the children in a mature and caring way.
This was also observed by the family report writer, who commented that:
81. However, if [Ms Holcott’s] account of [Mr Holcott’s] alleged serious patterns of psychological abuse and control (as well as other forms of abuse) of [Ms Holcott] and the children is true, then his insight and accountability is severely lacking, as he adamantly denies the extent of [Ms Holcott’s] account. If this is found to be the case, then [Mr Holcott] having any involvement with [Ms Holcott] and the children could create a situation where [Ms Holcott], [X] and [Y’s] psychological and physical wellbeing is seriously compromised.
The father’s capacity to parent is seriously compromised in my view. He has been unable to accept responsibility for the children’s responses to him or the risk to their psychological health which his conduct up to separation likely caused.
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The paternal grandmother, Ms M, provided regular care for the children prior to separation. She would pick the children up from school and look after them prior to being collected by the father on his way home from work. It was the father’s position that contact could be supervised by his mother.
However, I have already discussed the fact that the children do not hold a positive attitude to the paternal grandmother. The family report writer noted that:
68. … [Y] said that he did not have a good relationship with his paternal grandmother. When asked why he said that she gave him and [X] “lots of junk food and nothing else”, when he wanted fruit. He also said that it was very boring at her house because she had no books, games or TV.
The children are otherwise cared for by the maternal grandmother. The father suggested that she was involved in the coaching of the children, but in my view the evidence does not support such contentions.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
There are no other factors aside from the ones already set out above which are relevant under this head.
Section 60 CC(3)(h) then deals with factors to consider for Aboriginal and Torres Strait Islander children. These are not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child’s parents;
Both parents argue that they have a responsible attitude to parenthood. As outlined above, the father contends that the mother is failing to fulfil her obligation by refusing to encourage and facilitate the children’s relationship with him, as well as coaching them to be afraid of him. I have already rejected the father’s allegations of coaching, however I accept the mother has accentuated the children’s fear by a persistent negative narrative about the father.
The mother submitted that the father’s anger issues and desire to control are significant obstacles to his being able to claim that he has a responsible attitude towards parenthood. She pointed to evidence that the father would consistently undermine her. For example, when Y attempted to do something with her, the father was said to intervene and redirect the children to do something different with him, such as watching a movie. The family report writer recorded that the mother felt “like she could not parent, or connect with the children without [Mr Holcott] attempting to control the situation”.
The father denied any such behaviour, arguing instead that these were disagreements on aspects of discipline, and his belief that she was sometimes too strict. He gave the following example at [94] of his trial affidavit:
Sometimes the children would be playing with me and she will coldly say, "Get your things ready." On one occasion, I remember that [X] and I were watching a movie when [Ms Holcott] said, "Get your pyjamas ready and put them in the bathroom." I said, "Can't they do that when they're ready for a bath?" At this, [Ms Holcott] said, "Oh! We'll just let them do what they want!" In spite of this, I have never and would never encourage the children not to listen to her.
I accept the mother has a satisfactory and responsible attitude to the children and the responsibilities of parenthood. I cannot reach the same view about the father. While I accept he believes he is a good parent, and he likely has some satisfactory parenting capacity, his inability to accept the children genuinely fear him, because of his behaviour while they lived with him, is a stark deficit, and bespeaks a sharply compromised attitude to the responsibilities of parenthood. While this conclusion may have circumscribed importance in the context of considering identity contact on a limited number of occasions in a year, I take it into account.
(j) any family violence involving the child or a member of the child’s family;
I have nothing further to add beyond the discussion above in connection with s 60CC(2)(b).
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order
As outlined above, two ADVOs have previously been taken out against the father. The first, in 2011, was a provisional order which was later withdrawn. The second order in 2019 was for a period of six months, made following the father’s consent on a without admissions basis.
Both orders were made for the mother’s protection, and in the case of the 2011 ADVO, also protected Mr C and Ms B. The ADVO was later withdrawn with the mother’s consent. It included restraints on the father entering the mother’s home at the time.
The 2019 ADVO included conditions restraining the father from approaching or attempting to contact the mother in any way. It was made in circumstances where the mother left the family home with the children soon after an argument with the father during which he threw an ironing board. In the grounds of the application listed on the ADVO, it was reported that the father stated “you’ve got no where to go and if you leave and try and take the kids I will kill you”.
The circumstances of the making of these orders is broadly consistent with the evidence of the father’s angry and abusive behaviour. Beyond that, I am not prepared to draw inferences adverse to the father from these matters. I have already found that the parents had a fractious relationship characterised by angry and aggressive interactions, and the father’s conduct caused the children to fear him.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is preferable to make orders which are least likely to lead to the institution of further proceedings.
It is important to note that children engaging in joint therapy sessions and supervised time with a parent they perceive as someone to be fearful of, regardless of the accuracy of this perception, would likely lead to considerable stress, worry and upset for X and Y, particularly as it is not in accordance with their views. They also do not have a sense of finality, which Y in particular has said he wants.
PARENTAL RESPONSIBILITY
I have already concluded that the presumption of equal shared parental responsibility does not apply. There was ultimately agreement that parental responsibility should be allocated to the mother.
The evidence clearly supported this. In cross-examination, the father appeared to recognise that if cooperation with the mother could not be possible, then she should be allocated sole parental responsibility to make decisions about major long-term issues:
HIS HONOUR: [Mr Holcott], I understood from your answers a moment ago that you agree you and the mother have not communicated for three and a half years?---Three and a half years. Yes, your Honour.
Just so I’m clear, I mean, decision-making about major long-term issues affecting children, such as school, health, etcetera. If parents can’t cooperate to make decisions about those things and somebody, usually one of them, has to be given the responsibility to do so; do you follow?---I understand, your Honour.
Yes. So just so I’m clear, you accept that in the circumstances, bearing in mind the history, it should be the mother?---Yes. Yes, your Honour.
(Transcript 14 November 2022, p.14 lines 32–42.)
The father also accepted that the decisions made by the mother about long-term issues for the children have been sensible and reasonable, to the extent that he is aware, although questioned the extent to which this was useful seeing as he does not know where the children presently go to school.
The family report writer expressed the following opinion:
91. Given that the parents have had no co-parenting relationship since separation and [Ms Holcott’s] views on the prospect of co-parenting or communicating with [Mr Holcott], it is highly unlikely that the parents could discuss and make decisions together in respect of [X] and [Y] in a timely and positive manner. With this in mind, and to reduce any further unnecessary distress or conflict particularly for [Y] and [X], it may be appropriate for [Ms Holcott] to hold sole parental responsibility.
I will allocate sole parental responsibility to the mother.
LIVE WITH
There was no dispute that the children should continue to live with the mother. Orders will be made to this effect.
TIME WITH THE FATHER
This brings me to the most difficult aspect of this case, the question of what contact, if any, the children should have with their father. As already made clear, this became limited to the possibility of supervised identity contact between the children and the father, until age 14 or 15, after which the children could spend time with him in accordance with their wishes.
The ICL submitted that the Court should be mindful of the conditions Ms L identified for satisfaction before identity contact may be ordered, specifically, finding that the concerns that father has raised in respect of the mother, of coaching and manipulation, “have veracity”, and that “it would be of benefit to the children to attempt re-introducing them to their father”. I have not found the father’s allegations about the mother have veracity.
The ICL argued that on the evidence, there can be little doubt that orders for identity contact would cause the children immediate distress and impact negatively on the mother’s parenting capacity. The Court would therefore have to be satisfied that the immediate risk of psychological distress to the children and the negative impact on the mother’s parenting, bearing in mind that she will remain the primary carer, are outweighed by longer term benefits to the children of maintaining limited identity contact with the father. The ICL stressed the evidence that Y in particular had low self-esteem and identity issues, missed a father/son relationship, but also said he did not miss the specific relationship with the father. The ICL did not support identity contact, but acknowledged that benefit to the children could not be excluded, and the decision was extremely difficult.
The father argued he had not transgressed boundaries since separation and had learnt from the courses he had undertaken. His proposal would require identity contact in tandem with ongoing therapy for the children to re-engage with the father.
The family report writer observed that the father’s:
28. … primary hope is to slowly re-establish a relationship with [X] and [Y], in a slow, safe and supported manner, which can allow them to remember how their relationship was with him. He demonstrated insight into this potentially being a difficult feat, but is hopeful that progress can be made, with time, patience and the right support, due to his solid and secure relationship with [Y] and [X] for the majority of their lives.
The mother argued identity contact should not be forced, and it was clear she could not promote such contact between the children and the father. The mother holds entrenched views that any form of contact with the father would be inappropriate. She stated that supervised identity contact would be insufficient to allay her fears, despite the presence of trained staff at a contact centre.
She repeated these views to the family report writer, who observed that:
38. [Ms Holcott] was resolute in her position that [Mr Holcott] cannot undertake, or commit to anything, that would make her re-consider her views regarding [X] and [Y’s] relationship with him. She reported that, seeing [Mr Holcott] in Court in recent months has confirmed for her that, despite him engaging in various supports, that he continues to hold no insight or take no responsibility for his behaviour, that he continues to be “arrogant, angry and belligerent”.
However, the mother stated that if an order for no contact with the father was made, she was confident that she could support ongoing contact with the children’s paternal aunt and uncle. The children have had some casual and limited contact with their aunt since separation. The mother remained reserved about ongoing contact with the paternal grandmother, who she did not see as being appropriately protective of the children.
The family report writer was concerned about the amount of time which has passed, together with the views held by the children, and whether family therapy could be effective. She opined:
86.[Ms Holcott] is seeking that [X] and [Y] have no time with [Mr Holcott]. If the Court determines that [Ms Holcott’s] account is most accurate, then it is likely that [X] and [Y] spending no time with [Mr Holcott] would be the most appropriate outcome to safeguard their physical and psychological safety. Given that they have spent no time with [Mr Holcott] in recent years, this will likely have the least unsettling impact on their day to day life and their immediate to medium term emotional wellbeing. This option is also in keeping with [X] and [Y’s] reported views.
87.[Mr Holcott] seeks any pathway that re-introduces him to [X] and [Y], including family therapy and supervised time be re-considered. If his account is accurate, this may be a possible avenue to re-consider to support [X] and [Y] feeling psychologically safe to re-establish their relationship with their father. Supervised time with professional supervision, could potentially occur in combination with family therapy and may provide a safe setting for their reintroduction. In [Mr Holcott’s] mind, there would be great gains for [X] and [Y] to see him face to face, to re-establish their relationship based on their own perceptions of their father. However, given that [X] and [Y] have at least three and half years of fixed beliefs of their father being an unsafe and unkind person, challenging their perception of their father, particularly if they did not have the meaningful support of [Ms Holcott], would be a very difficult and overwhelming experience for them. These interventions have already been ordered, and the children have not felt safe, or potentially supported enough to engage. It also seems very difficult to see [Ms Holcott] supporting [X] and [Y] to attend family therapy or supervised time given her firms views on the matter.
88.It is important to note that children engaging in joint therapy sessions and supervised time with a parent they perceive as someone to be fearful of, regardless of the accuracy of this perception, would likely lead to considerable stress, worry and upset for [X] and [Y], particularly as it is not in accordance with their views. They also do not have a sense of finality, which [Y] in particular has voiced he wants. It is also very possible that [X] and [Y] may not engage, or the professional supervision agency or family therapist may determine that the risks to [X] and [Y’s] emotional wellbeing in pursuing the therapy/supervised time outweighs the possible benefits and decide not to proceed. As such, this may not be in [X] and [Y’s] best interest. The Court may need to prioritise their psychological safety in this regards, over the re-introduction of the relationship with their father.
The family report writer concluded by pointing out how, even if the father’s version was more accurate, and both parents posed a risk of psychological or physical harm, the children would nonetheless struggle with renewed contact with their father:
92.In summary, this is an extremely complex situation, where the parents have provided diametrically opposing accounts of their relationship, their parenting and what the children need. In terms of the subpoenaed material reviewed, there is information that supports both parents’ accounts of the family situation. Based on this material, it would suggest that both parents have behaved in a manner that has placed their children at risk of psychological and physical harm. The decision would heavily depend on the findings of the Court in relation to the allegations made by both parents. However, on balance it is likely, that even if the father’s accounts were found to be more accurate, that the children will struggle to re-establish a solid and secure relationship with him at this stage in their development and given the time that has passed. Therefore a cautious approach may be required.
The family report writer was also clear in her oral evidence that identity contact as proposed by the father would only be beneficial in the circumstances of this case, if supported by the mother.
The Court is indeed presented with a sad and difficult challenge. Having carefully considered the evidence and the arguments, I am not satisfied that identity contact as proposed by the father should be ordered. The length of time, three and a half years, since the children have seen the father, and their obvious and long held fear of him deriving from their experience of living with him also make clear the likelihood of immediate psychological harm to the children, while it is entirely unclear whether any longer term benefit to the children would necessarily materialise. There was no persuasive proposal for a type of family therapy identified by Ms L as necessary for the efficacy of identity contact, and it is clear the mother could not promote or support any contact between the children and the father. Since the mother will be the primary carer, I cannot discount the effect upon her of the proposed identity contact. Having reflected on these matters carefully, I conclude they combine to militate against the supervised identity contact which has been proposed.
I have taken account of the father’s argument that he should be an emergency contact, but I fail to see how that could work effectively in the circumstances of this case. I am also persuaded that it would be more beneficial to the children if they have the certainty of the litigation being brought to an end with their views being acknowledged by the Court, and the possibility of being caught in the middle of further warfare between the parents reduced to a minimum. They are entitled to be freed from being the subject of litigation. I am also satisfied that there is a likelihood that the mother will maintain some contact between the children and the extended paternal family.
I am also satisfied that, in accordance with the oral evidence of Ms L, it would be appropriate to specify, where there will be no identity contact, that each child may return to spending time with the father upon reaching 15 years of age. Until then, the father can communicate with the children by cards, letters or gifts, and thereafter the children can make their own choices about spending time with him. If orders are made to this effect, I am satisfied they are least likely to lead to further litigation.
As already noted, the father did not consent to the restraints proposed by the ICL, although he did not argue against them.
Orders will be made as proposed by the ICL.
ICL’S COSTS
Both parents agreed to pay half the ICL’s costs.
CONCLUSION
For all the foregoing reasons I am satisfied the orders set out at the commencement of these reasons should be made.
I certify that the preceding one hundred and sixty (160) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 3 April 2023
ANNEXURE “A” – FATHER’S PROPOSED ORDERS
(1)That the children live with the mother.
(2)That the parties have equal shared parental responsibility for all long-term major decisions associated with the care, welfare and development of the children, namely:
(a)X, born 2011; and
(b)X, born 2013.
FROM THE COMMENCEMENT OF THESE ORDERS AND FOR A PERIOD OF !@ MONTHS:
TIME
(3)The children shall spend time with the father as agreed and, in default of agreement, then for three (3) months from the commencement of these orders:
(a)The children shall spend formally supervised time with the father at R Contact Service for two (2) hours a fortnight; and
(b)In the event that R Contact Service is unable to facilitate time for any reason whatsoever, the father shall instead spend time with the children formally supervised for two (2) hours a fortnight and:
(c)Such time shall only be spent at the S Contact Centre in Suburb T, U Street, Suburb T NSW ;
(d)No other person is permitted to be present.
(4)Following the three (3) month period referred to in order 3 above, the children shall spend time with the father for a further three (3) month period as agreed between the parties, in default of agreement:
(a)The children shall spend time with the father formally supervised by S Contact Centre as follows:
(i)Each alternate Saturday for four (4) hours;
(ii)On Father’s Day for four (4) hours;
(iii)On Christmas Eve for four (4) hours.
(b)For the purposes of this order:
(i)Such time can occur at any public place or the father’s residence; and
(ii)Members of the paternal family are permitted to be present.
(5)Following the further three (3) month period referred to in Order 4 above, the children shall spend time with the father for further three (3) month period as agreed between the parties, in default of agreement, the children shall spend time with the father supervised by the paternal grandmother, or any other adult known to the children and agreed between the parties (“the supervisor”), subject to compliance with Order 8 below, as follows:
(a)Each alternate Saturday for six (6) hours;
(b)On Father’s Day for six (6) hours;
(c)On Christmas Eve for six (6) hours.
(d)And such time can occur at any place, including the father’s residence, with members of the paternal family present.
(6)Following the further three (3) month period referred to in Order 5 above, the children shall spend time with the father for further three (3) month period as agreed between the parties, in default of agreement, the children shall spend time with the father supervised by the paternal grandmother, or any other adult known to the children and agreed between the parties, as follows:
(a)Each alternate weekend from 5:00PM on Saturday until 9:00AM on Sunday;
(b)On Father’s Day from 9:00AM until 5:00PM;
(c)On the Sunday nearest to the children’s birthdays for six (6) hours; and
(d)On Christmas Eve for six (6) hours.
(7)For the purposes of any formal supervision pursuant to these orders:
(a)The parties shall forthwith do all things to complete all intake assessments to ensure that they are placed on any waiting list as soon as possible;
(b)The parties shall follow all reasonable directions and recommendations of any contact service or supervision service; and
(c)The parties shall share equally any costs associated.
(8)Prior to informal supervision taking place, the paternal grandmother and/or supervisor shall file and serve an undertaking setting out their willingness and ability to:
(a)Be present at all times that the children are spending time with the father;
(b)Intervene and protect the children and, if necessary, remove them from any harm or potential harm;
(c)Cease contact if they observe anything inappropriate or worrying to occur;
(d)Not discuss these proceedings or any aspects of them in the presence of hearing of the children;
(e)Not denigrate the mother and/or members of her family in the presence or hearing of the children.
COMMUNICATION
(9)From the commencement of these orders and for a period of six (6) months, the children shall communicate with the father as agreed between the parties and, in default of agreement, then from the commencement of these orders the children shall have communication as follows:
(a)The children shall have communication with the father at least once a week formally supervised by R Contact Service; and
(b)In the event that R Contact Service is unable to facilitate communication for any reason whatsoever, the father shall instead communicate with the children formally supervised once a week with S Contact Centre solutions.
(10)Following the six (6) month period referred to in Order 10 above, the father shall have audio-visual communication with the children for fifteen (15) minutes each week and, for the purposes of this communication:
(a)The mother shall ensure that the children have access to a charged, Wi-Fi or data accessible device with audio-visual communication capabilities;
(b)The father shall provide the mother or her solicitors with a regularly scheduled Zoom link;
(c)The mother or the children shall use the link at the commencement of the father’s communication time;
(d)The mother may remain within earshot of such communication but shall not interfere.
(11)Unless otherwise agreed, the father’s time and communication pursuant to Orders 3 –10 above shall be suspended on the following special occasions:
(a)On Mother’s Day;
(b)On the Mother’s birthday;
(c)On Christmas Day;
(d)For a period of up to four (4) consecutive weeks no more than two occasions per year upon the mother providing the father with twenty-eight (28) days’ notice.
ONCE THE 12-MONTH PERIOD LAPSES THE FOLLOWING SHALL OCCUR
(12)Following the conclusion of the 12-month period, orders 3 – 11 are discharged.
(13)The children shall spend time with the father during the school term as agreed between the parties and, in default of agreement, the children shall spend time with the father each alternate weekend from the conclusion of school (or 3:00PM) on Friday until the commencement of school (or 9:00AM) on Monday.
SCHOOL HOLIDAYS
(14)The children shall spend time with the father during school holidays as agreed between the parties and, in default of agreement, the following shall occur:
(a)Short NSW school holidays: The father shall spend one (1) period of three (3) nights with the children.
(b)Long NSW school holidays: The father shall spend two (2) periods of five (5) nights with the children.
(c)The father must ensure that they do not fall during any of the mother’s special occasion days set out below.
(15)For the purposes of the father’s school holiday time:
(a)The father shall be at liberty to nominate the dates;
(b)The father shall provide the mother with no fewer than forty-two (42) days’ notice in respect of the proposed dates nominated;
(c)The father must ensure that they do not fall during any of the mother’s special occasion days set out below.
SPECIAL OCCASIONS
(16)Notwithstanding anything else set out herein, the children shall spend special occasions with each parent as follows:
(a)With the mother on Mother’s Day from 9:00AM until 5:00PM;
(b)With the father on Father’s Day from 9:00AM until 5:00PM;
(c)With the parent with whom they are not already spending time on their birthdays from the conclusion of school (or 3:00PM) until 6:00PM;
(d)During Christmas as follows:
(i)In odd numbered years: With the father from 2:00PM on Christmas Eve until 2:00PM Christmas day, and with the mother from 2:00PM on Christmas Day until 2:00PM on Boxing Day.
(ii)In even numbered years: With the mother from 2:00PM on Christmas Eve until 2:00PM Christmas day, and with the father from 2:00PM on Christmas Day until 2:00PM on Boxing Day.
(iii)With the mother only for a period of up to four (4) consecutive weeks no more than two (2) times per year upon the mother providing the father with twenty-eight (28) days’ notice.
(e)And any other order that is inconsistent with this paragraph is suspended so as to allow this to occur.
(17)The children shall have communication with the father as agreed between the parties and, in default of agreement, the following shall occur:
(a)The mother shall ensure that the children have access to a charged, Wi-Fi or data accessible device with audio-visual communication capabilities;
(b)The father shall provide the mother or her solicitors with a regularly scheduled Zoom link;
(c)The children shall use the link at the commencement of the father’s communication time;
(d)The mother shall afford the children privacy and shall not, nor allow any other person, to interfere.
THE FOLLOWING SHALL APPLY AT THE COMMENCEMENT OF THESE ORDERS
(18)That the parties and the children shall attend family therapy with a therapist as agreed between the parties and, in default of agreement, with the next available practitioner at F Counselling, and in order to facilitate this, the parties shall:
(a)Each contact the family therapist within seven (7) days;
(b)Complete any intake procedures as required by the family therapist;
(c)Attend all appointments as required by the family therapist;
(d)Facilitate the children attending all such appointments as required by the family therapist;
(e)Follow up recommendations and referrals made by the family consultant.
(f)For the purposes of the costs associated with Family Therapy:
(g)The children’s attendance upon the family therapist shall be shared equally between the parties;
(h)Each parent’s personal attendance upon the family therapist shall be borne by them individually;
(i)The father’s joint attendance with the children upon the family therapist shall be borne by the father;
(j)The mother’s joint attendance with the children upon the family therapist shall be borne by the mother.
(19)That the ICL be granted leave to provide a copy of the Family Report of Ms H dated 27 November 2020 to the Family Therapist, and a copy of these orders.
SPECIFIC ISSUES
(20)The father is permitted to receive from the children’s school any reports, notifications, photographs, invitations.
(21)The father is permitted to send the children cards and gifts on special occasions including but not limited to Christmas and the children’s birthdays.
(22)Each parent is restrained from:
(a)Denigrating the other parent and/or any member of the other parent’s family or household to, or in the presence or hearing of, the children;
(b)Physically disciplining the children;
(c)Exposing the children to family or domestic violence.
(23)The parties shall communicate only in respect of matters relating to the children via the OurFamilyWizard application, unless there is an emergency, whereupon the parties are permitted to telephone each other.
(24)That should either party choose to change residential address that they inform the other party the intended address no less than two (2) weeks prior to the proposed change in writing.
(25)The parties will keep each other informed of their email addresses and mobile numbers and notify the other party of any change to those details within forty-eight (48) hours of such change occurring.
(26)That the parties be restrained from relocating with the children outside of the Sydney Metropolitan Area.
0
5
0