Hyne & Hyne (No 2)
[2024] FedCFamC1F 276
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hyne & Hyne (No 2) [2024] FedCFamC1F 276
File number(s): SYC 8218 of 2019 Judgment of: CURRAN J Date of judgment: 24 April 2024 Catchwords: FAMILY LAW – PARENTING –Where order made for the mother to hold sole parental responsibility by consent – Where the mother alleges the father poses an unacceptable risk of harm – Where orders sought for the father to spend no time with the children – Where there are allegations of sexual abuse of the younger child – Where it is alleged that the father sexually abused a child from a previous relationship–Where there are allegations of family violence – Where the children have spent supervised and unsupervised time with the father – Where unacceptable risk found – Whether the risk can be ameliorated by supervision – Whether the children should have communication with the father – Where the father should be permitted to send cards and gifts – Where supervised time four times per year ordered – Indefinite supervision Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 65Y, 117 Cases cited: A v A (1998) FLC 92-800
Bayer & Imhoff [2010] FamCA 532
Dunst & Dunst [2016] FamCAFC 15
Eastley & Eastley [2022] FedCFamC1A 101; FLC ¶94–094
Grant & Grant (1994) FLC 92-506
Gorman & Huffman and Anor [2016] FamCAFC 174
Helbig & Rowe [2016] FamCAFC 117
Hollister & Gosselin [2016] FamCA 759
Isles & Nelissen (2022) 65 Fam LR 288
Keane & Keane (2021) 62 Fam LR 190
Keighly & Keighly [2023] FedCFamC1A 146
Marsden & Winch (No 3) [2007] FamCA 1364
Mazorski & Allbright (2007) 37 Fam LR 518
McCall & Clark [2009] 41 Fam LR 483
M v M (1988) 166 CLR 69
N & S (1996) FLC 92-655
Re Andrew (1996) FLC 92-692
Russell v Close [1993] FamCA 62
Division: Division 1 First Instance Number of paragraphs: 223 Date of last submission/s: 6 December 2023 Date of hearing: 8-10 November 2023 Place: Sydney Counsel for the Applicant: Ms Clifton Solicitor for the Applicant: RMG Law & Associates Counsel for the Respondent: Mr Friedlander Solicitor for the Respondent: Sharah & Associates Solicitors and Conveyancers Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Independent Children's Lawyer: G & D Lawyers ORDERS
SYC 8218 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HYNE
Applicant
AND: MR HYNE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
24 APRIL 2024
BY CONSENT THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for X born 2016 and Y born 2017 (“the children”).
THE COURT FURTHER ORDERS THAT:
2.All previous parenting orders, but for Order 1 made on 8 November 2023, are discharged.
3.The father is permitted to send to the children gifts and cards for their birthdays and Christmas to an address to be provided by the mother to the Independent Children’s Lawyer within 21 days of the date of these orders.
4.The father spend time with the children on four occasions each year supervised at a contact centre nominated by the Independent Children’s Lawyer within 21 days of the date of these orders.
5.The parties will do all acts and things to complete intake with the nominated contact centre forthwith upon the nomination being made by the Independent Children’s Lawyer.
6.The Independent Children’s Lawyer is to provide a copy of these orders and reasons for judgment to the nominated contact centre for provision to any relevant supervisor/s.
7.The time the father shall spend with the children will take place on the first Saturday of each school holiday period from 10.00am until 2.00pm, or other such time as the contact centre may direct for a period of four hours.
8.The father is to meet all costs as required by the contact centre to facilitate orders 4 and 7 above.
9.Pursuant to s 65Y of the Family Law Act 1975 (Cth) the children are permitted to travel internationally with the mother.
10.The Independent Children’s Lawyer shall be discharged upon compliance with orders 4, 5, and 6 above.
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 Hyne & Hyne has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CURRAN J:
INTRODUCTION
These proceedings between the applicant mother, Ms Hyne, and the respondent father, Mr Hyne, concern the parenting arrangements for their children Y, born 2017, and X, born 2016 (collectively “the children”). While it was not in contest that the mother should remain the children’s primary carer and the children should live with her. The dispute was whether it is in either child’s best interest to have any ongoing relationship with their father. The key issue became whether the father presents as an unacceptable risk of harm to the children and whether, if such risk was found, it could be ameliorated.
BACKGROUND
Y is six years old. X, who is eight years of age, has been diagnosed with Autism Spectrum Disorder. The Respondent has four children from two previous relationships, being Ms F (28 years old, Mr N (24 years old), Ms Z (18 years old) and AA (13 years old).
Orders for the children to reside with the mother were made by consent on the first day of the final hearing, and during the final hearing, counsel for the father indicated that he was instructed that the father would consent to an order for her to hold sole parental responsibility. The key dispute of concern was whether the father presents an unacceptable risk of harm to the children, an issue which centred on whether the father presents a risk of sexual harm, harm from exposure to family violence, a risk of emotional and psychological harm due to the conflict in the parental relationship, and due to his lack of insight as to the impact of his conduct on the children and the mother.
The other issue for determination was, if such a finding of unacceptable risk was made, whether the harm could be ameliorated by orders for supervision, and accordingly, what time if any the father should spend with the children. There was no suggestion from any party that there were any other means of amelioration of risk, for example by education or counselling.
The father opposed orders for supervised time to be made, but if there was a determination that time occur and that it be supervised, he sought supervision be by the paternal grandparents as his primary position, or alternatively a supervisor who could attend at the paternal grandparents’ home.
CONSENT ORDERS MADE
On the first day of the trial, it became the common position that the children should remain living with the mother and that she should retain her role as primary carer. Based on the evidence filed and opinion of the Court Child Expert Ms BB, and supported by the parties’ consent, I determined that such an order was in the best interest of the children and that order was made.
On the final day of the trial, but prior to the Court Child Expert giving evidence, it became the common position that an order should be made for the mother to hold sole parental responsibility. There were allegations by each parent that the other had perpetrated family violence and, as set out herein, I find that there was family violence and that accordingly the presumption is rebutted pursuant to s 61DA of the Family Law Act 1975 (Cth) (“the Act”). Based on the evidence filed, the opinion of the Court Child Expert, and noting the evidence that was not in dispute, the parties’ relationship can only be described as one of extremely high conflict. The father referred to the mother as a pathological liar and maintained his allegation that she was a ringleader in an international drug trafficking operation, and the mother alleged the father was a con artist who owned a pornographic website and sold images of underage and teenage children.
The parties’ co-parenting relationship has deteriorated since their separation and continues to deteriorate. Noting the parties’ consent and given the extremely high conflict between the parents it is in the best interest of the children for the mother to hold sole parental responsibility.
ISSUES IN DISPUTE
The issues central to the resolution of the case revolve around questions of risk posed by the father, and the benefits of the children having a meaningful relationship with the father. To those ends, the factual matters that were predominantly focussed upon at the trial were as follows:
(a)Whether the father poses an unacceptable risk of harm to the children as a result of the allegations of inappropriate touching of Y; the allegations of family violence;
(b)the existence of highly conflictual parental relationship; the alleged lack of insight into the children’s emotional needs; and the impact on the mother’s emotional and psychological wellbeing of time;
(c)Whether the risks, if found, could be ameliorated;
(d)Whether, as suggested by the father, the mother had “weaponised” allegations of sexual abuse and family violence against the father to limit his relationship with the children;
(e)Whether the mother is able to facilitate a meaningful relationship between the children; and
(f)If time is ordered whether the mother’s capacity to cope is impacted.
Whilst the above list does not cover all of the ground traversed by the parties at trial, these matters represent those that the parties ultimately treated as the issues to be determined in order to make orders that will be in the children’s best interests.
MATERIAL RELIED UPON
Applicant mother
The applicant mother relied upon the following documents:
(a)Amended Application for Final Orders filed 1 November 2023;
(b)Affidavit of Ms Hyne filed 22 September 2023;
(c)Affidavit of Ms Hyne filed on 5 November 2023;
(d)Affidavit of Ms CC filed 20 September 2023;
(e)Notice of Objection to Subpoena of Ms F filed 2 November 2023;
(f)Notice of Risk filed 3 December 2019;
(g)Case Outline Document filed 6 November 2023; and
(h)Written submissions as to ICL’s Costs filed 6 December 2023.
Respondent father
The respondent father relied upon the following documents:
(a)Response to Final Orders filed 20 December 2019;
(b)Affidavit of Mr Hyne filed 3 October 2023;
(c)Affidavit of Ms DD filed 9 November 2023;
(d)Minute of final orders sought by the father marked as Exhibit 4;
(e)Notice of Risk filed 20 December 2019;
(f)Case Outline Document filed 30 October 2023; and
(g)Written Submissions regarding ICL’s Costs filed 1 December 2023.
The Independent Children’s Lawyer
The Independent Children’s Lawyer (“ICL”) relied upon the following documents:
(a)Case Outline Document filed 7 November 2023;
(b)Family Report of Ms E dated 15 July 2021; and
(c)Family Report of Court Child Expert Ms BB dated 9 June 2023.
The ICL prepared a tender bundle from material filed and material produced on subpoena. Numerous extracts from both bundles were exhibited in the proceedings.
ORDERS SOUGHT
In addition to the consent orders made, the mother sought for there to be no order permitting time or communication between the children and the father.
The mother sought orders that the father has no contact with the children; that the father be permitted to forward letters, photos, gifts and cards to the mother for the children and that she may check them to ensure they are appropriate and child-focussed; that within 21 days, the mother provide a father with a postal address to which such items may be forwarded; and an order pursuant to s 65Y of the Act, permitting the children to travel internationally with the mother.
The father sought orders for the children to spend time with him unsupervised for one weekend each month, for half of the school holidays and other special occasions. He also sought FaceTime communication each Wednesday from 6.00pm to 6.30pm. When pressed in final submissions to articulate the orders sought in the event orders were made for supervised time he sought, “as a last resort”, time four times a year supervised by the paternal grandparents, or to occur at the home of the paternal grandparents.
At the conclusion of the evidence, the ICL sought orders for the children to spend no time and have no communication with the father, but for him being permitted to send gifts and cards but not letters.
THE LAW
Pursuant to s 60CA of the Act, the Court's paramount consideration in determining whether a parenting order should be made is the best interests of a child by having regard to the considerations set out in s 60CC of the Act, in light of the objects and principles set out in s 60B, and the reasoning process set out in s 65DAA.
The considerations as set out in the Act are divided into primary and additional considerations.
The primary considerations are the benefit to the children of a meaningful relationship with both parents and the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court is to place greater weight upon the second of the two primary considerations, namely, protecting the children from abuse, neglect or family violence.
The key issue between the parties relates to whether the father presents an unacceptable risk of harm to the children. In pursuing her case as to what is in the children's best interests, the mother focussed upon the primary considerations as they relate to protecting the children from abuse or harm arising primarily from sexual abuse, family violence, and psychological harm. The father’s case was that there was no unacceptable risk of harm, that the mother had manufactured concerns following the father indicating his intention to seek orders for the children to live with him for six months to enable the mother to “get her life together.”
The ICL’s case as to what is in the children's best interests focussed upon the primary considerations as they relate to protecting the children from abuse or harm arising from sexual abuse, from family violence, and from the potential harm being occasioned by exposure to the father and exposure to the parental conflict, even absent abuse or family violence.
There were various additional considerations raised in the course of evidence, such as the characteristics of the child and parental relationships and the parental capacity of the parents, but each was treated as part of the analysis of the risk and benefits of a meaningful relationship, which were in turn treated as determinative of best interests. No other additional considerations were specifically addressed by any party in submissions and are not required to be. I, however, have had regard to each of the primary and additional considerations in reaching my conclusion as to the orders in the best interests of the children.
MEANINGFUL RELATIONSHIP
As stated above, the primary considerations include the assessment of the benefits of a meaningful relationship between the children and each of their parents at s 60CC(2)(a).
That a meaningful relationship exists is not sufficient to warrant an order for a parent to spend time with the child, it must be established that the child will derive a positive benefit from the relationship as set out by the Full Court in McCall & Clark [2009] 41 Fam LR 483 at [122]. Such relationship is one that is “important, significant, and valuable to the child” as at [26] of Mazorski & Allbright (2007) 37 Fam LR 518.
Furthermore, the need to protect the child from harm takes priority over any potential meaningful relationship as stated by their Honours Warnick and Thackray JJ in Marsden & Winch (No 3) [2007] FamCA 1364 at [77] that:
whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship
The mother is the primary caregiver of the children. The Court Child Expert observed that she has a positive relationship with the children as set out in her report. This was not in dispute. I accept that the mother has a meaningful relationship with the children.
While the children have a relationship with the father, the quality of it is not easy to ascertain. The children have not spent time with the father since September 2023, as the mother has withheld them. The Court Child Expert observed that Y and the father seemed to enjoy each other’s company during the family report observations, and also that X ran out of the room from the father to return to the mother. I can place limited weight on X’s reported response at the time of the family report interviews, primarily due to his neurodiversity.
Ms EE, the supervisor from FF Family Services, prepared a document called Observational Evaluation, marked as Exhibit 27, reports that “a very strong relationship has developed in the time I have been supervising [Mr Hyne] with his children.” I note that the supervisor, it was conceded by counsel for the father at final hearing, was not abreast of the risk issues or history of the matter.
The content of the Observational Evaluation detailed the way in which the supervisor conducted her service, the activities that the father undertook with the children, the father’s style of parenting, and generally observations that the children had fun, and the father was attentive to their needs. The contact reports marked as Exhibit 28 are similar in nature in that they detail the activities undertaken and record the observations that the children had fun. The case notes were observed by the Court Child Expert as having some limitations and were referred to as being “really basic observations” that do not tell much about the relationship between the children and father but provide information about the activities they undertook.
Reports of this nature do not, and are not intended to, provide any persuasive evidence as to whether the children have a meaningful relationship from which they derive positive benefits with the father. They do, however, provide evidence of the engagement and activities they undertake with their father in the supervised setting. The evidence supports the father’s contention that the children have fun when they spend time with him and provides some evidence that they have a meaningful relationship with him. The mother’s comments to the Court Child Expert that the children would be “heartbroken” to not spend time with their father also provides evidence that they have a meaningful relationship with their father, as does the evidence of the father’s former partner, Ms U, marked as Exhibit 26, of her observations that the children “adore” their father when they spend time with him.
In considering all of the material available, I am satisfied that the children also have a meaningful relationship with their father.
UNACCEPTABLE RISK
In this case the central issue is whether there is risk of harm that may be occasioned to the children should they spend time with the father.
Per Isles & Nelissen (2022) FLC 94-092, in assessing unacceptable risk I am required to have consideration to all of the circumstances, including historical conduct, whether or not there is sufficient evidence to make a finding of fact on the balance of probabilities in relation to the allegations made, in order to determine whether there is a possibility of harm arising in the future.
As articulated by the High Court in M v M (1988) 166 CLR 69 (“M v M”), particularly in respect of allegations of sexual abuse at [78]:
In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Eastley & Eastley [2022] FedCFamC1A 101; FLC ¶94–094 (“Eastley”), the Full Court observed the need for a trial judge to consider the cumulative effect of the whole of the evidence in determining an assessment of risk, rather than merely dealing with each individual allegation in an isolated fashion at [33]:
…the law did not require the primary judge to assess the potency of the risk of harm posed to the children by reference to the evidence concerning individual events in isolation from the remainder of the evidence. On the contrary, the primary judge was required to assess the level of risk posed to the children on the whole of the evidence, since the strength of the evidence lies in its cumulative effect, much like how the strength of rope derives from the combination of its individually weaker strands (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 127–130 and 141; Savage v Lunn [1998] NSWCA 203; J.D Heydon, Cross on Evidence (LexisNexis Australia, 13th edition, 2021) at [1110] and [9040]).
In N & S (1996) FLC 92-655, commenting on M v M, Fogarty J said at page 42:
The High Court's decision must be read as taking a cautious approach to the issue, in light of the paramountcy of the welfare of the child, and the gravity of the possible effects of sexual abuse. Largely it means that if there is an ascertainable risk of harm the Court must so mould its orders as to avoid exposure of the child to that harm. It would be unthinkable to take a risk with the child's welfare or to “experiment” in such cases.
ALLEGATIONS OF RISK
The mother sought findings on the following aspects of the evidence to support the finding sought of unacceptable risk of harm:
(a)That the father had behaved in a sexually inappropriate way toward Y by:
(i)Touching her in a sexual way “down there”;
(ii)Licking her face, mouth, shoulder and neck;
(b)That the father was a risk of sexual abuse arising given the history of an allegation made in 2003 that he had molested his child Ms F from his first marriage;
(c)That the father had accessed child pornography and had been investigated for this by a joint taskforce involving authorities in the United States in 2007;
(d)That Ms F and Mr N had reported to their mother that they had seen child pornography when staying with him over the Christmas holidays in December 2006, which she reported to police in late 2007;
(e)That the father had perpetrated family violence by:
(i)Assaulting the mother in 2014;
(ii)Assaulting the mother three times in a week when she was pregnant with X; and
(iii)In past and subsequent relationships, namely against his first wife Ms M, his second wife Ms MM and his most recent partner Ms U;
(f)That the ongoing conflict between the parents presents an unacceptable risk of emotional and/or psychological harm to the children, including as a result of the psychological impact on the mother of the children spending time with the father and exposure to conflict; and
(g)That the father’s lack of insight as to his conduct and its impact on the children poses unacceptable risk of psychological and emotional harm.
The father denied each of the allegations made of unacceptable risk of harm and contended that the allegations in respect of sexual abuse against Y were concocted by the mother just days after he had contacted the mother about wanting to “take full custody” of the children so the mother could get her life together. His specific response to each allegation was:
(a)That the allegations that the father had behaved in a sexually inappropriate way toward Y by touching her in a sexual way “down there” were fabricated by the mother who had knowledge of the previous false allegations made by Ms F;
(b)That the licking did take place, but that it was a game and that he only licked Y’s cheek in the context of play and part of the bedtime routine that was innocent;
(c)He denied that he had accessed child pornography that was subject to the investigation by a joint task force involving authorities from the United States;
(d)He was unaware of any report made by his first wife that he accessed, or that his children had seen, child pornography when staying with him in 2006 and denied the same occurring;
(e)He denied specific allegations that he had perpetrated family violence by assaulting the mother in 2014, and contended the injuries she sustained were self-inflicted and otherwise denied family violence ever against the mother, or any previous partner; and
(f)He did not accept he posed a risk of psychological or emotional harm to the children or that he lacked insight.
Although there was reference to allegations being made of inappropriate touching of X, there was no evidence relied upon to support this allegation. The father denied the allegations. There is no basis to make a finding.
The father asserted that he was a victim of family violence at the hands of the mother, both physically and verbally and that she had fabricated the sexual abuse allegations against him.
The report of sexual touching made by Y
In the mother’s trial affidavit, she provides an account of the conduct that led her to make a complaint to the police as follows:
(a)On or around late 2023 Y reports that “Daddy licks my face at night and often licks me in the mouth”.
(b)On or around the next day, the mother spoke to her counsellor from LL Family Services who advised she was obliged to disclose the report to Queensland Police and the Department of Children, Youth Justice and Multicultural Affairs (“the Department”).
(c)In late 2022, Y disclosed “I don’t know how to tell someone, but daddy touches down there as well” whilst pointing to her vagina.
(d)In late 2022, Y had the following exchange with the mother’s sister Ms CC:
[Ms CC]: What happened?
[Y]: Hits me, licks me and locks me in the room.
[Ms CC]: Does he do anything else? Does he ever touch you?
[Y]: He touches me there.
[Ms CC]: Where is there?
[Y]: In there
[Ms CC]: Does it hurt you?
Y: Uh huh.
In her oral evidence, the mother said that Y had requested a day off school for a “girly day” and on that day she said “Mummy, I want to tell you something. I don’t know how to tell anyone, or tell you, but Daddy touches me down there.”
Counsel for the ICL clarified this evidence during cross examination, and the mother’s evidence was that she was certain as to the circumstances of the report and that she thought it occurred in late 2022.
The mother relied on evidence of Y’s report to Ms CC, which she stated in her affidavit occurred in late 2022.
Ms CC’s evidence in her affidavit was that in late 2022, the mother asked her to speak with Y because her housemate Ms GG had told her the day before that Y disclosed details of sexual abuse to Ms GG. She deposed that Y said her father hits her, locks her in the room, and when asked if he touched her anywhere else she pointed at her crotch. Ms CC also deposes that Y reported that it happened every night when she was going to bed and that her father did the same thing to X.
Ms CC’s evidence in cross examination was that she first heard about the allegation on the same day that the disclosure was made and that the mother told her that Ms GG reported Y’s disclosure.
Ms CC recorded that conversation between her and Y, and that recording was tendered at Exhibit 9. The mother knew her sister was recording Y.
During the recording, Ms CC can be heard asking Y “Did you tell the man last night?” Following questions from counsel for the ICL, Ms CC acknowledged that she understood Y had made a report to the police the previous evening.
The mother maintained that she first became aware about the allegations from Y herself. The mother’s version of events in terms of how she found out and who she then told and reported it to, is irreconcilable with the evidence of her sister. This causes me to have serious reservations in accepting the mother’s evidence.
The mother did not call Ms GG as a witness. There was no explanation as to why in circumstances where Ms CC was told Y had first made the complaint to Ms GG.
The mother said that the complaint was reported to police in late 2022, although Y was interviewed by the police on an earlier date in 2022 and the record of interview was tendered into evidence (Exhibit 30). Y said during the interview that “Daddy keeps me away from my mum” that “my mum protects me from my Dad” and “Dad hits my mum.” In response to multiple questions about the licking she answered “I don’t know” and when asked to show where he dad licked her she pointed to first to her cheek near her mouth and then to her cheek.
The police interview provides no evidence sufficient to make a finding as sought.
The father denied that he sexually touched Y. He relied on a video recording he made, extraordinarily at a supervised contact visit which was marked as Exhibit 6, where he questioned Y, and the following exchange occurs:
Father: Who told you to call me [Mr Hyne]?
[Y]: Mum.
Father: Who told you to tell people that I touched you?
[Y]: Um mum.
The father said that the parties enjoyed a co-operative co-parenting relationship and that he spent time with the children by agreement until he told the mother that he intended to seek that the children live with him because he formed the view the mother was not coping. It is his case, and it was accepted by the mother, that those conversations occurred in late 2022 prior to the first allegation being made by the mother.
The practice undertaken by both parents of videoing the child responding to leading questions about allegations of inappropriate touching is very concerning, and shows an incredible lack of insight in relation to the impact on the child of being subject to such questioning.
Noting the police interview and the nature and timing of the leading questions posed by the maternal aunt, the absence of any evidence from the mother’s flatmate to whom the complaint was initially reported, and the mother’s changing evidence as to the conversation that she had with Y, I am not satisfied that Y reported that she was touched “down there” as alleged, or that she was touched by the father as alleged.
The fact that both parents chose to interrogate Y and recorded such questioning, by the father directly and by the mother permitting the mother’s sister to do so, with each recording showing the questioning that was undertaken of the child shows a lack of insight on behalf of both.
The licking
The mother’s evidence was that in late 2022, Y disclosed to her that “Daddy licks my face at night and often licks me in the mouth.” The mother reported to the Court Child Expert that she had observed the father to lick both children when they were infants, and that she raised it as an issue with him and he stopped.
In the father’s trial affidavit, he expresses his denial of the allegation through his assertion that he passed a polygraph test in relation to the statement “I [Mr Hyne] have never touched or licked my daughter [Y] or my son in a sexual manner”. I put no weight on the polygraph test results. I do not accept the validity of the test and note it is not a procedure adopted by courts throughout Australia. The weight I give to it is the father’s behaviour in undertaking such a test is consistent with his repeated denials of any wrongdoing as alleged.
The father acknowledges that he did lick the children and under cross examination maintained that “[Y] is the one that 90 per cent of the time would instigate it”. He agreed that he licked the children on the cheek and that it happened once every two weeks. He contended this was playful and not sexualised or improper. He gave the same explanation to the Court Child Expert which is contained in the Family Report at [36]:
He said that he engages in a “game” with the children before bed, where [Y] initiates that first lick, and he licks her back playfully. [Mr Hyne] described the behaviour as innocent.
The father denied that he licked the children’s mouths, necks, or shoulders.
The interview with NSW police became Exhibit 30. In that interview the child says her father licked her on the mouth but pointed to her cheek.
It is not in contention that the father did lick the children on the face, and I make that finding. The father acknowledged the licking in the context of the allegations and explained it as a game. The acknowledgement was made against interest and the explanation of an innocent game in my view is inherently probable. I am not satisfied that it is evidence of a sexualised or inappropriate activity, but that it is on balance a game likely indicative of a lack of boundaries rather than being sexualised, as contended by the father.
The historical allegations relating to the father’s eldest daughter
The mother gave evidence in her trial affidavit that the father’s daughter, Ms F, made an application for an Intervention Order to protect her from the father when she turned 18 years old, on the basis that she was subjected to sexual and physical violence whilst in his care, and that she had been “chocked(sic)… whilst he was under the influence of drugs.”
In an affidavit filed on 5 November 2023, the mother gave evidence that the father’s previous wife Ms M applied for an Intervention Order with Suburb PP Magistrates Court in 2003 alleging that the father had taken drugs in the presence of his children, molested his daughter (Ms F), and that Ms F had overheard a conversation between the father and another male to “pay someone to hurt her.”
The father denied the allegation that he molested his daughter Ms F.
An interim Intervention Order was made in 2003 for the protection of Ms M, Ms F, and Mr N. When Ms F reached 18 years of age, she applied for a “lifelong” Intervention Order against the father which was made. The father consented to the order. Exhibit 20 contains the Victorian police records and includes reference to a current IVO in place until 2060. The father said he believed that Intervention Order was no longer in place, as when Ms F wanted to visit him in Queensland he advised her that she should have the Intervention Order varied and believed she had.
The mother’s contacted Ms M and Ms F to ask if they thought Y was safe with the father. This explanation is implausible, and I do not accept it. The mother knew about the allegations in respect of Ms F, from 20 years ago. Her evidence, when challenged, was that she had believed Ms F’s allegation prior to contacting Ms M and Ms F in late 2023, but that she did not have evidence of it until she spoke with them. The timing of that contact is consistent with the mother seeking particulars of the earlier allegations made for the purpose of providing evidence in these proceedings, rather than advice as to the safety of her children.
The mother sought leave to issue a subpoena to both Ms F and Ms M shortly before the hearing. At a listing on 2 November 2023, counsel for the mother informed the court that she had instructions that both were willing witnesses who were able to give evidence. This turned out to be incorrect.
Orders were made on 2 November 2023 for the subpoenas to be issued. On 3 November 2023, Ms F filed an objection to the subpoena advising that she was not willing to give evidence as it would be “retraumatising” and also that she would be on holidays during the final hearing dates. The matter was listed to deal with the objection at which time the mother withdrew each subpoena. There was no explanation why the subpoena to Ms M was withdrawn.
On the first day of trial the mother sought to rely on an affidavit sworn on 5 November 2023 and filed on 6 November 2023 giving evidence about a series of text messages between her and Ms M, and between her and Ms F sent and received throughout late 2023. The affidavit was filed after the permitted filing timetable, however, contained recent and relevant communication. The father opposed the filing of the evidence and complained that he was prejudiced as his parents could give evidence in response to the material. The affidavit was allowed into evidence and the father was granted leave to file evidence from his parents in response.
The affidavit set out text messages indicating in essence support from Ms M and Ms F to providing the mother with evidence of historical allegations of family violence and pertaining to the alleged molestation of Ms F by the father. Amongst those messages was a message from Ms F to the mother on 20 September saying:
Everything’s gone from 0 to nuclear war since 5pm yesterday. I’ve received 11 attempts at contact by [Mr Hyne], [Ms DD] and [Mr JJ] so far
…
Just received an emotional blackmailing text from [Ms DD] basically saying that if I don’t tell them right now what I’ve provided to you I’m disowned and not her family anymore.
On 25 September, Ms F sent a text to the mother saying, “On Saturday it kicked off again as I received two more horrendous emails from a new email address […]”. On 27 September, Ms M said to the mother “[Ms DD] has been threatening [Ms F] and [Mr N] that she will disown them and cut them out of the Will..” and “[Ms DD] and [Mr JJ] have been in contact with [Ms F] again, it is relentless. They have threatened to cut her out of the will if she provides any evidence. This is taking a mental toll on her and I am worried about her. It is bringing back all her old trauma and she is seeking treatment.”
Despite the particulars of the alleged conversations, and in particular the allegation of a threat to cut her out of the will if she gives any evidence, the paternal grandmother, Ms DD, did not respond in any way to the allegations despite filing an affidavit only two days later, having been granted leave to do so. The allegations were not denied. In cross examination the father agreed the decision to disown Ms F was made as his mother was upset when she found out Ms F was assisting the mother “more for the deceptiveness of it.” The Victorian police subpoena recorded complaints about four emails from the father to Ms F. The father accepted he had sent Ms F four emails and that he had only provided evidence of one of the emails. The Victorian police records which became Exhibit 22 corroborate Ms F’s reports that she received the emails asking her to retract her complaint from 22 years ago that became increasingly hostile, with the second email stating “there is no coming back from this you despicable person” and the next email which included “you have betrayed your own family..you have lost me my two children..she is livid and thinks you are week(sic) for not even calling to apologise.” The police records also record there is a “current final IVO with basic conditions in place between the pair which has an expiry date of […]2060.” This corroborates what the mother said she was told by Ms F about there being in existence an ongoing IVO.
After leave was granted, the father filed an affidavit from the paternal grandmother dated 9 November 2024. The paternal grandmother was not required for cross examination. Her evidence included that Ms F had lived overseas for six years prior to 2018 and that she had spent time with her paternal grandmother between her return and late 2023. Her evidence was that Ms F did not see her father when she visited her paternal grandmother September 2023. She said “on […] [Ms F] and [Mr N] were both [visiting] for my mother’s funeral, they saw their dad on a couple of occasions on this visit.” There is no evidence as to what year this occurred. She said in mid and late 2018 Ms F spent time with the father. There were no particulars of the time spent. Her evidence included that “In reference to him molesting his daughter [Ms F] has told me in person that it never happened.”
This matter was commenced in December 2019. It was first set down for final hearing at a mention on 10 February 2023, and had been adjourned several times. The ultimate final hearing date was allocated on 4 August 2023, some three months prior. The mother did not file affidavits from the witnesses or issue subpoena to potentially relevant witnesses well prior to the hearing. The court did not have the benefit of any direct evidence in respect of the allegations made by Ms F or Ms M.
It is difficult to place significant weight on the historical evidence and allegations in respect of Ms F for the following reasons:
(a)At the time of the report the father and Ms F’s mother were separating, and one can infer there was animosity between them;
(b)The particulars of the allegations made by Ms F, what occurred and what was allegedly reported by Ms F or her mother Ms M are not in evidence so as to make any scrutiny of the allegations, or the words used in the report made by Ms F at the time, impossible; and
(c)The paternal grandmother alleged that Ms F told her that her father had not molested her.
Importantly, none of the possible witnesses were made available for cross examination in the face of the father’s denials. While Ms F’s explanation as to wishing not to be retraumatised has some weight by way of explanation, the decision to withdraw the subpoena to Ms M is unexplained particularly given the mother’s evidence was that Ms M had said to her that she “would take the stand.”
On the evidence available, I find that allegations of sexual abuse were made by Ms F when she was eight years old in 2003 and were maintained by her in 2011. Exhibit 20 corroborates that Ms F has an IVO that remains in force until 2060. The allegations are denied by the father. The father asked Ms F to state the allegations were untrue as recently as September 2023. There was no evidence before the court of any criminal investigation occurring. I cannot make a finding on the evidence before the court, that the father had molested Ms F, had taken drugs in the presence of the children or that Ms F overheard a threat that the father would pay someone to hurt her.
The child exploitation material allegations
The mother told the expert during the family report interviews that there were two allegations of the father possessing child exploitation material. The first allegation relates to a report made by the father’s ex-wife Ms M from late 2006. The second allegation relates to a joint investigation into possession of child exploitation material in 2007.
Exhibit 24, a report from Queensland Police, records the occurrence time of the offence as late 2006 and the report date as late 2007, and states:
Their mother ……. stated that her children had gone to stay with their father (suspect) […] for four weeks over the Christmas holidays in 2006. ….. stated that upon the children’s return they had disclosed to her that they had seen child pornography on the father’s computer.
There was no explanation for why, when the children made a disclosure to their mother upon their return from visiting their father during the Christmas holidays, she did not make a report until late 2007.
When asked in cross examination by counsel for the mother whether he wanted to make any admissions in relation to this allegation, the father’s response was “I do know the story behind that, what – what [Mr N] saw and it certainly wasn’t what you’re saying it was.” There was no further explanation. The police records tendered and contained in Exhibit 24 state that interviews were conducted with the children and no disclosures were made to police. The summary of the charge is recorded as “not substantiated.”
The report made by Ms M to Queensland police occurred in late 2007. The police report at Exhibit 24 states “upon the children’s return they had disclosed to her that they had seen child pornography on the father’s computer.” The children had stayed with him for four weeks over the Christmas holidays in 2006. Ms M was not called as a witness, accordingly, the only detail of the event is what was available from the police records. The police record that the children made no disclosures when they conducted the 93A interview. There is also no evidence as to why when the children made the disclosure upon their return that no contact was made with police by their mother until late 2007 some nine months later.
The second allegation relates to a joint investigation into possession of child exploitation material in 2007 conducted by police from Australia and the United States of America. The following extract was read onto the record from Exhibit 23, being Queensland Police report dated 2008:
Between […] May 2007 and […] July 2007, the suspect paid to access three child exploitation sites over the internet using his credit card. It is believed the suspect will be in possession of the child exploitation material from these websites.
The father deposed in his trial affidavit that his solicitors were made aware by the mother’s solicitors in 2020 that he had been investigated in respect of one count of possession child exploitation material around 2007. He maintained that he had never been pursued or interviewed by any Australian law enforcement authority in relation to that issue. He said that the mother knew about this information before he did, and that the mother still allowed him to see the children. The explanation provided by the father is that he had 14 full-time staff with access to his credit card and any one of them could have used the card to access the material. He also gave evidence that in late 2007, he was arrested for dealing an illicit substance and all of his computers and technology “were forensically analysed by the cybercrimes lab in Victoria and they found no trace of any such material on anything I owned”.
This was consistent with his report to the Court Child Expert during the Family Report interviews that “[Mr Hyne] denies ever being charged for accessing child exploitation material, however, he believes if he were to travel to the United States of America he may be.”
The Operation reported that between two dates in 2007 that child exploitation material was accessed through the father’s computer by using his credit card. The timing of the report of the children being exposed to child pornography from late 2006 is prior to the allegations arising from the Operation, but Ms M’s report to the police post-dates the 2007 time of the investigation. Again, as Ms M was not called as a witness, there is no evidence as to the circumstances in which she was speaking to the police, what was allegedly said to her by the children or what other evidence there was.
There is insufficient evidence to satisfy me on the balance of probabilities that the father has accessed child exploitation material although I am satisfied that he was investigated due to an allegation that child exploitation sites had been accessed using his credit card.
The allegations of physical abuse of the mother
The mother reported to the Court Child Expert during her family report interviews that the father was physically violent to her, including during both of her pregnancies.
In his interview with the Court Child Expert, the father denied ever being physically violent to the mother with the exception of one occasion where he pushed her off him.
Exhibit 11 is a record from HH Health Service, recording the attendance of the mother to the emergency department in mid-2014. The document records: “Domestic Abuse/Battery by person @ ? home at ~ 1430. Struck to nose, neck, arms, buttocks…. From NSW visiting husband in Melbourne who permanently resides in Melbourne.” It also reads “pt has refused police involvement despite encouragement.”
This document was put to the father in cross examination and he denied that he was the person who caused these injuries to the mother. He was taken to an extract of an affidavit he swore in 2020 which read:
I accept that in 2014 an incident occurred between me and [Ms Hyne] and I injured her nose. She had been physically violent towards me one night, and then again the following night. On this second night, she threw a punch at me and I put my elbow up to defend myself and I brushed her face.
The father’s evidence was that someone else had caused the injury to the mother’s nose in the incident referred to in Exhibit 11, but that there was another incident where he was being pushed by the mother and he defended himself and “brushed” the mother’s face. The father’s ultimate position clarified in cross examination was:
All I know is the only time that she was ever injured was once when she beat me against the wall, and I put my hands out and stopped her, and she fell backwards, and when she fell on the ground, she started screaming, “Someone call the police. Someone call the police, he’s bashing me.”
I give significant weight to the HH Health Service record and do not accept the evidence of the father which is inconsistent with the notes made by the hospital at that time and is consistent with the mother’s evidence as to the violence and the injuries she says she sustained.
The mother’s allegations about the father’s violent behaviour had also been recorded by a medical professional, after separation. Exhibit 13 and Exhibit 14 were a letter from Dr KK to W School which referenced an attendance by Y due to having a sore wrist after being grabbed and put into her car seat and the accompanying surgery consultation notes made on the date of the attendance. The consultation notes of Dr KK, Exhibit 14, Dated mid-2019 recorded that the mother reported that she was worried about how the father is with the children as he can “go into a rage.”
The mother also sought to rely on the untested evidence being statements authored by the father’s previous partners, Ms MM and Ms M, as well as his daughter Ms F, which described or referenced the family violence that they each alleged they had experienced at the hands of the father. It was submitted by counsel for the mother that this evidence could be taken into consideration as to “circumstance,” although conceded that very little weight could be placed upon it. I agree that little weight can be afforded to the untested evidence.
A Queensland Police record, Exhibit 25, records that in mid-2018 the mother “denied she had been pushed or attempted to be pushed down the stairs as reported” and that she “told police tha (sic) this isn’t the first time they have argued but stated it is never violent and that they plan to separate and it is both what they want.”
The mother explained that she denied any violence to the police because she was scared of and intimidated by the father. I accept her explanation as plausible and an honest account how she felt at that time, particularly given the HH Hospital notes referred to above and my finding that the father perpetrated family violence at that time.
I find that the father did hit the mother as she contended which caused an injury to her nose and that she was the victim of family violence and was subjected to physical abuse by him. Her evidence is corroborated by the notes made by the HH Health Service emergency department and her reports after separation including to the general practitioner. There was no evidence that the father had the ability to acknowledge his past behaviours, take accountability for those behaviours or demonstrate any reflective capacity about his behaviours. Recent email communication with Ms F and his denials of past family violence in these proceedings, referred to in these reasons, are more recent examples of his inability to be accountable for his conduct.
I am satisfied on the balance of probabilities that the history of family violence alleged by the mother occurred and do not accept the denials made by the father.
The allegations of physical abuse of the father
The father’s case outline submits that “there is a risk of harm to the children in the care of the mother” and that “he has not visited family violence upon the mother or the children, but it is in fact the mother who has been violent towards the father.”
The father’s evidence was that the mother was physically violent towards him during the relationship, though he provided few particulars and did not call evidence to support his allegations. He did particularise the incident wherein he says he “brushed” the mother’s face in self-defence, as she was beating him against the wall. I have found above that the father’s evidence in relation to this incident is inconsistent with the mother’s evidence and that of independent sources including the record of her injuries and do not accept his evidence.
The father deposed that the mother “is the most violent person I have ever met” although there was no submission made that the mother posed an unacceptable risk to the children, and indeed the father sought and consented to an order for the children to live with the mother at final hearing.
I am not satisfied on the balance of probabilities that the mother physically abused the father as alleged. I note the father’s consent to the making of an order that the children live with their mother.
The father withholding the children from the mother and non-compliance with orders
The father’s evidence was on 31 August 2022 he withheld the children from the mother after receiving a telephone call from the mother where a threat was made by a male voice to kill him and the children.
The mother asserts that she was unaware the phone call was being made at the time and that it was the teenage children of her friend who had made the prank call. There was no evidence from the mother’s friend, although her evidence was that she asked him to provide an affidavit, but he did not want to get involved with the father due to his “history.”
The father maintained that this incident was preceded by the children reporting violence in the mother’s home, particularly in relation to her friend and that withholding the children from the mother was a protective measure in the best interests of the children. He maintained that this was the opinion of family, friends, and a legal representative who advised him to do so and to wait for a recovery order.
The father said that during this time the children rarely asked about the mother and rarely wanted to speak with her when she called. The mother’s evidence was that the children were to return to her care in accordance with orders on 7 September 2022, but they were not returned. It was also her evidence that she did not speak to them until 13 September 2022.
The children returned to the mother’s care on 5 October 2022 at a time when the father was attempting to enrol the children at NN School.
The Court Child Expert observed that the father had minimal insight around the impact on the children of his actions and she observed he did not seem to take into account the experience of the children. He did not accept the proposition that the children would have missed their mother whilst away from her during this time. The father showed, in his actions and then his answers to the questions about the impact on the children, a lack of insight.
Whilst the submission made on the father’s behalf, that any parent would act protectively in the face of death threats is persuasive on its face, the father’s actions during the time he had the children in his care do not support his contention. The children missed out on significant schooling and therapies, which the Court Child Expert notes would have been particularly disruptive for the children’s sense of security and is of particular concern for X given his individual needs arising from his neurodiversity. The father did not accept the impact upon the children, reporting that the time the children missed from school was not significant as “they were only in prep anyway”.
I accept the opinion of the Court Child Expert that the father’s behaviour in retaining the children and ceasing communication with the mother, ceasing therapies and non-attendance at school lacked insight as to the impact on the children at the time.
Risk of psychological harm and impact on the mother’s parenting
The decision of the Full Court in Helbig & Rowe [2016] FamCAFC 117 set out the correct approach in considering the Re Andrew (1996) FLC 92-692 (“Re Andrew”) principle, as adumbrated in A v A (1998) FLC 92-800 where the Full Court said at 84,996:
The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party's capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.
In Keane & Keane (2021) 62 Fam LR 190 (“Keane”) the Full Court confirmed at [72] that the task is:
…to analyse carefully the evidence led on behalf of the mother in relation to the impact that allowing the child supervised time with the father would have on her caregiving capacity. For present purposes however it may be accepted that there would need to be very cogent evidence that, to use the language of the Full Court in Marra & Marra, the mother's caregiving capacity would be discernibly impaired by any order that the child have time with the father (see Re Andrew, at 83,201) for such an order not to be made. Ultimately, as the Full Court has consistently observed, the lodestar is the welfare and best interests of the child, which principle now finds statutory expression in s 60CA of the Act: Re Andrew, 83,199.
The Full Court in Keane at [75] summarised that the authorities relating to the Re Andrew principle, relating to the impact of a genuinely held belief on the primary caregiver’s ability to parent has been expressed in a variety of ways including:
a. “may so impinge upon her capacity as the primary caregiver of the children” [A & A (1998) FLC 92-800];
b. “her co-parenting capacity would deteriorate and impinge the children’s best interests” [Dunst & Dunst [2016] FamCAFC 15 at 81];
c. “as her likely being unable to continue to function effectively so as to adequately care for the children” [Hollister & Gosselin [2016] FamCA 759 at 193];
d. “genuine fears of the residential parent about such a risk may so impinge upon the parent’s capacity” [Bayer & Imhoff [2010] FamCA 532 at 177];
e. “where such anxiety is likely to impact adversely on that parent’s caregiving ability…” [Russell & Russell v Close SA 45 of 1992 an unreported decision of the Full Court];
f. “have an effect on the custodial parent which will impair to a significant degree the emotional support and for that matter physical support which the custodial parent can render the child” [Grant & Grant (1994) FLC 92-506 at 81–259]
The Court Child Expert opined in her report that:
The risk family violence poses will require careful consideration when making Orders for the children, particularly in light of the possible impact to [Ms Hyne’s] mental health and parenting capacity, and what seems to be minimal insight from [Mr Hyne] regarding the impact of his behaviour on those issues. It appears [Ms Hyne] is extremely fearful of [Mr Hyne], and his alleged behaviour towards her seems to be having a very negative impact on her wellbeing. It is troubling that [Mr Hyne] seems to have no insight into the impact of his behaviour on [Ms Hyne] and the children. If [Mr Hyne] has been abusive towards [Ms Hyne], as describe (sic), it would likely have a very negative impact on her and the children in circumstances where the parents share care of the children.
The mother was asked whether she would cope if the children had “identity contact” with the father on three or four occasions a year for a few hours and she said, “No. I’m not coping.”
The mother’s sister was asked in cross examination whether the mother has had trouble coping with looking after the children. The mother’s sister did not accept the mother was not coping at the time.
There was no independent evidence as to the mother’s mental health before the Court nor any evidence as to the impact on the mother of orders for the children to spend time other than the observations of the Court Child Expert. I accept the observations of the Court Child Expert that the mother appeared to be “extremely fearful of [Mr Hyne]” and that his alleged behaviour appeared to the Court Child Expert to be “having a very negative impact on her wellbeing.” However, the mother had the opportunity but did not present any evidence of the nature and magnitude of any alleged impact on her as a caregiver. I accept the mother was the victim of family violence as she alleged, and that she is fearful of the father. There however was no cogent evidence that her caregiving capacity would be discernibly impaired by any order for time with the father, particularly if that time were supervised. Her assertion of “No. I’m not coping”, without any further evidence is not sufficient to support a finding that her parenting capacity would be discernibly impaired and there was no exploration of how supervision might alleviate her concerns.
I also note and give weight to the recommendation made by the Court Child Expert of supervised time for identity purposes as being an order she supported (provided the supervision ameliorated any risk) in circumstances where the Court Child Expert observed the father’s behaviour as having a very negative impact on the mother’s wellbeing. I infer that the recommendation for supervised identity time would not have been made if the Court Child Expert formed the view that such orders would create a discernible impairment in the mother’s parenting capacity or wellbeing.
I find that the parents have an extremely high-conflict relationship, that the mother is fearful of the father, and that his past conduct and lack of insight has contributed to her genuinely held concerns. However, I am not satisfied that the mother would be unable to function sufficiently to adequately care for the children if orders for time are made. I note she has sought support in the past and has the ongoing support from her sister, from LL Family Services, and from the parenting centre and am satisfied she will avail herself of supports in the future if needed, as she had in the past.
Father’s lack of insight
The mother relied upon documents produced by Victoria Police in relation to complaints made by his eldest daughter Ms F. The submission was that the father has perpetrated family violence through coercion, and that Ms F’s complaints and the recent emails sent to her from the father are evidence of same. I accept that submission for the reasons that follow.
The father was permitted to rely on affidavits from the paternal grandparents, however, the affidavit he ultimately relied upon from the maternal grandmother dated 8 November 2023 did not address the comment made by the father that “you have just lost your grandparents”, and to never contact the father’s family again or the alleged communication.
The Victorian Police Case Progress Narrative dated late 2023 records:
The AFM attended the [Suburb OO] Police on the […]/23 to report that she had received 3 x emails/texts from the resp that had been emotionally traumatic and coercive in nature,
The resp is allowed to contact the AFM as permitted by the final IVO however the single condition of the IVO prohibits coercive/manipulative/controlling/psychologically controlling behaviour.
The AFM received a series of 3 x communications from the resp over approx. 2 ½ years which in content will pester the AFM into making an affidavit saying the sexual assault allegation from when she was 8 is untrue and are emotionally/psychologically abusive in nature.
Exhibit 20 goes on to detail the contents of the emails and text messages the father sent to Ms F, and whilst it is not necessary to set them out in full, several examples of the text include:
(a)“Can you please finally give me an email saying that you were 8 years old angry and the allegations even though no charges were laid never happened?”
(b)“Congrats. You have just lost your grandparents and the rest of your family from my side. Never contact any my family again, you have completed fucked up this time. I never choked you ever!”
(c)“There is no coming back to your family because of this you despicable person.”
(d)“You have betrayed your own family. You have lost my family [X] and [Y] which Nan and Pop adored. You have lost me my two children that I couldn’t have been a better father to.”
The father was asked in cross examination whether he would agree that he was engaging in emotional blackmail through these messages. His response was “If that’s how you want to see it, but I don’t see it like that.” His evidence was that “She has already done the damage by then.” These answers are striking in how little insight the father appears to have of the impact of his communication and how coercive these messages are. While they are not sent to the subject children, they were sent to his adult daughter, they are abusive and lay the blame on her for the loss of the children and the impact on their Nan and Pop.
Another example of the father’s lack of insight is contained within Exhibit 17, being a letter sent to his children, which was annexed to the affidavit of his previous wife Ms MM in previous parenting proceedings. The letter reads:
Hi [Ms Z] Hi [AA], I love you both so much.
Daddy xx
Tell your mum thanks for being such an unfaithful person only 7 mths and already out with other guys. Well what should anyone expect from a person that works in [an entertainment venue] well done!
When cross-examined about writing this letter, addressed to his two young children at the time, the father’s response was to the effect that the children were never going to read the letter, as they were too young to read, and that he knew their mother would not have read it to them. When pressed about why he did not just write to the mother, instead of using the pretext of writing to the children to communicate with the mother, the father said “I don’t know. It’s-it’s semantics again. I’m really sorry. Apologies. It was a mistake. That was a mistake. The kids were never going to read that. They weren’t old enough to read.” The father was unable to acknowledge the overwhelming lack of insight and potential damage of such communication.
The father used the communication with the children as a rouse to abuse and demean their mother. The father has had long standing lack of insight into his behaviours including writing emails and texts that are coercive and demeaning without regard to the impact on the recipient.
A further example is when the father recorded and questioned Y whilst exercising supervised time, but away from the supervisor. The recording became Exhibit 6. I agree that the father interviewing and videoing Y when out of earshot of the supervisor on 29 April 2023 where he said, “Who told you to call me [Mr Hyne]?” and “Who told you to say that I touched you”? is indicative of the father being unable to resist questioning, videoing, and putting pressure on the children, which speaks to his lack of insight.
In answering a question about whether he would again record Y if they same situation arose, even after reading the Court Child Expert’s report about how damaging the recordings could be, he was unable to say that he would not do it again. While he was conflicted and struggled with this line of questioning, his answer was striking in the lack of insight he displayed. This together with the communications to his other children referred to above, support the finding that the father has limited insight into, and little care about, the impact of his conduct on the children.
The ICL submitted that there is a risk that the father would “say things which would be, again, inappropriate and damaging to the children or perhaps the children’s relationship with their primary carer” and that the clearest evidence of that is the communications with his daughter Ms F. I accept the submission of the ICL that his lack of insight raises a concern of exposing the children to psychological harm arising from his absent insight. I accept that on the evidence the father is often unable to put his own interests ahead of his children’s interests, and therefore, that could pose a risk of psychological harm.
I agree with the submissions of the ICL and counsel for the mother, that the father’s communications with his eldest daughter as well as his previous partner is evidence of the father perpetrating family violence through coercive control in the past. I find that the father lacks insight into the damaging impact of his behaviour which poses an unacceptable risk to the children either directly through what he says to them about their parent or indirectly through the impact his words and actions have on the children’s primary carer.
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN AS A RESULT OF THE ALLEGATIONS OF INAPPROPRIATE TOUCHING THE CHILDREN?
As noted above, the test for making a finding of unacceptable risk is a predictive exercise to ascertain whether a possible risk exists, regardless of whether or not positive findings have been made in relation to specific allegations.
The risks were of “touching down there” in a sexualised way, of “licking” Y’s face, neck shoulders in a sexualised and hidden way and of doing the same thing to X.
It was also contended that the father had been accused of two incidents of being in possession of child exploitation material in late 2006, and two dates in mid-2007. There was a police investigation and the father’s home was raided. No charges followed.
The evidence of the mother, and the maternal aunt, and my findings in relation to the alleged disclosures made by Y is set out above at [44]-[60].
I have found that I cannot be satisfied on the balance of probabilities that the sexual touching or the historical molestation of Ms F, occurred. Regardless, I am to determine whether an unacceptable risk of possible future harm exists.
Absent findings of fact in relation to the father’s inappropriate touching, historical allegations in relation to Ms F, or in relation to the father’s alleged possession of child exploitation material, the Court can take these factors into consideration cumulatively to determine that the father poses an unacceptable risk of possible harm to the children.
Whilst I am not satisfied on the balance of probabilities that the incidents as alleged have occurred, I am not able to disregard them in my assessment of risk. There is, as submitted by the ICL “a range of circumstantial evidence”, which causes me concern. There is a recurring theme of risk of sexual abuse, being that the father has, on several occasions, been accused of molestation of his children, and been independently investigated for the possession of child exploitation material by police.
I have carefully considered all of the evidence in respect of the allegations of inappropriate touching of Y including factors that do not support a finding of the possibility of inappropriate touching or a risk of sexual harm occurring to the children including:
(a)As referred to at [67]-[81] above I do not place significant weight on the historical allegations of molestation made by Ms F;
(b)The failure by the mother to call any other witnesses in respect of the allegations of risk arising from historical abuse allegations;
(c)The timing of the allegations being very close to the time the father indicated an intention to commence legal proceedings and, accordingly, I must assess the complaint with caution;
(d)The lack of any probative evidence called from Ms GG who it is alleged the initial report was made to by Y;
(e)The circumstances and timing of the videoing of the child when interviewed by the aunt the day after the police interview;
(f)The observations of the father’s recent partner Ms U (although not tested); and
(g)The observations and positive comments of the FF Family Services supervisor of the visits with the children and their father.
I have also considered the evidence in respect of the allegations of inappropriate touching of Y including factors that support a finding of the possibility of inappropriate touching or a risk of sexual harm occurring to the children, including:
(a)The evidence that the father was investigated for having a sexual interest in children including the investigation and possibility of charges in the US arising from an Operation;
(b)The allegation that the children from an earlier relationship when spending time with the father in 2006 reported to their mother they were exposed to child pornography; and
(c)The fact that the adult daughter Ms F has a “lifetime” Intervention Order arising from a complaint made of molestation by the father.
There are grave consequences from the alleged risk to young children of being exposed to a risk of sexual abuse. It is necessary to assess the level of risk posed to the children on the whole of the evidence, since the strength of the evidence lies in its cumulative effect. This is a finely balanced analysis given the evidence, however balancing all of these factors enumerated above, I am not satisfied that the evidence supports a finding that there is a possibility of future sexual harm to the children. Adopting the analogy of the Full Court in Eastley, even the cumulative effect of the evidence relied upon by the mother does not combine sufficient “strands” to support a finding of a possibility of risk of future sexual harm.
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN AS A RESULT OF THE ALLEGATIONS OF FAMILY VIOLENCE?
The mother gave evidence that she was the victim of family violence, and I have so found as set out above. I have also found that the father has perpetrated coercive and controlling family violence through the evidence of his recent communications with his daughter Ms F, and prior communication via their mother with Ms Z and AA, and the recording of Y when on a supervised visit in April 2023.
The father in maintaining his denials of family violence, positively asserting that the mother’s injuries were self-inflicted, and his oral evidence where he attempts to provide justification for his communication with his daughter Ms F shows an ongoing inability for him to acknowledge any responsibility on his part for his own behaviour.
Accordingly, I find that the father poses an unacceptable risk of harm to the children of both exposure to family violence through physical violence and through coercive and controlling behaviour.
IS THERE AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN BY BEING EXPOSED TO CONFLICT BETWEEN THE PARENTS?
It was submitted by the ICL that this risk is the most pressing unacceptable risk to the children, and that the other elements of risks compound on the conflictual parental relationship. It is not in contention that both parties have withheld the children from the other at times when orders for time have been in place. Non-compliance with orders of the court is another factor which amplifies the risk of psychological harm to the children.
The Court Child Expert opined in her report that:
The conflict seems to be of a level that the co-parenting or any shared care arrangement will likely fail. It is possible that both parents lack the necessary skills to effectively problem solve, regulate their emotions, and communicate in an appropriate manner at times of high stress and frustration. Despite separating some time ago, the parents continue to have an unproductive and potentially harmful co-parenting relationship, with the potential for it to cause significant emotional distress for the children. It is extremely detrimental to the children’s physical and emotional development to be exposed to further family violence, as this can have a long term consequences in many areas of their life. Unfortunately, it seems that the children have been exposed to poor examples of how problems are dealt with or resolved in intimate relationships. [X’s] understanding of behaviour may be particularly impacted given his vulnerabilities. If the children are continually exposed to this poor co-parenting relationship, it is possible that they will find it difficult having their own positive and long-term relationships in the future.
The Court Child Expert reported that Y has an understanding of the conflict between her parents, and though it did not appear to impact her time with her father, she concluded that both children are being involved in the parental dispute and conflict. It was the Court Child Expert’s opinion that the children’s involvement in the parental dispute is likely to have an impact upon them in the future, if it has not already, and presents a risk of psychological harm.
In cross examination it was her evidence that if further litigation took place, the children would be required to be interviewed again, which could be “incredibly disruptive” to their relationship with their parents. She also referenced the emotional and psychological impact on Y that could occur as a result of her repeatedly being interviewed by strangers about her parents, referencing her police interview. The potential impact on both parents’ parenting capacities if litigation were to recommence was also broached, in that the mother’s parenting capacity would be impacted by stress, and a concern that the children’s time with their father would be impacted if the father was unable to remain child-focussed and discusses the proceedings with them.
There were several examples contained in the evidence of both parties that demonstrate their inability to communicate in a respectful or productive manner. I need not examine each, but I will reference two incidents by way of example.
Exhibit 7 is a video recording of a phone call between the father and Y. At the conclusion of the phone call the father says, “[X’s] addicted”, in reference to his use of an iPad, and the mother can be heard through the phone telling the father “you were a drug dealer for 20 years” before hanging up. This was in the hearing of the children.
The father in his affidavit makes the following references to the mother: “this allegation by the Mother in November 2022 is another example of her deceptive untruthful nature”; “The only reason I had to go back to doing supervised visitations in 2023 was because of the Mothers lies”; “The mother since the children have been back in her care has been grooming our children to say what she wants them to say and obviously brain washing them negatively in relation to myself”. He reiterated in his oral evidence that “She is a pathological liar” and that he believes the mother to be “brainwashing” the children. It was put to him as a coincidence that he has had two mothers brainwash his children, to which he responded, “Lucky me.”
The behaviour and attitudes demonstrated by each parent is combative and not child-focussed. The evidence of both parties, and the Court Child Expert, demonstrates that there is a highly conflictual relationship between these parents which poses an unacceptable risk of harm to the children.
The Court Child Expert agreed that quite apart from the question of risk of future sexual abuse, or a risk of family violence, there is a risk of emotional harm to the children by being exposed to the high level of conflict between the parents.
Additionally, the behaviour of both parents of involving Y in their dispute is concerning. Both parties made use of recordings of Y to make allegations against the other parent. The risk to the children in being involved in the parents’ dispute in this way is likely to be damaging to their future psychological functioning, if the damage has not already been done.
I accept the submission of the ICL that the evidence supports a finding, which I make, that the level of conflict between the parents presents an unacceptable risk of psychological harm to the children.
CAN THE UNACCEPTABLE RISKS IDENTIFIED BE AMELIORATED?
Accordingly, having found the father does pose an unacceptable risk to the children, I now turn to the question of amelioration of the harm.
Supervision of the children’s time with the father
The ICL asked the Court Child Expert in cross examination whether reviewing the contact reports from the supervisors would allow her to recommend unsupervised time if the court found that there was not unacceptable risk. The Court Child Expert commented that the quality of the supervision reports was low, particularly as the supervisor was not aware of the risk issues before the court, and that they did not “convince” her that unsupervised time is appropriate.
In relation to her recommendations for monthly unsupervised time, the Court Child Expert gave evidence and said that she no longer held that recommendation.
The evidence does not support a finding that unsupervised time is in the best interests of the children. The identified risks are too great. After being presented with recent and uncontroversial facts as to the father’s conduct she no longer supported any unsupervised time as being in the best interests of the children despite her identifying it as an option to consider if the father did not pose an unacceptable risk to the children. I accept the reasoning of the expert and agree with her recommendations.
Orders for no time as against orders for supervised time
By virtue of the findings made, the children each face a number of risks connected to spending time with the father. Those risks can be summarised as a risk of physical harm, a risk of psychological and emotional harm and a risk of exposure to family violence and conflict.
It was not suggested by any party or put to the Court Child Expert that the risks could be satisfactorily ameliorated in any way by any form of order other than by supervision. There was, for example, no suggestion by any party that education by the father or counselling or family therapy could ameliorate any identified risk.
There were a number of benefits to the children of supervised identity time. The Court Child Expert recommended supervised time for identity purposes if the risks can be mitigated by supervision. She said that the benefit to the children of identity time through seeing their father four times per year would be an ability to maintain some connection with the father and paternal family so avoiding the consequences of complete loss of the relationship.
The Court Child Expert gave evidence that children spending no time with a parent who they have previously spent time with could present a loss for those children. The mother was reported by the Court Child Expert as acknowledging that the children would be “heartbroken” not to spend time with the father. The expert said such a loss could be felt by an emotional response and a feeling of sadness. It was identified that the disruption in such a relationship could lead to children later seeking out and spending time with that parent on their own terms. Ultimately, she opined that the loss of spending time with a parent is a difficult thing for children to go through.
As identified by the ICL, another benefit of supervised time as opposed to no contact is it may avoid the risk of the children “romanticising an image of their father beyond what is deserved or demonising him beyond what is required.” A further benefit is of the children maintaining a connection with their paternal family. Another benefit is that if such time occurs well and without incident, it can allow an easier path to a reconnection and rebuilding of the relationship into the future once the children, in particular Y, are adult and may wish to connect with their father
There are negative aspect of supervised identity time which may support a finding that no time is in the best interests of the children. A careful analysis of the reality of indefinite supervision orders and their impact on the children is accordingly necessary.
Ongoing orders requiring supervision are often seen as undesirable. The reasons include the cost, the sustainability, the artificiality of such an arrangement, and consideration as to whether such an arrangement supports a meaningful relationship between the children and the supervised parent.
The authorities (Gorman & Huffman and Anor [2016] FamCAFC 174 and Keighly & Keighly [2023] FedCFamC1A 146) support that an order for indefinite supervision while often undesirable, may be warranted in circumstances where it would be in the child's best interests to ameliorate risk by supervision while promoting a meaningful relationship with the supervised parent.
How the children might experience that time as they get older and develop an awareness of requiring a supervisor to be present in what are unnatural circumstances is a significant consideration in respect of Y, however less so given X's ASD diagnosis. A factor indicating against indefinite supervision is that the children may become aware of the mother’s apprehension and anxiety about the time and that response potentially impacting them.
Another risk of the indefinite and limited supervised time articulated by the ICL was the risk of the mother consciously undermining the relationship by in effect “white-anting the children’s even very rare contact with the father before they get there.” This risk is likely, in my view, given the mother’s negative attitude toward the father for example her comment in the children’s presence to him being a drug dealer. It was submitted by counsel for the father that if the father does not spend any time with the children that there is a risk that they would grow up in an environment where the mother effectively poisons the children’s view of their father and they lose the benefit of the paternal role in their lives.
A further risk identified by the ICL that indicated against the proposed indefinite identity time, was the father’s track record of very low insight into the impact of his comments and behaviours on others, and his inability to put his children’s needs ahead of his own. Evidence of his conduct in this regard was found in the affidavit of the mother containing evidence of the pressure on Ms F by the father and paternal family as referred to above. The ICL contended that that the only option for ameliorating that risk is that the children spend identity time only, which is unlikely to be conducive to a beneficial, meaningful relationship.
At the conclusion of the case the father continued to seek orders that he spend unsupervised time with the children. It was submitted that the children should have some time with their father so that they know who he is and will be able to make up their own minds about him when they grow up. The fact that the father has spent unsupervised time with the children for five nights per fortnight according to 2019 consent orders, by consent for a period in mid-2022 when the mother was hospitalised, and for a period of 34 days in October 2022, were identified as supporting his orders sought in support of the conclusion that the mother did not at that time have concerns for the children. Indeed the mother agreed she had left the children at times with the father for example when she went on holiday. The mother said she allowed time to take place “against my better judgement again, against legal professional and family advice” to “give [the father] an opportunity because I didn’t want to have to live with the children not knowing their father”. I accept her evidence about these matters.
It was submitted by counsel for the mother that, should the court be minded to order the father to spend time with the children under supervision, that should take place at a supervised contact centre. This, it was submitted, is because the father has had supervised time which did not ameliorate the risk of psychological harm occurring to the children.
X is neurodiverse and has a limited relationship with his father. Y, however, does have a relationship with her father and it is acknowledged by the mother that she would be heartbroken to have no relationship with him in the future.
The recommendation of identity time of four times per year, supervised in an appropriate professional setting on an indefinite basis, provides for the established relationship to continue, will avoid the children experiencing the feelings of grief and loss in losing a parent and will provide a safe environment for the children to continue to know and develop a relationship with their paternal family.
Having a professional supervision agency means that the management of X’s neurodiversity can occur by having a professional person assist with X if necessary. As observed by the Court Child Expert the benefits of supervised time given his difficulties in transitioning between environments would be beneficial. The presence of a professional supervisor will also provide a support to the father in spending time with X that is safe and provides the father with information about strategies to support and manage X’s behaviour. This will give the mother some comfort in respect of the arrangements for X and removes the challenge identified by the Court Child Expert of the father having unsupervised time given X’s diagnosis.
I am satisfied that a professional agency supervising will ensure that the mother is not required to come into contact with the father, nor will she be required to liaise with the father directly with the risk of such communication impacting negatively on her psychological health and otherwise possibly on her future parenting capacity or exposing the children to parental conflict.
Although it is with some caution, I am satisfied that the measures of professional supervision where the supervisor is provided a copy of these reasons, will safeguard against the past conduct of the father which was so lacking in insight, such as him questioning and videoing Y. Professional supervision also mitigates against the children being exposed to the other identified risk of removing direct contact between the parents and thereby limiting the children’s exposure to parental conflict, ensuring if the father speaks inappropriately about the mother or makes denigrating comments about her it is stopped and that the children will in an environment where they are free from the risk of physical harm.
After consideration of all of the factors above and noting this is a very finely balanced matter, I am satisfied that the risks identified can be ameliorated by supervision and that such time should occur as recommended by the Court Child Expert of four times a year together with an order that the father can send gifts and cards for Christmas and each of the children’s birthdays. To a degree the artificiality of the environment will support X’s need for routine and stability. The Court Child Expert identified the indefinite supervision as a safe option to consider, and I infer she felt the children could adapt to and derive benefit from seeing their father despite its artificiality.
It is appropriate that the father meet the costs of professional supervision in the circumstances where the mother has met the lion’s share of the cost of the children without any ongoing support from the father. The mother’s evidence was that for a period of five weeks he paid $700 per week and that was all she had received. This was not contested in cross examination.
I am persuaded that the proposed time frame of spending time four times per year is appropriate. It was sought by the father as a “worst case scenario” and was the proposal of the mother if supervised time was ordered despite her application for no time. No party made submission about when the time should occur. I will order that unless otherwise agreed, the time occur on the first Saturday of each school holiday period, for a period of four hours from 10.00am until 2.00pm at a supervised contact centre. The supervision centre will be as nominated by the ICL due to the high level of conflict between the parents.
Communication with the father
The ICL sought orders that the father be permitted to send the children Christmas cards, birthday cards, and gifts but not letters. It was submitted by counsel for the father that there is an inference to be drawn that the cards and gifts would not make it to the children due to the mother’s attitude towards the father.
Having regard to the recent communication that the father has had with his eldest daughter Ms F, by way of email and text message, and to his previous partner, I accept that the father has a history of perpetrating family violence through abusive, coercive and controlling communications. As such, I agree with the position proposed by the ICL and adopted by the mother that the father be able to send birthday and Christmas cards and gifts, but not letters.
The communication will for a period, necessarily due to the ages of the children, be filtered through the mother. In my view, this is a protective factor against the risk that the father may use the limited cards which he is permitted to send inappropriately.
The father seeks an order that the children have FaceTime communication with him every Wednesday from 6.00pm to 6.30pm. As stated above at [155], Exhibit 7 is a video recording of a phone call between the father and Y, where she is exposed to the high level of parental conflict. Such an order may negatively impact the mother’s parenting capacity and further involve the children in the conflict. I do not find it is in the best interests of the children for them to communicate with their father as sought and refuse to make such an order.
The mother is to advise the father by email within 21 days of the address that the gifts and cards can be sent to and keep the father informed of any change to that address.
Travel
The mother sought an order pursuant to s 65Y of the Act for the children to be permitted to travel overseas with her.
There were no submissions made by any party in relation to this order sought.
In oral evidence the mother was asked “Do you have any intention of moving overseas with your daughter and son?”, she responded “No way, no”.
It is appropriate and in the best interests of the children that the mother be permitted to travel internationally with the children in order for them to experience the world if such an opportunity arises. An order that she hold sole parental responsibility is made by consent. The father made no submissions of any substance as to why such an order would not be in the children’s best interests.
BEST INTERESTS – ADDITIONAL CONSIDERATIONS
s 60CC(3)(a) - Any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views
I give little weight to the views of the children, particularly as X was not able to be interviewed by the Court Child Expert, and otherwise as a result of their young ages.
s 60CC(3)(b) - the nature of the relationship of the child with each of the child’s parents and other persons (e.g. grandparents)
It is not contested that the mother is the primary caregiver of the children. The Court Child Expert observed that the mother had a positive relationship with the children, and that the father did have a relationship with the children, Y in particular.
Both parties reference supports being provided by their own families, in particular some of the father’s time with the children was ordered to take place under the supervision of or at the home of his parents, the paternal grandparents who were in attendance at the final hearing.
s 60CC(3)(c) - the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
This is not a relevant consideration in these proceedings and there were no submissions made in relation to it.
s 60CC(3)(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
This is not a relevant consideration in these proceedings and there were no submissions made in relation to it.
s 60CC(3)(d) - the likely effect of any changes in the child’s circumstances
The orders proposed will be a change in circumstances for the children. The children have not spent time with the father since September 2023, however, prior to that, they were spending supervised time with the father regularly. I accept that Y seemed to enjoy spending time with her father and had a relationship with him according to the observations of the Court Child Expert. There is limited evidence available in relation to X. On balance, any negative emotional responses from the children spending time with their father in a professionally supervised setting is outweighed by the need to protect them from harm.
X has been identified as being neurodiverse and having special needs having a diagnosis of Autism Spectrum Disorder.
In the interview undertaken by the Court Child Expert, she observed that X was overwhelmed by the experience of coming into the registry and had difficulty separating from the mother, he declined to spend time with the father, absconded from the observation room when the father entered as he wished to return to the mother. The father appeared untroubled by this, but there is an absence of evidence as to the relationship between X and his father. The Court Child Expert identified that if there were further proceedings, or need for X to be assessed, or further conflict between the parents, that the emotional impact and psychological impact on X should be considered. She noted that he did not cope with the family report this time and she expressed some concerns as to the future.
The Court Child Expert suggested that supervised time could be beneficial given his difficulty in transitioning between environments, and further that supervision could assist with managing X’s behaviour.
The supervisor reports (Exhibit 28) identified that X was becoming more engaged and more communicative as the times progressed noting he was becoming more verbal and was observed to be “very chatting today with dad” on 22 July 2023. On 19 August 2023, it was noted that “[X] is starting to communicate more now.”
On balance the change to supervision as proposed is in the best interests of the children.
s 60CC(3)(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
Despite all parties being aware that supervising professionally was an order recommended by the Court Child Expert no party made submissions as to the costs of the same. On the limited evidence available as referred to above it is appropriate that the father meets the costs.
s 60CC(3)(f) - the capacity of the each of the parents and any other person to provide for the needs of the child (e.g. emotional and intellectual needs)
This is dealt with in the body of the judgment.
s 60CC(3)(g) - the maturity, sex, lifestyle and of the child and of either of the child’s parents
This is not a relevant consideration in these proceedings and there were no submissions made in relation to it.
s 60CC(3)(i) - the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This is not a relevant consideration in these proceedings and there were no submissions made in relation to it.
s 60CC(3)(j) - any family violence involving the child or a member of the child’s family
I have found that the father has perpetrated family violence against the mother as set out in these reasons above.
s 60CC(3)(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
This has been dealt with in the body of the judgment above, namely the intervention order that exists as between the father and his previous wife Ms M and his oldest daughter Ms F.
s 60CC(3)(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
In oral evidence, the Court Child Expert noted the potential impact of further litigation on the children with reference to processes such as updated family report interviews. The Court Child Expert stated that “…for some children, that can be incredibly disruptive to their – their relationships with their parents if they’re put in a position where they need to continually come back to a – to a court and engage in a process.”
The Court Child Expert further raised the stress of litigation on the parents and how that may impact the mother’s parenting capacity, and the time that the children were potentially spending with the father, how it would be impacted if he was not able to remain child focussed and spoke about the ongoing proceedings with them.
I am satisfied that the orders are those least likely to lead to the institution of further proceedings.
s 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant
There were no submissions made as to any other fact or circumstance that would be relevant in the determination of this matter.
CONCLUSION
Having consideration to all of the evidence, I conclude that the orders are in the best interests of the children.
ICL COSTS
At the conclusion of the final hearing the ICL sought an order that each party pay half of the ICL’s costs, being an amount of $9,967.84 each.
Section 117(2) of the Act states:
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Relevantly, s 117(3)-(4) states:
Costs of independent children's lawyer
(3) To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
(4) However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
On the final day of the trial, I directed the parties to each file written submissions in relation to the ICL’s costs.
On 27 June 2023, the mother was granted legal aid funding pursuant to the Cross Examination Scheme. It was submitted on behalf of the mother, with reference to s 117(4), that because she is in receipt of legal aid, a court must not make an order under s 117(2) against that party to pay for the costs of the ICL. Her evidence is also that she receives no ongoing child support.
It was submitted on behalf of the father, pursuant to s 117(4)(b), that the father is subject to financial hardship and has no significant assets. It is further submitted that the father has incurred significant expenses to date, paying for supervised visits with the children. The orders made on a final basis also provide that this supervised contact continue. It is submitted that it is not just and equitable that the father pay one half of the ICL’s costs. The father has made an application to legal aid to waive the fees of the ICL.
In the circumstances I am satisfied that both the mother and the father would suffer financial hardship if they had to bear a proportion of the costs of the ICL and I decline to make such an order.
I certify that the preceding two hundred and twenty-three (223) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 24 April 2024
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