Infeld & Oberlin & Ors
[2020] FCCA 2305
•10 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| INFELD & OBERLIN & ORS | [2020] FCCA 2305 |
| Catchwords: FAMILY LAW – Property – modest property pool comprised largely of the husband’s superannuation – consideration of wife’s contributions as homemaker and parent – where husband alleges no adjustment should be made – treatment of superannuation – section 75(2) factors. FAMILY LAW – Costs – where mother and the maternal grandparents seek costs certificates for a lost half day of hearing – whether the Court has jurisdiction to grant costs certificates to the parties in the circumstances of this matter – costs certificates refused. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 68B, 72(1), 75(2), 79(2), 79(4) |
| Cases cited: Harrell & Hancock-Harrell [2016] FamCA 831 In the Marriage of Hickey [2003] FamCA 395 Lankester & Cribb [2018] Fam CAFC 60 Moose & Moose [2008] FamCAFC 108 Malave & Ratcliffe (2015) FCCA 201 Ralton & Ralton [2017] FamCAFC 182 Rayner & Carlton [2016] FCCA 2212 Re David (1997) 22 FLR 489 Slater & Light [2013] FamCAFC 4 Stanford v Stanford (2012) 247 CLR 108 |
| Applicant: | MR INFELD |
| First Respondent: | MS OBERLIN |
| Second Respondent: | MS B OBERLIN |
| Third Respondent: | MR OBERLIN |
| File Number: | DGC 1833 of 2018 |
| Judgment of: | Judge Mercuri |
| Hearing dates: | 22, 23, 24 July 2019, 18, 19, 20, 21 November 2019, 12 and 13 February 2020. |
| Date of Last Submission: | 13 February 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 10 September 2020 |
REPRESENTATION
| Counsel for the applicant: | Mr Testart |
| Solicitors for the applicant: | Scammell Black Mileo |
| Counsel for the first respondent: | Ms Wilkening-Le Brun |
| Solicitors for the first respondent: | Peninsula Community Legal Centre |
| Counsel for the second and third respondents: | Ms Bolton |
| Solicitors for the second and third respondents: | Bentleigh Family Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Glaister |
| Solicitors for the Independent Children's Lawyer: | McCormack & Co |
ORDERS
Parenting
All previous parenting orders be discharged.
The children X born in 2005 (“X”), Y born in 2007 (“Y”) and Z born in 2010 (“Z”) (collectively, “the children”) live with the father.
The father have sole parental responsibility for the children, save that in relation to any proposed decision affecting the long term welfare of the children or any of them, the father shall:
(a)advise the mother by email of any proposed decision;
(b)seek the mother’s opinion;
(c)take the mother’s opinion into account in making the decision; and
(d)advise the mother of his decision by email, as soon as practicable.
The father shall also advise the mother of:
(a)any medical practitioners or allied health professionals attended by the children;
(b)the details of any school attended by the children and how they are progressing at school; and
(c)the details of any extra-curricular activities the children are participating in.
The mother spend time and communicate with the children as follows:
(a)in relation to the child X, in accordance with his wishes;
(b)in relation to Y and Z:
(i)each Sunday from 10:30am until 6:00pm;
(ii)each Thursday from the conclusion of school (or 10:00am if not a school day) until 7:00pm, save that the child Y shall attend such time at his election and shall advise the mother by text message if he is not attending by the Wednesday afternoon preceding the visit;
(iii)from 10:00am until 6:00pm on Mother’s Day;
(iv)for 7 hours at times to be agreed on Christmas Day and in default of agreement, from 10:00am until 5:00pm in odd numbered years and from 2:00pm until 9:00pm in even numbered years;
(v)on each of Y and Z’s birthdays:
(A)if a school day, for three hours at times to be agreed and in default of agreement, from after school until 6:30pm; or
(B)if a non-school day, for six hours at times to be agreed and in default of agreement, from 10:00am until 4:00pm;
(vi)on the mother’s birthday:
(A)if a school day, for three hours at times to be agreed and in default of agreement, from after school until 6:30pm; or
(B)if a non-school day, for six hours at times to be agreed and in default of agreement, from 10:00am until 4:00pm;
(vii)by telephone or Skype with the children being permitted to telephone or Skype the mother at all reasonable times, and the mother being permitted to telephone or Skype the children at 6:00pm each Tuesday; and
(c)at such other times as may be agreed between the parties in writing.
The mother’s time with the children pursuant to order 5 herein be subject to the following conditions:
(a)the maternal grandparents or either of them or such other person agreed in writing with the father, are in substantial attendance; and
(b)the maternal grandparents (or such other person as agreed) ensure that:
(i)the children are not video recorded during time with the mother or maternal grandparents;
(ii)changeovers are not video recorded;
(iii)they promptly advise the father of any hospitalisation of which they are aware, of the mother for mental treatment; and
(iv)they promptly advise the father of any police charges or of any time the mother spends in police detention, of which they are aware.
The father shall encourage the child X to attend when his siblings spend time with the mother pursuant to these orders.
The father shall be at liberty to provide a copy of the final orders and reasons for judgment to any counsellor, psychologist or mental health professional (“treating professional”), who is providing treatment to X.
At the discretion of the treating professional, the mother be permitted to attend sessions with X in the event the treating professional forms the view that such attendance would be beneficial to facilitate a reunification between X and the mother.
The mother be permitted to send cards, letters or gifts to the child X on up to four occasions per year.
The maternal grandparents spend time and communicate with the children as follows:
(a)in relation to the child X, in accordance with his wishes; and
(b)in relation to Y and Z:
(i)during times when they are spending time with the mother; or
(ii)at such other times as may be agreed in writing with the father (“additional time”), provided that the maternal grandparents ensure that the mother does not attend any additional time without the father’s prior agreement in writing.
The maternal grandparents be at liberty to invite the child X to spend time with them by sending him an invitation by telephone or text message, such invitations not to exceed five per year.
For the purposes of orders 11(a) and 12 herein, the maternal grandparents will ensure that the mother does not attend any time with X without the father’s prior written agreement.
The mother and the maternal grandparents’ time with the children be suspended for four hours on the father’s birthday at times to be agreed and in default of agreement, from 10:00am until 2:00pm.
The mother, the father and the maternal grandparents, their servants and/or agents be and are hereby restrained from:
(a)denigrating each other within the hearing and/or presence of the children or any of them; or
(b)discussing these proceedings with or within the hearing of the children or any of them.
Unless the children’s school policy otherwise directs, the mother be permitted to:
(a)receive information from the school usually forwarded to parents in relation to the children including registering on the school website, if any; and
(b)attend parent teacher interviews and other school events which parents are normally invited to attend in relation to Y and Z, on the following conditions:
(i)the parents shall not approach each other in the event they are both present at the same school event; and
(ii)the mother shall not attend the children’s school for any other reason.
The mother be permitted to consult with any medical practitioner providing treatment to the children about the children’s treatment, at her expense if any, but she shall not attend any medical appointments with the children, unless agreed in writing by the father.
For the purpose of changeovers:
(a)changeover occur at the children’s school with the maternal grandparents or another agreed person effecting changeover, where practicable;
(b)otherwise, the father shall drop the children at the maternal grandparents’ residence at the commencement of time and the maternal grandparents shall return the children to the father’s residence at the conclusion of time; and
(c)the mother be restrained by injunction from attending any changeovers.
The mother undertake counselling and treatment from a suitably qualified professional as recommended by Dr C, and is at liberty to provide a copy of the following documents to such qualified professional:
(a)the family report prepared by Dr C on 4 October 2018 (“Dr C’s family report”);
(b)Dr D’s report dated 30 January 2019 (“Dr D’s report”); and
(c)the final orders and reasons for judgment.
Not before 1 September 2022, the mother be permitted to file an application seeking to extend her time with the children or to discharge the requirement of order 6 above, upon the filing of an affidavit in support by a psychiatrist addressing the mother’s mental health, treatment she has received and the risk issues referred to in:
(a)Dr D’s report;
(b)Dr C’s family report; and
(c)these reasons for judgment.
For the purposes of order 20 herein, the mother is at liberty to provide a copy of the following documents to the said psychiatrist:
(a)Dr D’s report;
(b)Dr C’s family report; and
(c)the final orders and reasons for judgment.
The Independent Children’s Lawyer be discharged, subject to any appeals.
All extant applications otherwise be dismissed.
Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
(A)Pursuant to section 62B of the Family Law Act 1975 (Cth), information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)The mother, father and maternal grandparents shall not raise a Rice & Asplund argument in relation to any proceedings initiated by the mother pursuant to order 20 herein.
(C)Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
Property
Within 28 days, the parties file a minute which gives effect to these reasons for judgment in respect of property matters.
Within 28 days, the parties provide evidence of procedural fairness being afforded to the husband’s superannuation fund in respect of any superannuation splitting orders proposed in these reasons for judgment.
Costs Certificate
The first respondent’s application for a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
The second and third respondents’ application for a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Infeld & Oberlin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 1833 of 2018
| MR INFELD |
Applicant
and
| MS OBERLIN |
First Respondent
and
| MS B OBERLIN |
Second Respondent
and
| MR OBERLIN |
Third Respondent
REASONS FOR JUDGMENT
Introduction and summary
This is an application for parenting and property orders. I will deal first with the parenting issues and then the property issues.
The father’s application for parenting orders is made in respect of the three children of the relationship:
a)X born in 2005 (“X”);
b)Y born in 2007 (“Y”); and
c)Z born in 2010 (“Z”) (collectively, “the children”).
This case initially was listed for three days. Ultimately, the hearing extended over a period of nine days, concluding on 13 February 2020.
In considering this matter, not only did I hear and consider all of the evidence given over the course of a lengthy hearing, but I also read and gave consideration to each of the affidavits relied upon by the parties, together with the numerous additional documents tendered in evidence. I also reviewed the transcript for the purpose of preparing this judgment which ran to approximately 1000 pages.
Given the amount of evidence traversed in this proceeding, it is not possible in these reasons to refer to every piece of evidence. A failure to refer to a particular piece of evidence should not be taken that it has not been given due consideration.
On the seventh day of hearing, due to a personal emergency I was unable to continue sitting after a brief adjournment just before midday. This resulted in the proceedings being further adjourned on that day. I again apologise for the added inconvenience caused by my inability to continue hearing this matter on 21 November 2019.
The parties made an application for a costs certificate arising from the early adjournment of the proceedings on that occasion. I expressed some concern about whether I had the power to grant the costs certificate and granted the parties’ leave to file written submissions in support of that application. The mother and the maternal grandparents filed written submissions pursuant to this leave and I deal with that application further below.
This matter, like many which come before this Court, is a very sad case in which two parents who very much love their children and, I believe, want to do what is best for them have, unfortunately, been unable to agree on how their children’s best interests are to be met following the breakdown of their relationship.
This case involves allegations of family violence, issues of the mother’s ill mental health and the impact of this, if any, on her capacity to safely care for the children. The mother alleges that in addition to family violence during the relationship, since separation, the father has:
a)effectively obtained a family violence intervention order against her as a means of preventing her from spending time with the children;
b)alienated her eldest son from her; and
c)engaged in conduct aimed at alienating the younger two children from her as well.
These are all serious allegations, and allegations which the father denies.
For her part, the mother concedes that she has suffered ill mental health, arising specifically from the abuse that she alleges to have suffered at the hands of the father and more particularly, following the separation and the husband’s limitations on her time with the children. However, she says that her mental health has not, and does not, pose a risk for the children in her care.
The children also have the benefit of extended family on both the maternal and paternal side who are involved in their lives. The evidence clearly shows that the maternal grandparents, who have been involved in these proceedings, initially as supervisors of the mother’s time with the two younger boys and then more recently, as parties themselves, have a long standing and loving relationship with their grandchildren.
Unfortunately, the dispute between the parents and the mother’s deteriorating mental health, particularly in late 2017, throughout 2018 and, on the father’s case into early 2019, has placed them in the middle of the parental conflict. Notwithstanding that, the maternal grandparents have done what they can in difficult circumstances to try and walk a fine line between advocating for their daughter on the one hand, and remaining impartial to ensure the safety of these children, on the other.
Much evidence has been led in this case about the mother’s mental health and the appropriate diagnosis of her condition. More will be said about that in due course. However, I wish to make it clear that a particular diagnosis does not, of itself, answer the question about a parent’s parenting capacity. Many parents face their own personal challenges in life, including difficulties arising from ill mental health.
The mere fact that a parent suffers from ill mental health or has been diagnosed with a particular mental health condition is not determinative of their parenting capacity.[1] Rather, the issue before this Court is what, if any, risk is posed to the children and importantly, what can be done to mitigate against that risk to support and facilitate the parent having and maintaining a meaningful relationship with their child/ren.
[1] Harrell & Hancock-Harrell [2016] FamCA 831 at [182].
So much is evident from the express terms of sections 60CC(2) and 60(2A) of the Family Law Act 1975 (Cth) (“the Act”), which state that in considering what is in the child’s best interests, the Court must weigh up the need to facilitate and encourage a meaningful relationship for a child with both parents against the risks of physical, emotional or psychological harm to the child. In addition, section 60CC(3)(f) of the Act focuses on parental capacity to provide for the children’s needs.
For the reasons which follow, I find that the orders proposed by the Independent Children’s Lawyer (“ICL”), subject to some minor variations which are discussed further below, are in these children’s best interests. This is not what either party sought at trial. It is not as much as the mother would like, and it is more than the father believes is appropriate. However, for the reasons which follow, I have formed the view that these orders provide the best opportunity for these children to have and maintain a meaningful relationship with both their parents, while putting in place appropriate protective measures until such time as the mother can produce evidence that her mental health has improved.
Factual background
It is common ground that the mother experienced ill mental health prior to her relationship with the father in 1998, although she maintained this was not relevant in these proceedings.
The parties commenced cohabitation in 2002. There was a brief period of separation in about 2003/2004 with the parties resuming cohabitation in 2005. The mother had another mental health admission in 2003. The parties married in 2011 and finally separated in late 2017.
As stated, there are three children of the relationship.
Each child has their own developmental and health issues. X and Z have each been diagnosed with Autism Spectrum Disorder (“ASD”) and Y has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”). Each child has been accessing medical and psychological assistance both prior to and following separation.
During the relationship, the mother was the primary carer of the children, while the father primarily worked outside the home.
The mother conceded that she struggled with X’s ‘meltdowns’, which included aggressive behaviour towards his brothers, and said that at times, she was required to physically intervene to ensure everyone’s safety. This intervention sometimes including physically manoeuvring X to his room. She also admitted grabbing X’s hair in this context as she tried to move him into his room. The mother added that when X was angry, he would physically attack her, including coming at her with a knife, screwdriver and an axe.
The children have lived with the father post-separation and have spent some time with the mother, largely supervised by the maternal grandparents or other members of the maternal family. X has not spent any time with the mother since January 2018.
Over the period from August 2017 until separation in November 2017, the mother experienced a number of episodes which led her to engage with mental health providers. These are discussed in more detail below.
Whilst the circumstances in which these episodes occurred is the subject of some dispute, it is also common ground that the Department of Health and Human Services (“DHHS”) became involved with the family in October 2017. At that stage, DHHS was concerned about the safety of the children based on reports of their aggressive behaviour as well as the mother’s mental health and its impact on the children.
In early November 2017, following another incident which is discussed further below, the mother was again hospitalised after a further overdose.
The mother says that whilst in hospital, she was informed by DHHS that she could not be left unsupervised with the children until a decision was made at a ‘family led decision making’ meeting organised by DHHS on 11 December 2017. She also says that it was at this time that the father told her that he wanted to separate and that he did not want her to return to the family home. When the mother was discharged from the hospital at the end of November 2017, she says that she moved in to her parents’ home. She stated that she did not find out that the father had terminated the lease on the former family home until December 2017.
Whilst there is some dispute about exactly what occurred, it is common ground that the mother:
a)attended the family home on 12 December 2017 when she was not supposed to be there;
b)had some interactions with the children and the father;
c)then left the family home with some of the children’s medication and consumed some of this medication at her parents’ home (“12 December 2017 incident”).
The father called the police who took the mother to the hospital for a mental health assessment.
Following the 12 December 2017 incident, the father sought and obtained a full exclusion Intervention Order (“IVO”) against the mother, naming himself and the children as affected family members. As a consequence, the mother was not permitted to attend the family home.
The mother continues to maintain that there was no proper basis for the Magistrate to have granted the IVO against her.[2]
[2] Transcript (19 November 2019), page 446.
Notwithstanding the IVO and DHHS’ ongoing involvement with the family, the mother was able to spend some time with the children, although not as often as she wanted.
It is also common ground that the father relocated away from the family home in which the parties had lived together prior to separation to the Suburb E area, enrolling the children in local schools. The mother was not involved in either of these decisions.
By letter dated 25 January 2018, the DHHS wrote a letter supporting a variation to the father’s IVO against the mother:
from a full exclusion Intervention Order to a limited Intervention Order with conditions no family violence and (the mother) not to attend (the father’s) residence.[3]
[3] Annexure -1 at page 41 of the mother’s trial affidavit sworn and filed 8 July 2019.
DHHS went on to say:
On the 17/01/2018, Child Protection discussed their Intervention Order variation support with (the father), who advised he was accepting of the variation of the Intervention Order to a limited Intervention Order as long as the limited Intervention Order could have a condition that (the mother) could not attend his new residence nor commit family violence. Further, Child Protection interviewed the family’s oldest child X who expressed confidence and comfort in his safety that his mother does not have keys to their new house and is unable to attend the new house. It is in respect to X’s comments that Child Protection is supporting a variation of the Intervention Order to a limited Intervention Order at this time and not a withdrawal of the Intervention Order to which (the mother) has indicated she is requesting.[4]
[4] Annexure -1 at page 41 of the mother’s trial affidavit sworn and filed 8 July 2019.
It is common ground that following this letter, the mother commenced spending unsupervised time with the children by agreement with the father three times per week.
The mother then made an application for an IVO against the father on or about 29 January 2018, alleging that she had been subjected to family violence by the father throughout their relationship.
The mother has not seen X since the end of January 2018. In February 2018, Y also stopped spending time with the mother for a period of some weeks.
A dispute then arose about the children’s schooling for 2018.
On 12 February 2018, DHHS wrote a further letter in which it strongly recommended:
the family engage in mediation as part of the family law court process… Given the parents have not been able to come together, discuss and agree upon Y’s 2018 schooling, it is strongly encouraged that mediation/family law court processes occur quickly.[5]
[5] Annexure -1 at page 41 of the mother’s trial affidavit sworn and filed 8 July 2019.
DHHS further noted its support for a variation to the full exclusion IVO, allowing the mother to have contact with the children as agreed by the father. The letter went on to say:
A variation of the Intervention Order will allow for the mother to rebuild her relationship with her children by having unsupervised, consistent and regular contact with X, Y and Z.[6]
[6] Annexure -1 at page 42 of the mother’s trial affidavit sworn and filed 8 July 2019.
By letter dated 21 March 2018, DHHS wrote to the mother and advised that it would not continue its involvement with the family. In that letter, DHHS also noted:
…they have no significant or immediate concerns for the children’s safety in either the mother… or father’s… care. Child Protection also recommends:
- That the Full Exclusion Intervention Order be varied to a Limited Intervention Order, which will allow the mother to have contact with the children which is not at the discretions (sic) of the father. The mother has raised concerns that he father is withholding the children from having meaningful contact with her;
- That the children are not exposed to any further incident of verbal family violence or parental conflict. It has been reported that during handovers the mother is intimidated and concerned regarding the father’s communication…
…[7]
[7] Annexure -1 at page 43 of the mother’s trial affidavit sworn and filed 8 July 2019.
It is common ground that the father allowed Y and Z to spend overnight time with the mother on 5 March 2018. Although the mother hoped that this would be the beginning of regular overnight time, the father subsequently refused to allow further overnight time with the mother until he was provided with answers to various questions from her treating psychiatrist.
The mother spent time with Y on 25 April 2018 by agreement with the father and supervised by the maternal grandfather. Whilst there is a dispute about exactly what happened on that occasion, which is discussed further below, it is common ground that:
a)time was spent at a café;
b)an issue arose between Y and the mother;
c)the mother left; and
d)Y remained in the care of the maternal grandfather until he was returned to his father.
On 27 April 2018 at about 1:30pm, the mother attended the children’s school, removed Y and Z from school early and took them to a movie, without the father’s knowledge or consent. The father reported this incident as a breach of the IVO.
On 29 April 2018, the mother was found at the Suburb F police station lying on the ground with cuts to her forearm and blood on the floor. She had written on the window of the police station, ‘give me my children’ in her own blood.[8] The mother also wrote similar messages in chalk on the pavement outside the front of the Suburb F police station and the Magistrates’ Court.
[8] Exhibit T.
It is common ground that the father sent the mother an email on 3 May 2018 in which he outlined a number of concerns he had arising from the mother’s behaviour at the preceding visits with the boys and the mother’s behaviour generally.[9] Consequently, the father revoked his previous agreement for the mother to spend time with the children.
[9] Annexure -2 of the father’s affidavit sworn and filed 17 September 2018, also Annexure -11 of the mother’s trial affidavit sworn and filed 8 July 2019.
The mother states that between April 2018 and the making of orders in this Court on 20 August 2018, she did not see X or Y at all and only saw Z on four occasions.
The mother attended Z’s school on more than one occasion in May 2018 in breach of the IVO. As a result, the school called the police who removed her. On more than one occasion, this resulted in the school implementing its lockdown policy.
The father then initiated these proceedings on 1 June 2018.
In early June 2018, the parties reached an agreement for the children to spend time with the mother twice a week after school subject to her being supervised during such time. The mother agreed to supervision although she did not concede that it was necessary.
The father took issue with the suitability of the maternal grandparents as supervisors from on or about 8 June 2018, although they continued to supervise the mother’s time with the children.
The mother continued to seek additional time with the children, which was not agreed to by the father. The mother attended the father’s home on or about 16 June 2018 and the father called the police in response.
On 26 June 2018, the mother, through her solicitor, sought the father’s agreement to attending Z and Y’s school concert. The father agreed provided that the mother ‘conducts herself appropriately at the concert.’[10]
[10] Paragraph 200 of the mother’s trial affidavit sworn and filed 8 July 2019.
At the first return of this matter on 20 August 2018, orders were made by consent which provided for:
a)the children to remain living with the father;
b)Y and Z to spend time with the mother each Sunday from 11:00am until 6:00pm and after school until 7:00pm each Thursday, such time to be supervised by the maternal grandparents or maternal aunt;
c)X to attend such time with his brothers if he wishes, and as directed by his treating psychologist;
d)the appointment of an Independent Children’s Lawyer;
e)other orders relating to changeover; and
f)X to commence or continue psychological treatment and the mother be included in X’s counselling ‘at the reasonable direction of the treating psychologist and/or counsellor’ (“the August 2018 consent orders”).
It is common ground that:
a)from about October 2018, the mother repeatedly contacted the police and DHHS about her concerns for Z being left at home alone with X while the father took Y to basketball; an issue discussed further below;
b)initially, the police conducted welfare checks on the children at the mother’s request, however ultimately indicated that they would not continue to do so; and
c)the mother was also dissatisfied with DHHS’ response to her concerns about the children in the father’s care.
The mother conceded that on a number of occasions in November 2018 and January 2019, she attended the father’s home ‘to check on the children herself’ even though she knew that this was in breach of the IVO.
The mother also concedes that in October 2018, she attended at the police station again, was intoxicated and was taken to hospital where she spent the night.
On 9 November 2018, the mother attended the police station to complain about DHHS not listening to her concerns about the children’s safety in the father’s care. The mother was taken by police to Region G Health for assessment and treatment after she apparently attempted to self-harm in the toilet at the police station by taking some tablets.
The mother further conceded that in October and November 2018, she made several attempts to contact DHHS and request welfare checks from the police by calling 000. She deposed to the following:
I considered DHHS unhelpful as they refused to see me on a number of occasions and even called police to have me removed from the premises. I kept trying to get through to them that I was concerned about Z’s safety. The Suburb E police also had been told by Mr Infeld that the welfare checks were a form of surveillance and they started to refuse to perform welfare checks and would not listen to my concerns. … This was so upset (sic) that I self-harmed in the toilets at the police station and I was then taken to Suburb E hospital.[11]
[11] Paragraph 91 of the mother’s trial affidavit sworn and filed 8 July 2019.
In December 2018, the mother keyed the words ‘perpetrator’ and ‘child abuser’ into the father’s car. This was the only car that the father had to transport the children around, and it appears that at least X saw this.
On the Australia Day weekend in 2019, the mother attended the father’s home when the police refused her requests for a ‘welfare check’ to be conducted in response to further concerns raised by the mother about Z being left home alone with X. She says that when she attended the home, she spoke to X who was in his bedroom and then left. There is a dispute about exactly what happened on this occasion, which is discussed further below. It is common ground however, that following this incident, the mother reported herself to the police to make a statement and was subsequently held in custody at the Suburb E police station pending a bail hearing (“Australia Day 2019 incident”).
The mother conceded that she breached the father’s IVO and received:
a)a 2 hour diversion in the Suburb H Magistrates’ Court for attending the father’s home on the weekend of 17 June 2018;[12] and
b)following the Australia Day 2019 incident, was charged with ‘persistent breaches of the FVIO’,[13] and spent five days in custody after the police opposed bail on the basis that she attempted to escape custody.[14]
[12] Paragraph 96 of the mother’s trial affidavit sworn and filed 8 July 2019.
[13] Paragraphs 99 and 100 of the mother’s trial affidavit sworn and filed 8 July 2019.
[14] Paragraph 99 of the mother’s trial affidavit sworn and filed 8 July 2019.
Comments about the Independent Children’s Lawyer
Before turning to the competing proposals, evidence and findings, it is important to say something about the ICL’s role and conduct in these proceedings. In closing submissions, counsel for the mother raised concerns about the ICL’s conduct in the context of her assertions about systems abuse and the legal system having failed the mother and empowered the father.
In this regard, counsel for the mother submitted that the ICL:
a)did not consider all of the subpoenaed documents;
b)did not make all necessary inquiries relating to the children’s wellbeing; and
c)treated the children ‘in the bare minimum’.[15]
[15] Transcript (13 February 2020), page 12 at line 18.
Counsel for the mother repeated an allegation that counsel for the ICL was heard inappropriately speaking about the case in the public foyer of the court precinct. This allegation was raised by counsel for the maternal grandparents on the seventh day of hearing in an oral application to recuse the ICL, which I dismissed.
Counsel for the mother also raised concerns about counsel for the ICL taking instructions from the father’s solicitor and relying on the father’s solicitor to provide her with documents.
Perhaps most seriously, counsel for the mother submitted:
The ICL in this case has not acted impartially, in my submission. He, through his counsel, has not considered the evidence in an impartial way. He was quick to make decisions. Quick to decide that he was not going to intervene or try to assist the parties for an increase of time. When I speak of the evidence, they’re affidavits of course. But there is also the DHHS material. There are 1200 pages in that subpoena room. They cannot be read within three hours, as is allowed by Victorian Legal Aid…[16]
[16] Transcript (13 February 2020), page 11 at line 44 to page 12 at line 3.
Further, counsel for the mother went on to say:
(Counsel for the ICL)… handed the incorrect version of the document from J Mental Health Service … which had been written after the father made false reports… about the mother to the service and was then corrected when they discovered that this is what had occurred. (Counsel for the ICL) cross-examined (the mother) on the first report rather than the one that was written in replacement. This document contained in the false report was tendered to the court. These documents are referred to in paragraph 65 and 66 of my client’s affidavit. It is concerning, your Honour, that your Honour could be influenced by a false report.
The misuse of this wrong document, false document, is concerning because it paints my client as being someone who has then decided to be abusive to her son. The document was corrected, as I explained, and the details of Mr K from J Mental Health Service so he could be contacted by the ICL, but we do not know if he was.[17]
[17] Transcript (13 February 2020), page 12 at line 40 to page 13 at line 8.
The allegations made by counsel for the mother, presumably on instruction, against the ICL and counsel for the ICL are very serious. Understandably, counsel for the ICL addressed them in reply.[18]
[18] Transcript (13 February 2020), pages 67 to 68.
As to the allegation that the ICL failed to discharge his obligations either directly or through his counsel, there is no evidence to support this claim. It is evident from the extent and manner of cross-examination, in addition to the volume of subpoenaed documents referenced that there was extensive preparation by the ICL in this case, irrespective of the Legal Aid fees payable for that work.
In a case such as this involving high conflict parents and children who have specific needs, and in respect of which numerous documents have been produced under subpoena from health service providers, DHHS and Victoria Police, the Court was greatly assisted by having an ICL throughout the proceedings and counsel for the ICL at trial. In this case, as many like it, the work undertaken by the ICL was crucial to ensure that the Court had before it a balanced view of the evidence.
I draw no adverse inference from the fact that during the trial, counsel for the ICL, who did not have her own instructing solicitor, was at times assisted in locating documents by the father’s solicitor. I also note that the ICL did not ultimately propose orders consistent with those sought by the father, but rather proposed orders which he considered to be in the children’s best interests. These orders, it was submitted by counsel for the ICL, were aimed at continuing to facilitate a relationship between the mother and the children and importantly, provided a pathway forward for the eldest child to re-establish a relationship with his mother. These orders proposed by the ICL have been, for the reasons set out below, substantially found by the Court to be in the children’s best interests.
Moreover, I reject the suggestion made by counsel for the mother that counsel for the ICL sought, intentionally or otherwise to mislead the Court by cross-examining the mother about Annexure -3 to her trial affidavit. The mother herself annexed the letter of referral to Region J Mental Health Service (“Region J MHS”) dated 16 January 2019 from Dr L, the children’s paediatrician.[19] The mother deposed to the following in relation to this referral:
When Dr L later made her referral to Region J MHS on 16 January 2019 in relation to X, she did not refer to any allegations that I had been abusive to my children. She did however include the allegations of family violence perpetrated by Mr Infeld toward me in her referral. Attached and marked -3 are copies of her letters dated 12 December 2017 and 16 January 2019 (emphasis in original).[20]
[19] Annexure -3 of the mother’s trial affidavit sworn and filed 8 July 2019.
[20] Paragraph 64 of the mother’s trial affidavit sworn and filed 8 July 2019.
In a letter dated 16 January 2019, Dr L wrote, among other things:
The family situation is complicated with parental separation in 2017/2018 in context of maternal mental illness, child protection involvement and allegations of domestic violence and abuse perpetrated towards X’s mother. …The mother feels disempowered and bullied and pushed out of her sons’ lives. X reports to me increased levels of anxiety after contact with his mother and has refused to see his mother (emphasis added).[21]
[21] Annexure -3 of the mother’s trial affidavit sworn and filed 8 July 2019.
The mother then stated:
65.On 3 May 2019, PCLC received a copy of a letter from Region J MHS from Mr Infeld’s solicitor. In it, mention is made of me having a mental illness and that I have been diagnosed with BPD. More concerning is that the clinicians write that X has suffered years of abuse by me. They write that X ‘feels fearful, as his mother has returned to the house against court orders, but otherwise feels safe with his father and at school.’ Attached and marked T-4 is a copy of the assessment report 18 April 2019.
66.Region J MHS have now significantly changed their report. They do not refer to any allegations of me being abusive to my children in the second report. Attached and marked -5 is a copy of the assessment report under cover of a letter dated 26 June 2019 (emphasis in original).[22]
[22] Paragraphs 65 and 66 of the mother’s trial affidavit sworn and filed 8 July 2019.
The cover letter from Region J MHS to the mother dated 26 June 2019 which is annexed to the mother’s trial affidavit stated:
Please see attached the amended letter which should replace the letter sent to X’s father. We have removed a number of parts of the original letter that were in error. The amended letter also clarifies that the contents of the letter are based on information provided by X’s father. Please be aware that letters that we routinely write are not written for the purpose matters before the court (sic), and it is not our intention that letters should not be used in any court proceedings.[23]
[23] Annexure -5 of the mother’s trial affidavit sworn and filed 8 July 2019.
In questioning the mother, the ICL put to her the comments included in Dr L’s letter of referral, namely that ‘X reports to me increased levels of anxiety after contact with his mother and has refused to see his mother’ and asked for her comment.[24] The mother responded that she conceded X suffered from anxiety but attributed that to the father’s alienation of X from her, rather than any of her conduct.
[24] Transcript (19 November 2019), page 524 at lines 13 to 32.
It was in this context that counsel for the ICL then put to the mother comments in Annexure -4 which were clearly attributed to X in that report. The mother replied:
… Excuse me. That was actually retracted. …
…
That report was made with the father in the room, and I challenged them to write down clearly who had made these allegations in their report. They rewrote the report…[25]
[25] Transcript (19 November 2019), page 524 at lines 39 to 47.
The following exchange then occurred:
ICL:This report reports these as things X has said. Okay. Not things his father has said. That X has said that. He said that:
‘He occasionally feels fearful as his mother has returned to the house against court orders, but otherwise feels safe with his father and school.’
And what I suggest to you is that you going to the house, seeing the children, breaching intervention orders, that’s only going to increase their anxiety. Do you agree with that?
Mother:I have not been going to the house, breaching intervention orders. You’re talking about last year as though this is all happening. I am doing everything I can…
ICL:…I’m talking about this year, January this year…
Mother:Yes. Because he’s being coached by his father to say all these things. …I breached orders when I was concerned… about my children’s safety.[26]
[26] Transcript (19 November 2019), page 525 at lines 3 to 21.
When counsel for the ICL’s questions are viewed in context, I am satisfied that she did not ‘put a false report’ to the mother as alleged. Counsel for the ICL referred to a statement in a document annexed by the mother in her trial affidavit which referenced a comment made by X. The sole purpose of doing so was to suggest to the mother that X had reported feeling unsafe in the mother’s presence and this might have something to do with the mother’s behaviour. In doing so, the mother was given the opportunity to comment on this and she did. I note that a similar comment was attributed to X in Dr L’s letter of referral as noted above.
There was no misuse of Annexure -4 by counsel for the ICL.
I therefore find that the ICL, and counsel for the ICL, acted appropriately in these proceedings and wholly reject the mother’s counsel’s submissions in this regard.
Competing proposals
Father’s proposal
At the conclusion of the trial, the father submitted a minute of orders proposing the following:
a)he have sole parental responsibility for the children;
b)the children live with him;
c)the children spend professionally supervised time with the mother; and
d)that the children otherwise spend time with the mother according to their wishes once they each attain the age of 13 years.
The father’s proposal also sought certain restraints on the mother’s attendance at the children’s school, extra-curricular activities, home or the father’s workplace and a restraint on the mother contacting the children’s medical providers. The father’s proposal also contained a number of consequential and operative orders.
A copy of the father’s proposal at trial is annexed to these reasons and marked ‘A’.
Mother’s proposal
The mother ultimately sought that the children live with her although at trial, she recognised that the two younger children would need to gradually transition back into her full time care and that X would need to engage in some therapeutic counselling to facilitate a reunion with her.
A copy of the mother’s proposal at trial is annexed to these reasons and marked ‘B’.
Maternal grandparents’ proposal
In addition to the parents’ respective applications, the maternal grandparents sought orders to engage in counselling with X with a view to re-establishing their relationship.
A copy of the maternal grandparents’ proposal at trial is annexed to these reasons and marked ‘C’.
Independent Children’s Lawyer’s proposal
At the conclusion of the hearing, counsel for the ICL submitted a proposal which provided for the children to live with the father and for the father to have sole parental responsibility. As to the children’s time with the mother, the ICL proposed that:
a)X spend time with the mother according to his wishes; and
b)Y and Z spend time with the mother each Sunday, Thursday and on special occasions, provided that during this time, the maternal grandparents or one of them or another person as agreed between the parties, be in substantial attendance.
The ICL also proposed that Y have the option of deciding whether to attend on Thursdays or not, provided he advise the mother of his decision the day prior.
The ICL proposed time between the maternal grandparents and the children as follows:
a)with Y and Z, during their time with the mother; and
b)with X, according to his wishes.
Under the ICL’s proposal, the following orders were sought:
a)the father to encourage X to spend time with the mother;
b)the father to provide a copy of the final orders and these reasons for judgment to X’s treating psychologist; and
c)the mother to undertake counselling from a suitably qualified professional as recommended by Dr C.
The ICL’s proposal also contained a series of machinery provisions, including permitting the mother to attend the children’s parent teacher interviews and other school events (subject to the school’s usual policies) under certain conditions.
A copy of the ICL’s proposal at trial is annexed to these reasons and marked ‘D’.
Competing case theories
The mother’s case
The mother’s narrative, as outlined in the closing submissions made on her behalf, is that this is a case of parental alienation by the father. Moreover, whilst she acknowledges that she has suffered ill mental health, she contends that this has not impaired her ability to care for the children during the relationship, nor did this present a risk to the children post-separation.
The mother’s case is also prefaced on the following:
a)the father was physically, financially and sexually abusive towards her throughout their relationship, including in the presence of the children; and
b)the father engaged in gaslighting behaviour towards her and threatened that if she ever left him, he would make sure that she did not see the children and would use her history of ill mental health against her.
The mother submitted that she spoke out against the father for the first time in November 2017, and threatened to call the police because he would not allow her to leave the home. She alleged that this event was a catalyst for the father’s report to DHHS, where he lied about her threatening to commit suicide in front of the children and was able to improperly obtain an IVO against her, effectively removing her from the family home.
According to the mother, it is in this context that the father has subsequently acted to damage her relationship with the children, to adversely influence authorities including the police, DHHS and the courts to paint a poor image of the mother and her parenting capacity. The mother pointed to the father’s failure to follow recommendations for unsupervised time with the children from March 2018 and his refusal to participate in mediation in May 2018 prior to issuing court proceedings as further evidence of his alienation of the children and of him engaging in systems abuse.
In this context and the father’s continued refusal to allow the children to spend unsupervised time with her, the mother submitted that she became understandably and increasingly desperate to see her children, which led her to engage in conduct throughout 2018 which brought her to the attention of the police and DHHS.
The mother also pointed to the father’s treatment of the maternal grandparents while they were supervising her time with the children as further evidence of alienation, both of her and the maternal family.
The mother categorically rejects any suggestion that she intended to commit suicide and in particular, denies that she threatened to commit suicide in front of the children on 12 December 2017.
The mother did however, concede that she has suffered from ill mental health. She acknowledged that she has taken overdoses at various times between mid-2017 and late 2018, but defends these episodes as a ‘coping mechanism’ that was never done in the presence of the children. She further maintained that she has never had suicidal ideations.
The mother’s position is that she is obtaining the necessary care and treatment for her mental health issues and that this does not pose a risk to the children, now or in the past.
The mother submitted that some of her behaviour is explicable by reference to the fact that she suffers from ASD. She relies upon the assessments made by Ms H and Ms J in this regard. The mother took great exception to any reference to her being diagnosed with a form of personality disorder. In fact, the mother attributed references to such a diagnosis as information incorrectly provided by the father at various stages in these proceedings.
The mother vehemently denies that there was ever a need for supervision during her time with the children or that she was and is a risk to the children, and submits that there is no need for supervision into the future.
For the reasons which follow, whilst the mother’s narrative may well reflect her genuinely held perspective since separation, I do not accept that it is a fair summary of what actually occurred. Similarly, I do not accept that any family violence to which the mother might have been subjected to during the relationship, which is detailed further below, diminishes the risk to the children arising from the mother’s own behaviour from October 2017 up to and including early 2019.
The father’s case
For his part, the father’s case is summarised as follows:
a)he denies having engaged in any family violence during the relationship, although he accepts that there were arguments between himself and the mother from time to time;
b)he denies the mother’s allegations in relation to parental alienation and submits that the children’s concerns about spending time with their mother, particularly X who has spent no time with her since January 2018, are the result of their own lived experience and concerns they genuinely hold;
c)unless the mother accepts a diagnosis of her actual medical condition, she is not likely to engage with the proper supports to improve her mental health; and
d)the children’s views need to be heard and considered from the age of 13 years, so any orders compelling them to spend time with the mother ought only apply until they are 13 years of age.
The maternal grandparents’ case
It is common ground that the maternal grandparents had, until separation, enjoyed a positive relationship with X. They assisted the parents in caring for the children, including taking X a few afternoons each week when his behaviour with Y was becoming increasingly challenging.
They have not spent significant time with X since he stopped spending time with the mother in January 2018. They seek orders which will facilitate a resumption of their relationship with X.
General observations about witnesses
Before turning to an analysis of the issues raised in this proceeding, I make the following general observations about the witnesses and the evidence they each gave in these proceedings.
The mother gave evidence and was subjected to extensive cross examination over a number of days.
I accept that in late 2017, throughout 2018 and early 2019, the mother was confronted with a range of challenging circumstances, where she often felt she had little, if any, control. I also accept that she believed that she was acting in the best interests of her children and perceived that they were at risk in the father’s care.
However, whether these beliefs arose from her ill mental health or otherwise, the mother was unable or unwilling to have regard to other available information which might reasonably have challenged her own perspective of the situation at hand. As such, she continued to behave in a manner, particularly in late 2017, throughout 2018 and into 2019, which was counterproductive to the ultimate goal she sought to achieve, namely the progression of her time with the children.
On a number of occasions throughout the hearing, the mother made a point of saying that she is very precise and wanted to ensure the accuracy of information provided by or about her. In my view, the mother’s emphasis on ‘accuracy’ in giving evidence revealed her need for her perspective to be accepted, and rendered her unable to make concessions which did not fit her narrative, when those concessions were readily available on the material before the Court.
The maternal grandparents each gave evidence. Both of them have undoubtedly found themselves embroiled in a very difficult dispute which has caused their daughter much distress and led to them having a much more limited relationship with their grandsons than they would have liked and had previously enjoyed. It became apparent during the course of their evidence that the maternal grandparents blamed the father for much of the dispute and current situation. They gave evidence that they witnessed the father being disrespectful to their daughter during the relationship and therefore believed their daughter’s claims that she was subjected to family violence during the relationship.
Notwithstanding that and the inherent difficulties experienced by the maternal grandparents in supporting their daughter through numerous hospital admissions and through various interactions with the police and DHHS, the maternal grandparents have made themselves available to support their daughter, facilitate the children’s time with their mother and maintain a link to the maternal family. In the circumstances of this case where it is common ground that the boys have had a close and loving relationship not only with the maternal grandparents, but also with the broader maternal family, this is to be commended.
The father gave evidence in a direct and frank manner. Notwithstanding extensive cross examination over two days, the father gave consistent evidence about his concerns for the children’s wellbeing, the fact that his actions were aimed at providing the children with a safe environment and assuring their safety at all times, and that he would continue to support the children’s relationship with their mother.
He made appropriate concessions and maintained that he was in favour of the children having a relationship with their mother, provided it was safe for them. To his credit, the father also indicated that he was willing to support X’s relationship with the maternal grandparents, notwithstanding the adverse views they expressed about him in the course of these proceedings.
In support of her claims that the father was abusive, the mother pointed to the father’s interactions with K School and the concerns raised by staff there. The father conceded that:
a)X had a number of issues at K School, which were raised with him; and
b)he took issue with the way the school managed some of X’s behaviours.
However, he gave evidence that these difficulties ought to be viewed in the context of K School being a very new school, and X being in the first year of intake. This meant that from his perspective, the school did not have the necessary supports that a larger and more established school would have in place.
The father also raised concerns about the manner in which the school dealt with issues which did arise, in particular that the school did not seek to discuss matters with X to obtain his side of the story before imposing disciplinary measures. The father raised this with the school. This undoubtedly led to tension between the school administration and the father. To the extent that this was submitted as evidence of the father being aggressive or inappropriately hostile, I do not accept that characterisation.
The father gave evidence, which I accept, that since moving schools, many of the difficulties that each of the boys previously experienced, particularly in the case of X, were no longer an issue.
In addition to the parties themselves, the court also had the benefit of evidence from Ms J, forensic psychiatrist and Dr C, family consultant.
Dr C was subjected to extensive cross examination, not only in relation to his report and the conclusions reached by him, but also about his experience generally and specifically in the area of family violence. Notwithstanding extensive cross examination by counsel for the mother, Dr C stood by his report and his recommendations in relation to this matter. Dr C’s evidence is discussed in further detail below.
The mother initially indicated that she intended to cross examine Dr D, psychiatrist but in the end, did not do so.
Key issues
At the heart of this case are the following issues:
a)Whether the father has engaged in family violence as alleged?
b)Whether the father can facilitate the mother having a meaningful relationship with the children?
c)Whether the mother, by reason of her ill mental health, poses a risk to the physical or psychological harm to the children? If the answer is yes:
i)What is the nature of that risk?; and
ii)What steps can be put in place to mitigate that risk and facilitate a meaningful relationship with the children?
Family violence
Family violence is defined in section 4AB of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
Section 4AB(2) goes on to relevantly provide:
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
…
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
…
(g)unreasonably denying the family member the financial autonomy that he or she would have otherwise had; or
(h)unreasonably withholding financial support needed to meeting the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
…
(3)For the purposes of this Act, a child is exposed to family
violence if the child sees or hears family violence or otherwise experiences the effects of family violence.(4)…
The mother gave evidence that the marriage was characterised by physical, sexual, emotional and financial abuse perpetrated by the father towards her.
She alleged that the father engaged in financial abuse by cancelling her credit card twice during the relationship, namely in 2013 and 2014 and denying her access to the family finances. She also states that in November 2017, the father ‘completely cut me off financially, withdrawing all the money from our joint account and cancelling my credit card.’[27]
[27] Paragraphs 18 and 19 of the mother’s trial affidavit sworn and filed 8 July 2019.
The father gave evidence that in 2013/2014, all of their credit cards were cancelled because they changed to debit cards, after accruing a credit card debt of approximately $30,000.[28] The father provides an alternative explanation for why the mother’s credit card was cancelled in November 2017.[29] I prefer the father’s evidence in this regard and do not accept that the father was financially abusive as alleged. I also note that on the mother’s own evidence, at one point in their relationship she took over the management of the couple’s finances.[30] This weighs against the suggestion that the father was financially controlling.
[28] Paragraph 11 of the father’s affidavit sworn and filed 17 September 2018.
[29] Paragraph 11 of the father’s affidavit sworn and filed 17 September 2018.
[30] Paragraph 3 of the mother’s affidavit affirmed and filed 22 January 2019.
The mother alleged that the father was physically violent to her during the relationship, sometimes in front of the children, including holding her down, choking her, pushing her up against the walls or throwing her against the walls or on the ground.[31] She said that as the relationship progressed, the violence escalated.
[31] Paragraph 20 of the mother’s trial affidavit sworn and filed 8 July 2019.
In addition, the mother alleges that the father also sexually abused her during the relationship including in early September 2017 when he aggressively assaulted her. The mother’s evidence is that she did not disclose these matters to anyone, with the exception of one occasion in 2013, where after the father allegedly assaulted her whilst she was having a shower, she took the children to her parents’ home in the middle of the night and disclosed the incident to them.[32]
[32] Paragraph 25 of the mother’s affidavit affirmed and filed 5 June 2018.
The maternal grandparents gave evidence which, in part supports the mother’s case. The maternal grandmother gave evidence that on one occasion in 2013, the mother (and the children) attended her home after an argument with the father and spent the evening there. The maternal grandmother also gave evidence that she personally heard or witnessed the father being negative towards the mother or speaking to her in a derogatory tone on numerous occasions during their relationship, shouting at the mother and ridiculing her.[33]
[33] Transcript (20 November 2019), page 563 at lines 4 to 6; see also paragraph 23 of the maternal grandmother’s affidavit affirmed 29 June and filed 2 July 2018.
The mother also alleged that the father was physically abusive towards the children when disciplining them. The father accepted that he may have put tabasco sauce on X’s tongue once or twice when he was going through a biting stage, but otherwise denied these allegations.
The mother also asserted that the father was disrespectful towards her during the relationship, easily angered and swore at her. She asserted that the emotional abuse commenced very early in the relationship and continued throughout. The mother alleges that the father called her ‘lazy’, ‘selfish’ and ‘stupid’ in front of the children and often criticised her.[34] The mother alleged that the father allowed the children to be violent towards her and would undermine her whilst she was trying to discipline them. She asserted that the father ‘has strong views about women and their role’.[35]
[34] Paragraph 33 of the mother’s trial affidavit sworn and filed 8 July 2019.
[35] Paragraph 34 of the mother’s trial affidavit sworn and filed 8 July 2019.
The mother also alleges that during the relationship, the father threatened to take the children away from her and referred to her ill mental health as the basis for doing so.
The mother’s evidence was that post-separation, the father continued to abuse her by:
a)controlling the time that she has spent with the children;
b)making false statements to the police and DHHS about her diagnosis, which influenced their assessment of her;
c)repeatedly questioning the mother’s mental health and insight into the impact of her conduct on the children; and
d)manufacturing a lie about her alleged threat to commit suicide in front of the children on 12 December 2017 as the basis of the IVO which he has used to keep her away from the children.[36]
[36] Paragraph 47 of the mother’s trial affidavit sworn and filed 8 July 2019.
The father denied each of these allegations, although he conceded that there were some verbal arguments between them during the course of their relationship.
The father’s evidence is that he was a caring and supportive husband.
The father deposed that on 11 October 2018, he was arrested and interviewed by the police in relation to the allegations of physical and sexual assault made against him by the mother. The children were at home when he was arrested.[37] He further says that he was charged on 8 December 2018 with ‘Recklessly Cause Injury – Mental Health to (the mother)’, which was subsequently struck out on 1 May 2019.[38]
[37] Paragraph 36 of the father’s trial affidavit sworn and filed 8 July 2019.
[38] Paragraph 36 of the father’s trial affidavit sworn and filed 8 July 2019.
The father also deposed that he was further charged with persistently breaching an IVO and six counts of breaching an IVO as a result of sending the mother emails.[39] All of these charges, aside from one charge of breaching the IVO were struck out at the Suburb H Magistrates’ Court on 14 February 2019.[40] The father gave evidence that he intends to defend the remaining charge, which he says relates to an email he sent to the mother about photos which had gone missing from the cloud.
[39] Paragraph 39 of the father’s trial affidavit sworn and filed 8 July 2019.
[40] Paragraph 39 of the father’s trial affidavit sworn and filed 8 July 2019.
Findings
In cases where family violence is alleged and there has not been any contemporaneous report to an external agency, it can be difficult to determine where the truth lies. This is because by its nature, family violence often occurs behind closed doors and with only the main protagonists present. Moreover, it is not uncommon for victims of family violence to feel shame about what has happened to them and therefore not report the conduct.
In this case however, the Court does have available some extrinsic evidence to assist. Firstly, I accept the maternal grandmother’s evidence that in 2013, her daughter attended the home with the children after an incident occurred between the parents. I also accept the maternal grandmother’s evidence that she had heard the father speaking to the mother in a disrespectful manner.
There is also some independent evidence before the Court, in the form of the family report, which includes comments from the children about what they observed in the family dynamics. Although the children referred to the parents arguing with each other and the mother ‘having meltdowns’, there is no reference to the type of physical abuse which the mother alleged.
Having regard to the totality of the evidence before me, I accept that from time to time during the relationship, the parties engaged in verbal arguments. I am also prepared to accept that there was an incident of family violence in 2013 which precipitated the mother leaving the family home and taking the children to her parents.
However, I also accept, having had the benefit of observing each of the parties in this matter, that they each have a different approach to parenting. In the context of dealing with three children who were facing their own challenges and difficulties, these different parenting styles would have added to the pressure on the parties’ relationship and the conflict between them. I accept that the mother may have experienced the father’s manner as undermining of her parenting.
I therefore accept that the father may have, at times, spoken to the mother in a manner which she and her parents interpreted as disrespectful and undermining during the relationship and that this falls within the definition of family violence for the purposes of the Act.
Notwithstanding this finding and without in any way seeking to minimise this conduct, I am not satisfied on the basis of the totality of the evidence that the mother has established, on the balance of probabilities, that the father engaged in physical or sexual family violence towards her or the children as alleged.
I also note that in relation to the mother’s allegations which were reported to the police, those matters were investigated, charges were laid and largely have been struck out in that jurisdiction.
Moreover, for the reasons which follow, irrespective of the father’s conduct during the relationship, I am not satisfied that his conduct post-separation could in any way be characterised as committing family violence towards the mother.
I accept that the father has at all times, indicated a preparedness and willingness to facilitate the mother’s relationship with the children, whilst acting protectively in all the circumstances.
Relevant statutory provisions and legal principles
In determining this application, I must have regard to Part VII of the Act. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
…
Parental responsibility
The father and the ICL seek that the father be granted sole parental responsibility for the children. Conversely, the mother’s proposal seeks that the parties have equal shared parental responsibility for the children.
Section 61DA(1) of the Act relevantly provides:
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) goes on to relevantly state:
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
The presumption of equal shared parental responsibility may also be rebutted where the Court is satisfied that it would not be in the children’s best interests for their parents to have equal shared parental responsibility.[41]
[41] Family Law Act 1975 (Cth), s. 61DA(4).
For the following reasons, I find that the presumption of equal shared parental responsibility has been rebutted in this case.
It is clear from the evidence, and I find that these parties are not able to communicate effectively. The mother maintains that the father not only subjected her to family violence during the relationship, but has engaged in conduct post-separation which has alienated the eldest child X from her, and has failed to facilitate the other children’s relationship with her.
The mother does not trust anything that the father says and views all of his actions and the children’s reactions, through the prism of alienation.
She says that to the extent that the children have expressed fear or discomfort in her care, or in the case of X, to the extent that he is refusing to spend time with her, this is the result of the father’s conduct.
On the issue of alienation, counsel for the mother asked Dr C whether by not following the recommendation for family therapy to facilitate a reunification of X and his mother, the father was alienating X from his mother. In response, Dr C said:
In my view, there’s justifiable alignment identified by all the children, and by X specifically… and by both parents that there’s been, at the very least… very rough handling of the child. The fact that in the evaluation itself, he refused to see the mother and did so in a fashion that… was not typical... there was no evidence that he did this in a stylised way that alienated children tend to refuse… I think that there is understandable reasons why being involved with a program for reunification would be difficult for X and… I suspect, irrespective of what recommendations I’ve said about what’s best for him, I think he would probably continue to resist, not because there’s alienation, but I suspect at a very basic level that he doesn’t trust his mother… won’t do something inappropriate. That may… not be an accurate picture… for him to view it that way but I think that’s how he sees it.[42]
[42] Transcript (12 February 2020), page 30 at lines 4 to 18.
I accept Dr C’s assessment of the situation between X and his mother. His closing comments set out above go to the heart of the issue in this case. The children have formed a view about how they feel based on their experience of the mother, particularly at a time when her ill mental health was escalating. It is not the result of any coaching or alienation by the father.
As to the father’s conduct in relation to X, Dr C was asked about the father’s ambivalence to X spending time with his mother, to which he responded:
…some parents will… present a façade which is ‘of course I want the child to go’. I think the father was saying, ‘I have mixed views about that. Is it good for him or not?’ And I think that’s a genuine question for him and possibly for everybody. I mean, I think it’s a genuine issue for the court of is… it good for X to actually see his mother? Now, we make… the assumption… because essentially you can’t resolve relationship difficulties through absence. You know, that’s what therapy tells us, that is what these family court reuniting cases tell us. But I think what the father was saying in a genuine way is, ‘I’m ambivalent about it. On the one hand, of course, I know that, you know, kids need their parents but, on the other hand, the relationship has been very problematic in the past.’ So I was somewhat comforted by that rather than the opposite… I think what he was saying was congruent.[43]
[43] Transcript (12 February 2020), page 55 at line 45 to page 56 at line 12.
On the totality of the evidence, I accept that the father is troubled by the mother’s conduct and behaviour and its impact on the children. I also accept that he does support the children having a meaningful relationship with their mother. I do not accept the mother’s submission that the father is seeking to undermine the children’s relationship with their mother.
Counsel for the mother referred the Court to a series of cases in support of her claim of parental alienation. Ultimately, many of those cases turned on their own specific facts. In light of the factual conclusions I have reached, they are of little assistance.
For example, the facts in this case are distinguishable from those in Malave & Ratcliffe (2015) FCCA 201. Consequently, the conclusions reached and orders made in that case are of limited benefit in this case.
Similarly, this is not a case which falls within the scenario contemplated by the Full Court in Re David (1997) 22 FLR 489 where the Court said:
… in high conflict situations such as this one, it is frequently the case that the child is doing no more than seeking to adopt a position that he or she things will be the one desired by the parent concerned, because of the powerful position that such a parent occupies. To permit such a situation to continue is extremely damaging to such a child and should not be countenanced.[44]
[44] Re David (1997) 22 FLR 489 at [506].
Section 75(2) factors
The following section 75(2) matters are relevant in this case:
a)Both parties are relatively young. The husband is in good health, although the wife has suffered from ill mental health.
b)Both parties are presently unemployed. The wife is in receipt of Centrelink benefits. She has not been employed since before the children were born but has tertiary qualifications. The wife has indicated that she is looking for employment and has undertaken some further study.
c)While prima facie, the husband has a higher income and earning capacity than the wife given his employment history, the parenting orders that I have made will see the children remain in the full-time care of the husband. These arrangements may affect the husband’s earning capacity in circumstances where he has sole parental responsibility.
d)Both parties have struggled to commit to full time employment due to the extensive litigation at present, both in this Court and in the state courts.
Counsel for the husband submitted that the husband cannot reasonably expect any future financial contributions from the wife.
What order is just and equitable?
It is well accepted that the exercise of the Court under section 79 is not a strict mathematical one. Rather, the considerations outlined above are simply a tool to assist the Court to come to a principled decision on what would amount to a just and equitable division of assets between the parties when weighing the various factors referred to above.
The task of determining orders which are just and equitable is made all the more difficult in the case of a modest asset pool, where the major asset is a superannuation entitlement.
Notwithstanding these difficulties and the very brief submissions made by the parties on the property aspects of this claim, having regard to all of the circumstances discussed above, I am satisfied that just and equitable orders would see an adjustment to the property interests of the parties in the proportions of 60% to the husband and 40% to the wife. This takes into account:
a)the contributions made by each of the parties to the asset pool both during the relationship and post-separation; and
b)the future needs of the parties, in particular, the husband’s superior earning capacity balanced against his greater need to provide for the children in his care.
The parties are directed to prepare a minute of orders which reflects this decision within 28 days and to provide evidence of procedural fairness being afforded to the husband’s superannuation fund to give effect to these reasons.
Costs
I now turn to consider the application for a costs certificate pursued by the mother and maternal grandparents.
On the last day of the hearing, the father’s counsel indicated he did not wish to press an application for a costs certificate[196] and filed no submissions in relation to this issue. Similarly, the ICL did not press an application on this question and did not file written submissions.
[196] Transcript (13 February 2020), page 68 at line 32.
The mother and maternal grandparents both filed submissions on 20 February 2020 referring to section 10 of the Federal Proceedings (Costs) Act 1981 (Cth), which provides as follows:
(1)This section applies to the High Court, the Federal Court, the Family Court, the Federal Circuit Court and a court of a Territory.
(2)Subject to this Act, where any proceedings in a court to which this section applies are rendered abortive by reason that the person, or a person, before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his or her office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in, the proceedings, the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
(3)Subject to this Act, where:
(a)the hearing of any proceedings in a court to which this section applies is discontinued and a new hearing is ordered; and
(b)the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings;
the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
…
It was submitted that although ‘the entirety of the proceedings was not aborted, however… the court has discretion to award a Cost Certificate in relation to the lost part of 21 November 2019 for reasons not attributable to the parties.’[197] It was further submitted that:
a)the Court has an inherent discretion to award a costs certificate to parties pursuant to section 10;[198] and
b)the court has the power to grant a costs certificate to the parties on the basis that the presiding judge became unable to continue with the proceedings on that day.[199]
[197] Paragraph 8 of the first respondent’s written submissions filed 20 February 2020; paragraph 4 of the second and third respondent’s written submissions filed 20 February 2020.
[198] Paragraph 9 of the first respondent’s written submissions filed 20 February 2020; paragraph 2 of the second and third respondent’s written submissions filed 20 February 2020.
[199] Paragraph 10 of the first respondent’s written submissions filed 20 February 2020.
Neither the mother nor the maternal grandparents pointed the Court to any authority in support of this submission.
As indicated above, I apologise to the parties for the inconvenience caused by my inability to continue with the hearing on 21 November 2019. If it were within my power, I would have no hesitation in granting the costs certificates sought. However, in the absence of being referred to any binding authority to the contrary, I am not satisfied that I have the power to do so.
Section 10(3) clearly does not apply given that a new hearing was not required. As to section 10(2), the court has a discretion, but this discretion is not at large. It only arises where certain preconditions are met, namely where proceedings are rendered abortive. Section 10(2) then sets out some of the circumstances in which the proceedings might have been rendered abortive. They include where the presiding officer ‘dies, resigns or is removed or dismissed from… office, suffers a protracted illness or otherwise become unable to continue with, or to give judgement in the proceedings… (emphasis added)’[200]
[200] Federal Proceedings (Costs) Act 1981 (Cth), s. 10(2).
In this case, the proceedings were unable to continue on 21 November 2018 but were not ‘rendered abortive’. They continued until conclusion in February 2020. In those circumstances, I am not satisfied that the Court has the power to grant a costs certificate.
For these reasons, and with regret, the respondents’ application for costs certificates are dismissed.
I certify that the preceding four hundred and seventy-eight (478) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 10 September 2020
Annexure A – Father’s proposed orders
Parenting
All previous parenting orders shall be and are hereby discharged.
The applicant father shall have sole parental responsibility for the children of the marriage, namely X born in 2005 (“X”), Y born in 2007 (“Y”) and Z born in 2010 (“Z”) (collectively, “the children”).
The children shall live with the father.
The children shall spend time and communicate with the respondent mother, subject always to her strict compliance with the provisions of these orders insofar as the same apply to her, as follows:
a)With X (and, as and from the date of each of Y and Z attaining their respective 13th birthdays), in accordance with their wishes, as expressed to the father;
b)Subject to order 4(a), with the children (and in the absence of X, with Y and Z, until either or both of them express a desire to the contrary pursuant to order 4(a) hereof), supervised by an appropriately qualified independent contact supervisor approved by the Independent Children’s Lawyer (“ICL”) or agreed by the father, on up to two occasions per week, for up to two hours on each occasion, on such dates and at such times as may be agreed between the parties, and in default of agreement, for two hours after school each Wednesday between 4:30pm and 6:30pm, and each Sunday between 10:00am and 12:00 noon;
c)In each even year, on the children’s birthdays between 4:30pm and 6:30pm if such birthdays fall on a school weekday, subject always to the supervision referred to in paragraph 4(b) hereof and the children’s wishes referred to in paragraph 4(a) hereof, and if such birthdays fall on a weekend, then on that weekend day, subject always to the supervision referred to in paragraph 4(b) hereof and the children’s wishes referred to in paragraph 4(a) hereof;
d)On Mother’s Day between 10:00am and 12:00 noon, subject always to the supervision referred to in paragraph 4(b) hereof;
e)On the mother’s birthday between 4:30pm and 6:30pm if it falls on a school weekday, subject always to the supervision referred to in paragraph 4(b) hereof and the children’s wishes referred to in paragraph 4(a) hereof, and if such birthday falls on a weekend, then on that weekend day, subject always to the supervision referred to in paragraph 4(b) hereof;
f)On Easter Sunday in each year between 12:00 noon and 2:00pm, subject always to the supervision referred to in paragraph 4(b) hereof;
g)On Christmas Day in each year between 12:00 noon and 2:00pm, subject always to the supervision referred to in paragraph 4(b) hereof;
h)The cost of such supervised time pursuant to order 4(b) herein be borne equally by the mother and the father; and
i)The cost of such supervised time pursuant to orders 4(c) to (g) herein be borne solely by the mother.
Save as provided in order 4 herein, the mother shall have no contact with any of the children, whether face-to-face or otherwise.
Save for confirming arrangements for supervised access in writing by email to the father, the mother shall be and is hereby restrained by injunction from contacting or communicating with the father in any manner, save in respect of an emergency while the children are in her care pursuant to these orders.
Pursuant to section 68B of the Family Law Act 1975 (Cth), the mother be restrained from entering or remaining or being in the vicinity of less than 100 meters of:
a)A place of education or extra-curricular activity of any of the children; and
b)A place of residence of any of the children; and
c)A place or work or residence of the father; and
it is noted that this order is an order for the personal protection of the children and the father.
The mother shall be and is hereby restrained by injunction, by herself, her servants and/or agents from communicating with any of the children’s medical or other health practitioners, any of the children’s schools or educational or extra-curricular activity providers, or the father in relation to any information in connection with the children or any of them, or in connection with the father.
The father shall, by email, no more than once every 12 weeks commencing from the date of these orders:
a)Update the mother as to the children’s progress at school and in extra-curricular activities;
b)Provide to the mother a current photo of each of the children; and
c)Provide to the mother current information about the children’s health.
The mother shall be at liberty to send cards, gifts and letters to the children or any of them, as follows:
a)Such cards, gifts and letters shall be sent to the children care of the father;
b)The father shall have the right to vet any and all such cards, gifts and/or letters, and shall have the right to refuse to pass any such onto the children, in his sole discretion; and
c)Nothing in this order shall constitute permission to the mother to communicate directly with the father or any member of his family or household.
The father shall be permitted to apply for an Australian passport for each of the children, and this order shall constitute the necessary authority for the Australian Passport Office to issue any such passport in the absence of the mother’s formal consent for the issue thereof.
For the removal of doubt, the order for the father to have sole parental responsibility referred to in order 2 hereof shall extend to enable the father to take the children interstate or overseas, subject only to him first providing written notice to the mother of his intention to do so, the destination and the offering of make-up time pursuant to any contact being exercised pursuant to order 4 hereof.
The second and third respondent maternal grandparents shall be at liberty to communicate by text with X, subject to X’s wishes, and no more than twice per week, in default of X extending such occasions in writing by text to the maternal grandparents.
In the event the children or any of them express a wish to the father to spend time with the maternal grandparents or either of them, the father shall:
a)Communicate such wish to the maternal grandparents to them; and
b)Facilitate such time as the children express such a wish to spend time with the maternal grandparents.
Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attachment and these particulars are included in these orders.
The appointment of the ICL be discharged as and from the date of these orders.
Property
Each party shall be solely entitled, to the exclusion of the other, to all property (including choses-in-action) in the possession of such party, as at the date of these orders.
Monies standing to the credit of the parties in any bank account in their sole name are to remain the property of that party.
Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other party.
All insurance policies shall become the sole property of the owner named thereon.
Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
The application(s) and response(s) of each party shall be otherwise dismissed, and this proceeding be removed from the list of cases awaiting final hearing.
AND THE COURT NOTES THAT:
(A)As far as it is practicable to do so, these orders are made having regard to the provisions of section 81 of the Family Law Act 1975 (Cth), so as to determine for all time the financial relationship between the parties and avoid further proceedings.
Annexure B – Mother’s proposed orders
Parenting
All extant orders be discharged.
The parties have equal shared parental responsibility for the children of the marriage.
The child X live with the applicant father and spend time with the first respondent mother in accordance with his wishes.
Subject to order 4(d), the children Z and Y spend time on an unsupervised basis and communicate with the mother as follows:
a)For four weeks from the date of these orders:
i)On Sundays from 10:00am until 7:00pm; and
ii)On Thursdays from the conclusion of school (and from 10:00am on a non-school day) until 7:00pm;
b)Thereafter, for four weeks:
i)On Saturdays from 10:00am until 7:00pm on Sundays; and
ii)On Thursdays from the conclusion of school (and from 10:00am on a non-school day) until 7:00pm;
c)Thereafter, for a period of four weeks:
i)On Saturdays from 10:00am to the commencement of school on Mondays; and
ii)On Thursdays from the conclusion of school (and from 10:00am on a non-school day) until 7:00pm;
d)Thereafter:
i)That the children live with the mother and spend time with the father as follows:
(1)Each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday; and
(2)In the intervening week, each alternate Wednesday from the conclusion of school on Wednesday to the commencement of school on Thursday;
(3)For one half of the Victorian school holidays and in default, the first half;
(4)On Christmas Eve from 10:00am until 5:00pm on Christmas Day in 2020 and each alternate year thereafter;
(5)On the children’s birthdays by agreement, and in default of agreement, if the birthday falls on a non-spend time day, from the conclusion of school, or from 2:00pm on a weekend day, until 7:00pm;
(6)On Mother’s Day from the conclusion of school, or if a non-school day from 10:00am until 7:00pm; and
(7)On the father’s birthday from the conclusion of school or if a non-school day from 10:00am until 7:00pm.
For the purposes of paragraph 4, changeover is to take place:
a)At the children’s school if the time commences or concludes at school, or otherwise
b)At the Woolworths carpark in Suburb EE.
The child X and the mother attend therapeutic counselling pursuant to section 13C(1)(a) of the Family Law Act 1975 (Cth), and the cost be borne equally by the parties.
The parties engage a psychologist or recognised counselling professional approved by both parties as soon as possible after the date of these orders to provide the child X with individual counselling sessions.
Upon the recommendation of the counselling professional appointed in accordance with paragraph 7 herein, the time between the child X and the mother be as per paragraph 4 herein.
The parties communicate via the MyMob app and in the event that text messages are required, all such communication by text message be limited to the implementation of the parenting orders and be child focused.
The father provide the mother with the details of the children’s treating practitioners.
Each party notify the other of any acute medical condition affecting any of the children whilst the children are in that parent’s care and provide details of any prescribed medical treatment and treating medical practitioners and hospitals and authorise any medical professional to discuss the child’s condition and/or treatment and each parent be permitted to be present on all occasions the child is receiving treatment or is hospitalised.
The parties are by themselves and their agents restrained by injunction from discussing these proceedings or any other legal proceedings and/or denigrating the other or any other extended family member of the other in the sight or hearing of the children or allowing any other person to do so.
Each parent be permitted to receive school documents including newsletters, photographs, correspondence and reports at their own expense and both be permitted to attend school events and extra-curricular activities (both at school and outside school) normally attended by parents, including parent teacher nights.
The father enrol in and complete an accredited Men’s Behavioural Change Program and provide proof of completion to the mother.
Such other orders as this Honourable Court deems fit.
Property
There be a just and equitable division of the matrimonial assets as determined by the Honourable Court.
There be a superannuation split of 60% in favour of the mother.
Such other orders as this Honourable Court deems fit.
Interim proposal
The requirement for supervision be discharged and the grandparents be in substantial attendance during the time Z and Y spend with the mother until final orders.
Annexure C – Maternal grandparents’ proposed orders
The child X born in 2008 (“X”) and the maternal grandparents engage with an independent family therapist as agreed between the parties for the purposes of re-establishing and facilitating time between X and the maternal grandparents.
The parties follow all directions and recommendations of the independent family therapist.
Annexure D – Independent Children’s Lawyer’s proposed orders
All extant parenting orders be discharged.
The children X born in 2005, Y born in 2007 and Z born in 2010 live with the father.
The father have sole parental responsibility for the children, save that he shall advise the mother of decisions he makes with respect to the long-term welfare of the children and take her views if any, into account when making decisions pertaining to the children, including keeping the mother advised of any medical practitioners attended by the children and the details of any school attended by the children.
The mother spend time and communicate with the children Y and Z as follows:
a)Each Sunday from 10:30am until 6:00pm;
b)Each Thursday from the conclusion of school (or 10:00am if not a school day) until 7:00pm, save that the child Y shall attend such time at his election and shall advise the mother by text message if he is not attending by the Wednesday afternoon preceding the visit;
c)From 10:00am until 6:00pm on Mother’s Day;
d)For 7 hours at times to be agreed on Christmas Day and in default of agreement, from 10:00am until 5:00pm in odd numbered years and from 2:00pm until 9:00pm in odd numbered years;
e)On Y and Z’s birthdays:
i)For three hours at times to be agreed and in default of agreement, from after school until 6:30pm if the birthday falls on a school day; or
ii)For six hours at times to be agreed and in default of agreement, from 10:00am until 4:00pm if the birthday falls on a non-school day;
f)On the mother’s birthday:
i)For three hours at times to be agreed and in default of agreement, from after school until 6:30pm if the birthday falls on a school day; or
ii)For six hours at times to be agreed and in default of agreement, from 10:00am until 4:00pm if the birthday falls on a non-school day;
g)By telephone with the children Y and Z being permitted to telephone or Skype the mother at all reasonable times, and the mother being permitted to telephone or Skype the children at 6:00pm each Tuesday; and
h)As further or otherwise agreed.
The mother spend time and communicate with the child X according to his wishes.
The father shall encourage the child X to attend time with the mother when his siblings attend time with the mother pursuant to these orders.
The father shall be at liberty to provide a copy of the final orders and reasons for judgment to any counsellor, psychologist or mental health professional who is providing treatment to X and, at the discretion of the professional, the mother be permitted to attend sessions with X in the event the professional thinks such attendance would be in the child’s best interest.
The mother be permitted to send cards, letters or gifts to the child X on up to four occasions per year.
During the mother’s time with the children, the maternal grandparents or either of them or another person who is agreed in writing with the father, be in substantial attendance.
The maternal grandparents spend time and communicate with the children Y and Z when they are spending time with the mother or as otherwise agreed in writing with the father and in the event that extra time occurs, the maternal grandparents will ensure that the mother does not attend such time unless that is agreed to in writing by the father.
The child X attend time with the maternal grandparents according to his wishes and the maternal grandparents be at liberty to invite X to attend time with them by sending him an invitation by telephone or text message, such messages not to exceed five per year.
The maternal grandparents and the mother shall ensure that:
a)The children are not video recorded during time with the mother or maternal grandparents;
b)Changeovers are not video recorded;
c)They advise the father of any hospitalisation of which they are aware, of the mother for mental treatment; and
d)They advise the father of any police charges or of any time the mother spends in police detention, of which they are aware.
The mother and the maternal grandparents’ time with the children be suspended for four hours on the father’s birthday at times to be agreed and in default of agreement, from 10:00am until 2:00pm.
The mother, the father and the maternal grandparents be and are hereby restrained from:
a)Denigrating the others within the hearing and/or presence of the children; or
b)Discussing these proceedings with the children.
Unless school policy otherwise directs, the mother be permitted to attend the children’s parent teacher interviews and other school events which parents are normally invited to attend, but shall not otherwise attend the children’s school and the parents shall not approach each other in the event they are both present at the same school event, and the mother shall be permitted to receive information from the school usually forwarded to parents including registering on the school website, if any.
The mother be permitted to consult with any medical practitioner providing treatment to the children, at her expense if any, but she shall not attend medical appointments with the children in attendance, unless agreed in writing by the father.
For the purpose of changeover, where practicable changeover occur at the children’s school with the maternal grandparents or other agreed person effecting changeover, and otherwise the maternal grandparents collect the children from the father’s residence at the commencement of time and the father return the children to the maternal grandparents’ residence at the conclusion of time.
The mother undertake counselling and treatment from a suitably qualified professional, as recommended by Dr C.
The order appointing the Independent Children’s Lawyer be discharged.
All extant applications be dismissed and the matter be removed from the Court’s list of pending cases.
Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
Pursuant to section 62B of the Family Law Act 1975 (Cth), information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
AND THE COURT NOTES THAT:
A.The mother, the father and the maternal grandparents shall not raise a Rice and Asplund argument in relation to future proceedings on the basis that, save for emergency situations there shall be no parenting applications for two years from the date of these orders.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Costs
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Remedies
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