Jonas & Avery
[2023] FedCFamC1F 95
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jonas & Avery [2023] FedCFamC1F 95
File number(s): BRC 1005 of 2020 Judgment of: JARRETT J Date of judgment: 24 February 2023 Catchwords: FAMILY LAW – PARENTING – Unacceptable risk case – Where there are allegations of extreme harm perpetrated by the applicant against the children – Allegations not made out on the evidence – Where it is alleged the respondent’s parental capacity will be undermined by an order for the children to spend time with the applicant – Respondent’s beliefs not found to be genuine – Where the children have severe disabilities – Interim orders Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB(2), 60CC, 61DA
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Division: Division 1 First Instance Number of paragraphs: 96 Date of last submission/s: 22 February 2023 Date of hearing: 20, 21 and 22 February 2023 Place: Brisbane Counsel for the Applicant: Ms Black Solicitors for the Applicant: Gary Rolfe Solicitors Counsel for the Respondent: Mr O’Meara Solicitors for the Respondent: Wallace Perkins Family Law Counsel for the Independent Children’s Lawyer: Mr Sayers Solicitors for the Independent Children’s lawyer: Legal Aid Queensland ORDERS
BRC 1005 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JONAS
Applicant
AND: MS AVERY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JARRETT J
DATE OF ORDER:
24 February 2023
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.The respondent shall have sole parental responsibility for all major long term decisions concerning the care, welfare and development of the children X born 2015, Y born 2016 and Z born 2017.
2.The respondent shall inform the applicant about any major long term decisions concerning the care, welfare and development of the children after she has made such decisions.
3.Within forty-eight (48) hours after the date of these orders, the applicant and the respondent shall register with Our Children Australia ( to create an account for use by them to communicate in writing any information regarding the children that is not otherwise provided for herein. Each party shall be responsible for their own ongoing account fee.
4.The applicant and respondent are to communicate about the children via the parenting app Our Children Australia unless otherwise provided for herein.
5.These orders shall be sufficient authority for child/ren’s school to provide to each party, at their respective request and costs, copies of school reports, school newsletters, copies of school photographs of the children, guidance officer reports/assessment and individual education plans pertaining to each child.
6.These orders shall be sufficient authority for any of the health carers (e.g. including speech therapist, psychologist, occupational therapist, physiotherapist), medical practitioners, medical specialists (e.g. including Paediatrician/Psychiatrist), dieticians (collectively referred to herein as the ‘treating team’) who provide care for any of the children, to provide to the applicant from time to time, at his request and cost, any information regarding the needs, treatment recommendations, medication regimes for each child and to provide copies of any report/letters of referral regarding the health needs of the child/ren.
7.Further to order 6, the respondent shall inform the applicant in writing through the parenting app and keep him informed at all times, of the names, addresses and contact telephone numbers of each member of the child/ren’s treating team and she shall notify the applicant in writing within twenty-four (24) hours of any changes to members of that treating team to whom the children are referred.
8.Each parent shall be permitted to attend parent/teacher interviews at the child/ren’s school, as and when invited by the school to attend.
9.Each parent shall be permitted to attend any school cultural events including sports day, school concerts and awards presentation events, to which parents are invited to attend.
10.If the applicant intends to attend any such schooling event referred to orders 8 and 9, he shall provide prior written notice through the parenting app to the respondent at least forty-eight (48) hours before the date of the event.
11.The parties each set out within these orders their email address to be used for communication between each other regarding the children’s needs, where the Parenting App is not otherwise prescribed to be used by these orders. Such email address shall not be used by either party for communicating any other information not pertaining to the children:
(a)Applicant’s email address: ...@...;
(b)Respondent’s email address: ...@...;
(c)Each parties’ email address is to be used by each party to provide copies of medical reports and school reports as the case may be.
12.Each party shall ensure that they monitor their email address at all times.
13.The parties each set out within these orders their mobile numbers for emergency contact:
(a)Applicant’s mobile number: …;
(b)Respondent’s mobile number: …;
(c)Each party shall keep the other party informed in writing at all times of any changes to their mobile phone number and provide the new number.
14.If the child/ren are unwell to spend time with the applicant, then the respondent shall notify the applicant in writing forthwith by SMS text and she shall provide to him, within twenty-four (24) hours of the notification, a copy of the medical certificate certifying that the children are unwell and the medical reason why they are unfit to attend to spend time. The applicant, upon receiving the text from the respondent, shall immediately acknowledge receiving the text message by replying with the word ‘Received’.
15.Neither party shall denigrate the other party or members of the other party’s household to the children or within the hearing of the children and each shall use their best endeavours to ensure that no other adult denigrates the other party or members of that other party’s household to the children or within the hearing of the children.
16.Neither party shall discuss these proceedings with the children nor within the hearing of the children and they shall each use their best endeavours to ensure that no other adult discusses these proceedings with the children or within the hearing of the children.
17.Neither party shall enrol the child/ren in more than one extracurricular activity per school term, without the prior written consent of the other party, and each party shall ensure that whilst the child is in their care, that the child/ren attend their extracurricular activity.
18.In relation to order 17, each party is authorised by these orders to attend the children’s extracurricular activities.
19.In the event of a medical emergency regarding any of the children, the parent with the care of the child at the relevant time shall immediately notify the other parent by SMS text and provide details including:
(a)Nature of the illness/injury/emergency;
(b)What hospital/medical centre the child is attending;
(c)The diagnosis and any recommendations provided by the medical practitioner; and
(d)The receiving parent shall immediately reply by text with the word ‘Received’.
20.Each party shall keep the other party informed in writing by the parenting app at all times of their residential address and of any changes to the residential address within forty-eight (48) hours of any proposed change.
21.Each party shall ensure that they have and use the appropriate child car seat restraints for each child, whilst the child is in their care.
22.The respondent must keep the applicant informed at all times in writing through the parenting app of the full name, address and contact details for medical practitioners, medical specialists and all allied health carers including NDIS providers, (otherwise referred to as the ‘treating team’) for the children.
23.If there are any changes to any of the treating team, the respondent must provide the applicant written notice through the parenting app within twenty-four (24) hours of such change.
24.The respondent must keep the independent children’s lawyer informed at all times in writing of the full name full name, address and contact details for members of the treating team for the children.
25.If there are any changes to any of the treating team, the respondent must provide the independent children’s lawyer written notice within twenty-four (24) hours of such change.
26.Within seven (7) days of the date of these orders, the applicant shall contact each member of the treating team for the respective children with a view to engaging in training and upskilling himself and to obtain information regarding needs of the children including toileting, dietary, medication regime, feeding routine.
27.The applicant shall notify the independent children’s lawyer and the respondent with confirmation in writing that he has made such contact.
28.The independent children’s lawyer has the leave of the court to publish a copy of these orders to each member of the children’s treating team and to provide a briefing letter requesting assistance from the members of the child’s treating team including medical practitioner and allied health carers to provide the applicant at his cost, with information, training and any reports to upskill and assist him to understand the medical/health and daily needs of each child including toileting, dietary, medication regime, feeding routine; such assistance to be provided at the request of the court, as soon as possible.
29.In relation to order 28 above, the applicant shall attend at all appointments that he is requested to attend by any member of the treating team for as long as he is requested to attend.
30.The independent children’s lawyer shall request that each member of the treating team confirm the applicant’s attendance in writing and confirm that the applicant has been provided with information and training as relevant to their area of care for the children.
31.The independent children’s lawyer shall then provide copies of the letters from members of the treating team to the parties.
32.Pending any move to unsupervised time, the children’s time with the applicant shall continue as per the orders of 7 April, 2022, subject to his completion of orders 26, 27 and 29 and the independent children’s lawyer receiving information in accordance with order 30.
33.Upon completion of orders 26, 27, 29 and 30, for the first eight (8) weeks, the applicant is to have unsupervised offsite weekly visits of two (2) hours with:
(a)First week (week 1) with X; then
(b)Second week (week 2) with Y; then
(c)Third week (week 3) with Z; and
(d)Fourth week (week 4) with all three children together; and
(e)Cycle is then repeated.
34.Upon completion of order 33, the applicant is to have unsupervised offsite weekly visits of four (4) hours with:
(a)First week (week 1) with X; then
(b)Second week (week 2) with Y; then
(c)Third week (week 3) with Z; and
(d)Fourth week (week 4) with all three children together; and
(e)Cycle is then repeated.
35.Upon completion of order 34, the applicant is to have unsupervised visits of six (6) hours duration from 9.00am to 3.00pm on each alternate Sunday with all three children, unless otherwise agreed in writing between the parents using the parenting app.
36.The family therapist Ms B is requested to observe the children and the applicant at the following visits:
(a)Last supervised contact visit;
(b)First time all three children spend time with the applicant off site and unsupervised;
(c)First time all three children spend time with the applicant off site and unsupervised for six (6) hours and thereafter provide a written report to the court advising in her opinion whether the children’s time with the applicant can now be extended to overnight time or not.
37.The parties are to pay for the costs associated with Ms B’s observations and written report in equal share, noting Ms B’s fees are $250 per hour plus GST.
38.The independent children’s lawyer shall notify the parties of the costs associated with Ms B’s written report and each party shall provide their half of the funds into the trust of account of Legal Aid Queensland within fourteen (14) days of notice by the independent children’s lawyer.
39.All changeovers for unsupervised time shall occur at the Suburb C Children's Contact Centre unless otherwise agreed to in writing by the parties through the parenting app with the costs of changeover to be shared equally between the parties.
40.Subject to the applicant having satisfied all of the requirements referred to herein, he shall spend time with the children:
(a)On the first Friday of each Queensland Gazetted school holiday period (or such other Friday in school holidays as applicant nominates that coincides with his RDO), overnight from Friday after school or 3pm whichever is the later until 3pm Saturday (and each alternate Friday of that holiday period), unless the parties agree otherwise in writing using the parenting app.
41.The applicant shall not use prescribed medical drugs and any other illegal drugs both for the period from twenty-four (24) hours prior to spending time with the children and when spending time with the children.
42.Neither party shall consume alcohol beyond the permitted driving blood alcohol limit (0.05) whilst the children are in their care and within twenty-four (24) hours of the children coming into their care.
43.The parties and the independent children’s lawyer shall have leave of the court to publish the Reasons for Judgement to any treating psychiatrist, psychologist or general practitioner who prescribes any medication for depression or anxiety for either party.
44.The respondent shall continue consulting with her treating psychiatrist, Dr D and attending upon her treating psychologist, Dr E, for as long as is recommended by the respective medical expert.
45.Within seven (7) days of the date of this order, the applicant shall attend upon his treating general practitioner to obtain a referral to a psychologist and the applicant shall attend on that psychologist at the first earliest available appointment. The applicant shall continue to attend on that psychologist for as long as is recommended by that medical expert.
46.The applicant shall notify the independent children’s lawyer and the respondent in writing of the name, address and contact details of his treating psychologist with such notice to be given within fourteen (14) days of the date of this order.
47.The parties do all things necessary to engage with a new contact centre closer to F Region if possible, with the parents and the independent children’s lawyer being at liberty to publish to any contact centre which they attend both these orders and the Reasons for Judgment of the Honourable Justice Jarrett. The parties are to notify the independent children’s lawyer of the details of the new contact centre within seven (7) days of both parties having registered.
48.The independent children’s lawyer be at liberty to relist the matter within one (1) calendar month of Ms B’s final review in order 36(c).
49.Whilst the child/ren are in the applicant’s care for unsupervised time, he shall have parental responsibility for the care, welfare and development of the child/ren.
50.Further to orders 19 and 49, the applicant shall keep the respondent informed in writing at all times of when the children are unwell/injured and receive medical attention, including the nature of the illness/injury, the diagnosis and recommended treatment, which hospital/medical centre and the name of the treating doctor, such notice to be given as soon as possible and in any case within forty-eight (48) hours of seeking medical attention;
51.Except in a medical emergency for the child, where she shall immediately notify the applicant of the medical emergency and take all necessary steps to arrange emergency medical attention.
52.Further to order 19, the respondent shall keep the applicant informed in writing at all times of when the children are unwell/injured and receive medical attention, including the nature of illness/injury, the diagnosis and recommended treatment, which hospital/medical centre and the name of treating doctor, such notice to be given as soon as possible and in any case within forty- eight (48) hours of seeking medical attention;
53.Except in a medical emergency for the child, where she shall immediately notify the applicant of the medical emergency and take all necessary steps to arrange emergency medical attention.
54.The application be otherwise adjourned to 9:30am on 6 November, 2023 for case management hearing in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
Note: The form of the order is subject to the entry in the court’s records.
Note: This copy of the court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this court under the pseudonym Jonas & Avery has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
This is an application for parenting orders in respect of three children. If these children lived in an intact family they would face significant and difficult challenges throughout their childhood and for the rest of their lives. That they have to deal with two parents who are not on speaking terms and who are in conflict with each other makes their predicament all the worse. Orders of a court cannot solve for these children what needs to be solved for them. Orders cannot deliver to them two parents who are able to cooperate and act together for their best interests. Only the parents themselves can do that.
The best that the court can do is to provide orders which establish a framework in which these children will spend time and live with each of their parents. The making of such orders is an exercise in discerning from the evidence what is in the best interests of these children. There are a couple of things to say about that observation. First, the making of parenting orders is not an exercise in punishing bad parents nor rewarding good parents. That is not the function of the court. Sometimes it turns out that way but that is a matter of circumstance rather than design.
Second is that the court decides the case based on evidence and it has been a long-established principle, given expression in the High Court’s decision of Briginshaw v Briginshaw (1938) 60 CLR 336, that the more serious the allegation and the more important it is, the greater precision one might expect to be given to the evidence that is led to support it. To use the words of the High Court, there is no room for inexact proofs and indefinite testimonies where the matter that is alleged is serious. Briginshaw was codified in s 140 of the Evidence Act 1995 (Cth). I refer to those matters because this case is characterised by inexact proofs and indefinite testimonies.
The general concept of family violence is something that is at the forefront of thinking for legislators, government and the community alike, as it ought to be. The community expects courts to take violence within family settings seriously, as they should. They are serious matters. It is very concerning then, in a case where such violence is said to be at the centre of it, for the court to be presented with evidence in the form in which it is in this case. Just as the court is expected to take these things seriously, so too, the parties and the lawyers who represent them. The affidavits in this case are a disgrace.
The parties in this case commenced a relationship in 2014. At that time the applicant was 19 years of age and the respondent was 17 years of age. They formed a de facto relationship and moved to live together with the respondent’s parents. Soon thereafter the respondent became pregnant with the parties’ first child and she was born in 2015. The parties separated in January, 2018. They continued to have contact, one with the other, until about July, 2018. Since that time they have had no contact with each other in any real sense.
They have three children. X was born prematurely in 2015. She has a number of disabilities and medical issues, including autism, ASD hyper sensory sensitivities and motor developmental delays, an eating disorder and, in 2021 she was further diagnosed with ADHD, a reference I assume to attention deficit hyperactivity disorder.
X sees a range of healthcare professionals. According to the respondent’s evidence, X has some challenging behaviours, including a need for repetition in some aspects of her life. She is currently in year 3 and has a personalised learning support plan. She struggles with change.
When these proceedings were commenced X had little relationship with the applicant. According to the evidence I have read, he was effectively a stranger to her. Between mid-2018 and mid-2022 she spent no time with the applicant. Her relationship with the applicant is developing now by reason of some supervised time that she and the applicant have been spending together. She refers to the applicant as “dad” on most of these supervised visits, according to his evidence.
X’s relationship with the respondent is not in doubt. It is strong, secure and warm, as one might expect. She has a good relationship with the respondent’s current partner.
The evidence demonstrates that X adopts a protective role over her younger brothers and, according to Ms B, will report matters back to her mother if she feels she needs to do so. She has a strong relationship with them.
X has been exposed to the respondent’s views of the applicant. For example, she told the author of the s 62G report in this matter, Ms G, that, speaking of her father, she had heard from her mother that, “He wasn’t ready to be a dad.”. Ms G also recorded that X had said that, “Her father punched her mother which said she caused [X] to punch him.”
Notably, it is not the applicant’s case that the respondent was ever physically violent to her and specifically that he had ever punched her. These matters tend to suggest that the respondent has, at the very least, been careless when discussing the applicant and her feelings about him either with or in circumstances where X could overhear her. In my view, it is more likely to be the former rather than the latter.
Y was born prematurely in 2016. He had complex medical needs as a baby. He was diagnosed with several medical issues from birth. He has been treated by and engages regularly with many healthcare professionals. He, too, has been diagnosed with autism and mild global developmental delays. He has speech and language difficulties. He experiences meltdowns. Y is in grade 2 and is struggling. He, too, has a personalised learning plan. He apparently enjoys the social aspects of school more than the academic.
As with X, Y had very little relationship with the applicant when he commenced spending time with him in mid-2022. By the time of trial however, the evidence demonstrates that Y was interacting well with the applicant when they spent time together on a supervised basis.
Z was born in 2017, premature. Following his birth, Z experienced several significant medical problems. He had many other health problems and continues to do so. He spent many months in a neonatal intensive care unit. He was discharged from hospital on oxygen and with a feeding tube.
Z has been diagnosed with a disability, severe global development delays, ASD, and other medical conditions. He continues to have issues with his a number of his organs and basic functions. He experiences seizures.
The respondent contends that Z has suffered a brain injury as a result of being shaken by the applicant while Z was sitting in a swing after he was discharged from hospital. I will deal with this event later in these reasons but, for present purposes, it is sufficient to record that there is no evidence to suggest that the applicant was responsible for any brain injury that Z might have. The respondent called no qualified evidence to support what, at best, is a hypothesis.
Z has a limited ability to walk and often uses a mobility aid. The respondent says that Z also engages in stimming behaviour.
Z is in grade 1 at a special school. He attends five days a week. His verbal communication has improved since he has commenced school.
When time between the applicant and Z commenced, the applicant was anxious to accommodate Z’s communication needs. I accept his evidence that he took steps to complete a program with W Organisation but he needed confirmation from the respondent about which form of sign language was appropriate to communicate with Z. Despite requests via solicitors for that information it was never really forthcoming from the respondent.
It is uncontroversial that Z uses a communication device to assist him. However, notwithstanding Z’s communication difficulties, the applicant says – and I accept – that Z usually talks with him when he is spending time with him on supervised contact and uses neither sign language nor his interactive device during those visits.
The applicant in this case is currently 28 years of age. I accept his evidence that during the parties’ relationship he worked full-time outdoors. He would, I accept, attend the children’s many medical appointments when his working commitments permitted. Given his full-time work, that could not have been on many occasions.
Following separation the applicant stayed with a friend, Ms H who gave evidence before me, for about three months and he then moved to his own rented accommodation from mid-2018 until mid-2019. He then moved into a two bedroom house which he continues to share with a friend, Ms J, who also gave evidence before me.
The applicant worked full-time for a private business from the end of late 2019. He is currently working in the public sector, on a casual basis, working full-time hours from 6.00am to 3.00pm on a nine day fortnight. He has every second Friday as his rostered day off.
The applicant’s evidence is that he was quite depressed following the parties’ separation and his inability to spend time with the children. He was referred by his general practitioner to a psychologist, Mr K, someone with whom he had had some previous professional contact. I have no evidence from Mr K or the applicant’s general practitioner about this treatment although the applicant claims to be well and to have:
A great support network around me and I believe, through assistance from my general practitioner and [Mr K], I have become a calmer and more attentive person.
For the purposes of these proceedings the parties were assessed by Dr L on two occasions, the first in July, 2021 – or at least that is the date of the first report – and the second in February, 2023 with the interviews for that report taking place in late 2022. Dr L made a written report after each assessment. In his first report of the applicant, he said:
As to the diagnostic issues in the father, there was nothing in the documentation that would change my view that the father does not appear to suffer from a psychotic illness but does report a past history of what appears to be consistent with a major depressive illness in the context of multiple stressors but again was not presenting with any ongoing features of a major depressive disorder. As to the father’s personality, the father engaging in [self-harming] behaviours in the context of perceived rejection or abandonment, as well as inappropriate displays of emotion, in particular anger and making threats to harm himself or others, in the presence of the children, when his needs are not met or in the context of a perceived slight does suggest personality vulnerabilities […].
If the characterisation of the relationship is being marked by significant and severe domestic violence, which the father continues to deny, this would suggest significant personality traits in the antisocial range. Allegations of ongoing stalking-type behaviours or other inappropriate behaviours directed at the mother, in the context of the current court proceedings, also suggest antisocial traits are present.
Dr L’s opinions about the applicant did not change after his second assessment.
On his own evidence, the applicant became addicted to an illicit drug and used it every day when he was younger. His evidence is that he “had just quit [in] 2014 when I met [Ms Avery] the following week” and that during the entire relationship with the respondent he did not use any illicit drugs whatsoever.
However, following separation, he says that he did use marijuana on occasion in an attempt to “deal with what had become of our family”. His evidence is that, apart from using marijuana a few times, he had not used any illicit drugs since 2018. But in mid-2021 the applicant undertook a hair follicle test at the request of the independent children’s lawyer. The test was positive for cannabinoids and demonstrated cannabis use by the applicant. Further, cross-examination demonstrated that the applicant’s evidence about ceasing his use of marijuana to be false. I am satisfied that the applicant used marijuana regularly after 2018, despite his evidence to the contrary and up to the point in time when he legitimised its use by obtaining a medical prescription for it.
The medical evidence relied upon by the applicant about the purposes for which a medical cannabis was prescribed for him is not particularly persuasive. In mid-2021 “[Ms U] – nurse”, on behalf of Dr O, of V Pty Ltd, wrote to Dr N who, from the context of the letter appears to be the applicant’s general practitioner. The letter confirms that the applicant had been prescribed medical cannabis (although it does not say when) for the conditions of “insomnia” and “anxiety with depression”. There was no evidence of what has happened with either of these diagnoses or the treatment since mid-2021 although the applicant swears “I only consult with my treating professionals in relation to the use of my medical cannabis and I only take as prescribed by the specialist”. The last prescription by the specialist seems to be about two years ago.
The applicant says that he does not consume medical cannabis whilst he is working or operating a motor vehicle or that his drug use is “in any way recreational”. He says that he is not so severely affected by the use of the prescribed products that he is unable to work or function in society. Curiously he says that he would not use medical cannabis in the presence of the children. I say curiously because it is not the use per se which is concerning as much as the effects upon the applicant of that use and the time over which those effects persist. Those matters were not explored in the evidence.
The respondent is currently 26 years of age. She was born in England and came to Australia when she was a teenager. After a brief return to England, she has permanently resided here since. She married Mr P in late 2020. Mr P is currently 40 years of age. He has children from another relationship, although one is now deceased. The other, who is five years of age, lives with his mother and spends no time with Mr P. His evidence is that he plans for litigation about the parenting arrangements for his son once these proceedings are out of the way. One door closes whilst another door opens.
The respondent and Mr P have one child born of their relationship, Q, who is presently three years old. She was born prematurely and she, too, has her own health concerns which Mr P, in his evidence, puts at the top of the rankings in terms of all of the children under their care. She has been diagnosed with global development disorder and autism. She is non-verbal.
The status of the relationship between Mr P and the respondent is not clear despite their protestations to the contrary. There was no evidence in the mother’s affidavit about Mr P’s move interstate last year. There was no evidence in her affidavit at all that gave the court any inkling that there was a division between her and Mr P in terms of geography nor, more importantly, a division between the three children, who are the subject of these proceedings, and Q.
Mr P and Q had returned from interstate five days before this trial and the evidence from him and from the respondent was that he intends to reside here permanently. Their evidence is that they now live together although they are not living in the same house at the moment. The children and the respondent live with the respondent’s parents at Suburb R. Mr P lives not too far away apparently.
Before the parties separated, the respondent was a stay at home parent who looked after the children, commencing upon X’s birth. Given all that I have recounted about them, there is nothing remarkable about that. I accept that she tended to the children’s day to day care. I have already recorded that the applicant worked full-time outdoors. The respondent complains that the applicant would rarely assist her with the children. Given his full-time work, no doubt the opportunity to do that was limited. The respondent gives evidence that on one occasion in late 2016 her father had to pick the respondent, X and Y up from their house at 3.00am due to Mr Jonas “kicking off” and refusing to feed Y. I have to confess to being unfamiliar with the term “kicking off”. In context, I surmise it to mean that the applicant was refusing to help with the children but no such proposition was put to the applicant in cross-examination and there is no corroborative evidence from the respondent’s father. In any event the episode is probably of little moment. On the respondent’s own case there were a few times when the applicant was left to care for the children on his own.
During the course of the parties’ relationship and before they separated, the applicant had difficulties with gambling. There is some scant evidence about that in the respondent’s affidavit. In cross-examination, the applicant accepted that he had a problem during the course of the parties’ relationship. No doubt that put a significant strain on the parties’ finances. There is no evidence before me about what those finances were at the time but I think it fair to say that, given the context of the complaint made by the respondent in her evidence about that, the strain caused by the applicant’s problems was significant.
As I have already recorded, the parties separated in early 2018. The applicant’s evidence is that the parties remained in an on and off relationship for a few months following their separation in early 2018. He says that during that period they were friendly and intimate on many occasions. He says that they continued to spend time together as a family several times in most weeks. The applicant hoped for reconciliation.
According to the respondent, the parties’ relationship ended in January, 2018. At the time she says that she rented a house for herself and the children in Suburb R near her parents’ home and it is not contentious that, for a few months following January, 2018 the applicant was “couch surfing” between the respondent’s home and homes of the applicant’s friends. The applicant said as much in cross-examination.
The applicant spent time with the children as he wished. It is uncontroversial that the applicant was focused upon reconciling his relationship with the respondent. He agreed with that proposition in cross-examination. I accept the respondent’s evidence that the applicant would try to sleep in her room with her when he was sleeping on her couch but she usually declined his advances. I accept the applicant’s evidence however that the parties were intimate during that period.
Despite matters to which I shall refer later in these reasons, after the applicant stopped using the couch at the respondent’s home and started living in a room in shared accommodation, she agreed for the applicant to have some time alone with the children. She does not say how many occasions of time there were but describes them as “a few occasions”. On these few occasions she says that the applicant would take the children to the park around the corner from her house but after no more than 20 to 30 minutes he would “lose his temper with the children and call me to come and collect them saying that they were doing his head in and that he could not cope with them”. She says there were two occasions in 2018 when the applicant permitted one or other of the parties’ children to sleep over at the applicant’s home. Perhaps demonstrating some insight into his capacity, the respondent said that the applicant told her that he only wanted to have one child spend time with him at a time. It is the respondent’s evidence that on both occasions that the applicant had a child sleep over with him he telephoned her during the night and asked her to come and collect the child who was with him. The respondent says that she also facilitated FaceTime between the children and the applicant on a couple of occasions but she said that he didn’t engage with the children all that much but was rather more interested in engaging with her and the behaviour made her feel very uncomfortable so she ceased it.
Time between the children and the applicant ceased in July, 2018 when a protection order was secured. There is evidence between the parties of altercations that took place in mid-2018. I do not intend to go through that evidence in very much detail because it is largely uncontroversial. There are some controversial aspects, however, and I will return to those aspects shortly. Between mid-2018 and early 2022 these children spent no time with their father. An order was made in April, 2022 for the children to spend supervised time with their father and it took some time to get going. The mother explains, in her affidavit material, that by reason of things that had been said in court when those orders were made and the fact that the orders were made, she decided that she could no longer cope and self-harmed a couple of days after the orders were made.
To the extent that she suggests that the orders were the catalyst for her actions, it is very difficult to accept because the orders were made by consent. These are orders with which she agreed and her agreement signified that she considered, at the time they were made, they were in the best interests of her children. To suggest otherwise is either to suggest that she was perpetrating a fraud on the court then or is perpetrating a fraud on the court now. Neither stands her in any good light. Whatever the case, it is uncontroversial that the mother self-harmed, the particular nature of which is not in evidence before me. She was discovered, it is said, by her partner, Mr P, and she was taken to the hospital by her father.
The submissions made by each of the parties clarified the issues in a general sense. It was said, for the independent children’s lawyer, that against that very general background of facts the applicant’s case is that these children should have time with him and the respondent lacked the capacity to properly facilitate a relationship between the children and him for reasons that were not grounded in the evidence. The respondent’s case, it was said, consisted of a proposition that, first of all, the applicant represented an unacceptable risk of harm to these children, physical and emotional or psychological harm, and, secondly, even if that was not so, the respondent’s belief that the applicant represented such a risk was such as to mean that there should be no time between these children and their father because to permit time would mean that her parenting capacity would be so impacted as to be detrimental to the children.
The independent children’s lawyer’s submissions suggested that, insofar as the independent children’s lawyer was concerned, the issues for the court, in a general sense, were whether there was an unacceptable risk of harm to these children from the applicant and, secondly, whether the respondent was capable of properly supporting a relationship with these children if there was a finding of no unacceptable risk of harm.
All parties, through their counsel, grappled with the difficult question of whether any orders that are to be made in this case that might provide for time between these children and the applicant should be final or interim. I will address that matter later.
The making of orders, as I have already indicated, under the Family Law Act 1975 (Cth) is an exercise of construing on the evidence what is in the best interests of children. To reach a decision about that, s 60CC of the Family Law Act 1975 (Cth) requires the court to consider, to the extent that any particular factor is relevant, the matters set out in that section. An examination of those matters informs both questions of parental responsibility and where children shall live and where they will spend their time and with whom they should communicate.
In respect of the question of parental responsibility the court is assisted by s 61DA. Section 61DA(1) requires the court to presume that it is in the best interests of children for their parents to have equal shared parental responsibility for them and the authorities go on to say that the court, if it concludes the presumption applies, should ordinarily make an order to that effect.
Section 61DA(2) provides that the presumption does not apply in circumstances where the court is satisfied that there is family violence as that term is defined in the Family Law Act 1975 (Cth) between the parties or by one of the parties towards one or other of the children. Here, I am satisfied there has been family violence, on the applicant’s own admissions in cross-examination and in his affidavit of evidence in chief. Section 61DA(2) is engaged and the presumption does not apply. That does not mean I cannot make an order for equal shared parental responsibility because I may still do so if I consider that, nonetheless, it is in the children’s best interests.
Before considering the factors that arise under s 60CC any further, it is as well to set out the proposals of each of the parties. The respondent’s proposal is that these children spend no time with their father. Ever. She has an alternative position which I think, by the conclusion of submissions, was an acceptance of the draft orders, or the “schema” as it came to be called during the course of submissions, proposed by the independent children’s lawyer. There were some minor modifications. The applicant’s proposed orders were initially those set out in his case outline but, as I understand the submissions that were made at the conclusion of the trial for him, the “schema” set out by the independent children’s lawyer, represented an order which might be in the best interests of these children, on the evidence.
The respondent’s proposal must be underscored by one of two propositions, either that these children will not benefit from a meaningful relationship with their father at all or whatever benefits might be derived by them from having a meaningful relationship with him will be outweighed by some detriment that will befall them by reason of having contact with him. That detriment is either direct harm from him, by reason of being exposed to abuse, neglect or family violence, or, alternatively, harm that will befall them by reason of some imposition on the mother’s capacity to properly care for them.
The question of the benefit to be derived by these children from a meaningful relationship with their father was not the subject of any expert testimony and not the subject of any cross-examination. However, the way in which the independent children’s lawyer’s proposals have been couched, the way in which the mother couches her own proposals and the way in which the experts, Ms G, Ms B and, to a much lesser extent, Ms S, expressed their views, leads inexorably to the inference that it will be to the benefit of these children for them to have a meaningful relationship with their father. Ms B was particularly clear that they will derive a benefit from that relationship.
Each of the experts qualifies that proposition, though, by reference to s 60CC(2)(b) and that is the need to protect these children from physical, psychological or emotional harm by reason of being exposed to abuse, neglect or family violence. On that point some things are clear. The first is that these children have been exposed to family violence in the form of physical violence from their father in the past. I remarked during the course of the hearing that the use of labels is very unhelpful and indeed it is. Words and terms like “violence”, “family violence”, “domestic violence”, “psychological harm” and “emotional harm” are all labels or descriptors that are attached to behaviours or the effect of behaviours. But, as descriptors, they only go so far. As descriptors they say nothing about the underlying behaviour of harm described by the terms and, as experience shows and as the examples set out in s 4AB(2) of the Family Law Act 1975 (Cth) demonstrate, there is a wide range of behaviour, and effects of behaviour, that comes within the relevant descriptors.
It is for that reason that evidence is so important. Evidence is what a witness saw, heard and experienced – not in any generalised fashion but in specific or particular terms. The evidence here, and the father’s own evidence, is that he would hit the children over the head. That could be as insignificant as what, in days gone by might have been called a “clip over the ears”. It might be a far more significant application of physical force. In depends on the context and the circumstances. Here, despite the father’s admissions and the evidence of those called in the mother’s case to support her, there is very little particularity and specificity given to the occasions on which it is said the father was either seen or heard to have struck the children.
I am asked to infer that the application of force by him was inappropriate. There is a school of thought that any physical discipline of any child is inappropriate. Equally, there are other schools of thought that suggest that not all applications of physical force when disciplining children is inappropriate. Where the reported episodes, whatever they may have been, fall, I cannot say on the evidence.
It is right to say that the applicant has uttered, on the evidence, a threat in the presence of X. There was an episode in mid-2018 where he came to the family’s home. Mr P was inside the door and the father was outside the door. I accept the father’s evidence that Mr P motioned to him by drawing his finger across his throat and the applicant responded by yelling, “I will kill you”. I accept that X heard that. It was entirely inappropriate.
But having combed through the evidence, that is it. There is very little else, if anything, that would constitute some sort of threat that these children have heard or to which they have been exposed. There was perhaps the scuffle in which the mother and Mr P and the father were involved, at which the children were present, but what they saw and what they heard I have no idea because the evidence does not tell me. So the conclusion I have come to, on all of the evidence, is that there is no unacceptable risk of harm here from the father to the children.
One of the episodes relied upon by the mother, in relation to violence towards the children, is the suggestion that Z, when he was in his swing, was shaken by the father so much that it caused brain damage. It is difficult to pinpoint when that is said to have occurred. The mother says that the episode occurred after Z was released from hospital in 2017. She also says that he spent many months in hospital following his birth. Factoring those against each other, it would seem that this incident took place in late, 2017, so soon before the parties separated.
The respondent may not have formed the conclusion that this incident might be responsible for brain damage to Z until she spoke to Dr T later in 2021, but the incident was obviously of such import for her to recall it to Dr T in 2021. Curiously then, despite the importance of that episode to her, her own evidence is that after the parties separated in January, 2018 she permitted the applicant to spend time with the children as he wished. That included overnight time, not with Z, but with the others. One might think, that if the respondent was of the view that the applicant represented a risk to the children, it was all of them not just one.
On that point, the second episode that the respondent points to which suggests that the applicant is a risk to the children, is what she describes as the “drowning incident”. This involves Y. The respondent swears in her trial material that it took place at a particular time in mid-2017. She told Ms S that it took place at a later point in time in 2017 – a small difference. Her evidence, set out at paragraph 189 of her affidavit and follows, describes an incident where both parties are home. She says that she could hear screaming from the bathroom. She went in and found X in the corner of the bathroom and the applicant with Y, who in the bath. She says that she saw Y under the water on his back with the applicant with his hand on his chest holding him under water.
She has described that event in many different ways to different people. Taking into account the passage of time and the claim by the mother that she was shocked to see what was happening, some differences in her recounting of her observations to different people might be unremarkable. However, she described the incident differently to Ms S, she described it differently to Ms G, she described it differently to the police and she described it differently to Dr D. The differences are not insignificant but rather are material. Indeed she told Dr D that the father had tried to drown both children, not just Y, and, when cross-examined about that, Dr D referenced his notes to confirm the accuracy of his recollection.
The applicant’s evidence about this incident was that he was at home alone bathing the two children. He had taken X out of the bath to place her on a couch which he said was about five steps outside the bathroom. Y was left in the bath sitting upright. He slipped over and went under the water for about 5 to 10 seconds and the applicant retrieved him. He then telephoned the respondent to call her to come back and help him. That is to say, on his version the respondent was not at home.
Some things can be said about that. First, the applicant’s evidence is against his interest because, on his own evidence, he admits to leaving a child, a very young child, unattended in a bath. Second, his evidence is consistent with the respondent’s own observations made of his care of the children much later, namely that when he feels overwhelmed and unable to cope he seeks help. Her evidence is that it is indeed what he did when he had two overnight visits with the children much later in 2018. His evidence about immediately seeking the respondent’s assistance is consistent with his propensity to have sought out help for assistance with the children.
Further, I found the evidence given by the applicant more generally persuasive. He answered questions that were put to him directly. He did not seek to avoid the questions, except on perhaps one or two occasions, but, by and large, his answers were direct and responsive. He had no compunction in admitting things that were against his interests, so much so that he admitted to committing criminal offences without so much as a moment’s hesitation. It is difficult to conclude that his evidence, in those circumstances, should not be given serious consideration. I accept his evidence about the way in which the bath incident occurred. I reject the evidence of the respondent. Her versions are inconsistent, one with the other, on so many occasions.
Perhaps the most important inconsistency with her case is this. Her view, at the time, was that the applicant was not, through some error of judgment or lapse or negligence, permitting their child to drown but that he was trying to drown him. If that was so, and if she truly believed it, it frankly beggars belief that two things did not happen. The first is that the police were not involved. I reject her explanation that she did not involve the police because she was frightened of the applicant. There is no evidence at all of any probity that until that point, the applicant had in any way harmed or threatened her. Second, she would not have let these children out of her sight and in his care and yet, on her own evidence, he could spend as much time with them as he liked in an unsupervised way, out of her presence and overnight and did so on at least two occasions.
So if it truly was the case that the respondent in fact saw what she says she saw, and she formed the belief that she says she formed, there is a real risk that these children are at a risk of harm from her by reason of what appears to be a capacity to act protectively for the children. But I do not think that is true. I do not think she does not have the capacity to act protectively for her children. I think she is the opposite and that is a further reason why I have concluded that I reject her version of that event and accept that of the applicant.
I do not accept for a minute that he was attempting to harm his child. As I have indicated, I am not satisfied that the applicant represents an unacceptable risk of physical, psychological or emotional harm to these children.
Insofar as questions of violence more generally are concerned, the respondent’s case is that she was afeared of the applicant throughout their relationship or from some indeterminate point within their relationship and she continues to be afeared of him. However, her evidence does not withstand scrutiny. She gives evidence in her affidavit that the parties, during the course of their relationship:
‘..would frequently engage in heated arguments which would regularly result in verbal denigration towards one another and him becoming physically aggressive which behaviour included [Mr Jonas] punching walls or raising his fists in rage and breaking (sic) fast and unexpectedly while driving with myself and the children in the car.’
See paragraph 180 of her affidavit. In respect of that evidence, it is quite candidly put by the respondent that she and the applicant would frequently engage in heated arguments which would regularly result in verbal denigration towards one another.
His physical aggression was put to him in the witness box. It was put to him that he punched walls. He accepted that. He rejected the proposition he punched holes in walls and there was no suggestion in the respondent’s evidence that he did. Where that suggestion came from I am not sure. He accepted that he raised his fist to the respondent. How many times that occurred and in what context one does not know because the evidence leaves much to be guessed at and it is inappropriate for me to guess. But that is it, in terms of the evidence.
Following the parties’ separation, in the months leading up to July, 2018 the applicant behaved appallingly. There is no question about that. He was a person who had, until early 2018 been in a relationship and had three children. However, the relationship was gone. He says he wanted to reconcile, the respondent says he wanted to reconcile and the evidence that the respondent provides supports those contentions. Having had his attempts at reconciliation spurned, one can see that the applicant then turned to rage, anger and denigration. The messages that he sent the respondent, by various means, are entirely inappropriate.
His behaviour towards Mr P was entirely inappropriate, but that is not to say that Mr P is without criticism. He was not cross-examined for very long but that is because his affidavit says very little about anything except himself. He did not impress me as a witness even though he was not cross-examined very much. I suspect, and indeed I find, that his evidence is likely to be exaggerated. I reach that conclusion because in his description of one of the altercations in which he got involved, the one in which he says he arrived at the house and had to break down the door to get in to stop the applicant and the respondent and the respondent’s father being violent to each other, he says that he observed the applicant punching the respondent and her father. However, it is no part of the respondent’s case that the applicant ever punched her. She told Ms S precisely that – that he had never punched her. So although Mr P was not challenged on it, his evidence is inconsistent with that of the respondent, which is consistent with my own assessment of his mostly self-serving evidence.
In any event, apart from the harassment through emails and text messages and the like and the physical altercations leading to the protection order, there is no evidence that would suggest that the applicant has been physically violent to the respondent.
It is of course uncontroversial that the applicant has been found to have breached the family violence orders in place between the parties. That is significant and I take it into account. But I also take into account that the applicant has undertaken steps to understand and to address his behaviour.
His evidence demonstrates that he is alive to the inappropriate nature of his conduct at about that time, and perhaps even earlier, and has taken steps to address it. The respondent does not accept that the applicant could ever change but she would have to say that to support the case that she wishes to make for no contact. It seems to me that her statement to that effect cannot be genuinely held by her when one measures it against her actions soon after separation in permitting the applicant to spend time with the children, notwithstanding his alleged attempt to harm one of them and causing brain damage to the other.
Her evidence is that she does not accept that he has the capacity to change or has changed by reason of the things that he has come to learn through the education he has undertaken. She does not accept his statements of contrition are genuine. On the other hand, the applicant’s insight, spoken about by Ms G in her family report, is, I am satisfied, genuine. I am satisfied that he has, as he has said in his affidavit, undertaken education with a view to understanding his behaviours, the effects of them on those around him and how he should avoid them.
Some criticism was made of him in submissions when it was suggested that, although he has supports in place to assist him to manage his behaviour, those supports have not been tested. The fact of the matter is that they may not have been tested because it may be that the applicant’s ability to control his behaviour and emotions has indeed been changed through the education that he has undertaken. I am prepared to give him the benefit of the doubt in that respect.
There remains the question of what the respondent characterises as a “sexual assault”. It is difficult to pinpoint exactly when that happened although it happened at some stage between early and mid-2018. The respondent’s case is that she was upstairs dismantling or perhaps constructing a cot - she has given both versions, see the evidence of Dr D – when she asked for the applicant to come and assist her with something that she could not do. She says in her affidavit that the applicant came in to the bedroom, removed her trousers, inserted his fingers into her vagina, licked her and them smirked at her and asked her if she enjoyed it or words to that effect. She says that he then became angry after she froze and then stormed out of the room saying some other things.
The applicant says the incident never happened. I am not satisfied, on the balance of probabilities, bearing in mind s 140 of the Evidence Act 1995 (Cth) that the incident did happen. The respondent told Dr L, for example, that the applicant was downstairs. She invited him into the room that she was in to change a screw on the cot rather than dismantle or construct something. He bent over to kiss her and she said, “Stop. Not today” and then he pushed her onto the bed. That is quite different to what she says in her affidavit about how the incident occurred.
Of course, a witness giving evidence and recounting incidents like these, which, if they happened must have been traumatic, is not likely to give a precise account in exactly the same way on every occasion the incident is recited, but the differences here are significant enough for me to conclude that there is real reason to doubt the veracity of the version given by the respondent. There are other examples of this episode given by her and there are various inconsistencies. I am not satisfied, on the balance of probabilities that the sexual assault occurred.
Of the matters set out in s 60CC(3), I was not addressed specifically on any of them really. The children plainly have their primary relationships with their mother. They have good relationships with each other and with their sister, Q. They have a developing relationship with their father. Ms B described it as a “visiting relationship” and in cross-examination she said it was time to move from that to more of a parent/child relationship. To move to the parent/child relationship will require careful management because the applicant does not have, on my assessment, the skills and understanding necessary to care for these children, at least not altogether, by reason of the fact that he has not had the opportunity to learn those things.
Some criticism was made of him by the respondent about his failure to engage with healthcare professionals and the like but those complaints really are mealy-mouthed because, first, the children were spending no time with the applicant between 2018 and 2022. Second, the applicant has attempted, on his own evidence, to engage with some of the children’s treating healthcare professionals, some successfully, some not so successfully, and in circumstances where the case that is being mounted by the respondent is a no time case, one might be forgiven for thinking that a failure to engage with the children’s healthcare professionals might be said to be the result of leaving the matter until there is more certainty about the outcome of these proceedings.
The second limb of the respondent’s case is that even if there is no unacceptable risk of harm to these children from spending time with the applicant, nonetheless her genuinely held belief that he represents such a risk to them or to her or her family is such that there will be a negative impact on her ability to care for these children. There is support for her case in the evidence of Dr E who says as much. Dr E’s opinion and her report is based upon what it is that the respondent has told her. Dr E’s report records the matters the respondent told her in terms of her experiences with the applicant and the violence she claims she has experienced. The descriptions that are set out in Dr E’s report, about which she was not cross-examined, contain no greater specificity than the respondent’s affidavit evidence and indeed, in some parts, are not dealt with in the respondent’s affidavit evidence at all.
That is to say, apart from the generalised assertions and then the specific matters to which I have already referred, there is no swearing by the respondent to the matters that she told Dr E about and upon which Dr E bases her opinion. In any event, Dr E is a treating therapist and, as counsel adeptly pointed out in the course of cross-examination and submissions, Dr E had to take what the respondent was telling her at face value. On the facts as I have found them to be, there was no drowning incident that the respondent could have been mistaken about, there was no shaking incident that led to brain damage and there was no sexual assault, bearing in mind the standard of proof.
That being so, there is no basis upon which I should accept Dr E’s opinion. Those matters inform the respondent’s claimed belief and given that I am not satisfied that those matters did occur, I do not accept that she has a basis for her expressed belief. I am not satisfied that the respondent genuinely believes that these children are at risk in the applicant’s care. I am not satisfied that the respondent has a genuine belief that she is at risk of harm from the applicant. The applicant posting a picture holding a weapon was stupid, frankly. The applicant gave an explanation for it and the explanation might well be true but that does not detract from the notion that it might well have had an impact on the respondent and the applicant gave no thought to that. But one swallow does not a summer make.
Criticism was levelled at the applicant for the posting of a picture of the respondent’s wedding to Mr P and all of the children. I do not understand the criticism. It may have been a wedding photo of the respondent and her new husband and their family but it included the family of the applicant. It is not suggested that the respondent sent him or would provide to him photographs of the children with any regularity or at all and so one might have thought that, having come by that photograph, he might wish to demonstrate that he has children and who they are. Frankly, I do not understand the criticism and the suggestion that it might be some form of threat is not made out on the evidence.
The question then, having regard to those findings, is whether there ought to be orders for time between these children and their father, what arrangements there ought to be for parental responsibility and, if there is to be time, how that ought to be organised. I will deal with the question of time first and then I will return to the question of parental responsibility.
Given that there is, on my findings, no unacceptable risk of harm to these children and given, on my findings, there is no genuine belief on the part of the respondent that these children will be harmed by their applicant if they spend time with him, it follows that I am not satisfied that her parenting capacity will be imposed upon in such a way as to be detrimental to the children should they spend time with the applicant. That means, in my view, that they should be spending time with him.
They will benefit from a meaningful relationship with him. They are entitled to know that he is their father and they are entitled to be parented by him just as much as they are entitled to be parented by their mother. There is no unacceptable risk of harm.
The applicant’s capacity to meet the needs of the children is impaired at this stage because of the matters to which I have earlier referred but I have no doubt that, given the opportunity to inform himself of the things about which he needs to be informed to properly meet their needs, he will then be able to do so. The orders proposed by the independent children’s lawyer provide a scheme for that to happen. I am indebted to counsel and the independent children’s lawyer for the industry that is demonstrated by those orders. This is a difficult and complex case and it is one thing to say that these children should have time with the applicant, it is another thing to say how that time ought to be managed and progress given each child’s individual circumstances. The orders proposed by the independent children’s lawyer, insofar as they provide for time between these children and the applicant, represent a realistic and achievable regime.
The question then becomes whether the orders should be made interim or final. There is always a desire on the part of the court to see families away from this place. That is because litigation does children no good, litigation does families no good and the sooner they are out of this place the better for all concerned. The prospect of making interim orders is not attractive.
Having said that, there is a significant amount of crystal ball gazing involved in these orders, more so than the usual because, and at the risk of repeating myself, this case has many complexities. I think in the circumstances of this case I really ought to make the orders on an interim basis. That goes against everything that I try to achieve in this place but it just goes to show that orders of the court can be moulded to suit the circumstances of a case. This case requires an eye to be kept on it because there are things to be done by both parties which, if not done, will be to the detriment of these children. It is an unusual regime. It requires a further assessment and report from Ms B but, as I understand the position of both parties put in submissions, (the respondent’s as put in the alternative), those orders represent a good way forward. The applicant argued, I think, ultimately for them to be made on a final basis but I formed the view that that argument was not put with any real force.
The conclusion I have come to about the time is that I should make the orders that the independent children’s lawyer has submitted. I should make them on an interim basis and include those orders which are marked for inclusion if the orders are made on an interim basis.
In terms of parental responsibility, the evidence demonstrates that these parties do not communicate. The evidence demonstrates that there is real reason to believe that they probably will never communicate in an effective and efficient way. Given the findings of fact that I have made, one might conclude that some of the allegations in this case made by the respondent stem from an inability to accept or understand that these children’s relationship with their applicant is important and so one might expect what has gone before, that is a failure to communicate – an inability to communicate – to continue.
Together with that, it is necessary to recognise the difficulty that faces the respondent in this case. There are several, not the least of which is just the day to day grind of caring for this family. To add a further burden to that, to not only care for this family, which as I have indicated has significant challenges, but to deal also with somebody with whom she has such vehement opposition, rightly or wrongly, would be perhaps to place too great a burden on her. I do not intend to do that. I do not think that it is in the best interests of these children for there to be an order for equal shared parental responsibility or for there to be an order for shared parental responsibility at all.
The evidence demonstrates that the respondent is fully, completely and utterly invested in the care of her children. She is well across their medical needs, she is well across their educational needs. The contrary was not suggested. It will be of course galling, to say the least, for the applicant to have no part in decision-making of a long term nature for these children but, as I have attempted to, perhaps poorly, explain, to impose upon the respondent in this case a requirement to engage with, communicate with and make joint decisions with the applicant about these children, on top of everything else that she deals with, is probably too much.
In those circumstances the only order with respect to parental responsibility will be that the respondent have sole parental responsibility but that she inform the applicant, through the method set out in the order, of any decisions that she makes concerning a major long-term decision for any of the children when she has made it. That is not a requirement for her to seek consultation. That is not a requirement for her to seek input and then to consider that input. She can do what it is that she has done up till now, make the decisions and just get on with looking after these children, making decisions as they need to be made. She can tell the applicant what she is doing but, beyond that, nothing more is necessary and, in my view, nothing more is demanded by the best interests of these children.
This is a distressing case. As I commenced these reasons, these children have much to deal with and will have much to deal with for the rest of their lives. The last thing they need to have to deal with, on top of everything else, is their parents’ conflict.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 4 April 2023
0
1
0