Kennedy & Peyton
[2023] FedCFamC1F 790
•15 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kennedy & Peyton [2023] FedCFamC1F 790
File number(s): ADC 4269 of 2020 Judgment of: BERMAN J Date of judgment: 15 September 2023 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives with – Relocation – Where the mother seeks to relocate the two children’s residence up to approximately 200 kilometres away – Where the father concedes that the children should be permitted to relocate subject to it being within 150 kilometres from her current location – Where the mother is the primary carer – Where the mother contends that there is an increased range of educational opportunities for the children and an enhanced ability for her to obtain employment –Where the Court finds there is merit in the mother relocating – Orders.
FAMILY LAW – CHILDREN – With whom a child spends time with – Consideration of risk of harm – Where the Court finds that father’s conduct and the attitude of the paternal grandparents directly impacts upon his parenting capacity and places the children at risk of emotional and psychological harm – Consideration of the extent to which the injuries sustained by the father’s child of a new relationship are matters relevant to the parenting considerations in respect of the subject children – Where the Court finds on the balance of probabilities, the father or his partner deliberately inflicted significant and serious injuries to the said child – Where the single expert opines, and the mother concedes, that the children would benefit from an ongoing relationship with the father – Where the single expert opines that the risk can be mitigated by supervision and the ability of the children to self-protect – Where the risk is not unacceptable – Where the father’s time with the subject children is to be in the substantial presence of various people for three years – Orders.
Legislation: Family Law Act 1975 (Cth) Division 12A, s 60B(1), 60B(2), 60CC, 60CC(2), 60CC(3), 60CC(2A), 60CA, 61DA, 61DA(2), 61DA(4), 69ZN, 69ZT, 69ZT(3)
Evidence Act 1995 (Cth)
Children and Young People (safety) Act 2017 (SA) s 35
Cases cited: Beckham & Desprez [2015] 55 Fam LR 310
Blanding & Blanding [2016] 55 Fam LR 218
Champness & Hanson (2009) FLC 93-407
Cotton & Cotton (1983) FLC 91-330
Harridge & Harridge [2010] FamCA 445
M v M (1988) 166 CLR 69
N & S & The Separate Representative (1996) FLC 92-655
Sigley & Evor [2011] 44 Fam LR 439
Vasser & Taylor-Black (2007) FLC 93-329
B Mahendra, “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
Division: Division 1 First Instance Number of paragraphs: 356 Date of hearing: 8, 9, 10, 15, 16, 17 & 18 May 2023 Place: Adelaide Counsel for the Applicant: Ms Betro Solicitor for the Applicant: Annells Lawyers Counsel for the Respondent: Mr Bowler Solicitor for the Respondent: Jordan & Fowler Family Lawyers Counsel for the Independent Children's Lawyer: Ms Lindsay Solicitor for the Independent Children's Lawyer: Ms Z ORDERS
ADC 4269 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KENNEDY
Applicant
AND: MR PEYTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
15 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.Ms Kennedy (“the mother”) do have sole parental responsibility for X born 2015 and Y born 2017 (collectively “the children”) provided that prior to making any decisions regarding the health and/or education of the children, the mother shall consult with Mr Peyton (“the father”) in order to reach consensus or mutual agreement but in the absence of agreement, the mother shall be able to make the final determination.
3.The mother be permitted to relocate the permanent place of residence of the children to a location either in City JJ, Victoria or approximately 200 radius of Town L (whichever is the greater) with the mother to provide the father with the address to which she will be relocating and the school at which X and Y will attend.
4.The children spend time with the father as follows:
(a)each alternate weekend from 12 noon on Saturday until 5.00 pm on Sunday;
(b)As and from 24 November 2023, each alternate weekend from 5.00 pm on Friday until 5.00 pm on Sunday;
(c)In the event that the children are not already in his care, then from 5.00 pm on the Saturday prior to Father’s Day until 5.00 pm on Father’s Day provided that if the children would be in the father’s care in accordance with the terms of this order on Mother’s Day then the children shall return to the mother’s care at 5.00 pm on the Saturday prior to Mother’s Day and remain in her care;
(d)From 12 noon 23 December 2023 until 4.00 pm on Christmas Eve 2023 and each alternate year thereafter provided that the children shall spend from 4.00 pm on Christmas Eve 2023 until 5.00 pm on Boxing Day 2023 and each alternate year thereafter with the mother;
(e)From 4.00 pm on Christmas Eve 2024 until 5.00 pm on Boxing Day 2024 and each alternate year thereafter provided that the children shall spend from 12 noon on 23 December 2024 until 4.00 pm on Christmas Eve 2024 and each alternate year thereafter with the mother;
(f)For the Christmas 2023/2024 school holidays, time spending in accordance with subparagraph (b) hereof shall continue save and except that such time spending shall conclude at 5.00 pm on Tuesday;
(g)For the July and September/October 2024 school holidays, time spending in accordance with subparagraph (b) shall continue save and except that such time spending shall conclude at 5.00 pm on Thursday;
(h)As and from Christmas 2024/2025, school holidays time spending in accordance with subparagraph (b) shall be suspended during school holidays and in lieu thereof in the April, July and September school holidays at times to be agreed in writing between the parties and failing agreement, from 5.00 pm on the last day of school term until 5.00 pm on the middle Saturday of such school holiday period and for the Christmas school holidays, for the first, third and fifth weeks of such school holidays (subject to any other time spending in accordance with the terms of these orders) from 5.00 pm on the Saturday until 5.00 pm on the following Sunday;
(i)For Easter 2024, from 9.00 am on Good Friday until 5.00 pm on Easter Saturday provided that the children shall spend from 5.00 pm on Easter Saturday until 5.00 pm on Easter Sunday 2024 and each alternate year thereafter with the mother;
(j)For Easter 2025, from 9.00 am on Good Friday until 5.00 pm on Easter Monday and each alternate year thereafter provided that the children shall spend from 9.00 am on Good Friday 2026 until 5.00 pm on Easter Saturday 2026 and each alternate year thereafter with the mother; and
(k)At such other times as may be agreed in writing between the parties.
5.Until Y attains the age of 9 years of age being 2026, all time spending between the children and the father shall be taken substantially in the presence of the following people:
(a)The paternal grandparents (or either of them);
(b)Mr KK;
(c)Ms HH;
(d)Mr LL;
(e)Ms MM; and
(f)Ms NN.
6.Upon overnight time commencing, the father shall ensure that he has appropriate sleeping arrangements for the children including separate beds for each child.
7.Handover as between the parties shall take place as agreed in writing and failing agreement as follows:
(a)In the event that the mother is residing at Town E and the father at Town L then at the GG Cafe, Town E;
(b)Upon the mother relocating, handover in one weekend and each alternate week thereafter shall take place with the mother delivering and collecting the children from the McDonald’s Restaurant closest to the father’s home or such other public location as may be agreed in writing between the parties from time to time and the next weekend, and each alternate weekend thereafter, shall take place with the father (or his supervisor) collecting and delivering the children to the McDonald’s Restaurant closest to the mother’s home, or such other public location as may be agreed in writing between the parties from time to time.
8.The parties shall facilitate X and/or Y telephoning and/or video calling the other parent at the request of the children or each of them when in his or her care with such phone/video calls being made to the mobile number nominated in accordance with the terms of this order unless otherwise agreed in writing between the parties.
9.The children shall telephone each parent and/or sibling on that person’s birthday, in the event that the children do not spend time with that person on their birthday.
10.Both parties shall keep each other informed in writing of their current residential address, mobile phone number and email address and advise in writing of any changes to same within 24 hours.
11.The parties shall communicate on all non-urgent issues regarding the care, welfare, development, health, education and extra-curricular activities and time spending arrangements for the children via an agreed Parenting App.
12.The mother shall authorise any school at which X and/or Y may attend from time to time to provide the father with access to school reports, school newsletters, school photographs and the ability to attend such school/functions to which caregivers are invited including assembly’s, school concerts, sports day and parent teacher interviews.
13.The mother will advise the father of information in respect of any medical specialist, General Practitioner, dental practitioner, allied health professional, psychologist or counsellor with whom X and/or Y may consult from time to time provided that any information sought by the father shall be at his sole expense.
14.Both parties shall ensure that the other parent is listed as an emergency contact at any school or extra-curricular activity at which the children or either of them may attend from time to time.
15.Both parties shall notify the other as soon as reasonably practicable of any serious illness or medical emergency effecting X and/or Y whilst in his or her care and in the event that X and/or Y are admitted in hospital, the name of the hospital and the treating doctor such that each of the parties are permitted to visit X and/or Y during any period of hospitalisation.
16.The father be restrained and an injunction is hereby granted restraining him from consuming alcohol for 12 hours prior to, or during, any period that the children are in his care.
17.The parties be restrained and an injunction granted restraining each of them from:
(a)Abusing, denigrating, belittling, rebuking or insulting the other in the presence of, or within the hearing of, the children or allowing any other person to do so;
(b)Permitting the children or either of them to read any document filed in, or produced for, use in these proceedings or allowing any other person to do so.
(c)Permitting the children to be left alone with Ms F; and
(d)Posting any information on any social media platform regarding these proceedings, any allegations made in these proceedings, the other parent’s family or allowing any other person to do so.
18.The appointment of the Independent Children’s Lawyer is discharged.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Ms Kennedy (“the mother”) and Mr Peyton (“the father”) are not able to reach agreement in respect of the future parenting arrangements for X born 2015 and Y born 2017 (collectively “the children”).
The parties met in 2013 and commenced a relationship in late 2013. The parties commenced cohabitation in 2014.
The mother had two children from a prior relationship namely, B born 2011 and C born 2012.
The parties separated on 5 September 2019. Whilst there were unhappy differences between them with their relationship becoming untenable, the catalyst for the final separation was the father’s admission that he had commenced a sexual relationship with Ms F. The father’s relationship with Ms F resulted in the birth of D born in 2020.
In mid-2020 the father had the care of the children and D at his home. They were playing in the lounge room and whilst not under strict supervision, the father heard D cry out in what he considered was a distressed manner.
A few days later, the father observed some light bruising on D’s chest which whilst becoming darker over the ensuing days, did not cause undue concern in either the father or Ms F.
The following week, Ms F took D to the doctor and the report from Ms F was that there did not appear to be any cause for concern. The father and Ms F both considered that D was happy, had a good appetite and did not appear to be in pain.
In late 2020, D was in the father’s care initially at his home and then at the home of Ms OO whilst she was working. The father was playing with D engaging in an activity whereby the father threw D in to the air to a height of about 50 centimetres. The father considers that he was careful, that D was caught and that there was no sudden impacts. Moreover the father considered that D’s demeanour was one of apparent enjoyment and his appetite was good with no apparent discomfort.
On the same day, the father says that there was bruising evident on D’s chest but without apparent discomfort or pain experienced by the child.
The father and Ms F took D to the City N Hospital for some scans and upon their attendance, they were met and subsequently interviewed by workers from the Department for Child Protection (“DCP”) and SAPOL officers. D was examined by Dr PP, a Child Protection Services (“CPS”) paediatrician in late 2020. The authorisation for a full forensic medical assessment of D was conducted under s 35 of the Children and Young People (safety) Act 2017 (SA).
D was diagnosed as presenting with multiple rib fractures and suspected fractures (four ribs and two lumbar vertebrae). The rib fractures were considered to be of differing ages comprising recent fractures, fractures that were healing and fractures of indeterminate age. He also presented with elevated liver enzymes consistent with liver trauma.
The nature, position, number and differing ages of the fractures were considered by CPS to be inconsistent with accidental or inadvertent injury. The implication, as will be discussed, is that a more plausible explanation is that the injuries sustained by D were deliberate.
A contention between the father, Ms F and DCP is the uncertainty as to who perpetrated D’s injuries.
On 8 September 2020, the mother filed an Initiating Application seeking orders that she have sole parental responsibility for the children, that they live with her and, in anticipation that the Court may determine that the children should spend supervised time with the father, the parties enrol in and be accepted into a supervised time program.
Following an interview in late 2020, DCP arranged for the children to spend one hour of supervised time with the father commencing October 2020.
The mother filed an Amended Initiating Application for final orders on 2 October 2020 seeking orders in the alternative depending upon whether a finding would ultimately be made that the father presents as an unacceptable risk of harm to the children.
In summary, the mother sought that she be permitted to relocate the residence of the children to City G and that the children spend supervised time with the father, if he was deemed to present as an unacceptable risk, but otherwise then the children should spend each alternate weekend and half school holidays with him.
The proceedings were transferred to the docket of Judge Brown and on 1 December 2020, his Honour made orders that the children live with the mother and that the father’s time with the children was to be at the written direction of DCP.
His Honour ordered the appointment of an Independent Children’s Lawyer (“ICL”) to represent the interests of the children and an order pursuant to s 91B of the Family Law Act 1975 (Cth) (“the Act”) inviting DCP to intervene in the proceedings.
On 16 February 2021, orders were made that during the period of the adjournment, the children spend time with the father subject to supervision at a Children’s Contact Centre.
It is notable that the orders provided for the children to maintain counselling with S Families for as long as may be recommended by their counsellor and that each of the parties were authorised to meet with, and obtain information from, the children’s counsellor subject to a discretion of the counsellor not to disclose if it was not considered to be in the children’s best interests.
On 22 June 2021, Ms C Peyton and Mr B Peyton (“the paternal grandparents”) were granted leave to be joined in the proceedings.
On 19 May 2021, all previous parenting orders were discharged and orders were made for the children to continue living with the mother and spend supervised time with the father at a Children’s Contact Centre.
DCP indicated that they did not intend to intervene in the proceedings and that they had closed their investigation in respect of the injuries sustained by D. Consequent upon Ms U preparing a Family Assessment Report dated 27 September 2021, on 13 October 2021 Judge Brown made the following orders:
1. That all previous parenting orders be discharged.
2. That [the children] live with the mother.
3. That the father do spend time with [the children] as follows:-
(a)Commencing Sunday 24 October 2021, from 12.00pm until 5.00pm and on two out of every three weekends thereafter;
(b) From the conclusion of school on 22 February 2022 until 5.30pm;
(c) From the conclusion of school on 17 June 2022 until 5.30pm;
(d)At such other times and places as may be agreed in writing between the parents.
4.That the father's time spending in accordance with paragraph 3 hereof shall be supervised at all times by the paternal grandparents or either of them.
Both the father and the paternal grandparents were vocal in promoting that the father’s time with the children should not be supervised. On 28 July 2022, orders were made by consent summarised as follows:-
(1)That paragraphs 1, 2, 3, 4, 8, 9, 10 and 11 of the orders made on 12 April 2022 do continue.
(2)That paragraphs 5, 6 and 7 of the orders made on 12 April 2022 be dismissed.
(3)That in the event that either of the paternal grandparents are not available to supervise the children’s time with the father, then he is at liberty to have his sister, Ms HH, and/or her husband, Mr KK, supervise such visits subject to their confirmation that they have read the pamphlet information prepared by the Legal Services Commission on the role of a supervisor, that they fully understand their obligations as supervisors and that they not discuss any matter as to the father’s care of D in the presence of the children other than in terms specifically detailed in the “narrative” attached to the orders.
The consequence of the consent order is that the children were to live with the mother and spend time with the father supervised by the paternal grandparents.
The reference to the agreed or approved “narrative” is set out as an attachment to the order and is designed to bind the parties, and presumably a supervisor, to a predetermined narrative or response should the children ask a question as follows:-
·Phrase to be used if the girls ask a question that may be out of the scope of the narrative.
·What Happened to D?
·If it was an accident does that mean we will get taken away if we get accidentally hurt at home?
·Why can’t D live with us? (Ms Kennedy and the kids)
·Does Dad get to see D?
·Will D call Ms QQ and Mr RR and Dad?
·Who hurt D?
·Why would people say we hurt D?
·Will D ever come back to Dad or Ms F?
·Secrets and Surprises.
·Why can we go back to Dads but D can’t?
·Things not to be mentioned to the girls.
It is difficult to understand the basis upon which it could have been expected that compliance with the “narrative” was either appropriate or able to be enforced.
Following a transfer of the proceedings to the Federal Circuit and Family Court of Australia Division 1 (“Div 1”), orders were made on 13 January 2023 listing all applications for final hearing before Justice Mead to commence on 8 May 2023.
On 13 April 2023, the mother filed a Further Further Amended Initiating Application seeking orders summarised as follows:-
(1)That the mother have sole parental responsibility and the children live with the mother.
(2)That the mother be permitted to relocate the permanent residence of the children to City G, Victoria on or before 31 January 2024.
(3)That if the Court finds that the father poses an unacceptable risk to the children then;
(a)The father do spend time with the children from 9.00am to 5.00pm each alternate Sunday with his time to be supervised at all times by either the paternal grandparents, Mr KK and/or Ms HH until Y shall turn 12 years of age from which time supervision will no longer be required.
(4)If the Court finds that the father does not pose an unacceptable risk to the children, then the children will spend time with the father as follows:
(a)Each alternate Sunday from 9.00am to 5.00pm for a three month period supervised at all times by the paternal grandparents or either of them, Mr KK and/or Ms HH.
(b)Thereafter, each alternate Saturday and Sunday from 9.00 am to 5.00 pm, on each day, supervised at all times by the paternal grandparents or either of them, Mr KK and/or Ms HH until such time as Y is engaged with a psychologist as agreed between the parties in writing and that psychologist recommends that overnight time may commence.
(c)Thereafter, from each alternate Saturday at 9.00 am to Sunday at 5.00 pm with time to be supervised by the paternal grandparents or either of them, Mr KK and/or Ms HH between 5.00 pm and 8.00 pm on each day.
(d)As and from June 2024, from each alternate Friday at 5.00 pm until Sunday at 5.00 pm with time to be supervised by the paternal grandparents or either of them, Mr KK and/or Ms HH between 5.00 pm and 8.00 pm on each day until Y turn eight years old from which date time spending shall be unsupervised.
The proposed orders dealt with special occasions including Mother’s Day, Father’s Day, Easter and the Christmas period.
The father filed a Further Amended Response to Initiating Application on 5 May 2023 seeking orders summarised as follows:-
(1)That the parties do each have equal shared parental responsibility for the children
(2)As from 16 December 2023, the mother be at liberty to relocate the permanent place of residence of the children to anywhere within a 150 kilometres distance by road of Town L in the State of South Australia subject to providing the father with 30 days' notice of her intention to relocate and the address to which she will relocate the children.
(3)That the mother is restrained and an injunction is granted restraining her from changing the permanent place of residence of the children outside of the distance of Town L without the prior written consent of the father and from enrolling the children in any school outside of the distance of Town L without the father’s consent.
(4)That the children live with the mother.
(5)That the children spend time with the father as follows:
(a)During the first eight weeks from the date of this Order, each alternate weekend from 3:00 pm on Saturday until 5:00 pm on Sunday; then
(b)During the following eight weeks, each alternate weekend from 10:00 am on Saturday until 5:00 pm on Sunday; then
(c)During the following eight weeks, each alternate weekend from the conclusion of school on Friday (or 3:00 pm if a non-school day) until 5:00 pm on Sunday; then
(d)During the following sixteen weeks, each alternate week from the conclusion of school on Friday (or 3.00 pm if a non-school day) until the commencement of school on Monday (or 9:00 am if a non-school day); then
(e)During the following sixteen weeks, each alternate week from the conclusion of school on Thursday (or 3:00 pm if a non-school day) until the commencement of school on Monday (or 9:00 am if a non-school day); then
(f)Thereafter:
(i)In the event the children are residing with the mother within 80 kilometres by road of Town L, then each alternate weekend from the conclusion of school on Thursday (or 3:00 pm if a non-school day) until the commencement of school on Monday (or 9:00 am if a non-school day) and on the intervening Thursday from the conclusion of school (or 3:30 pm if a non-school day) until the commencement of school on Friday (or 9:00 am if a non-school day); and
(ii)In the event the children are residing with the mother between 80 kilometres and 150 kilometres by road of Town L, then each alternate week from the conclusion of school on Wednesday (or 3:00 pm if a non-school day) until the commencement of school on Monday (or 9:00 am if a non-school day).
The orders also contemplate that during the September 2023 school holiday period, the children’s time with the father shall be extended for a period of 48 hours and should the mother reside with the children either within 80 kilometres or further than 80 kilometres, but less than 150 kilometres from Town L, then the children will spend time with the father during school holidays each alternate week from Wednesday at 3.00 pm until the following Wednesday at 3.00 pm.
To the extent that supervision may be required, the father proposes that in addition to his parents, his sister and brother-in-law Mr LL, Ms MM and Ms NN should supplement the list of proposed supervisors.
It is not suggested by the mother that the father presents as an unacceptable risk to the children arising out of any direct threat, action or behaviour of him towards the children but rather whether the circumstances surrounding the manner in which D sustained grievous injuries could result in a finding that the father presents as an unacceptable risk to the children.
DOCUMENTS RELIED UPON
The mother relies upon the following documents:
(1)Further Further Amended Initiating Application filed 13 April 2023.
(2)Trial Affidavit of mother filed 13 April 2023.
(3)Outline of Case document filed 7 May 2023.
(4)Financial Statement filed 13 April 2023.
The father relies upon the following documents:
(1)Further Amended Response to Initiating Application filed 5 May 2023.
(2)Trial Affidavit of father filed 3 May 2023.
(3)Outline of Case filed 5 May 2023.
Documents relied upon by the ICL:
(1)Case Summary document and Chronology filed 15 May 2023.
(2)Amended draft proposed order tendered 17 May 2023.
(3)Family Assessment Report dated 5 April 2023.
ORDERS SOUGHT BY EACH OF THE PARTIES AND THE ICL
As discussed, the mother seeks sole parental responsibility for the children and that they live with her.
The mother previously sought that she be permitted to relocate the children to City G which is about 300 kilometres from Town L. The mother now seeks that she be permitted to relocate the residence of the children to a location within 200 kilometres radius of Town L, the intention that whilst City G is now considered to be too far from Town L, her intention is to take up residence in either City JJ or City SS.
The mother proposes that as and from 26 August 2023, the children spend time with the father from 9.00 am Saturday until 5.00 pm Sunday and as and from 5 November 2023, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday.
The mother provides various alternatives depending upon whether the parties are living in different towns or may reside in the same town. As and from April 2025, the mother’s proposal is that the children will spend one half of short and long Christmas school holiday periods with the father.
The mother proposes that supervision of the father’s time would cease as and from 5 November 2023.
The orders sought by the mother are notable for the omission of orders sought if the Court were to find that the father presents as an unacceptable risk.
The father seeks orders for equal shared parental responsibility for the children and whilst he concedes that the children should remain in the mother’s primary care, he does not consent to the relocation of the children to a distance further than 150 kilometres by road from Town L.
The basis for the orders sought by the father is that if the children were at a distance greater than 150 kilometres by road, he concedes that it would not be practicable given that he seeks the children spend each alternate weekend with him from the conclusion of school on Wednesday (or 3.00pm if a non-school day) until the commencement of school on Monday (or 9.00am if a non-school day).
The father argues that the agreement between the parties as set out in a Parenting Plan dated 3 June 2020 enabled him to spend significant time with the children resulting in the development and maintenance of a meaningful relationship with them.
The circumstances changed following D being admitted to hospital as a result of suffering significant injuries.
The father considers the requirement that his time with the children be supervised is unnecessary given that the observations of Ms U would support a finding that he has a close emotional attachment with the children.
The father also considers that the mother has prevailed on DCP to interfere with the father’s relationship with the children with a view to either having the father’s time with the children stopped or so significantly restricted that it would enable her to relocate beyond 150 kilometres, as promoted by the father.
The father considers that the mother has no good reason to relocate the children other than as part of a strategy to disrupt their relationship with the father. It is a reasonable overview of the father’s position that the grievous injuries sustained by D should be compartmentalised such that D’s circumstances do not impact on the Court’s consideration of the separate proposals of the parties and the advantages and disadvantages to the children.
The orders sought by the ICL are set out in an amended draft proposed order tendered on 17 May 2023.
The ICL supports an order that the mother have sole parental responsibility for the children and that the children live with her and spend time with the father as follows:
1.On such terms and on such conditions (including supervision) as may be agreed between the parties evidenced in writing or is ordered by this Honourable Court.
The orders proposed by the ICL are prefaced by the following notation:
A.That having heard the evidence of the Family Report Writer Ms U given 16 May 2023, the ICL considers they cannot be satisfied that there is [a] way to sufficiently address the risk of psychological or emotional harm being occasioned to the children or either of them during time spending by the father.
A difficulty with the time spending orders sought by the ICL is that it ignores the poor relationship that currently exists between the parties and the likelihood that if agreement is not able to be reached as to the parenting arrangements for the children then further litigation is likely.
The ICL relies upon a document which sets out the chronology of events that reference “unacceptable risk” dated 15 May 2023.
The orders sought by the ICL represent a significant change from an earlier position which was that until Y attains the age of 10 in 2027, the father’s time should be limited to two consecutive Sundays out of three from 9.00 am to 5.00 pm but that the time shall occur substantially in the presence of either the paternal grandparents, the father’s sister and/or brother in law or such other person as may be agreed between the parties in writing.
BACKGROUND
The mother and the children together with B, aged 12, and C, aged 11, live in Town E. The mother seeks to relocate her four children to either City JJ which is her preferred destination or City SS which is a little closer to Town L.
The mother is currently employed in hospitality.
The father is supported by the paternal grandparents in Town L. The father is employed in a managerial role with a franchise.
Neither of the parties are currently in a relationship however it appears that the father may maintain a friendly relationship with D’s mother, Ms F.
As considered, D was the subject of an order made in the Youth Court in late 2021 which has resulted in him being under the Guardianship of the Minister and is now in a foster, or other care, arrangement.
There is no evidence that the intention of the Minister is to seek to return D to either Ms F, the father or the paternal grandparents who are the subject of a failed application to become D’s kinship carers.
There was some suggestion that the paternal grandparents were considering further litigation in respect of D.
It appears that neither Ms F nor the father spend time with D however the mother has made arrangements for the children to see D.
Both children are currently enrolled at Town E School. There does not appear to be any significant developmental issues that impact upon the children although there is evidence that suggests Y may be more affected by what has happened to D than X.
The paternal grandparents were parties to the current proceedings however prior to trial on 17 April 2023, they filed a Notice of Discontinuance.
It is not controversial that the paternal grandparents are supportive of the father, will continue to supervise his time with the children when they are not living in Adelaide and do not accept that the father had any responsibility in respect of the injuries occasioned to D.
It is a stark feature of the proceedings that neither of the parties but in particular the father, produced evidence that would assist the Court in determining or identifying the perpetrator or those responsible for the injuries that D sustained.
TREATMENT OF EVIDENCE
At the commencement of the trial I highlighted the provisions of Division 12A of the Act and in particular, whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Neither party, nor the ICL spoke against the application of the provisions of s 69ZT of the Act.
I consider that the principles of s 69ZN of the Act will be better served by receiving the evidence of each of the parties relied upon, but exercising my discretion under s 69ZT(3) of the Act as to the weight which will be given to the evidence, particularly, if it is contentious.
THE EVIDENCE
The mother
In evidence, the mother conceded that she is unsure as to whether the father deliberately inflicted injuries to D.
The mother accepted that contrary to the content of paragraphs 124 and 125 of her trial affidavit, she does not now think that the father would hurt the children.
At paragraph 124 of the mother’s trial affidavit, the mother considered that the information from DCP as to the extent and nature of the injuries sustained by D “was devastating and terrifying”. The following appears at paragraph 127 to 129 inclusive:
127.I have been terrified at times of sending [the children] to spend time with [the father] as I kept thinking about all of those terrible injuries suffered by [D] while in the care of his mother and [the father]. I have held grave concerns about sending the children to spend time with a person who may have severely injured a defenceless baby, or did not do anything to protect his child who was being abused by another person. I have also been afraid because DCP have repeatedly emphasised to me in their communications with me the need to be very protective of [the children], due to their opinion that [the father] represents an unacceptable risk. This has left me afraid that if I do not do what they want, my children may be removed from my care. The file relating to [the children] has been closed by DCP as they were satisfied at the time that I was being protective. I refer to the letter from DCP dated September 2021, Document 19 in my Tender Book.
128.The children may be at risk of physical harm in the father's care and are at risk of emotional harm to the children (sic). The risk of emotional harm relates to the father attempting to blame one of them for [D's] injuries. The father and the paternal grandparents maintain a very hostile attitude towards me.
129.[The father] tells me that it is my fault for causing an atmosphere of "danger and anxiety". This is caused by what happened to [D].
The paragraphs as quoted provide the foundation for the thrust of the father’s assertion that the mother engaged with DCP not because she held any genuine or real concern for the safety of the children but rather to use the investigation of D’s injuries and his removal from the father’s care as a strategy to minimise and restrict the father’s relationship with the children.
The mother was referred to an email dated March 2022 sent to Ms Q, a case worker for DCP. The tenor of the email is to enquire as to whether a decision has been made by DCP to formally intervene in the proceedings.
The timing of the email is of some relevance in that it was sent in anticipation of a further court hearing on 18 March 2022 at which time the mother considered that the father would seek increased time with the children and potentially an application for supervision to cease. The email should also be seen in the context of the criminal charges in respect of D’s injuries being discontinued.
The email also advised DCP that the mother had withheld the children from spending time with the father. The mother agreed that it was her decision to do so, although she continued to offer video calls on a weekly basis as a compromise.
When pressed, the mother provided the following explanation:-
[Counsel]:Right. And why only if the girls requested? Why not just in accordance with the order that had been made?
[Mother]:The toll that it has taken on [Y] in particular, surrounding video calls and after visitation, she gets extremely angry; she has physically hurt her sister by grabbing her by the neck and trying to strangle her. She has hit her sister on several occasions and caused – you know, and hit myself as well, and the other children. And she gets very very angry after calls. It’s very distressing. She has sleep regression after video calls and after visits. So that was what I was referring to.[1]
[1] Transcript 9 May 2023, p.5 line 38 to p.5 line 45.
It appears that the parties were able to maintain, at least in part, a relationship that enabled agreement to be reached for the children, but in particular Y, to receive some therapeutic intervention.
The mother conceded that whilst X was prepared to continue having video calls with the father, as a consequence of Y’s aggression and at times refusal to participate, the mother considered that the friction caused to the sibling relationship was not ideal and as such, the video calls were terminated.
The parties were able to agree to seek the assistance of a co-parenting counsellor however, the Court proceedings and in particular, a dispute as to whether the counselling would be reportable, proved difficult to navigate.
The mother was challenged as to her concern that the paternal grandparents were not diligent in their supervision of the children’s time with the father.
The DCP investigation considered a number of issues as to the adequacy of the supervision of the father’s time but it appears that the parties accepted that Y exhibited a level of oppositional behaviour that manifested as severe distress at handover.
The issue of a joint agreement that Y might benefit from some therapeutic intervention is adequately encapsulated in Ms U’s Family Assessment Report dated 3 April 2023 which says:
115.It would be useful for the parties and [Y] to engage with an independent therapist so that [Y] has an independent professional who can support her to distinguish between her own experience and that of her primary parent, who can help her understand and integrate [D’s] experience as being different from her own and who can also support both parties (as the therapist sees fit via involving them either in joint sessions with [Y], or solo with the therapist) in assisting [Y] with these complex and difficult emotional tasks.
The father’s counsel conceded that the orders sought as to therapeutic intervention for Y arise in respect of the matters raised by Ms U and the impact of Y’s understanding of what happened to D impacting adversely on her relationship with the father.
The mother was referred to communication between the parties concerning the mother’s intention that Y be taken to the hospital for medical assistance and possible treatment arising from an earache. The issue was put to the mother on the basis that it could be seen as civil communication between the parties concerning the medical needs of the children but in this case, Y.
The mother did not agree that the exchange was benign as exemplified by the following exchange:
[Counsel]:And do you agree that this communication between you and [the father] is civil and polite?
[Mother]:No, I don’t. Because we actually had an incident with this where it meant that I felt I could not take our daughter to get medical help for her earache.
[Counsel]: With the doctor of your choice?
[Mother]:The doctor was not of my choice. This is the doctor – so this document’s referring to an incident that happened [in] September.
[Counsel]:Right?
[Mother]: So [Y] who has been – actually just had grommets and tonsils and adenoids removed, so there was an issue, and this day she woke up and she had an extremely sore ear and I wanted to take her to the hospital. Because it was a Sunday, [the father] had a visitation that day, I wanted to get her medical help, so I messaged [the father] to let him know I had rung the hospital; [Dr UU] was on duty. [The father] had made it very very clear in the past that the children were not to see [Dr UU].[2]
[2] Transcript 9 May 2023, p.17 line 15 to p.17 line 27.
The mother’s evidence was that Dr UU was the only doctor on duty at the AC Hospital and there was no other option other than an hour and a half trip to City N Medical Centre. The father’s objection arose from Dr UU being the first doctor to have assessed D.
I raised with the father’s counsel whether the concern related to the possible involvement of Dr UU with the children or whether there was some other issue of concern raised by the father.
Counsel conceded that the orders in place at the time did not prevent the mother from taking the children to see Dr UU in particular or any other medical practitioner in general. In summary, counsel conceded that the orders did not require consent of the father as to the identity of any proposed medical practitioner.
It appears that the mother and possibly the father were under a fundamental misunderstanding that agreement was required as to the identity of any treating health professional.
A distillation of the exchange between the father’s counsel, the mother and I, suggests that the father’s opposition to Dr UU arose from his involvement with D.
The mother was asked to provide an explanation as to why an order should be made that she have sole parental responsibility for the children. The mother’s response brought to account the extent of the disagreement between the parties on a number of issues but in particular, the medical needs of the children where it appears that the father’s preparedness to agree may be influenced by his concern of the medical practitioner’s involvement in D’s diagnosis.
In addition, the mother expressed her concern that the injuries sustained by D reflect adversely on the father’s parenting capacity.
The mother gave evidence that she initially had direct contact with D’s case manager to put in place an arrangement for the children to visit D.
The visits commenced under supervision in 2021 but over time DCP did not seek to further supervise the children’s time with D and the arrangements for visitation were made directly between the mother and D’s foster mother. The children spend time with D once or twice in each sixth month period. A visit was arranged in the week following the trial.
The mother was asked to reflect upon her concession in paragraph 124 of her trial affidavit that said “I have never alleged, and do not now allege, that [Mr Peyton] has ever physically abused or hurt [the children], or even [B] or [C]” and what further appears at paragraph 127 of her trial affidavit as follows:-
I have been terrified at times of sending [the children] to spend time with [the father] as I kept thinking about all of those terrible injuries suffered by [D] while in the care of [Ms F] and [the father].
The mother agreed with the proposition put by counsel that the children had never been at risk or harmed by the father but considered that the injuries sustained by D raised a real concern that the children may be at risk of physical and emotional harm if in the extended and unsupervised care of the father.
The father’s counsel challenged the mother’s contention at paragraph 128 of her trial affidavit that the foundation for her contention that the father presented as a risk of emotional harm related to the father attempting to blame one of the children for D’s injuries.
It was put to the mother that the father had never attempted to blame either of the children but in particular, Y, other than an allegation that the injuries sustained by D may have been because she may have dropped a speaker on him.
For completeness, I set out paragraphs 66 to 68 inclusive of the father’s trial affidavit:
66.[In] August 2020 I was at home with the children and [D]. I went to the kitchen and left the children playing in the lounge room. They had mattresses out on the floor of the loungeroom (sic). I heard [D] start crying in a distressed manner. I went back into the lounge room. I asked the children what happened and [Y] told me she had dropped something on [D]. I picked [D] up and he quickly settled down and stopped crying. I gave him a bottle of milk and he seemed fine. I thought little more of it and [D] again played with the children. After a few days there was some very light bruising on [D's] chest.
67.[A week later] the bruising on [D's] chest became darker. It was not severe, but enough to cause us concern. The only explanation I could think of was the incident above a week earlier and I just assumed that was the cause.
68.The children were in my care and I delicately asked them again what happened with [D] that day. I told [Y] that she was not in trouble. [Y] told me that she dropped the portable speaker on him. The speaker is a cylindrical speaker that I understand weighs 2.2kg.
The mother was asked whether she conceded that the father did not blame Y for the substantial injuries suffered by D. That drew an objection from the mother’s counsel on the basis that it was not a proper question for the mother to answer. The exchange raised the issue of whether the father’s reference to a belief that Y may have dropped a speaker on D was merely a historical narrative or whether it was put forward as an explanation, at least in part, for the injuries sustained.
The father’s counsel voiced his understanding of the father’s position in the following exchange:-
[His Honour]: What does your client say – but your client in his affidavit doesn’t draw a distinction, does he? He doesn’t say I now understand the nature of the injuries occasioned to [D]. Some of them might be explained by the matters – the speaker that [Y] told me about but the others are not.
[Counsel]:But, your Honour, it’s implicit, surely, that this child could not have suffered 30-odd rib fractures from having a cylinder…[3]
[3] Transcript 9 May 2023 p.39 line 21 to p.39 line 27.
The father’s counsel conceded that whilst the dropping of the speaker may provide an explanation for an injury, it certainly does not provide an explanation for the suite of injuries sustained by D.
Counsel asked the mother whether she was suggesting or alleging that the father was blaming the children for all of the significant injuries suffered by D. The mother’s response was a concession that some of the injuries were being attributed to Y dropping the speaker but not all of the injuries.
The orders sought by the mother are that whilst her initial preference was to relocate with the children to City G, given that it was 300 kilometres from Town L, she has now focussed on either City SS which is more than 150 kilometres from Town L or preferably City JJ which is approximately 200 kilometres.
City SS and City JJ are significantly larger towns than Town E or Town L. It is the mother’s contention that there is a greater employment opportunity and given that they are larger population centres, the schools have the option of after school or out of school hour’s care.
The mother agreed that the children know that D sustained injuries. The mother did not know whether they believed that the injuries were deliberately inflicted.
The issue of the state of the children’s knowledge of what had occurred to D coalesced in the development of a document described as “the narrative” which was intended to direct and inform the parties as to how they should answer the children’s questions concerning the status of D, why he was not part of the father’s household and how he sustained significant injuries.
Whilst the “narrative” document appears to have been the subject of agreement between the parties, it is not clear from the mother’s perspective whether the “narrative” was intended to be protective of the children or to preserve the father’s position that he was not responsible for the injuries sustained.
The mother’s attention was directed to her assertion that the father had acted in a manner consistent with family violence. In particular, at paragraph 32 of the father’s trial affidavit, he refers to paragraph 40 of the mother’s affidavit filed 8 September 2020 where the mother asserted that the father threw a bottle at her head and said words to the effect of “it should have fucking hit you” and at paragraph 55 of the mother’s trial affidavit which referred to the same incident in the following terms:
… . [The father] became aggressive and threw a bottle at my head and then squirted water in my face and said "you're lucky I didn't hit you in the fucking head”. …
The mother did not resile from her affidavit evidence that the father’s actions in throwing a bottle at her head and then squirting water in her face was other than deliberate.
The mother was challenged as to why she no longer supported relocation to City N given that in an Application made on 30 August 2021, the preferred relocation destination was Brisbane with the further alternatives of City G and then City N.
The basis for counsel’s questioning of the mother is that the father would readily accept City N as a preferred and acceptable relocation destination.
The mother’s response, whilst lengthy, is a relevant indicator of the extent of the mother’s insight as to the potential predicament of the children in circumstances where D’s injuries are not explained. The following appears in the transcript:-
[Counsel]:So potentially, your children will spend time with [D], obviously in your company, and in the company of their foster parents?
[Mother]: Yes.
[Counsel]:What is the problem, if you live in [City N], with the children running into [D] and his foster parents in the street, for example?
[Mother]:The dispute that [the father] and I currently have is in how the foster family are viewed towards the children, so – which is a part of our narrative that we currently have a disagreement on, is that [the children] view their foster – [D’s] foster family as a very significant and special part of their lives, with [Y] even adding the foster family to her family tree this year. I have received messages for [the father] for to say that they are not to be viewed as a special part or significant part of the children’s lives. The supporting relationship between [the father] and the girls’ relationship with the foster family is not there, which is high concern for me. If we were to relocate to [City N] and potentially go to the same school, my concern is how the children are going to be able to have that relationship that’s open and loving towards [D’s] foster sister, and [D], with [the father] being able to attend events, and how that’s going to impact on [D’s] life ongoing. The potential for all of these children to be in the one area is not – it’s not plausible. It’s something that [the father] and I disagree on, how this relationship is fostered. It’s something that I – I struggle with a lot, because I want to give the kids that loving and support their relationship with [D’s] foster family, and that is something that I’m not getting from [the father] and his support with the children, which is going to be detrimental, and possibly detrimental to their wellbeing and emotional wellbeing moving forward, if we can’t get that love and support that they feel, and knowing that [D] is loved in their care. There is also [Town E] families who are currently residing in [City N] that have moved.
[Counsel]: Which family, sorry?
[Mother]: The [WW] family, in particular.
[Counsel]: Who are the [WW] family?
[Mother]:They’ve moved from [Town E] to – to [City N]. They currently reside in [City N], with their children attending two of the schools. They’ve got four children. Two attend one school, two attend another. They are privy to the allegations that are currently before the court with [D’s] injuries and how that happened, and that is something that has been raised by the family directly. I don’t – the idea is a fresh start for the children. The idea is having them being able to actually have an open life and being able to live in a town where they don’t have the allegations we currently have in [Town E] in front of them, and that would not be able to be possible with them living in [City N] and having their foster brother put in front of them – sorry, their brother put in front of them with their foster – his foster sister. There’s – it’s not going to be a possibility that there is going to be able to be an open and happy life. The – the potential for it to all break down is – and I don’t want to move them again. It’s too – it’s too big a risk.[4]
[4] Transcript 9 May 2023, p.62 line 46 to p.63 line 38.
The mother was referred to the report of Ms U which attributes to the mother, an acknowledgment that X enjoys spending time with the father but retained a concern that Y may have been experiencing emotional distress and anxiety around who visits.
The concern of the mother as to Y’s distressed presentation is the catalyst for the mother seeking that Y should obtain assistance from a counsellor or psychologist so that she would be able to see her father absent the negative reactions and emotional trauma. The mother explained the basis for the emotional trauma experienced by the children as follows:
[Mother]:They were in the presence of – in the detectives when they were essentially removed by myself when I dropped them off […], they overheard – to their father’s house, that was on Father’s Day – they have asserted they’ve overheard that [D] was in hospital that day from the conversation that happened. The children have been through a lot with the removal of their brother. They have had him in foster care for the last two-and-a-half years. They’ve been in and out of the Department contact centres, they’ve been interviewed by [medical professionals], they’ve been interviewed by the department. There is a lot of emotional toll that that has taken on two little girls for the last two-and-a-half years.[5]
[5] Transcript 9 May 2023 p.77 line 19 to p.77 line 28.
After the conclusion of the mother’s evidence, counsel agreed that the following documents from the mother’s tender book would be read in to evidence without the need for the author to be called:
(1)Child Protection Service Assessment Report January 2021 (page 239 to 247).
(2)Child Protection Service Assessment Report dated March 2021 (Exhibit 2).
(3)Department of Child Protection Reports to FCFCOA February 2002 to February 2021 (page 115 to 142).
(4)Medical Report of Dr PP April 2021 (page 143 to 194).
(5)Department for Child Protection letter re: Closing the file for X and Y September 2023 (page 195 to 196).
The mother’s counsel tendered the following documents without objection:
(1)Exhibit 2 – CPS Report dated January 2021.
(2)Exhibit 3 – DCP Report to Judge Brown dated February 2021.
(3)Exhibit 4 – CPS Assessment Report date March 2021.
(4)Exhibit 5 – Medical Report D dated April 2021.
(5)Exhibit 6 – DCP Letter dated September 2021.
(6)Exhibit 7 – DCP Report to Judge Brown dated February 2022.
(7)Exhibit 8 – Children’s Safety Plan document.
The mother presented as a credible witness. I do not find that the mother engaged in a deliberate strategy to seek the intervention of DCP nor do I find that the mother intended to disrupt and or sever the father’s relationship with the children. The more surprising aspect of the mother’s evidence was her preparedness to support the children having a relationship with the father and to consider that she was obliged to reach agreement with him as to matters relating to their medical health and treatment.
The father
The father continues to reside at Town L and is a manager. His employment takes him to various sites in South Australia and he is away from his home for two nights per fortnight. He is not required to work on weekends.
The father considered that the children would not be overly concerned or disadvantaged by his proposal and that provided the mother did not relocate further than 150 kilometres from Town L, then he would be able to take the children to school.
The father was taken to text message exchanges between the parties but in particular, the exchange of messages on 23 April 2019 (“Exhibit 9”).
The father admitted the following exchange:
[Father]:You are a stupid bitch with zero emotional intelligence.
[Father]: You just fucking push and push and push.
[Mother]:Don’t come back in here and do that in front of the kids, And please not threaten me.
[Father]:You said it was alright and then agreed to the situation and the. Started fucking whinging again!!!!! It’s all you do is fucking whinge.
[Father]:Pull your head out of your own arse [Ms Kennedy].
[Mother]: Yes ok just go away.
[Father]: No you go away!
[Mother]: Don’t come near me please [Mr Peyton].
[Father]: Take your shit and fuck off.
[Mother]: I have an asleep baby and 3 kids who are very worried.
[Father]:Leave the kids stuff and take the rest and fuck off and never come back!!!!
[Mother]: Wow.
[Father]: Then you can have dinner with [Mr TT] whenever the fuck you want.
[Father]: You’re a shot partner.
[Father]:Shit.
(As per original)
The father also conceded that at times, he exhibited angry outbursts resulting in property being damaged including, the smashing of a television by throwing it off a second story balcony and smashing a mobile telephone on two occasions.
The relationship was marred by various violent incidents. In mid-2019, the father agreed that following an argument, the mother took the keys to the car intending to leave. The father followed her outside, tried to open the door and then when unsuccessful, kicked the car but possibly the tyre in frustration.
In late 2019, the mother confronted the father concerning an affair with Ms F. The father admitted that he was the father of D. Following separation, the father went into a rehabilitation facility and sought the assistance of a psychologist in respect of his aggression, propensity for angry outbursts and excess use of alcohol.
Exhibit “10” is comprised of a parenting plan following Family Dispute Resolution Conference in May and June 2020. The parenting plan was comprehensive and provided for the children to spend approximately three nights per week with the father.
It seems that the arrangement between the parties was workable until the mother became aware of the injuries sustained by D.
The father did not resile from the content of paragraphs 65 to 76 of his trial affidavit. In particular, the only observation made by the father that could have had any connection with D’s injuries is the purported conversation with Y in mid-2020 that she had dropped a cylindrical speaker weighing approximately 2.2 kilograms on D.
The father confirmed that other than the report from Y, he did not have any other knowledge that would explain the injuries sustained by D.
The father was asked to consider the remarks of Ms Q, a DCP worker, in a report dated February 2021 (Exhibit “3”) and the report from Ms M to Judge Brown, summarising the position of DCP, dated February 2022 (Exhibit “7”).
An issue had been raised by the mother that the paternal grandparents were not diligent in their obligation to strictly supervise the father’s time with the children.
The Department considered the appropriateness of the paternal grandparents to supervise contact and in Exhibit “3” at page 14 the following appears:-
Appropriateness of Paternal Grandparents to Supervise Contact
The department have considered the suitability of the paternal grandparents [Ms C Peyton] and [Mr B Peyton], as protective supervisors/observers of contact arrangements for [the children] with [the father] and have formed the opinion that they are not appropriate, would not be able to ensure [the children]’s safety and pose a risk of emotional harm to [the children].
The paternal grandparents, in their correspondence (both verbal and written), with the department have not demonstrated any acceptance or acknowledgement of the seriousness of the concerns held about [D's] experiences; raising very significant worries about their ability to act as a safeguard to protect [the children] from experiencing similar harm if given the responsibility for their safety. The paternal grandparents have been strong advocates for [the father] and [D's] mother; exerting very strongly their opinion that [D] has not been harmed, would not be at risk of harm and should be returned immediately to their care. The paternal grandparents' attitude, insight and view is extremely worrying given the severity of [D's] injuries and the level of inflicted excessive force that was required to cause those injuries as opined by the forensic paediatrician in their interim report dated 13/01/21. The paternal grandparents have failed to acknowledge [D's] vulnerability, the implication of that experience for him or to demonstrate any empathy and concern for what he has experienced. It is apparent that their focus and priority is [the father]’s welfare and interests, which raises serious concerns for the department about their ability to recognise, protect or prioritise the children, including [D], [X] and [Y], given their willingness to justify and accept what [D] has endured. It is the department's view that whilst the paternal grandparents remain aligned to [the father] as their priority that they cannot be relied upon as a source of protection or support for the children.
In a similar presentation, following a meeting between the father and DCP in January 2022, the following summary appears on page 9 of Exhibit “7”:-
During this meeting, the Department held concerns for [the father]’s insight into the concerns held for [the children]. Initially at the start of this meeting, [the father] attempted to convey an understanding of the concerns; acknowledging the role the Department had in investigating the concerns, empathising with the children, and highlighting the research he had done to support the children. As the meeting progressed, [the father] became more minimising of the concerns throughout the interaction asserting that the concerns were false and malicious. The Department also held concerns for the coercive control [the father] appeared to exert throughout this meeting in an effort to influence the Department. For example, [the father] raised concerns about [the mother] supporting [the children] attend their counselling sessions. [The father] commented that he didn't think [Y] was getting enough regular support with her emotions and he emphasised the work he was completing with [Ms YY] from [S Families] to increase the communication between all parties. [The father] was not openly denigrating of [the mother] in this meeting; he rather used suggestive comments to raise doubt about her parenting ability and emphasise the work he was doing. [The father] conveyed a willingness to work cooperatively with the Department in order for a thorough assessment of the concerns to be undertaken and accepted that the concerns held had merit and that further investigation, intervention and assessment was required.
The father confirmed his previously stated position of wanting D returned to his care as soon as possible.
The father did not accept that the extent of D’s injuries should represent a barrier to D’s transition from his current foster placement to the care of him and the paternal grandparents.
A singular feature of the father’s evidence was his denial of any knowledge as to how D was injured. The father considered that DCP and in particular, Ms Q, had taken a set against him and had formed a view that he was not fit to care for children. The father considered that Ms Q’s interaction with him, and purported presentation, was prejudicial and biased.
Specifically, the father denied that he had deliberately harmed D nor did he know how D was injured, however the following exchange referring to text messages with Ms F is relevant:-
[His Honour]: Can you go back to [Dr PP’s] report at page 35 if you don’t mind and I want you to direct your attention to what appears to be the text messaging between you and [Ms F] on the 3rd day of September, do you see that? Now you might tell me this is an incorrect text message in which case won’t ask you another question about it and if you need to we can try and find the phone or the information, but just looking at it, I just want to take you carefully through [the following text messages]:
[Father]:His bruises look bad again in that photo. Hopefully there’s not a little crack there or something that keeps opening up.
[Ms F]:I hope not. His bruises were getting better though?
[Father]: Yeah they are, just looks bad in that photo maybe.
[Ms F]:Okay. They seem to look worse in photos i’ve noticed. Hopefully it’s just that.
[His Honour]: Do you see over the page there is more discussion and you say:
[Father]:I was just tickling him to try and make him laugh but I wouldn’t have thought it would’ve bruised him.
[Ms F]:I have no idea! I’m just really concerned. That’s all. It makes me upset. I don’t want anyone thinking I am mistreating him.
[His Honour]: and then you say:
[Father]:my mistake, obviously I was too rough and need to remember even though he’s a boy he’s still super small.
[Father]:Yes.
[His Honour]: So is that you indicating that to the extent of the injuries that you understood existed at the time, you acknowledge that you may have been a little rough with your son?
[Father]:Yes.
[His Honour]: [Ms F] is saying in this text message that these injuries didn’t happen in her care.
[Ms F]:I have no idea! I’m just really concerned. That’s all. It makes me upset. I don’t want anyone thinking I am mistreating him. That’s my concern. And it didn’t happen in my care again!
The father was asked to consider the report of Dr PP who assessed D’s injuries.
In particular, the father takes issue with the competence, expertise and ability of Dr PP and his assessment that the injuries sustained by D were deliberately inflicted.
The father did not resile from the evidence contained in his trial affidavit under the heading of “[D's] Injuries” as exemplified by the following paragraphs:
96.[Dr PP] has provided a report dated [early] 2021 (document 18 of the mother's Book of Documents).
97.It took considerable time to obtain [Dr PP's] report. I was eagerly awaiting it as I hoped it would provide me with some clarity regarding how [D] was injured and whether his injuries were deliberately (or accidently) inflicted. I believed there would likely be an innocent explanation.
98.I quickly lost confidence in [Dr PP's] report as there were many things in it that I know to be wrong and the errors always promoted the theory that [D] was deliberately injured. What appears to me as [sic] [Dr PP's] willingness to determine injuries/bruises/scrapes were deliberately inflicted upon [D], undermined my confidence in [Dr PP's] report, his impartiality generally and his views as to the cause of [D's] broken ribs. I do not intend to forensically critique[ Dr PP's] report, but by way of some examples of why my confidence in his report is undermined: …
In relation to the possible range of people who could have inflicted the injuries to D, the following exchange represents a reluctant concession by the father that the injuries could only have been sustained whilst D was in his care, the care of Ms F or less likely, her parents.
The following highlights the difficulty, for the father in circumstances where if the evidence supports a finding that the injuries sustained by D were deliberately inflicted then in circumstances where the father disavowed knowledge of the injuries then by necessary implication the perpetrator must be either Ms F’s or her parents:
[His Honour]: You can’t speak for [Ms F] of course but is it that you say that you would be happy for an arrangement where [D] wasn’t back in your care but was in the care of your parents for instance or some other member of your family – is that what you’re looking at?
[Father]:Ah I’m looking at all options. My preference would be for him to be returned to my care however, if that’s deemed not suitable for one reason or another then I would prefer –
[His Honour]: – [Ms F’s] care?
[Father]: If they deem that safe and appropriate then yes. My parents –
[His Honour]: – but you understand the problem with all of that don’t you [Mr Peyton] as we discussed last Wednesday, the range of people who are responsible for the serious injuries occasioned to [D] and you’ve accepted in evidence that his injuries are not accidental. You’ve accepted that this child was the subject of a significant assault or assaults.
[Father]: Ahh I struggle to accept it.
[His Honour]: Well you might struggle to accept it but you’ve read the medical evidence.
[Father]:I have read the medical evidence. I do have issues because I can prove that a lot of what [Dr PP] says in incorrect and I know in my heart that what a lot of what he says is incorrect.
[His Honour]: Even to the diagnosis of the injures? The identification of the fractures to the ribs? I thought that was an issue about which you –
[Father]: The identification of the fractures I agree to, yes
[His Honour]: Exactly – I mean it’s either and I think you said in evidence that it’s either [Ms F], I mean the group of people that could have caused these injuries is either [Ms F], you or her parents.
[Father]: Yes, to the best of my knowledge, yes.
[His Honour]: To the best of your knowledge? Well it’s likely to be confined to a very narrow group of people is it not?
[Father]: Yes.
[His Honour]: And if it’s not you and you say it’s not you –
[Father]: – No, I mean yes I say it’s not me –
[His Honour]: – And so by necessary implication if the evidence supports that some of these injuries were caused deliberately rather than accidentally, if that were to be the evidence, and at the moment, to be fair to [Dr PP] that is the evidence, there may be some further diminution of that following cross examination but that’s what we have at the moment
[Father]: Yes.
[His Honour]: And if it’s not you, it’s either [Ms F] or it’s her parents
[Father]: Yes, unless there’s –
[His Honour]: – so there could be no circumstance on your case where you could contemplate [D] having any relationship with [Ms F].
[Father]: That’s not my decision to make.
[His Honour]: Isn’t it? Why not?
[Father]:Because at the moment unfortunately he is a ward of the state under the guardianship -
[His Honour]: But Ms Betro is asking about your application so the application is that you would want [D] – you would want that order discharged, [D] returned to either you or [Ms F] or members of each of your family in circumstances where you say you have no responsibility in relation to the injuries occasioned to [D] – you must have some misgivings about [Ms F]. I mean if it’s not you, it’s likely to be her or her parents. Why is this complicated? It’s not is it? Why is it complicated?
[Father]: It is for me.
[His Honour]: You must have thought about this one hundred times. A thousand times.
[Father]: Yes.
[His Honour]: How could these injuries have been occasioned to [D]? Who could have done it? The range of people, as we discussed last week, is not large. If it’s not you, and you’ve said it’s not you, then more likely than not then there must at least be a focus on [Ms F] must there not?
[Father]: There has been during the course of the investigation.
[His Honour]: By you! Not during the course of the investigation. You’d have your misgivings about [Ms F] would you not? You don’t necessarily know absolutely but it would be the first stop that you would think about wouldn’t it? And if not [Ms F] than her parents but you don’t know which way or the other but certainly [Ms F’s] family including her.
[Father]: Yes.
[His Honour]: That’s where it’s more likely than not, as far as you’d be concerned, where the answer to how this child was injured in the way that he was.
[Father]: Yes.
The father did not present as an impressive witness. His evidence was poor and he was argumentative, in particular when the focus was upon the injuries sustained by D.
The father sought to cast blame for his predicament upon DCP workers, in particular Ms Q, Dr PP and the mother.
The father failed to engage in the consequences that must inevitably flow from the circumstances in which D was injured.
Ms U in her capacity as a Regulation 7 Family Consultant prepared a Family Assessment Report dated 3 April 2023 pursuant to an order made by Justice Mead on 30 September 2023 (“the report”).
Ms U holds qualifications in Social Work and in Psychology.
She has held a number of positions within the child protection sphere.
Ms U had undertaken an initial s 62G(2) Family Assessment Report dated 27 September 2021 and had the advantage of both in person interviews with the parties, the paternal grandmother, the children and a co-parenting counsellor, Ms CC. In addition, Ms U had the advantage of a number of court documents and orders.
Ms U summarised the position of the parties in the report as follows:-
11.The summary of the dispute is as follows; the mother holds concerns about the father’s capacity to provide safe care to [X] and [Y] given DCP’s conclusions based upon the medical evidence relating to [D’s] numerous inflicted injuries. She also seeks to relocate with the children away from [Town E]. The father and 2nd Respondent grandparents have over time disputed DCP’s findings in relation to [D], and dispute the extent of the mother’s concerns relating to the father’s care and relationship with [X] and [Y]. Since the previous Report, the mother’s affidavit information reports that [Y’s] response to time spending with the father has intensified, including some resistant behaviours. There is substantial mistrust between the mother and both the 1st Respondent and 2nd Respondent parties; the mother and father have been engaging in co-parenting counselling with [Ms CC] in an attempt to mitigate this.
Ms U recorded the mother’s concession that the children love their paternal grandparents.
In interview, the father is recorded as holding a belief that the mother was not being reasonable with respect to a co-parenting arrangements so that she could bolster her proposal to relocate the children.
At interview, X was aged seven years and Y was six years of age.
X was observed to separate from the mother easily and was enthusiastic in respect of her relationship with the father and paternal grandparents. She expressed excitement at the prospect of increased time including an overnight component.
Ms U recorded the following remark concerning Y:-
86.[X] spoke positively about [B] and [C], as well as [Y]. She indicated she dislikes when [Y] “yells at me….that she hates Dad and she doesn’t want Dad to know”. [X] initially indicated she is unsure why [Y] felt this way, then speculated “she thinks Dad may have hurt [D]”; she is unsure why [Y] believes this. [X] did not agree with this theory, but noted she feels “sad” that [Y] felt that way about their father. She also confirmed that [Y] hurts her, noting “when I was writing a letter to Dad, she kept on punching me…because [s]he doesn’t like Dad, she wanted to rip up the page”. [X] was unable to clarify if/how her mother intervened.
In interview, Y provided her knowledge of D’s circumstances as follows:-
93.In describing [D], [Y] indicated he lives in a different location to her, “because he got separated from his Mum and Dad…our Dad and ([D’s] mother)…because he got really badly hurt…we don’t know who did it”. When asked how [D’s] experience made her feel, [Y] replied “a bit sad”. When asked how she feels about “not knowing who did it”, [Y] responded “because it was a bad one, on purpose from someone”. When invited to respond to how she knew ‘it was a bad one, on purpose from someone’, [Y] responded “Mummy told me”. Knowing [D] had been purposefully hurt made [Y] feel “a bit sad”. She noted that when she felt this way, she told her “Mum and Dad” who both provided physical comfort.
After some initial hesitation, Y said that she would feel “good” about spending increased time with the father.
The observations of interaction between the children and the parties was without concern.
As discussed, the parties sought assistance from Ms CC in her capacity as a co-parenting counsellor. Ms CC had undertaken a number of sessions and whilst some progress had been made, it was acknowledged that there was limited utility in further sessions given that both parties had adopted an intractable position. The issue again was the mother’s consideration that matters could not move forward until there was some recognition by the father that would explain the injuries to D and the father’s refusal to do so.
Ms U noted that the father exhibited an increased capacity for emotional attunement and questioned whether, if the progress was positive, it in some way may mitigate risk.
The evidence of Ms U, and supported by the absence of any contrary position promoted by the mother, supports a finding that the children have a beneficial relationship with the father and that X is keen to spend time with him whereas Y is a little more reticent as to the prospect.
There was not significant exploration as to the extent of time that the children would like to spend with the father. X was keen that there be some extension and both children, while supportive of some increased time, indicated that it must be balanced against them missing the mother.
I am able to find that the children have a strong and primary attachment with the mother but also have a relationship with the father and his parents.
The evidence of Ms U supports a finding that whilst there should be sufficient time to enable a meaningful relationship to be maintained, equal time, as sought by the father, is not necessary for that to occur.
Neither of the children expressed any view either directly or by implication that would be in part a basis for the extensive spending time orders as sought by the father.
The nature of the relationship of the child with the parents and grandparents
The mother does not dispute that X and with some greater level of caution, Y have and would benefit from a meaningful relationship with the father, provided it was safe to do so.
The paternal grandparents have been a long standing feature in the children’s lives and prior to the removal of D from the care of the father and Ms F, it is likely that the children had a close relationship with them.
Notwithstanding some misgivings on the part of the mother arising out of the vitriol by the father and in particular, the paternal grandparents, they have been present as supervisors of the father’s time. Ms U considered that their supervision has been without incident and there is no suggestion that the children have a poor relationship with the grandparents.
The mother has not re-partnered and Ms U did not consider there were any adverse issues arising from the children’s relationship with her.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long term issues, to spend time with the child or to communicate with the child
The unfortunate circumstances in which the father finds himself, required the mother to be responsible for long term and short term decision making that affect the children. It is an unusual feature of the relationship between the parties that the mother considered consensus needed to be reached as to matters relating to the children’s medical health, education and other significant long term issues.
Whilst the parties are now able to highlight areas where agreement has not been reached, there is no suggestion that if given the opportunity to do so, the father would not show interest. It is likely that the converse proposition is relevant namely, that the extent of the interest and level of involvement by each of the parties in the major long term issues affecting the parties has now become a source of conflict and disagreement.
The extent to which each of the child’s parents have fulfilled or failed to fulfil the parents obligation to maintain the child
The children have remained in the primary care of the mother. There is no evidence presented that she has failed to cater for their needs and the evidence of Ms U would support a finding that the mother is able to provide for their physical needs as well as an appropriate level of psychological and emotional support. Other than the anxiety displayed by Y when issues of the status of D are present, the children appear to be appropriately well adjusted and also to be attaining developmental milestones.
The father and in particular his parents hold a different view of the mother and her ability to parent the children. They consider her capacity to parent to be lacking and contend that she presents as a psychological and emotional risk to the children principally arising out of their perception that she has manipulated the injuries sustained by D for her own purpose namely, to limit or minimise the father’s relationship with the children.
The presentation of the father and the paternal grandparents towards the mother is overtly negative. The environment created in the father’s home is unrelenting in its disparagement of the mother.
There is no evidence presented by the father that would enable a finding consistent with the low regard by which the father and his parents hold the mother. There is no evidence that the mother has embarked upon a strategy to minimise the father’s time with the children. It is not a credible assertion that the mother was in some way complicit in the findings of DCP based upon the medical assessment conducted by Dr PP that D sustained injuries in any other way other than by the deliberate act of either the father or Ms F as was conceded by the father in evidence.
The likely effect of any changes in the child’s circumstances
The mother seeks to relocate either to City JJ which is a little more than 200 kilometres from the father’s residence or City SS which is less than 200 kilometres but in any event, more than 150 kilometres which represents the extent of the father’s concession concerning the mother’s relocation of the children. At 150 kilometres from the father’s residence, the father considers that the orders he seeks namely, a graduated increase in time eventually resulting in shared care, is able to be achieved whereas if the mother is permitted to reside at a greater distance, then shared care would be difficult particularly given the onerous nature of travel for the children to and from school and at other times.
At present, the father’s time is limited by the obligation for supervision.
The mother proposes that the father’s time gradually increase such that six months from the date of orders made, the children spend each alternate weekend from 5.00 pm on Friday until 5.00 pm on Sunday with the father subject to the father’s time being supervised by the paternal grandparents, Mr KK, Ms HH and/or Ms MM but that upon Y attaining the age of eight years, then the supervision will be taken substantially in the presence of the nominated supervisors.
The issue of distance is not of significant relevance to school holidays including Easter and the Christmas period but potentially does have an impact on the time the children spend with the father during school term time.
It is open on the evidence for me to find that if the mother relocates the children to a distance of about 200 kilometres from Town L, then the orders sought by the father that would eventually lead to equal time and shared care would not be viable in terms of the distance that the children would need to travel on a daily basis for school.
The issue of determination is not the preference, wishes or perceptions of each of the parties but rather what is in the best interests of the children. I have given careful consideration to the attitude of each of the parties despite the conflict, that each of the parties consider the children maintaining a relationship with each of them but in particular the father, would be in their best interests.
There is no evidence to support the orders sought by the father that significantly increased time in particular over a period of some 40 weeks to a situation where the children’s care is effectively shared between the parties, is established on the evidence as being in the children’s best interests.
The children know and have a significant relationship with their father and his extended family.
On the orders as sought by the mother, the children’s time with the father would be enhanced by a transition from strict supervision to one encompassing substantial presence until such time as the children could be considered to have reached an age where they could self-protect. There is no evidence which speaks against the orders sought by the mother in terms of the relocation of the children in circumstances where the issues relating to D reasonably exclude Town L, Town E or City N. As considered, in evidence the mother impressed as having insight as to the flow on effect of D’s circumstances and the inability of the father and the paternal grandparents in accepting that D’s injuries were not accidentally sustained.
The practical difficulty and expense of a child spending time with or communicating with a parent
As discussed, I consider there is merit in the mother relocating to either City JJ or City SS. She presents credible evidence that the increased population in the two nominated centres enable an increased range of educational opportunities for the children but also an enhanced ability for the mother to obtain employment. At present, the mother bears the primary financial responsibility for the children and her need for extended child care services to enable the mother to seek full time employment was not challenged.
The capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional intellectual needs
The evidence supports a finding that the mother has the capacity to support the children and to promote their developmental progress.
Ms U found that the father was very much invested in the children as was his parents. The issue is that the father did not evidence the capacity to accept that the mother should bear no responsibility for what happened to D but perhaps of greater moment, is his refusal to accept that what happened to D cannot be compartmentalised in relation to the flow on effect to the children.
I have found that D was injured whilst in the care of either the father or Ms F. The father did not seek to explain or explore how D sustained the injuries in the face of strong evidence that the injuries were as a result of deliberate and not accidental conduct. There is no circumstance where the evidence supports a finding that some or any of the injuries sustained by D were caused by Y either in terms of dropping a speaker or of the children lying on the child.
D’s injuries are not explained by the consideration of the father that perhaps he engaged in vigorous or rough play by throwing D into the air and catching him repeatedly. The refusal by the father to accept the medical evidence and to continue to suggest that the mother in some way manipulated the DCP to reach an improper conclusion namely, that the injuries sustained by D were deliberately caused, is problematic. A further issue is that the father does not seem to be able to control the animus exhibited by the paternal grandparents towards the mother. That aspect in and of itself derogates from the capacity of the father and the paternal grandparents to provide for the needs of the children in particular, their emotional and intellectual needs. Simply put, the conduct of the father together with his consent or at least without any attempted opposition, the attitude of the paternal grandparents directly impacts upon his parenting capacity and places the children at risk of emotional and psychological harm.
Family violence
I note the mother’s allegations of the father’s adverse conduct and coercive control during the period of cohabitation prior to separation. I also note the father’s view that the mother was coercively controlling in her conduct and interaction with the father. The father’s concerns extend to the post-separation period.
The more significant issue is the injuries sustained by D in circumstances where the cause was the deliberate conduct of a person or persons.
Whilst it is surprising, the mother seeks orders that would enable the children to maintain a meaningful relationship with the father and within a relatively short period of time a concession that when Y is eight years of age the children would be able to effectively self-protect.
I note that the ICL takes a different view and considers that the children would not be able to self-protect until Y attains the age of 10 years but in any event, the ICL leaves the arrangements to the agreement of the parties.
The evidence would not enable a finding that the parties are likely to reach agreement and as such I do not consider that aspect of the orders sought by the ICL to be of assistance.
It is a difficult balance to reach between the serious injuries sustained by D and the concession by the mother, supported by Ms U that the children would benefit from an ongoing relationship with the father.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
The children have been the subject of assessment and observation. It is not in their interests that there being ongoing litigation and as such orders need to be made that are clear in their terms and provide finality.
The significant issues relate to the proposed relocation of the mother which if successful results in a self-fulfilling prophecy as to the extent of time that the children could spend with the father, and if supervision is required then the nature and manner in which the supervision is undertaken and when the need for supervision could cease.
PARENTAL RESPONSIBILITY
Parental responsibility is to be informed by what is in the best interests of the children.
Family violence is a factor that is the very antithesis of shared parental responsibility.
It is not reasonable to expect the mother to be able to enter into a discussion with the father about the needs of the children in circumstances where the father and his parents consider that in some way, the mother has embarked upon a strategy involving the DCP to restrict and restrain the father’s relationship with the children.
I propose to allow the mother to relocate the children to either City JJ or City SS and as such, I do not consider that equal shared parental responsibility is viable. The relationship between the parties is poor and the mother is held in low regard by the father and the paternal grandparents.
The evidence of the parties’ inability to reach agreement in respect of the medical needs of the children, in particular with the father insisting that the mother not take the children to the doctor who was involved in the initial assessment of D, is an example of the father placing his own needs over that of the children.
The parties broadly agree that Y may need some counselling. It is a curious circumstance where the counselling is considered necessary by the parties in order to improve Y’s relationship with the father when Ms U opines that Y’s anxiety arises from a “dissonance” concerning the unexplained injuries sustained by D, his removal from the family and the father’s position of proffering no credible explanation.
The mother impressed as being prepared to provide information to the father and to make decisions that are child focused. An order for equal shared parental responsibility, as sought by the father, would only place the children at further risk where it is likely on the evidence that disagreement would occur in relation to major issues affecting the children.
The children’s stability and the application of the best interests test supports a finding that the mother have sole parental responsibility.
Such a finding rebuts the presumption of equal time and there is nothing in the evidence that would suggest the orders sought by the father are practical.
I have given careful consideration to the separate proposals of the parties and I also bring to bear the focus of the ICL on evidence that could be considered to highlight that the father is an unacceptable risk to the children by reason of the deliberate injuries sustained by D.
I have rejected that proposition and consider that the needs of the children and the concessions made by the mother could properly be reflected by the orders sought by her. The continuation of strict supervision to date allows for a relaxation whereby the father’s time with the children would be in the substantial presence of the nominated supervisors. When Y attains the age of nine years, taking into account matters raised by Ms U, it is reasonable to find that the children would be able to self-protect.
CONCLUSION
The mother seeks an order that she have sole parental responsibility for the children. That order is supported by the ICL but opposed by the father. I propose the make an order that the mother have sole parental responsibility together with the mother’s further proposal that she will consult the father regarding health and/or education but that in the absence of agreement she is able to make the final determination.
For the reasons given, the children will live with the mother.
I consider that it is in the children’s best interests that the mother is able to take up residence either in City JJ or City SS in order to maximise her opportunity for secure employment, housing, an expanded range of child care and out of school hours options and schooling for the children.
I will extend the distance that the mother is permitted to relocate to include City JJ, Victoria or approximately 200 kilometres radius from Town L (whichever is more distant). The mother will be able to make her own arrangements as to when the children’s relocation takes place although it is anticipated on the mother’s evidence that she will not seek to do so before the end of the 2023 academic year.
The mother sought that as from 16 July 2023, the children should be able to spend extended time with the father from 4.00 pm on Saturday until 5.00 pm on Sunday and from 26 August 2023, from 9.00 am Saturday until 5.00 pm on Sunday.
As from 5 November 2023, the mother proposes that the father’s time commence at 5.00 pm on Friday until 5.00 pm on Sunday in each alternate week.
The father seeks a graduated increase in time such that after 16 weeks, the children would spend each alternate weekend with the father from the conclusion of school Friday (or 3.00 pm if a non-school day) until 5.00 pm on Sunday. There is merit in the orders sought by the father and to a significant degree, they mirror the mother’s proposal.
The mother seeks that until Y attains the age of eight years being 2025, the time spending with the father shall be taken substantially in the presence of the paternal grandparents (or either of them), Mr KK, Ms HH and/or Ms MM between the hours of 5.00 pm and 8.00 pm.
The father concedes that there should be supervision on the basis that a nominated supervisor be substantially present however, the period during which supervision is required should be limited.
The ICL promotes a finding that the father presents as an unacceptable risk to the children. I have considered that whilst the risk is significant, it is not unacceptable and can be mitigated for the reasons that Ms U considered relevant, namely, the age at which the children would be able to self-protect, the supervision either strictly imposed or satisfied by substantial presence and the work undertaken by the father in terms of therapeutic assistance, counselling and continuity employment.
Nonetheless, the evidence highlights the need for a cautious approach. What occurred to D cannot be ignored. It is a highly relevant consideration exacerbated by the attitude of the father and the paternal grandparents in attempting to implicate the mother as having orchestrated the DCP’s involvement and the forensic medical assessment of Dr PP. The evidence of Ms U invites the Court to consider the consequences of what happened to D, the implication that it has as to an assessment of the parenting capacity of the father but tempered by matters in mitigation. I consider that the concerns of the ICL, the mother and the evidence of Ms U can be satisfied by requiring that the supervision of the father’s time with the children be limited to substantial presence but to remain in place until Y attains the age of nine years.
The parties are in broad agreement as to the children spending time with each of the parties on Mother’s Day, Father’s Day and the Christmas period.
I have considered the proposals of the parties for time spending during school holidays.
Commencing September 2023, the father seeks that the children’s time during school holiday periods will extend by a period of 48 hours with the intention that if orders had been made as sought by him, namely, that the children would spend equal time with each of the parties, then that would flow through to school holidays.
I consider that the evidence more properly supports the graduated approach as proposed by the mother save that the children should spend equal time with each of the parties during the school holidays as and from the December/January 2024/2025 school holiday period.
I propose to order that handovers take place as may be agreed between the parties but in the absence of agreement, then as proposed by the mother.
I have given careful consideration to the orders that each of the parties seek in relation to the engagement of a therapist to assist Y.
I am not satisfied on the evidence that an issue exists that needs to be the subject of the level and intensity of therapeutic intervention proposed by each of the parties.
It might be said that of all of the parties involved, in respect of what occurred to D, Y has demonstrated the most insight.
I am not satisfied that the parties are able to reach a ready or easy consensus and in circumstances where the mother has sole parental responsibility, given that the evidence supports a finding of confidence in the mother’s preparedness to keep the father informed, I propose to make no order as to ongoing therapeutic intervention for Y in case the process as suggested by Ms U would either provide no assistance to Y or may well exacerbate any underlying or distress.
The proposal for the child to undergo further therapeutic intervention would only have utility if the parties are aligned and in agreement as to the focus of the therapeutic intervention. The evidence strongly supports a finding that the parties are not in agreement and do not present with a common purpose. The father is unrelenting in his belief that the mother has created and manipulated matters involving D to her own purpose. The father is steadfast in his refusal to accept that the injuries sustained by D sere deliberately inflicted. I have made a clear finding on the balance of probabilities that the perpetrator of the injuries sustained by D is either the father or Ms F.
That proposition was self-evident from the vast array of materials presented by DCP. Furthermore, the father maintained a strong opinion that the mother was not able to adequately parent her children from a former relationship. In the absence of evidence from a proposed therapist properly informed as to the entrenched positions of each of the parties, that there is an understanding as to the focus of the therapy and addressing the possibility that the very process of the therapeutic process itself might present as a risk to the child, I do not propose to make orders as sought by either the mother or the father. Whether Y requires further counselling will be a matter for the mother.
Each of the parties seek orders that enable information concerning the children’s health and their education to be readily available and the parties broadly agree as to orders of restraint and injunction.
I make orders as appear at the commencement of these reasons.
I certify that the preceding three hundred and fifty-six (356) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 15 September 2023
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