Kennedy & Peyton (No 2)
[2024] FedCFamC1F 402
•14 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kennedy & Peyton (No 2) [2024] FedCFamC1F 402
File number(s): ADC 4269 of 2020 Judgment of: KARI J Date of judgment: 14 June 2024 Catchwords: FAMILY LAW – CHILDREN – Interim Parenting Arrangements – Where the mother seeks a suspension of the final orders so far as they relate to time spending with the father – Where the current proceedings were commenced by the mother seven weeks after the delivery of the final judgment and orders – Where one child refuses to spend time with the father – Where the mother raises concerns about the deterioration of one of the children’s mental health – Where one child has threatened self-harm and physically threatened her sister – Where the father alleges that the mother has overreacted – Where the father alleges the mother is unable or unwilling to facilitate a relationship between the children and the father – Where the father alleges the mother is trying to alienate him – Where the court accepts that the mother has acted protectively and appropriately – Where the court finds that the father’s allegations appear entirely without foundation – Consideration of the conditions in which the father should spend time with the children – Where the father seeks compliance and reinstatement of the final orders in relation to one child and the other child to spend time with the father in accordance with her wishes – Where the court does not consider that disparate orders for each child are appropriate – Orders for the father is to spend supervised time with the children at a professional contact service on one occasion per month – Injunction granted restraining the father from attending at the children’s school, medical appointments and extra-curricular activities. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B, 65DAAA Cases cited: Franklyn & Franklyn [2019] FamCAFC 256
Kennedy & Peyton [2023] FedCFamC1F 790
Division: Division 1 First Instance Number of paragraphs: 108 Date of hearing: 31 May 2024 Place: Adelaide Counsel for the Applicant: Ms Betro Solicitor for the Applicant: Annells Lawyers Counsel for the Respondent: Ms Miller Solicitor for the Respondent: Jordan & Fowler Family Lawyers ORDERS
ADC 4269 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KENNEDY
Applicant
AND: MR PEYTON
Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
14 JUNE 2024
THE COURT ORDERS THAT:
1.Paragraphs 4, 5, 6 and 7 of the Final Orders made 15 September 2023 be discharged.
2.The children live with the mother.
3.The father do spend time with the children at the VV Contact Service in City N on the following terms and conditions:
(a)That the time spending be supervised;
(b)That the time spending occur on one occasion each month, preferably on either Saturday or Sunday as can be facilitated by the service;
(c)For a period of two hours on each occasion; and
(d)With the parties to instruct the service to issue a report following each scheduled visit.
4.The father be restrained and an injunction be granted restraining the father from attending upon the children’s school when the children are present, at any medical appointment of the children or any extra-curricular activity of the children without prior written consent of the mother.
5.The proceedings be adjourned for case management to 22 October 2024 at 4.00 pm.
6.That prior to the adjourned hearing, the mother do file and serve a copy of any reports provided by the VV Contact Service.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kennedy & Peyton has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
These are interlocutory parenting proceedings relating to the parties’ two daughters X (“X”) born 2015 and Y (“Y”) born 2017 (collectively referred to as “the children”).
The parents are in dispute about the parenting arrangements for the children and the extent to which they are to spend time with the father, and the terms and conditions of that time.
The dispute has arisen against a background of final orders being made by Berman J on 15 September 2023 after he heard a trial of seven days duration in May 2023 (“the final orders”).
The final orders had the effect of the mother having sole parental responsibility for the children (albeit that she consult with the father prior to making any decisions about the children’s health or education) and the children living with the mother, with the mother at liberty to relocate the children’s residence to City JJ in Victoria. Orders were made for the children to spend time with the father building rapidly to on an alternate weekend basis, together with special occasions. The father’s time however was to be “largely in the presence” of members of the paternal family until Y turned nine years of age in 2026.
For the reasons that follow, orders shall be made suspending certain aspects of the final orders; significantly those relating to the children’s time spending with the father. In their place shall be a regime of supervised time spending at a professional contact service.
BACKGROUND & THE PREVIOUS LITIGATION
The background of this family, the relationship of the parents and the parenting arrangements for the children was canvassed in detail in the reasons of Berman J delivered 15 September 2023 (Kennedy & Peyton [2023] FedCFamC1F 790) (“the reasons”). I have had significant regard to those reasons and the findings made by his Honour, particularly in circumstances where the orders were not the subject of appeal.
Whilst I have had regard to the reasons, for present purposes it is necessary to set out some background to contextualise the issues that have presented since the making of the final orders.
With reference to the reasons (at [2]-[35]), the following summary can be given:
(a)The parties lived together in a relationship between 2014 until their separation on 5 September 2019.
(b)The “catalyst” for the parties’ separation was the father’s admission that he had commenced a sexual relationship with another woman.
(c)The father’s new relationship resulted in the birth of a child D (“D”) in 2020.
(d)In mid and late 2020 D presented with visible injuries ultimately resulting in a hospital attendance in late 2020. D was examined by a paediatrician from Child Protection Services (“CPS”) in late 2020 and:
11[D] was diagnosed as presenting with […] fractures and […] suspected fractures […]. The […] 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 […] enzymes consistent with […] trauma.
12The 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.
(e)The mother commenced parenting proceedings in relation to X and Y on 8 September 2020, within short compass of the diagnosis of D’s injuries.
(f)The parties to the previous parenting proceedings were the children’s parents, together with each the paternal grandfather and grandmother.
(g)From the inception of the proceedings, arrangements were made for the children to spend supervised time with the father at a contact service, with the imprimatur of the Department for Child Protection (“DCP”).
(h)Ultimately orders for regular time spending were made on 13 October 2021 which provided for the children to live with the mother and spend time with the father on two out of every three weekends from 12.00 pm until 5.00 pm, with such time to be supervised by the paternal grandparents. The paternal aunt and her husband were added to the list of potential supervisors of the father’s time by orders made by consent on 28 July 2022.
(i)When making orders in July 2022 the parties also agreed to a “narrative” to be adopted by the supervisors in the event that the children asked questions about the father’s care of D. Justice Berman specifically commented in relation to that agreed narrative “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”.
(j)The final hearing was heard in May 2023 across seven days.
(k)Shortly prior to the final hearing, on 13 April 2023, the mother filed a Further Further Amended Initiating Application. By that application, the mother did not ask the court to make orders that there be no time spending between the children and the father. Rather it was the mother’s position that there be time spending but that it either be supervised by the paternal grandparents or paternal aunt and uncle. The mother additionally sought that she have sole parental responsibility for the children and that she be permitted to relocate with the children to City G, Victoria (albeit at trial this was amended to City SS or City JJ, Victoria).
(l)By his Further Amended Response to Initiating Application filed 5 May 2023, the father promoted orders that the parties have equal shared parental responsibility for the children. The father supported the children continuing to live with the mother, however he opposed their relocation to City G, instead seeking to restrict her relocation to a distance “anywhere within 150 kilometres distance by road of [Town L] in the state of South Australia”. The father pursued orders for time spending with the children on an unsupervised basis building incrementally such that within 14 months the children live with him in a five nights per fortnight regime.
(m)The mother’s position was that if the court formed the view that the father was an “unacceptable risk of harm” to the children, his time spending was to remain supervised, however if the court was not of that view, then supervision would cease upon Y turning eight years of age.
(n)In that regard, Berman J recorded:
35.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.
Ms U prepared a Family Assessment Report for the purposes of the proceedings prior to the final hearing and dated 3 April 2023. So far as the children, their presentation and the views of Ms U, the reasons identify:
(a)The mother acknowledged in her evidence (much as she does in these proceedings), that X enjoys her time spending with the father, however the mother “retained a concern that [Y] may have been experiencing emotional distress and anxiety around who visits” (at [118]).
(b)The parties shared a mutual understanding, acceptance and agreement that the children, particularly Y, would benefit from therapeutic intervention (at [81]), which from the father’s perspective included a concession that the therapy for Y was to address “the impact of [Y’s] understanding of what happened to [D] impacting adversely on her relationship with her father” (at [87]).
(c)The parties’ agreement for the children to have therapy was underpinned by the views of Ms U in her Family Assessment Report of 3 April 2023, which is quoted in the reasons (at [86]):
86 …
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.
(d)The opinion of Ms U expressed in those proceedings (as shall be discussed later in these reasons), so far as Y’s presentation is concerned, is much the same as that expressed in these proceedings, significantly as summarised in the reasons as follows:
167[Ms U] considered the more apparent resistance of [Y] spending time with the father not as a result of interaction with the father but rather of having to rationalise her understanding that [D] had been hurt, is no longer a member of the family (in that he now is in foster care) and that the father may have been responsible for [D’s] injuries.
168The dissonance referred to by [Ms U] speaks to [Y] being unable to easily reconcile [X’s] positive relationship with the father and her fear and anxiety as to how [D] was hurt.
Importantly, the reasons make it clear that a significant factor in the reasoning in support of the orders made was that the injuries to D, and the father’s possible role in the same could not be cauterised from the factors considered in determining the parenting arrangements for Y and X (see for example [181] and [279]).
In considering the injuries to D, findings were made by Berman J that:
(a)Despite the father’s allegations, the mother was not responsible for the “investigation as to how [D’s] injuries were sustained and the child’s removal from the father and [Ms F’s] care into a foster placement” (at [177]).
(b)The expert evidence and opinion of paediatrician Dr PP was accepted (at [220]). Dr PP had examined D in late 2020, produced a report and gave oral evidence at the final hearing. Of significance:
(i)Dr PP concluded that D’s bruising was “widespread… and upon further investigation and examination, the injuries were extensive… [and] more extensive than reported to the doctor [D] saw originally” (at [203]).
(ii)D was diagnosed with having [several] fractures and […] suspected fractures which were confirmed by plain x-rays, [and scans]” (at [210]).
(iii)“An important consideration” for Dr PP was that D’s fractures were of differing ages “including […] recent fractures, […] fractures that were healing and […] fractures of indeterminate age” (at [211]).
(iv)Dr PP rejected the possibility that D’s injuries could have been “consistent with reasonable developmental expectations” (at [204] and [206]).
(v)Dr PP was of the opinion that D’s injuries “could only have resulted by deliberate action” (at [206]).
(vi)Dr PP rejected the possible explanations given by the father as the cause of D’s injuries; including that the child Y had “dropped something on [D]” and/or a “heavy speaker” on D, a sibling “jumping or falling” over D, the father “tickling” D and/or the father’s “overzealous” “play activity” with D (at [216] and [218]).
(c)Whilst the father denied that he had deliberately harmed D and asserted that he did not know how his injuries had occurred (see [140]-[141]), during his oral evidence the father “reluctantly conceded” that the injuries could only have been sustained whilst D was in his care, the care of Ms F or less likely, her parents (at [145]).
(d)On the balance of probabilities:
(i)“…someone deliberately inflicted significant and serious injuries to [D] over a period between [mid] and [late] 2020” (at [271]); and
(ii)While “not able to find that either the father or [Ms F] either jointly or separately perpetrated the injuries to [D]. [Justice Berman was] able to find on the balance of probabilities that it was one or the other of them” (at [276]).
Justice Berman otherwise made a number of observations of the evidence and findings. Of significance for present purposes:
(a)In relation to the mother:
122.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.
(b)In relation to the father:
147.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].
148.The father sought to cast blame for his predicament upon DCP workers, in particular [Ms Q], [Dr PP] and the mother.
149.The father failed to engage in the consequences that must inevitably flow from the circumstances in which [D] was injured.
…
177.The concept of the mother in some way being responsible for the investigation as to how [D’s] injuries were sustained and the child’s removal from the father and [Ms F’s] care into a foster placement being manipulated by the mother is without support on the evidence. It is difficult to ignore the toxic dislike and mistrust of the mother in the father’s home as a relevant factor in [Ms U’s] assessment.
…
238.As discussed, the father did not impress as a witness. He was argumentative and showed little or no insight as to the damaging and demeaning consequences of his view that in some way the mother had coerced DCP, including [Dr PP], to assess the injuries sustained by [D] as having been deliberately inflicted rather than by accident.
239.A further consideration is the extent to which the father and in particular, his parents, view the mother as a liar, a person who perpetrated coercive control over the father, a narcissist and unable to appropriately parent either the subject children or her two children by a former relationship.
240.I accept the evidence of [Ms Q] set out in various DCP documents as to the ill‑considered and toxic language used by the father and his family in reference to the mother.
…
283.The father’s inability to moderate or control the vitriolic rhetoric of his parents directed against the mother supports a finding that the father lacks insight.
(c)In relation to the relationship between the parties:
127.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.
128.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.
129.In September 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.
…
251.The mother has alleged a history of family violence and coercive and controlling behaviour perpetrated by the father.
252.The mother’s evidence is to some degree corroborated by the admission of the father that he developed a dependence on alcohol which subsequently required a process of rehabilitation.
253.Moreover, the correspondence between the parties, as evidenced by text messages, is also corroborative of family violence.
254.I do not consider that there is any evidence to support the father’s contention that the mother engaged in coercive and controlling behaviour. If anything, post separation it appears that the mother has been compliant and reasonable.
Ultimately Berman J concluded that:
(a)What had occurred to D was “a relevant consideration” to the parenting arrangements for X and Y (at [263]).
(b)A “direct concern” was the “distress and anxiety demonstrated by [Y] which is likely to be a reflection of her difficulty in reconciling her relationship with her father and the possibility that he may have been responsible for [D’s] injuries” (at [265]).
(c)The evidence before the court supported “a finding that the father presents as a risk to the children in circumstances where he sought to explain, at least in part, some of [D’s] injuries by reference to [Y’s] conduct in dropping a speaker on the child and the anxiety experienced by [Y] given her inability at age six years to reconcile her father’s attitude and [D’s] foster placement” (at [277]).
(d)The children were “also at risk of the toxic attitude of the father and his parents towards the mother in their contention that she has somehow suborned DCP and [Dr PP] to do her bidding in order to limit the father’s relationship with the children” (at [278]).
(e)The father presents:
an emotional and psychological risk to the children but that it is a risk that can be mitigated by supervision, the ability of the children to reach an age when they are able to self-protect and what appears to be some reasonable effort on the part of the father to maintain sobriety, pursue ongoing employment and continue with his counselling
(see [282]).
(f)That it was 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” (at [319]).
(g)That the “children’s stability” would support a finding that the mother have sole parental responsibility (at [329]).
Having made those findings orders were made in the following terms:
1.All previous parenting orders be discharged.
2.[Ms Kennedy] (“the mother”) do have sole parental responsibility for [X] (“[X]”) born […] 2015 and [Y] (“[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 [200] kilometres 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 [in] 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.
THE CURRENT LITIGATION
The current proceedings were commenced by the mother on 2 November 2023. It is trite to observe that this was a mere seven weeks after the final orders were made.
The catalyst for the application was events that had taken place predominately concerning the child Y and the deterioration of her mental health and the concomitant impact that has had on X.
Of significance were events leading up to and following the father’s scheduled time spending with the children in late 2023, in particular:
(a)A few days prior to the scheduled time, the mother says that Y “begged” the mother not to send her to the fathers anymore. In the course of remonstrating with the other over time spending with the father Y variously told the mother “I don’t want to go to Dad’s”, “I’m scared to be without you”, “I’m going to kill myself, I don’t want to be here anymore” and “I’m just so stupid”. [1] The mother had difficulty getting Y to sleep, including Y wetting the bed. Y ultimately fell asleep at 12.30 am in the early hours of the following day.[2] Y however woke the following morning “upset, saying she was going to kill herself then she can’t go anymore”. [3] The mother says that Y told her that it was the mother’s fault, that she hates the mother and that the mother was making Y “unsafe”. [4] The mother deposes that she spent a long time reassuring Y and comforting her.[5]
[1] Mother’s affidavit filed 2 November 2023, paragraph 15.
[2] Mother’s affidavit filed 2 November 2023, paragraph 15.
[3] Mother’s affidavit filed 2 November 2023, paragraph 16.
[4] Mother’s affidavit filed 2 November 2023, paragraph 16.
[5] Mother’s affidavit filed 2 November 2023, paragraph 16.
(b)Two days later, Y’s behaviour continued to deteriorate. The mother deposes that Y became “hysterical, yelling that she just wanted to die, that she wanted to kill herself and that she wasn’t going tomorrow”. [6] At one point X told Y that she was upsetting her, and she asked Y why she didn’t like their father, to which Y is said to have responded “I’m scared I’m going to be hurt like [D]. He yells at me and makes me scared”. [7] The mother says that it took her over three hours to get Y to sleep that evening.
[6] Mother’s affidavit filed 2 November 2023, paragraph 17.
[7] Mother’s affidavit filed 2 November 2023, paragraph 17.
(c)On the day of the visit, Y locked herself in the bathroom and was hitting herself. The mother says that she had to carry Y to the car with her “screaming, begging me not to make her go, or to just kill her instead”. [8] The mother persisted with taking Y to handover, however Y refused to get out of the car. Ultimately the paternal grandmother came over and the mother says that she “grabbed [Y’s] arm and pulled her away crying”. [9]
[8] Mother’s affidavit filed 2 November 2023, paragraph 18.
[9] Mother’s affidavit filed 2 November 2023, paragraph 18.
(d)The mother says that when she collected Y the following day she was “distraught and clung to me”. [10]
[10] Mother’s affidavit filed 2 November 2023, paragraph 19.
(e)The mother raised these issues in detail in writing with the father by text message the next day. The father’s response however appeared entirely dismissive, as he responded with the words “… this is all self serving nonsense and not true”, “These things have not been said, [Y] was in no way “distressed” at handover” and “I knew you would try and do this”.[11]
[11] Annexure “[MK]2” to the mother’s affidavit filed 2 November 2023.
(f)On the following day the mother says that Y was desperate to speak with someone and so she assisted Y to call a helpline. The mother says that Y appeared calmer after that phone call.
(g)The mother deposes:
24.[Two days later], [Y] was in a rage. [Y] pulled the mattress off of her bed and the slats off it too. She pulled everything out of her cupboard, pulled out her drawers and tipped them out. She didn't break anything, but we had already packed up all of the breakable things in preparation of moving. She was yelling things like “I am so stupid and angry!” “I want to die; I don 't want to be here anymore!” “I hate Dad!” and “Nobody can help me anymore!”. I managed to get her to school although she did not want to let go of me when she got there, and she did help me clean up the mess in her room in the afternoon.
25.The next day was the worst. On [that day], [Y] woke at 1.00am. I went into her room to help her settle back to sleep, but [Y] could not calm down enough to get back to sleep. [Y] was very angry and upset. At 7.00am, I went to run a shower, leaving the door open as I was concerned about [Y]. I was about to jump in the shower, when the children yelled out that [Y] had a [dangerous item]. I ran out of the bathroom to find [Y] chasing [X] with a [dangerous item], yelling at her that she hated [X] and Dad. My son [B] and my daughter [C] were trying to stop [Y], and [X] was hysterical with fear. The three of them went and sat in [C’s] bedroom while I took the [item] off of [Y] and put it out of reach. [Y] went back to try and get the [item], saying she wanted to [harm] herself, so I had to hide all the [similar items]. [B] walked himself to the bus stop and I called a friend to take the girls to school while I stayed with [Y]. [Y] was crying and talking about hurting herself, dad, Grandpa, nana and [X], saying “I want to kill them so I don't have to go back” and “If they won't die then I will [harm] myself and die”.
26.By around 10.30am, [Y] was crying and asking why she just can 't be normal.
(h)Following this incident, the mother variously attempted to get Y assistance from the Child and Adolescent Mental Health Service (“CAHMS”) (which she had earlier attempted to no avail) and from various nearby General Practitioners. The mother says that she was advised to take Y to Accident and Emergency at City N Hospital, which she did.
(i)The discharge summary from this hospital attendance records among other things a principal diagnosis of suicidal ideation and a plan for the GP to arrange a Mental Health Care Plan for Y.[12]
(j)Y was ultimately referred for treatment with a psychologist named Mr AB.
(k)As a result of these events the mother commenced these proceedings and additionally determined that it was no longer appropriate to facilitate time spending between the children and the father in accordance with the final orders.
[12] Annexure “[MK]3” to the mother’s affidavit filed 2 November 2023.
When commencing these proceedings, the mother formally sought a suspension of a raft of the final orders, in particular those that provided for the children’s time spending with the father. In their place the mother proposed that the children spend time with the father at AD Contact Service “on such dates and such times as the Contact Centre sees fit”.
The father is critical of the orders sought by the mother at that juncture, submitting through his counsel that it was a heavy-handed overreaction to the events that had occurred, and that it is indicative of the mother’s inability and/or unwillingness to facilitate a relationship between the children and the father.
When the father filed his Response, the father essentially sought a reinstatement of and compliance with the final orders, together with make up time spending between the children and the father for the time that had been missed.
The proceedings have taken some time to make their way to a contested hearing in circumstances where:
(a)The father additionally filed a Contravention Application on 18 December 2023, which has now been listed for hearing before a Senior Judicial Registrar on 31 July 2024.
(b)The parties reached agreement and orders were made at a hearing of their competing interlocutory applications before me on 8 February 2024 for a number of things to occur. Of significance the parties reached agreement that Ms U, would prepare a short form report. This report was completed and is dated 28 February 2024.
(c)The parties also reached agreement that the father would have periods of supervised time spending at AD Contact Service once each month with the last scheduled visit to occur on 18 May 2024.[13]
[13] Orders of 4 April 2024, Notation “A”.
During the hearing before me, the parties articulated their positions slightly differently to that which they had set out in their filed material.
At the mother’s end, she promoted a supervised time spending regime between the children and the father on one occasion each month at AD Contact Service. She otherwise also sought orders that any time spending between the father and Y be subject to Y’s wishes and an injunction restraining the father from attending upon the children’s school, medical appointments and extra-curricular activities without the prior written consent of the mother. The mother did not seek orders in relation to parental responsibility.
The father, through his Counsel, presented the court with a proposed minute of order in which he sought the following:
1. That the operation of paragraph 4(b) of the Order of 15 September 2023 be suspended.
2. That until further order the child [X] (“[X]”) born […] 2015 spend time with the respondent father (“the father”):
2.1. From 10:00am until 4:00pm on Saturday 8 June 2024, with handovers to take place at the carpark on the corner of [AE Street] and [AF Street, Town E];
2.2. From 10:00am on Saturday 15 June 2024 until 4:00pm on Sunday 16 June 2024, with handovers to take place at the carpark on the corner of [AE Street] and [AF Street, Town E]; and
2.3. thereafter the operation of paragraph 4(b) of the Order of 15 September 2023 recommences with respect to [X].
3. That the parties forthwith and within seven (7) days of the date of this Order do all things necessary to engage at the father’s sole cost (in the father’s order of preference) one of:
3.1. [Ms AG] from [AH Counselling];
3.2. [Ms AJ] from [AK Counselling]; or
3.3. [Mr AB] from [AL Psychology];
as the Court shall determine (“the therapist”) for the purpose of family therapy.
4. That within seven (7) days of the date of this Order, by way of joint letter to the therapist, the parties do:
4.1. provide a copy of [Ms U’s] memorandum dated 28 February 2024 and a copy of this Order;
4.2. request that the therapist, as soon as reasonably practicable in consultation with the parties, provide family therapy directed to improving the relationship between the father and the child [Y] with a view to [Y] recommencing spending time with the father if the therapist thinks appropriate;
4.3. request that the therapist:
4.3.1. meet with each of the parties separately prior to the therapist meeting with [Y];
4.3.2. confer with any treating counsellor or therapist of [Y], prior to the therapist meeting with [Y];
4.3.3. and thereafter:
(a)meet with [Y] on a weekly basis or such other basis as the therapist thinks appropriate; and
(b)meet with either of the parties as the therapist thinks appropriate, including with [Y] present if the therapist thinks appropriate.
5. That the parties do all things necessary to facilitate [Y’s] attendance upon the therapist at times and days nominated by the therapist.
6. That in the event that the therapist reports in writing to the parties that [Y] is prepared to spend time with the father then until further order the parties shall do all things necessary to facilitate [Y] spending time with the father on Saturdays to coincide with [X’s] time with the father pursuant to paragraph 2 above, from 10:00am until 1:30pm with handovers at the commencement to take place at the carpark on the corner of [AE Street] and [AF Street, Town E] and at the conclusion to take place at the playground [in Town L].
7. That the mother do pay the father’s costs.
THE LEGAL FRAMEWORK
Part VII of the Family Law Act 1975 (Cth) (“the Act”) is where the legislative provisions concerning children can be found. The central focus underpinning the legislation is that the court “ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989”.[14]
[14] Family Law Act 1975 (Cth) s 60B.
To that end, at all times when the court is considering making any particular parenting order, the court must make parenting orders which “regard the best interest of the child as the paramount consideration”.[15]
[15] Family Law Act 1975 (Cth) s 60CA.
A parenting order is defined in s 64B of the Act as one which relates to, including:
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for the child;
(d)if 2 or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that parental responsibility;
(e)the communication a child is to have with another person or persons;
(f)maintenance of a child;
(g)the steps to be taken before an application is made to court for a variation of the order…;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child
In determining what is in a child’s best interest, the Court is to have regard to six separate factors identified in s 60CC(2) of the Act under the heading “General Considerations” as follows:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
In addition, and when considering arrangements that would promote the safety of the child and each person who has the care of the child (whether or not that person has parental responsibility for the child), the court must consider the following matters:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.[16]
[16] Family Law Act 1975 (Cth) s 60CC(2A).
As these are interim proceedings that seek to alter final parenting orders, the court is also bound by the provisions in s 65DAAA. Here however, where both of the parties have an application before the court seeking a variation of the final parenting order, the parties’ consent is sufficient to dispose of any requirement to consider any other matters.[17]
[17] Family Law Act 1975 (Cth) s 65DAAA(3).
THE MATERIAL RELIED UPON
The mother relied on the following material:
(a)Affidavit of the mother filed 2 November 2023;
(b)Notice of Child Abuse, Family Violence and Risk filed 2 November 2023;
(c)Affidavit of the mother filed 25 January 2024;
(d)Affidavit of the mother’s solicitor filed 19 February 2024 annexing the report of Mr AB dated 15 February 2024;
(e)Affidavit of the mother’s solicitor filed 6 March 2024 annexing report of Ms U dated 28 February 2024;
(f)Amended Initiating Application filed 21 May 2024;
(g)Affidavit of the mother filed 21 May 2024; and
(h)Case Outline filed 29 May 2024.
The father relied on the following material:
(a)Affidavit of the father filed 23 November 2023;
(b)Affidavit of Ms HH (paternal aunt) filed 23 November 2023;
(c)Affidavit of Ms AM (friend) filed 23 November 2023;
(d)Affidavit of Ms AN (friend) filed 23 November 2023;
(e)Affidavit of Ms AO (friend) filed 23 November 2023;
(f)Affidavit of the mother’s solicitor filed 6 March 2024 annexing report of Ms U dated 28 February 2024;
(g)Affidavit of the father filed 3 April 2024;
(h)Amended Response filed 4 April 2024;
(i)Affidavit of the father filed 26 April 2024;
(j)Affidavit of the father’s solicitor filed 28 May 2024 annexing the reports from the contact centre;
(k)Case outline filed 30 May 2024;
(l)Exhibit “H1” tendered at the hearing; being an email from Mr AB dated 24 May 2024; and
(m)Exhibit “H2” tendered at the hearing; being an email exchange between the father’s solicitor and the contact service in May 2024.
DISCUSSION
These are interim parenting proceedings. As such it is difficult for the court to make findings at this stage in relation to the events that have occurred following the final hearing and, in particular, following the delivery of judgment on 15 September 2023.
Having said that, even at an interlocutory stage, inferences are capable of being drawn from agreed facts and less contentious evidence, and weak evidence will likely to be given little weight.[18]
[18] Franklyn & Franklyn [2019] FamCAFC 256 at [73].
The findings of Berman J are unchallenged and therefore entirely undisturbed. As such, those findings are accepted and have been given significant weight for present purposes. Those findings also allow me to draw inferences about certain matters in these proceedings from the evidence that is before the court.
The parties are agreed that the child Y is presently resisting time spending with the father. In light of the matters discussed in the reasons, this is not a new occurrence. However, it would appear that Y’s resistance to time spending, the deterioration in her behaviour and her threats of self-harm and threats to others have escalated significantly since the final orders. Whilst it is unclear as to what has led to that escalation or whether there needed to be a trigger for that escalation, it appears entirely consistent with the opinion expressed by Ms U in the earlier proceedings about the “dissonance” that Y feels trying to reconcile what has happened to D against her relationship with her father.
In her most recent report prepared on 28 February 2024 Ms U has again considered these matters and opined:
… The consultant has previously spoken of the impact of [D’s] experience may be having on [Y’s] view of the father. It is possible that this underlying factor for her has exacerbated, or intensified, [Y’s] reaction to the father in the face of exposure to denigration. [Y] is likely also reacting to the very high levels of tension that have existed in her adults’ worlds for years, which probably peak at critical periods in the dispute. [Y] still holds some belief that she had been responsible for [D’s] injuries. To sum, [Y’s] behaviour illustrates intense levels of confusion and distress she feels in a situation that likely feels out of control; her solution, rightly or wrongly, is to avoid a large aspect of the situation that is the cause of such distress and tension in her world, namely, time with the father.
Whilst the father says that he does not know what has led to Y presenting in the way that she has, during the course of the interim hearing, and in response to probing from the bench, the father’s counsel accepted that Y has made threats of self-harm and threats of harm towards X. However, counsel was careful to identify that the father was not present so does not know.
Whilst I note that this concession was made at the hearing, it is apparent from the written exchanges between the parties following the making of final orders, and the events that have led to these proceedings, that the father continues to harbour significant animosity towards the mother. Moreover, and of concern, the father does not accept the findings made by the court with respect to D, including the findings as to the risk the court found he poses to X and Y, and he continues to lay blame at the feet of the mother and the DCP for the present state of affairs.
The father’s views in this regard are put beyond doubt when regard is had to:
(a)The exchanges between the parties at annexure “[MK]1” to the mother’s affidavit filed 21 May 2024, which include the father telling the mother after publication of the reasons and final orders:
•Today brings no peace and the orders are in no way “balanced” [Ms Kennedy]! Once again the liars and the manipulators have “won”.
•I am not and wont be OK with the orders. I will follow them as always but they are not at all fair or “balanced and appropriate” as you describe them.
•Please don’t treat me like an idiot. I have read the judgment & unfortunately for me the judge believed all your lies. The whole system is an absolute joke but you manipulated it brilliantly, congratulations.
•Unfortunately you will always be linked to the DCP in my eyes as I have seen everything you provided to them and all the lies you said to them about me and I my family & I will never forgive you for the way you chose to act in those moments. You saw me on the ground and rather than try and help me get up you started kicking me over and over and over.
(b)Matters canvassed by Ms U in her recent report, where she recorded:
•[Mr Peyton] strongly denied the finding made by the Court at trial in 2023 that he or his (then) partner deliberately inflicted serious injuries to [D]. He conveyed his belief that the Court's findings and Judgement with regard to his presentation in the last phase of proceedings, trial and with regard to [D] were “unfair”, and also limited to the extent that it did not take into account (what the father believed to be) DCP's error in practice. [Mr Peyton] remained of the view that the mother “demonise(d)” him to DCP in the context of DCP's investigation into [D's] injuries. During interview with the Consultant, [Mr Peyton] challenged the Consultant when she referred to [D’s] injuries having occurred in his care/that he was responsible for [D’s] injuries. [Mr Peyton] indicated that a Member of Parliament is launching an inquiry into DCP’s conduct, on behalf of [Mr Peyton] and other families.
•[Mr Peyton] was invited to reflect upon the Court's finding at trial that “the 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”. [Mr Peyton] shared his disagreement with this, noting that he has not historically nor more recently shared or exposed his views about the mother to the children, given his is aware of the negative impact this would have on the children (“not fair or healthy to criticise the mother”)…
(As per the original)
In addition, and indicative of the father’s ongoing mistrust of the mother’s reporting of Y’s presentation in her care, the father issued a subpoena to the helpline on 20 February 2024, presumably to verify that the call had been made and to see for himself that which Y had disclosed. Whilst it is of some concern that crisis support sought by Y is now the subject of enquiry, potentially diminishing her trust in using such services if she were to become aware of the subpoena, it is even more concerning that the father felt the need to obtain these records when there was ample independent material confirming Y’s dysregulated presentation in a number of settings, including:
(a)The discharge summary for Y from City N Hospital dated late 2023 that recorded Y’s presenting symptoms and diagnosis as “suicidal ideation”.[19]
[19] Annexure “[MK]3” to the mother’s affidavit filed 2 November 2023.
(b)The report from Y’s Psychologist Mr AB dated 16 February 2024, which amongst other things set out that:
(i)“Anxiety is central to much of what [Y] has reported”.
(ii)Y reporting not wanting to see the father at the end of year school concert and being “worried” about possible visits with the father at the children’s contact centre.
(iii)He was working with Y to “encourage the expression of emotions and thoughts”, “to recognise, and where necessary challenge, negative self-talk, rumination and feelings”, and “building resilience and challenging negative cognitive rigidity”.
(c)Liaising directly over the telephone with Mr AB about his treatment of Y prior to the preparation of his report as recorded by Mr AB in his report as Mr AB seeing his role where the father his concerned as “essentially, to affirm what he already knew, and not more”.
(d)Being in possession of an email from the principal of the children’s previous school (Town E School) dated 23 November 2023 sent to both parties (annexure “[MK]1” to the mother’s affidavit filed 25 January 2024) which amongst other matters identified the principal’s extreme worry and concern for Y’s “mental, emotional and physical well‑being” as a result of Y’s dysregulated behaviour at school, including but not limited to Y at times:
(i)Being non-verbal;
(ii)Being unresponsive to various teachers;
(iii)Making noises and being disruptive during class;
(iv)Refusing to engage in any learning; and
(v)Being heard by the school principal commenting “I hate my life” and “I wish I was in heaven” and then later that same day Y picking up a pair of scissors and cutting her hair on numerous occasions despite her teacher attempting to prevent her from doing so.
(e)Being in possession of additional direct communications from Town E School in late 2023 (also contained in annexure “[MK]1” to the mother’s affidavit filed 25 January 2024) identifying that:
(i)Y had spoken with the school principal in late 2023 and told her that she had said “I wanted to kill myself”;
(ii)Y “cutting holes in her shorts” in late 2023;
(iii)Y being distressed by the attendance of the father at school assembly when X was to receive an award in late 2023; and
(iv)Y cutting her hair with scissors and being non-verbal in late 2023.
It therefore appears that the findings Berman J made about the father, as identified earlier in these reasons, are as present today as they were in September 2023 when final orders were made. Unfortunately, it appears that the father has been unable to reflect on the reasons, and he has not gained any perspective, empathy nor insight from the children’s perspective, particularly Y as to the circumstances they are presented with and in Y’s case, the dissonance she is experiencing and exhibiting through her behaviour. Moreover, the reasons appear to have done nothing to quell the father’s levels of anger and animosity towards the mother.
The mother’s position in essence is that she reacted to the crisis with the children that presented itself in October 2023. Implicit in her position is that she considered it a necessary protective measure to cease the children’s time spending with the father.
I accept that in the face of Y threatening self-harm on more than one occasion and conveyed to more than one person, and where those threats of harm have included threats made towards X for maintaining a relationship with the father, the mother acted entirely protectively and appropriately for the physical safety of both children together with their psychological and emotional safety.
The father’s position is that the mother is the source of the difficulties and that she is actively discouraging the relationship between the father and the children. In support of this proposition the father points to the mother’s response to the late 2023 events as being disproportionate and illustrative of her inability to support the father’s time with the children; in particular because the final orders she sought in her Initiating Application filed 2 November 2023 would have the effect of the children only seeing the father in a supervised setting approximately on approximately six occasions each year; a time spending regime which is much less than the children have ever spent with the father.
The evidence before the court, coupled with the findings of Berman J already discussed and to follow, enable me to reject that possibility, in particular:
(a)It is apparent from the written exchanges between the parties in the lead up to and following the publication of the reasons and the making of the final orders, that the mother approached the father in writing in a conciliatory fashion. It is apparent on the face of the mother’s communications that she was attempting to draw a line under past events and move forward regardless of the outcome of the final hearing. The father however rebuked all such attempts, and the communication exchange that followed from the father is nothing short of inflammatory, controlling, assertive and dismissive of the mother’s overtures.
(b)If it is the case that Y was resistant to time spending as described by the mother in the lead up to the visit in late 2023, it is to the mother’s credit that she encouraged and facilitated Y attending on that occasion despite her very significant concerns. Moreover, it was entirely appropriate for the mother to have raised those concerns in writing with the father in the detailed fashion thereafter. Unfortunately, instead of the father taking a conciliatory approach and a willingness to work with the mother and the children (particularly Y) to address the difficulties (which were not new and had been discussed in the various reports of Ms U in the earlier proceedings and during her oral evidence at the final hearing as discussed in the reasons) and support both children in maintaining their relationship with him and preserving their emotional and psychological stability (particularly that of Y), the father was entirely dismissive of the concerns raised by the mother. This is evidenced by his curt and dismissive responses to the crisis within four minutes of the mother’s initial message, which included:
•[Ms Kennedy] this is all self serving nonsense and not true.
•I knew you would try and do this.[20]
[20] Annexure “[MK]2” to the mother’s affidavit filed 2 November 2023.
BEST INTEREST CONSIDERATIONS
I have already discussed a number of matters relevantly to be considered pursuant to s 60CC.
Hereunder I propose to address any further relevant considerations.
What arrangements would promote the safety of the child and each person who has care of the child
When regard is had to the independent evidence before the court, it is clear that there is a crisis so far as the children’s relationship with the father is concerned.
The independent evidence includes the following:
(a)The discharge summary from the City N hospital;
(b)The report of Y’s psychologist Mr AB;
(c)The reports from Town E School;
(d)The reports from the children’s current school; and
(e)The contact centre reports which record that Y has been resistant to all time spending with the father.
In addition, the parties also agreed to commission a further report from the expert who had given evidence in the previous proceedings; Ms U. In that report, Ms U relayed a number of her observations and expressed her opinion in relation to the current crisis.
When regard is had to all of the information garnered from that material, it is clear that Y’s physical safety is of principal concern, together with her emotional and psychological wellbeing.
In addition, I do not consider that the safety of X can be detached in the overall consideration of the safety of these children. This is because Y has made direct threats to harm X for pursuing her relationship with the father, but also because of the impost on both children’s emotional and psychological functioning that this tension between them has the potential to create.
The father’s position is that he can continue his relationship with X as envisaged by the final orders, and that Y can be left to choose whether she pursues time spending with the father. This however places significant pressure on Y to make that choice each and every time that her sister spends time with the father.
In addition, each and every time that X attends without Y there is a source of conflict between the siblings. This is something that has already occurred, in light of Y’s direct threats to harm X.
Whilst of less evidentiary weight without the benefit of cross examination, the mother additionally deposes to the exchange between the children following X’s visit with the father in April 2024. During that exchange, X appears to be encouraging Y to attend a contact centre visit because amongst other thing the father had purchased her gifts. The following exchange between the children is said to have ensued:
•[Y] “I hate you why didn’t you bring it home. You know I don’t want to go back. I’m never going to be able to play with any of it! I hate him and I hate you too… Tell me what it is now or I am going to punch you”.
•[X] “You have to come to the visit to get it and see him. Dad will get angry at me if I tell you”
•[Y] “Tell me now, I will hurt you”
•[X] “Mum what do I do? [Y] is angry and Dad will be angry if I tell her. I don’t want to get hurt”[21]
[21] Mother’s affidavit filed 21 May 2024, paragraph 22.
For all of these reasons, I do not consider that the physical, psychological and emotional safety of these children can be compartmentalised and treated disparately and met by disparate parenting arrangements.
Any views expressed by the child
It is apparent from Ms U’s report that at the time of those appointments:
(a)X felt “better” that visits with the father were not occurring, but that she was feeling “good” about those visits resuming.
(b)Y on the other hand is described as feeling “ambivalent, “maybe happy” that time is not occurring at present…”.
It is also apparent from the reports from the visits that have occurred at the children’s contact service in March 2024 and April 2024, that X has been happy to separate from the mother to spend time with the father, but Y has not and Y has not therefore spent time with the father in that setting.
Importantly, the mother accepts that X has a good relationship with the father and that she enjoys her time spending with the father.
The mother’s position however is that the safety of both children and their psychological and emotional development needs to be carefully balanced against X’s expressed desire to continue spending regular time with the father. I have already identified that this is a submission which I presently accept.
Moreover, given the children’s young ages is it difficult to place weight on their expressed views given all of the matters to be considered by the court in making orders that are in the children’s best interests.
The developmental, psychological, emotional and cultural needs of the child
I have canvassed this consideration in detail throughout these reasons and in the discussion that follows.
In addition to these matters, I have also had regard to the opinion of Ms U, and in particular her views as follows:
•The father’s position with regard to [D] is unchanged, and unlikely to change. The consultant has previously spoken of the impact [D’s] experience may be having on [Y’s] view of the father. It is possible that this underlying factor for her has exacerbated, or intensified, [Y’s] reaction to the father in the face of exposure to denigration. [Y] is likely also reacting to the very high levels of tension that have existed in her adults’ world for years, which probably peak at critical periods in the dispute. [Y] also still holds some belief that she had been held responsible for [D’s] injuries. To sum, [Y’s] behaviour illustrates intense levels of confusion and distress she feels in a situation that likely feels out of control; her solution, rightly or wrongly, is to avoid a large aspect of the situation that is the cause of such distress and tension in her world, namely, time with the father.
…
•When resistant-refusal dynamics are apparent, early intervention is suggested; a swift resumption of appropriate time is therefore supported as it is harder to effect a resumption if the dynamics become entrenched over time. Given the escalation in behaviours which was not present Trial, the reduced frequency to monthly may give [Y] relief that in tum further alleviates her feelings of distress. [Y] also needs to be relieved of the burden of choice, and the parties need to adhere to the current agreement that time spending occur, with it being noted that the professionally supervised time mitigates risk of emotional harm.
These are opinions which at this stage are supported by the reasons and the evidence presently before the court.
The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
The final orders provide for the mother to have sole parental responsibility for the children, subject to the requirement that she consult with the father.
Whilst in her application before the court the mother sought to obviate the need to consult with the father about the exercise of her parental responsibility, this is not an order that she pressed at this stage.
The allocation of sole parental responsibility to the mother, puts beyond doubt that the mother was capable and appropriately able to exercise the same in the best interests of each of the children.
As I have already identified earlier in these reasons, and despite the father’s allegations to the contrary, there remain no concerns about this mother in this regard.
The same however cannot be said for the father, both as a consequence of the reasons, but also in light of the evidence now before the court as to the events that have transpired thereafter. Moreover, it is apparent from Ms U’s report of 28 February 2024, that concerns remain in relation to the father in this regard. I have already canvassed some of these matters throughout these reasons.
In addition to those matters already identified, it is apparent that Ms U was concerned about the father’s own dysregulation and presentation in her recent appointment with him, to the point where she recorded:
•[Mr Peyton] expressed substantial feelings of hopelessness and helplessness during the feedback session, to the point where the Consultant enquired whether [Mr Peyton] was experiencing thoughts of self-harm and/or suicidal ideation (which he denied). He was made aware of emergency mental health services helpline, and confirmed he was staying with supports in the Adelaide area that night.
Of concern, Ms U also recorded:
•[Mr Peyton] presented as inconsistent in his capacity to reflect upon [Y’s] reportedly highly troubled presentation. He noted he feels “infuriate(d)” that “no-one” has explored with [Y] “why does [Y] hate Dad?”; this was challenged (given the content of the psychologist report) and [Mr Peyton] then posed “what is being done about it?” and conveyed his frustration that [Y’s] engagement with others (the hospital, CAMHS, psychologist) has not “take(n) on my perspective” so as to understand [Y’s] presentation. He noted the reports of her comments to others are not congruent with her behaviour with him; “she does not leave my side, she wants to be front and centre”.
•[Mr Peyton] appeared to focus on peripheral issues around the reports of [Y’s] presentation, rather than being able to reflect and speculate about what she may feel for example, the type of [dangerous item] she used, whether the mother had been reported to DCP for leaving [Y] and [X] home alone together. He was, however, able to acknowledge that [Y's] behaviour is likely contributed to by the fact that “she is torn, (her) two family units (are such that) she can't connect (them)” and he also acknowledged that the school report reflected that [Y] is likely “very confused”. He suggested, however, that is it the mother’s responsibility also to “reassure” [Y] that she is not at risk with him so as to mitigate [Y’s] feelings. His primary concern, with regard to the children’s resistance/refusal to him, is “what are (they) being told (in the mother’s household)?”. He maintained his proposal for a resumption of time as per the Orders made at trial.
These passages in Ms U’s report call into question in a meaningful way the father’s capacity to meet the children’s emotional and psychological needs, in particular Y’s. Whilst it is difficult to form any concluded views about these matters, it appears from all of the matters discussed throughout these reasons, that following the publication of the reasons and the making of final orders, instead of placing the children and their physical, psychological and emotional wellbeing at the forefront of his concerns, the father appears more concerned about the impact upon him that has resulted from the significant escalation of Y’s dysregulated presentation and threats of self-harm and harm.
In addition, Ms U recorded:
(a)The father’s persistent view that the “children are exposed to denigration/negative attitudes about him from the mother and her elder children, and expressed his frustration that this is not acknowledged”;
(b)The father’s view that the mother is “trying to strategically alienate me”; and
(c)The father’s view that the mother is “in control, she is a bully”;
For all of the reasons I have outlined, and when regard is had to the reasons coupled with all of the communication exchange between the parties following the final orders, these allegations of the father appear entirely without foundation.
The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
As already discussed throughout these reasons, the principal concern is ensuring the safety of both of these children and balancing that against the benefit derived from the relationship that they have with the father. In light of all of the same, as found by Berman J, I do not presently consider that this can safely occur without ongoing supervision of the father’s time spending.
I additionally consider that the professional supervision that the parties themselves saw appropriate to implement, is the safest setting for time spending at this stage. This is because:
(a)A professionally trained supervisor is best able to monitor and report upon time spending and intervene if necessary.
(b)Professional supervision is something that the mother supports and therefore creates an environment that the mother is most likely able to successfully encourage both children engaging with the father in, as the contact centre reports bear out she has done in recent months.
CONCLUSION AS TO TIME SPENDING
For all of the reasons I have given, I do not consider it appropriate to presently maintain the regime of time spending between the children and the father as provided for in the final orders made by Berman J on 15 September 2023.
Whilst I accept that X appears to enjoy her time with her father, I equally consider that there are real safety concerns for both children if there is to be a disparate arrangement for each of their time spending with the father; not least of which are Y’s threats of self-harm, but also Y’s threats to physically harm X.
I am equally concerned about the psychological and emotional development of both children, and the impact on their sibling relationship if there were to be disparate arrangements between them.
I accordingly shall make orders for time spending to occur once each month at the AD Contact Service; a facility the children are familiar with attending.
ADDITIONAL ORDERS SOUGHT
Reunification counselling between the father and Y
The father promotes a process of therapy between himself and Y as a necessary ingredient to resolving Y’s current resistance towards spending time with him.
In addition, the father promotes this occurring with Y’s current therapist Mr AB.
As I have indicated to the parties, the prospect of Mr AB fulfilling this role raises significant concerns; particularly as to the confusion that this might cause Y, the preservation of her own therapeutic relationship with Mr AB, and her ability to see Mr AB as her own independent support person.
Whilst the court understands from submissions made at the hearing that Mr AB is prepared to undertake this process if Y is to engage with a new therapist more proximate to her, in my view, that does not alleviate the concerns about the confusion such an arrangement would have a very real prospect of causing Y; a child who is already struggling to reconcile complex concepts relating to the injuries to D and her relationship with her father.
In her recent report, Ms U turned her mind to further therapy that might be considered for this family. In that regard, Ms U variously opined:
•In considering the other aspects that appear to be contributing to the resistance/refusal dynamics, given the parties last unsuccessful attempt at coparenting counselling it seems unlikely that re-engagement would be of benefit. The cessation, albeit brief, of proceedings also did not appear to result in an organic resolution of ill-will. The likelihood of their co-parenting relationship improving is very limited.
…
•The Court at trial raised doubts as to the utility of making directions relating to family therapy. It therefore seems more prudent if the father's involvement with [Y's] therapy occur as per her therapist's suggestion; [Y's] therapist indicates this will hopefully form part of her treatment.
•The father's insight into [Y's] experience appears limited. There is the suggestion his capacity for emotional attunement is presently impacted by the current impasse, it also being noted that he has lost his job due to the impact of his emotional distress. He should remain involved with his counsellor and attend at his GP for assessment of depression/stress/anxiety.
In light of the concerns that I have discussed throughout these reasons, the concerns raised by Ms U, and the father’s inability to accept the findings made by Berman J, I do not consider that there is presently any utility and nor is it in Y’s best interests that such an order be made.
Moreover, understanding Berman J declined to order such therapy, and having regard to all of the matters discussed in these reasons, it does not appear that circumstances have changed so as to warrant a reconsideration of this question.
Updated Family Report
In her report, Ms U expressed concerns over her continued involvement as an expert in these proceedings in the following terms:
•Given this Consultant’s past involvements with previous assessments, her involvement at trial and the fact this matter has so soon come back before the Court it is respectfully suggested that the Court consider a different Report Writer in the event a Family Report is considered of use in future; a set of ‘fresh eyes’ on the dispute may be of greater assistance to the Court. Salient issues that require resolution (based on the parties’ position presently) appear to be the frequency of the time spending and whom undertakes the supervision responsibilities given the mother’s concerns about the paternal grandmother’s involvement in denigration. Also, the children’s response to the resumption of time, particularly as it relates to [Y’s] emotional well-being, will be an important consideration. The directions/boundaries with regard to communication also do not appear affective. It is difficult to consider, given the history, that these parties will be able to resolve the dispute without the Court’s direction; an alternative dispute resolution pathway will likely not be effective.
(As per the original)
In light of those comments, it is apparent that Ms U is extremely reluctant to continue to provide expert evidence in these proceedings. It is not insignificant that she considers that “fresh eyes” on the dispute might be warranted. Accordingly, Ms U cannot be forced to accept further instructions to provide expert advice in these proceedings.
The parties appear to agree that a further Family Report is warranted, however they disagree as to the timing of any such report.
What is of concern to the court however is that these children, and particularly Y, have engaged with a number of different professionals, all of whom have been focussed upon meeting their needs; albeit in different ways. Those professionals have included Ms U, Mr AB, workers at the contact centre, school teachers (including the transition to a new school) and the like. Significantly, each of those professionals have identified Y’s dysregulation.
At the present time, Y’s functioning appears to be of pressing concern. In that regard she is currently engaged with Mr AB. This however is not an arrangement that will continue as it is planned that a therapist that is more proximate to Y is to be arranged. This will mean that Y will have to rebuild a therapeutic relationship with a new therapist. In my view, whether therapy is to continue with Mr AB, or commence with a new therapist, this therapy should be given priority at this stage for all of the reasons that I have discussed in these reasons, including but not limited to the physical safety of both Y and X but also their emotional and psychological wellbeing and safety.
Moreover, I am troubled at the possibility that if Y is required to sooner rather than later engage with another expert, then that will have a deleterious impact on her already fragile functioning.
For these reasons I consider a more appropriate outcome at the moment to delay, at least until Y stabilises, the burden on Y and X in having to engage in that process.
I therefore decline to make any such orders at this stage.
Injunctions sought by the mother
The mother asks the court to make an injunction restraining the father from attending at the children’s school when the children are present, at any of the children’s medical appointments and/or at the children’s extra-curricular activities without the mother’s prior written consent.
These are orders that I am prepared to make for all of the reasons discussed herein.
In addition, I consider it necessary to avoid the children being placed in the middle of the parents’ conflict, and the father’s negative attitude and criticism of the mother and her parenting of the children.
I also consider it necessary to preserve the children’s school and extra-curricular activity environments as safe and neutral places for the children, where they do not have to be burdened by any encounter with the father; planned or unexpected.
Final Orders the mother sought to discharge
By her application, the mother sought to discharge orders 2, 4, 5, 6, 7, 8, 12, 13, 14 and 15 of the final orders.
The mother did not press orders about parental responsibility, and accordingly I do not propose to discharge Order 2.
For the reasons given, I propose to discharge those orders pertaining to the children’s time spending with the father (Orders 4-7).
Order 8 provides for the parties to facilitate either child telephone or video calling the other parents if they request to do so. There were no specific submissions about the discharge of this order. Regardless, I consider it appropriate that this order remain in place particularly in light of the orders to be made which effectively reduce the children’s time spending with the father. Accordingly, should either child wish to communicate with the father, it remains in their best interests that the mother facilitate this occurring.
Orders 12, 13 and 14 relate to the sharing of information about the children directly from their school and any medical specialist, together with ensuring that both parents are the children’s emergency contacts at school or any extracurricular activity. Order 15 relates to each party notifying the other in the event of serious illness or medical emergency. Again, there were no specific submissions made about the discharge of these orders. I therefore do not consider it appropriate in those circumstances to discharge those orders.
CONCLUSION
For all of these reasons I make the orders that appear at the commencement of these reasons.
I also propose to adjourn the matter for several months to give the presently heightened situation a chance to settle.
In doing so, I accept that such an approach may not be considered by the father to be a “swift resumption of appropriate time” as recommended by Ms U. However, I am equally conscious that in expressing that opinion, Ms U herself considered that monthly time spending was an “appropriate” arrangement.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 14 June 2024
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