Kirsteen & Colten
[2023] FedCFamC1F 1138
•14 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kirsteen & Colten [2023] FedCFamC1F 1138
File number: MLC 7902 of 2023 Judgment of: STRUM J Date of judgment: 14 December 2023 Catchwords: FAMILY LAW – PARENTING – Where final parenting orders were made in October 2022 – Where father filed a fresh Initiating Application in July 2023 – Where mother has ceased children’s contact with father – Where mother seeks interim orders that children’s time with father be professionally supervised – Where father seeks orders that mother be restrained from bringing children in contact with her new partner – Where father and his new partner inappropriately video-recorded and questioned one of the children regarding their relationship with the mother and her new partner – Where mother’s partner has behaved in an aggressive manner to his own biological children and previous partners – Where each parent seeks orders out of proportion to the situation – Where father’s time should not be professionally supervised – Where father and his new partner not to question or record children – Where mother should be in attendance at all times the children are in the presence of her new partner – Undertakings to the Court provided by each parent’s new partner. Legislation: Family Law Act 1975 (Cth) Pt VII, s 67Z, s 69ZL
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Rice & Asplund (1979) FLC 90-725; [1978] FamCAFC 128 Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 14 December 2023 Place: Melbourne Counsel for the Applicant: Mr Nicholson Solicitor for the Applicant: Cornish Lawyers Counsel for the Respondent: Mr Richadson Solicitor for the Respondent: Patrick Smith Lawyers ORDERS
MLC 7902 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS COLTEN
Applicant
AND: MR KIRSTEEN
Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1.Until further order, the father, by himself, his servants and agents, including Ms B, be and is hereby restrained from:
(a)Howsoever discussing these proceedings and any allegations therein with the children, X born 2017 and Y born 2019 (“children”);
(b)Questioning or interrogating the children in relation to:
(i)Any inappropriate physical contact by Mr C; or
(ii)The mother, Mr C, her household and their time with her; or
(iii)Audio/video recording the children for use as evidence in these or any other proceedings or for the purposes of any complaints to any authorities;
or abiding any person doing any of the matters proscribed by this order.
2.Until further order, the mother, by herself, her servants and agents be and is hereby restrained from:
(a)Leaving the children or either of them at any time unattended in the care of Mr C;
(b)Howsoever bringing the children or either of them into contact with Mr C or allowing or abiding them remaining in the presence of Mr C when he is consuming alcohol or under the influence of alcohol, including but not limited to when he is driving a motor vehicle;
(c)Permitting or abiding Mr C to physically discipline or otherwise commit family violence towards the children or either of them.
3.The mother’s amended Application in a Proceeding filed 22 November 2023 be otherwise dismissed.
4.Paragraphs 1, 2, 7, 8 and 9 of the father’s amended Application in a Proceeding filed 23 November 2023 be dismissed.
5.Paragraphs 3, 4, 5 and 6 of the father’s amended Application in a Proceeding be adjourned to a date to be fixed before a Senior Judicial Registrar.
6.For the purposes of paragraph 8(a) of the Orders dated 19 October 2022, the telephone or FaceTime contact that the father was to have this day between 5.30 pm and 6.00 pm instead occur on Friday 15 December 2023, between 5.30 pm – 6.00 pm.
7.The costs of each party of this day be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kirsteen & Colten has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPORESTRUM J
These are proceedings under Pt VII of the Family Law Act 1975 (Cth) (“Act”) in relation to the two children of the parties’ relationship, who are six and four years of age. The parties separated shortly after the younger child’s birth. Proceedings were instituted by the father in 2021 and were finalised on 19 October 2022 by final orders made by consent (“2022 Orders”), save for one discrete order relating to COVID vaccination which was made by the Court and is not germane for today’s purposes.
Relevantly, the final orders provided for the parties to have equal shared parental responsibility for the children and for them to live with the mother and to spend time with the father four nights per fortnight, as well as on one other occasion per fortnight, but not overnight then. The orders also relevantly provided for telephone and video-call contact for half an hour each week. One month prior to the final orders being made, a Family Report was prepared which I have read, being annexed to the affidavit of the father’s solicitor and filed with my leave today. I infer that it was the impetus for the settlement which was subsequently reached the following month.
Notwithstanding the finalisation of their proceedings in October of 2022, some nine months later, on 15 July 2023, the father filed an Initiating Application, thereby instituting proceedings afresh. On 21 August 2023, the mother filed a Response seeking the dismissal simpliciter of the fresh application. It is not clear to me why these proceedings have been allowed to continue thus far, given the principles in Rice & Asplund (1979) FLC 90-725. However, the father does not necessarily seek to discharge the 2022 Orders by his Initiating Application; he primarily seeks interim orders. It is to be hoped, albeit possibly in vain, that the orders I make today and these reasons for judgment will make the parties see common sense and will quell the dispute between them.
Each party has filed an Application in a Proceeding and neither has filed a Response to that of the other. The mother filed an amended Application in a Proceeding on 22 November 2023, and the father filed an amended Application in a Proceeding on 23 November 2023. Each party filed an affidavit in support of their respective applications on 22 November 2023, along with a shorter affidavit pertaining to a specific incident on 5 December 2023, which I have read. I have also read the supporting affidavit of the mother’s new partner filed 22 November 2023; the affidavit of the father’s new partner, filed 4 November 2023; the affidavit of the father’s solicitor, sworn 12 December 2023, annexing the previous Family Report; an affidavit of the mother’s solicitor, filed 4 December 2023; and an affidavit of Dr D, a clinical child psychologist, filed by my leave today and annexing a report dated 24 November 2023, albeit that it is of limited, if any, utility.
The parties’ respective applications seek a plethora of orders, some of which appear to be ill‑considered or misconceived. It was estimated the hearing would occupy a day of the Court’s time; however, the Central Practice Direction of this Court provides for a two-hour limit for interlocutory applications. Accordingly, I told counsel that they would need to cut their proverbial cloth to measure.
On the part of the mother, the issues are whether the father’s time with the children should now be professionally supervised at a contact centre and whether the father should be restrained from bringing his new partner into contact with the children.
On the part of the father the issue is whether the mother should be restrained from bringing her new partner into contact with the children.
Section 69ZL of the Act provides for short-form reasons to be provided for interim decisions, and these are my short-form reasons. At the outset I observe that I consider both of the parties to have behaved appallingly of late, and my impression is that each of them is using the children as a vehicle with which to continue the dispute between them, notwithstanding the finalisation of proceedings between them just over one year ago. The youngest child is four years of age and therefore the parents have another 14 years during which they are amenable to the jurisdiction of the Court. If the past is anything to go by, the children’s future is bleak.
In February 2023, the father and his partner, a health professional, engaged in conduct which can, at best, be described as extremely ill-advised and not child-focused and, at worst, as deplorable. The father video-recorded his partner asking the younger child, who was then aged only three and a half years, over the course of about eight minutes, a plethora of highly leading questions, manifestly designed to elicit answers from her regarding alleged violence by the mother’s new partner. That should never have occurred. However, both the father and his partner, in their respective affidavits, have expressed contrition for their actions and recognition of the extreme inappropriateness thereof. Further, they have respectively proffered to consent to orders or to give undertakings to ensure behaviour of this kind of behaviour will not occur again.
Notwithstanding, that will not suffice for the mother. Rather, she seeks that the father’s time, which is not specified in the orders sought by her, be professionally supervised and that he be restrained from bringing his partner into contact with the children. She relies upon the aforementioned report of Dr D, clinical psychologist. Upon application by the mother, I allowed that report to be filed, but that does not mean I will give it any weight; I do not, in the circumstances set out hereafter. I observe that, rather than follow the procedure prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”), which is to have a joint single expert appointed, either by agreement between the parties or by order of the Court, she arrogated to herself the right to seek an adversarial expert report, into which the father had no input, nor were the children (or the mother herself or her new partner) interviewed by Dr D.
The Rules make it clear and obvious why, in most cases, a joint single expert is appropriate and is required; I do not understand why that course was not followed. These proceedings have now been extant since July 2023. The mother, as I have indicated, filed her Response the following month, and the matters in respect of which she sought the expert opinion of Dr D have been known to her since prior to the filing of her Response.
Dr D was asked and answered three questions. First, she was asked to advise whether she held any concerns regarding the recording and the manner in which the interview with the children was conducted and, if so, what concerns she held. As to that question, Dr D reports that she considers the video to be “very unreliable evidence of any assault of [the child] or of evidence of risk to the children by the mother’s partner for several reasons”, which she then sets out. It is clear that the only concerns Dr D voiced were as to the reliability of what the children reported, not as to any concerns regarding the fact that the children were recorded or the manner in which they were interviewed.
Insofar as Dr D reports that she considers the recording to be very unreliable evidence of risk by the mother’s partner, I have watched the recording in Open Court. It indeed consists of highly leading and suggestive questions, put to a three and a half year old child. I give no weight to the child’s answers, which were clearly elicited by the questions that were asked, and I also take into account the young age of the child.
Secondly, Dr D was asked to advise whether the conduct of the parties and the father’s partner presents a risk to the development, psychological and emotional needs and interests of the children and, if so, to explain such risk. In this regard, Dr D opines as follows:
14.Whether naïve or intentional, “conversations” such as the one recorded risk contaminating the child’s experience and memories of the persons and events in question due to their high level of suggestibility and vulnerability to memory errors as discussed above. In this scenario, the tone of the conversation and material introduced by the interviewers increase the likelihood that the children will develop and/or embed beliefs about their lack of safety in the care of their mother’s partner that are not based in their own experience. Future conversations of the same or similar nature exponentially increase this risk due to the risk of false beliefs and further allegations becoming richer and more elaborate with repeated discussion. This is likely to undermine the children’s security of attachment to the caregivers in the mother’s home.
15.Given their young ages, the subject children are likely to embrace the perspective and behaviour of the parent with whom they are with at the time, though transitions between homes - where they are caught between warring belief systems and realities - may be momentarily difficult. However, as they mature and move through middle childhood, they are more vulnerable to getting caught between their parents’ different perspectives on issues like the current one. To cope with persistent and contradictory information, the children may develop an alignment with the parent who offers greater perceived safety and to show resistance or reluctance to spend time with the other.
Dr D did not interview the child who was the subject of the video recording. There is no evidence of whether the child has any recollection of the questioning. Further, there is no evidence, expert or otherwise, as to whether she is impacted by it and, if so, how. Dr D’s evidence is, at best, theoretical and given in a vacuum.
The third question posed to Dr D, upon which counsel for the mother placed great weight, was as follows:
Given that the father and his partner see the mother’s concerns as baseless does this raise a concern that they may constitute an ongoing risk to the children given that they may continue to engage in such conduct.
Dr D responds (at paragraph 17) as follows:
If this holds true, even after receiving expert evidence and opinion on the matter, I would consider the risk of future conversations of the same nature to be high and to constitute an unacceptable risk of emotional harm to the children, from which they must be protected. However, having not assessed the children or parties the writer is not in a position to assess this risk, nor to make recommendations as to the level of restrictiveness required.
In my view, it was inappropriate both for that question to be posed to Dr D and for Dr D to respond to it in a vacuum. It is entirely unclear, and it remains unexplained, why, not having interviewed the father or his new partner, she considers the risk of future conversations of the same nature to be high and therefore to constitute an unacceptable risk of emotional harm to the children, from which they must be protected, even if they had considered her opinion regarding the inappropriateness of such conversations.
However, Dr D thereafter concedes that, not having assessed the children or the parties, she is not in a position to assess the risk or to make recommendations as to levels of restrictiveness required. In my view, any risk can be appropriately ameliorated by an order restraining the father, and his servants and agents, from questioning the children in relation to the mother, her new partner and the goings on in their home, and restraining them from recording or using any recordings, whether audio or video, to be used or potentially used as evidence in any court proceedings or in any complaint against the mother and her partner. Indeed, in the absence of evidence to the contrary, I must presume that the father, and his servants and agents, will abide by such an order, such that any risk will be precluded thereby.
To order that the father’s time be professionally supervised at a contact centre and to restrain him from bringing his new partner into contact with the children would, in my view, be a gross overreaction and unnecessary to ensure the children’s best interests. It would be to take a sledgehammer to crack a proverbial nut. I take a dim view of the fact that the mother has, for many months now, withheld the children from spending time with the father. Whilst the father’s Contravention Application, I understand, has been withdrawn, I want the mother and her lawyers to understand that she may not have been as fortunate if it had proceeded before me today.
On the evidence that I have read, albeit untested, and indeed on the mother’s own evidence, I do not consider that she had a reasonable excuse for not complying with the 2022 orders, and there is no evidence that any attempt was made to reach a more appropriate solution, fashioned to meet the not unreasonable concerns she had, rather than arrogating to herself the right not to comply with orders of the Court.
Turning to the father’s case, he seeks to restrain the mother from bringing the children into contact with her new partner. Her new partner concedes that he has difficulties managing his anger and his alcohol consumption. I place no weight at all on the children’s so-called disclosures, contrary to the father’s case, but I do place weight on the mother’s partner’s own evidence and on the s 67Z response dated 22 August 2023 provided to the Court by the Department of Families, Fairness and Housing (“Department”).
By my leave today, an affidavit affirmed by the mother’s partner on 11 December was filed. At paragraph 11, he denies that he has ever been violent to either of the children in any way. He says that he has never hit, smacked or hurt the children in any way. He says that he has never been aggressive, intimidating, abusive or threatening to the children in any way, nor has he done any of these things to the mother. As will shortly become apparent, however, he has, behaved in a way that I consider to be violent, aggressive, intimidating and abusive towards his own child of a prior relationship. That may not bode well for the children the subject of these proceedings.
At paragraph 22 of his affidavit, he acknowledges that his former partner has, in the past, obtained intervention orders against him. He refers to an incident in 2007, after he and others had been drinking, including his former partner. He says that his former partner and he began to argue, which culminated in some pushing and shoving between them. The police were called. He says that, subsequently, in an endeavour to reassure his former partner of his commitment to their marriage and to their child, he attended and completed a men’s behavioural change program, as well as attended five sessions with F Organisation. Both of those programs seem to have had limited results, given his subsequent behaviour.
He then refers to an incident in 2016, when his former partner and he had an argument over money, in the course of which a child of theirs had boiling water spilt over him, although it would appear that it was his former wife who was the instigator of that.
He refers to an incident in 2019, during the course of an argument between his former partner and him. He consumed alcohol. The elder child of that relationship and he got into an argument. He says that the elder child accused him, correctly, of being drunk, and that he acted inappropriately; from his account, I would say that he acted very inappropriately. He grabbed a drawer of her clothing and dropped it over her whilst she was in the shower. He then took more of her clothing and put it out on the front lawn. His former partner called the police; they asked him to leave with them, which he himself concede he foolishly refused to do. He was thereafter charged. He deposes that it is his recollection that both charges were dismissed, approximately six months later; however, he concedes that it is possible that this was in exchange for an undertaking or bond but says that he is unable to recall. He subsequently consented to a final Intervention Order, with both his former partner and his daughter being named as protected persons, for a period of 12 months, which he says has now expired.
He deposes that, following this unfortunate and inappropriate incident, he attended upon his general medical practitioner and sought a mental health-care plan and thereafter attended upon two psychologists over approximately 12 sessions. He says that the sessions helped him to understand the relationship and the triggers for his stress and anxiety, and that he learnt strategies to help him deal with his stress.
Nevertheless, in 2023, he lost his driver’s licence. He says that, over the course of six or so hours, he drank and then drove from a friend’s home in Town E in the direction of where he was staying. He was issued with an infringement notice. As a result, he received a disqualification and a fine, with no conviction or court appearance required. He deposes that, prior to regaining his licence, he is required to complete a drink-driving course, which he says he has completed, and to being eligible to have his licence reinstated in early 2024. Whilst he has seen fit to annex to his affidavit a report by a testing laboratory, which does not appear to disclose any alcohol consumption within it, he has not seen fit to exhibit any proof of the completion of his drink-driving course, which would have provided the Court with a degree of reassurance.
Equally concerning is the s 67Z response provided to the Court in response to a Notice of Risk filed in these proceedings. Relevantly, on page 2 thereof, the Department advises that it has been informed that the mother’s partner has a pending charge from 2020. It is put on behalf of the mother, by her counsel, that this relates to the incident in 2019. It is difficult to see how that can be the case, when the charge is said to be pending since 2020. The Department suggests that this information may be relevant to these proceedings and further recommends that consideration be given to the mother’s partner’s propensity for violence and alcohol abuse in the presence of his biological children. It is not clear why that recommendation is limited to his biological children, and does not also the children the subject of these proceedings, and it certainly is a cause of concern to the Court.
However, as in the case of the mother’s application in relation to the father and his partner, I similarly am of the view that the relief sought by the father against the mother and her partner is draconian. There is another way to protect the children’s best interests without having to resort to such relief. I infer from the father’s consent to the orders that were made some 14 months ago for equal-shared parental responsibility and for the children to live with the mother for 10 nights per fortnight, that he considers her to be a good mother who will act protectively and proactively. I do not accept the father’s suggestion that, whilst that may have been so in October 2022, things have now changed to such a degree that, because of her new relationship, she will not continue to be a good mother to the children, who will act protectively and proactively towards them.
I propose to make orders that will ensure the mother does not leave the children unattended in her partner’s care at any time and that she not bring the children into contact with or allow them to remain in the presence of him when he is under the influence of, of has consumed or is consuming, alcohol, including in a motor vehicle. I take some reassurance in the orders that I propose to make because each of the parties’ respective new partners has proposed to give undertakings to the Court. That is not something that I can compel, nor are the terms of the undertaking something that I propose to have too much input into. Insofar as the mother’s partner proposes not to spend time with the children or either of them other than with the mother or such other adult nominated by her being in substantial attendance, the orders I will make do not provide for any other adult nominated by her. I will require the mother to be in attendance at all times that the children are in the presence of her partner, not merely in substantial attendance.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 1 March 2023
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