Laramie & Laramie
[2024] FedCFamC2F 574
•7 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Laramie & Laramie [2024] FedCFamC2F 574
File number(s): NCC 3682 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 7 May 2024 Catchwords: FAMILY LAW – PARENTING – Best interests of children. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D, 61DA, 65DAA Cases cited: Saif & Saif [2020] FamCA 119 Division: Division 2 Family Law Number of paragraphs: 163 Date of hearing: 8 – 10 April 2024 Place: Parramatta Counsel for the Applicant: Mr Bithrey Solicitor for the Applicant: Conditsis Lawyers Counsel for the Respondent: Ms Rebehy Solicitor for the Respondent: Brigid Justice Ltd Counsel for the Independent Children's Lawyer: Mr Duc Solicitor for the Independent Children's Lawyer: Ark Law Lawyers ORDERS
NCC 3682 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LARAMIE
Applicant
AND: MS LARAMIE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
7 MAY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
Parental Responsibility
1.The mother shall have sole parental responsibility for the children, X, born in 2019; and Y, born in 2022 (hereinafter “the children”).
2.For the purpose of Order 1 and except in the event of an emergency, before making any major long-term decision in relation to the children, the mother will notify the father as follows:
(a)Advise the father in writing not less than twenty-eight (28) days in advance of any decision on major long-term issues in relation to the children proposed to be made by the mother;
(b)Provide the father with all relevant information relating to the long-term issue which is in the possession of the mother;
(c)Provide any necessary authorities to enable the father to obtain any additional information from any relevant health or education institution;
(d)Give consideration to any response from the father before making a decision; and
(e)Inform the father of any decision made as soon as reasonably practicable and no later than seven (7) days after the making of the decision.
3.The parties each have parental responsibility for day-to-day decisions that are not major long-term decisions for the children when the children are in each party’s respective care.
Live with
4.The children live with the Mother.
Time with
5.From the date of the Orders and for a period of 6 months the Father will spend time with the children as agreed between the parties in writing and failing agreement as follows:
(a)Week 1: From 9:00am until 5:00pm each Saturday and Sunday, and each alternate week thereafter; and
(b)Week 2: From 3:00pm until 7:00pm on Thursday.
6.From the completion of Order 5 and for a period of 6 months the Father will spend time with the children as agreed between the parties in writing and failing agreement as follows:
(a)Week 1: From 12:00pm Saturday until 12:00pm Sunday, and each alternate week thereafter; and
(b)Week 2: From 3:00pm until 7:00pm on Thursday.
7.The father’s time shall not progress from Order 5 to Order 6 until such time that the father has completed the Circle of Security Course.
8.From the completion of Order 6 and for a period of 6 months the Father will spend time with the children as agreed between the parties in writing and failing agreement as follows:
(a)Each alternate weekend from the conclusion of school or 3.00 pm on Friday to 5.00 pm on the following Sunday.
9.From the completion of Order 8, the Father will spend time with the children as agreed between the parties in writing and failing agreement, each alternate weekend from the conclusion of school or 3.00 pm on Friday to before school or 9.00 am on the following Monday.
School Holidays
10.Prior to Y commencing Kindergarten, the children’s time with the father pursuant to Orders 5 to 9 above shall continue during school holidays.
11.From the time Y commences Kindergarten and thereafter, the children shall spend one half of all school holidays with each parent as follows:
(a)The children shall spend the first half of the Terms 1, 2 and 3 school holiday periods with the Father in even numbered years and the second half of the school holiday in odd numbered years;
(b)The children shall spend the second half of the Terms 1, 2 and 3 school holiday periods with the Mother in even numbered years and the first half of the school holiday in odd numbered years;
(c)The children shall spend the Christmas school holidays with each parents in alternating weeks, commencing on the first week of the school holidays with the Father in even numbered years and with the Mother in odd numbered years.
12.For the purposes of Order 11 above, the following shall apply:
(a)School holidays shall commence from 9.00am on the day after the last required day of school attendance for Term 4 and shall conclude at 5.00pm on the last day prior to the first day of required school attendance for Term 1;
(b)Changeover is to occur as agreed, and failing agreement, as follows:
(i)In respect of short school holidays, at 5.00pm on the mid-point day between the first and last day of each school holiday period;
(ii)In respect of Christmas school holidays, at 5.00pm on the first Saturday of the school holiday period and each Saturday thereafter;
(iii)In the event that there are two consecutive 'mid-point days', then changeover is to occur at 5.00pm on the first of those two 'mid-point days';
Special occasions
13.Notwithstanding any other Order herein, the children shall spend time with the parties on special occasions as follows (with all other Orders suspended to facilitate such special occasion time as required):
(a)With Father from 5.00pm on Christmas Eve until 5:00pm on Christmas Day in odd numbered years and from 5.00pm Christmas Day until 5.00pm Boxing Day in even numbered years (but only after the father has completed the Circle of Security Course);
(b)With Mother from 5.00pm on Christmas Eve until 5:00pm on Christmas Day in even numbered years and from 5.00pm Christmas Day until 5.00pm Boxing Day in odd numbered years;
(c)With the Father from 5.00pm on the Thursday immediately prior to Good Friday until 5.00pm on Easter Saturday in odd numbered years and from 5.00pm Easter Saturday until 9.00am on the Tuesday immediately following Easter Monday (or otherwise the commencement of school as applicable) in even numbered years (but only after the father has completed the Circle of Security Course);
(d)With the Mother from 5.00pm on the Thursday immediately prior to Good Friday until 5.00pm on Easter Saturday in even numbered years and from 5.00pm Easter Saturday until 9.00am on the Tuesday immediately following Easter Monday (or otherwise the commencement of school as applicable) in odd numbered years;
(e)The children shall spend Mother's Day with the Mother in each year from 9.00am until 5.00pm;
(f)The children shall spend Father's Day with the Father in each year from 9.00am until 5.00pm;
(g)On each of the children's birthdays in each year, the children shall spend time with the parent with whom they are not ordinarily with pursuant to these Orders as agreed between the parties in writing and failing agreement as follows:
(i)For a period of (4) four hours from 3.00pm until 7.00pm.
14.Changeover shall occur as agreed between the parties in writing and otherwise as follows:
(a)Any changeovers that occur on a day that the children are attending daycare or school shall occur to and from daycare or school unless otherwise agreed between the parties in writing; and
(b)All other changeovers shall occur at McDonalds, Suburb B.
FaceTime/phone/electronic communication
15.The Children have phone communication with the Father each Tuesday between 6:30pm – 7:00pm.
16.During the school holiday periods, the father shall facilitate facetime calls between the children and the mother each Wednesday between 6:30pm – 7:00pm.
17.Other than in the case of an emergency, the parties shall communicate with one another in writing, including via text message, email or letter with such communication to be civil, courteous and limited to matters relating to the children and/ or compliance with/ interpretation of these Orders.
18.Each parent shall keep the other advised at all times of their current mobile telephone number, email address and residential address and within 24 hours of such change occurring.
19.Each parent shall do all things and sign all documents necessary to ensure both parents’ names and contact details are included on and remain on all enrolment and other applicable forms for any school/s which the children may attend from time to time.
20.Each parent is hereby authorised to obtain information and documents at their cost and request relating to the children or any of them from any school that the children may attend, including but not limited to all school reports, school curricular, school notices, school invitations and school correspondence and each party shall be at liberty to attend parent/teacher interviews and all other activities to which parents are otherwise invited regardless of whether the children are with that party pursuant to these Orders.
21.Each parent shall notify the other as soon as practicable of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.
22.Each parent shall keep the other informed of any medical, health, dental or other professionals involved in the children's care, including sufficient information to enable both parties to attend any appointments for the children and to obtain information and documents relating to the children (at that party's cost and request).
International travel
23.Upon the child Y commencing kindergarten, pursuant to section 65Y(2) of the Family Law Act 1975 (Cth) each parent is permitted to travel internationally with the children during the time the children are in their care pursuant to these Orders and at other times as agreed to in writing between the parties in advance of such travel provided that:
(a)Neither parent shall take the children to a country that is subject to a “do not travel” alert issued by the Department of Foreign Affairs and Trade at or about the time of either parent’s intended travel with the children; and
(b)Other than in the case of an emergency, prior to any international travel, the parent intending to travel with the children is to give to the other parent:
(i)Not less than four (4) weeks’ prior written notice as to:
A.The intended destination;
B.The proposed date of departure and date of return; and
C.Arrangements to be made for communication between the children and the remaining parent during that period of travel.
(ii)Not less than fourteen (14) days prior to the proposed departure date, written notice of:
A.Proposed travel itinerary;
B.Flight details;
C.Contact details for the parent and the children; and
D.Set arrangements for communication between the children and the remaining parent during that period of travel.
24.Both parties will do all things and sign all documents necessary to facilitate international travel in accordance with Order 23 above, including but not limited to signing any necessary application/s for the children well in advance of any proposed international travel, including but not limited to passport and/ or visa applications and signing any other documents necessary to facilitate the issue of any other document required by the authorities of the destination country(ies) as soon as reasonably practicable after any request from the travelling parent.
25.The travelling parent shall be responsible for all fees relating to the children's international travel, including any required application fees for visas, travel insurance or any other fee required unless otherwise agreed between the parties in writing.
26.As applicable, the non-traveling parent shall deliver the children’s passport/s and/or visas and/or all other required travel documents to the parent proposing to travel at least four (4) weeks prior to the proposed travel or within seven (7) days of notice being received pursuant to Order 23(b)(i) (whichever is the earlier in time)
27.In the event the children’s passport/s are required to be renewed or replaced, each parent will do all acts and things and sign all documents as are necessary to cause the children to be issued with a replacement passport and the parents shall equally share the costs associated with this.
28.In the event of non-compliance by the Mother with Order 27 above, and pursuant to s11(b) of the Australian Passports Act 2005, the Father shall be permitted to apply for a passport/s (including renewal or replacement application/s) without the consent or signature of the Mother first obtained.
Restraints/ injunctions
29.Both parties are restrained by way of injunction from the following:
(a)Making critical or derogatory remarks in relation to the other parent or members of that parent's family in the presence or hearing of the children or allowing the children to remain in the presence of any other third party who is denigrating the children;
(b)Showing the children any document associated with these proceedings;
(c)Using the children as messengers between the parties;
30.Pursuant to section 68B of the Family Law Act 1975 (Cth), the Father shall be and is hereby restrained from allowing the children to come into contact with Mr C (cousin of the Father).
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This final hearing relates to the children X born in 2019, aged about 4 years old, and Y born in 2022, aged 2 years old (“the children”).
PROPOSALS
It was common ground that the children should live with the mother.
The father seeks orders as set out in his final proposed Minute of Order, inter alia, that the parties have equal shared parental responsibility, and that the children spend time with him in accordance with a graduating scheme culminating in four nights in the first week of each fortnight during school term (being Thursday afternoon to Monday morning), one night in the second week of each fortnight during school term (Thursday afternoon to Friday morning), and half of each school holiday period.
The mother seeks orders as set out in her final proposed Minute of Order, inter alia, that she have sole parental responsibility, and that the children spend supervised time with the father each alternate Sunday from 9.00 am to 5.00 pm, such time to be suspended for half of each school holiday period.
The Independent Children’s Lawyer (the “ICL”) seeks orders as set out in their final proposed Minute of Order, inter alia, that the mother have sole parental responsibility, and that the children spend time with the father in accordance with a graduating scheme culminating in three nights in the first week of each fortnight during school term (being Friday afternoon to Monday morning), one night in the second week of each fortnight during school term (Thursday afternoon to Friday morning), and half of each school holiday period.
MATERIAL RELIED UPON
The father relied upon:
(a)Amended Initiating Application filed 18 September 2023;
(b)His affidavit filed 6 March 2024;
(c)Affidavit of Ms D filed 6 March 2024;
(d)Affidavit of Ms E filed 6 March 2024;
(e)Affidavit of Mr F filed 15 March 2024;
(f)Case Outline filed 4 April 2024.
The mother relied upon:
(a)Amended Response fled 30 November 2023;
(b)Her affidavit filed 5 March 2024;
(c)Affidavit of the maternal grandmother filed 5 March 2024;
(d)Notice of Risk filed 17 February 2024;
(e)Case Outline filed 4 April 2024;
The ICL relied upon:
(a)Family Report of Ms G dated 4 July 2023;
(b)Case Outline filed 8 April 2024;
(c)Minute of Order.
The following documents became exhibits:
(a)Exhibit A: J Contact Service report, pp 39 – 42 of father’s tender bundle (“FTB”);
(b)Exhibit B: Psychologist’s notes (pp 94 – 105 of mother’s tender bundle (“MTB”);
(c)Exhibit C: Social media screenshot;
(d)Exhibit D: Bundle of text message exchanges between mother and father;
(e)Exhibit E: Patient Health Summary, pp 115 – 117 MTB;
(f)Exhibit F: Mother’s witness statement to police dated 30 September 2022, pp 7 – 8 MTB;
(g)Exhibit G: H Child Care Centre enrolment form, pp 90 – 117 FTB;
(h)Exhibit H: Contact record with DCJ, p 44 FTB;
(i)Exhibit I: K Health Service file note, p 63 FTB;
(j)Exhibit J: J Contact Service reports, pp 22 – 60 of ICL’s tender bundle (“ICL TB”);
(k)Exhibit K: Family Report of Ms G dated 4 July 2023;
(l)Exhibit L: K Health Service file note, p 81 MTB;
(m)Exhibit M: Father’s final Minute of Order;
(n)Exhibit N: Mother’s final Minute of Order.
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence of the parties’ relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC considerations (i.e. section 60CC of the Family Law Act 1975 (Cth) (“The Act”)) (see below). In the event of any conflict between the evidence in this section and evidence referred to under the Court’s discussion under section 60CC, the latter evidence shall take precedence.
The father’s demeanour when giving his oral evidence was one of relative calm. He did not exhibit overt aggression when being cross-examined. He usually sought to give responsive answers to questions asked of him.
The mother’s demeanour when giving her oral evidence often revealed a state of tension and anxiety. In this context, her evidence included statements to the effect that she had been significantly emotionally traumatised by the father’s behaviour towards her during their relationship and that she was still in a process of healing following such behaviour. She usually sought to give responsive answers to questions asked of her.
The father’s evidence
The Court does not propose to set out the entirety of the father’s affidavit and oral evidence.
The father gave oral evidence on Monday 8 April 2024.
The mother’s counsel cross-examined the father.
The father agreed that the mother had asked him during their relationship to be careful as to how he touched the mother in front of the child X. He stated that the mother had asked for non-prolonged hugs or kisses in front of this child.
The father agreed that he had touched the breasts of the mother (which was the subject of text messages between the parties on about late 2022).
The father agreed that following the birth of X, when the mother’s breasts were still tender, he would still try to touch her breasts.
The father agreed that during the parties’ relationship, when he was in the car together with the mother, he put his hand on the mother’s thigh underneath her skirt. The father stated that he would cease doing this if the mother tried to move his hand away, however he stated that, on occasion, he would put his hand back on the mother’s thigh. He stated that he could not recall whether or not X was present in the car when he put his hand back on the mother’s thigh.
The father conceded that he had called the mother an idiot when the child X was a baby albeit he had immediately apologised.
The father stated that he had attended upon counsellors or psychologists over the years. He stated he was presently on medication.
The father acknowledged that the mother had had surgery in 2021. He stated that he was aware that following the surgery the mother was in pain, and had stitches. He acknowledged that he knew the mother was complaining of feeling that she was going to vomit. He acknowledged that the mother had told him that the prescribed medication seemed to be coming in but the pain was worse at night. The father acknowledged having sexual intercourse with the mother at this time and that the child Y was conceived.
The father did not agree that he had control over the parties’ finances during their relationship. He confirmed the parties’ bank account was a joint account. He disagreed that he had told the Family Report writer that the parties had separate bank accounts (see paragraph 47 of the Family Report).
The father agreed that during the relationship he had accessed the mother’s telephone messages (without her consent). He accepted that the mother had thereby experienced a lack of privacy.
The father agreed that he had approached the mother in mid-2022, when she was sitting on the lounge room floor, and requested to have sex with her. He agreed that the mother had told him that the parties had had sex the previous night and that she did not want to have sex tonight.
In relation to the mother’s allegation that during the night of mid-2022, she had woken up to the father penetrating her with his fingers, trying to arouse her for sex, the father stated that the mother had become upset because he had touched her thigh and kissed her cheek whilst she was asleep, and once she had woken up, he had asked her to have sex, to which she had refused. The father stated that this conduct towards the mother as described in paragraph 22 of his affidavit filed 6 March 2024 was enough to cause the mother to be so upset that it broke up the parties’ marriage.
The father agreed that the parties had an exchange during a night in mid-2023, wherein he said “what?” and she responded “you know what you were doing.” He denied that this occurred following the conduct described by the mother.
The father gave evidence about sexual abuse that he had been subjected to by his cousin, Mr C, at the age of about 11 or 12. The father stated he had no concerns about his cousin Mr C coming into contact with the children; he does not socialise with them.
The father agreed that in the context of a discussion with his psychologist, he had recognised that some of his behaviours towards the mother were not appropriate and were “sexually wrong”. He clarified that this recognition related to his version of the events of mid-2022. It was put to the father that on many occasions he did not listen to the mother (in respect to their sexual relationship), and that he pushed the boundaries of what she was comfortable with, to which the father replied, “On some occasions perhaps.” He gave examples of this conduct of giving her a hug, putting his hand on her thigh, kissing her for too long, and being overly affectionate too often.
The father stated that he felt that the mother had been vindictive towards him at the end of their relationship. The father was asked to accept that the mother had concerns regarding his behaviour towards her, to which the father replied that he did not believe that the mother’s concerns were genuine all the time.
The father was asked whether he had ever lost his temper with the child X. In reply he stated that of course he got frustrated with her but he did not hurt her.
The father stated that since late 2023, when a mediation occurred between the parties, the parties have been communicating through a parenting app. After the parties’ separation in September 2022 and up to late 2023 they had been communicating with each other through the maternal grandmother. The father confirmed that since the parties’ separation he had had no face-to-face conversations with the mother nor telephone conversations with her.
The father confirmed that he had not completed an anger management course nor had he attended a men’s behaviour change program.
The father was cross-examined in relation to choice of school for the eldest child in 2025. He confirmed he had not made any proposal to the mother at this stage. He stated he was concerned about his own travel to and from the school. He stated that a school halfway between each parties’ home would be appropriate. He did not agree that the eldest child attending a school closer to the mother’s residence was preferable.
The father stated he had been in a new relationship for about six months and he had commenced cohabitation with his new partner in about early 2024.
The father stated that he did not accept the mother’s fear of the children being at risk if spending time with him. It was put to the father that the mother’s fear was genuine, to which the father denied.
Counsel for the ICL cross-examined the father.
The father stated that he had completed a parenting after separation course. He was asked what he had learnt from the course he stated, inter alia, that he should remain child centric and see things from the child’s perspective.
The father confirmed that the mother had not consulted him regarding sports lessons for the eldest child.
The father stated that should Mr C be restrained from coming into contact with the children it “could be worked around”.
The father confirmed that in his past counselling sessions the issue of the sexual assault by Mr C upon him had come up. The father denied that this event had caused any impact upon his relationship with the children. He stated that this assault upon him has no ongoing impact on his relationship with the children. In this context, the father stated that he knows who he is as a person and would not do anything to harm the children. The father stated that he still sees his counsellor who he has seen since early 2023.
The father stated that he listens to the children if they have any issues. In this context he stated that if, for example, the children were upset he gets on a level, and tries to be sympathetic. He states he tries to provide a safe place for the children to ask him what is wrong. He related how he sympathetically deals with the child X when she becomes upset on having to leave an activity that she is taking part in when spending time with the father to return to the mother’s care.
The father stated that he had looked at the mother’s telephone messages because, having reflected, he was experiencing insecurity and had self-esteem issues for which he sought counselling. He admitted it was incorrect behaviour.
The father stated he had reflected on the mother’s allegations against him relating to how she was treated sexually during their relationship. Without acknowledging the truth of the mother’s allegations, the father stated that he tries to be more self-conscious of his actions and how they impact on others.
The father stated he respects the mother having raised the parties’ children and bringing them into the world. He stated that the mother has skills as a parent, she is very caring for the children, and seeks their best interests and tries to put them first.
The father was asked whether he respected the mother during the parties’ relationship, having read the mother’s affidavit. The father replied that from his perspective he felt that he was respectful towards the mother during the parties’ relationship.
The father was asked whether he could improve his communication with the mother. The father stated that he didn’t see anything that he could do in this regard but that he would try to assist.
The father stated his opinion that the mother had made an allegation against him of physically mistreating X because she did not want the children in his care and that he thought it was a way to withhold the children from him.
The father stated that he puts the youngest child Y to sleep on Saturdays and he does not get frustrated with her.
The father stated that he could maintain a meaningful relationship with the children if they were spending time with him four nights each fortnight but that such time may not be fair on the children. He confirmed he presently had a meaningful relationship with the children.
The father stated that he did not consider a men’s behaviour change program was “one hundred per cent necessary” for him as he does not have any behavioural issues.
The father stated that he consults with his therapeutic counsellor each month and he is open to further discuss with that counsellor the past sexual assault upon him.
Evidence of Ms E
The Court does not propose to set out the entirety of this witness’ evidence.
In oral evidence, this witness, the father’s sister, stated that the father had told her that the mother had made allegations against him of sexual assault. There were no discussions about the extent of this sexual assault. She stated that there were some discussions between herself and the father relating to alleged controlling behaviour by the father.
The witness told the Court that moving forward she does not want to continue as a supervisor of the children’s time with the father because she has three children, she is a professional, and she suffers from a medical condition.
Evidence of Mr F
The Court does not propose to set out the entirety of this witness’ evidence.
This witness, a friend of the father’s, stated, inter alia, that paragraph 8 of his affidavit set out the full extent of information the father had shared with him. He stated the father had not given him any details of what the mother had alleged against him.
The mother’s evidence
The Court does not propose to set out the entirety of the mother’s affidavit and oral evidence.
The mother gave oral evidence.
The mother stated that in the immediate post-separation period she had the support of her mother who communicated with the father, on the mother’s behalf, what time the children would spend with him.
It was put to the mother that knowing the father as she did in late 2022, she was comfortable that the eldest child was safe to spend time with the father (at that time). In reply, the mother confirmed that to be the case because she was still supporting the children’s relationship with the father, however she did not then realise the extent to which what had happened in the home (during the parties’ relationship) would impact upon the children.
The mother stated that one day she had hoped to have the youngest child baptised.
The mother stated that presently an outstanding major decision for the children was which school the eldest child will attend next year.
The mother stated that communications from the father to her were (usually) not calm and controlled, were sarcastic, and demeaned the mother’s responses.
The mother stated that she did not feel able to communicate with the father the parenting app relating to the choice of school for the eldest child in 2025.
The ICL’s counsel cross-examined the mother.
The mother was asked why she had not replied to the father’s solicitor’s letters of 12 October 2022, 19 October 2022, and 31 October 2022. The mother stated that these letters were received by her during her process of healing. She stated that her reaction on receiving these letters was to “freeze.” At this time, she was also going through a process of getting the children’s needs met. She stated that she felt that the solicitor’s letters were an intimidation tactic. She stated that the father’s sexual assault (upon herself) was weighing on her mind.
The mother was asked what risks she saw in the father spending time with the children. In reply, the mother stated that the father displays no remorse for his abuse upon her, his anger towards her, and he would continue such behaviour in front of the children unless he takes ownership of the situation and tries to get help. She clarified “in front of the children” by stating that she was concerned the father would act in an inappropriate and angry manner in the presence of the children. She further clarified by stating that she would be concerned the father would engage in gaslighting behaviour, coercive control, anger, and groping under clothing, in front of the children. She expressed her concern that the father may neglect the children through wanting to meet his own needs rather than meeting the children’s needs first.
The mother stated that the father might coerce or control the children by, for example, asking leading questions of the children to get the result that he wanted. She expressed her concern that the father might physically mistreat the children particularly if he became angry.
When asked to consider the father’s good qualities, the mother stated that the father would sit with and cuddle the child X whilst they watched a movie, he would play Lego and do arts and crafts with this child.
The mother was questioned in relation to not having communicated the contents of a mental healthcare plan for a child to the father. She stated that a concern that she had was that she used to be met with resistance from the father in this context. She stated that for example the father had yelled at her in front of a doctor. She stated that the father did not give her any acknowledgement that she knew what she was doing.
The mother confirmed that she uses the app to communicate with the father. She stated that she gets anxious communicating with the father. She stated that she was scared of the father’s reaction; she gave as an example that she was rebuffed by the father when she tried to put back a visit by 10 minutes. The mother stated she was apprehensive in communicating with the father.
The mother stated that she has become much stronger, particularly since attending counselling. However, she stated that every time she comes back to her past relationship with the father she cannot move on.
The mother’s attention was drawn to paragraph 94 of the Family Report referring to the mother being somewhat dismissive of the children’s relationship with the father. The mother stated that at the forefront of her mind are the dangers to the children if the children’s time with the father is unsupervised. Rhetorically, she asked how she could bring up her children in circumstances where she had suffered abuse (from the father). The mother stated that presently she was not healed enough to deal with this.
The mother stated that the father’s time with the children should be supervised until he takes responsibility for the fact that his past actions have had repercussions on others.
Questioned in relation to the issue of parental responsibility, the mother stated that it was hard to make decisions regarding the children when you don’t see eye to eye with the other parent. She stated that if she was to suggest something to the father, the father would say, “that doesn’t work for me.”
The mother was asked whether she could ever see a time where she could communicate with the father by telephone or face-to-face. The mother replied in the negative, stating that she was unsure as to whether she could get past what had happened to her. In this context she stated that her anxiety had something to do with that answer.
Evidence of the maternal grandmother
The Court does not propose to set out the entirety of this witness’ evidence.
In relation to paragraph 51 of her affidavit, the witness stated that there was a lot of confusion at this time. She stated that one matter was that the mother was able to get her name off the lease if domestic violence was shown, however another matter was that the mother was very fearful of the father’s reaction to an ADVO.
In relation to page 78 of the father’s affidavit, annexure R, being a text message exchange between the father and the maternal grandmother in early 2023, the witness stated that her text messages to the father stating, “Do not contact [the mother]” and “In any way, at any time any lifetime. Stop now. You can speak to me” were sent by her due to the mother’s fear. She stated that at this time the mother was still healing but the father would not leave the mother alone.
The witness stated that the mother was getting stronger and that she now comes to changeovers.
The witness was asked about alleged controlling and coercive behaviour by the father towards mother during their relationship. She gave examples. She stated that the mother was constantly getting rung by the father before shopping. She stated that the father insisted on photos if the children were playing in the park (and he was not present). She stated that she would have to leave the parties’ residence when the father returned home.
Family Report
The Family Report of Ms G, Private Practitioner, Family Consultant, dated 4 July 2023. She interviewed the family in mid-2023.
The Court does not propose to set out the entirety of the Family Report.
Under the heading “The adults, the mother”, the Family Report writer stated:
21.The mother was cooperative throughout the assessment. The mother was, however, very obviously distressed when speaking about her concerns for the safety of the children in the father’s care and her own experience of the father.
Under the heading “The co-parenting relationship”, the Family Report writer stated:
35.It is common ground that there is no communication between the parents, with the maternal grandmother acting as the conduit between the parties.
36.The mother acknowledged the parents would need to communicate at some stage but said she was fearful of communicating with the father. The mother said she would be willing to communicate by way of a physical communication book. The mother does not wish to communicate by any electronic form (such as text, email or an app) as it would mean “he (the father) would have access to me all the time.”
Under the heading “Risk of family violence”, the Family Report writer stated:
42.The mother said the father’s behaviour had persistently made her feel scared and concerned about her safety during the relationship. The mother alleged the father had monitored her movements - constantly asking her where she was and isolated her from family and friends by making visitors (including family) feel uncomfortable. The mother also described the father as getting “angry all the time” involving him raising his voice or “punishing” her with “silent treatment”. Whilst the mother expressed these concerns, it was clear that the mother’s greatest concern in the relationship was the alleged repeated sexual assaults on her by the father.
43.The mother has outlined the alleged sexual assaults perpetrated by the father on her at length in her affidavit material and the details will not be repeated in full here. In summary, however, the mother alleges the father pressured her to engage in sexual activity and became angry or gave her silent treatment if she did not agree. The mother reflected, “his temper taught me to concede and have sex as it was easier than dealing with his emotional manipulation.” The mother indicated initially she did not verbalise she was not consenting as her response was to freeze, saying, “I have learned that I freeze, and I don’t move and in the relationship, I was frozen, and I did not fight because I could not.” She said, however, towards the end of the relationship she sought to assert herself and consistently made it clear to the father she was not consenting, but the father continued to engage in sexual activity with her regardless.
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45.The mother said that the last occasion the father (allegedly) sexually assaulted her was when she woke to find the father engaging in sexual activity with her. She said she addressed this with the father who was dismissive and not conceding any fault for his behaviour. The mother said she worried this was an escalation of the father’s behaviour and led to her realising, “if I don’t do something now, he is going to start physically pushing me down and doing it.”
Under the heading “Child Safety and Wellbeing”, the Family Report writer stated:
67.As outlined previously, the mother raised concerns about the father perpetrating family violence. When asked how the (alleged) family violence impacted on the father’s ability to care for the children, the mother replied, “My concern is that I do a lot for the girls, I did a lot for the girls when I was living there, and he did not do that many things. I am concerned that he will miss something, or they will end up being hurt because he is not aware of what he needs to do. He has not taken any onus on what he has done so I am worried he will enter a new relationship and display the same behaviours and the children will come to think that is a normal relationship. I am quite concerned with his level of favouritism with [X] and disregard for [Y].” She further stated, “If they stay overnight and [X] has difficulty falling asleep I am certain he will not be able to cope and he will react in an aggressive manner. If there are two and he is doing it by himself he will not cope.” (Q. What do you think will happen if he does not cope?) “I have seen him throw [X] so I would not put it past him for that to happen again.”
Under the heading “Mental health”, the Family Report writer stated:
70.The mother reported she was diagnosed with anxiety in 2014. She stated this arose around the time when she tried to end the relationship with the father, but the father threatened to engage in deliberate self-harm and so she did not end the relationship. The mother links her need for mental health support to being in the relationship with the father and being exposed to ongoing emotional and psychological control from him. The mother reflected she now realises how unhappy she was in the relationship, saying, “I feared dying because I thought this is what my life is and will be, until I die.” Currently the mother finds it very anxiety provoking and difficult when there are Court events or she has to speak about things that happened in the relationship, but otherwise, “in every other area in my life I feel light, freedom, happiness.”
71.The mother indicated she had gained significant benefits from accessing counselling. She currently takes a low dose of anti-anxiety medication.
72.The writer asked the mother how she coped when the children spend time with their father, and she reported feeling lonely, and she worries about the children “quite a bit” but she tries to keep busy and fill her time. She does not believe the children are aware of how she is feeling.
73.The mother does not believe the father has been diagnosed with any mental health issues, but she does have some worries about his mental health. In this regard, the mother reported the father had a difficult upbringing in his family and she believes this has impacted his coping, functioning and behaviour. The mother believes this directly impacts the father’s capacity to care for the children, saying, “I just don’t think he can regulate his emotions in a healthy way, so he does not react in an aggressive manner, whether he gets anxious, and something happens, and it triggers him, and he reacts aggressively rather than staying calm and being the adult and using different techniques to do as he has asked.”
76.There was no collateral material available to the writer in relation to the mental health of the mother. While it is not in doubt the mother is able to provide for the day-to-day needs of the children, the mother’s presentation at the interview suggested the mother’s emotional state as it relates to the father is an issue for consideration in this matter. Specifically, the mother’s presentation supported she experiences the (alleged) sexual assaults and associated trauma as present and unresolved which means she continues to experience high levels of anxiety in relation to the children spending time with the father and fear in relation to interacting with the father.
Under the heading “Evaluation”, the Family Report writer stated:
90.The allegations of the father perpetrating sexual assault on the mother are of serious concern and warrant very close consideration. This is because if the Court found the father had sexually assaulted the mother it would demonstrate his ability and willingness to disregard the boundaries and preferences of another person for the purposes of sexual gratification. Further to this, if he has behaved as alleged then he has accepted no responsibility for his actions, expressed no remorse for his behaviour, and accordingly has very limited insight into how this behaviour may impact on others. This would be of serious concern as it would demonstrate a lack of empathy, regulation of emotions, control of behaviour, personal accountability, and appropriate boundaries, all of which are cornerstones of safe, appropriate, and emotionally responsive parenting.
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93.The writer’s observation of the relationship between the father and the children is that it is close and connected and that both children feel secure in his care and use the father as a safe base. The father demonstrated he was attuned to the children’s needs, he ably provided for all of their needs during the observation session and there was no evidence to support he is not able to provide for the children’s day-to-day needs when the children are in his care. In summary, on the basis of the observation session and noting no collateral material to the contrary, the writer is of the view that the children feel comfortable in the father’s care and that the father can provide appropriately for the day-to-day care needs of the children.
94.Noting the observations by the writer regarding the nature of the children’s relationship with the father, it is of some concern that the mother presented as somewhat dismissive and minimising the strength of the relationship the children have with the father. Further, she appeared to be raising relatively minor issues to place barriers in the path of the children spending increased and unsupervised time with the father.
95.The mother’s approach in this regard may be because the mother is not able to separate her own experience of the father from the children’s separate and different experience of the father. The mother’s responses in this regard would be understandable if the Court accepts the father has perpetrated family violence as alleged. Noting, however, that the mother agrees the children will spend unsupervised and overnight time with the father in the future, it will be essential for the mother to develop greater insight into the importance of a relationship for the children with the father, and that she comes to understand that the children’s relationship with their father is likely to be different from that which she had with the father.
96.It is noted that although the mother seems resistant to the children having a relationship with the father, the children have been able to develop a close and connected relationship with the father while living with the mother which means to date she has demonstrated the ability to facilitate a meaningful relationship for the children with the father, despite her personal views of him.
97.The writer’s view is that there is currently insufficient information to support the children are at unacceptable risk of harm in the care of the father. If the Court accepted this, then it would be of benefit for the children to spend gradually increasing and unsupervised time with their father. The increase in time should take into account the children’s ages and stages of development and in this matter given [Y] is the youngest, her needs should be given paramount consideration.
98.The father’s proposal of building to an equal time arrangement would not be supported given the children’s very young ages2, the need to assess how the children manage the increasing time, and the lack of any functional co-parenting relationship. The writer does consider3, however, that it would be appropriate for the children to spend substantial and significant time with the father, and the recommendations made are designed to provide some developmentally appropriate guidance as to the graduation in time.
99.If the Court finds there are limitations in the father’s parenting capacity as alleged by the mother, the mother’s proposal of the children building to four nights a fortnight with the father may be appropriate.
100.The ability and willingness of the parents to communicate and collaborate about the needs of the children is a key issue in this matter. Specifically, the mother is not willing to communicate with the father. This lack of ability to make shared decisions for the children is unfortunate given both parents appear to have the capacity to make child focussed decisions for [X] and [Y]. Given the current situation, at this time it is recommended the mother have sole parental responsibility for the children. The allocation of parental responsibility could, however, be re-visited at a later date after the parents attend the Keeping Contact program or similar.
The Family Report writer gave oral evidence.
Counsel for the father questioned the Family Report writer in respect to her recommendations relating to the children’s time with the father:
[COUNSEL]Yes. So what you’re essentially saying is, it’s to the benefit of the children to not just see their father on the weekend but have an experience of them – parenting them during their midweek routines. Correct?
[WITNESS]Yes. If there’s not unacceptable risk, and if the court finds the mother is able to emotionally manage that and support that.
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[COUNSEL]I understand, but if the mother’s presentation is for a reason not to do with anything that would cause you to label as unacceptable risk, your recommendation accommodates that the mother has got certain feelings about the father and having to interact with him. Is that right?
[WITNESS]It does. And I – I think there’s a balance. There’s two things to think about there – is – I do think the court needs to think about how the mother’s emotional state will impact on the children if they’re spending that significant time with the father. But also, if the court was to find that the children in the mother’s household were going to have a negative view of the father – or imply, because of the mother’s anxiety, that there’s something bad or wrong with the father – and sometimes it’s important to ensure the children have their own experience of that person so that – that parent – separate from that of their lived with parent. So that – there are a couple of considerations. It’s a balance.
The Family Report writer was questioned in relation to alleged sexual assault upon the mother and was asked to assume, inter alia, that the father never physically forced himself upon the mother and this evidence was given by her:
[WITNESS]… But physical force is not always used or needed to coerce someone into behaving in a certain way. So I’m mindful of that. I think I can say – to clarify things – if the court was to find that the father had a mistaken belief – that he wasn’t deliberately disregarding the mother’s personal boundaries – if he wasn’t lacking empathy, then I wouldn’t hold those same concerns.
Counsel for the mother questioned the Family Report writer.
The Family Report writer was questioned in relation to parental responsibility and this evidence was given:
[COUNSEL]The mother’s evidence is that the father dismisses her suggestions and tends to demean or not place any weight on things that she makes a comment about or suggestion about. That poses a risk, doesn’t it, for these children if that were the case?
[WITNESS]So is this a risk or are you asking me about shared parental responsibility?
[COUNSEL]Yes. Well, parental responsibility – if parents can’t reach an agreement – genuinely reach an agreement – that poses a risk for the children, doesn’t it?
[WITNESS]Yes. I think if his Honour found that the parents were not able to collaborate in a respectful manner – if one parent was dismissive or derogatory or demeaning, then, yes, I think that would act against the parents equally sharing parental responsibility.
The Family Report writer was questioned in relation to the alleged issue of coercive and controlling behaviour by the father towards the mother during the relationship and this evidence was given:
[COUNSEL]But assuming that his Honour is going to be asked to make a finding that the father has in fact been a perpetrator of controlling coercive conduct towards the mother throughout the relationship. And assume that his Honour is satisfied, on the evidence, that that’s the case. What does that mean, a) for the mother, in terms of her having to deal with the father, and b) for the father, in terms of his parenting capacity. And I might just ask you, the third question will be what – what can we do about that, if anything?
[WITNESS]I think it’s really important that you have put those two together, in terms of it’s not just about the father’s parenting capacity, it’s also about the impact on the mother, because the reality is the children are going to live primarily with their mother, in my proposal, in terms of she’s, clearly, the children’s primary attachment figure. And in circumstances, if I accept those, the hypothetical circumstance of family violence and that they will remain living with her. So the importance to the children then is making sure that primary parent is as best supported as they can be to meet all of the practical, emotional, relational needs of those children. So I think that they cannot be looked at separately, they must be looked at together.
[COUNSEL] Yes?
[WITNESS]Because the children are not living just with one parent or another parent. This is their life. And so it’s important to look at those two together. In terms of thinking about, well, what does that mean for the children, in terms of the father’s parenting. And if we’re talking about controlling and coercive behaviours, then there is a greater risk that the father will parent in a controlling and coercive way with the children. So that may escalate to the use of force if they’re not compliant with him, if you accept that he has thrown one of the children, as alleged by the mother. So it’s about – it’s a range of things. So if we think about the first is the empathy, which I’ve already spoken about. So to really understand what’s happening for that child, to respond appropriately, to meet their emotional needs. That’s the cornerstone, that’s what we’re looking for, that’s what we’re talking about when we talk about parenting capacity.
[COUNSEL]Yes?
[WITNESS]Those things. It’s not necessarily – yes, keeping them, doing all the basic needs is important, feeding them, housing them, clothing them, those sorts of things, they’re important. But when I’m talking about parenting capacity, I’m talking about those deeper emotional relational issues. So there is that. There is the potential for role modelling, in terms of gendered roles. So if the father had clear views about power relationships between men and women, and we’ve got two little girls here, then that could be sending some powerful messages to them, which they may internalise. And then in their relationships, that may heighten their vulnerability to dynamics such as family violence, if they consider that this is an appropriate and normal way that they should be treated. In terms of what we do about that, well, we think about, well, what’s the benefit of a relationship with their dad? And generally, kids benefit from having a relationship with both parents. We just need it to be safe and to be something which – and I’m not just talking physically safe, but also meeting their emotional needs.
[COUNSEL] Yes?
[WITNESS]If you were to say, look, I think these children are physically safe with their dad, but I’m worried about these emotional issues, then you would be talking about limiting the time. Not necessarily supervising it, but limiting that time. So they’re having, hopefully, the best of their dad, but most of their time they’re with their mum, who role models something different. But they’re still having that exposure to their dad. So they’re not – in their head, if they would have no time or limited time with him, then they may come to idealise him, which is also not necessarily in their best interests when we’re talking about coming into adolescence. So I think, again, it is finding that balance.
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[HIS HONOUR] Sorry. Can I just ask a question, just on this topic of alleged controlling and coercive behaviour by the father during the party’s relationship. If you look at paragraph 90 of your family report, which appears to be confined to sexual behaviour by the father. Are any of those factors or matters that you raise in paragraph 90, such as limited insight, lack of empathy, and so on, do any of those matters that you have referred to in paragraph 90, would they apply to this broader assumed scenario of there having been a pattern of controlling behaviour by the father, towards the mother, during their relationship?
[WITNESS]Yes.
[HIS HONOUR] Could you unpack that for the court please?
[WITNESS]So, in terms of why that would be the case, your Honour?
[HIS HONOUR] Yes?
[WITNESS]So, in terms of if we’re thinking about or if the court accepts that the father has engaged in a controlling manner with the mother, then the court has to, in my view, think about what does that mean for his parenting of the children. And if he has no insight into that, then the likelihood of change is low, and he’s likely to engage with the children in similar ways. Not – to be clear, not necessarily around sexual harm, but in terms of breaching their boundaries, not understanding what might be distressing for them and responding appropriately. It’s particularly as children get older and when they enter this adolescent stage of development, when children are wanting to, well, it’s appropriate, it’s a normal stage of development, where it is the time when they express their own needs over those of the parents. There’s a real shift in the parent-child relationship. And they’re looking to arrange the world to suit their own needs. And that can be quite triggering for someone, if you accept that the father has a behaviour to engage in controlling behaviour in his close relationships. These are little girls. If he has views about gender norms and stereotypes, then he may have expectations of the children which are different to the children’s expectations and desires. And that can really, that’s why we see lots of tension – that’s why see lots of tension in adolescent parent-child relationships.
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[HIS HONOUR] And she – in terms of that, if the mother – if, in fact, the court finds that there has been a pattern of controlling coercive conduct and the mother was a victim of that, that would have certain impacts on her capacity, wouldn’t it, in terms of having to communicate with the father – or her?
[WITNESS]Yes.
[HIS HONOUR] Her ability, I should say, to communicate with the father?
[WITNESS]Yes. I wouldn’t just say it’s her ability, it’s about the emotional responses that might trigger for her.
The Court accepts the evidence of the Family Report writer subject to any contrary view expressed by the Court below, whether express or implied, in its discussion of relevant matters under s 60CC of the Act.
RELEVANT LEGAL PRINCIPLES
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
I certify that the preceding one hundred and sixty-three (163) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 7 May 2024
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