Lavigne & Gavin (No 2)
[2024] FedCFamC2F 737
•12 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lavigne & Gavin (No 2) [2024] FedCFamC2F 737
File number(s): SYC 3478 of 2021 Judgment of: JUDGE HARLAND Date of judgment: 12 June 2024 Catchwords: FAMILY LAW – application for review – parenting only interim orders – should the children continue to spend time with the father supervised – should the children spend time with the father in accordance with final orders made 3 April 2023 – where the parties are unable to communicate effectively – where there is significant parental conflict - the children at risk of emotional and psychological harm letter to the children from judicial officer – Independent Children’s Lawyer to give letter to children Legislation: Family Law Amendment Act 2023 (Cth)
Family Law Act 1975 (Cth) s.60B, 60CC
New South Wales Crimes Act 1900 (NSW) s.61AA
Cases cited: Lavigne & Gavin [2024] FedCFamC2F 353
Isles & Nelissen [2022] FedCFam1A 97
Division: Division 2 Family Law Number of paragraphs: 123 Date of hearing: 17 May 2024 Place: Melbourne Solicitor for the Applicant Ms Grew of Matthews Folbigg Pty Ltd Counsel for the Respondent Ms Spain Solicitor for the Respondent Barkus Doolan Winning Independent Children’s Lawyer Ms Al Hashimi of Mason Mia & Associates-Solicitors ORDERS
SYC 3478 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GAVIN
Applicant
AND: MS LAVIGNE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
12 JUNE 2024
THE COURT ORDERS THAT:
1.Orders 1, 3 to 5 and 7 to 14 of the Orders made by a Senior Judicial Registrar on 25 January 2024 remain in full force and effect.
2.Order 2 of the Orders made on 25 January 2024 be discharged.
3.The father spend time with the children on alternate Saturdays from 1.00pm to 6.00pm.
4.The father’s time with the children be professionally supervised by R Contact Service or such other agreed agency at the father’s sole expense.
5.Order 6 of the Orders made on 25 January 2024 be amended so that it reads the Father shall be at liberty to contact the children via telephone from 7.30am to 8.30am or 5.00pm to 6.00pm, with such telephone calls to be made in the presence of the Mother.
6.The Independent Children’s Lawyer be at liberty to provide a copy of these Orders and Reasons to the family therapist including a copy of the letter appearing at the end of these reasons.
7.The parties be at liberty to provide a copy of these Orders and Reasons to any treating therapist the parties are seeing.
8.The mother be at liberty to provide a copy of these Orders to the children’s schools and a copy of these Reasons to the children’s counsellors including a copy of the letter appearing at the end of these reasons.
THE COURT DIRECTS THAT:
9.The Independent Children’s Lawyer is to meet with the children as soon as practicable to explain the interim orders and provide the children with a copy of the letter appearing at the end of these reasons.
10.The Independent Children’s Lawyer is to provide R Contact Service a copy of these Orders and Reasons and is to speak with the supervision service about the supervision concerns raised in the reasons.
THE COURT FURTHER ORDERS THAT:
11.The Application for Review filed 13 February 2024 is otherwise dismissed.
12.All extant applications are listed for Directions Hearing before a Judicial Registrar on 7 August 2024 at 11:30am AEST.
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 HARLAND
The father seeks to review orders made by a Senior Judicial Registrar on 25 January 2024 after an interim hearing. I refer to my reasons in Lavigne & Gavin [2024] FedCFamC2F 353 given on 1 March 2024 with respect to a contested adjournment application. In particular I draw attention to paragraphs 13 to 23 of those reasons which I repeat here for convenience:
13. It needs to be remembered that in this case both parties place considerable reliance on the comprehensive family report that was prepared in the previous proceedings by [Dr S]. I refer briefly to some background in this matter. Whilst this matter was resolved by consent after that family report, it is clear that there is a considerable amount of conflict and risk involved that was present in the previous proceedings as well. It is the types of risks that go to psychological harm, as well as physical. There are four children of the relationship, [W] age 12, [X] age 11, [Y] age 8 and [Z] age six, and as is apparent from their ages, they have different developmental needs that can be challenging in an intact family.
14. [X], is neurodivergent, and that can be very challenging for [X] at times in being able to regulate her emotions. It can be very challenging for the parents and siblings to manage that, because at times she has been physically violent towards her parents and siblings. It is an issue that both parents address with appropriate concern for [X]’s wellbeing, and the wellbeing of the other siblings as well. It is one of the matters that [Dr S] addressed comprehensively in her report at lines 1554 to 1566:
I have mixed views about [X]’s capacity to be separated from her mother. I think that [X] is a child who requires a high degree of continuity, structure, and predictability. She may find it difficult to be in any environment away from her home [which is the house she shares with her mother]. For example, there were reports that [X] found it difficult to be in a holiday house with her father. I do not think that this reflects on her attachment towards either parent, but is reflective of her behavioural and neurological vulnerabilities. That is, it is common for children with ADHD and behavioural dysregulation to demonstrate regressive behaviours when they are in a new or unfamiliar environment. That said, I think that [X] has a positive relationship with her father and is also able to spend several consecutive nights away from her mother in the care of her father, without significant regression or distress. However, I am strongly of the view that such time needs to be regular, predictable, and predetermined. I do not think that [X] has the capacity to cope with ad hoc, changing, or unstructured living and parenting arrangements.
15. Particularly, [Dr S] referred to [X] needing a high degree of certainty, structure and predictability, and where she referred to in her view that the time between the children and their parents needed to be regular, predictable and predetermined. It is apparent from the detailed consent orders that the parties entered into that that is what the parties were trying to achieve.
16. It is also clear from [Dr S]’s report that the parents have very different parenting styles, which is very common, but can be difficult to navigate. The way the case is described by each of the parties in their respective case outlines gives an indication of just how complex the dynamics are. The father frames the case pursuant to the principles in Rice & Asplund [1978] FamCA 84, where the mother has raised very similar allegations that were raised in the previous proceedings to which he refers to having been comprehensively investigated. He emphasises this case is one where the mother is trying to exclude him from the children’s lives.
17. The mother, in contrast, outlines concerns about risk. The material goes into great detail, that include various comments that the children have made that are troubling, and concerns particularly about the father’s ability to regulate his own emotions and appropriately deal with [X] in particular when she is acting out. What struck me when looking at this matter is a comment in the father’s submissions about [Dr S]’s report having canvassed the mother’s experience of the father as harassing and threatening, and the father’s experience of the mother as controlling and avoidant. Both things can be true at the same time.
18. A troubling aspect of this matter is that on the material that I have seen, from the parties’ material and the extracts annexed to their affidavits with respect to OurFamilyWizard, that the conflict between these parents and the children and the communication between the parents and the lack of effective communication is of real concern. The material indicates a continuation of the conflict without much interruption, despite the April 2023 Orders, and this raises concerns about the viability of the parents exercising equal shared parental responsibility, unless something changes about that. I also note that the first proceedings began within a month or so of the parties’ separation and involved, at one point, an investigation by Child and Protective Services.
19. It is also clear that what is really challenging for both parents, is they have, four very bright children who are acutely aware of the conflict between their parents and the concerns that each parent has about the other. Both the previous family report and also the parties’ most recent affidavit material show that particularly with respect to the older two girls, they have been quite demanding of the parents wanting to know what is going on in the dispute.
20. This can be a very challenging issue for parents to navigate, particularly when the two eldest girls, in some ways have pseudo maturity, and it would be insulting to their intelligence to simply say to them, “Do not worry. You do not need to worry about anything. The adults will take care of it”. They know that there are proceedings on foot again. They have recently attended for updated family report interviews, and it is clear that they feel very divided by loyalties, and that the separation was difficult for the parents and for the children to navigate as well.
21. In considering the adjournment application, I have also had the benefit of written submissions by the mother’s Counsel, which refers to a high level of anxiety that the mother is experiencing, and the impact upon her of the proceedings. From her perspective, it is argued that adjourning this matter for another hearing leaves the mother in the position of having that application hanging over her head and having the stress and uncertainty involved with respect of that, and that is not something that can be discounted.
22. It is striking that in the affidavit filed by the father on 27 February 2024 and in the supervised reports, it appears that in having particular regard to, the conversations between the father and the children that are set out at pages 24 and 25 of that report that the mother is in a really invidious position. On page 25 of the report, the father is quoted as referring to the rules, needing to finish the visit, and then saying, “If we behave, maybe we can change it”, with [X] replying and saying, “It’s mum, of course she won’t change her mind”. The mother’s concern is for the welfare of the children, and she currently has to manage the children’s resentment of her with respect to the changing parenting arrangements.
23. It is also necessary to make the point that children can want to spend time with a parent in circumstances where that parent is unsafe. What is troubling, is the amount of pressure that the parents and children are under currently. Particularly, given that the father is having supervised time at the moment, the mother has to manage the children’s feelings about their resentment about that and expressions of wanting to spend more time with their father, whilst also navigating her concerns about risk. I accept that the father denies the mother’s allegations of risk and would frame it as being a risk on the mother’s side in not facilitating his relationship with the children. Certainly, this is a case where the Court has to be mindful of the serious allegations of risk that have been raised that the Court cannot test at this stage, but that were live issues in the previous proceedings as well, and addressed in some detail in the previous family report.
Having considered the further material listed below and submissions, my primary concern is the emotional and psychological harm the father is causing the children. He does not appear to have taken on board the concerns raised in my earlier reasons. There is a clearer picture emerging with respect to the father emotionally manipulating the children and undermining the mother. I do not know if it is deliberate or due to a lack of insight. In either case, it is of more concern than the risk of physical abuse. The emotional harm can be harder to identify and harder to address. I am also troubled by the fact that the supervisor records these inappropriate conversations in the supervisor reports but does not intervene and only identified one conversation as being inappropriate.
DOCUMENTS RELIED UPON
The father relies on the following documents:
(a)Affidavit of Mr Gavin filed 10 May 2024;
(b)Notice of Child Abuse, Family Violence or Risk filed late 2023; and
(c)Outline of Case Document filed 13 May 2024.
The mother relies on the following documents:
(a)Affidavit of Ms Lavigne filed 10 May 2024;
(b)Amended Initiating Application filed 19 January 2024;
(c)Notice of Child Abuse, Family Violence or Risk filed late 2023; and
(d)Outline of Case Document filed 14 May 2024.
The Independent Children’s Lawyer (“ICL”) relies on the following documents:
(a)Orders made 25 January 2024;
(b)Final Orders made 3 April 2023; and
(c)Outline of Case Document filed 14 May 2024.
The parties jointly rely on the following documents:
(a)Bundle of Supervise Reports from 3 February 2024 to 13 April 2024;
(b)Updated Family Report of Dr T, Consultant and Forensic Psychiatrist of 23 April 2024; and
(c)Family Report of Dr S, Clinical Psychologist of 16 June 2022.
The parties also provided tender bundles that were tendered in full and marked as exhibits.
ISSUES IN DISPUTE AND THE PARTIES’ RESPECTIVE CASES
The issues in dispute which I must determine are as follows:
(a)Whether the stay of the Final Orders of 3 April 2023 and the Interim Orders made 25 January 2024 are to continue;
(b)The unacceptable risk that the father may pose to the children; and
(c)The time the children are to spend with the father and if that time be supervised or unsupervised.
The Orders made by the Senior Judicial Registrar on 25 January 2024 provided for the father to spend professionally supervised time with the children at his sole expense up to 27 hours a fortnight, being each Saturday from 9.00am until 6.00pm and alternate Sundays from 9.00am until 6.00pm. This is a significant cost. It would be different if the time was supervised by a friend or family member. As of the date of the Review Hearing, the father has had nine Saturday supervised visits with the children from 3 February 2024 to 13 April 2024 for five hours each Saturday, or 10 hours a fortnight on average.
The father’s case is that many of the complaints the mother raises were dealt with in the previous proceedings and that the time arrangements should revert back to the Final Orders made on 3 April 2023 which provide for the children to spend four nights a fortnight with the father during school terms and further time during holidays and special occasions. The father’s solicitor advocate submitted that the case is about context and that it is important to consider the history of litigation. He further contends that he does not pose an unacceptable risk to the children and that rather, the difficulties are that the mother does not support his relationship with the children and will continue to interfere and damage his relationship with the children. The father refers repeatedly to the updated family report by Dr T and the children’s expressed views of wanting to spend more time with him.
The father refers to the mother bringing urgent proceedings three years ago when there was a child protection investigation on foot with respect to the father inappropriately disciplining X. He refers to the interim decision made by His Honour Deputy Chief Justice McClelland on 21 August 2021, who in their lengthy judgment identifies the risk issues and disputed matters before the Court. At that stage, the Court determined that the father’s time should move to unsupervised but be limited. He acknowledged that the mother would be raising allegations of the father engaging in coercive control and the children being at risk at the final hearing. The father submits that there was a comprehensive investigation, and he spent supervised time with the children with supervision reports that were uniformly positive and the allegations of risk, including coercive control were investigated and the Court found the children were not at an unacceptable risk of harm in the father’s care.
He also refers to the lengthy family report prepared by Dr S in 2022 and points to the Final Consent Orders the parties reached in April 2023 which provided a consistent regime of care as recommended by the expert and limited the parents’ engagement with each other. The evidence was not tested at trial. The father says that when agreeing to those Orders, the mother was clearly of the view that the children were safe in his care. However, the mother raised complaints about his behaviour within a month of the Final Orders being made.
The mother says there is an unacceptable risk to the children if they spend unsupervised time with the father. The risks primarily relate to the father’s anger and the enmeshment of the children with the father and him involving them in the adult dispute. The mother says that there have been problems with the implementation of the Final Orders since they were made on 3 April 2023. The mother filed an urgent application to revisit the Final Orders on 21 November 2023, taking prompt action after an incident between X and her father which I will detail further below.
The ICL supports the orders for supervision remaining in place. The ICL has spoken with the children recently all of whom said they want to spend time with their father but did not make comments on whether or not they wanted the time to be supervised. I accept her submission that the primary concern currently is not the father physically harming the children but psychologically harming them. The father seems to be in competition with the mother.
LEGAL PRINCIPLES
An Application for Review is determined as an original hearing. The orders sought to be reviewed of 25 January 2024 were made prior to the enforcement of the Family Law Amendment Act 2023 (Cth). However, the Review Application was heard after the commencement of the Family Law Amendment Act 2023 (Cth) and the applicable amendments to the Family Law Act 1975 (Cth) as of 6 May 2024 apply.
The Full Court of the Family Court discussed the assessment the Court must make when considering whether or not there is an unacceptable risk in Isles & Nelissen [2022] FedCFam1A 97. Assessing unacceptable risk is a predictive exercise based on the facts and circumstances of the case. The Full Court clearly stated that the assessment of risk is an entirely separate task to making findings of fact. The Court must make findings of fact based on the balance of probabilities. A risk assessment is a predictive exercise. The risk may be a possibility, probability, or a certainty. Risks of harm are not subjectable to proof. The risks in this case are the ongoing psychological harm to the children due to the father’s overinvolvement of the children in the adult disputes and his manipulative behaviour.
I am mindful that this is an interim hearing and the evidence of the parties is untested. Fortunately, I have had the benefit of the tendered material which supports the mother’s and the ICL’s concerns of the children being emotionally harmed. I accept that the children love both parents and want to spend more time with their father. However, I am satisfied that the children are at an unacceptable risk of psychological and emotional harm which to date has not been ameliorated sufficiently by supervisors.
Section 60B emphasises the importance of children’s safety. Section 60CC requires the Court to consider the following:
Determining child’s best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(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.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(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.
UNACCEPTABLE RISK
The mother’s complaint to police about the father’s behaviour – mid-2023
The father says that the mistrust between the parents continued to some extent after the Final Orders were made, and referred to the mother making a complaint to the New South Wales Police about his behaviour just one month after the Final Orders were made. He draws attention to pages five to seven of his tender bundle, marked as Exhibit 2, which are police records of the mother’s complaint in mid-2023. The mother complained that that the father was stalking and intimidating her and referred to the Orders which provided that the father is not to approach her within 20 metres when delivering or collecting the children from school or approach her at any sporting fixtures. The mother complained that the father deliberately stayed at the front gate of the school waiting for the children. Order 52 of the Final Orders states:
Save as necessary to effect the changeover as set out in Orders 22 and 23 above, the parties be restrained from coming within 20 meters of each other when the delivering or collecting the children to and from the school that the children attend from time to time.
There has been a copious amount of material written by the parties with respect to this issue. Order 52 of the Final Orders only restrains the parties from coming within 20 metres of each other, when delivering or collecting the children from school. It does not refer to other times the parents attend school for example, to assist with a reading class. It strikes me that this is an oversight in the drafting as it does not make sense as to why the restriction should only apply when the parents are dropping the children off to school and picking them up as there are many times when the parents are at the school to participate in other activities. It is important that the children’s schools be a safe and neutral space for the children away from their parent’s conflict. I have real concerns about the father making surreptitious arrangements to see the children at school and the amount of communication he engages in with the children.
When the father was interviewed by police, he said that he waited outside the school gate and public areas. He said there is no limit on the distance between himself and the mother and if he waited inside the school and the mother approached him, she would then be breaching the Court Orders and he was trying to prevent that from occurring. He felt that she was dropping off the children in a way that was trying to entrap him. The police were satisfied that there was no offence committed. This is an issue that has come up again and again. Unless the parties’ co‑parenting relationship drastically improves, it may be the case that the parties are not able to be involved in the various activities at the children’s schools as this is bringing the conflict into a place that should be the children’s neutral safe place.
Communication between the parties
The police reviewed the emails between the parties that the mother provided which they recorded as appearing to be normal conversations with no threats. The police further recorded that the emails inform the reasons reflected in each parent’s behaviour and there were no offences detected. The difficulty here is that it is necessary to look at the context and volume of correspondence. The language does not have to be abusive, but it can also be the volume and tone of the correspondence.
The communication or lack thereof between the parties when W was unwell in late 2023 reflects poorly on both parents. It is not unreasonable for the father to ask about W’s illness and whether she has been to a doctor when she has been sick enough to miss several days of school. The mother simply ignores the father’s messages in this regard. She makes a self-serving statement in her affidavit with respect to this:
In the days prior to [late] 2023, I received 7 OurFamilyWizard messages and 7 text messages from [Mr Gavin] accusing me of neglecting [W] because I had not taken her to the doctor. I did not reply to these messages as I did not need [Mr Gavin]’s help with [W]’s care, and I had already spoken with [Dr U] regarding [W]’s prognosis who had advised me that “virus was going around” and that the bed rest and fluids were all [W] needed. I received these text messages despite Order 26 requiring all communication to be only through OurFamilyWizard regarding [W]’s illness.
The mother should have informed the father that she had taken W to the doctor and relayed what the doctor said. If the situation had been reversed, she would have been appropriately concerned at the lack of information.
The father’s response to the lack of information from the mother was inappropriate and escalated the situation. He criticised the mother and referred to discussing the issue with multiple parents at the school and says that everybody agreed with him that it was “totally irresponsible and inappropriate” that the mother did not take her to the doctor. In a further message, he refers to speaking to a number of parents from “Kindy through to year 6” to get their opinion. It is extraordinary of the father to think that this was appropriate. If that is indeed what he did, it is incredibly undermining and only serves to make the parents’ presence and involvement with various activities more fraught. It is also involving a range of adults in a private dispute. I cannot help wondering if the father sought to cause the mother embarrassment. Unless the parties can be more functional in their communication and respect each other’s boundaries, including at the children’s schools, it will be better for the children if neither parent be involved in various activities on school grounds such as reading classes as it brings the conflict between the parents into the school which should be a neutral ground for the children.
The father also engages in undermining and disruptive behaviour by contacting X directly and asking if she wants to see him at school to say hi, and it appears from the text messages this is something that he does often. The mother annexes in her supporting affidavit filed 10 May 2024 their exchanges on this topic. The father shows a lack of insight into how his actions are intrusive and undermining of the mother. If the father did this regularly it is little wonder that X worries that the father is lonely and feels that she needs to look out for him rather than focusing on school.
The father’s solicitor advocate submitted that apart from these issues, communications between the parties have been generally going well. I reject this submission. This glosses over the manipulative harmful conduct the father is engaging in.
Children’s behaviour and expressions of fear
It is common ground between the parties that the children’s behaviour, particularly X’s, can be extremely challenging at times and can involve physically acting out against her siblings and/or parents when she has trouble regulating her emotions. This is challenging for both parents.
The children have had to navigate some major changes including the sale of the former matrimonial home, moving into the mother’s new home, and the maternal aunt’s diagnosis of an illness.
The father also relied on counselling notes from X’s school counsellor dated mid-2023 where X referred to smacking her sister immediately after hearing that they were moving to another house. Her counsellor talked to her about how sometimes good things can come from changing house. X spoke about fun things she does with her father and spoke about sometimes getting angry and sad. She also mentioned the parenting orders changing again.
The father also points to the devastating news they received in 2023, that the maternal aunt had been diagnosed with an illness, and that this has and continues to be a difficult issue for the mother and the children. The mother emailed the school informing them of this in late 2023, asking the school to keep an eye on the children who were very upset and had a lot of questions at the time.
He then refers to a message the mother sent on the OurFamilyWizard Application dated early 2024 where she told the father that X was very emotional due to her aunt having her operation and broke down when they arrived at school as she just could not face it. The mother decided that it would be good for X to have a day at home as she thought she was not going to be able to manage her emotions well that day at school.
The mother claims that the children were expressing fear of the father at various times and complaining that he was yelling a lot. In late 2023, a wellbeing concern was raised at the children’s school. Ms V, Y’s teacher reported that Y told her that she was scared to go to her father’s house because he “gets really angry and yells a lot” and that she was scared when she goes there and “sometimes hides”. The principal, Mr AA checked in on Y after the weekend visit and reminded her that school was a safe place to share her feelings.
The mother also claims that the father encourages the children to be naughty in her care and refers to an incident with Z in late 2023 where she says Z told her that the father tells them to fight at her home but not at his.
She also alleges that W told her that same night that she did not want to go to the father’s house because he is always yelling, and that the father told her that she could choose when she turns 14 and she was nearly that age. W said that her father told her that that would be great because she could choose to live with him. The mother further alleges that W also said that if she had to choose, she would feel that she had to choose the father as he is so lonely and sad and would be angry if she did not. The mother says she assured W that she does not need to make a decision.
In late 2023, W spoke to the counsellor and told them that she wanted to speak to them because the father “takes out his anger” on them and he does it by coming towards her and yelling at her. Y raises similar concerns with her psychologist. In the session in late 2023, Y reported feeling sad and scared about going to her father’s home and did not want to talk to her father about this as she was scared, expressing concerns about not wanting to disappoint her father and the father already living on his own. It is a big burden for Y to feel responsible for her father’s wellbeing.
The father disciplining X – late 2023
X disclosed to her mother an incident where the father allegedly used inappropriate discipline on X. This was also an issue in the previous proceedings, whereby the father restrained X by tying her up and there was a dispute as to whether or not the father gagged X. The father conceded that his actions were inappropriate.
In her supporting affidavit, the mother describes X’s behaviour after school in late 2023 whereby X punched her and was screaming at the other children. She says later that afternoon, X said to her, “I am just a bad kid. I do not belong in this family”. She went on to say that “Daddy is always angry at me. I get dragged down the stairs”. The mother then sets out what X described to her that after she was angry at Y and slammed a book down, the father then dragged her off the couch and pushed her down the stairs. She says that X was distraught and was blaming herself for her father becoming frustrated and angry and also expressed concern about the father getting into trouble. The mother says she attempted to reassure X that no matter what she had done it is never right for a person to physically harm her.
The school records show that X then disclosed the incident to her teacher, Ms BB in late 2023 after a critical incident report was made. X described slamming a book on a table and the father then grabbing her by the arm and dragging her down three stairs and that she was lying on the ground and that the dragging scraped her back. Later that afternoon, X recounted the same story to Mr AA. Both Mr AA and Ms BB assured X she did the right thing, and that school is a safe place and that she can always tell them anything that is upsetting her.
On the same day, the mother attended Suburb K police station and reported X’s disclosures to the police. The mother says that when she collected X from school that day, X’s teacher told her that the police had spoken with X.
The father describes in his material the late 2023 incident and the events of the next few days with the children in great detail. He says that Y cried out that X hit her, and the father told X not to do that, but X did not listen. X then proceeded to hit Z. The father went over to X and told her she needed time out. X then resisted and started trying to kick the father whilst in close proximity to Y and Z. He says he then held X by her upper arms and moved her to the stairs where they do time out and she stayed for a few minutes. X said she hurt her back, but the father said he could not see any marks. The father claims that soon afterwards when the family were having dinner that he and X spoke about the incident and when she was going to bed, X said her foot slipped on the stairs and she hurt her back and acknowledged that she should not hit her siblings and apologised.
In late 2023, the father received a call from the police telling him that a complaint had been made, that he had been violent towards X, and X had been interviewed at school that afternoon. The father says the constable told him that the information that the father gave him was the same as what X said and that no further investigation was required subject to confirmation by his senior officers. The father says he called the school to ask why they had called the police and the principal said that they did not call them.
In late 2023, the father sent a text to X asking her to call him. After speaking to her father, X told her mother that the father asked her to call him as the police had spoken to him. Concerningly, at paragraph 27 of her affidavit the mother alleges that the following conversation occurred:
Me: “Are you ok?”
[X]: “Daddy asked me to call him. He told me the Police saw him.”
Me: “Ok.”
[X]: “Daddy reminded me that I just slipped.”
Me: “Ok.”
[X]: “Daddy said the police told him that what he had done was just parenting and it was ok.”
[X]: “Daddy said he was really sorry that you called the Police.”
Me: “How do you feel about it all?”
[X]: “I’m really confused. Maybe I did just slip. Maybe it was all my fault because if the Police agreed with Daddy, then it must be true.”
The mother says that X was distraught. If the father made these comments to X, that is very troubling.
The father sets out the conversation that he alleges he had with X in his supporting affidavit. He says she told him that the police came and spoke to her at school and X told him that she knew who contacted the police and that X apologised for her mother contacting the police. The father then told her not to worry about it and arranged to attend her reading classes as usual. It is concerning that X may feel responsible for the father’s time with the children being restricted.
If the father did say these things to X, it is incredibly concerning and it is also troubling that the father sent the mother a text in late 2023 which is annexed to her supporting affidavit, referring to wondering whether he should make a report to police and saying that he has many examples of concerns with respect to X’s safety and also sent a recording of X to the mother. It is not clear to me what the father was referring to here, but it is troubling that this is his response to X’s disclosure. It is concerning that the father’s reaction is to contact X and to call the principal to complain that the school called the police rather than talking to the mother. If this conversation took place, it is an example of manipulative and controlling conduct that is very concerning. At best, it is an immature ‘tit for tat’ response.
The school records relied on by the mother show Y expressing concerns about the father’s anger in the lead up to this incident. They also show X consistently reporting to her teacher and the principal what happened that weekend. X’s teacher spoke to her without the mother present. Her teacher and the principal also attended the police interview with X at X’s request. The school record notes that X gave a consistent version of what happened and that the police and teachers assured X that they were there to help, and she should tell trusted adults when she is worried.
The father complains that he discovered shortly afterwards that the mother had blocked his phone number on the children’s devices. This is not surprising given the text he sent the mother and his conversation he had with X. It was appropriate for the mother to take action given the amount of times the father contacts the children directly, particularly X and making arrangements to meet her at school. This is quite intrusive.
The mother then suspended the father's time after this incident. Much correspondence between the parties’ solicitors followed and matters were further complicated by the fact that the parties were receiving conflicting and confusing messages from the constable about the status of the police investigation. At the end of the day, the incident was one of lawful chastisement which is considered a defence under s.61AA of the New South Wales Crimes Act 1900 (NSW). The fact that the police were satisfied that it was an instance of lawful chastisement does not mean that the risk issue has been resolved.
The father says he has concerns about the children having divided loyalties which was identified as a concern by Dr S in the family report in 2022, where she said that the children were very keen to please both parents. The mother claims to be sensitive to the comments that the children made between mid and late 2023. I think it has now gone beyond the children simply having divided loyalties. When X disclosed the incident to her counsellor, X explained that she was struggling with if she should have told anyone about the incident because she did not want her father to be in trouble. The counsellor reassured X that opening up is never wrong. I have real concerns that the father is actively undermining the mother and placing the children under enormous pressure. He seems somewhat competitive with respect to parenting and also appears to have some issues with boundaries with respect to the children.
X made consistent disclosures to several people. When she did so, she was assured that she did the right thing and that it is safe to disclose to adults when you do not feel safe. There is a real danger that X will be reluctant to disclose future incidents for fear of how her father may react and that it might result in her not seeing the father.
The father’s solicitor advocate referred to the determination by the police that the incident was an incident of lawful chastisement and is critical of the mother for continuing to hold concerns that the children were at risk in continuing to withhold them. Again, the fact that the police are considered it to be an incident of lawful chastisement does not alleviate this Court’s obligation to assess the allegations of risk.
This is not the first instance of the father engaging in excessive discipline, although it must be acknowledged that this is in the context of X engaging in very challenging behaviours which she does in both households which can involve risk of physical harm to herself and others. What is more troubling to me is the risk of emotional and psychological harm to the children in the father’s care.
I do not accept the submission by the father’s solicitor advocate that the mother may be projecting her concerns onto the children without basis. As I indicated in my previous reasons, it is also the case that children can want to spend time with and love a parent who at the same time can be unsafe, and it is apparent from the school and counselling records that from time to time, the children have expressed fear of their father, particular with respect to yelling and him getting angry. The father refers to the litany of concerns that the mother raises in her affidavit which includes him yelling at the children and denies this and says he does have a loud voice but that the children have not complained to him about yelling. He says he is concerned that the mother continues to allege that the children are not safe in his care and he says that none of the children have told him that they feel unsafe with him. Although he does acknowledge that they may not do so, he says that they do not behave in a way that gives any indication that they are afraid of him. Again, as is clear from the supervised reports, from time to time the children can be challenging to control. What is of most concern to me is the emotional pressure the father places on the children, particularly X and W.
The children’s school and counselling records
The father denies attending the school contrary to the Final Orders and says he attends the school for reading and other activities, and that there are three entrances to the school which are used depending on the availability of parking. The father says there has been a large volume of correspondence over this and that he denies denigrating the mother in front of the children and denies telling the children that he is lonely and that he encourages the children to worry about him. However, this is a common theme in the children’s counselling notes. It is likely that the father has told them this on more than one occasion.
The school reports tendered and marked as part of Exhibit 2 show the father attended the school in late 2023 and spoke to X who was missing class. The father said that this was his only chance to speak to X because her mother took away her phone. This was an incredibly poor decision on the father’s part. It gives the impression that he was concerned about damage control.
The records show that again the father turns up to the school one morning in late 2023. The principal called the father and asked him not to use the school as a place to discuss distressing events with the children and to highlight the importance of the school being a safe and neutral place for the children to focus on learning.
X’s counselling notes are also concerning. It is clear that over a period of several months, X has felt responsibility for her father, feeling sorry for him, and being concerned about his finances. Conversely, she is angry with her mother because her mother does not involve her in these issues. This was noted in a session in mid-2023. A few weeks after this session, the father contacted X’s counsellor telling her that X does not want to see her anymore.
The mother raises concerns that the father interferes with the children’s activities, and that he specifically cancelled appointments with X’s psychologist. These examples clearly demonstrate that the parents have little ability to co-parent effectively. The father says that X told him that she wanted to stop seeing her psychologist. He says he spoke with the psychologist and school counsellor and proposed that X stop seeing a psychologist and see the school counsellor for a while, but the mother did not agree. What is not clear is why the father did not raise what X said to him with the mother first so that they could have approached X’s psychologist together.
The counselling notes report X continuing to feel responsible for her father and angry at her mother. She feels the divorce is unfair on her father and that he did not want it and now he has no money. She feels pressured by her father’s messages. The counsellor refers to the conflict X feels from all the information her father gives her that she is unable to do anything about. The father’s behaviour has been harming X for some time.
In a later session, X expresses she is worried about her father taking her maternal grandfather to Court and her grandfather owing her father millions. X reported that the father told her this was a secret. This is an example of emotional abuse towards X.
In late 2023 her counsellor noted that X was angry with her mother and feeling that her mother does not tell her enough, whereas her father is free with information. X feels guilty around her relationship with her father and wanting to help him.
W requested to recommence seeing her counsellor as she was sick of being in the middle of her parents. She reported the father taking his anger out on them and feeling guilty or being angry with her mother. She also reported feeling scared of her father and not wanting to see him. Her counsellor talked to her about strategies for setting boundaries with her father as she feels he shares inappropriate information with her. In further sessions W talked about feeling guilty about not wanting to see her father. Her response is a natural one due to the pressure the father places on her.
A troubling development with respect to W is the fact that she was overheard talking to a friend about self-harm. W told her counsellor about feeling like she wanted to disappear, that she was burdensome to everyone, and feeling that her siblings and friends hate her. In addition to the distress W has felt with her parents’ divorce, she has been affected by boys making negative comments about her and having low self-esteem. W is in her first year of high school. This can be a difficult period for any child.
SUPERVISED VISITS AND EMOTIONAL PRESSURE ON THE CHILDREN
The joint tender bundle was tendered and marked as Exhibit 3 and contains the supervised visitation reports. At the beginning of each report, it sets out rules for the visit. It also has a check list of various matters which includes whether or not there were inappropriate conversations with the children about the Family Law proceedings. Conversations can be inappropriate without directly referring to the proceedings. These conversations can involve children in adult disputes and encourage them to blame the other parent or feel responsible for things outside of their control. There are examples of the father appropriately redirecting conversations in a number of the early visits. However, there are several inappropriate conversations that the father engages in that the supervisors do not flag which cause me real concern which I will set out below.
February 2024
In February 2024 during the first supervised visit, the supervisor records on a number of occasions when the children have raised not being able to see the father and referring to the mother. At one point in the visit, W and the father had the following conversation:
[W]: I was shocked that I didn’t see you at all for a couple of months. I was looking for your care. I really wanted to see you.
[W]: I was really scared when I saw [a car], and was scared you guys would start arguing and yelling.
[Mr Gavin] calmly explained to [W] that she should not be scared.
[Mr Gavin]: There are obviously issues but we were never yelling at each other.
The supervisor notes that one of the children (there is no name attributed in the notes) said when referring to the mother that “she took us away for two months so you should take us for two months”. The father redirected the conversation rather than engaging the children, which was the appropriate course of action. The mother was also appropriate, acknowledging X’s feelings when she told her that she had not wanted to leave the father. The supervision notes include a template where the supervisor indicates various things such as the parents not discussing the family law proceedings with the children.
February 2024
During the second visit in February 2024, X had the following conversation with her father about her birthday:
[X]: Mummy said we can’t see each other on my birthday unless we have a supervisor. It’s not fair for me to not spend time with daddy on my birthday. It’s so unfair…It’s like she doesn’t want me to be with you.”
[Mr Gavin]: I am sorry. That’s out of my control.
In doing so, the father is indirectly blaming the mother. He could have opted for a supervised visit on X’s birthday. The father had another concerning conversation with the children later in the visit:
Children: Did you have a place booked for Christmas?
[Mr Gavin]: Yes.
Children: Did you go?
[Mr Gavin]: No.
Children: You should have gone.
[Mr Gavin]: I didn’t know if you guys were coming or not.
It is not true that the father did not know if the children were coming or not. The father was well aware that there was no agreement in place. Y commented later that day that she has a choice “after four weeks”. The father responded saying that he hopes “this will be over in four weeks” and that he hopes things go back to the way they were. As I have previously flagged in my earlier reasons, what is of most concern is the exchange between X and the father at the end of the visit when X did not want to go:
[Mr Gavin]: [X] come on…those are the rules.
[Mr Gavin]: If we behave, maybe we can change it.
[X]: It’s mum of course she won’t change her mind.
The father is encouraging X to blame the mother when Orders were made for the father’s time to be supervised after a contested interim hearing.
February 2024
In February 2024 the supervisor records another concerning conversation between X and the father:
[X]: We should be able to call you at any time. I have [a messaging app], I can text you anytime.
[Mr Gavin]: Mummy is not going to like that:
[X]: Well I can when I figure out how to unblock you.
The supervisor did note this conversation and suggested that the father make a positive or neutral reply rather than imputing disapproving behaviour on the mother which would also avoid the “good cop/bad cop behaviour”. There is no indication as to whether or not the supervisor raised this with the father at the time.
March 2024
It is concerning that the supervisors are continuing to record inappropriate conversations but do not flag them as concerning. An example of this is during the first March 2024 visit when the father is speaking to Z:
[Mr Gavin]: how did you message me “I love you daddy’?
[X]: You are not meant to be sending messages [Z].
[Mr Gavin]: it’s okay. I just loved the message.
[X]: We can’t see what you send but you can see what we send.
Order 6 of the Orders made 25 January 2024 only allow the father to contact the children via telephone between 7.30am to 8.30am or 5.00pm to 6.00pm. The father is otherwise is restrained by injunction from contacting the children outside of those times pursuant to order 5. That order was made by the Court. It is not the mother’s rule. The father’s actions encourage a work around of this order and serves to undermine the mother’s parenting.
This order was not the subject of oral argument however the father does seek a review of this order. The father’s position is that he is not an unacceptable risk to the children and that the children should live with him. He does not propose a new communication order. In her case outline the mother seeks that the order remain the same except she be able to be present for the phone calls. The Independent Children’s Lawyer seeks for the order to remain the same. Given the inappropriate conversations the father engages in with the children, this is an appropriate order. I am concerned about the frequency of calls allowed for by this order but as neither party raised this as a concern I will not alter it. I will order that the order for communication made by the Senior Judicial Registrar remain the same save that the mother be present for the phone calls.
Again, at the same visitation there was conversation about messaging where W said that the father was blocked from all their phones and the father responded that “[Z] and [Y] sent messages to me this week”.
It is clear that at several times during the supervised visits one or more of the children become dysregulated and the father manages to address and to contain their behaviour. However, it is concerning to me that the father has conversations with the children that undermine the mother’s parenting and implicitly blames her for the fact that the time is supervised ignoring the fact that the Court determined that such orders were necessary on an interim basis in order to protect the children. It is also troubling that the supervisor fails to identify these conversations as inappropriate. By failing to do so, and failing to intervene, the father is encouraged to continue to have these inappropriate conversations which keep the children in the middle of the dispute, keeps pressure on them and is emotionally manipulative. Conversations can still be inappropriate even though they do not directly mention Court proceedings.
March 2024
One concerning example took place in March 2024 when the father asked X if the mother had given her medication:
[Mr Gavin]: Have you had your tablets today?
[X]: I don’t remember…I don’t know.
[Mr Gavin]: Is mum not going to giving you your tablets?
[X]: I don’t remember. Do you want me to call mum and ask?
[X] then called [Ms Lavigne] and asked.
[X]: Mum said that I did.
[Mr Gavin]: I don’t think you have been.
This was completely inappropriate. The father should have raised any concerns about whether or not X had taken her medication with the mother using OurFamilyWizard and not involving X in the dispute. The fact that the father allowed X to call the mother and ask that question and then made it clear that he did not believe the mother is incredibly concerning. The supervisor should have intervened and shut down this conversation. It is even more concerning that the father raises this again on a future visit.
In the same visit, Z talks about a character from a sitcom and playing a popular computer game. When Z claims that the mother lets them play the game, the father tells him that it is inappropriate, and he should not be playing it. This is another example of the father undermining the mother, rather than shutting that conversation down and raising a concern with the mother directly. Again, it troubles me that the supervisor does not identify these conversations as concerning. Another conversation of concern took place where X again is complaining about the ending time of the visit:
[Mr Gavin]: We have 7 minutes left.
[X]: No we have 17 minutes.
[Mr Gavin]: [X], we have gone through this before.
[X]: I didn’t agree with any of these rules…I don’t agree with any of these.
[Mr Gavin]: I understand but that is the rules at the moment.
[X]: I am going to have my full 5 hours and then I have 6 and 6.10pm to pack up. Mum said 5 hours. She tells me if its 5 hours then its 5 hours.
[Mr Gavin]: The time we have to be at the door is 5.50.
[X]: Mum is in charge of this and she says 5 hours.
[Mr Gavin]: I am sorry…it’s completely out of my control.
The father again was not being child focused in his responses and instead encourages X to blame the mother. This is encouraging the children to think that the mother is entirely in control of how and when the father’s time with the children takes place and under what conditions, ignoring the fact that there were Court Orders in place and that the rules regarding timing to pack up to facilitate changeover are the rules of the supervised service, not the mother’s rules. It is also of concern that the supervisor does not intervene and tell X that it is the rules of the supervised service. X raises this issue repeatedly during visits. X is continued to be encouraged to believe that the mother is responsible. It is quite concerning that the father encourages this resentment towards the mother.
March 2024
There is a further concerning exchange in March 2024 where again the supervisor records a conversation between the father and the children but does not intervene and does not mark the conversation as inappropriate.
[W]: if we get a birthday day then can I bring [X]. She didn’t have a birthday day.
[X]: It’s okay. It’s not fair for me but you don’t have to lose your special time with dad. If you were in control, you would make it fair and you would talk to mum and compromise (this was about the visits and time that [Mr Gavin] currently had with the children).
[Y]: I wish we got a say in this.
[X]: Mum says we don’t need to…mum says we aren’t allowed to [this was in relation to speaking with the ICL]
[Y]: It’s our lawyer.
[X]: She probably gets to speak to her lawyer.
The father does not redirect or stop this conversation. Again, this is encouraging the children to blame the mother for the current restrictions in spending time with the father which is unfair. By the father and the supervisor making no attempt to redirect and limit these discussions, it is implicitly encouraging the children to blame the mother and to see the mother as having all the power and being unreasonable. It is not surprising that in this context that the children’s behaviour becomes more uncontained.
The father again raised the issue of X not taking her medication, with X asking the father “why do you keep asking that?” to which the father replies “because this is not like you”. It is concerning the father raises this again with X. By doing this, the father is giving X the message that there is something wrong with her and that her mother is not looking after her properly. How is X supposed to interpret this? It is potentially damaging.
It is also of concern that the father told W during the call during the week that this was going to be the last visit, and that after that call, he had received a letter from the mother’s lawyers, complaining that W had called the mother “a fucking bitch”.
March 2024
It is also of concern that during their visit in late March 2024, W asked the father if the other children knew that this was the last visit. The following conversation took place:
[W]: I don’t know why I need to know everything first. Mum lets me know everything first too. When you guys were getting separated, mum told me first.
[Mr Gavin] explained that as she was the eldest, he felt like it was respectful to tell her these important things first.
It is of concern that the father thought that this was an appropriate way to deal with the issue. The father is placing pressure on W and encouraging her to feel responsible for her younger siblings. It is significant that around this time, W starts self-harming. This indicates that she is really struggling. Self-harming can be a way that a child or young person feels that they are able to exercise control over something. Physical pain can also be a distraction from emotional pain.
During the same visit, there is yet another conversation of concern where Y asks why they cannot come Friday night and stay and come to the beach in the morning. The father replies that it would be beautiful with Y then saying she was going to ask the mother.
Later during the same visit, the father tells the children that it is too expensive for him to see them on Saturdays anymore and that his going to try and sort it out:
[Mr Gavin] said words to the effect of “I have for something to tell you. I can’t see you guys anymore on Saturdays. It’s too expensive. I am going to try sort it out”.
The children appeared upset and distressed.
[Mr Gavin]: It’s distressing to me as well.
[Y] then hugged [Mr Gavin].
[Mr Gavin]: I can’t keep paying for your and [X]’s [extracurricular activities]. I can’t afford for them. I have got to cut back on some things. I am sorry.
[Y]: I thought mummy was paying for that.
[X]: Does mummy know?
[Mr Gavin]: Yes.
[X]: Is she angry/upset.
[W]: she wants us to see dad…she’s a bit upset that this is all happening. I am crying on the inside but I am too broken to cry now.
The father is being emotionally manipulative and undermining of the mother. It is an example of him being unable to prioritise the children’s emotional needs above his own. It is also of great concern to me that the supervisor does not make any attempt to intervene and divert these discussions which gives them an air of legitimacy. The father should not have discussed financial issues with the children. Whilst I accept supervision is expensive, I have concerns about the genuineness of the father’s actions particularly stopping payments for the children’s activities.
The father has placed further pressure on the children by telling them that he can’t afford their activities anymore. The father placed an additional unreasonable burden on W by telling her that he could not afford the visits because she was the oldest.
It was manipulative and harmful for the father to tell the children that he would not be able to afford to see them until mid-year then deciding to have a one-off visit earlier in the year.
April 2024
The next visit took place in April 2024. The father needs to appreciate that because he has overinvolved the children in these discussions, whether deliberately or not, he has encouraged the children, particularly W and X to make comments about what goes on in the mother’s house and what goes on in the father’s house. For example, when the father corrected X to not refer to her mother as “she”, this is a positive instance of the father supporting the mother’s parenting rather than undermining her. Although it is concerning that the father again when X told Z that they would not be there next week and when Z asked why that he replied, “remember I told you I can’t afford it right now”. X then clearly trying to come up with a solution tells the supervisor that she knows it is not convenient, but maybe they could see their father once a month.
Conclusion with respect to supervised visits
I have real concerns about the father’s ability to provide for the children’s emotional and psychological needs. The father has failed to protect the children from the dispute and at times has been quite manipulative and encouraged the children to take his side and blame the mother. Whilst the supervised visits have shown the father managing the children’s intense behaviour and meltdowns at various times, what is of greatest concern to me now is the emotional harm he poses.
I am also troubled by the supervisor failing to identify these conversations as inappropriate, which will have only served to further emphasise to the children that the mother is responsible for the father’s time being supervised. This should be brought to the supervisors and the organisations immediate attention. If they are unable or unwilling to intervene, then alternate supervisors will need to be found.
I will direct that the ICL provide a copy of these reasons to R Contact Service drawing attention to my concerns and to the family therapist. It will also be important for the ICL to meet with the children and to explain to them that it is the Court that determined that supervision was necessary and that it continues to be for the time being.
COSTS OF SUPERVISION
The father’s solicitor advocated submitted that the cost of supervision is unsustainable. He sets out in his affidavit that the cost of supervision from only 1.00pm to 6.00pm each week is $750 and has paid a total of $6,750 to date. If he were to spend the full 27 hours of supervision provided for in the Orders, it would cost the father $4,000 per fortnight. He submits that requiring supervision was likely to be for a short period of time and that he is unable to continue to pay.
The mother’s Counsel submitted that the father has been borrowing from the business loans and that he could continue to borrow money from the loans to fund supervised visitation. She says that the parties’ lifestyle was funded through the business and that the father also receives a salary from his own company and a distribution from a family trust. The mother in her affidavit annexes the father’s tax return for the year 30 June 2023 which outlines the father’s total taxable income as $434,298. The father submits that the business is valued at $1,500,000 and the shareholder loan is $1,662,000 and that there is no evidence that he can continue to pay. I cannot be satisfied that the father can use share-holder loans to fund supervision. However, he has a significant income. The orders made by the Senior Judicial Registrar was unrealistic in terms of providing for supervised visitation for up to 27 hours.
I will discharge the orders the Senior Judicial Registrar made with respect to the father’s time and make more limited orders for the father’s time. I will order that the father spend up to four hours with the children on alternative Saturdays from 1.00pm to 6.00pm. This should be manageable for the father.
FAMILY THERAPY AND EXPERT REPORTS
The parties are currently attending family therapy although it is only at the very early stages, having commenced in mid-2024. In order for family therapy to be beneficial, both parents need to take responsibility for their dysfunctional communication and their part in the conflict rather than externalising it and blaming the other parent.
At page eight of her report, Dr S says that the mother claimed that she has experienced self-doubt, anxiety and confusion which has been hard to escape because of the father’s constant verbal denigration, questioning and criticisms of her. From the messages I have seen this has continued. The mother also told Dr S about the father overly involving the children and undermines the mother by saying to the children that she is controlling everything which the children then relay to her and that when she has raised this with the father (for example in family therapy), that the father asserts that the children need to be told the truth and that the father has said that if the children tell her that they have a good time with the father then their father will get more time with them. She says this makes the children anxious and shows that the father lacks insight as to the impact of his actions. The mother also told Dr S the children were confused and did not know which parent to trust as they say they are told different things by each of them. The supervised visits referred to above show the mother’s concerns were and remain valid.
The mother displays some insight into what the children were going through by describing to Dr S that W is desperate to please both parents and feels stuck in the middle and wonders if W says different things to each of her parents and claims that W often blames herself and feels responsible for the parental conflict.
The father told Dr S about the abuse and trauma he experienced as a child and his resulting views that it be imperative that children are told the truth about their background, though he acknowledged the importance of that information being age appropriate. It is apparent to me that the father lacks insight into the damage and emotional harm he causes the children by involving them in the dispute. At page 24 of her report, Dr S records the father acknowledging that he had previously said things to the children that were unhelpful to them, especially after separation and that at the time, he did not understand how important it was not to involve the children in this way, and he was caught up in his own distress. The father’s conduct since then does not reflect him having gained any insight since this report. It is also of some significance that when describing the joint therapy that the parties were engaging in at the time, that whilst he acknowledged that the mother was scared of him and that he is physically bigger than her, the father then complained about the joint sessions being difficult for the mother and her finding it difficult to cooperate with him. This shows a lack of insight into the fear the mother has of him.
When discussing the mother’s partner, Mr CC, and when asked about allegations that he had spoken negatively to the children about him, the father said it was difficult because Z does not like him and frequently complains about him and he did not feel appropriate to shut down that conversation. Of course, one possibility is that Z was well aware that the father liked hearing negative things about Mr CC and would therefore continue to say such things.
Dr S identified at line 1285 to 1287 of her report that:
…the combination of the children’s different personalities, needs and interactions creates a very intense family dynamic, requiring a high degree of parental vigilance and consistent, calm and responsive parenting.
She also thought that to different degrees, the parents had inadvertently involved the children in the conflict and particularly through W and X at times, causing them anxiety. She also formed the view that in the past, the children had been in some risk of physical and psychological harm in the father’s care and that the father had some limitations in terms of his capacity to self-regulate when stressed or in particular contexts. Dr S found that the father had vulnerabilities with respect to behavioural and emotional regulation and his own traumatic childhood history meaning he is more likely to react inappropriately and lash out.
Dr S made the following observation at line 1479 to 1486:
I think that all the adults need to be exceptionally mindful of the children’s loyalty to both their parents and their grandparents and the heightened need to preserve the integrity these relationships. whenever the children experience criticism or denigration of their parents or grandparents, they experience, confusion, distress, anger, and a range of other negative psychological experiences. the children do not have the emotional or cognitive capacity to understand the nature of the conflict between the father and paternal grandparents and to expose them to this conflict is directly detrimental to the psychological health and their capacity to adjust to their parents’ separation.
She also expressed the strong opinion that the parenting arrangements needed to be highly structured, predetermined, and rigid. The father’s continual messaging of the children and making arrangements to see them at school on days they are in the mother’s care undermines this.
In the updated report prepared by Dr T, both parents expressed feeling scrutinised and traumatised by the communications with each other, with the mother feeling attacked and bombarded and the father feeling constantly analysed in negative terms. Both parties claimed that the other involved the children in the dispute, whilst denying doing so themselves.
In both of the expert reports, W refers to it not being about her feelings, but that her parents need to be fine. It is clear that W has continued to feel stuck in the middle of her parents and feeling that conflict of loyalty. She has also felt and been subjected to additional pressure as the oldest. She must be relieved of this burden.
Dr T thought that the father engaging in additional educations and supports has likely assisted in mitigating the risks that Dr S identified of the children being at risk of being exposed to physical and psychological harm in the father’s care.
Dr T also formed the view that the evidence suggested that both parents need to communicate consistently and in developmentally appropriate terms with the children. He observed that the parents would disagree with that statement, with each complaining about the other. However, he does not provide any basis for his opinion and what evidence he relied on.
The mother’s Counsel referred to deficiencies in Dr T’s report and noted that Dr T makes no reference to the notes from the children’s psychologist, the school reports, or the supervision reports. If he had considered these documents, then he would have a clear picture of the father engaging in manipulative behaviour and the harm this behaviour is causing the children. It is also clear that the mother has not engaged in the same tactics despite having to address the children’s anger towards her and their feelings that she has been unfair to their father. Whist the report refers to Dr T having access to the documents, he gives no indication that he considered the contents of the documents.
Dr T thought that Dr S’s concerns about the children becoming embroiled in the broader family conflict had come true and believed that the parents inadvertently or unintentionally undermine the other by attempting to be the preferred or desired parent. Again, I do not know what evidence he relied on to form a conclusion with respect to both parents.
It is significant that each of the four children are receiving weekly psychological assistance as is the mother.
Dr T refers to the importance of the family therapy that the parties recently commenced and recommended that the parents receive additional support with respect to how they communicate with each other. He refers to both parents being concerned that the children are struggling emotionally with the existing parenting arrangements. It is significant that a deficit of the report that Dr T makes no reference to the supervised visit reports given the very concerning conversations the father has had with the children and the pressure the children are feeling which is also clear from their school and psychologists. It is harmful for the children to be so involved in the dispute. Whether it is intentional or not, the father has encouraged the children to blame the mother for the separation and spending limited time with him. Undermining the mother’s parenting only causes further harm.
CONCLUSION
To date the supervised visits have not protected the children adequately from enmeshment in the adult issues and the father’s pressure on them to side with him and feel responsible for his emotions. Hopefully the supervisors will be proactive about shutting down these conversations in the future. The father’s solicitor advocate submitted that there was no need to continue supervision since these conversations have occurred anyway. I disagree. At least with supervision there is a limit to the harmful conversations the father can engage in with the children.
It will be important for the family therapy to address these issues. The children need to feel safe to have relationships with both their parents without feeling responsible for either of their feelings and without feeling any responsibility for their parents’ relationship ending. The children need to be reassured that their parents love them unconditionally, regardless of how their parents behave.
The father should engage in individual therapy to address his maladaptive ways of involving the children in the adult disputes. His conduct leaves the impression that he feels he is in competition with the mother to prove who is the best parent. In doing so he is hurting his children. Hopefully with the assistance of the family therapist the father can gain some insight, undo some of the damage and minimise long term harm to the children.
I accept that the children want to spend time with the father. It is of some significance that all four children are receiving weekly counselling. Their parents’ separation has been difficult for them and they have been experiencing emotional pressures that they need to be relieved of. They need to know that they are not responsible for their parents’ feelings.
As this is an interim hearing much of the contested evidence cannot be tested. The Court must take a cautious approach that prioritises the children’s safety. Both parents can provide for the children’s physical and practical needs. At times, the children have not felt safe with their father. W and X in particular have been burdened by the father sharing information with the children. The children will benefit from a relationship with both their parents as long as it is safe for them. For the moment, in order to minimise further psychological harm to the children, the father’s time must be supervised. These reasons may be confronting for the father but hopefully he can engage with the family therapist and other supports so that he can prioritise the children’s psychological needs above his own.
Finally, I have given much consideration to how W, X, Y and Z may react to this interim decision. Children often feel unheard in family law proceedings. Telling children nothing at all can increase their anxiety and sense of lack of control. It is clear that the parties’ separation has been difficult for the children in different ways. I have taken the step of writing a short explanation to the children. I have conferred with a Court Child Expert about the content and language of the letter. I will direct the ICL to meet with the children to explain these orders and to provide them with a copy of the letter appearing at the end of these reasons. A copy of the letter may also be given to the children’s counsellors.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Dated: 12 June 2024
Dear W, X, Y and Z,
My name is Judge Harland. Your parents have asked the court for help to work out the best living arrangements for you and I have been asked to make a temporary decision about this. I have thought a lot about you when making this decision having heard about each of you and how you have been feeling.
When parents decide to end their relationship, it can be really hard for everyone. There isn’t just one reason parents separate, and it isn’t anyone’s fault. Nothing you said or did caused it. You may have a lot of big feelings about your parents’ separation and you might express them in different ways. It can be a sad and confusing time, sometimes people might also feel angry. Everyone in the family might feel differently about it and that is alright.
When parents separate it can mean big changes for everyone in the family. Parents may miss not having their children around all of the time and children may miss the parent who they are not spending time with. Children sometimes feel responsible for how their parents feel as they love them and want them to be happy. You can talk to adults you trust about these issues and feelings, like your teachers and your counsellor whenever you want to.
I know you love both your parents very much and want to see them both. You have adults around you who want you to feel safe and happy. I have decided that for the moment the best thing is for you to see your dad with a supervisor. This arrangement won’t be in place forever and is just for now whilst your mum and dad get more help to support for them and for you.
W, X, Y and Z, it is most likely you will each have your own feelings about what is going on in your family. Some of those feelings will be the same for all of you, and some feelings may be ones that only you have. I listened to what the experts had to say about each one of you, and I thought about you as individuals as well as a group of siblings when I made my decision about your living arrangements.
This is a decision I have made, not your mum or your dad. Your parents are seeking help from other adults to make things better for all of you. Your parents love you all very much. There are people around you who will continue to be there for you.
Judge Harland
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