Manellis & Andreou
[2022] FedCFamC2F 32
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Manellis & Andreou [2022] FedCFamC2F 32
File number(s): PAC 2845 of 2021 Judgment of: JUDGE MURDOCH Date of judgment: 4 February 2022 Catchwords: FAMILY LAW – Interim parenting – Each party seeking that the children live with them and spend supervised time with the non-resident parent – where interim orders currently in place for the Father to spend unsupervised time with the children – where the Mother is not facilitating time pursuant to the interim Orders made – where each party alleges the other has perpetrated family violence – where the children are at risk of being exposed to conflict – where the children are at risk of being involved in the proceedings – where each party alleges the other has mental health difficulties – where the best interests of the children are met by the children living with the Father on an interim basis – where the Mother’s time with the children should be supervised Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA Cases cited: Dieter & Dieter (2011) FamCAFC 82
Eaby v Speelman (2015) FLC 93-654
Goode and Goode [2006] FamCA 1346
In the Marriage of Burton (1978) 24 ALR 378
In the Marriage of Raby (1976) 12 ALR 669
Marvel & Marvel (No 2) [2010] FamCAFC 101
M v M (1988) 166 CLR 69
Salah and Salah [2016] FamCAFC 100
SS & AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 159 Date of hearing: 13 December 2021 Place: Parramatta Counsel for the Applicant: Mr Dura Solicitor for the Applicant: McAuley Hawach Lawyers The Respondent: In person ORDERS
PAC 2845 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MANELLIS
Applicant
AND: MS ANDREOU
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
4 FEBRUARY 2022
THE COURT ORDERS THAT, PENDING FURTHER ORDER:
1.All prior parenting Orders with respect to the children X born in 2014; Y born in 2012 and Z born in 2017 (“the children”) are discharged.
2.The Father shall have sole responsibility for making decisions with respect to the children.
3.The children live with the Father.
4.Pursuant to Order 3, the Father is at liberty to collect or arrange a nominee to collect each of the children from their respective schools and/or the Mother as and from the time of the making of these Orders.
5.Forthwith upon the Father or his nominee collecting each of the children the Father’s legal representative is to notify the Court by email at [email protected].
6.In the event the children are not returned to the Father’s care by 4:00 pm today, pursuant to section 67U of the Family Law Act 1975 (Cth) a recovery order is to issue directed to the Marshal of the Federal Circuit Court and Family Court of Australia, all officers of the Australian Federal Police and all officers of the Police Forces of all states and Territories of Australia requiring them to find and recover the children X born in 2014; Y born in 2012 and Z born in 2017 and to deliver them to the Applicant Father and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.
7.Pursuant to section 68B of the Family Law Act 1975 (Cth) the Mother is restrained from:-
(a)taking any steps, including through a third person, to contact the children or have the children or any one of them in her care other than in accordance with the Orders made today;
(b)attending upon, entering in or remaining at any place the children may live, attend school, pre-school, play group or day care and/ or causing any third party to do so on her behalf.
8.The Father is permitted to provide a copy of these Orders to the principal and staff at all schools and daycare/after school care attended by the children.
9.Commencing Sunday 6 March 2022 the children shall spend time with the Mother on one day each week from 10:00 am to 5:00 pm as agreed between the parties and failing agreement, each Sunday from 10:00 am to 5:00 pm, with such time to be supervised by B Children’s Contact Service or such other professional supervisory service as may be agreed to between the parties and the Independent Children’s Lawyer (“the supervisory service”).
10.To facilitate the children’s time with the Mother, both parties are to contact the supervisory service by no later than 4:00 pm on 11 February 2022 to arrange the earliest possible intake interview and they shall do all things, sign all documents and give all consents necessary to enable the supervisory service to commence supervising the children’s time with the Mother on Sunday 6 March 2022 and every Sunday thereafter or such other day as agreed between the parties.
11.Each party shall be responsible for and pay one half of the costs of the supervisory service as and when they fall due.
12.That the parties do all things necessary to undertake and complete in a timely manner the “Keeping Kids in Mind ” Program by emailing … or telephoning … and shall provide written evidence of completion of that program to the other party and to the Independent Children’s Lawyer.
13.That within 7 days the Father do all things necessary to enrol and ensure the children’s completion of “The Anchor” program through C Family Centre by telephoning … and shall provide written evidence of the children’s completion of that program to the Mother and to the Independent Children’s Lawyer.
14.The Father, his servants and agents are restrained from:
(a)abusing, insulting, belittling, rebuking, criticising or denigrating the Mother and discussing these proceedings to or in the presence or hearing of the children or any of them and from permitting any other person so to do; and
(b)questioning the children or any of them about the appropriateness of the Mother’s behaviour or parenting or partner’s behaviour or parenting while taking care of or spending time with the children.
15.The Mother, her servants and agents are restrained from:
(a)abusing, insulting, belittling, rebuking, criticising or denigrating the Father and discussing these proceedings to or in the presence or hearing of the children or any of them and from permitting any other person so to do; and
(b)questioning the children or any of them about the appropriateness of the Father’s behaviour or parenting or partner’s behaviour or parenting while taking care of or spending time with the children.
16.The Father shall forthwith do all things necessary to give authority and make arrangements with the children’s schools for the children to access their school counsellor as is recommended by the school principal or counsellor.
17.A copy of this Order is to be served by the Father within 7 days upon the Registrar of the Local Court at Suburb D and the Police Commissioner of New South Wales.
18.That the Application in a Case filed by the Father on 15 November 2021 and the Mother’s Response filed 28 November 2021 are otherwise dismissed.
THE COURT NOTES THAT:
A.The Orders made today are not inconsistent with any Apprehended Violence Orders in place between the parties. However, for the sake of clarity a copy of these Orders will be served upon the relevant Local Court and the New South Wales Police.
NOTATION:
These orders have been amended pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on 4/2/2022 to show in Order 4 the addition of “and/or the Mother” and on 14/02/2022 to show in Order 17 “Suburb D” in lieu of “Suburb E”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Manellis & Andreou has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
This matter relates to interim parenting arrangements for the children:
(a)X born in 2012 currently 9 years, 9 months of age;
(b)Y born in 2014 currently 7 years, 4 months of age; and
(c)Z born in 2017; currently 4 years, 6 months of age.
On 28 July 2021, interim Orders were made by this Court on a defended basis that the children spend time with the Father each Saturday from 9:00 am until 5:00 pm together with telephone time each Wednesday. The interim hearing was adjourned to allow a Child Inclusive Conference Memorandum to be prepared and an Independent Children’s Lawyer to be appointed. The Mother’s Review Application of those Orders was dismissed by the Court on 7 October 2021.
The matter was listed for interim hearing on 13 December 2021 as a special fixture. The Father was represented by Counsel and the Mother was self-represented. There was no appearance by the Independent Children’s Lawyer appointed by the Court on 5 November 2021. Having regard to the competing allegations of the parties and the special listing of the matter, it proceeded to interim hearing on this date. Each party tendered extensive material produced under Subpoena. The matter took some 3 hours to be heard.
The Mother has to date filed 8 interim Applications including an Application in a Case filed subsequent to this interim hearing on 17 January 2022, together with an additional two Applications for Review. For the sake of clarity all interim applications of the Mother as at 5 November 2021 were dismissed on that date, with the Father being directed to file one Application detailing the Orders he sought on an interim basis and the Mother directed to file one Response detailing the Orders she sought on an interim basis. The Application in a Case filed by the Mother on 17 January 2022 is listed for Directions only at this stage.
THE PARTIES’ PROPOSALS
The Father seeks to vary the Orders made by the Court on 28 July 2021. The Orders sought by the Father are then cascading in nature. The primary Orders sought by the Father are set out in paragraphs 1 to 9 of his Application in a Proceeding filed 15 November 2021; namely that the children live with him and spend time with the Mother each Sunday supervised by either a private professionally supervised service or at a Child Contact Centre. In the event the Court is of the view that the Mother does not pose an unacceptable risk to the children but is failing to encourage the children to have a meaningful relationship with the Father, he seeks Orders that the children live with him and the children spend time with the Mother each alternate weekend from Saturday 9:00 am to Sunday 5:00 pm. The Father’s final alternate position, in the event the Court does not find that the Mother poses an unacceptable risk to the children and is encouraging the children to have a meaningful relationship with him, is that the children spend time with the parties in a week about arrangement. He further seeks Orders that a single expert report be prepared to assess the Mother’s mental health.
During the interim Hearing I raised the issue of the lengthy delays occurring with respect to Contact Centres being able to facilitate time and there being no evidence relied upon by the parties as to their respective financial positions. The Court was advised by the Father that the parties own and operate three child care centres and there was no issue with the capacity of the parties to fund a private supervisory agent in the event that was ordered by the Court. The Mother did not take issue with this submission. It does not appear to be disputed by the parties that the costs of a private supervising agency could be met by them if such was ordered by the Court.
The Father relies upon the following documents in support of the interim Orders sought by him:
·the Case Outline filed on 10 December 2021;
·the Application in a Proceeding filed on 15 November 2021;
·the Affidavit of the Father filed on 15 November 2021;
·material tendered during the course of the interim hearing; and
·Notice to Admit dated 29 November 2021.
I was not referred to the Notice to Admit in submissions. In any event, in circumstances where the Mother is self-represented in these proceedings I cannot be satisfied that to read and rely upon a Notice to Admit that may not have been responded to is fair to the Mother. I have not read the Notice in those circumstances.
The Mother also seeks to discharge the Orders made on 28 July 2021. She seeks Orders that she have sole parental responsibility for the children and that the children spend supervised time with the Father alternating between Saturdays and Sundays each week from 10:00 am to 5:00 pm. This time is to be supervised by either the maternal or paternal grandparents. The Mother also seeks orders that she have exclusive occupation of the home and that there be various restraints upon the Father’s behaviour, together with an Order that the Father undertake a mental health assessment.
The paternal grandparents are not on Affidavit nor have they filed an Undertaking with the Court regarding their proposed role as a supervisor. There is no evidence before the Court that they would accept such a role. I am not satisfied in those circumstances that the paternal grandparents would be appropriate supervisors were supervised time between the children and the Father be ordered. The maternal grandmother is on Affidavit supporting the Orders sought by the Mother at this interim hearing. There is no evidence that she would accept the role of a supervisor. She has not filed an Undertaking with respect to such a role. I am not satisfied that the maternal grandmother would be an appropriate supervisor in these circumstances.
The Mother relies on:-
·the Response to an Application in a Proceeding filed on 28 November 2021;
·the Application in a Proceeding filed on 5 November 2021;
·the Affidavit of the Mother filed 6 December 2021;
·the Affidavit of Ms F filed 5 December 2021;
·Notice of Child Abuse, Family Violence or Risk filed 29 July 2021;
·Notice of Child Abuse, Family Violence or Risk filed 20 October 2021;
·the Case outline filed 6 December 2021; and
·material tendered during the course of the interim hearing.
Objection was taken by the Father to the Affidavit of Ms F, the maternal grandmother. The basis of the objection was twofold. Firstly, that the document had not been sworn before an authorised witness. Secondly, the Affidavit is in English and, where the maternal grandmother does not read English, it should not be read as it was not deposed that the Affidavit had been read to her. The Mother asserted that the Court COVID protocols allow Affidavits to not be witnessed and that her Mother can speak and read English. I allowed the Affidavit to be read.
The maternal grandmother was not present at the interim hearing. Her Affidavit for the most part is supporting the evidence of the Mother which is largely controversial in these proceedings. I have therefore placed little weight on the maternal grandmother’s evidence. She will of course, be able to provide an Affidavit for the Trial in this matter and such evidence will be read upon the basis that she is available for the purposes of cross examination should she be required.
There are two reports prepared for the purposes of the interim hearing; a Child Inclusive Conference Memorandum dated 24 September 2021 (Exhibit C) and a Child Impact Report dated 20 October 2021 (Exhibit D). Both have been read.
BACKGROUND
The Mother was born in 1981 and is currently 41 years of age.
The Father was born in 1983 and is currently 38 years of age.
The parties commenced living together upon their marriage in 2007.
X was born in 2012, Y was born in 2014 and Z was born in 2017.
The parties separated on a final basis in November 2018 and remained living under the same roof.
In November 2019 the parties commenced a nesting arrangement with respect to the children. The parties secured a rental property in Suburb U and agreed to alternate spending time at the Suburb G property where the children would remain living with the maternal grandmother. The parent who lived away visited the former matrimonial home each day to spend time with the children, but then left to sleep at the Suburb U property.
On 25 January 2020 an incident occurred at the former matrimonial home. Police attended and a provisional police initiated Apprehended Violence Order was made for the Father’s protection. A Final Apprehended Domestic Violence Order dated 3 August 2020 was issued for the protection of the Father and prohibiting/restricting the behaviour of the Mother.[1]
[1] Exhibit I.
The Mother filed a private application for an Apprehended Domestic Violence Order on 9 July 2020. In such application she sought orders that the Father be restrained from approaching the Mother or the children in any way unless it is agreed to in writing between the parties. It did not seek an order that the Father could approach the children pursuant to any Court Orders made under the Family Law Act 1975 (Cth).
In July 2020 the Father moved to a unit in Suburb V. The Mother and the children remained living in the former matrimonial home. The Father asserts that he continued to see the children throughout the week and often stayed at the former matrimonial home of a weekend. It is the Mother’s evidence that from this time the parties were able to “enter into an informal agreement for his time with the children to be supervised by me or my mother.” However, “Z was never part of that agreement, as he had never left me.”[2]
[2] Affidavit of the Mother filed 6 December 2021, paragraph 63.
On 23 July 2020 interim Apprehended Domestic Violence Orders were made for the protection of the Mother. In addition to the usual orders restricting the Father from assaulting or threatening the Mother an Order was made restraining the Father from approaching the Mother within 12 hours of consuming illicit drugs or alcohol.
On 3 August 2020 a final Apprehended Domestic Violence Order for a period of 2 years was made naming the Mother as the defendant and the Father as the person in need of protection. This Order restricts the behaviour of the Mother but does not preclude the parties from coming into contact with each other.
The Mother’s evidence is that on 15 April 2021 the Father collected Z from day-care without her knowledge. She deposes that subsequent to telephoning the Police and prior to their arrival the Father attended the home and yelled “Listen kids. Get your stuff. You’re coming with me” causing the children to cry.[3] X asked the Mother “Mama, why don’t I just have a meal with Dad and then come back?” [4] The Mother asserts that the Father took all 3 children without her consent, returning returned Z the following day, Y on 18 April 2021 and X on 22 April 2021.
[3] Affidavit of the Mother filed 6 December 2021, paragraph 66.
[4] Ibid, paragraph 68.
The Father’s evidence is that the children were in his care from approximately 8 April 2021 to 8 May 2021. During this period he had all children in his care for approximately a week, Y and X for a further 2 weeks, and then X only for another week.
The Mother withdrew Z from childcare in May 2021.
The Father filed an Application for Interim and Final parenting Orders with this Court on 26 May 2021.
On 15 July 2021, Orders were made by the Court that the Father was restrained from attending the former matrimonial home up to and including the 28 July 2021.
On 28 July 2021 interim Orders were made by this Court pending a further interim hearing that the children spend time with the Father each Saturday from 9:00 am until 5:00 pm together with telephone time each Wednesday. No orders were pressed for the continuation of the restraint upon the Father from attending at the former matrimonial home.
The parties agree that for the most part the Mother has not complied with the Order for face to face time between the children and the Father.
On 23 September 2021, interviews for the Child Inclusive Conference were undertaken with each of the parties. The Court Child Expert reports that the children were not made available by the Mother for their interview.
The Mother asserts that she facilitated “whatsapp” and/or “facetime” video time between the children and the Father on 27 September 2021, 28 September 2021, 29 September 2021 and 30 September 2021 and for X only on 3 October 2021 and 14 October 2021.
The Mother’s evidence is that the children (or some of them) spent unsupervised time subsequent to the interim Orders made on 28 July 2021 on the following occasions:
(a)on the 31 July 2021 with Y and X only;
(b)on the 2 August 2021 with Z only;
(c)and with all the children on the 7 and 14 August together with the 11 and 18 September 2021.
On 1 October 2021 the Mother emailed the Father’s solicitor proposing that the children’s time with the Father be supervised.
The Mother did not facilitate time between the children and the Father on 9 October 2021 in accordance with the interim Orders.
On 19 October 2021 X, Y and the parents were interviewed by the Court Child Expert pursuant to further Orders of the Court made on 7 October 2021. The maternal grandmother was present during the interview of X and Y. It was reported that she was present “at the request of Ms Andreou to manage any emotional issues and practical safety issues with regards to the IT equipment being used by the children for the purpose of the interview.” None of the children were observed with either of their parents.
The Mother did not facilitate time between the children and the Father on 16 October 2021 in accordance with the interim Orders.
It appears from the Mother’s Outline of Case that she asserts that Z spent supervised time with the Father on 20 October 2021, X on 21 October 2021 and Y on 22 October 2021. The Mother asserts the children saw the Father at X’s dentist appointment on 23 October 2021 however she did not otherwise facilitate time between the children and the Father pursuant to the interim Orders on this date.
The Mother did not facilitate time between the children and the Father on 30 October 2021 in accordance with the interim Orders. The Mother asserts that “the Father met us for breakfast and spent time with the children eating, followed by Halloween costume shopping.”[5] The Father’s evidence is that the Mother did not present the children for changeover however he did FaceTime X at about 9:00 am to 9:05 am.
[5] Affidavit of the Mother filed 6 December 2021, paragraph 197.
The Mother did not facilitate time between the children and the Father on 6 November 2021 in accordance with the interim Orders. The Mother states in her Case Outline document that the Father instead spent time supervised with the children for a sushi lunch.
The Mother asserts that the children (or at least one of them) have seen the Father, supervised by the Mother on the following dates:-
(a)1 October 2021;
(b)30 October 2021,
(c)5 November 2021,
(d)9 November 2021,
(e)17 November 2021,
(f)24 November 2021,
(g)28 November 2021; and
(h)2 December 2021.
The Mother facilitated time between the children and the Father on an unsupervised basis from 2:00 pm to 6:30 pm on 14 November 2021.
THE LEGISLATIVE PATHWAY
In deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration. The children’s best interests are ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC of the Family Law Act1975 (Cth) (“the Act).
The Full Court in Salah and Salah [2016] FamCAFC 100 affirmed the now well settled pathway with respect to interim hearings as enunciated by Goode and Goode [2006] FamCA 1346. It also affirmed that the procedure for making interim orders would continue to be a truncated process in which the Court should avoid making findings based on contested facts, but rather look to agreed facts and issues not in dispute, whilst still following the legislative pathway.
As this is an interim hearing reasons may be given in short form and only the relevant considerations as presented by the parties through the evidence and presentation of their case is required to be addressed.
THE PRIMARY CONSIDERATIONS
The primary considerations as set out in s60CC(2) of the Act are:
(a)the benefit to the children of having a meaningful relationship with both of their parents; and
(b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying these considerations, the Court must place greater weight on the need to protect the children from harm than on the benefit to the children of having a meaningful relationship with both parents.
Merely because there are controversial or disputed facts does not mean that the Court is unable to or should not engage with the issues and the evidence, nor does it mean that the matter can only be decided on an interim basis solely by reference to agreed facts: Eaby v Speelman (2015) FLC 93-654 at [18]. Despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of the responsibility to determine risk. The Full Court in SS & AH [2010] FamCAFC 13 said:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Where risk is alleged in interim proceedings, a conservative approach is warranted: Marvel & Marvel (No 2) [2010] FamCAFC 101.
The difficulty in this matter is the competing allegations of harm in each household. Each of the parties seeks orders from the Court that the children live with them pending further order. Each party alleges that the children are at an unacceptable risk in the care of the other party, but that such risk is sufficiently ameliorated by this Court ordering supervised time.
In the circumstances of a truncated interim hearing, the Court must look to the risks alleged by each party and determine whether the risks alleged are unacceptable in terms of the proposed parenting orders by each party. The Court must apply a risk matrix whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence: Dieter & Dieter (2011) FamCAFC 82 at [61]. As identified by the High Court in M v M (1988) 166 CLR 69 at [78] the formulation of the parenting Orders to be made by the Court depends on the nature and degree of risk presented.
The Mother asserts that she has always been the primary carer of the children. She deposes that X has stated to her that she is scared to see her Father and does not want to see him on her own. The Mother is reported as telling the Court Child Expert that X has developed significant anxiety in response to the Father’s behaviour. The Mother alleges in her Affidavit that X is suffering nightmares. The Father reported to the Court Child Expert that Y is showing symptoms of distress.
The Mother asserts at paragraph 124 of her Affidavit that on 5 September 2021, X said to her “mum I don’t like how daddy swears like that out of no where at times, it scares me, was he drunk?”
At paragraph 168 of the Mother’s Affidavit she deposes that on 24 September X woke up having nightmares and said "Mummy I love you, but I also love daddy, I don't know what to do".
The Mother further deposes that on 14 October 2021 the Father told X that her performance in maths was “horrible”. The Mother observed X to be “crushed” by the comment and began crying. She further woke up at 4:00 am crying and told the Mother she was anxious.
The Mother deposes that on 20 November, following a phone call with the Father, X said to her "Mum, I am scared of daddy" and "I am scared that he might hurt me, and he has never hurt me before."[6]
[6] Ibid, paragraph 214.
On 2 December the Mother says that she attempted to facilitate time between the Father and X however X responded "Mummy I'm scared. I don't want to go on my own” and "Please come with me" then X started crying. Later in the day, X told the Mother "I'm scared that daddy might say something, then I say that to you, then he calls me a lier when I'm not lying."[7]
[7] Ibid, paragraph 224.
The Mother asserts that she has arranged for the children to see the Father subsequent to their expressing a wish to do so. The Mother deposes that on 9 November “Z was missing his Father ”[8] and that “X and Y expressed that they wanted to see their father as well”.[9]
[8] Ibid, paragraph 199.
[9] Ibid, paragraph 200.
The Father asserts that he has been responsible for and attended to the children’s day-to-day care and needs including attending to the children as babies and toddlers, taking the children to medical appointments, taking the children to and from activities, playing age-appropriate games with the children and preparing meals for the family. The Father says that “in providing that physical care and otherwise, I have developed a close emotional and loving bond with my children.”[10] In particular, he says that Y “constantly seeks out my attention and affection”.[11] He alleges that he has observed the children to be happy and enjoy their time with him.
[10] Affidavit of the Father filed 15 November 2021, paragraph 81.
[11] Ibid, paragraph 83.
The Father deposes that when spending time with the children, they have said “I really miss you dad”[12] and on 26 September 2021 he received a voicemail from Y which said “Daddy, I really, really, really love you. I wish we could see you on Saturday, but Mumma said no because of the solicitors.”[13]
[12] Ibid, paragraph 89.
[13] Ibid, paragraph 92.
The Mother submits that she is not complying with the current Orders of the Court to protect the children’s emotional, physical and psychological welfare. She asserts that the Father does not have the capacity to care for the children. During the course of submissions the Mother asserted that neither I nor Judge Obradovic had all the evidence needed prior to making the previous Orders that the children spend time with the Father and that her Review Application be dismissed.
The Father asserts that the Court could have no confidence that the children will be able to continue a meaningful relationship with the Father if they are to remain in her care. The Father submits that the material before the Court will lead the Court to conclude that the children are at an unacceptable risk in the Mother’s care.
THE CHILDREN
Having regard to the diametrically opposed factual position of the parties and the competing allegations of risk of harm, the independent reporting of the Court Child Expert assumes importance in circumstances where neither party appeared to criticise or take issue with the contents of the report during the course of the interim hearing.
The material contained in the report must be read and considered in light of the fact that the report writer allowed the maternal grandmother to be present whilst X and Y spoke to the report writer. It may be that the two girls would not be willing to speak freely with respect to anything they wish to say about the Mother’s household with the maternal grandmother present. It may also be the case that the girls would not feel comfortable in expressing any positive aspects about the Father during the course of the interviews.
In those circumstances I place significant weight on the fact that the girls did not criticise the Father in any way to the report writer. They did not make any disclosures as to any conduct they have experienced from the Father or in the Father’s household that was negative in any way or caused them distress, despite the maternal grandmother being present during the course of their interviews with the Court Child Expert.
The Court Child Expert reported that both X and Y expressed a wish to continue spending time with the Father. X said that spending time with her Father is “fun.” She is reported as stating that when she does something naughty at her Father’s home her Father usually talks to her and her siblings about their behaviour. When further questioned X is reported as stating that “I don’t really want to get involved in the divorce” and “I want to see my Daddy on Saturdays.”[14]
[14] Child Impact Report dated 20 October 2021, paragraph 8.
Y is reported as telling the Court Child Expert that she enjoyed spending time with each of her parents, and was missing not being able to spend time with her Father currently. When asked what she liked about spending time with her Father, Y’s reported answer is “everything.”[15]
[15] Ibid, paragraph 9.
Z was not interviewed due to his tender age.
A Police Report dated 29 June 2021 where the Police attend the home of the Father as a result of allegations made by the Mother records “All three children appeared to be happy at their dad’s home, and did not wish to return to the Suburb G address for a few more days.”[16]
[16] Exhibit G being the Father’s Tender Bundle, Page 5.
When asked to make any submissions she wished to with respect to what the children are reported as saying to the Court Child Expert, the Mother submitted that X is not mentally comprehending what is occurring, and Y’s stance changes.
Family Violence
Each of the parties allege that the other party has perpetrated family violence against them. The Mother further asserts that the Father has physically assaulted Z and Y. The Mother asserts that the Father has engaged and continues to engage in controlling behaviour.
Material produced under subpoena from the New South Wales Police Service provides a clear history of the parties’ extensive engagement with the Police and the competing allegations made by each of them subsequent to separation.
On 11 August 2019 the Mother attended Suburb H Police Station to obtain an Apprehended Domestic Violence Order. At this time the parties were separated under the one roof. The Mother is recorded as telling the Police that the Father mentally and emotionally abuses her but has never physically assaulted her. It records that she stated that she “needed” an Apprehended Domestic Violence Order so that the Police can make the Father leave the home, and that it would assist her in her family law matters. Upon the Police refusing to assist, the Mother is recorded as telling the Police that she would attend another Police Station and that someone would give her an Apprehended Domestic Violence Order. Police record that they held no fears for the Mother and were of the belief that she was “shopping for an AVO to help her family law court matters.”[17]
[17] Ibid, page 26.
On 25 January 2020, there was an incident between the parties at the former matrimonial home. The Father asserts that the Mother head-butted him on his nose approximately 7 times causing the Father’s nose to break. The Police records state that the Father reported that the Mother had head-butted him 4 or 5 times. There is no medical evidence before the Court as to the Father obtaining any medical assistance for the injury. It is the Father’s evidence that the maternal grandmother was present when the assault occurred and upon her grabbing the Mother and saying to her: “Have you gone crazy?” the Mother fended her Mother off and hit her on the face, causing her to cry.[18]
[18] Affidavit of the Father filed 15 November 2021, paragraphs 9 – 13.
The Father deposes he called the Police and they attended the home a short time later. The Mother concedes that a provisional police initiated Apprehended Violence Order was taken out for the Father’s protection. Arising from this alleged incident a final Apprehended Domestic Violence Order was issued against the Mother and for the protection of the Father for a period of two years on 3 August 2020. In her Affidavit the Mother conceded that “I was trying to escape, and I apparently nudged Mr Manellis in the nose whilst doing so.”[19] Police records tendered by the Father contains a narrative created 7 April 2020 which records that on 25 January 2020 “When speaking with the Defendant, she admitted to head-butting the PINOP but claimed it was self-defence due to emotional and psychological abuse.” [20]
[19] Affidavit of the Mother filed 6 December 2021, paragraph 42.
[20] Exhibit G, Page 25.
Subsequent to the incident on 25 January 2020 it is recorded that the Mother attended Suburb D Police Station later that day and requested an Apprehended Domestic Violence Order as she believed that the Father had been abusive to her on several occasions. The Police records state “Police informed the POI that they would not be applying for an AVO on her behalf as they believed she was only reporting the matters to police as the Police had taken out an AVO for the protection of the VIC…”[21]
[21] Ibid.
On 22 April 2020 the Mother attended at Suburb D Police Station and alleged that the Father had sexually harassed her. Upon reading the text messages between the parties a further text message was revealed whereby Z was sitting on a bed surrounded by 3 pills. It is recorded that Police inspected Z and he appeared to be in good health. The Mother then alleged to the Police that the Father had slapped Y on 16 April 2020. The Police spoke to Y who advised the Police that she fell over after jumping from the bar stool and hit her head, and that the Father picked her up and placed her on the couch. No further action was taken by the Police and it is recorded: “Police strongly suspect PN1 [the mother] is police shopping to apply for an AVO to obtain custody of the kids as they are currently undergoing divorce proceedings.”[22] The Mother alleges again in her Affidavit that “On 16 April 2020 Mr Manellis slapped Y across the face and said that he did so because her behaviour was ‘silly.’”[23]
[22] Ibid, Page 24.
[23] Affidavit of the Mother filed 6 December 2021, paragraph 48.
The Mother again attended Suburb D Police Station on 27 April 2020 to report that the Father was placing the children at risk as:-
(a)the Father gave the children whatever they wanted;
(b)the Father consumed alcohol when the children were present but did not state that this affected his parental capacity rather that it was inappropriate;
(c)the Father had purchased an Ipad for the children and as the Father logged on some pictures from his own device being “a man’s bare bottom and scantily clad women” were shown.[24] The Mother alleges with respect to the pictures on the Father’s Ipad that she found files on the children’s Ipads “filled with pictures of genitals.”[25] The Police were satisfied that the transferring of the photos from the Father’s phone to the Ipad was accidental and did not meet the at risk criteria. The Police records record: “It was apparent to police that Ms Andreou would change her story whenever police would advise that what she was saying would (not) meet the child at risk criteria.”[26]
[24] Exhibit G, 24.
[25] Affidavit of the Mother filed 6 December 2021, paragraph 47.
[26] Exhibit G, Page 24.
The Father alleges that on 14 May 2020 the Mother contacted the Police and alleged that the Father had become drunk and abused her. On attending the home the Father answered the door to the Police, who report that they do not observe him to be affected by alcohol. The Mother alleged to the Police that the Father had sexually harassed her by licking his lips at her and making comments of a sexual nature. The Police did not take any further action.
At paragraph 53 of the Mother’s Affidavit she deposes that on 5 July 2020 the Father became verbally abusive during the course of an argument and struck her in the face with his arm/mobile telephone and she fell and hit her head on the bathroom floor and was bleeding. It appears to have been the Father who contacted the Police and they attended at the former matrimonial home. The Police are recorded as observing that the Mother has a small amount of dried blood on the inner side of her bottom lip and the Mother describes having general head pain and feeling dizzy. The ambulance Officers are recorded as observing a small cut to the Mother’s upper gum and a possible lump on her head. The Mother was admitted for a short stay at Suburb G Hospital. The Police took no further action. The Mother asserts that an Apprehended Domestic Violence Order was not taken out by Police as the Police Officer who attended to take her statement knows the Father.
Upon the Mother’s own private application filed on 9 July 2020, an interim Apprehended Domestic Violence Order was issued against the Father on 23 July 2020 protecting the Mother. The final defended hearing with respect to her application is part heard and next listed at the Local Court at Suburb D on 25 March 2022.
The competing allegations as to physical violence by each party upon the other is concerning. The Mother’s evidence with respect to the incident on 25 January 2020 is inconsistent. Tendered police records record that the Mother admitted to head-butting the Father on this date but claimed it was self-defence. The Father is silent as to the Mother’s allegation that he assaulted her on 5 July 2020. The Court notes that police attended on this date but took no action. I am satisfied that there is a risk that each of the parties have occasioned a physical assault upon the other. I place greater weight on the risk to the children arising from the alleged assault by the Mother upon the Father in light of the Mother’s recorded concession and inconsistent evidence. I do not make any findings as to such allegations on an interim basis.
On 14 March 2021 the Mother contacted the Police and alleged that the Father shook Z. The Police attended at the home and interviewed the Father, the Mother, X and Z. Having conducted these interviews, the material produced by the Police record that Z and X were having a fight in the living room. The Father wanted Z to stop fighting his sister so he placed his hands on Z’s face to get him to look into the Father’s face and focus on him whilst he was telling Z that what he was doing was wrong. The Mother formed the view that the Father was shaking Z and called the Police. The Police record states: “Police believe the INF (the Mother) is making vexatious complaints in relation to the POI (the Father) as there are currently cross AVO’s in place that are going through court and divorce/family law court proceedings upcoming.”[27]
[27] Ibid, Page 10.
I am not satisfied based on the material before the Court that the children are at an unacceptable risk from the Father arising from allegations that he has assaulted them.
On 2 April 2021 Police were called to the former matrimonial home. The Mother is recorded as alleging that the Father attended the home and that she fears he has COVID 19 and had exposed her to the virus. It is recorded that no details were able to be provided by the Mother to ground her concerns in this regard. She alleges that he had “barged” his way into the home, thereby breaching an Apprehended Domestic Violence Order. CCTV footage is reported as being watched by the Police and it is reported that “this to be untrue and the conditions enforced did not restrict the VIC ability to attend the location and see his children. When questioned, the PN was unable to provide a reasonable response as to why she held fears for the VIC.”[28]
[28] Exhibit G, Page 7.
The Mother alleges that Officers of the New South Wales Police Force have not actioned her complaints as “some members of the Police would be intentionally helping Mr Manellis as he apparently had some friends there.”[29] The Mother sent an email to the customer service support of the New South Wales Police on 3 August 2021 complaining as to her treatment at the hands of the Police.
[29] Affidavit of the Mother filed 6 December 2021, paragraph 62.
The Mother alleges at paragraph 104 in her Affidavit that the Father placed tracking devices, being Apple AirTag tokens into the children’s bags that they take to the park with them. It is the Mother’s evidence that these were found in August 2021.
The issue of the AirTag tokens being in the children’s bags was not addressed by the Father in his Affidavit. The Father tendered as part of his material an information sheet about AirTags that asserts that unique Bluetooth identifiers within the tags change frequently to help prevent someone from being tracked place to place. It states that to discourage tracking without someone’s knowledge, an AirTag will play a sound when moved so that it may be found.
I cannot make any determinations as to this issue having regard to the truncated nature of the interim hearing and the limited evidence before me at this stage as to this allegation. It will be a matter for evidence at cross-examination at the final hearing. If it is found at final hearing that the Father did place devices capable of tracking a person’s movements that will be a matter of significant concern for the Court.
Drugs and Alcohol
The Mother reported to the Court Child Expert that she has concerns about the Father’s alcohol use and believes he is using drugs. The Court Child Expert stated that “Ms Andreou, however, did not provide clear information about Mr Manellis alcohol or possible drug use, including what her concerns were.”[30]
[30] Child Inclusive Conference Memorandum to the Court dated 24 September 2021, paragraph 12.
On 23 July 2021 the Mother contacted the Police and alleged that the Father was in the middle of the road the previous night intoxicated, swearing and speaking loudly. In her Affidavit she deposes that on the evening of the 22 July 2020 “I saw Mr Manellis drunk in the street laughing out loud with a car that was full of guys, Mr Manellis then came inside without notice to collect some of his clothes. I knew he had been drinking because his speech was slurred, his eyes were blood shot and he was behaving erratically. The children were sleeping as he yelled that he would be taking the children to school the next day. I have a video of this, should the court wish to see it.”[31] No further action was taken by the Police.
[31] Affidavit of the Mother filed 6 December 2021, paragraph 55.
On 14 December 2021 the Mother contacted the Police alleging that the Father was under the influence of alcohol whilst talking on an Ipad to X. The Police records state that they watched the Mother’s recording of the conversation and no further action was taken by the Police with respect to this allegation.
In her Affidavit the Mother deposes that the Father had been drinking alcohol or was drunk on 7 January 2020, 25 January 2020, 12 February 2020, 22 July 2020 and 14 October (year not specified). On none of these occasions does the Mother depose that the children were in the sole care of the Father. On many of these occasions the evidence is that the Mother formed the view that the Father was drunk as he “did not sound well” or that he “got drunk.”
The Father is reported as telling the Court Child Expert that he does not use drugs of any type and that he consumes alcohol moderately.
On the current evidence before the Court I am not satisfied that there exists a risk for the children being in the Father’s care as a result of drug or alcohol misuse. No Orders will be made regulating the Father’s behaviour in this regard.
The Father does not make any allegations with respect to the Mother’s use of drugs or alcohol.
Mental Health Issues
The Father asserts that the children are at an unacceptable risk in the Mother’s household as she has mental health issues, namely paranoid schizophrenia. Substantial medical records of the Mother were tendered by the Father at the interim hearing.
On 27 February 2013 the parties’ general practitioner suspected that the Mother had encephalitis as she was reporting as having symptoms of fever, increased confusion and difficulty making decisions. Dr J reported that the Mother was paranoid as she thought that she was possessed. One day later the Mother was admitted to K Hospital under the care of Dr L for multiple neurological symptoms. The Mother discharged herself against medical advice. On 29 February 2013 the Mother was referred to M Hospital Emergency Department and was seen by the neurology team and then discharged.
On 18 August 2015 the Mother attended upon Dr N. The reason for such attendance is noted by the Doctor as “paranoid personality.” The Mother is recorded as “refuses med.”[32] I have taken this to be the doctor reporting that the Mother refused medication.
[32] Exhibit G, Page 40.
On 14 September 2015 the Mother again attended upon Dr J. He records that he is concerned as to the Mother’s mental condition. He referred the Mother to a psychiatrist. The Mother concedes that she did not, at any time, follow through with this referral.
The Mother at first advised the Court that she had no comment or anything to say when asked why she did not follow through with Dr J’s referral of her to a psychiatrist. After the luncheon adjournment the Mother further advised the Court that with respect to Dr J “His diagnosis in 2013 was wrong with encephalitis and that’s probably one of the reasons why I did not intend to follow through with his diagnosis again in 2015.”
On 9 November 2015 Dr J prescribed the Mother Cymbalta. He explains to both parties that the Mother is showing symptoms of psychotic depression.
In November 2015 Dr J and Father Z from O Church attended at the home of the parties at which time Dr J suggests that the Mother attend a hospital to have her mental health assessed. The Mother refused.
On 8 April 2016 the Mother attends upon Dr J’s practice reporting that she had stopped taking Cymbalta as she was feeling better mentally but was then experiencing similar symptoms. The Mother is recorded as stating that does not want to take Cymbalta again and wants to work it out for herself.
On 19 March 2019 the Mother attended upon her treating practitioner Dr J and requested a copy of her medical records as she and the Father are going through a separation. It is recorded that the Mother advised that she wanted the previous notes with respect to her mental health changed.
On 9 February 2021 the Mother is recorded as contacting the Police and alleging that the Father has been remotely controlling the front gate to her residence. The Police found no evidence to support the allegation and noted “The Victim appears paranoid and has no genuine reason to believe this is occurring.”[33]
[33] Ibid, Page 15.
On 29 June 2021 Police attended upon the Mother after she contacted them to raise concerns with respect to children in the Father’s care. Notes from the New South Wales Police record: “Police believe that the person named is suffering from underlying mental health issues, and is becoming fixated on requesting Police reports to assist in family law court proceedings.”[34]
[34] Ibid, Page 5.
The Mother is reported as advising the Court Child Expert that she has no concerns as to her mental health. She submitted to the Court that she has never been diagnosed with a mental health illness and that in any event, Dr J should not be a witness in the matter as he is the son of her Parish Priest. She submitted that “I never had attended to Dr J just as a doctor.” and “he was more like a brother to me”. No objection was ever taken by the Mother to the production or inspection of the material produced under subpoena by Dr J, noting that she was previously legally represented.
It is the Mother’s evidence and submission that she was misdiagnosed with encephalitis and was later diagnosed with viral meningitis. The Mother submits to the Court that she has never been diagnosed with any mental illness; instead, the parties were under a lot of stress as a result of their financial circumstances and businesses and this was putting a lot of pressure on her. The Mother deposes “Any such suggestion is rejected and I confirm that I had never suffered or been diagnosed with any mental health illness.”[35]
[35] Affidavit of the Mother filed 6 December 2021, paragraph 20.
Annexed to the Mother’s own affidavit is a text message from a Dr N who advised her that she had been prescribed a sedating antidepressant: “It will help sleep but it also has antidepressant properties.”[36]
[36] Ibid, Annexure I.
The Mother’s medical history is of significant concern to the Court. She has refused to follow through with a referral to a psychiatrist by her treating doctor in September 2015. Her behaviour in constantly contacting the Police and the nature of the allegations raised by the Mother are troubling, as is her reported request to her treating medical practitioner to have her medical history changed.
The Mother asserts that she has concerns as to the children in the Father’s care as he has mental health issues. The Mother is reported as saying to the Court Child Expert that she has concerns as to the Father’s mental health. There is no evidence before the Court as to the medical history of the Father. The Mother says she developed concerns about the Father’s mental health in relation to the following incidents:
(a)upon seeing an image sent to her on 22 April by the Father of “Z sitting next to a pile of pills”.[37]
(b)the Mother says that she thought the Father may have “mentally lost the plot” in relation to her allegation that the Father slapped Y on 16 April 2020;[38]
(c)that on 22 July 2020 the Mother saw the Father drunk and laughing out loud and was behaving erratically while she had the care of the children. The Mother says that that a few days following that incident, she rang the Mental Health Clinic for someone to contact the Father for an assessment as she believed “something was wrong with him”[39]
(d)the Mother says that she “lost confidence in his mental stability and judgement as a parent” as a result of “Mr Manellis’s continuous outburst, irrational and inappropriate behavior”[40]
(e)the Mother further adds, “I can not comment about his mental health as I am not a specialist, but his emotional state does effect the children's psychological and emotional wellbeing.”[41]
[37] Affidavit of the Mother filed 6 December 2021, paragraph 49.
[38] Ibid, paragraph 48.
[39] Ibid, paragraphs 55 – 58.
[40] Ibid, paragraph 59.
[41] Ibid, paragraph 220.
I am not satisfied that the children are at risk in the Father’s care as a result of any mental health issues he is living with.
Further Risk Issues
The Mother raises the diabetes of the Father as a risk issue. The Mother is recorded as again contacting the Police on 29 June 2021 and reporting that the children are at risk in the Father’s care as he may have a diabetic episode on front of the children. There is no evidence that the children have ever been at risk in the Father’s care due to his diabetes. I am satisfied the children are not at risk in the Father’s care as a result of him having diabetes.
The Father submits that the Court should make the Orders as sought by him as the Mother is completely frustrating the children’s time with the children pursuant to the interim Orders and the children’s relationship with the Father is at risk. The Father submits that if the Orders do not change so that the children live with the Father then the Mother will not facilitate time between the Father and the children. The following interaction occurred between myself and the Mother during the course of the interim hearing:
Judge Are you currently complying with the orders for time?
Mother No.
JudgeIf I make orders that the Father is to have time either in accordance with the current orders or overnight, are you going to comply with those orders?
MotherOn what basis your Honour when there is psychological and emotional harm?
JudgeMs Andreou I just need you to answer the question please. I’m not saying that is what I am going to do, I am just trying to ascertain what your position is. So if I make any Orders for any time between the Father and the children as a result of this interim hearing, are you going to comply with them?
Mother If they are supervised, yes Your Honour
Judge And if it is not supervised?
Mother Do I have an option of saying no?
Judge I’m asking you to tell me the truth Ms Andreou. Will you comply or not?
MotherI would have to ask my children Your Honour, that is the honest truth and that is what I have been doing.
Judge Thank you.
I am satisfied that there is a significant risk in light of the Mother’s non-compliance with the interim Orders made for the children to spend time with the Father and the interaction as recorded above that the Mother will not comply with Orders made by this Court for unsupervised time between the children and the Father, thereby placing at risk the benefit the children will obtain from continuing a meaningful relationship with the Father.
Both of the parties allege that the other party is involving the children, especially the two girls, in the proceedings. This will be a matter for determination at final Trial. The Court will make Orders restraining each of the parties from discussing the proceedings with the children or in their vicinity.
The Father is concerned that the Mother is preventing the children, more particularly X, from accessing the support of a school counsellor. It is the Father’s evidence that in April 2021 the Father was contacted by the Deputy Principal of the girls’ school who advised him that the staff at the school have observed the girls, especially X, to become withdrawn and at times upset and tearful. The Father gave his consent to X being referred to the school counsellor. The Mother advised the school that she did not consent to the girls speaking to the school counsellor and threatened to take the children out of the school and enrol them somewhere else if such counselling occurred.
It is the Mother’ evidence that on around 24 March 2021 she approached Ms P at Q School and agreed that X may benefit from seeing the school counsellor and asked for a referral. She advised that she would consult with X about the issue prior to any appointment being made. The Mother alleges that she spoke with X who expressed concern about talking about her feelings to a stranger. The Mother instead suggested to see their Spiritual Priest at Church instead before “exposing her to other avenues”. The Mother says that by 30 April 2021 she has started preparing X to be able to communicate her emotions with their Spiritual Priest. Following the Mother finding out that X had attended upon the school counsellor, without her consent, the Mother arranged for a meeting with Ms P, Ms R and the school counsellor Ms S. The Mother says that upon speaking with X afterwards that she “decided to still do the right thing and keep the focus on engaging her with our Spiritual Priest instead.”[42]
[42] Ibid, paragraph 118.
It appears that the Mother does not consent at this stage to X attending upon her school counsellor. With all respect to the Mother’s Spiritual Priest, I am satisfied that it is in X’s best interests that she be afforded the opportunity to speak to a qualified counsellor attached to her school and an Order will be made in this regard.
THE SECONDARY CONSIDERATIONS
Section 60CC(3) sets out additional considerations the Court may consider and I now refer to those that are relevant to these interim proceedings.
I am satisfied that at least X and Y wish to see their Father and enjoy their time with him. This is currently being hindered by the Mother.
The Mother submitted that the status quo since July 2020 has been the children living with her. I am satisfied that the Mother has been the main carer for all three children subsequent to the separation of the parties. The evidence is lacking as to the specific time the children have spent with the Father subsequent to separation or is in dispute. The children have been spending time with the Father subsequent to separation although it appears that from May 2021 these arrangements have been ad hoc. I accept however that changing the residence of the children at this stage presents a significant change in the predominant care arrangements for the children subsequent to July 2020.
The status quo however is no more than one factor to be taken into account in determining the children’s best interests. The weight to be attached to the status quo depends on all the facts. The Full Court has disapproved statements that suggested that a change in the status quo was automatically a serious inroad into a child’s sense of stability and security: In the Marriage of Raby (1976) 12 ALR 669. It is an error to say that there is a legal onus upon a party to show that a change in the status quo will be a positive advantage to the child: In the Marriage of Burton (1978) 24 ALR 378.
I have concerns as to the capacity of both parents to provide for the children’s needs having regard to the conduct of both parties subsequent to their separation. As stated earlier in these reasons, both parties have engaged the Police on numerous occasions in their conflict. The children have been interviewed by the Police. They appear to be aware of the proceedings before the Court. Documents in Exhibit CC appear to show the Father texting X in September 2021: “Hey baby! Mummy understands what I’m seeing. Tell her I’m waiting for her response. I would like to see you for half of the school holidays.” With respect to a dentist appointment apparently missed by X whilst in the Mother’s care the Father appears to have texted to X: “I messaged mummy yesterday and the dentist had already sent her a reminder…….It’s not up to you Baby. Mummy should have reminded you.”
The Mother has tendered a letter from a Dr T dated 4 November 2021 addressed “To Whom it May Concern” and it states “ …X….was seen by myself on 18th of October [2021] and 28th of October [2021] displaying symptoms of anxiety due to the parents divorce.”
For the earlier reasons in this Judgment it appears, however, that at this point in time and with the evidence currently before the Court that the Father has a greater capacity than the Mother to provide for the children’s needs. The Mother is not facilitating time between the children and the Father. She has asserted that she will not facilitate any unsupervised time pursuant to Orders of this Court until she speaks to the children. The Mother appears to have been unable or unwilling to obtain assistance for the girls with issues they are currently facing. Evidence as to the Mother’s mental health needs to be obtained.
The allegations as to family violence have already been addressed earlier in these reasons.
The Mother is residing in the former matrimonial home. It is the Father’s evidence that he is currently renting a two bedroom apartment and the children have all stayed here. It is a 10-15 minute drive from the children’s school.
PARENTAL RESPONSIBILITY
As the Court is being asked to make orders as to parenting, the first question to be determined is whether the presumption in section 61DA(1) of the Act that it is in the best interests of the children that the parents have equal shared parental responsibility is rebutted as either:
(a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence; or
(b)the proceedings are interim and the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order.
If the presumption is found to apply, it may further be rebutted by evidence that equal shared parental responsibility is not in the best interests of the children.
An Order for equal shared parental responsibility requires the parents to make together (and jointly) decisions about major long-term issues affecting the children. These parties have been in a state of high conflict subsequent to their separation. Both parties have current Apprehended Domestic Violence Orders currently in place restricting the behaviour of the other party. The Father has contacted the Police with respect to the Mother on no less than six occasions since March 2019. The Mother has contacted the Police on no less than twenty two occasions since March 2019.
The Mother contacted the Police on 28 August 2020 over concerns that the gardeners and maintenance workers attending at the former matrimonial home have PIN codes to the property.
The Father contacted the Police on 12 December 2020 after the Mother advised him she had concerns as to the children attending the paternal uncle’s home to visit.
On 22 December 2020 the Mother contacted the Police with respect to the Father withdrawing money from a bank account. The Police spoke to the Father and no further action was taken.
The Mother contacted the Police on the 25 and December 2020 after the Father entered the former matrimonial home with a set of keys he has. No further action was taken by the Police.
The Father further contacted the Police on 7 July 2021. Material produced under subpoena records that this contact was made because the Father discovered, upon attending at the former matrimonial home to return the children to the Mother, that he was unable to enter the home as it appeared that the locks had been changed. It is reported that X told the Father to leave the home before an argument broke out, which he did. It is unfortunate that X appears to have been aware as to the issue at that time and it was she that had the sense to tell the Father to leave.
The Mother contacted the Police for various reasons to make allegations or complaints about the Father’s conduct on 22 January 2021, 23 January 2021, 27 January 2021, 9 February 2021, 21 February 2021, 22 February 2021, 27 February 2021, 28 March 2021, 1 April 2021, 2 April, 8 April 2021 and 29 June 2021. Save for the Police talking with the Father, no action is taken by the Police with respect to any of the Mother’s allegations.
It is patently clear from the conduct of the parties that they are unable to have any form of cooperative relationship and would not be able to make a genuine effort to reach agreement about issues relating to the care of the children: Marvel & Marvel (No 2) [2010] FamCAFC 101 [103].The presumption as to equal shared parental responsibility is therefore rebutted. Having regard to the highly conflictual nature of the relationship between these two parties at this point in time, an Order will be made pending further Order that the parent with whom the children are living shall have sole parental responsibility.
The Court is thus to make such orders in its discretion that are in the best interests of the children as a result of consideration of one or more of the matters in section 60CC.
DISCUSSION
The Court has serious concerns having regard to the short history of this matter subsequent to the parties’ separation of what exposure the children have had to the parties’ conflict and what they have witnessed. It is clear to this Court, even on an interim basis, that neither of these parties appear to be able to separate their own needs from the needs of the children. Both parties appear to lack insight as to how their behaviour is and will impact upon the children. Neither party appears to be able to shield these children from the parental conflict. The long lasting psychological harm both these parents have potentially inflicted on these children is at this stage unknown. The short term affects appear to already be manifesting with X.
As submitted by the Father, to accept the Mother’s assertions that the children are at an unacceptable risk in the Father’s care I would implicitly have to accept the Mother’s allegations that various members of the New South Wales Police force, from differing police stations, have conspired to protect the Father from the Mother’s allegations including those of family violence. I would further have to accept that Dr J is not acting in the Mother’s best interests. Both these submissions raise concerns as to the Mother’s mental health.
There is a risk that the Father has engaged is coercive and controlling behaviour by the placing of tracking devices in the children’s bags. There is also a risk that the Father has occasioned family violence upon the Mother.
I am satisfied having regard to the allegations of the Mother that there are some risks to the children in the event that they spend unsupervised time in the care of the Father. Having regard to the strength of the evidence before the Court I am not satisfied that this risk is an unacceptable one. I am satisfied that the best interests of the children do not require their time with the Father to be supervised.
The risks to the children in the Father’s care must then be balanced against the risk of harm in the Mother’s care. I am satisfied that the children are at risk of harm in the Mother’s care. This risk of harm is multi-layered. The children are at risk of continuing to witness the parent’s conflict and the Mother’s repeated allegations and subsequent interactions with the Police with respect to the Father. They are at risk of harm that the Mother will continue to involve them in these proceedings. They are at risk of harm that the Mother will not, despite any Orders made by the Court, facilitate a meaningful relationship between the children and the Father as she is convinced that they are at risk of harm in the Father’s care. The Mother’s mental health is a serious issue that will be a matter for determination at the final Trial.
I am satisfied that, balancing the competing allegations of risk of harm in each party’s household as against the benefit the children will obtain from a continuing and meaningful relationship with each of the parties that the best interests of the children are met by them living with the Father. Whilst this is a significant change in circumstances for them, especially on an interim basis, I am satisfied that this is the only method whereby the children will be able to continue their relationship with their Father.
Having regard to the history of the matter I am satisfied that the only means whereby the children will be adequately shielded from the effects of the Mother’s behaviour and her beliefs is to have their time with her supervised pending the appropriate evidence being placed before the Court as to her mental health and each of the party’s parental capacity. I am further satisfied that it is in the children’s best interests that they be afforded some time absent any conflict between the parties, to settle into the Father’s household as this will be a change in their current living arrangements. The children will have a one month period to settle into the Father’s household prior to seeing their Mother.
Having regard to the Mother’s history of not complying with Orders of this Court, significant thought has occurred as to the most appropriate arrangements to be made for the children to move from the Mother’s household to the care of the Father. To avoid further trauma to these children by Police involvement, I would have, in normal circumstances, ordered that changeover be facilitated by a Court Child Expert at the Parramatta Registry. Unfortunately, we are not living in normal circumstances but in the midst of a pandemic and there are impediments to changeover occurring in this fashion.
Having regard to the Mother’s non-compliance with Orders of this Court, I further was not confident that the Mother would have complied in any event with an Order that she bring the children to the Registry today for the delivery of judgment.
In those circumstances the highest chance of a smooth transition for the children is for it to occur at their respective schools. I deliberately delayed the delivery of this Judgment so that the children will have had a week to settle in at their new school, and will now have the weekend to settle into their Father’s household.
In light of the highly conflictual nature of the parties’ relationship post separation and the apparent detrimental impact this is having on at least one of the children, it is in the children’s best interests that the parents and children attend post separation parenting programs. It is also in the children’s best interests that the parties be restrained from denigrating the other party or discussing these proceedings in the presence of the children.
The Father seeks that a recovery Order issue in the event the children are not returned to him by 4:00 pm the date that orders are made. Section 67U of the Act provides that the Court may, subject to section 67V, make such Recovery Order as it thinks proper. Section 67V provides that, in deciding whether to make a Recovery Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Whilst I am hopeful that these children will not again be subjected to conflict between the parties and the presence of Police, I am not confident having regard to the Mother’s failure to date to comply with Orders made by this Court that there will be a smooth changeover of the children into the Father’s care even in circumstances where such changeover is to occur at the children’s respective schools. I am satisfied that should there be any difficulty with the children coming into the care of the Father it is in the children’s best interests that such difficulty be dealt with as expeditiously as possible, rather than there being a further delay whilst a Recovery Order is sought and obtained. I will therefore make an Order that a Recovery Order will issue in the event the children have not been returned to the Father’s care by 4:00 pm today.
I hope that the Mother is able to separate the needs of the children from her own, and not attend at any of the children’s schools in contravention of these Orders and potentially causing disruption and upset.
Directions will be made today to progress the substantive proceedings to Trial as expeditiously as possible.
EXCLUSIVE OCCUPATION OF THE HOME
The Mother seeks an Order that she be granted exclusive occupation of the home. No submissions were made by either party with respect to this issue. The Mother does not appear to have any evidence in support of this Order. The Father is not pressing for an Order that he be able to return to the former matrimonial home. In those circumstances I decline to make any Orders with respect to the use and occupation of the home.
Orders will be made accordingly.
I certify that the preceding one hundred and fifty-nine (159) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 4 February 2022
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