McLeay & McLeay
[2024] FedCFamC2F 798
•26 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
McLeay & McLeay [2024] FedCFamC2F 798
File number(s): MLC 2691 of 2023 Judgment of: JUDGE RILEY Date of judgment: 26 June 2024 Catchwords: FAMILY LAW – parenting – children aged 8 and 6 years old – father failing to comply with court orders – father breaching an interim intervention order – father’s family violence being at the lower end of the spectrum – father being associated with the B Organisation – father accusing court of gender bias – father pretending to transition to being female – father lodging complaints about police, the mother’s solicitor, the independent children’s lawyer, registrars of this court and the psychiatrist, Dr C – father threatening to name and shame people involved in this case in a documentary he plans to make – father sending abusive emails to practitioners involved in this case – father sending text message to his 21 year old daughter saying she is “disgusting” – father telling his 25 year old daughter in a text message that she is an “evil” person – father declining to attend supervised visits with his children – father being in arrears of child support – supervision report showing children had a positive time with their father – the psychiatrist, Dr E, describing the father as venomous and lacking empathy – whether there should be equal or sole parental responsibility – whether the children should spend equal time with their father, no time, or two hours per month supervised – whether orders should be made requiring the annulment of the children’s US citizenship – whether the children’s passports should be retained in the registry Legislation: Evidence Act 1995, s.128
Family Law Act 1975, ss. 4AB(1), 60B, 60CA, 60CC, 65DAAA, 102NA,114S(2)(b)(i), 121.
Family Violence Protection Act 2005 (Vic), s.5(1)
Cases cited: Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-72; [1978] FamCA 84 Division: Division 2 Family Law Number of paragraphs: 374 Date of last submission/s: 30 May 2024 Dates of hearing: 20, 21, 22, 23, 24, 27, 28, 29 and 30 May 2024 Place: Melbourne Counsel for the Applicant: Emma C Jeans Solicitor for the Applicant: J S Law Advocate for the Respondent: In person, except on 30 May 2024 when the respondent did not appear. Solicitor Advocate for the Independent Children’s Lawyer: Eric Myles Solicitor for the Independent Children’s Lawyer: Victoria Legal Aid FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
McLeay & McLeay [2024] FedCFamC2F 798
CORRIGENDUM
JUDGE RILEY:
At paragraph 143, in proposed order 1, insert the words “making major long term decisions in relation to” after the words “sole parental responsibility for”.
At paragraph 143, after proposed order 1, insert the following words:
2.The mother’s sole decision making responsibility for [X] and [Y] include:
(a) education, including preschool, primary, secondary and tertiary;
(b) healthcare, medical and dental issues;
(c) religious observance; and
(d) sporting, cultural and social activities...
At paragraph 144, above proposed order 4, insert the following words:
2. The mother’s sole decision making responsibility for [X] and [Y] include travel, including the obtaining of passports.
I certify that the preceding three (3) paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of Judge Riley. Associate:
Dated: 5 July 2024
ORDERS
MLC 2691 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MCLEAY
ApplicantAND: MR MCLEAY
First Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
26 JUNE 2024
Amended pursuant to r.10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on 5 July 2024
THE COURT ORDERS THAT:
1.Except as stated in order 3, the mother have sole parental responsibility
for*in relation to major long-term decisions concerning* X, born in 2016, and Y, born in 2018.2.The mother’s sole parental responsibility for X and Y include power to make decisions for them regarding:
(a)education, including preschool, primary, secondary and tertiary;
(b)healthcare, medical and dental issues;
(c)religious observance; and
(d)sporting, cultural and social activities.
3.The parents have
equal shared parental*joint decision making* responsibility in relation to X and Y’s travel and the obtaining of passports for them, subject to any further order of the court.4.X and Y live with their mother.
THE COURT ORDERS BY CONSENT THAT:
5.The mother be permitted to relocate the residence of X and Y and herself to Melbourne.
THE COURT ORDERS THAT:
6.X and Y spend time with their father for two hours once per calendar month at the D Contact Service at such times and on such dates as are nominated by the service, until the mother, X and Y relocate to Melbourne AND time becomes available at a contact service in Melbourne nominated by the mother.
7.Each parent promptly do all things necessary to ensure that X and Y spend time with their father at D Contact Service or, if the mother, X and Y relocate to Melbourne, at the supervised contact service in Melbourne nominated by the mother.
8.The paternal grandparents be permitted to attend at the sessions with X and Y at the supervised contact service with the father if he so requests.
9.The mother ensure that X and Y attend for all sessions arranged by the supervised contact service as directed, save in the case of emergency or ill-health.
10.If the mother cancels a session because of emergency, she provide to the father and the supervised contact service, within 72 hours of the scheduled commencement time of the session, a statutory declaration giving full particulars of the emergency and a full explanation of why X and Y were unable to attend the supervised contact session.
11.If the mother cancels a session for reasons of ill-health, she provide to the father and the supervised contact service, within 72 hours of the scheduled commencement time of the session, a fully detailed medical certificate specifying the exact diagnosis and the reasons for X and/or Y not attending the session.
12.If the mother cancels a supervised contact centre session for any reason, make-up time be arranged as soon as possible.
13.Seventy-two hours prior to the scheduled commencement time of each session at the supervised contact centre, the father confirm with the mother via a communication app and in writing with the supervised contact centre that he will attend the session.
14.If the father fails to confirm as required by the previous order, the session be cancelled.
15.If the father cancels a session, or if a session is cancelled due to the father not confirming 72 hours prior to the commencement of the session that he will attend, there be no make-up time.
16.If the sessions with the father are cancelled for a period of three continuous months, whether because he does not confirm 72 hours prior to the start of a session that he will attend, or because he cancels himself, all future sessions with the father be cancelled.
17.If X and Y or either of them express a reasonable wish to send a card, letter or gift to their father, their mother do all acts and things reasonably necessary to facilitate that wish.
THE COURT ORDERS BY CONSENT THAT:
18.Each of the parents be at liberty to provide a copy of these orders to X and Y’s school(s) and treating medical/mental health providers.
19.Each parent be restrained from:
(a)discussing these proceedings or any of the allegations made herein with X and Y or either of them; and
(b)speaking about the other parent or their family in a negative way with or in the presence or hearing of X and Y or either of them or allowing any other person to do so.
20.Without admitting the necessity for the same, the parents and/or their servants and agents be restrained from referring to any person other than the respondent as “Dad”, “Daddy”, “Father” or a similar name in the presence or hearing of X and Y or either of them or allowing them to do so.
THE COURT ORDERS THAT:
21.The mother and her servants and agents be restrained from referring to Mr F as “[Dad]” or allowing X and Y or any other person in their hearing to do so.
22.The mother be permitted to enrol X and Y in a new school or schools without the express written consent of their father and be at liberty to provide a copy of these orders to any school to support such an enrolment.
23.The mother:
(a)send to the father copies of school reports, notices, and other publications within 72 hours of her receiving them with the name(s) of X and Y’s school(s) and the schools’ contact details and X and Y’s residential address being redacted; and
(b)keep the father informed of X and Y’s significant school and extracurricular activities and milestones, without providing any details of where the activities are undertaken.
24.The mother send to the father within 72 hours of receiving them copies of any reports provided by a medical or mental health care practitioner in relation to X and Y or either of them, with the address and other contact details of the mother, X and Y to be redacted from any report prior to it being given to the father.
25.The mother provide to the father within 72 hours details of any medical emergency affecting X or Y or either of them.
26.The mother be permitted to provide a copy of the family reports dated 27 February 2024 and 1 May 2024 to any doctor and/or allied health professional that may be engaged with the mother, X and Y, or any of them from time to time.
27.The mother and father each download the communication app for the purpose of the exchange of any information in relation to X and Y as required by these orders.
28.Each parent be restrained from using the communication app for any communication not expressly required by these orders.
29.The mother and father by themselves and their servants and agents be restrained from:
(a)being under the influence of or consuming alcohol to reach a blood alcohol level above 0.05% while X and Y or either of them are in their care or while they are spending time with X and Y or either of them;
(b)using or being affected by illicit drugs at any time while X and Y or either of them are in their care or while spending time with X and Y or either of them (including prescription medication for which they do not hold a valid prescription);
(c)driving with X and Y or either of them while under the influence of alcohol, illicit substances or any substance which may cause them to fail a road side drug test (including THC/CBD oil);
(d)physically disciplining X and Y or either of them, or allowing any third party to do so;
(e)committing family violence against X and Y or either of them or allowing any third party to do so;
(f)showing to, or leaving accessible to X and Y or either of them any document connected with these proceedings; and
(g)showing to, or leaving accessible to X and Y or either of them, messages, emails or other written communications between the parents.
30.The father be restrained from:
(a)knowingly attending on, or being within 200 metres of, any residence or school at which the mother, X and Y or any of them may reside or attend; and
(b)contacting or attempting to contact the mother, X and Y or any of them by any direct or indirect means, save and except as provided for in these orders.
31.Each of the Australian and United States of America passports for X and Y remain in the registry of the Federal Circuit and Family Court of Australia at Melbourne until further order of this court or with the written consent of each party.
32.The mother be permitted to provide a copy of these orders and the reasons for these orders to State courts for the purposes of proceedings in State courts.
33.Upon meeting with the children and explaining these orders, the appointment of the independent children’s lawyer be discharged.
THE COURT DIRECTS THAT:
34.A registrar of this court refer this matter to the Australian Federal Police for investigation into whether the father has breached s.121 of the Family Law Act 1975 by publishing on social media an account of proceedings under the Family Law Act 1975 that identified a party to the proceedings and a person who is related to a party to the proceedings.
35.The registrar provide to the Australian Federal Police a copy of these orders and the reasons for judgment, and any documents from the court file that the Australian Federal Police might seek for the purposes of conducting its investigation, including affidavits and transcripts of the hearing.
THE COURT ORDERS THAT:
36.Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A.Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
B.Section 114Q of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to communicate to the public an account of family law proceedings which identifies a party to the proceedings, a witness in the proceedings, a person related to, or associated with, a party to the proceedings, or a person who is, or alleged to be, in any other way concerned in the matter to which the proceedings relate, unless specifically authorised by the court.
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 RILEY:
INTRODUCTION
This is an application for parenting orders in respect of X, born in 2016, and Y, born in 2018. X is now 8 years old and Y is now 6 years old.
The applicant mother sought property orders as well. However, to their credit, the parents were able to settle their property issues by consent during the course of the trial.
The father was unrepresented throughout the proceeding, notwithstanding that an order was made under s.102NAof the Family Law Act 1975 (“the Act”) which permitted the father to obtain free legal assistance under the Commonwealth Family Violence Scheme. It is unfortunate that the father did not have legal assistance, because a lawyer would have helped him to understand that:
(a)family violence includes not only physical assaults but also intimidating behaviour;
(b)if an intervention order says no contact it means no contact, even of an “innocent” kind;
(c)when allegations of family violence are made, the courts tend to take a precautionary approach on an interim basis before the allegations and denials are investigated and tested at a final hearing.
Perhaps because the father did not understand these things, and perhaps because of impatience and perhaps because of personality defects, the father became irate and:
(a)associated himself with the B Organisation;
(b)sent emails:
(i)accusing this court of being biased against men and abhorrent;
(ii)accusing the mother’s solicitor, the independent children’s lawyer and registrars of this court of being child abusers;
(iii)reporting that he had made formal complaints about the police, the mother’s solicitor, the independent children’s lawyer and the psychiatrist, Dr C; and
(iv)threatening to make a documentary naming and shaming the mother’s solicitor, the independent children’s lawyer and registrars of this court who had been involved in this case;
(c)sent his 21 year old daughter from a previous relationship a text message saying she was “disgusting” because she was siding with the mother in this proceeding;
(d)pretended to be transitioning to being a woman;
(e)was arrested and held in remand for two days for not attending Court when charged with breaches of an interim intervention order;
(f)caused his elderly mother to have a medical episode because of the stress of his arrest;
(g)refused to do a Men’s Behaviour Change program, because attendance would be an admission that he had been violent;
(h)refused to do a hair follicle test;
(i)cancelled his supervised visits with X and Y after several visits;
(j)made social media posts possibly in breach of s.121 of the Act; and
(k)made numerous complaints to the Ethical Standards Department of Victoria Police.
The usual approach taken by Courts when there are allegations of family violence is to make an interim order prohibiting contact until the matter can be properly determined a few months later at a final hearing, where relevant people are cross-examined and have to produce relevant documentary and other evidence. This approach is taken because it is generally perceived to cause less damage to prevent contact for a while when false accusations are made than the damage that might be caused if contact were allowed when the accusations turn out to be true. The father seemed to think that the Court should have accepted his denials at the interim stage, before there had been a final hearing and testing of the evidence.
The usual approach taken in this court when there are allegations of family violence is to make orders for supervised contact on an interim basis, and for there to be investigations through hair follicle tests, subpoenas to relevant bodies, reports from the Department of Families, Fairness and Housing, psychiatric assessments, child impact reports and family reports. With the benefit of all that information, and with relevant people being cross-examined and required to produce relevant documents and other evidence, the court is able to make findings after a final hearing about whether the allegations are true or not. Often, during the course of that process, and before the final hearing even begins, time with the person accused of perpetrating family violence progresses from supervised time, through a few hours of unsupervised time on alternate weekends, to alternate weekends and sometimes even alternate weeks. The father in the present case strongly objected to that process being followed, and demanded that his denials be accepted by the court at the commencement of the proceedings, before there had been any investigation or testing of evidence.
The definition of family violence in s.4AB(1) of the Act, which applies in the court, is:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
The definition of family violence in s.5(1) of the Family Violence Protection Act 2005, which applies in Court, is:
(1) For the purposes of this Act, family violence is—
(a)behaviour by a person towards a family member of that person if that behaviour—
(i) is physically or sexually abusive; or
(ii) is emotionally or psychologically abusive; or
(iii) is economically abusive; or
(iv) is threatening; or
(v) is coercive; or
(vi)in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; or
(b)behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a).
The father attended all the days of the trial except from 11.44am onwards on 24 May 2024, when the matter was adjourned because his mother was taken to hospital in an ambulance, and 30 May 2024, when the father simply did not appear without any explanation. 30 May 2024 was the last day of the hearing, and it was expected that the mother would finish her closing submissions on that day and the father would make his closing submissions. The father was called outside, but there was no response to the call. The court then tried to telephone the father put he did not pick up. In these circumstances, the hearing proceeded in the father’s absence. It concluded when the mother finished her oral submissions, the independent children’s lawyer having already made her closing submissions. I reserved my judgment at that point.
BACKGROUND
The parents met in 2009 at G Venue. The father was working there as a hospitality worker. The father was 40 years old and the mother was 25 years old. The parties commenced a relationship.
At that time, the father was married to his first wife, Ms H. They had two daughters, Ms J and Ms K. They were nine and five years old respectively. Ms J, now 25 years old, has moved to Queensland. She said she moved there to get away from her father. Ms K, now 21 years old, lives with her step-mother, who is the mother in this proceeding.
Between 2009 and 2013, the parents conducted a long-distance relationship, with the father travelling to the US to spend time with the mother. They were married in 2012 in the USA. X was born in 2016 and Y was born in 2018, both in the USA. They have US citizenship.
The family lived in the USA. They ran a business, which was funded largely by the maternal grandmother, who is quite wealthy.
The mother alleged various incidents of family violence during the relationship, which the father denied. The alleged family violence mostly consisted of the father being angry and abusive, but also punching holes in walls.
The family moved to Australia in 2021. The parents separated in January 2023.
THE FIRST VIDEO AND “SELF-HARMING”
In late 2019, the parents had an argument, which was captured on the cameras that were installed in their home. The video was tendered to the court (exhibit 14). It showed that they were in the lounge room, apparently at night-time, arguing about the father wanting the mother and the father to provide $2,000 for Ms J to buy a car, which Ms H had indicated would be deducted from the amount the father owed her for child support. The mother said at one point that they had recently given Ms J $5,000. She was reluctant to provide Ms J with any more money. The father accused the mother of interrupting him all the time, and said she was “yapping like an annoying fucking dog”. The father could also be described as interrupting the mother all the time. In other words, they were speaking over each other.
The video showed that X had come downstairs, apparently needing to go to the toilet, though he was concealed from his parents by a low wall. When the father walked to the kitchen, X called to his mother. The mother then told the father that X was there and could hear them arguing. The father said, “I don’t care.” The mother took X to the toilet, which was off-camera but nearby and X and the mother could be heard quietly talking to each other. The father then upended a basket of shoes. He selected a pair of shoes and put them on. He left the rest of the shoes scattered on the floor. He left the house.
Later that night, the father sent the mother a text message saying:
Just letting you know I won’t be home tonight, I’ll find a motel …
And sell the [weapon], I hate thinking about [self-harming].
The mother replied by text saying:
I love you. But I will not have our children grow up in a house where their own parent won’t put their argument over their feelings. I told you [X] was there and could hear you and you said you didn’t care. You should care very much. … Your last text makes me sick to my stomach and I’m quite honestly shocked you would go that far. You need to see someone and deal with your anger, resentment and depression, etc. it’s negatively affecting your family and I can’t live like this anymore. It’s not okay to act like this and it’s certainly not healthy for you or me or the kids. Of course you can sleep in your own home not book a motel! …
The father replied by text, accusing the mother of interrupting all the time, and said:
...I’ll see a shrink, I’ll see whoever you want me to see. My depression is eating away at me and I hate it…
It appears that, later, the $2,000 was provided for Ms J, though she may not have actually received it. The father’s threat to stay in a hotel can be seen as withdrawing his affection to coerce and control the mother. Similarly, the reference to him self-harming could also be seen as coercion and control.
THE SECOND VIDEO: THE SUITCASE INCIDENT
The independent children’s lawyer tendered another video (exhibit 15) from late 2020. It shows X and Y milling about. The parents could be heard talking in the background. X pushed over a small suitcase. It may have clipped the back of Y’s foot, or perhaps just her shoe. Either way, she began crying loudly. The father rushed towards X, shouting, “You idiot. Why did you touch it. This is so heavy. So heavy.” During this time, Y continued crying and the mother was saying, “Hey, hey, hey”, apparently in an attempt to calm the father down. The father pushed X towards the mother, who held him and comforted him. The father walked angrily past the mother and X.
MOVING TO AUSTRALIA
After that incident, the parents decided to move to Australia. The father went first, in mid‑2021. The mother and X and Y followed in mid-2021. They had to do two weeks hotel quarantine, because of the Covid-19 pandemic, and then moved in with the father and his elderly parents at their home in City M.
THE FATHER LOCKING Y IN THE OUTBUILDING
The mother said in paragraph 59 of her affidavit that:
In or around [mid] 2022, … [the father] locked [Y] in the [outbuilding] one night which really scared her…
The father did not address this issue in his affidavit but denied it in cross-examination.
X told the child impact report writer that the father had threatened to put Y in the outbuilding at night when she would not fall sleep.
The mother told the family report writer as recorded in paragraph 57 of her first report that there was an incident where:
…Mx [ie, Mr McLeay], in anger, grabbed [Y] by the arm one night and walked her through the dark night to the [outbuilding], placing her inside because she was unwilling to sleep. [Y] was distressed and cried throughout the ordeal.
In paragraph 77 of the first family report, the family consultant said:
When asked about her living arrangements, [Y] responded, “I live with my mum because my dad was being mean to her, so they broke up.” [Y] mentioned that she did not witness anything but was aware that her father had hurt her brother previously. Regarding how her father had hurt her brother, [Y] remembered an incident, saying, “Once he locked me in [the outbuilding]. I was banging on the door because there were many spiderwebs inside. Then my mum opened it, and I was crying. Mum said it’s okay and then my dad’s mum came and she sang me a song like she always does, and then dad walked me to the [outbuilding] at night. I was so scared, and my belly felt weird.” She added that her brother [X] eventually helped her out of the [outbuilding].
In relation to the outbuilding issue, in the second family report at paragraph 62, the family consultant recorded:
Ms [ie, Mr McLeay] reported that [Ms McLeay]’s accusations about her locking the children in the [outbuilding] when they misbehaved were untrue. She [ie, he] clarified that while [Ms McLeay] and her [ie, him] sometimes jokingly threatened to take the children to the outbuilding if they were naughty, they never actually did so. She [ie, he] noted that even the children are beginning to believe [Ms McLeay]’s falsehoods, as children often agree with the person they look up to, especially when they cannot recall events clearly.
At paragraph 103 of the second family report, the family consultant described Y’s disclosure as “compelling”.
Given the father’s poor credibility, and Y’s compelling account of the outbuilding incident, I accept that it happened more or less as she described. It is concerning that, when the father wanted to put his actions in a good light, he thought that jokingly threatening to put children in the outbuilding when they were naughty was fine. Such threats would not be perceived by a child as a joke, particularly if they were said when the children were naughty. The father also said that the mother was equally involved in the threats. That seems to me to be an example of the father displacing his responsibility. It is not at all supported by Y’s description of the event. While the mother may have influenced X and Y to some extent, the family consultant’s appraisal of Y’s disclosure as compelling confirms that she was recounting her own actual experience.
INTERVENTION ORDER AGAINST THE FATHER
In early 2023, City M police applied for and obtained an interim intervention order against the father with the mother, X and Y as the protected persons. It meant that, on an interim basis, X and Y were unable to spend time with their father. The application said:
THE AFM AND RESP ARE SPOUSES, THAT HAVE BEEN IN A RELATIONSHIP FOR 14 YEARS, THE RESP HAS TWO CHILDREN WITH THE AFM, A 7 YEAR OLD SON AND A 5 YEAR OLD DAUGHTER. THERE HAVE BEEN NO PREVIOUS REPORTS OF FAMILY VIOLENCE BETWEEN THE PARTIES. THE RESP MOVED TO THE USA TO BE WITH THE AFM. THE PAIR RETURNED TO AUSTRALIA IN 2021 AFTER THE RESP THREATENED TO [HARM] HIMSELF AFTER BECOMMING DEPRESSED AT BEING SEPERATED (sic) FROM HIS FAMILY. THE AFM BELIEVES THE RESP HAS UNDIAGNOSED [MENTAL ILLNESS] AND ATTRIBUTES THAT TO HIS OFTEN ERRATIC AND ABUSIVE, BEHAVIOUR ALONG WITH HIS USE OF MARIJUANA, WITH THIS BEHAVIOUR RECENTLY BECOMING WORST (sic). RESP HAS NEVER BEEN PHYSICALLY VIOLENT WITH AFM, HE OFTEN BECOMES ENRAGED TOWARDS THE AFM AND THEIR CHILDREN AND SMASHES PLATES AND PUNCHES HOLES IN WALLS, CAUSING THE AFM TO FEAR FOR HER AND HER CHILDREN'S SAFETY. ON THE [EARLY] 2023, THE AFM TOLD THE RESP SHE WISHED TO END THE RELATIONSHIP AND THAT HE WAS NOT WELCOME HOME UNTIL HE SOUGHT TREATMENT FOR MENTAL HEALTH CONCERNS. THE RESP BROKEDOWN, SO THE AFM AVOIDED DISCUSSING THE ISSUE FURTHER. THE AFM SPENT THE NIGHT IN HER SON'S BED AS SHE WAS CONCERNED THAT THE RESP WOULD SMOTHER HER IN HER SLEEP. [IN EARLY] 2023 AT APPROXIMATELY 4:30PM, THE RESP AND AFM ENGAGED IN A HEATED DISCUSSION ABOUT THE PREVIOUS NIGHT, IN FRONT OF THE [CHILDREN].
It is noteworthy that the application, which was presumably based on what the mother had told the police, specifically said that the father “has never been physically violent” towards the mother.
THE FATHER’S TEXTS TO MS K
At around the time of separation, the father sent a number of texts to his daughter Ms K, who was 19 years old at the time.
In one, the father said:
… I would never harm myself, the comment about [harming] myself in the order was because [Ms McLeay] was telling me in text that I had a mental problem/depression. Silly me said “you better hide the [weapon]” and she ran with it and I nearly had [X] and [Y] taken away by the nut job [Ms McLeay] had me see. He said “threatening to [harm] yourself is enough for me to have your children taken away”. She does these things thinking its for love but its probably more to do with satisfying her rather than understanding that as a person she’s beautiful but as a partner she’s a handful…
In another, the father said:
You’ve involved yourself and you’ve chosen a liar!
[image of excerpt from an intervention order]
This is the lies you’re supporting, because of your support I can’t see [X] and [Y] for 3 months!! You’re choosing a side but you’re too full of yourself to see it.
[image of an intervention order hearing date]
I can’t see the children till this goes to court. Thanks for loving me [Ms K].
This is going to court and you will be compelled to testify about the lies [Ms McLeay] has told, unless you’ll lie.
Movers have been cancelled, I just told them we need to wait till [later]. [The father cancelled the removalists the mother had organised so that she could move her possessions into the new house.]
Call me!
There was a text exchange between Ms K and her father beginning at 5.15pm in early 2024, being the date of the intervention order:
The father said:
Figure yourself out [Ms K], I’m so disappointed in you.
I can’t see [X] and [Y] for three months and you’re a supporter of that.
You disgust me.
You’ve chosen your side, you’ve lost me. [Ms McLeay] is a liar and you’re a supporter of that.
You’ve no idea how disappointed I am in you.
Good luck.
[Ms K] responded to her father:
What???
The father responded to [Ms K]:
I’m done with you
[Ms K] responded to her father:
I have literally done nothing dad
The father said to [Ms K]:
You’re supporting [Ms McLeay] and her lies of me smothering her with a pillow, punching holes in the walls and smashing plates.
You’re not the daughter I thought you were, do not come back to nanas at all, I don’t want to look at you.
You’re just like your mother, good bye.
… watch your back is all I’ll say.
[Ms K] responded to her father:
Is that a threat? Dad you are not well
I love you and I’m still your daughter and I support no one here
This is between you and [Ms McLeay]
BREACHES OF THE INTERVENTION ORDER
In early 2023, the father gave Y a gift, which arguably breached the intervention order. I say arguably, because, although the father pleaded guilty to nine breaches of the intervention order, seven charges were withdrawn, and it is not clear from the records tendered to this court which alleged breaches were found proven and which were not.
In 2023, the father sent the mother some flowers for their wedding anniversary. He attached a card, which said:
I’ve appreciated having you as my wife. I love you today and everyday. [Mr McLeay].
That also arguably breached the intervention order.
In early 2023 at about 10pm, a drone flew over the mother’s house. The mother believes it was the father’s drone. If that was the father’s drone, it arguably breached the intervention order.
In early 2023, the father shouted to Y, while she was filling her water bottle at school, “I love Mummy.” That also arguably breached the intervention order.
In early 2023, the father filmed the mother collecting X and Y from school and called out to them:
Hi guys, it’s Daddy. I love you and I miss you. Ask Mummy why I can’t see you.
That also arguably breached the intervention order.
In early 2023, someone threw a rock through the mother’s garage window. The rock had the wife’s wedding ring attached to it. If the father threw the rock, that arguably breached the intervention order.
There were various other alleged breaches as well.
INTERVENTION ORDER AGAINST THE MOTHER
In early 2023, the Suburb N police obtained an intervention order against the mother with the father as the protected person. The police withdrew that application in early 2023.
THE COMMENCEMENT OF THESE PROCEEDINGS
On 16 March 2023, the mother filed her application in this court. Orders were made by a registrar in chambers on 17 March 2023:
(a)for the mother to serve documents on the father;
(b)for the father to file and serve a response and the other documents required by the rules; and
(c)adjourning the matter to 4 April 2023.
THE S.67Z REPORT
On 3 April 2023, the Department of Families, Fairness and Housing (“DFFH”) provided a s.67Z report, though it might not have been received by the court for a day or two. It said:
Summary of Child Protection history
There is one previous report for the children that was opened and closed in [early] 2023. The report was managed at the intake phase and raised concerns over the children being exposed to [Ms McLeay]’s (mother’s) poor MH and the impact of this on her parenting capacity. The report raised concerns over the mother abusing alcohol and her overuse of prescribed medications for her [mental health conditions]. The report stated that the mother takes more than the required amount of dosage for her medications and that this made her sleep for long hours, leaving the children unsupervised. There were further concerns over the children not taking the appropriate lunch to school and concerns over the mother not allowing [Mr McLeay] (the father) to have contact with the children. Child Protection assessed that there was ongoing family violence predominantly perpetrated by the father against the mother and mother was referred to family violence supports with [Q Centre].
Summary of Current Protective Concerns and Outcome
Current concerns are that the mother’s mental health is not being well managed and that the children are being exposed to this. Concerns are that the mother has [a mental health condition] and depression and that she struggles to function and parent the children. There are also concerns that the mother has exposed the children to substance abuse as she is giving [prescribed medication] to [X] when this has not been prescribed by any medical professional. The mother is alleged to be giving adult doses of melatonin to children so that they fall asleep. When the children fall asleep, the mother is alleged to engage in alcohol abuse. The mother is also alleged to struggle with doing important things like driving as the reporter believes that the mother can sometimes drive through red traffic lights, thinking they are green.
There was a secondary report raising concerns over the children being exposed to family violence perpetrated by the father against the mother, with the children being exposed to this. The father is alleged to have perpetrated emotional harm, property damage and made threatening comments against the mother. There is a current intervention order in place against the father that was obtained in [early] 2023, with the father allegedly being charged for multiple breaches of this order at the time of this report. There were further concerns regarding children being exposed to substance abuse by the father. The report stated that the father uses marijuana daily and that this impacts his anger and leads to neglect of children and verbal abuse of the children. There are also concerns over the children being exposed to the father’s mental health. It is alleged that the father has frequent mood changes and quickly turns violent, angry, and abusive. Concerns are also that the father has threatened to [harm himself] and overdosing [prescribed medication] which he has access to. Concerns are that the father’s violence has greatly impacted the children, as their sleep has been disturbed and they are in constant fear that the father will attack their family home as he has done in the past. The father has been controlling and when the family was still living in the USA, this controlling behaviour has always been a part of the father.
The children are currently in the primary care of the mother, [Ms McLeay]. There is an intervention order in place against the father due to previous family violence against the mother. Child Protection has no concerns regarding the children’s wellbeing in the care of [Ms McLeay] as the schools have raised no concerns regarding the wellbeing of the children and advised the children presented well. The children have been attending school regularly and there have been no concerns known from various professionals regarding the children being at risk in [Ms McLeay]’s care. There has been a record of controlling behaviours by the father against the father and a tendency to use the systems in place to portray the mother in bad light. This again, is viewed as a form of family violence and controlling behaviour that Child Protection will be concerned with should the children end up in [Mr McLeay]’s care. The father has also exhibited tendencies of financial control and systems abuse.
The mother is working with family violence services to support her and the children. The children are in the primary care of the mother and Child Protection has no concerns with this arrangement. No professionals working with the children have raised concerns with Child Protection regarding the children’s wellbeing or the mother’s capacity to care for them. Child Protection would, however, need to make a new assessment should the current care arrangements change. While the current report raises concerns regarding both the mother and the father’s capacities to care for the children, there has been no concerns substantiated regarding the mother’s capacity at this point. Child Protection have no concerns regarding [Ms McLeay]’s protective capacity to take protective action while caring for the children, while concerns remain given the father’s controlling behaviours. [Ms McLeay] has sought to address challenges arising from the current contact and care arrangements appropriately through the Family Law Court. There is no role for Child Protection.
THE HEARING ON 4 APRIL 2023
On 4 April 2023, the mother was represented by counsel and the father appeared in person. A registrar made orders:
(a)for X and Y to live with their mother on an interim basis;
(b)for the father to file and serve a response and other documents by 18 April 2023;
(c)appointing an independent children’s lawyer; and
(d)listing the matter for an interim hearing on 3 May 2023 and a directions hearing on 23 May 2023.
THE ORDERS ON 6 APRIL 2023
On 6 April 2023, a registrar made orders in chambers including orders:
(a)referring the matter to the Evatt list;
(b)vacating the listings on 3 and 23 May 2023;
(c)listing the matter for an Evatt List First Return on 24 May 2023; and
(d)directing that there be a child impact report with attendances by the parents and X and Y on 24 and 25 July 2023.
THE S.69ZW REPORT
On 11 May 2023, the court received a s.69ZW report from DFFH. It was similar to the s.67Z report, and said:
…
It was noted that [P Organisation] had been attempting to engage [Ms McLeay] due to the children and [Ms McLeay]’s exposure to family violence perpetrated by [Mr McLeay]. …
Victoria Police SOCIT did not assess an ongoing role and believed the timing of the reported concerns may have been part of the family violence experienced by [Ms McLeay]. This was the first report for [Y] and [X], with no previous child protection history. There has been three previous reports for their older half-sister [Ms K], all closing at intake ([early] 2009, [mid] 2010 and [early] 2017). Concerns related to family violence between [Ms McLeay] and [Mr McLeay] which the children were exposed to, [Mr McLeay] ranting and raving about [Ms J] (older sister) not wanting to go with him, [Mr McLeay] challenging [Ms McLeay]’s new partner to a fight, [Ms J] and [Ms McLeay] having physical altercations.
In consultation with Child Protection Team Manager [Ms O], it was assessed that an Enhanced [P Organisation] referral was appropriate to support [Ms McLeay] in accessing supports around her experience of family violence and addressing any concerns relating to her capacity to meet the children’s needs. An Enhanced [P Organisation] referral was accepted.
…
There was a secondary report raising concerns over the children being exposed to family violence perpetrated by [Mr McLeay] against [Ms McLeay], with the children being exposed to this. [Mr McLeay] was alleged to have perpetrated emotional harm, property damage and made threatening comments against [Ms McLeay]. There was a current intervention order in place against [Mr McLeay] that was obtained in [early] 2023, with [Mr McLeay] allegedly being charged for multiple breaches of this order at the time of this report. There were further concerns regarding children being exposed to substance abuse by [Mr McLeay]. The report stated that [Mr McLeay] uses marijuana daily and that this impacts his anger and leads to neglect of children and verbal abuse of the children. There are also concerns over the children being exposed to [Mr McLeay]’s mental health. It is alleged that [Mr McLeay] has frequent mood changes and quickly turns violent, angry, and abusive. Concerns are also that [Mr McLeay] has threatened to [self harm] and overdosing [on medication] which he has access to. Concerns are that [Mr McLeay]’s violence has greatly impacted the children, as their sleep has been disturbed and they are in constant fear that [Mr McLeay] will attack their family home as he has done in the past.
It was assessed that the children were safe in the care of [Ms McLeay], with acknowledgement that [Mr McLeay] is a perpetrator of FV and has a history of financial control and systems abuse. This report was assessed as suitable to close at intake with no further actions from Child Protection.
…
At the time of writing this report, there is no current Child Protection invovlement (sic) in Victoria for [Y] and [X]. The children are currently in the primary care of the mother, [Ms McLeay]. There is an intervention order in place against the father, [Mr McLeay], due to previous family violence against [Ms McLeay]. Child Protection has no concerns regarding the children's wellbeing in the care of [Ms McLeay] as the schools have raised no concerns regarding the wellbeing of the children and advised the children presented well. The children have been attending school regularly and there have been no concerns known from various professionals regarding the children being at risk in [Ms McLeay]’s care. There has been a record of controlling behaviours by [Mr McLeay] against [Ms McLeay] and a tendency to use the systems in place to portray [Ms McLeay] in bad light. This again, is viewed as a form of family violence and controlling behaviour that Child Protection will be concerned with should the children end up in [Mr McLeay]’s care. [Mr McLeay] has also exhibited tendencies of financial control and systems abuse.
…
FATHER’S PRESCRIPTION FOR MEDICAL MARIJUANA
In mid-2023, the father obtained a prescription for medicinal cannabis for anxiety and panic attacks (exhibit 25). There was no evidence that the father ever filled this prescription. The mother contended that he obtained the prescription to mask the fact that he regularly smokes cannabis.
THE HEARING ON 18 MAY 2023
On 18 May 2023, there was another interlocutory hearing. The mother and the independent children’s lawyer were represented by counsel and the father appeared but was unrepresented. A registrar made orders:
(a)adjourning the matter for a procedural hearing on 12 September 2023;
(b)requiring the father to file a response and other documents by 8 June 2023;
(c)providing for X and Y to spend at least two hours per fortnight with their father at D Contact Service in City M;
(d)requiring each parent to undertake hair follicle testing;
(e)requesting Victoria Legal Aid to fund the father’s hair follicle testing (because he said he could not afford it);
(f)requiring each parent to attend upon Dr C for psychiatric assessment;
(g)requiring the father to undertake a men’s behaviour change program;
(h)requiring the father to deposit any of X and Y’s passports with the registry manager and for the passports to be retained until further order;
(i)restraining each parent from removing X and Y from Australia; and
(j)restraining each parent from changing X and Y’s address.
The father deposited X and Y’s Australian and United States passports with the registry manager. He did not file a response by 8 June 2023 and still has not. The mother did her hair follicle test, which was negative for everything including alcohol. The father did not do his hair follicle test. The father did not do the men’s behaviour change program, saying that they were for violent men and he was not violent. The father sent emails to Dr C, challenging his fees, which resulted in Dr C declining to do the psychiatric assessments in this case.
THE FATHER’S SOCIAL MEDIA POST IN OR ABOUT MID-2023
On or about mid-2023, the father made a social media post which said:
My parents who are the most giving, loving and caring grandparents, have been completely alienated from the lives of their youngest grandchildren for 141 days because they’ve lived the truth and support their son.
The legal systems ability to be corrupted thus far has had a horrible impact on the both of them.
Count Days
141 days
[Early] 2023 – [mid] 2023
THE FATHER’S REFUSAL TO DO A MEN’S BEHAVIOUR CHANGE PROGRAM
By email dated 13 June 2023 to the independent children’s lawyer, the father said:
1: Thank you for your email.
I have visited the website for [Q Centre]. This is a place for GUILTY MEN, there is no mention of a person being accused or innocent!
Participating in this sexist program is incriminating. I protest based on the grounds of being assumed as guilty by this order.
[large image of [Q Centre] icon]
2: With all due respect I wish to officially protest the guilt that is bestowed with this order as well as the gender inequality of this order.
…
8: PLEASE NOTE: From this moment moving forward I request not to be recognized or identified by gender. I wish to identify as respondent and or “Parent One” for the remainder of this matter. Identifying as gender neutral I am happy to participate in a Behavioral (sic) Change Program for “Gender Neutral Persons” providing the Applicant does the same. Please do not refer to me as the “FATHER”, I ask to be identified only as one of the children's parents.
THE FATHER’S GENDER TRANSITION
By email dated 22 June 2023 to the independent children’s lawyer, the father said:
…
5.I now choose to be recognised by this court as a WOMAN (Female), my transition from gender neutral to female finalised today. Orders were made by this court when I was a male and again when I was gender neutral must be adjusted. Given I now identify as female this court must ensure equality between the parties. If one female in this matter must attend a behavioural change program so must the other.
6Please provide details of a Women's Behavioural Change Program that I and the applicant can attend.
FATHER’S COMPLAINT ABOUT DR C
In an email dated 23 June 2023 to the mother’s solicitor and the independent children’s lawyer, the father said that:
… I have made a formal complaint to the [governing body] regarding [Dr C]’s unprofessional behaviour, in my opinion he does not deserve to continue practicing.
This arose from a dispute about Dr C’s fees. Dr C then declined to give expert evidence in this matter.
THE FATHER SAYING THE COURT IS ABHORRENT AND THREATENING A REVIEW OF THE COURT BY THE OMBUDSMAN
In an email dated 24 June 2023 to the mother’s solicitor and the independent children’s lawyer, the father said:
The Respondent Mother is opposed to this matter moving ahead on the grounds that moving forward is an unconscionable act of this court in its victimisation of the CHILDREN and I the Respondent Mother.
If this court continues to rely on unproven statements by the Applicant and Police the Respondent will file for an immediate case review by the Ombudsman. The Reslondent (sic) seeks to have all mentions of the factless intervention order removed on the grounds of their being ZERO EVIDENCE, ZERO INVESTIGATION by Police, sexual discrimination based on gender and the continued psychological abuse of my children by this court.
To be clear, the Respondent accuses this court of deliberate unconscionable acts toward the Respondent & there is ample evidence to prove this court is abhorrent in its disgraceful treatment of my children.
THE FATHER IDENTIFYING AS A WOMAN IN A SOCIAL MEDIA POST
In mid-2023, the father posted a social media message in his own name. It contained a photograph of himself apparently dressed as a female character from a film. The post said:
Going through the Family Circuit and Family Court of Australia has been an eye opener as to how gender unjust this court is.
Therefore I have decided to identify as female so as to be afforded the same benefits that this corrupt court system offers us women.
If you're a Father (male) in Family Court I suggest you start identifying as a woman.
[…]
On the fourth day of the final hearing, the father confirmed that he had only identified as female for the purposes of these proceedings. He said it had been a stupid idea that was probably detrimental to his case and detrimental to his children (Tr.505.25-30). He said that we should call him Mr McLeay (Tr.507.9). Previously, at his request, we had referred to him as Mx or Mx McLeay.
THE FATHER’S AFFIDAVIT MATERIAL
On 28 June 2023, the father filed an affidavit sworn or affirmed by himself, as well as affidavits sworn or affirmed by each of his elderly parents. All of these affidavits were clearly drafted without legal assistance. The father has not ever filed a response or financial statement.
Much of the father’s affidavit was in the nature of a tirade and submissions, and a denial that he had ever been violent. He said that he had “always been charming”. The mother’s application for an intervention order acknowledged that the father had not been physically violent. The father also accused the mother of being an alcoholic. That was not substantiated by a hair follicle test. He said things that could be very damaging of the mother’s relationship with her mother. He accused the mother of having mental disorders. These “diagnoses” were not confirmed by the psychiatrist, Dr E. He threatened to bring charges of perjury against the mother’s friend, Ms S. He said his two older daughters, Ms J and Ms K, were not fearful of him. Ms J said she moved to Queensland, to get away from him. Ms K lives with her stepmother, the mother in this proceeding.
The father sought to rely on the affidavits affirmed by his parents. However, during cross‑examination by the mother’s counsel on day five of the hearing, his mother had a medical episode, and an ambulance was called. She remained in hospital from the Friday until the following Tuesday. The father produced an undated letter from hospital saying:
[Ms R] is a 80F who has been admitted under [the hospital department] for recurrent [medical issues] in the setting of significant emotional stressors. Given her on going medical condition, we would advise for [Ms R] to avoid further stressors so as to prevent recurrence of her [condition]. Therefore, we believe she will be medically unfit to present to court from 24/5/2024 – 29/9/2024.
The father said the 85 year old paternal grandfather also had some health problems, but he produced no evidence of this.
In these circumstances, the father said that he still wished to rely on his parents’ evidence, and asked the court to adjourn the further hearing until after 29 September 2023, a period of four months. The mother opposed the adjournment, and said she wished to continue her cross‑examination of the paternal grandmother and also cross-examine the paternal grandfather. The independent children’s lawyer, who had previously wished to cross-examine both paternal grandparents, said that she no longer wished to cross-examine them, on the basis that it would make no difference to the orders that she sought.
I declined to adjourn the hearing for four months. That was largely because there was no reason to believe that the paternal grandparents would be better able to physically withstand cross‑examination in four months’ time. While the paternal grandmother might recover in four months from her latest medical episode, at best, she would be in the same position health-wise as she was at the commencement of her cross-examination the previous week. That is, if she were cross-examined again, she would be liable to have another stress induced medical issue.
As mentioned above, there was no evidence about the paternal grandfather’s capacity to physically withstand cross-examination. However, the father told the court that the paternal grandfather also has medical problems. In these circumstances, I consider that it would have been remiss of the court to adjourn the matter to permit cross-examination of the paternal grandparents.
Consequently, s.199 of the Federal Circuit and Family Court of Australia Act 2021 applies. That section relevantly provides that:
(4) If:
(a) a person makes an affidavit; and
(b)a party to a proceeding in the Federal Circuit and Family Court of Australia (Division 2) adduces, or proposes to adduce, evidence by the affidavit;
a party to the proceeding may request the person to appear as a witness to be cross - examined with respect to the matters in the affidavit.
…
(6) If:
(a)a request under subsection (4) is given to a person who has made an affidavit; and
(b)the person does not appear as a witness to be cross-examined with respect to the matters in the affidavit;
the Federal Circuit and Family Court of Australia (Division 2) is to give the matters in the affidavit such weight as the Court thinks fit in the circumstances.
To the extent that the paternal grandmother was cross-examined, there was little that concerned the principal issues in the case. When those issues are discussed below, I will give the paternal grandparents’ affidavits such weight as I see fit.
THE FIRST D CONTACT SERVICE REPORT
On 1 July 2023, X and Y had their first session with their father at D Contact Service. The supervisor, Ms T, provided a report which covered the first six sessions and which was annexed to her affidavit sworn or affirmed on 15 September 2023. The report said:
4. Summary of scheduled service:
Supervised contacts were facilitated on:
Saturday 1st July 2023 2 hours, 2:30-4:30pm ([X] stayed 10m, [Y] stayed 40m).
Saturday 15th July 2023 Cancelled by [Ms McLeay], who advised the children were unwell.
Saturday 29th July 2023 2 hours, 2:30-4:30pm ([X] stayed until 4:00pm).
Saturday 12th August 2023 2 hours, 12:00-2:00pm ([X] stayed until 1pm).
Saturday 26th August 2023 2 hours, 2:30-4:30pm (Grandparents attended 3:30-4:30pm).
Saturday 9th September 2023 Cancelled by [Ms McLeay], citing safety concerns. (Grandparents were to attend 3:30-4:30pm).
To be attended:
Saturday 23rd Sep 2023 2 hours, 2:30-4:30pm.
…
5.1 Attachment
[Mr McLeay] has a natural, affectionate manner with his children. He is calm and relaxed, whilst maintaining an interested and positive engagement with [X] and [Y].
[X] and [Y] present as confident and happy on their arrival and have been noticeably eager to visit with [Mr McLeay], particularly as the sessions have progressed. At their first visit, the children called their father “[Mr McLeay]” while in the presence of their mother, however this changed to “Dad” when addressing [Mr McLeay], during the first session. At most visits, [X] and [Y] have raced each other down the hallway to see [Mr McLeay] and neither have exhibited any apparent reluctance or fear.
On their first visit, both children were greeted by [Mr McLeay], who knelt on the ground with his arms open. Both [X] and [Y] smiled and walked towards him to engage in a group hug, remaining there comfortably, for a good ten minutes. At this visit, both children appeared to be conflicted between staying for the visit or returning to their mother, for a promised visit to a [playground], which they seemed fearful they would miss out on. [Mr McLeay] displayed understanding to his children's conflict, telling them he loved them and would see them again in two weeks. Both children said that they would stay longer for the next visit.
[Mr McLeay] and [Y] share affection often during the sessions. [Y] seated herself on her father's knee while they drew together. She consistently seeks out his full attention during each session, sitting on his knee or lap, wrapping her arms around him affectionately and kissing him often. [Y] has shown a reluctance to leave her father, at the end of the sessions.
[X] has stayed for most of the sessions. [X] appears to be confident to let [Mr McLeay] know if he is ready to return to [Ms McLeay] early and he asks his father for a kiss goodbye, without being prompted.
On a visit which coincided with the children's usual [sports] game, [X] seemed unenthusiastic and overly concerned that the face paint he was wearing to a later party, might melt if he jumped around or played. On another occasion, [X] appeared to be less than impressed about going to the playground, which [Mr McLeay] had promised [Y] and he asked to return to [Ms McLeay]. [Mr McLeay] noticed [X] wanting more of his attention and he suggested that they spend some quality time together, which he followed up with at the next session.
There is strong evidence which demonstrates an attachment to [Mr McLeay], particularly as the sessions have progressed, and that the children have spent significant and positive one on one time with their father in the past.
Both children appear to be comfortable, relaxed and very settled around [Mr McLeay].
5.2 Communication
[Mr McLeay] and [Ms McLeay] have managed to remain respectful and appropriate when talking about each other in the presence of the children. Both parents have expressed concerns about the children being exposed to adult conversations and concepts, some of which has been noted by staff, during a session. Parents now seem to be more settled at managing their responses to the children's questions and comments, during time at CCS.
[Mr McLeay] and [Ms McLeay] have settled into a more stable routine when attending the sessions. The children presented as eager to visit with [Mr McLeay] from day one, which initially seemed to be a surprise to [Ms McLeay], who indicated to the service that the children were afraid and she became visibly distressed, in the children’s presence. Since then, [Ms McLeay] has shown that she is supportive of the visits by attending on time, expressing some concern for the children's emotions to staff, when she believed that [Mr McLeay] would cancel a visit.
[Ms McLeay] has remained onsite while the visits have happened, which has allowed staff to return [X] to his mother, on his request, earlier than the scheduled finish times, during the early sessions.
[Mr McLeay] interacts and engages with both children comfortably, encouraging their play appropriately, joining in and giving praise when warranted. Both children consistently ask their father to watch what they are doing, sit with them or answer their questions, which he can manage easily. [Mr McLeay] notices and acknowledges with praise and encouragement, positive interactions between the children.
[Mr McLeay] has shown that he is aware of the challenges in trying to divide his time equally between [X] and [Y], who are both competing for his full attention. He is appropriately aware of the differences in interests and activities between the children and effectively parents suitably.
5.3 Parenting Style
[Mr McLeay]’s parenting style is very affectionate, engaged, and positive. He finds teaching and learning opportunities and appropriate ways in which to interact with [X] and [Y], through their play. He has used the session room wall decals and the blackboard as opportunities to teach, praise and encourage the children with their writing and spelling.
[Mr McLeay] helped the children spell USA within the toy floormats, leading to a lovely discussion about their country of birth. When both children are vying for [Mr McLeay]’s attention, he remains calm and engages with each child appropriately, either separately or together.
The children have played with and shared activities, including art, toys, dolls, toy kitchen set and board games, with [Mr McLeay] noticing and giving praise for when they share, take turns, and play considerately. [Mr McLeay] has shown interest in the children’s school, sport, friends and lives in general, with the children volunteering information and the sessions flowing naturally.
[Mr McLeay] has read books to the children, seated between them on the couch. They have played board games together, with [Mr McLeay] seated on the floor beside the children. The children will often position themselves into their father’s arms or on his lap. They have baked and shared cookies from their Nanna's recipe together. They have spent time outside on the playground, riding their scooters and playing [sports]. They have enjoyed visits from the children’s Nanna and Grandpa, with [X] and [Y] showing a strong, affectionate attachment to their grandparents.
There is usually lots of laughter during the sessions. At one visit, [Mr McLeay] hid under the [chair] for the children to find his feet sticking out, on their arrival, which they all found very funny. [Mr McLeay] picks both children up individually to carry them around, mimicking planes. [Y] always sits close to [Mr McLeay], including him in her imaginative play with the dolls and the toy kitchen area. Both children are affectionate to their father often, telling him they love him and asking for cuddles and kisses.
[X] consistently seeks out [Mr McLeay]’s affection and attention, as they interact. [X] will call out “Dad ... Dad” constantly during the session, to ensure he is watching or to get his attention. [Mr McLeay] has shown that he is aware of the different interests and play styles of his children, as he reminded [X] that they really need to spend some quality one on one time together. [X] responded positively to this idea. [Mr McLeay] followed this up at the next session, by devoting significant time and attention to [X]. At the same time, he continued to check in with [Y]. [Mr McLeay] has noticed that [X]'s glasses are often smudged and he shows [X] how to keep them clean, with [X] happily commenting that he can now see clearly.
[Mr McLeay] always looks directly at his children when explaining directions or giving new information and both [X] and [Y] generally respond positively and with interest. He happily sits or bends down to each child's level when they are interacting.
[Mr McLeay] uses gentle, firm but not harsh, tones when asking the children to do something. He also encourages and reminds them to be respectful when interacting and to use their manners. He has reminded each child that he cannot always respond immediately if he is already attending to the other and he both encourages and displays patience.
When [Mr McLeay] provides discipline to his children, he does so in a firm but gentle manner, bending down to the child’s level and sitting between them, while discussing the behaviour and expectations. When [Y] arrived at a session crying, [Mr McLeay] was seen to settle her by gently and softly acknowledging her emotion, providing cuddles and reassurance. On this occasion, both children were seen to check their own behaviour and responses appropriately, by apologising to their sibling.
[Mr McLeay] has navigated [Y]’s questions and statements about his behaviour after the separation, by acknowledging her queries and suitably giving her gentle, appropriate responses, while diverting her attention back to play activities. When [Y] was on the swing, [Mr McLeay] responded to her question, that he still loved her mother because she was [X]'s and [Y]’s mother and this answer seemed to satisfy her.
[Y] has shown a reluctance to leave her father, at the end of the sessions. [Mr McLeay] responded appropriately to [Y]’s request to miss a birthday party invite and stay with him, by acknowledging her emotion, encouraging her to spend time with her friends, telling her he loved her and would see her in two weeks.
[Mr McLeay] encourages and assists the children to pack up, including food they have made together or things he has brought from home, so that they can return to [Ms McLeay], on time.
6. Summary
It is apparent that [Mr McLeay] has spent significant time as an involved parent, playing and interacting with his children. The sessions have evolved and flowed naturally, with lots of displays of affection, laughter, talking and fun, as [Mr McLeay] positively and actively engages with his children.
[Mr McLeay] sets expectations in a way that isn’t overbearing or demanding, whilst modelling respectful behaviour to his children. His tone is firm but never harsh and the children happily listen to him. If the children become frustrated during play, [Mr McLeay] can calmly and effectively intervene to avert escalation.
The children adore [Mr McLeay], seeking him out and vying for his attention during each session, which he is certainly adept at managing. Both children are very affectionate towards him, giving him kisses and cuddles often, without prompting. [Mr McLeay] has acknowledged the challenge in being able to negotiate the different needs and demands of his children in a confined area.
7. Availability
There is a natural, trusting, and affectionate relationship consistently demonstrated between [Mr McLeay] and his children. The positive parenting and attachment shown between [Mr McLeay], [X] and [Y] has been in place well prior to them attending the CCS.
[Mr McLeay] has demonstrated during the sessions that he is aware of [X]'s close bond with [Ms McLeay] and he has shown his willingness and acceptance to support [X] in returning to [Ms McLeay] when [X] chooses.
The Children’s Contact Service can offer a changeover service for the children, between both parents, if the parents wish to utilise this, whilst they all settle into a new routine.
There is presently no waitlist associated with the changeover service.
THE FATHER’S EMAIL TO “MS U”: NAMING AND SHAMING
As it will be necessary under these orders for the parents to have some communication with each other, it is in X and Y’s best interest that this occur via an app, which will enable all the communications to be retained and made available to a court if need be. The independent children’s lawyer proposed a communication app, which seems suitable. Obviously, there should also be an order that the app not be used for any communication not expressly required by the orders.
COURSES
The independent children’s lawyer also proposed that the father undertake and obtain certificates of completion for a Men’s Behaviour Change program, a Circle of Security course and a post-separation parenting course. This proposal seemed to be part of the overall proposal discussed above for the father’s time to be increased if he did certain things. However, it seems to me that it is unlikely that the father will do them, as he has not complied with similar orders in the past. Consequently, I will not make the proposed orders. Obviously, if the father chooses to do them, that might stand him in good stead in any future application.
RESTRAINTS
For obvious reasons, as agreed to by the mother and the independent children’s lawyer, it is in X and Y’s best interests that each parent be restrained from:
(a)being under the influence of or consuming alcohol to reach a blood alcohol level above 0.05% while X and Y or either of them are in their care or while they are spending time with X and Y or either of them;
(b)using or being affected by illicit drugs at any time while X and Y or either of them are in their care or while spending time with X and Y or either of them (including prescription medication for which they do not hold a valid prescription);
(c)driving with X and Y or either of them under the influence of alcohol, illicit substances or any substance which may cause them to fail a road side drug test (including THC/CBD oil);
(d)physically disciplining X and Y or either of them, or allowing any third party to do so;
(e)committing family violence against X and Y or either of them, or allowing any third party to do so;
(f)showing to, or leaving accessible to X and Y or either of them, any document connected with these proceedings; and showing to, or leaving accessible to X and Y or either of them, messages, emails or other written communications between the parties; and
(g)showing to, or leaving accessible to X and Y or either of them, messages, emails or other written communications between the parties.
Additionally, the mother sought an order that:
The father be restrained from:
(a)attending on or in the vicinity of any residence or school at which the mother, [X] and [Y] or any of them may reside or attend;
(b)contacting or attempting to contact the mother, [X] and [Y] or any of them by any direct or indirect means, save and except as provided for in these orders.
I consider that such an order is in X and Y’s best interests, except that (a) should include the word “knowingly”, and instead of “vicinity”, it should say 200 metres, to avoid uncertainty. This order is in X and Y’s best interests because it will ensure that all contact between the father and X and Y is in the controlled environment of a contact centre and will be under supervision. It is also in their best interests because it will mean that the mother, X and Y do not face the constant stress of fearing that they might have to interact with the father, except as provided in these orders.
PASSPORTS AND CITIZENSHIP
X and Y’s Australian and US passports are presently being held in the registry of this court. The mother wanted them returned to her, and the father and the independent children’s lawyer did not. The mother also wanted to be able to obtain passports for X and Y without the consent of the father. The independent children’s lawyer proposed that:
Each of the Australian and United States of America passports for each of [X] and [Y] remain in the registry of the Federal and Family Court of Australia at Melbourne until further order of this court or with the written consent of each party.
The father sought orders that the parents do all things necessary to annul X and Y’s US citizenship, to dissuade the mother from relocating to the US. The father did not provide any expert evidence about how the annulment could be done or the long-term effect of it. He said, without evidence, that they could get their US citizenship back later. However, even if that is the case at present, it is not known what changes in the law there might be in the future that would mean that X and Y would be permanently deprived of their US citizenship.
US citizenship is an extraordinary advantage in the world. I do not consider that there is any proper basis to order that X and Y’s US citizenship be annulled, even if that is legally possible.
The father’s application that X and Y’s US citizenship be annulled is an example of the father’s thoughtlessness, lack of empathy, and ability to only see things from his own point of view.
The independent children’s lawyer noted particularly paragraph 9 of the second family report where it was recorded that:
[Ms McLeay] suggested that [Y] and [X] reside exclusively with her, without any visits to [Mx McLeay]. She also expressed her preference to either return to the USA with the children …
Based on that statement, the independent children’s lawyer submitted that the mother was a flight risk. However, the second sentence quoted by the independent children’s lawyer continued:
… or alternatively relocate to Melbourne if the Court Orders are made for [Y] and [X] to spend time with [Mx McLeay].
The independent children’s lawyer also noted that the maternal grandmother would fund accommodation and private schooling in the US, and the mother’s family is in the US.
The mother’s statement to the family consultant was her being her very open self. She did not seek to hide that she would like to return to the US, but also indicated that she would not do so if the court made orders for X and Y to spend time with their father.
The family consultant said in cross-examination that the mother was not a flight risk.
The mother has complied with court orders for X and Y to spend time with their father, except for a few occasions when she had a reasonable basis for not doing so.
On the other hand, the mother is not an Australian citizen, she does not presently have a job here, and she is in the process of selling her house here. Her only tie to Australia seems to be her relationship with Mr F. She does not live with him, and has been seeing him for about 18 months. It is unknown how committed the mother is to Mr F, and vice versa.
All in all, I consider that it is in X and Y’s best interests for the order proposed by the independent children’s lawyer to be made. While the mother might not be a great flight risk, if she were to return to the US, X and Y would have no chance of a relationship with their father.
The order proposed by the independent children’s lawyer allows for the mother to come back to court at a future time to have the passports returned to her for the purposes of a particular trip. I think that is entirely appropriate. Within 12 months, it will be clear whether the father intends to pursue a relationship with X and Y or not. Whether he does or not, any application for the mother to travel with X and Y would be dealt with in the usual way.
For the same reasons, the mother should not be permitted to obtain passports for X and Y without the father’s consent, at least at this stage.
There is no need for an airport watchlist order, as proposed by the father, while X and Y’s passports are held in the registry.
USE OF THESE REASONS AND THE ORDERS
The mother sought an order that she be permitted to give a copy of these reasons and the orders in this proceeding to a State court for the purposes of other legal proceedings, presumably, the intervention order proceedings, which have still not reached a final hearing. That seems to be permitted under s.114S(2)(b)(i) of the Act. Obviously, the State court will not be bound by any findings made in these reasons. Nevertheless, the orders and reasons might be of some assistance. There will be an order as sought by the mother.
CONCLUSION
There will be orders accordingly.
In addition, there will be a direction for the registrar to refer this matter to the police for investigation into whether the father has breached s.121 of the Act.
I certify that the preceding three hundred and seventy-four (374) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 26 June 2024
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