Mendy & Trossard
[2024] FedCFamC1F 99
•1 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mendy & Trossard [2024] FedCFamC1F 99
File number: SYC 1599 of 2012 Judgment of: SCHONELL J Date of judgment: 1 March 2024 Catchwords: FAMILY LAW – PARENTING – Where the mother alleges that the father poses a risk to the children if he spends overnight time with them – Where the mother raises concerns about the father’s parenting capacity while spending extended periods of time with the children in light of his alleged consumption of alcohol and history of depression during the marriage – Where the mother alleges that the father has been physically and verbally abusive toward the children – Where the mother alleges the father has left the children unsupervised – Where the children have reported these concerns to the mother – Where the father denies the mother’s and the children’s allegations – Where the Single Expert opines that the parental dysfunction and different parenting and communication styles of the parents have led to the children developing erroneous ideas about the father – Where the Single Expert opines that if the current arrangements continue there is a real risk that the children will regard their father as peripheral to their lives – Where the Court makes orders, reflective of the recommendations of the Single Expert, that the father spend substantial and significant time with the two younger children, including overnight time – Where the parties do not seek spend-time orders that bind the oldest child –Where the orders enable the oldest child to choose what time she spends with the father.
FAMILY LAW – PARENTING – Children’s views – Where the children are aged 14, 12, and 8 – Where the children have complained to the mother about the behaviours of the father – Where the children have alleged instances of physical and verbal abuse by the father – Where the mother alleges that the children have told her they do not want to spend overnight time with the father – Where the mother alleges that the children are fearful of the father – Where the parents had given the oldest child the ability to choose what time she spends with the father – Where the oldest child does not spend overnight time with the father – Where the oldest child told the Single Expert that she did not want the current arrangements to change – Where the father denies the allegations of the mother – Where the Single Expert opines that the continuation of the current arrangements would have an adverse effect on the children’s social, academic, and psychological development – Orders made that the two youngest children spend substantial and significant time with the children, including consecutive periods of overnight time – Orders made that if the oldest child expresses a desire to spend time with the father, the parents shall facilitate that happening.
Legislation: Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 60CC Cases cited: Adamson & Adamson (2014) FLC 93-622
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Carlson & Fluvium [2012] FamCA 32
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Mulvany & Lane (2009) FLC 93-404
Sigley & Evor (2011) 44 Fam LR 439
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 164 Date of hearing: 12-15 February 2024 Place: Sydney Counsel for the Applicant: Mr Longworth Solicitor for the Applicant: Diamond Conway Lawyers Counsel for the Respondent: Mr. Batey Solicitor for the Respondent: Bartier Perry Lawyers Counsel for the Independent Children’s Lawyer Mr Hearl Solicitor for the Independent Children’s Lawyer Abbot Delaney Lawyers ORDERS
SYC 1599 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MENDY
Applicant
AND: MS TROSSARD
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
1 MARCH 2024
THE COURT ORDERS THAT:
A.The Court notes the following definitions for the purpose of these Orders:
(a)“father” means Mr Mendy.
(b)“mother” means Ms Trossard.
(c)“X” means X born 2009.
(d)“Y” means Y born 2011.
(e)“Z” means Z born 2015.
(f)“children” means Y and Z.
2.All previous parenting orders are discharged.
3.The mother and the father shall have equal shared parental responsibility for X, Y, and Z.
4.Other than at times the children live with the father, the children shall live with the mother.
Term Time
5.Commencing the first Friday after the date of these Orders until the start of Term 3 2024, the children shall live with the father from after school and continuing during school holidays on Friday (or 3.00pm if a non-school day) to before school on Monday (or 9.00am if a non-school day).
6.Commencing in Term 3 2024, the children shall live with the father from after school on Friday (or 3.00pm if a non-school day) to before school on Wednesday (or 9.00am if a non-school day) during school terms.
Term Time Reset
7.From the commencement of Term 4 2024, the following shall apply:
(a)If the children were living with the father for the first half of a school holiday period, then the children’s time with the father shall commence in the first week of the following term.
(b)If the children were living with the father for the second half of a school holiday period, then the children’s time with the father shall commence in the second week of the following term.
End of Term 1, 2 and 3 School Holidays (“end of term holidays”)
8.The children live with the father during the end of term holidays as follows:
(a)For the holidays at the end of Term 1 and Term 2 2024, in accordance with the arrangements pursuant to Order 4.
(b)For the holidays at the end of all other school terms (other than the Christmas/Summer school holidays):
(i)For the first half of the school holidays in years ending in odd numbers.
(ii)For the second half of the school holidays in years ending in even numbers.
9.For the purposes of Order 7, the end of term holidays shall commence at the conclusion of school on the last day of the school term and conclude at the commencement of school on the first day of the next term. If there are an uneven number of nights, the children shall be with the parent who has them for the first half of the school holiday period for the extra night, with changeover to occur at 5.00pm at the midpoint of the holiday period.
Christmas/Summer school holidays
10.Subject to Order 11, the children live with the father during the Christmas/Summer school holidays as follows:
(a)For the first, third, fifth, and seventh weeks of the Christmas/Summer school holiday period that commences in a year ending in odd numbers.
(b)For the second, fourth, sixth, and eighth weeks of the Christmas/Summer school holiday period that commences in a year ending in even numbers.
11.For the purposes of Order 9, the Christmas/Summer school holidays shall commence at the conclusion of school on the last day of the school term and conclude at the commencement of school on the first day of the next term. If there are an uneven number of nights, the children shall be with the parent who has the children during the eight week of the school holiday period for the extra night. Changeover is to occur at 5.00pm each eight days.
Christmas Day
12.The children spend time with the parents during the Christmas period as follows:
(a)with the father from 2.00pm on Christmas Eve until 12.00pm on Christmas Day in years ending in odd numbers.
(b)with the father from 12.00pm on Christmas Day to 2.00pm on Boxing Day in years ending in even numbers.
(c)with the mother from 2.00pm on Christmas Eve until 12.00pm on Christmas day in years ending in even numbers.
(d)with the mother from 12.00pm on Christmas Day until 2.00pm on Boxing Day in years ending in odd numbers.
Easter
13.The children spend time with the parents during the Easter period as follows:
(a)With the father from 9.00am on Good Friday to 9.00am on Easter Sunday in years ending in odd numbers.
(b)With the father from 9.00am on Easter Sunday to 9.00am the following Tuesday in years ending in even numbers.
(c)With the mother from 9.00am on Good Friday to 9.00am on Easter Sunday in years ending in even numbers.
(d)With the mother from 9.00am on Easter Sunday to 9.00am the following Tuesday in years ending in odd numbers.
14.In the event that the Easter period falls during a school holiday period, then the Orders in relation to the school holiday period shall be suspended and Order 12 shall apply.
Special Occasions
15.Regardless of any other Order herein, the children shall spend time with the father on special occasions as follows:
(a)On Father’s Day from 9.00am until 5.00pm.
(b)The father’s birthday, if such birthday falls on a weekend that the father does not have the children pursuant to these Orders, then the father shall spend time with the children from 9.00am to 5.00pm. If the father’s birthday falls on a school day that he does not have the children pursuant to these Orders, then the father shall spend time with the children from 4.00pm to 7.30pm.
16.Regardless of any other Order herein, the children shall spend time with the mother on special occasions as follows:
(a)On Mother’s Day from 9.00am until 5.00pm.
(b)On the mother’s birthday, if such birthday falls on a weekend that the mother does not have the children pursuant to these Orders from 9.00am to 5.00pm. If the mother’s birthday falls on a school day that she does not have the children pursuant to these Orders, then the mother shall spend time with the children from 4.00pm to 7.30pm.
17.On the children’s birthdays, if such birthday falls on a weekend, then the parent not spending time with the children pursuant to these Orders shall spend time with the children from 9.00am to 2.00pm. If such birthday falls on a school day, then the parent not spending time with the children pursuant to these Orders shall spend time with the children from 3.00pm to 7.00pm.
18.In the event X expresses a desire to spend time with the father at the same time as Y and/or and Z pursuant to these Orders, then the parents shall facilitate that happening.
Changeover
19.For the purpose of facilitating time pursuant to these Orders the following shall occur:
(a)For time events that commence or conclude on a day any of the children are at school, at the commencement of any time event the parent collecting the child shall do so from their school and at the conclusion of the time event the parent delivering the child shall deliver them to their school.
(b)For time events that commence or conclude on a day any of the children are not at school, changeover shall occur at such location as agreed and, in the absence of an agreement, it shall occur at the mother’s residence.
Other Orders
20.The parent having the care of X, Y, and/or Z shall inform the other parent if any of them become ill or injured, require admission to hospital, or require treatment at the emergency department of a hospital, as soon as practicable and in any event within two hours of such admission or treatment.
21.Without admissions, the father be restrained from drinking alcohol 12 hours prior to spending time with X, Y, and/or Z and during the time that they spend with him pursuant to these Orders or as agreed.
22.The parents shall be restrained from saying in the presence of X, Y, and/or Z anything which is in any way abusive, belittling or demeaning of the other parent and further are restrained from allowing any other persons to say anything to or in the presence of X, Y, and/or Z which is in any way abusive, belittling or demeaning of the other parent and/or any family members.
23.Each parent take all reasonable steps to keep the other parent informed of any significant developments in relation to the health and education of X, Y, and/or Z.
24.Both parents be restrained from physically disciplining X, Y, and/or Z.
25.Forthwith, both parents shall attend upon at least six sessions of family therapy for the purposes of improving the parental relationship and, to assist in that process, the parents are at liberty to provide to the therapist a copy of the report of Dr C and these Reasons for Judgment.
26.The parents shall both be entitled to attend all events involving X, Y, and/or Z including but not limited to:
(a)Sporting functions;
(b)Extra-curricular activities that call for parental attendances; and
(c)Concerts, school assemblies, sports days and carnivals, parent/teacher interviews, social functions, volunteer activities and activities to which parents are invited.
27.That in the event that either parent changes residence, the parent who changes residence shall notify the other parent prior to the change and provide details of the new address of the residence.
28.Both parents shall continue to use the Divvito App for the purpose of communication in relation to the Y and Z's time with the father.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mendy & Trossard has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings in relation to the parents’ three children: X aged 14, Y aged 12, and Z aged eight.
The parents agree about parental responsibility, that the children live primarily with their mother, and that X should spend time with her father in accordance with her wishes. Amongst other ancillary matters, the parents are at issue as to the amount of overnight time the youngest two children should spend with their father, and whether Y, when she turns 14, should be able to decide whether she spends time with her father.
INTRODUCTION
The applicant mother (“mother”) and the respondent father (“father”) separated on a final basis in October 2016, and on 16 July 2019 entered into consent final parenting orders (“Final Parenting Orders”). Those orders provided for equal shared parental responsibility, for the children to live with the mother, and for the children to spend time with the father over a gradually increasing basis, ultimately concluding in six nights per fortnight during the school terms and for half of school holidays.
It would appear that despite some teething problems with the Final Parenting Orders, time between the children and their father progressed until a disclosure by Y in mid-2021 that her father had allegedly punched her in the forehead. Thereafter, the father’s time was suspended and did not substantially resume until December 2021. From then onwards the father’s time progressed gradually, from two hours a week to the current situation where the father spends day-only time with the children, generally once per week.
The matter was initially listed for hearing in relation to both financial and parenting matters, but the parents ultimately resolved the financial aspect of the proceedings. The positions of each party at the commencement of the hearing differed significantly from those that they ultimately pursued in submissions.
On the part of the mother, she initially sought sole parental responsibility and that all three children spend time with the father from 9.00am to 8.00pm each Saturday, as well as time on Father’s Day, birthdays, and Christmas Day, and other times as agreed. The mother was opposed to, and did not propose, additional school holiday time or overnight time with the children.
The mother’s final position sought orders that the parents have equal shared parental responsibility. The mother also sought orders that there be an introductory period of approximately four months, when the father would spend time in the school term with Y and Z between 9.00am and 8.00pm each Saturday; in the school holidays from 9.00am to 8.00pm on Thursday, Saturday, and Sunday for the first week; and other times as agreed. After the expiration of the introductory four month period, the mother proposed that the father’s time would increase such that on one weekend in a four-week cycle during school terms, the father would have an overnight with Y and Z, and that during the school holidays, the father would have an overnight with Y and Z in the first week.
The mother’s orders proposed that after a further four months, the father’s time with Y and Z during school terms increase to alternate weekends, from 3.00pm Friday to 4.00pm Sunday. For the school holiday periods, the mother proposed that the father spend time with Y and Z from 9.00am Thursday to 5.00pm Sunday in each alternate week The mother sought no orders in relation to X, and sought that upon Y attaining the age of 14 years, she be permitted to spend time with the father in accordance with her wishes.
The father’s initial position was that the parents have equal shared parental responsibility, and an equal time arrangement in relation to all three children. By the time of the final hearing, the father had also changed his position in relation to the living and spend-time arrangements for the children. He sought no binding spend-time orders in relation to X and, with respect to Y and Z, he sought time on a graduating basis, ultimately concluding in a block period of five nights a fortnight during the school terms and half of school holidays. The father’s final proposal largely accorded with the recommendations of Dr C, the single expert (“Single Expert”).
The Independent Children’s Lawyer (“ICL”) sought final orders for equal shared parental responsibility; that there be no spend-time orders in relation to X; and that the youngest two children spend gradually increasing periods of time with their father, culminating in time from after school Friday to before school Monday each alternate weekend in school terms and approximately equal time in the school holidays.
The competing positions for time devolved to whether, at the end of any introductory period: the father should spend time with the children for five nights a fortnight in school terms and half school holidays (the father’s position); three nights a fortnight in school terms and half school holidays (the ICL’s position); two nights a fortnight in school terms and three nights in each alternate week in school holidays (the mother’s position); and whether there should be no spend-time orders in relation to Y upon her attaining the age of 14 years (opposed by the father and the ICL and proposed by the mother).
The parents otherwise were at issue about some injunctions on discipline; arrangements for time with the children on special occasions such as Christmas Day; whether there should be a requirement for the parents to attend family therapy; and other ancillary orders.
DOCUMENTS RELIED UPON
The mother relied upon the following documents:
(1)Further Amended Initiating Application filed 19 December 2023;
(2)Affidavit of the mother filed 20 March 2023;
(3)Affidavit of the mother filed 19 December 2023;
(4)Financial Statement filed 19 December 2023; and
(5)Case Outline document.
The father relied upon the following documents:
(1)Amended Response to Initiating Application filed 21 November 2023;
(2)Affidavit of the father filed 4 August 2023;
(3)Affidavit of the father filed 22 December 2023;
(4)Financial Statement filed 8 February 2024; and
(5)Case Outline document.
The ICL relied upon a Case Outline document.
All parents sought to rely upon the Single Expert Report dated 10 October 2022 (“Report”).
Each of the parents, the father’s psychologist, and the Single Expert were cross-examined.
GENERAL OBSERVATIONS
I have read all of the evidence relied on in the proceedings but do not propose to, nor am I required to, repeat all of it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447:
62.… A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not property considered the losing party’s case.
I have listened very carefully to the evidence and have taken note of the answers given in cross-examination.
I have read the Report and listened closely to the Single Expert’s evidence during cross examination. I am more than satisfied that she has the experience and expertise to express the opinions that she does. Having read her Report carefully and having watched her give evidence, I am satisfied that she has a comprehensive understanding of the issues and a unique insight into the problems facing these children. I found her Report and oral evidence considered, insightful, and logical. I accept all of the opinions and recommendations she set out in her Report as qualified and/or expanded upon in her oral evidence.
I have also carefully observed each of the parents give their evidence and the way they answered questions. I am satisfied that each parent attempted to assist the Court in the determination that it was required to make and gave their evidence truthfully. Counsel for the father urged that I make a credit finding in relation to the evidence of the mother. He submitted that I should approach the mother’s evidence with caution, contending that she was non-responsive, constantly refused to answer questions without seeing a document, and had little or no recall in relation to assertions the father made. Counsel for the father further submitted that the mother’s evidence was not reliable and that she “in some way fashioned her evidence…to protect her narrative”. In relation to this last submission counsel for the father conceded, when challenged, that he had not put to her that she had done so.
Whilst the mother, at times, was non-responsive and, on occasion, had to be requested to answer a question, I do not regard such conduct and the other submissions by the father’s counsel as providing the platform for an adverse finding about her credit. Rather, I am satisfied that the mother’s response to answering questions was a function of her anxious and at times nervous and apprehensive demeanour in giving her evidence. I do not find that she took lightly the oath or that she attempted to mislead or present a false narrative to the Court. In reaching my conclusion contrary to the father’s counsel’s submissions, I am conscious of the Full Court’s decision in Adamson & Adamson (2014) FLC 93-622 and, in particular, their Honours’ endorsements of the observations of Justice Kent in Carlson & Fluvium [2012] FamCA 32. In particular, their Honours observed as follows:
89.In Carlson & Fluvium [2012] FamCA 32 (“Carlson”) at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:
165.As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
166.To deny significant limitations in the capacity to use assessment of the demeanour of a witness as an entirely reliable guide to his or her truthfulness would be to deny the existence of plausible liars; or those who may be timid, uncertain or unconvincing, but nevertheless truthful, in relating events.
167.Moderation in this respect is also called for when it is recognised that adverse credit findings in arriving at a decision at first instance may present a significant hurdle to legitimate rights of review of that decision on appeal.
168.These observations apply with at least equal, if not greater, force in parenting proceedings such as these in this Court where the decision does not bring an end to the litigants’ relationship. These parties are, and will remain, the parents of D and K and adverse credit findings in this decision carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future.
169.Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
90.We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.
No submission was put as to how an adverse credit finding, in relation to the evidence of the mother, was necessary to determine the issues raised by the parents. A credit finding must serve some purpose in proceedings. One such example that commonly arises is where there are conflicting factual assertions about the same event and it is necessary for the Court, in determining the controversy or controversies raised by the evidence, to resolve an issue. Here no such factual controversy or conflict in the evidence of the parents was raised by the submissions of the parties such that it was necessary to make a credit finding. Indeed, the only factual controversy raised by the submissions, and which called for consideration, was the allegation that Y was punched by her father. Given that the mother was not present nor was she even told of the event by the child until, at the earliest, three months later it is impossible to see how a generalized or even specific credit finding adverse to the mother informs a determination of what happened on that occasion.
I am not satisfied that a credit finding is necessary to address any of the issues in these proceedings nor would the submissions of the father, even if accepted, provide a sound basis for a credit finding, as it makes no allowance for the mother’s nervousness or my observations of the manner in which she gave her evidence. I am not satisfied that the way in which the mother gave her evidence leads to the conclusions that he submits. Further, if a submission as to credit is to be made, then a party should be given fair warning and notice of such a challenge (Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361). In this case no such challenge was made by the father’s counsel. I do not intend to make any credit findings.
The parents agreed, at the commencement of the hearing, that notwithstanding their affidavits devoting tens of paragraphs and many pages to a long history of parental conflict prior to the making of Final Parenting Orders on 19 July 2019, those matters of history pre-dating the Final Parenting Orders were of limited weight in determining the issues before the Court in 2024. Consistent with such a view, the parents themselves regarded them of such little weight as they did not inform any submission.
I am not satisfied that the matters of history prior to the Final Parenting Orders have any relevance to any issue that I have to determine. The parents entered into Final Parenting Orders in July 2019 that provided for equal shared parental responsibility and a live with arrangement in relation to the children, which ultimately culminated in six nights a fortnight with the father. There is no suggestion in the affidavits that either parent entered into the orders without the benefit of legal representation, or that they were mistaken, confused, or misunderstood in any way the effect of the agreement that they reached and asked the Court to make by consent. While the mother informed the Single Expert that she entered into the Final Parenting Orders under duress, no such assertion appeared in her affidavit or formed a submission.
BACKGROUND
The mother was born in 1981 and is 42 years old. The father was born in 1971 and is 52 years old.
The parents married in 2009. They separated on a final basis in October 2016.
There are three children of the marriage: X born 2009 (14 years old); Y born 2011 (12 years old); and Z born 2015 (eight years old) ("children").
Throughout the marriage, the father was employed as a professional. The mother was the primary carer for the children.
Between their marriage and their final separation, the parents temporarily separated two times. In March 2012 and September 2014, during these separation periods, the father commenced family law proceedings against the mother. These proceedings were withdrawn upon the parents' reconciliation.
According to the mother, during the marriage, the father consumed alcohol to excess and suffered from but did not adequately treat his depression, which affected his parenting capacity. The father denies the mother's allegations, says he has never been intoxicated in the presence of the children, and deposes that he became intoxicated on no more than about six occasions during the marriage. The father accepts that he suffered from episodes of depression from about 2010, and says that in about mid-2022, he started taking anti-depressant medication which was prescribed to him in 2017. He was no longer taking this medication at the time of the final hearing because, he asserts, he no longer feels depressed.
Following the parents' final separation in October 2016, the mother moved into her parents' house in Suburb B with the children. She remained the primary carer of the children.
From separation until early 2017, the children spent weekend time with the father, by agreement with the mother. The children saw the father during the day with no overnight time.
In about March 2017, the father commenced family law proceedings against the mother.
Between 18 April 2017 and 11 August 2017 various orders were made, some by consent, that culminated in interim orders for equal shared parental responsibility, and for X and Y to spend each Wednesday overnight and each alternate weekend from after school Friday to before school Monday with the father during the school term, as well as half of the school holidays. Z was to spend each alternate weekend from after school Friday to before school Monday with the father, as well as additional time during the school holidays. The Court also ordered that the father undertake Carbohydrate Deficiency Transferrin Testing.
The father deposes that the mother's attitude improved toward him significantly after the end of his relationship with his former partner in about mid-2017, resulting in the parents undertaking shared holidays with the children on numerous occasions between October 2017 to April 2019.
The mother contends there were various difficulties in co-parenting with the father including that without warning he would refuse to communicate with her face-to-face, on occasions he was unable or unwilling to spend time with the children when he was scheduled to pursuant to the court orders, including overnights, such that the children returned to her care.
Each contended there were various difficulties with the children during periods of time that the children were in the father’s care. Each sought to attribute some fault or parenting deficiencies of the other as the reason for the difficulty.
Notwithstanding such assertions, on 16 July 2019 the parents entered into the Final Parenting Orders by consent. The Orders provided that the children live with the mother and spend time with the father each Wednesday overnight, and each alternate weekend from after school Friday to the commencement of school on Monday. From the start of Term 3 2021, the father's time with the children was to increase to each alternate Wednesday after school to the commencement of school the following Friday in one week, and, in the other week, from after school Thursday to the commencement of school the following Monday.
The mother deposes that after the making of the Final Parenting Orders, the father would sometimes demand adjustments such as changing the timing of changeovers or bringing the children back early on short notice. The mother also contends that the father did not appropriately attend to the children's medical needs while they were living with him, which is denied by the father. She deposes, amongst other examples, that in August 2020, Y fell while at her netball game and complained of pain in her arm. The mother says she told the father, who had care of the children pursuant to the Final Parenting Orders, that Y needed to go to the emergency department. The mother alleges that the father did not respond to her. When the mother collected the children from school the following day, Y had not been taken to hospital. The mother took Y to the emergency department, where she was diagnosed with a broken bone.
The father provides a different account of this incident. He deposes that Y showed no signs of overt distress or pain upon falling, and denies that the mother asked him to take Y to the emergency department. The father says that he examined Y's hand and wrist and observed a little swelling but no discolouration. He deposes that his mother cleaned Y's palm, applied antiseptic ointment, and bandaged Y's wrist. He says he did not observe Y to be in pain, and that she had an undisturbed night's sleep. The father deposes that before school the following day, Y complained of soreness, and he told Y to tell her teacher if the pain worsened.
According to the mother, the children reported ongoing issues about the time they spent with the father. She deposes that X told her that the father yells at them and called the mother a bad mother and a terrible person; that Y complained about the father smacking her if she cries and forcing X to eat; and that Z complained about the father threatening to lock him in his bedroom. The father denies the mother's accounts. He says that although there are times he raises his voice to the children about behavioural issues, he is not physically or verbally abusive. He denies speaking negatively about the mother to the children or forcing X to eat. He raises concerns that the children have been conditioned by the mother into believing that he is violent and abusive, and contends that this is a form of psychological trauma.
On 3 March 2020, the mother commenced these proceedings by way of an Initiating Application seeking orders for financial relief only.
The mother contends that in mid-2020, X telephoned her while spending time with the father and told her that the father was not allowing her to have dinner. The mother says she then called the father, who told her that he did not give X dinner because of her misbehaviour. After unsuccessfully attempting to reach X on her phone several times, the mother rang the Suburb D Police Station and asked them to undertake a welfare check on X. The father, on the other hand, deposes that X refused to eat dinner because she had eaten popcorn in the late afternoon. The father told her that "if you do not sit down and eat dinner with us now, you will go without later when you become hungry" (Affidavit of the father sworn 24 March 2023, para 171). Later, when X asked the father if she could have two-minute noodles, the father refused. X then called the mother, who ultimately called the police. According to the father, two police officers attended the home, spoke to X, and told her that she needs to listen to her father.
In July 2020, the children spent time with the father at a property that he owns. According to the mother, when the children returned, X told her that the father had locked Z in the car for over an hour, that Z was screaming, crying to be let out, and wet his pants. The mother says that when she asked the father why he locked Z in the car, he told her that it was because he “squashed a lizard” (Affidavit of the mother sworn 19 March 2023, para 274). According to the mother, since this time, Z began to wet and soil his pants regularly and developed an irrational fear about being left in a car or small spaces; became concerned about the mother leaving him and noticeably upset when the father tried to take him; and displayed "extreme bouts of aggression" (Affidavit of the mother sworn 19 March 2023, para 281) and ongoing school refusal. The mother deposes that Z's kindergarten teacher also told her that he did not want to close the bathroom door at school. The mother says that as a result of Z's behaviour, in April 2021, the mother obtained a referral for Z to a child psychologist.
According to the father, while at the property, he observed Z killing a lizard. He told Z, calmly, that all life is precious, and that he should not kill an animal unless absolutely necessary. The father was also concerned that Z might come across a snake, as he had seen a snake nearby under a piece of wood. The father denies losing his temper or smacking Z. He said that as a punishment, and so as to ensure Z's safety, he placed Z in the car for no more than ten minutes as he unpacked the car. He did not lock the car, and the front windows were slightly open. According to the father, Z was well-behaved and happy for the rest of the weekend. The father deposes that Z has experienced toileting issues for a long time however he has not observed Z wetting himself since December 2021.
In May 2021, the mother consulted with a child psychologist about Z. The psychologist’s notes record that Z was present during the session, and was “happily entertained on his Nintendo switch and playing with Lego during the session while I chatted with [the mother]” (Exhibit 4, Notes of Ms. Ms E dated 12 May 2021, p 3). The notes also set out that Z had been wetting and soiling himself 7x a week since approx. July 2020”, amongst other issues (Exhibit 4, Notes of Ms. Ms E dated 12 May 2021, p 1).
The mother deposes that Y was often upset and cried before spending time with the father. She says that in May 2021, Z told her that he saw the father slap Y across the face at his grandmother's house the previous year. The mother also alleges that in May 2021, X told her that the father told Y that she and her friends are fat, yelled at her, and called her a "stupid girl" (Affidavit of the mother sworn 19 March 2023, para 274). The father denies using corporal punishment and denies making negative comments about the children's appearance in their presence.
The father says that from about April 2021, the mother's attitudes toward him changed and became hostile. He contends that this change coincided with the introduction of the children to his then partner and the progression, in the Final Parenting Orders, toward the father spending increased time with the children from July 2021. He deposes that around this time, the mother started to complain about his parenting, exaggerating or manipulating incidents between him and the children.
According to the mother, in mid-2021, the child protection unit of Suburb D Family and Community Services ("FACS") contacted her regarding reports made by the children about their time with the father. The following day, she says, Suburb F FACS contacted the mother and told her:
Due to disclosures made by your children you are not to send them to spend time with their father. Due to safety concerns if you do send them to their father you will be considered to be putting your own children at risk. Their father is causing psychological harm.
(Affidavit of the mother sworn 19 March 2023, para 297).
The father alleges that the mother and maternal grandmother contacted the Department of Communities and Justice ("DCJ") numerous times from May 2021 through to September 2021, in order to record allegations about his parenting. He accepts that there was also one report from May 2021, seemingly from Y's psychologist, alleging that Y said she was "punched on the forehead by dad on Saturday” (Affidavit of the father sworn 24 March 2023, para 187). The father denies punching Y in the forehead.
Following the phone call from FACS in mid-2021, the mother stopped facilitating the father’s time with the children. In September 2021, the mother facilitated three telephone calls between Z and the father, at Z's request. The father denies that the children are unsafe in his care and says that he was never contacted by Suburb D or Suburb F FACS regarding the allegations against him. He deposes that he spent short periods of time with the children in September 2021, on Father's Day, Y's birthday, and Z's birthday. He says that on his birthday he facetimed Z, at Z's request, and that Z asked him to pick him up the following day. The following day, the father deposes, Z told him that the mother would not permit him to see the father. The father says that on an afternoon in late 2021, at Z's request, he spent an hour and 40 minutes with him after school, and saw Y for about five minutes. Other than these brief periods, the father says, he did not see the children between 18 July 2021 and mid-December 2021.
In August 2021, the father commenced contravention proceedings against the mother for breaching the Final Parenting Orders.
In October 2021, the mother amended her Initiating Application, seeking both financial and parenting orders. The mother's parenting orders sought sole parental responsibility and did not include any overnight time for the father.
In December 2021, parents agreed to consent orders which provided for the recommencement of graduated time between the father and Z and Y, initially for two to four hours each Saturday and then, from February 2022, for six hours each Saturday. The father deposes that from September 2022, he also spent additional time with the children, especially Z, including for periods of over six hours. While there was no compulsion for X to spend time with the father, she voluntarily spent time with him on numerous occasions. The father says that he planned activities for the children on the Saturdays that he spent with them, such as visiting the zoo and museums.
On 2 June 2022, the father's contravention application was dismissed, as the mother was found to have had a reasonable excuse for refusing to facilitate time with the father in July and August 2021.
The mother deposes that between 2019 and 2023, she completed three parenting courses, including one recommended by the Single Expert. The mother says that she invited the father to attend family therapy through her previous solicitors, but he did not respond. The father says that he declined to participate in family therapy because the mother uses this forum to criticise his parenting and does not constructively or collaboratively address her concerns. He says that he undertook a mental health review with a doctor in March 2023, and subsequently attended six sessions with a therapist, Ms G. The father says that he enrolled in an online parenting course in May 2023 but did not complete it due to an urgent work commitment. He deposes that he re-enrolled for a course commencing after the final hearing.
According to the father, after spending time with Z after school on the father's birthday in 2022, Z told him that "I wish I could stay overnight with you", and further said that the mother would be angry at him if he requested this (Affidavit of the father sworn 24 March 2023, para 15). The father also deposes that, in 2022 and 2023, Y told him she wants her own bedroom and a new bed.
According to the mother in her affidavit sworn on 19 December 2023, she asks the children from time to time whether they want to spend overnight time with the father, and they tell her that they do not.
THE SINGLE EXPERT’S EVIDENCE
The Report records, in relation to the mother:
[Ms Trossard] said that she has serious concerns about [Mr Mendy’s] parenting capacity. She said that she knows that [Mr Mendy] suffered from depression which had been medicated. I asked her what her specific parenting concerns were arising from this, and she said that she is not sure of the extent to which [Mr Mendy] now suffers from depression, but she is very concerned about his lax supervision.
…
I asked [Ms Trossard] about her communication with the father. She said that the communication is terrible and often abusive. She said that the father sends her copious text messages, which are often derogatory and abusive. She described examples of the father’s messages to her, including describing her as “pathetic”, “nasty”, “sexist” and “vengeful”, telling her to “grow up” and saying “shame on you”. She said that although they use a parenting app, it does not prohibit him sending abusive texts of this type, and so she has learned to put some boundaries in place for herself [such as designating specific time to read these messages]. She described [Mr Mendy’s] communication as highly inflammatory and anger fuelled.
(Report p 10 lines 217 to 221, p 12 lines 258 to 265)
The Single Expert goes on to record, in relation to the children:
[Ms Trossard] repeatedly pointed out that the children are incredibly fearful of their father. She said that she thinks the father’s parenting has a negative long-term effect on their emotional well-being and mental health.
…
[Ms Trossard] said that she is particularly concerned at the level of anger that [Mr Mendy] can hold onto, and specifically that he will punish the children or treat them badly if he knows that they have made a disclosure to her...
…
[Ms Trossard] said that there were many times when the father had the care of the three children where he handed them back early or asked for her assistance because he could not cope. She recalled in April 2021 during the school holidays where [Mr Mendy] telephoned her and said “come and get them” after only two days into the full week where he was expected to have the children in his care. She said that when the children return to their father’s care, [Z] was verbally berated and threatened by [Mr Mendy] that he would be locked in his room permanently.
Despite these concerns, [Ms Trossard] said that she thinks that the father can be very good with the children engaging with them for short periods of time. She said that she knows that [Mr Mendy] can organise a good day for the children where they do various appropriate activities. However, she said that in the long term she does not think that [Mr Mendy] has any bandwidth to have more extended periods of time than that with the children, and that the previous concerns will arise if they spend longer with him.
…
She said that when the children tell her what they have done with their father, she responds positively. She said that in general, she thinks that the children have been having an excellent time with their father on the Saturdays and have experienced him at their best. She said that he can be engaging, enjoyable and fun and that “when he is good he is really, really good”.
[Ms Trossard] told me that despite the conflict and the things that she has been subjected to, she has been able to maintain civility at handovers.
(Report p 11 lines 232 to 233, p 13 lines 291 to 298, p. 13 lines 303 to 315, pp 13 to 14, lines 318 to 324)
In relation to X it was the mother’s view as expressed to the Single Expert that X “had borne the brunt of her father’s parenting and the upheaval caused by [Mr Mendy] constantly moving houses.” (Report p 14 lines 326 to 327).
In relation to X, the mother advised the Single Expert as follows:
Currently, [Ms Trossard] told me that [X] has attended time with her father sporadically, although more regularly in the past few months because she was enthusiastic about the activity that [Mr Mendy] had planned or had wanted to see the dogs. She said there are some occasions on Saturdays when [Y] begs [X] to come, but [X] says that she does not have to come and can decide for herself. She said that [X] can determine whether she can put up with her father’s behaviour or is willing to do so in order to participate in a fun activity.
(Report pp 14 to 15, lines 350 to 356)
In relation to Y, the mother reported to the Single Expert:
In relation to [Y], [Ms Trossard] described her as very anxious, but said that this has resolved considerably since she stopped spending overnight time with her father. She said that previously Y was petrified at spending time with her father, and she would have to put her into the car kicking and screaming. She said Y has begged not to go and said “why do I have to go?” in the past.
(Report p 15 lines 360 to 364)
In relation to Z:
With respect to [Z], [Ms Trossard] said there has been huge improvement with [Z] this year and he has settled down well into school. She said that [Z’s] teacher has reported that he is now smiling, happy and popular, and she too has observed a dramatic transformation in [Z] since he has stopped spending overnight time with his father.
…
During the interview, [Ms Trossard] told me that the children had been very distressed after the interviews with me on the previous day. She said that the following morning [i.e., the day I was interviewing her] both [Z] and [X] had some school refusal and were in tears. She said the children reported that they were extremely worried about their father finding out about the things that they had told me and that they were very concerned that they would be punished by their father on the forthcoming weekend. She said that [Z] had been so distressed that he soiled himself after the interviews.
(Report pp 15 to 16 lines 406 to 412)
Consistent with the mother’s evidence in the proceedings, she informed the Single Expert that the father can parent well for short periods of time and does not pose a risk to the children in those short periods, but it is during the longer periods of time where “the father’s dangerous behaviours may arise” (Report pp 16 lines 418 to 419).
In relation to the father, the Single Expert records:
[Mr Mendy] accepted that his relationship with [Ms Trossard] over the years has been dysfunctional.
…
He said that [Ms Trossard] has always had a narrative that he has been a bully and aggressive, which is not true at all. He said that [Ms Trossard] has kept a diary over the years and is constantly criticising him for the most minor parenting infraction.
…
[Mr Mendy] denied ever being physically abusive to the children, not properly supervising them, not giving the medical care attention, losing his temper or not nurturing them properly.
…
I asked [Mr Mendy] about communication with the mother. He said that they communicate through an app. He said that at times he has been angry in the correspondence and sometimes writes “narky” responses, particularly when [Ms Trossard] accuses him of various things.
…
That said, [Mr Mendy] said that he thinks that [Ms Trossard] is a wonderful mother in many ways, that she loves the children and looks after them well. He said he understands that the children have a natural bias towards their mother because she has been their primary caregiver and they are very close to her. He said he understands and accepts that this is normal, but he is very worried that if the court accepts that he has not slapped the children across the face or punched them, then it is incredibly troubling that [Ms Trossard] has pursued these claims and that the children are saying these things.
(Report p 22 lines 587, 600 to 603, p 23 lines 615 to 616, p 24, lines 652 to 658, 665 to 671).
The Single Expert interviewed each of the children. In relation to Z, she recorded that he spoke very positively and enthusiastically about his father and that he liked spending time with his father. She recorded that Z said that he really missed his father. In relation to Y, the Single Expert recorded that she appeared anxious and cautious and that, despite attempts, she could not put her at ease or make her feel comfortable. Y described herself to the Single Expert as a “very anxious person” who worries “a lot about stuff” (Report p 28 line 803). She informed the Single Expert that “she is very close to her mother because her mother is kind” (Report p 28 line 815). She described her father “very positively”, describing him as “nice, caring, and likes to watch her playing sports” (Report p 29 lines 822 to 823). She said that she feels “proud that her father likes to come and watch her games” (Report p 29 lines 825 to 826). She informed the Single Expert “I like the way things are now but I don’t want to talk about it anymore” (Report p 29 lines 831 to 832).
The Single Expert described X as conversational, expansive, animated and engaged. She said that X was “extremely effusive” in her praise of her mother and informed the Single Expert that she worries a lot about her mother (Report p 30 line 853). X described being very distressed and upset about her parents fighting and getting cranky with each other. She told the Single Expert that her mother had told her: “I had to go to court fighting for you guys” (Report 10 October 2022, p 31 lines 880 to 881).
She described her father as a “nice guy” and that “he is okay” (Report p 32 line 882). She told the Single Expert that she likes to go and see her father on Saturdays because: “Dad is really nice on the days we go and doesn’t get mean” (Report 10 October 2022, p 31 line 891). However, she said that if it came to overnight then “dad would get really mean” (Report p 31 line 892). The Single Expert recorded “Overall, [X] said she is very happy that she can decide for herself when she wants to see her father and that she does not want to spend overnights with him” (Report p 32 lines 911 to 912).
The Single Expert observed the children and the mother together, recording that they were “extremely polite, sociable and engaging” and that “the dynamic between the children was warm and mildly competitive” (Report p 32 lines 915 to 917). The interactions between the children and their mother were observed to be “warm, loving, close and affectionate” (Report p 34 lines 976 to 977). The Single Expert also observed that there was a “good rapport and comfort” between the children and their mother, and that they did not display any “trepidation, weariness or anxiety” (Report p 34 lines 978 to 979).
The Single Expert also observed the children with their father. She described X as “very pleased to see her father and was open, affectionate, and loving with him, giving him a warm cuddle and greeting.” (Report p 34 lines 985 to 986). Y was also “very affectionate, loving, and open with her father” and spontaneously cuddled him (Report p 34 lines 985 to 986). The Single Expert says that the father was “warm, affectionate, and caring towards the children” (Report p 34 lines 988 to 989). She describes the interactions and conversations as “warm, loving, humorous and intimate” (Report p 34 line 994). She described all three children as looking forward to seeing their father, and being physically and verbally affectionate towards him.
Relevantly, given the issues raised by the mother, the Single Expert opined:
There was absolutely no indication that they had any wariness or concern about their father’s reaction to their behaviour or views, and they were prepared to contradict him and make fun of him at times.
(Report p 31 lines 1026 to 1028)
Under the heading of “Evaluation and Terms of Reference” the Single Expert recorded that the parents had been in ongoing conflict and litigation for the entirety of Z’s life and for most of the childhoods of X and Y. The consequence of this conflict, in the opinion of the Single Expert, meant that their childhoods had been an alternating pattern of co-operative parenting and high conflict. The parental dysfunction and different parenting and communication styles, in the opinion of the Single Expert:
…has led to a perfect storm of factors whereby minor incidents have become exaggerated or so distorted that they have assumed great significance, not just in these proceedings, but more insidiously in the minds of the children. There has been such hypervigilance and scrutiny of the children’s behaviours and statements that the children have become aware of the gravity of their views and very sensitised to the conflict between the parents.
(Report p 31 lines 1062 to 1067)
Relevantly, for the purposes of these proceedings, the Single Expert opined as follows:
I do not consider that the children are at any risk of significant harm in the care of either parent. I do, however, think that the children have developed erroneous ideas about the degree to which the father poses risk.
I think that the mother is very well intentioned and cares deeply and empathically for the children, however I also think that there is a degree of anxiety and hypervigilance in her parenting and that she has not focused on improving the children’s coping skills, including their capacity to tolerate some minor adversity. I think that the father is also very well intentioned, loves the children and wants the best outcomes for them. However, I do think that at times he has been overwhelmed with the challenging behaviours of the children, and may have some vulnerabilities with mood regulation at times of stress.
Unless the parents are genuinely able to resolve their conflict and accept that, however flawed, the other parent has a central and crucial role in the children’s lives, then the children will continue to be exposed to ongoing conflict which will have a lifelong adverse effect on their psychosocial development and behaviour.
(Report p 37 lines 1073 to 1086)
The Single Expert ultimately recommended in the Report that the children should be spending substantial and significant time with the father.
The Single Expert was cross-examined by each of the parents. She indicated that she had read all the affidavit material and other documents relied upon by the parents in the proceedings, including each of their competing proposals. The Single Expert indicated in her cross‑examination that there was nothing that she had read that would cause her to reconsider any aspect of her report or recommendations. However, she recognized that the children were now older and that, in relation to X having been given the choice to determine whether or not she should spend time with her father by the terms of the Orders made on 27 January 2022, it would be now impossible to wind this position back.
The Single Expert reiterated the concerns in the Report about the danger of giving children the burden of making decisions. She opined that it was unnecessary for the children to attend therapy, and that it was the parents who needed to attend therapy to address the problems that they have created for their children. She reiterated that the children’s problems are a function of the parental conflict.
The Single Expert was cross-examined at length about each party’s proposal. She was clear in her recommendation that overnight time between the children and their father should commence immediately, and was not dependent upon therapy continuing.
The Single Expert also ultimately rejected the proposition that an equal time arrangement was in the children’s best interests. The Single Expert was, at one stage, somewhat ambivalent about whether the children should spend a block of four, five, or six nights with their father and was concerned about the potential for the siblings to be separated, given that X may not attend with the father. In light of this concern, she ultimately advocated that a block of five nights during the school terms was one that was in the best interests of the children. The Single Expert was clear that she did not support an arrangement that saw Y being given the autonomy to decide, at the age of 14, whether she should spend time with her father.
As stated earlier in these Reasons, I accept the opinions and recommendations of the Single Expert.
FACTUAL CONTROVERSIES AND THE EVENTS OF JULY 2021
Whilst there were many factual disputes between the parents in the period subsequent to the making of the Final Parenting Orders in 2019, there was a complete absence of submissions by each counsel as to findings I should make in relation to the disputed factual contentions. In that regard the father was not cross-examined, about any of the disputed factual matters and his responses to the children which were the source of many of the mother’s criticisms of his parenting capacity, to suggest that his narrative was false. Rather, the cross-examination of the father focused on the father’s response to the mother’s perception and belief as to what the children were reporting to her.
The paucity of cross-examination on factual disputes, and the absence of submissions about those matters, renders impossible a factual finding on the disputed facts save and except in relation to the incident in mid-2019, where it is alleged that the father punched Y in the forehead. In relation to this incident, the father submits that the Court could not make a finding that the father had assaulted Y. The mother’s counsel conceded that the Court could not make a finding that the he had physically assaulted Y.
Apart from the evidence contained in the school counsellor’s notes, it would appear that Y has not been the subject of any investigation by the police or the DCJ. There is no evidence of what Y said to her mother happened. The mother’s diary records Y communicating with her mother during the course of the weekend and after the occasion when it is asserted that she was allegedly assaulted by her father. Y’s texts to her mother that weekend are banal and make no reference to being assaulted by her father. It is unusual, in circumstances where the child reports to the mother innocuous assertions critical of the father’s behaviour, that she would fail to report being punched. X, who attends upon a counsellor on the Monday following the alleged assault, makes no reference to her father having assaulted her sibling, albeit she was present during the weekend. The father denied assaulting his daughter. He was not cross-examined about the incident.
I am satisfied, having regard to all of the evidence and in particular: the evidence of the Single Expert that the Court needs to be very cautious in accepting the children’s account as accurate; her observations of the children’s responses to their father; and the father’s unchallenged denials, that he did not punch his daughter as alleged.
APPLICABLE LAW
Parenting matters are governed by Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA of the Act mandates that the best interests of children are the paramount consideration. The objects of the Act are identified in s 60B, which sets out not only the objects of the Act but the principles to be applied.
Section 60B of the Act provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Pursuant to s 61DA(1), the Court is required to apply a presumption that it is in the best interests of children for their parents to have equal shared parental responsibility but that presumption may be rebutted if there are reasonable grounds to believe that a parent has engaged in abuse or family violence, or there is evidence which satisfies the Court that it is not in the bests interests of the children for the presumption to be applied.
In the event that the Court is satisfied that the presumption applies, then pursuant to s 65DAA of the Act, the Court must positively consider whether orders should be made which result in a child spending either equal time or substantial and significant time with both parents.
Substantial and significant time is defined by s 65DAA(3) of the Act as follows:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In determining what time order should be made under ss 65DAA(1) and (2) of the Act, the Court looks to whether spending equal time or significant substantial time is in the best interests of the children, and whether as a separate consideration it is reasonably practical.
The best interests of children are determined by an examination of the factors as set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations in determining what is in the their best interests. The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence.
In applying these considerations, the Court is to give greater weight to the consideration set out in s 60CC(2)(b).
Section 60CC(3) sets out additional considerations in determining what is in children’s best interests. Those considerations will be discussed further below.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ stated:
76.It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)
In reaching my decision, I have considered all of the relevant sections of the Act, albeit that I am not required, as a matter of law, to specifically address each such consideration.
PRIMARY CONSIDERATIONS
Meaningful relationship
It is ordinarily in children’s best interests to have a meaningful relationship with their parents.
The Full Court in Sigley & Evor (2011) 44 Fam LR 439 at 463–464 identified the following as important matters of guidance in relation to s 60CC(2)(a):
(a)“a meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 at [26];
(b)“the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)”: McCall & Clark (2009) FLC 93-405 at [118];
(c)“what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”: Godfrey v Sanders (2007) 208 FLR 287 at [36]; and
(d)“[t]he submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make the orders most likely to ensure the children had a ‘meaningful relationship’ with both parents. This is an incorrect assumption. The court’s obligation is to make orders most likely to promote the child’s best interests”: Champness & Hanson (2009) FLC 93-407 at [103].
Each of the parents and the ICL contend that the proposals that they advance are ones that are consistent with ensuring that the children are able to maintain a meaningful relationship with each of their parents.
In relation to the current arrangements for the children, the Single Expert opined in the following terms:
The current arrangements have led to a significant diminution in the time the children spend with their father. If this situation remains, there is a real risk that the children will come to regard their father as much more peripheral to their lives and not a person who is critically involved in their school, sporting, social and extra-curricular lives. I think that the children would grieve this loss and that it would have an adverse effect on their social, academic, and psychological development.
(Report p 38 lines 1104 to 1108)
The proposals of the mother are, to a large extent, a continuation with some slight modifications of the existing arrangements in relation to the children. Whilst she agrees to an increase in time for Y and Z, she proposes that Y’s time with the father upon her attaining the age of 14 would be in accordance with her views. It thus represents, from that point onwards, a continuation of the current arrangement that exists in relation X.
Likewise, whilst there is a modest increase in overnight time for each of the children, I am not satisfied, consistent with the evidence of the Single Expert, that the mother’s proposals for time are sufficient for these children to avoid the risks the Single Expert refers to. Her proposals run the risk that the father would remain, consistently with the observations of the Single Expert, a person peripheral to their lives and one who is not critically involved.
I am satisfied, for the reasons that I give and the Orders I make, that the children will have, to the extent possible consistent with their best interests, a meaningful relationship with both of their parents.
As noted, however, the Court’s obligation is to make orders that are in the children’s best interests and the questions of risk and harm are not subordinate to the issue of a meaningful relationship.
SECTION 60CC(2)(B)
The primary focus of these proceedings has been whether there is a need to protect the children from harm, in light of the allegations of risk that are made by the mother and children.
In that respect, the father’s counsel submitted that the father did not pose an unacceptable risk or, for that matter, any risk to the children. He did, however, submit that the mother’s conduct was such as to pose an unacceptable risk of harm to the children if it continued. I am not satisfied that the mother’s conduct is such as to pose an unacceptable risk of harm to the children. It was not suggested to the Single Expert that the mother’s conduct would support such a conclusion, nor was it explored with her.
I do not find that the mother poses an unacceptable risk of harm to the children.
I am, however, consistent with the Single Expert’s opinion, satisfied that if the children continued to have the limited relationship with their father that the mother initially proposed it would have an adverse effect on their social, academic, and psychological development. The mother’s amended proposal was not supported by the Single Expert.
The mother submitted that whilst the Court could not be satisfied that the father posed an unacceptable risk, the father’s behaviours and mental health issues posed a risk of harm to the children, and that risk of harm could only be managed by the form of orders that the mother promoted.
There was a degree of inconsistency in the mother’s position. At the commencement of the hearing, she had submitted that the children should only be spending daytime periods with the father given the risks that the father posed. In that respect, the mother had initially suggested that the risks included his maladaptive use of alcohol, mental health issues, questions about lack of supervision, and matters relating to his capacity to control his anger. The mother submitted that, in essence, the children were safe for short periods of time with their father but anything longer than that proposed by her had the potential to expose the children to a risk of harm. This included any suggestion of overnight time. The mother’s Case Outline asserted:
11. The mother contends that the orders she seeks herein are conducive of ensuring that the children have a meaningful relationship with each parent. The orders are framed in a way that ensure that the father has regular and continuing time with the children every week. However, at current, it is the mother’s position that any time exceeding the amount as proposed by her herein, including that of overnight time, would not facilitate upholding the children’s best interests. Such is the case in circumstances where the father continues to pose a risk to the children, in addition to a range of ramifications that would flow from increasing such time which would be of detriment to the children.
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13. …as for overnight time, the mother contends that the children do not derive any benefit and is not necessary in ensuring that the children maintain a meaningful relationship with their father. The risks that would flow from such will be examined below however importantly; the children do not wish to spend overnight time with the father…
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15. …the mother contends that the benefit in which the children would derive from spending overnight time and further time with the father is non existent in consequence of the several risks in which the father poses to the children. These risks of harm must be heeded, and the mother contends that the Court ought to find that, at this time, the father continues to pose a range of risks to the children.
The mother’s final Minute of Order, which saw a progression to overnight time for Y and Z, is irreconcilable with her earlier position. Consequentially it must follow that many of the mother’s earlier concerns about risk of harm, to a degree, are ameliorated by the position that she now proposed, namely one of overnight time. The change in position by the mother was not explained.
On the question of risk of harm, the Single Expert opined:
I do not consider that the children are at any risk of significant harm in the care of either parent. I do, however, think that the children have developed erroneous ideas about the degree to which the father poses risk.
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I do not think that the children are at any risk of being subjected to abuse, neglect, or family violence.
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I think it is extremely unlikely that the children have been or are at any risk of significant harm by their father.
(Report p 37 lines 1073 to 1075, p 39 lines 1113 to 1115, p 47 lines 1385 to 1386)
These opinions were not the subject of challenge. I accept the Single Expert’s opinions.
I also accept the Single Expert’s opinion that the children have developed erroneous ideas about the degree to which the father poses a risk of harm to them. In that respect, the Single Expert opined:
Unfortunately, I am of the view that minor issues in the father’s parenting of the children have been magnified in their minds and assumed distorted and exaggerated significance. A good example of this was [X’s] complaint that her father had failed to feed her and was “starving” her, has been exaggerated and distorted by the mother’s response in calling the police for a welfare check. It is incredulous to me that the mother did not pause to consider the likelihood of the father “starving” the children before she took such a drastic action as telephoning the police. Of course, the attendance of the police at the father’s residence had an adverse effect on the children, which escalated a benign parenting interaction into quite a dramatic event.
(Report p 42 lines 1237 to 1045)
I further note the Single Expert’s evidence that the statements of the children that they have been exposed to physical punishment, verbal abuse, and other inappropriate parenting behaviours by the father are difficult to accept “given the enormous pressure the children have been under in terms of reporting various matters to their mother and others (Report p 45 lines 1340 to 1342)
The Single Expert opines that the children’s perception of their father’s behaviour is “distorted”, and that the Court needs to be “very cautious in accepting the children’s accounts as accurate” (Report p 37, line 1063, p 46 lines 1357 to 1358). I further note that the Single Expert opined that:
The children displayed absolutely no fear, trepidation or concern when interacting with their father and were open, relaxed, and assertive with him.
It is difficult to accept that if the father has an angry and punishing parenting or personality style, the risk would only occur or be evident if he had the care of the children overnight or for extended periods of time. The risk, if it was present, would be evident at any time the father had the care of the children.
(Report p 46 lines 1369 to 1374)
I further note the Single Expert’s oral evidence that the children’s presentation with their father was the antithesis of what one would expect had the father behaved in the way the children have reported to their mother.
The mother had raised concerns about the father’s maladaptive use of alcohol in the past. I accept the mother’s evidence that she did not regard the father’s use of alcohol as a current concern. I find the father has used, in the past, alcohol in a maladaptive way and has suffered from depression. I note the absence of any evidence from the mother of the use of alcohol by the father, or of any behaviours of the father that might be consistent with him abusing alcohol or suffering any mental health issues, while the children were in his care post separation.
Given the hypervigilant way in which the children report to their mother what happens in their father’s care it is not unreasonable to surmise that, had there been any such observation by the children, it would have been reported to the mother.
I am also satisfied in concluding that the father does not pose a risk of harm by way of alcohol and/or mental health issues, and that the father has a degree of insight into his past problems. I note the father attended upon a psychologist who was the subject of cross-examination. I note from the terms of her report that the father engaged in six sessions with her pursuant to a mental health plan. She records in her report “at the time of our last appointment there was no evidence of mood disturbance and [the father] was motivated to continue making behavioural changes in his life” (Exhibit 16, Letter from father’s psychologist to father’s general practitioner dated April 2023).
I am satisfied that the father understands and has insight into his past maladaptive use of alcohol and the impact of his depression. He indicated, in the course of his cross-examination, that he would adopt the recommendation of the Single Expert that he engage on an annual basis with his general practitioner and/or psychologist for the purposes of a mental health review.
I am not satisfied, for these reasons, that the father’s past history of maladaptive use of alcohol, mental health issues, or depression have the potential to expose the children to a future risk of harm such as to provide a basis for the orders proposed by the mother.
ADDITIONAL CONSIDERATIONS
The Court must also have regard to such of the additional considerations under s 60CC(3) of the Act as are relevant. I will, to the extent that I have not already done so, address the additional considerations.
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The children are aged 14, 12 and eight. I accept that the children have each expressed to the Single Expert and to the mother, with the exception of Z, a less than enthusiastic response to any increase in time with the father. In that respect the Single Expert records that Y appeared to be anxious to express any particular view, while X wished things to remain as they were. Z did not express any particular view about future living arrangements, however the Single Expert records that he missed his father.
Each of the children have expressed to the mother a desire to keep the arrangements as they are, and certainly have expressed to her that they do not wish to move to an overnight arrangement.
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated:
34.In some cases, it may be right, in the exercise of a primary judge’s discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
35.... whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed.
I note the Single Expert’s view that the children have become embroiled in the adult conflict and, in particular, her view that X has developed an alignment with her mother. In relation to X’s views the Single Expert opines as follows:
In determining the weight that ought to be given to [X’s] views, I think that her exposure to inappropriate legal material and adult conflict, her age and development needs to be taken into account and her views considered in this context.
(Report p 39 lines 1141 to 1143)
I note the children’s views but, in light of the Single Expert’s evidence, place limited weight on them.
(b) The nature of the child’s relationship with each of the parents and other persons
I accept the evidence of the Single Expert that the children are exceptionally close, emotionally bonded, and highly connected with the mother. I accept, however, the Single Expert’s opinion that there is a high degree of anxiety evidenced in the children’s attachment to the mother. I accept the Single Expert’s opinion that all three children displayed behaviours with the mother which indicated a degree of social and emotional immaturity. I accept that the Single Expert opines that while the mother is kind and exceptionally loving towards her children, she has inadvertently reinforced poor coping skills, a lack of resilience, and a dependence upon her:
A further complication is that the mother’s parenting style has been presented to the children as optimal and that other styles of parenting or interacting with them may be perceived as insensitive, threatening or possibly abusive.
(Report p 41 lines 1195 to 1197)
I accept the evidence of the Single Expert that the children were very open in their affection towards the father, and I accept her evidence that there was no indication that the children demonstrated any indicator of anxiety or fear of him. That said, I also accept the evidence of the Single Expert that there have been occasions when the father has been less than patient with the children, and has disciplined them in ways that the children have perceived to be unfair or distressing which they have reported to their mother. I accept as well, however, the evidence of the Single Expert that these deficits in the father’s parenting of the children have been magnified and amplified and have assumed distorted and exaggerated significance. A complicating factor is the Single Expert’s view that X, and possibly Y, are aware of the mother’s antipathy towards their father which has had a negative impact on their relationship with their father.
The Single Expert was not challenged on her opinion about this antipathy. That said, it is not a foundation or basis for not increasing the children’s time with their father. It was not put to the Single Expert, nor is there any evidence, that a continuing antipathy would alone be a basis for not increasing the children’s time with the father in the manner proposed by the Single Expert.
I am satisfied that the children have a good relationship with each of the significant persons in their lives, albeit their relationship with their father is somewhat distorted by the high degree of parental conflict and the hypervigilance that has existed in the mother / children dynamic. I am also satisfied that the proposals of the mother inhibit, to a significant extent, the children’s ability to develop a more substantial relationship with the father.
(c) Extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; spend time with the child; and communicate with the child
No submission was made by the mother in relation to this sub-section. The father’s counsel submitted that the father has been keen to be involved on all aspects of the children’s lives but has been unable to spend overnight time with the children. I am not satisfied that this is a relevant consideration in the determination that I am required to make.
(ca) Extent to which each of the parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The mother submitted that the Court should consider the evidence that the father ceased to pay the school fees for the girls, notwithstanding having a greater income than the mother. It was also submitted that the father had sought, in some way or other, to prioritise renovations to a home as opposed to maintaining the payment of school fees, and that the Court should, in some way or other, infer that either this reflected poorly on his parenting capacity or prevented him, in some way or other, fulfilling his proposals for parenting. There was limited, if any, cross-examination of the father on financial matters, or in relation to the matters that informed this submission. In those circumstances I am not satisfied that the father, in some way or other, prioritised his own financial position to the detriment of the children.
I note the father has paid, and has continued to pay, child support. I also note that the Court made final child support orders that imposed on the father an obligation to meet 50 per cent of the children’s school fees, and all of their other educational expenses, without reduction of his periodic payments. There was no cross-examination of the father in relation to his financial affairs nor his ability to maintain the children. I am not satisfied that the evidence would permit me to accept this submission.
I am not satisfied that this is a relevant consideration.
(d) Likely effects of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
This has been extensively canvassed above.
On any proposal, the children will not be separated permanently from either parent or each other. The Single Expert recognised, in the course of her oral evidence, that an arrangement for equal time or even six nights a fortnight with the father would have the effect of separating the siblings. I am satisfied that she was very conscious of the competing considerations and, on balance, determined that the tension between: ensuring that the children were able to maintain a strong sibling relationship; cope with a separation from their mother; and develop a meaningful relationship with their father was met by striking the balance at five nights in a fortnight with their father. I am satisfied that an arrangement of that type is not such as to impede the children’s relationship with their siblings or with their mother.
I am, for these reasons, satisfied that the mother’s proposals are insufficient to meet the children’s needs.
I am not satisfied that the arrangements of the ICL are appropriate. The ICL proposed deferring the commencement of overnight time for a period of two months. This was contrary to the recommendation of the Single Expert. The ICL’s regime of time never moved beyond three nights, apart from during school holiday periods. The ICL made a submission that it was a balance between what the ICL believed the mother and the children could cope with and the recommendation of the Single Expert, with the aim of achieving a workable situation. The difficulty I have with the ICL’s submission is that it was not canvassed with the Single Expert and is inconsistent with her recommendations. If it was to have any evidentiary support, then it was one that required more than just a feeling or impression but one sourced and based in the evidence. The evidence of the Single Expert was clear and emphatic in relation to the need for the children to spend substantial and significant time with their father. She was intimately conscious of the competing tensions in the case, including the children’s close alignment and attachment to their mother, the mother’s antipathy, and how the children might otherwise perceive and deal with an increase in time. Nevertheless, she was of the view that an increase in time with their father was warranted, consistent with, and necessarily in their best interests.
I note that the Single Expert opines that there will be adjustment changes for the children if they are to spend more time away from their mother and, consequently, more time with their father. That said, she was conscious, nevertheless, of the competing proposals and proposed a staggered increase in relation to the children’s time with their father. She was of the view that time should immediately move to a block of three nights and in, that respect, implicitly considered that there should not be a break in the time such that the children returned to their mother after one or two nights, but rather was of the view that it was essential for the children to move from school and back to school. There is an implicit rejection, therefore, of the staggered proposals of the ICL.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This is not a relevant consideration.
(f) The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The Single Expert was satisfied that the mother generally has a good capacity to provide for the children’s needs and observed that, as a consequence of the father’s time more recently with the children, he has not been as involved in their educational, social, and extracurricular lives.
I am satisfied that both parents have, at times, failed to place the children’s emotional needs ahead of their own as a consequence of the entrenched parental conflict.
I accept the opinion of the Single Expert that there are deficits in the father’s parenting capacity and that these deficits have exposed the children to parental conflict. I accept the evidence of the father that his pride and ability to sulk has contributed to the difficulties. It showed a degree of insight into the failings in his character.
I am not confident that the mother has reflected upon the criticisms of the Single Expert in her report, or her opinions as to the source of the children’s complaints. I am particularly concerned that, despite recognizing that it was contrary to X’s welfare to empower her to make her own decision about whether she wanted to see her father, she proposes to do the same for Y when she attains the age of 14. The mother’s explanation, that Y will be older than X was when she was given the opportunity, as justification for her decision, is contrary to the clear recommendation of the Single Expert.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
This is not a relevant consideration.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her culture; and the likely impact any proposed parenting order under this Part will have on that right
This is not a relevant consideration.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This has been canvassed extensively above. I accept the Single Expert's opinion that the parents are committed to being actively involved in the children’s lives.
(j) Any family violence involving the child or a member of the child’s family
This has been extensively addressed above.
(k) Any relevant inferences that can be drawn from a family violence order, if it applies
This is irrelevant.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
These parents have been in significant conflict about the children’s living arrangements in the years subsequent to separation and following the making of the Final Parenting Orders. It is in the children’s best interests for these proceedings to end, and for them to have some certainty in their life. I am hopeful that the orders I make are ones that are least likely to lead to further proceedings.
I have considered and reflected upon some of the orders that the mother proposes, in particular order 24, in the following terms:
The father is restrained from disciplining [Y] and [Z] by locking [Y] and [Z] in bedrooms or in cars, withholding food, force feeding food or medication, smacking, hitting or other physical punishment.
I am satisfied that an order in this form is not in the children’s best interests. Given the propensity of these children to report to the mother what happens in the father’s household, the Single Expert’s opinion that the children cannot be relied upon as accurate reporters, and the Single Expert’s opinion as to the children’s capacity to distort and amplify what happens, such an order could have the consequence of just inviting further litigation. I will, however, make an order that both parents be restrained from physically disciplining the children.
(m) Any other fact or circumstance that the court thinks is relevant
There are no other fact or circumstance that is relevant.
PARENTAL RESPONSIBILITY
Pursuant to s 61DA(1) of the Act, the Court is required to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
In making an order for equal shared parental responsibility I am required, in determining what spend time order should be made, to consider whether spending equal time or substantial and significant time is in the best interests of the children, and whether as a separate consideration, it is reasonably practicable. Neither party proposed to me an equal time arrangement. I am satisfied, for the reasons I have given, that time on a substantial and significant basis is in the best interests of the children, and that it is practicable in these circumstances.
Having regard to all of the above matters, and all of the s 60CC considerations, I am satisfied that a time arrangement between the children and their father in accordance with the recommendations of the Single Expert is one that is in their best interests. Accordingly, I am satisfied that, in general terms, the spend-time orders as proposed by the father, reflecting as they do the Single Expert’s recommendations, are orders that are in the children’s best interests.
I have no doubt that the children will report to their mother that they do not want to spend overnight time with their father. When they do so, the mother needs to reflect upon the evidence of the Single Expert. She also needs to communicate to them that she sought orders for them to spend overnight time with their father, as she viewed it as in their best interests. If she does so, then she will make the transition to overnight time smoother. If she does not, then she will only make the transition more fraught.
The Single Expert opined that the mother was motivated to want the best for her children, and considered that she could change her previously held views with the benefit of professional assistance.
The need for both parents to engage in therapy to improve their parenting dynamic and their strongly held views critical of the other is essential. The Single Expert observed:
The parents have not yet engaged in any family therapy, despite the orders requiring them to do so. It is incredulous that capable, resourceful and intelligent parents who profess to want the best for their children have not been able to organise themselves to receive appropriate, neutral professional advice and skills in the area of co-parenting. This reflects poorly on them both and indicates that they have become so consumed in the adult conflict that they have been unable to take action to improve the lives of the children.
(Report p 49 lines 1453 to 1458)
The Single Expert was clear that family therapy was for the parents and should not involve the children. The therapy was not a prerequisite to the commencement of overnight time. While the father did not propose an order, he was not opposed to one being made. I propose to make an order that the parents attend family therapy to give effect to the Single Expert’s recommendation.
I am satisfied that the Orders I make are in the children’s best interests.
I certify that the preceding one hundred and sixty-four (164) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 1 March 2024
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