Mikula & Tripp

Case [2024] FedCFamC1F 710

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Mikula & Tripp [2024] FedCFamC1F 710

File number(s): PAC 1923 of 2023
Judgment of: ANDERSON J
Date of judgment: 29 October 2024
Catchwords:

FAMILY LAW – PARENTING – With whom a child spends time - Family violence – Where the mother makes allegations of emotional dysregulation and suicidal ideation on the part of the father – Where the mother makes allegations of improper use of prescription medication - Where the Court finds that the father was the perpetrator of family violence throughout the relationship – Where the father’s actions constitute family violence in the form of coercive and controlling behaviour

FAMILY LAW – PARENTING – Unacceptable risk – Where it is the mother’s case that the father presents an unacceptable risk to the children – Where the Court finds that the father has not addressed the risks that he presents to the children
Legislation:

Australian Passports Act 2005 (Cth) s 11

Evidence Act 1995 (Cth) ss 91, 140

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61B, 61C, 61D, 61DAA, 61DAB 62B, 64B, 65AA, 65D, 65DA, 65Y, 67ZC, 68B, 69ZT, 114AB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15

Crimes (Sentencing and Procedure Act 1999 (NSW) s 10

Cases cited:

Attwood & Attwood [2022] FedCFamC1F 6

Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222

Bennett and Bennett (2001) FLC 93-088; [2001] FamCA 462

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Cotton & Cotton (1983) FLC 91-330; [1983] FamCA 18

Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

G & C [2006] FamCA 994

Hedlund v Hedlund (2021) 64 Fam LR 458; [2021] FedCFamC1A 84

Heron & Heron [2024] FedCFamC1F 465

Hickson & Matthew [2022] FedCFamC1A 161

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367

M v M (1988) 166 CLR 69; [1988] HCA 68

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

N and S and the Separate Representative (1996) FLC 92-655; [1996] FLC 92-655

Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66

O’Donnell v Reichard [1975] VR 916

Olivier & Olivier [2020] FamCA 639

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Division: Division 1 First Instance
Number of paragraphs: 258
Date of hearing: 9-11 September 2024, 20 September 2024
Place: Parramatta
Counsel for the Applicant: Ms Cantrall
Solicitor for the Applicant: Parks Family Law
Counsel for the Respondent: Ms Swart
Solicitor for the Respondent: Gale Family Law
Counsel for the Independent Children's Lawyer: Ms Hamilton
Solicitor for the Independent Children's Lawyer: Makdo Family Lawyers & Associates

ORDERS

PAC 3809 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS MIKULA

Applicant
AND:

MR TRIPP

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

29 OCTOBER 2024

THE COURT ORDERS THAT:

1.All…

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Mikula & Tripp [2024] FedCFamC1F 710
Case
[2024] FedCFamC1F 710
Decision Date

CaseChat Overview and Summary

In PAC 3809 of 2023, the Federal Circuit and Family Court of Australia considered parenting arrangements for the children of Ms Mikula and Mr Tripp. The primary issue was whether the father's history of family violence and his current conduct posed a risk to the children. The court had to determine whether the father had perpetrated family violence, whether his behaviour constituted a risk to the children, and if so, what measures were necessary to ensure the children's safety.

The court found that the father had a history of perpetrating family violence against his first wife and had continued such behaviour during his relationship with the mother. The court noted the father's coercive and controlling behaviour, including taking video recordings of the mother and children without consent, and his inability to shield the children from parental conflict. The court concluded that the father had not addressed the risks he presented to the children, and his actions constituted family violence in the form of coercive and controlling behaviour. The court found that the children's time with the father needed to be limited to ensure their safety.

The court ordered that the mother have sole parental responsibility and sole decision-making authority for major long-term issues affecting the children. The children would live with the mother, and the father's contact was to be limited to specific times, including supervised contact during therapeutic sessions. The court also imposed restrictions on the father's contact with his partner and her children until certain conditions were met. The court further ordered that the father be restrained from denigrating the mother or her family and from taking video recordings of the mother and children without their consent. The mother was permitted to take the children outside of Australia, with certain conditions attached, and the father's consent for the children's travel documents was dispensed with. The court also imposed restrictions on the parties' communication and required them to keep each other informed of any changes in their contact details.

The final orders included detailed provisions for the children's time with the father, the location of handovers, the provision of information about the children's academic progress, and the communication between the parents. The court also imposed restraints on the parties to prevent them from denigrating each other in the presence of the children and from discussing the allegations in these proceedings. The appointment of the Independent Children's Lawyer was discharged, and the court provided information about available family counselling and dispute resolution services. All other applications under Part VII of the Family Law Act 1975 were dismissed.

Orders

Orders of the court

PAC 3809 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MIKULA

Applicant

AND:

MR TRIPP

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

29 OCTOBER 2024

THE COURT ORDERS THAT:

1. All former orders in respect of the following children are discharged:

(a) Y born 2015; and

(b) Z born 2017.

2. The mother shall have sole parental responsibility for the children and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the children.

3. Within seven (7) days after making a decision about any major long-term issue for the children, the mother do advise the father in writing of her decision NOTING that the mother is not obliged to provide any reasons for her decision.

4. The children live with the mother.

5. The children spend time with the father as follows:

(a) On Sunday 3 November 2024 from 10.00 am to 1.00 pm;

(b) On Sunday 17 November 2024 from 10.00 am to 1.00 pm;

(c) On Sunday 1 December 2024 from 10.00 am to 1.00 pm;

(d) On Sunday 15 December 2024 from 10.00 am to 1.00 pm;

(e) From 10.00 am to 4.30pm on Sunday 29 December 2024 and at the same times on each alternate Sunday thereafter; and

(f) At such further or other times as may be agreed between the parties in writing.

6. That in addition to Order 5 herein, the children spend time with the father on special occasions as follows:

(a) On Father’s Day in each year from 10.00 am to 4.30 pm;

(b) On Christmas Eve in each year from 10.00 am to 4.30 pm;

(c) On Orthodox Christmas in each year from 10.00 am to 4.30 pm; and

(d) On Orthodox Easter Sunday in each year from 10.00 am to 4.30 pm.

7. It is a condition of Order 5 and Order 6 herein that the father be restrained, and an injunction be granted restraining him from bringing the children (or either of them) into contact with his partner or his partner’s children until the ninth occasion of time spending subsequent to the making of these orders being 23 February 2024.

8. The children’s time with the father be suspended on the following occasions:

(a) On Mother’s Day in each year;

(b) On Easter Sunday in each year; and

(c) On 25 December in each year.

Handovers

9. That changeovers occur at such location as may be agreed between the parties in writing or in default of agreement at the McDonald’s Restaurant located at B Street, Suburb C in the State of New South Wales.

Provision of Information

10. Each parent is:

(a) Authorised to request from any school attended by the children, or either of them, at his/her expense, copies of all school reports, school photographs, school newsletters and any other necessary information about the children's academic progress;

(b) Permitted to attend at parent-teacher interviews for each of the children provided that each parent makes his/her own separate appointment.

11. That the father be listed as the secondary emergency contact for the children at any school attended by the children.

Attendance at school events

12. That each parent be at liberty to attend at events to which parents are ordinarily invited such events to include but not be limited to Mother’s Day and Father’s Day events, end of year assemblies and end of year presentation nights.

Communication and Notification of Details

13. The mother and the father communicate as follows in relation to the children:

(a) By telephone in the case of an emergency; and

(b) By the “Our Family Wizard App” in relation to any other matters relating to the parenting arrangements prescribed by these Orders or the health, welfare and development of the children.

14. The mother and the father keep each other advised of his/her residential address and telephone number and advise the other parent of any change to these details within 48 hours of such change.

15. In the event that either child suffers an injury or accident, which requires hospitalisation then the parent with the care of the children (or either of them) shall inform the other parent as soon as practicable but in any event, within twelve (12) hours.

Restraints

16. The parties are restrained, and injunctions are granted restraining each of them from:

(a) Denigrating the other or members of the other party’s family in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so; and

(b) Discussing the allegations the subject of these proceedings in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so.

17. The father be restrained, and an injunction is hereby granted restraining him from taking any video recording of the mother or the children save and except with their express consent.

Travel

18. For the purposes of s 65Y of the Family Law Act 1975 (Cth), the mother is permitted to take the children outside of the Commonwealth of Australia.

19. Pursuant to s 11 (1)(b) of the Australian Passports Act 2005 (Cth), the mother has the sole authority to cause the children to be issued with an Australian travel document at her discretion, and that the father’s consent for such travel document/s be dispensed with.

20. That pursuant to s 11 (1)(b)(ii) of the Australian Passports Act 2005 (Cth) and these Orders, the children are permitted to travel outside the Commonwealth of Australia using an Australian travel document at the sole discretion of the mother.

21. It is a condition of Order 20 herein that:

(a) The mother provide the father with six weeks’ notice of her intention to travel outside of the Commonwealth of Australia with the children;

(b) The mother advise the father of the location where she proposes to travel with the children;

(c) The mother provide the father with copies of the children’s itinerary.

Discharge of Independent Children’s Lawyer

22. The appointment of the Independent Children’s Lawyer be discharged.

Other

23. That pursuant to s 62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

24. That pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

25. All other applications pursuant to Part VII of the Family Law Act 1975 (Cth) are dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The parties do agree that parental responsibility ought to be allocated to the mother and that the mother ought to have sole decision-making authority for major long-term issues. For reasons discussed below, and whatever the agreement between the parties, the circumstances call for an order that the mother exercise sole parental responsibility.BACKGROUND These proceedings were characterised by allegations of parental incompetence, mistrust of the other parent and allegations of abuse of the children and the mother. It was the opinion of the Single Expert that “the children have been exposed to chronic parental conflict and emotional dysregulation within the parental relationship”.[11] For reasons to be discussed, I agree with that conclusion.[11] Family Report dated 18 December 2023, paragraph 178. The mother is aged 50 years. At the time of meeting the father in March 2013,[12] the mother was employed as a professional in a company.[13] In 2018, the mother established a business.[14] She continues to operate that business.[15][12] Mother’s affidavit filed 6 September 2024, paragraph 3.[13] Mother’s affidavit filed 6 September 2024, paragraph 16.[14] Mother’s affidavit filed 6 September 2024, paragraph 21.[15] Father’s affidavit filed 17 August2024, paragraph 6. The father is aged 46 years. He is employed on a full-time basis as a manager in a company.[16][16] Father’s affidavit filed 17 August 2024, paragraph 5. At the time of meeting the mother, the father had recently separated from his first wife. Two months prior to that time, the father was charged with two offences. The father was sentenced pursuant to the Crimes (Sentencing and Procedure) Act 1999 (NSW).[17][17] Exhibit M2. The elder child is in year four and the younger child is in year one at a local public school. The mother says that the children are progressing well from an academic perspective.[18] She was not challenged with respect to this evidence. [18] Mother’s affidavit filed 6 September 2024, paragraph at 5. In 2013, the parties began living together.[19] At that time, the mother was 39 years. She fell pregnant with the elder child soon after cohabitation.[20] The mother took maternity leave for a period of three months following the birth of the elder child in 2015 but thereafter, the mother returned to paid employment whilst the father remained at home. The mother says that it made “financial sense” for the parties to structure their lives in this manner.[21] The father agrees with this evidence.[22][19] Mother’s affidavit filed 6 September 2024, paragraph 18.[20] Mother’s affidavit filed 6 September 2024, paragraph 18.[21] Mother’s affidavit filed 6 September 2024, paragraph 18.[22] Father’s affidavit filed 17 August 2024, paragraph 16. The younger child was born in 2017. Once again, the mother took maternity leave for a period of three months and returned to work thereafter whilst the father remained at home.[23] As a consequence of these arrangements, the mother concedes that the father was the children’s primary carer between 2015 and 2018.[24] The mother does not make any criticism of the father’s care of the children during this period. Indeed, the mother advised the single expert that the father “did a good job of caring for the children as infants and toddlers”.[25][23] Father’s affidavit filed 17 August 2024, paragraph at 18.[24] Mother’s affidavit filed 6 September 2024, paragraph 19.[25] Family Report dated 18 December 2023, paragraph 60.

Evidence

Evidence Before The Court

In the same manner as the father, the Independent Children’s Lawyer initially promoted the ongoing involvement of the family therapist for a period of about four months. Thereafter, and following a short period of gradually increasing time, the Independent Children’s Lawyer promoted time between the children and their father on each alternate weekend from 10.00am on Saturday to 4.30pm on Sunday. For the reasons discussed above, the Independent Children’s Lawyer abandoned the prospect of any ongoing involvement between the children and the family therapist. However, and in accordance with the terms of an email from the family therapist to the father’s solicitor received during the trial,[81] the Independent Children’s Lawyer did promote an order to the effect that the father continue to attend on the family therapist “for assistance and advice in parenting… [the children] and in improving his relationship with them”. As a standalone order, the Independent Children’s Lawyer also promoted orders that each party continue to attend on their treating psychologists. As the Full Court held in Oberlin & Infeld (2021) FLC 94-017, the Court does not have the power to make a self-standing order of this nature.[81] Exhibit ICL3.EVIDENCE The father relied upon:(a)Affidavit of the father filed on 17 August 2024;(b)Affidavit of the father’s treating specialist filed on 16 August 2024; and(c)Tendered documents.[82][82] Exhibits F1 to F10 (inclusive). The mother’s counsel and the Independent Children’s Lawyer consented to the admission into evidence of the affidavit sworn by the father’s treating specialist without the need to call the practitioner to give evidence at trial. The mother relied on:(a)Affidavit of the mother filed on 16 August 2024;(b)Affidavit of the mother’s treating psychologist filed on 16 August 2024; and(c)Tendered documents.[83][83] Exhibits M1 to M36 (inclusive). The affidavit of the mother’s treating psychologist was admitted into evidence with the consent of the father and the Independent Children’s Lawyer without the need to call the psychologist to give evidence at trial. The Court excluded all annexures to the Affidavits having regard to r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The Independent Children’s Lawyer relied on:(a)The report of the Single Expert dated 18 December 2023;(b)The addendum report of the Single Expert dated 22 August 2024; and(c)Some tendered documents.[84][84] Exhibit ICL1 to ICL3 (inclusive).PARENTING PROCEEDINGS - LEGAL PRINCIPLES Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).Parental Responsibility Parental responsibility for children is vested in their parents (s 61C(1)) but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).

Decision

Reasons for decision

No other consideration was addressed by the mother, the father or the Independent Children’s Lawyer.CONCLUSION – TIME SPENDING BETWEEN THE CHILDREN AND THEIR FATHER Regrettably, I have concluded that it is necessary for the children’s time with the father to be limited. Such an outcome is necessary to ensure the safety of the children. For the sake of clarity, I have reached such a conclusion for the following reasons:(a)The historical perpetration of family violence by the father against his first wife;(b)The perpetration of family violence by the father during the relationship such violence perpetrated against the mother and the children;(c)The father’s limited ability to accept that he engaged in family violence during the relationship. I have identified above, the inconsistency between the father’s concession under cross-examination that he did perpetrate family violence and the father’s advice to his treating psychologist in December 2023 that he was aggrieved that the Single Expert was “believing” his ex-partner;(d)The father’s inability to shield the children from parental conflict;(e)The father’s inability to consider the impact of his actions on the children for example by requiring them to attend with him at a police station on two occasions to make a report about the mother and exposing the children to either the video recordings themselves or the content of the same;(f)The coercive and controlling nature of the father’s behaviour by taking video recordings of the mother and the children;(g)The lack of information before the Court about whether the father suffers from a psychiatric disorder and, if so, whether treatment is required. As discussed, it would have been helpful in my determination of this issue if the father’s treating psychologist had been called to give evidence;(h)The father’s concession that from his perspective, the work undertaken by the children and the father together with the family therapist was in its preliminary stage;(i)The father’s expressed lack of confidence that he is able to handle the children’s behaviour;(j)The father’s concession that he requires guidance to proceed to unsupervised time, overnight stays and longer periods of time. In Cotton & Cotton (1983) FLC 91-330 (“Cotton”), Nygh J noted that it is desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:… that desirability only operates where there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.

Ratio Decidendi

Legal Principle Established

I have read the parties’ material and listened to their submissions. It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered.[86] Nor have I done so. However, every piece of evidence relied upon by the parties has been read and considered by me. [86] Whisprun Pty Ltd v Dixon (2003) 200 ALR 447.CONSIDERATION AND DETERMINATION After hearing the evidence, I formed a view that the significant issues in the case were:(a)Whether the father perpetrated family violence towards the children and the mother;(b)Whether the father has a history of family violence;(c)Whether the father abuses testosterone supplements and/or whether those testosterone supplements cause the father to be emotionally dysregulated;(d)Whether the father fails to comply with the recommendations of his treating health practitioners;(e)Whether the father presents a risk to the children by reason of his mental health;(f)Whether the father is able to engage with the children appropriately by creating and maintaining appropriate boundaries for them and shield them from parental conflict;(g)The progress of “therapeutic contact sessions” and the father’s ability to spend time with the children outside of that environment; and(h)Whether the mother’s parenting capacity would be adversely affected by an order providing for significant time between the children and their father.Family ViolenceSexual Coercion and allegations of infidelity The mother’s counsel submitted that the father engaged in a course of abusive behaviour intended to coerce the mother into having sexual intercourse with him. Although the mother says nothing about this topic in her affidavit filed on 6 September 2024, it was introduced at [101] of the report of the Single Expert wherein the expert records the following:He complained that…[the mother] was not amendable [sic] to having sex as often as he liked, and that on occasions she did agree to have sex with him, it was because of his perseverance in asking for it: he complained that…[the mother’s] face while having sex with him on these occasions was like she was “cleaning a toilet bowl”.[87][87] Family Report dated 18 December 2023, paragraph 101. The father advised the Single Expert that the parties’ lack of intimacy fuelled his suspicion that the mother was having an affair.[88] Certainly, the notes of the parties’ counsellor for the period March to April 2021 would lead any reader to conclude that the father was preoccupied with the frequency with which he would have sexual intercourse with the mother and the question about whether the mother was having an affair.[89] The notes of the counsellor are consistent with the mother’s written evidence wherein the mother says that the father accused her of “being unfaithful almost weekly”.[90] In April 2021, the father’s counsellor records that the father “continues to constantly talk about sex – he appears to be obsessed and needy, which is not going down well… [with the mother]”.[91][88] Family Report dated 18 December 2023, paragraph 102.[89] Exhibit M6.[90] Mother’s affidavit filed 6 September 2024, paragraph 31.[91] Exhibit M6.