Mikula & Tripp
[2024] FedCFamC1F 710
•29 October 2024
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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mikula
& Tripp has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).REASONS FOR JUDGMENT
ANDERSON J:
INTRODUCTION
These proceedings, brought under Part VII of the Family Law Act 1975 (Cth) (“the Act”), concern two children who are now aged nine years and seven years respectively.
The applicant is the father. By orders made with the consent of the parties and the Independent Children’s Lawyer on 5 February 2024, the children have been spending time with the father in a “supervised therapeutic setting”.[1] Such time commenced on 22 February 2024.[2]
[1] Exhibit A to the Orders made on 5 February 2024 at [2(a)].
[2] Mother’s Outline of Case Document filed on 4 September 2024, paragraph 2.
The respondent is the mother. The children live with her.
These proceedings involve a dispute about whether the children’s time with the father ought to progress to unsupervised time or whether the children’s time with the father ought to be the subject of supervision. Even if that question is answered in favour of the father, the parties do not agree the terms of any time spending arrangement.
It is the mother’s case, as expressed by her counsel’s Outline of Case Document,[3] that the father presents an unacceptable risk of harm to the children on several bases, namely, that:
(a)The father places the safety of the children and the mother in jeopardy;
(b)The father is unable to regulate his emotions and is unable to implement appropriate boundaries with the children;
(c)The father has exposed the children to conflict between the parties;
(d)The father has perpetrated psychological abuse against the mother;
(e)The father’s “extensive history of largely untreated mental health concerns” places the mother and the children at risk of harm;[4]
(f)The father’s “conduct prior to separation and following separation highlights the father’s disregard for promoting the children’s best interests and instead highlights the father’s desire to destroy the mother”;[5]
(g)The father “continues to lack insight, to the extent in which his actions continue to situate the children and mother at risk of harm”;[6] and
(h)The father has not demonstrated the ability to manage the dynamic between his two children.[7]
[3] Mother’s Outline of Case Document filed on 4 September 2024.
[4] Mother’s Outline of Case Document filed on 4 September 2024, paragraph 8.
[5] Mother’s Outline of Case Document filed on 4 September 2024, paragraph 8.
[6] Mother’s Outline of Case Document filed 4 September 2024, paragraph 10.
[7] Mother’s Outline of Case Document filed 4 September 2024, paragraph 12.
For his part, the father says that the parties’ conflict peaked in 2021 when the parties were each struggling with various issues. Particularly, the father says that he was struggling with anxiety and mental health issues, whilst the mother was overwhelmed and exhausted by the demands of her business, conflict with the maternal grandmother and the stressors associated with the Covid-19 pandemic.[8] The father says that the conflict between the parties “peaked” again at the time of separation in 2023.[9] Thereafter, it is the father’s case that that “the risk of ongoing family violence has substantially subsided” such that he does not present any risk to the mother or the children.[10]
[8] Father’s Outline of Case Document filed 4 September 2024, paragraph 8.
[9] Father’s Outline of Case Document filed 4 September 2024, paragraph 8.
[10] Father’s Outline of Case Document filed 4 September 2024, paragraph 9.
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.
Consequent to the mother commencing her own business in 2018 (supra), the mother says that she reduced the hours worked by her and that otherwise, she had the ability to work in the evenings or at times when the children were otherwise occupied.[26] This being so, the mother says that the father’s parenting responsibilities reduced.[27] This evidence is contested by the father. He says that the mother continued to work “extremely long hours” whilst he continued to care for the children.[28]
[26] Mother’s affidavit filed 6 September 2024, paragraph 21.
[27] Mother’s affidavit filed 6 September 2024, paragraph 22.
[28] Father’s affidavit filed 17 August 2024, paragraph 22.
By late 2018, the mother says that on three or four occasions per week the father’s behaviour would become erratic.[29] She also says that the father complained of experiencing a low mood. The father agrees that in November 2018, he attended on his treating general practitioner in circumstances where he was experiencing anxiety in the context of difficulties between the mother and the maternal grandmother, behavioural issues on the part of the elder child and difficulties with sleeping.[30] Notwithstanding these difficulties, the parties married in 2019.[31]
[29] Mother’s affidavit filed 6 September 2024, paragraph 23.
[30] Father’s affidavit filed 17 August 2024, paragraph 25.
[31] Father’s affidavit filed 17 August 2024, paragraph 27.
In 2020, the mother says that she learned for the first time that the father was injecting a hormone.[32] She says that the father told her he had purchased the supplement “off the internet”.[33] Three years later, the mother says that she located several syringes in the father’s home gym.[34] The father concedes that during the period 2018 to 2021 he “sourced and used [the hormone] without a prescription”.[35] At the time of trial, the father was under the care of a specialist. He continues to take doses of the hormone.[36] This topic became a focus of cross-examination by the mother’s counsel during the trial.
[32] Mother’s affidavit filed 6 September 2024, paragraph 23.
[33] Mother’s affidavit filed 6 September 2024, paragraph 29.
[34] Mother’s affidavit filed 6 September 2024, paragraph 44.
[35] Father’s affidavit filed 17 August 2024, paragraph 29.
[36] Father’s affidavit filed 17 August 2024, paragraph 30.
By 2020, it was the mother’s view that from a mental health perspective the father would benefit from returning to work. The father’s failure to do so became a source of disputation between the parties.[37] The father concedes that the relationship between the parties significantly deteriorated in 2020 albeit for reasons different to those suggested by the mother.[38]
[37] Mother’s affidavit filed 6 September 2024, paragraph 24.
[38] Father’s affidavit filed 17 August 2024, paragraph 33.
On one afternoon in mid 2020, the father collected the children from childcare. Regrettably for him, the father came upon a third party who had attempted self-harm. The father says that he tried to rescue the third party whilst briefly leaving the children in the care of a stranger. The mother deposes to the father being so affected by this event that she urged him to seek assistance from his treating general practitioner.[39] The father does not admit that he was significantly impacted by the event. He does say, however, that the mother said words to the effect of “By doing that and being a hero, you’ve ruined our marriage”.[40] This being so, I infer that at least from the mother’s perspective, the event had a negative impact on the parties’ relationship.
[39] Mother’s affidavit filed 6 September 2024, paragraph 26.
[40] Father’s affidavit filed 17 August 2024, paragraph 32.
By late 2020, it was the mother’s perception that the father’s mental health further declined. She says that the father became engaged with “online Covid conspiracy communities”.[41] The mother says that this caused her frustration because at the time, she was working with a company involved in treatments for covid. The father did not address these matters in his trial affidavit. In any event, and at about the same time, the mother says that the father began to accuse her of having an affair.[42] The father agrees that he held such a view.[43]
[41] Mother’s affidavit filed 6 September 2024, paragraph 27.
[42] Mother’s affidavit filed 6 September 2024, paragraph 30.
[43] Father’s affidavit filed 17 August 2024, paragraph 33(g).
By 2021, it was the mother’s observation that the father “was not coping”.[44] The father was referred to a psychiatrist by his treating general practitioner in February 2021.[45] At about the same time, the parties commenced relationship counselling.[46]
[44] Mother’s affidavit filed 6 September 2024, paragraph 31.
[45] Mother’s affidavit filed 6 September 2024, paragraph 32; Father’s affidavit filed 17 August 2024, paragraph 37.
[46] Father’s affidavit filed 17 August 2024, paragraph 34.
It was also in 2021 that the father learned that the mother had opened a bank account in her own name. This topic became a source of disputation between the parties causing them to have a verbal altercation at the bank.[47]
[47] Mother’s affidavit filed 6 September 2024, paragraph 33.
In the same month, the mother says that the father attended at the workplace of the maternal uncle and threatened to kill himself.[48] On learning the same, the mother made an enquiry of the father as to his safety. The mother says that the father responded by saying “You couldn’t care less if you found me hanging off the balcony”.[49] The father does not address this topic in his trial affidavit nor was he cross-examined in relation to the same.
[48] Family Report dated 18 December 2023, paragraph 47.
[49] Mother’s affidavit filed 6 September 2024, paragraph 35.
In March 2021, the father advised the mother by SMS text message that he wanted to separate.[50] Having received that message, the mother provided the father with the passcode to her mobile telephone so that the father could check its content at any time.[51] The mother says that she did so in the face of “continued accusations of infidelity”.[52]
[50] Mother’s affidavit filed 6 September 2024, paragraph 38.
[51] Mother’s affidavit filed 6 September 2024, paragraph 39.
[52] Mother’s affidavit filed 6 September 2024, paragraph 39.
In mid-2022, the parties argued about the mother’s attendance at a conference, which she was due to attend the following month. The mother says that she proposed sharing a villa with a homosexual man. She says that between two dates in mid-2022, the father followed her around the house on a constant basis and/or texted her making accusations that the mother was having an affair. The father also threatened to contact the director of human resources of the company for which the mother was then working.[53] When asked by the mother’s counsel whether he considered his behaviour to be “coercive and controlling” the father responded by saying that he should have ended his relationship with the mother at that juncture.
[53] Mother’s affidavit filed 6 September 2024, paragraph 40.
By the evening of the second date in mid-2022, and because of the father’s ongoing accusations, the mother says that she was “exhausted and upset and afraid”. She says that she sat on the floor of the study with the door ajar whilst the father verbally abused her. The mother then hit herself on the head and cried.[54] The father recorded the mother’s behaviour using his mobile telephone. As a consequence, the mother says that she kicked the father and struck him trying to knock the phone out of his hand.[55] The father later said that he would make a report to police so that “[e]veryone will see what you are like”.[56] The father did indeed drive to a police station together with the children on that evening in mid-2022, but he did not make a report.[57]
[54] Mother’s affidavit filed 6 September 2024, paragraph 41.
[55] Mother’s affidavit filed 6 September 2024, paragraph 41.
[56] Mother’s affidavit filed 6 September 2024, paragraph 41.
[57] Father’s affidavit filed 17 August 2024, paragraph 39(g)(iv); Mother’s affidavit filed 6 September 2024, paragraph 42.
The father’s recording of the mother in mid-2022 was one example of the father doing so. As a consequence of orders made by a Senior Judicial Registrar on 9 June 2023, the Court learned that the father had taken no less than thirty videos of the mother and/or the children during the period August 2022 to April 2023.
The parties separated on 19 March 2023 under the same roof.[58] The following day, the mother says that the father and the children returned home after school. She observed the elder child to be in a distressed state saying words to the effect “I don’t want Dad to be near me. Get him away from me”.[59] Despite the distress of the elder child, the children went with the father to a sports lesson. Whilst at the sports lesson, the father sent a text message to the mother in the following terms:
I have just spoken to [Suburb D] Police. If you want to play dirty I will. They have advised me that with that video of you assaulting me that I have every right to press charges…I have had enough of you…I promise you I will bring everything to the fight. All those videos of you losing your mind everything…Then let the courts decide who is the most fit parent…It will be as dirty as you want it to be. But be warned once we start there is no taking back what gets produced as evidence.[60]
[58] Mother’s affidavit filed 6 September 2024, paragraph 6.
[59] Mother’s affidavit filed 6 September 2024, paragraph 46.
[60] Mother’s affidavit filed 6 September 2024, paragraph 46.
The father did not challenge that he sent a message to the mother in these terms and admits that he “conducted…[himself] in a way that I now deeply regret”.[61]
[61] Father’s affidavit filed 17 August 2024, paragraph 44.
Three days later, the father attended at the residence of the maternal grandmother. The latter reported to the mother that the father arrived at her residence together with the children asserting that the mother had a mental health disorder and that the mother was responsible for the parties’ separation. The maternal grandmother reported that the elder child was crying and asking his father to stop.[62] The father agreed in his oral evidence that the elder child was distressed.
[62] Mother’s affidavit filed 6 September 2024, paragraph 47.
In early 2023, the mother says that she met a friend for lunch. During that lunch, the mother received a text message from the father, which read as follows:
Not even 10 mins after I told you we 're 100% done? You 're out having “business expense" lunches with someone? Didn't take you long? and No more being nice ... And if this becomes a problem for you then maybe you should have thought about all the psychological pain you've inflicted on me over the years?[63]
[63] Mother’s affidavit filed 6 September 2024, paragraph 48.
Later that same day the father sent a further text message to the mother in the following terms:
And if you think my text [sic] are coming across as aggressive ... Well too bad… You might end up with a lot of explaining to do... if some of this dirty laundry see 's [sic] the light of day. And if you 're really unlucky... A criminal record.[64]
[64] Mother’s affidavit filed 6 September 2024, paragraph 48.
The father did not dispute that he sent messages to the mother in the terms described above.
The next day, the parties had an argument in the presence of the children whilst travelling to a birthday party. The mother says that the father was discussing the division of the parties’ assets.[65] The father agrees that the parties had an argument.[66] The dispute between the parties escalated across the course of the day such that by the evening the mother attended at a police station to report her concerns about the father’s behaviour.[67] On the same day, the father attended at a police station and made a report about the mother assaulting him six months earlier in mid-2022.[68] The mother was charged and an Apprehended Domestic Violence Order was put in place. That order did not prohibit contact between the parties.[69] The mother was convicted, but a conviction was not recorded.[70]
[65] Mother’s affidavit filed 6 September 2024, paragraph 49.
[66] Father’s affidavit filed 17 August 2024, paragraph 45.
[67] Mother’s affidavit filed 6 September 2024, paragraph 50.
[68] Father’s affidavit filed 17 August 2024, paragraph 45.
[69] Father’s affidavit filed 17 August 2024, paragraph 50.
[70] Exhibit M8.
On Easter Thursday 2023, the elder child in a distressed state again asked the mother to “Get dad out of this house now. Get him out”. The father then suggested to the elder child that his mother was the cause of his distress. The elder child responded by saying:
Mum’s doing nothing. It is your fault. You kill me, You kill me. I am done. I can’t live.[71]
[71] Mother’s affidavit filed 6 September 2024, paragraph 55.
Later, the mother says that the elder child held her, cried and said “every time you go to work you don’t see what happens to me. You have to stay home and watch what he does to me. If you were me, you would hate what he does”.[72] The father again recorded the ordeal. He also called police who took no action.
[72] Mother’s affidavit filed 6 September 2024, paragraph 55.
In April 2023, the elder child was referred by the E Health Service to the F Hospital for an urgent assessment. He was not diagnosed with any illness. Instead, it was the view of the attending psychiatrist that the elder child was suffering from stressors associated with the “situation at home”.[73]
[73] Mother’s affidavit filed 6 September 2024, paragraph 59.
In April 2023, the father again attended at the residence of the maternal grandmother together with the children. On that occasion, the father tried to show the maternal grandmother the video footage taken by him in mid-2022. In his oral evidence the father agreed that he did so but denied that the children overheard the discussion, which he had with the maternal grandmother.
The mother filed proceedings in Division 2 of this Court on 18 April 2023. That same afternoon, the elder child became upset with the father and the father again recorded him.[74]
[74] Mother’s affidavit filed 6 September 2024, paragraph 66.
The next day, the mother collected the children from vacation care and moved into temporary accommodation.[75]
[75] Mother’s affidavit filed 6 September 2024, paragraph 67.
On 9 May 2023, the matter was listed before a Judicial Registrar. At that time, and with the consent of the parties, the Court made an order that the children spend unsupervised time with the father from 3.00pm to 6.00pm each Tuesday and Thursday and each Friday from after school until 6.00pm on Saturday.[76]
[76] Order 3 of the Orders made on 9 May 2023.
The competing applications were listed for an Interim Defended Hearing on 6 June 2023. The presiding Senior Judicial Registrar discharged the consent orders and made an order to the effect that the children spend supervised time with the father on three occasions each week. Despite the terms of the order, and until early January 2024, supervised time occurred each Saturday only for a period of three hours.[77]
[77] Mother’s affidavit filed 6 September 2024, paragraph 11.
On 18 December 2023, the Single Expert engaged by the parties published her first Family Report. The Single Expert recommended that supervised time cease immediately and be replaced with therapeutic contact sessions to be facilitated by a family therapist. The Single Expert’s recommendations were implemented by way of Orders made on 5 February 2024 with the consent of the parties and the Independent Children’s Lawyer.
The family therapist engaged by the parties facilitated thirteen “therapeutic contact sessions” between February 2023 and July 2024.[78]
[78] Mother’s affidavit filed 6 September 2024, paragraphs 13-14.
It is against this background, that the parties find themselves before the Court.
COMPETING PROPOSALS
The father consents to an order that the mother have sole parental responsibility for the children and sole decision-making authority in respect of major long-term issues. The father did, however, seek an order that within seven days of making any decision with respect to a major long-term issue for the children, the mother advise the father in writing of the decision. The mother opposed the making of such an order.
By his (Amended) Response to Initiating Application filed on 29 January 2024, the father sought orders to the effect that he spend four nights per fortnight with the children and half of each school holiday period. By his Outline of Case Document filed on 4 September 2024, however, the father promoted the continuation of “therapeutic contact” supervised by the family therapist until mid-December 2024. Thereafter, and after a period of gradually increasing time, the father promoted an outcome whereby he spend three nights per fortnight with the children during all school terms and school holidays.[79]
[79] Father’s Outline of Case Document filed 4 September 2024, Minute of Proposed Orders
The father’s proposal was thwarted when during the trial, the family therapist terminated his involvement with the family on the basis that “ongoing sessions in the same format that we have utilised to date is unlikely to be beneficial for all involved parties”. The family therapist also expressed a view that the sessions were leaving the elder child “particularly vulnerable”.[80] The catalyst for the family therapist’s decision was an incident involving the elder child at the therapist’s office in September 2024. I discuss this incident below.
[80] Exhibit ICL2, p.2.
By the conclusion of the trial, the father simply promoted time spending arrangements on a graduating basis culminating in an outcome whereby he spends three nights per fortnight with the children during school term and school holiday periods.
The mother by her counsel’s Case Outline Document promoted two alternate outcomes. If I find that the father presents as an unacceptable risk to the children, then the mother promotes six occasions of supervised time per annum between the children and the father with the requirement for supervision to be discharged once the younger child commences high school. If I do not find that the father presents as an unacceptable risk to the children, then the mother promotes two hours on the first Saturday of each month with such time to occur in a public place.
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).
When an order is made allocating parental responsibility for a child or children in relation to “major long-term issues” to more than one person, the order may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues (s 61D(3)). The Act defines “major long-term issues” to include those such as the child’s education, religion, culture, health, name, and changed living arrangements (s 4(1)) and defines what “joint decision-making” requires in respect of such issues (s 61DAA). A person allocated with parental responsibility for a child need not be consulted by another person in respect of minor decisions made for the child which fall outside “major long-term issues” (s 61DAB).
Best interests of the child
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC). The six considerations referred to in s 60CC(2) are non-hierarchical. The Court is obliged to consider:
(a)arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child;
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or will have parental responsibility to provide for the child’s needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and
(f)anything else that is relevant to the particular circumstances of the child.
When considering the arrangements, which would promote the safety of the child and each person who has the care of the child, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. Examples of such behaviour include assault, sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage or destruction of property, unreasonably withholding financial support needed to meet reasonable living expenses of the family member or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support, preventing the family member from making or keeping connection with his or her family or friends, or unlawfully depriving the family member from his or her liberty.
Section 4AB(3) and s 4AB(4) make it clear that children are to be regarded as exposed to family violence either through direct sensory perception of violent action or such perception of consequences of violent action.
As the facts referred to above make plan, this is a case about risk.
Where ultimately the Court’s focus is on formulating orders which attend to the child’s best interests, the Court is required to make findings of fact. The standard of proof is one of “on the balance of probabilities” consistent with s 140 of the Evidence Act 1995 (Cth) (“Evidence Act”), which provides:
(1)In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.[85]
(2)Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
[85] Briginshaw v Briginshaw (1938) 60 CLR 336.
A party making an assertion of fact has an onus to prove that fact on the balance of probabilities although the task for the Court ultimately remains one of weighing and balancing the probity of evidence towards a determination of the child’s best interests.
The mother in this case invites me to make a finding that the father presents an unacceptable risk of harm to the children. When considering this question, I am mindful of the Full Court’s decision in Isles & Nelissen (2022) FLC 94-092 (“Isles”), which summarised the authorities on unacceptable risk since M v M (1988) 166 CLR 69 (“M v M”). The Full Court said that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.
The five judges of the Full Court also said of the decision in N and S and the Separate Representative (1996) FLC 92-655 as follows:
12.Fogarty J stated it is necessary for a trial judge to give real and substantial consideration to the facts of the case and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child (at 82,713-82,714) and, furthermore, the qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm (at 82,714)...
The Full Court at [35] went on to quote Tree J in Bant v Clayton (2015) 53 Fam LR 621:
171.Risk assessment involves determining firstly, the degree of the likelihood of the postulated event, and secondly, the prospect and magnitude of harm that may flow if the event occurs. The weighing of those two considerations – even accepting they may be imprecisely expressed within parameters – will inform whether the risk is adjudged to be acceptable or not. However that conclusion cannot be made in the abstract.
The Court agreed with and adopted Austin J’s judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter [2007] FamCA 350; (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
In Hickson & Matthew [2022] FedCFamC1A 161, Deputy Chief Justice McClelland said this of Justice Austin’s analysis at [39]:
39.Additionally and relevantly for the purpose of this appeal, I would expand upon that insightful analysis by Austin J with the following guidance that emerges from authorities:
(1)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A[1998] FamCA 25; (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
(2)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
(3)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page[2007] FamCA 1235; (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(4)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”
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 Violence
Sexual 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.
On cross-examination, the father agreed that if he did not initiate sex with the mother then it would not have happened. He agreed with a proposition put by the mother’s counsel that he “badgered” the mother to have sex with him and that he “badgered” the mother in relation to his suspicion that she was having an affair.
As discussed above, and in mid-2022, the parties argued about the mother’s attendance at a conference, which she was due to attend the following month. The mother says that she proposed sharing a villa with a homosexual man. She says that between two dates in mid-2022, the father followed her around the house on a constant basis and/or texted her making accusations that the mother was having an affair. The father also threatened to contact the director of human resources of the company for which the mother was then working.[92] The mother under cross-examination said that she found the father’s behaviour to be “highly distressing” and that she did not know how to “placate” the father or stop him from arguing in front of the children. I accept the mother’s evidence. My acceptance of the same is supported by the father’s own admission that he “badgered” the mother in relation to his suspicion that the mother was having an affair. I also find that the father by his behaviour sought to dominate the mother and control her.
[92] Mother’s affidavit filed 6 September 2024, paragraph 40.
In addition to the matters described above, I also note that the Single Expert records the following with respect to her interview of the mother:
…her account suggested that… [the father’s] alleged emotional abuse extended into the sexual domain. Specifically, she recalled that… [the father] held a belief that she needed to have sex with him every day “in order for a man to feel good about himself”. She reportedly declined sex with… [the father] on many occasions.
…
Despite… [the mother’s] apparently clear indications that she did not want to have sex… [the father] reportedly belligerently pestered her for sex. She stated that… [the father] additionally pressured her to engage in unwanted sex acts. She stated that she declined these, however, to do so reportedly caused her distress and involved a great deal of effort to continue engaging with… [the father]. She stated that the father “kept insisting and didn’t take no for an answer”, such that on many occasions she acquiesced and had sex with him to curtail further arguments.[93]
[93] Family Report dated 18 December 2023, paragraph 48.
The fact that the mother on occasion felt compelled to have sex with the father “to curtail further arguments” is another factor, which I bring to account when finding that the father sought to dominate the mother and accordingly, to control her.
In his oral evidence, the father accepted that his constant harassment of the mother to coerce her to have sex with him constituted family violence. He says that he came to a realisation that he perpetrated family violence during sessions with his psychologist between June and October 2023. The mother’s counsel urged me to adopt caution when considering the accuracy of this assertion. I agree that such caution is warranted in circumstances where a few weeks after the father attended on the Single Expert for interviews in December 2023, the father’s treating psychologist records the following:
Had interview with court psychologist – initially felt positive in first interview but described second conversation during play observation as less positive and feels based on the questions that he was asked that his fear had come true and the psychologist was “believing” his ex-partner.[94]
[94] Exhibit M24.
The father did not challenge the accuracy of the note taken by his treating psychologist in December 2023 under cross-examination. The note identifies the father’s disappointment that the Single Expert appeared to have believed the truth of the mother’s complaints against the father. I find that the father would not have been so disappointed if he had by that juncture, accepted that he had perpetrated family violence during the relationship.
It should be accepted that the definition of family violence encompasses behaviours that, absent context may appear innocuous, but in context may be examples of coercion or control. However, the mere assertion that the conduct has the quality of being coercive or controlling does not make it so.[95]
[95] Olivier & Olivier [2020] FamCA 639.
In this case, the father conceded during his oral evidence that his constant harassment of the mother coercing her to have sex with him constituted family violence. Even if the father had not made that concession, I find that the father by his constant demands of the mother to have sex did perpetrate family violence. I also find that the father’s constant accusations to the effect that the mother was having an affair constituted family violence. I am fortified in that view by the content of an SMS Text Message, which the father sent the mother in February 2021. The text message read as follows:
Why don’t you just go and get a hotel room and go visit someone. Makes no difference to me. You run off goodbye. My brain doesn’t care where you are, you’re not here with me and your family it doesn’t matter where you are. You may as well be with whoever you want cause that’s where my anxiety will take me and worse. Thank you for sending me backwards in my progress on trusting you. Seems like I’m wasting my time and killing my brain cells with Valium for no reason. You can stick that security guard where you won’t let me go. Have fun and goodbye.[96]
[96] Exhibit M4.
The father conceded under cross-examination that the message may have caused the mother to be fearful and that the message was one, which denigrated the mother and was also “denigrating in a sexual way”.[97]
[97] This proposition was put by the mother’s counsel to the father whilst cross-examining the father
Financial Autonomy and events of February 2021
The father was cross-examined extensively in relation to:
(a)The father’s failure to return to work in 2020; and
(b)The events of February 2021 at which time the mother says that the father demanded that she attend at a bank branch with him to obtain a printout of an account statement.
With respect to the first topic, I am unable to find that the father’s failure to return to work in 2020 constitutes family violence within the meaning of s 4AB(1) of the Act. As discussed above, it was the mother’s view by 2020 that the father would benefit from a mental health perspective by returning to work. The father’s failure to do so became a source of disputation between the parties and a focus of cross-examination by each of the parties’ counsel.[98] Under cross-examination, the mother gave evidence that it had been agreed between the parties that the father would return to work when the younger child reached three years of age in 2020. The father denied that allegation. The mother also said in her oral evidence that she “wanted a break” but the father “insisted I work because he wanted to stay at home”. Again, the father denied that allegation.
[98] Mother’s affidavit filed 6 September 2024, paragraph 24.
The parties agreed and I accordingly find that the parties did have an agreement to the effect that until such time as the younger child attained three years of age, the father would care for the children whilst the mother earned an income. I find that this arrangement was of importance to the mother understanding her advice to the Single Expert that “her main parenting strength is financial security due to the stable circumstances and opportunities it creates for the children”.[99] There is insufficient evidence, however, to enable me to make a finding that the father deliberately breached an agreement to return to work in 2020 or that his failure to do so constituted family violence. Given the mother’s emphasis on financial security (supra) I expect that the mother would have continued to work on a full-time basis in any event. I do find, however, that the father’s failure to return to work in 2020 became a source of disputation between the parties. The mother’s oral evidence made it clear to me that she is very embittered as a consequence of a perceived breach of an agreement between the parties.
[99] Family Report dated 18 December 2023, paragraph 59.
With respect to the second topic, the mother says that in February 2021, the father became aware that she had opened an account at a financial institution in the mother’s sole name. The mother gave oral evidence that she opened the account to “protect” herself given the deteriorating nature of the parties’ relationship. However, the mother says that she closed the account after a few days only as she was afraid of the father’s reaction “if her ever found out”.[100]
[100] Mother’s affidavit filed 6 September 2024, paragraph 33.
As events unfolded, there was merit to the mother’s concern. She says that she was working on a morning in February 2021 when the father contacted her and demanded that she “immediately attend [G Bank] with him to obtain a printout of the account statement”. On attendance at the bank, the mother says that the father shouted at her and accused her of infidelity in the presence of the bank manager.[101] The mother says that the father’s behaviour made her fearful of him,[102] and that thereafter, the father referred to the existence of the account as “evidence” of her infidelity.[103]
[101] Mother’s affidavit filed 6 September 2024, paragraph 33.
[102] Mother’s affidavit filed 6 September 2024, paragraph 33.
[103] Mother’s affidavit filed 6 September 2024, paragraph 33.
During his oral evidence, the father said that he “wanted answers as to what [the mother] was hiding”. I infer by reference to my discussion of the father’s behaviour under the heading “Sexual Coercion and allegations of infidelity” that the father must have expected the account statement to reveal information, which supported his belief that the mother was having an affair.
Initially, and in his oral evidence, the father said that he was asked by the bank manager “to leave the little room” where the parties and the bank manager had been discussing the existence of the mother’s bank account. He denied, however, that he was upset. Later in his oral evidence, the mother’s counsel put to the husband that on the same day as the visit to the bank, the father attended on his treating general practitioner. The notes of that surgery consultation among other things read as follows:
…big scene at the bank today – he was trying to investigate where some money had gone to…paranoid that his wife hiding money from him – and his wife came in and big scene… [the father] was asked to leave the bank – very embarrassed.[104]
[104] Exhibit M3, p.1.
The notes also record that as at February 2021, it was the father’s own view that he had “quite a lot of anger inside”.[105]
[105] Exhibit M3, p.1.
Insofar as there is a discrepancy between the father’s oral evidence and his self-reporting to his treating general practitioner in February 2021, I prefer the contemporaneous record of the treating general practitioner. The father did not question the accuracy of that document and in fact, agreed under cross-examination that he would have been “very honest” with his treating general practitioner. This being so, I find that the general practitioner’s record accurately reflects what occurred at the bank branch that day. It is consistent with the mother’s written evidence. That is, having demanded that the mother stop work and accompany him to the bank, the father in the presence of third parties made a “big scene” such behaviour fuelled by paranoia that the mother was having an affair. I arrive at such conclusion by reference to the mother’s evidence, which I accept, that in the days following the attendance at the bank branch, the father referred to the existence of the mother’s bank statement as “evidence” of her infidelity (supra).[106]
[106] Mother’s affidavit filed 6 September 2024, paragraph 33.
The father conceded under cross-examination that his behaviour in February 2021 constituted controlling conduct and that such conduct constituted family violence. Even if the father had not made that concession, I would have made such a finding. I make this finding because the father was making it clear by his actions that under no circumstance was the mother permitted to maintain a bank account absent his knowledge and/or consent. I also accept the mother’s evidence that the father’s behaviour caused her to be fearful. I am fortified in making this finding by the father’s own concession that he was asked to leave the bank. It defies human experience that the father would have been asked to leave the bank if his behaviour was anything other than argumentative, inappropriate and/or aggressive. The notes of the treating general practitioner as described above also support such a finding.
Control of the mother’s mobile telephone
On 4 March 2021, the father advised the mother by SMS text message that he wanted to separate.[107] Having received that message, and in the context of the father’s ongoing accusation that the mother was having an affair,[108] the mother provided the father with the passcode to her mobile telephone.
[107] Mother’s affidavit filed 6 September 2024, paragraph 38.
[108] Mother’s affidavit filed 6 September 2024, paragraph 39.
I find that the mother gave the father the passcode to her mobile telephone in circumstances where the father continued to insult and denigrate the mother by making derisory comments to the effect that she was having an affair. The father conceded under cross-examination that “to some degree” the provision of the mobile telephone passcode to him was as a consequence of family violence perpetrated by him. I agree that this is the only sensible conclusion. Particularly, I find that the mother must have felt compelled to provide the father with her passcode in the face of regular accusations over a prolonged period of time that she was having an affair. The provision of the passcode is also consistent with the mother’s advice to the Single Expert that she would go to great efforts to assuage the father by taking steps such as “providing her receipts to prove her whereabouts”.[109] On one occasion, the mother even provided the father with “local council CCTV footage to prove that she had met a girlfriend for a meal”.[110] The mere fact that the mother had to take these actions supports a finding that the mother felt controlled and intimidated by the father.
[109] Family Report dated 18 December 2023, paragraph 45.
[110] Family Report dated 18 December 2023, paragraph 45.
Recordings of the mother and the children
As identified above, the father took video recordings of the mother and/or the children on no less than thirty occasions during the period August 2022 to April 2023. On the father’s written evidence, he began making video recordings of arguments between the parties in early 2021.[111]
[111] Father’s affidavit filed 17 August 2024, paragraph 39(c).
The father described the content of some recordings in his Affidavit filed on 30 June 2023. The father was cross-examined in relation to that document. He conceded that at least five of the videos showed the mother in a partially unclothed state. He also conceded that in many of the videos the mother presented in an emotionally dysregulated manner. By his affidavit, the father said that he took some of the videos to demonstrate that he was making efforts to “shield” the children from the conflict between the parties and to record “positive interactions” between the children and the father. I reject that evidence. I do so by reference to the father’s text messages to the mother wherein the father makes it clear that he kept the recordings so that he might show third parties “videos of you losing your mind everything”,[112] and to otherwise ensure that the parties’ “dirty laundry” saw the light of day.[113] It was by its very nature behaviour of a controlling and dominating kind.
[112] Mother’s affidavit filed 6 September 2024, paragraph 46.
[113] Mother’s affidavit filed 6 September 2024, paragraph 48.
The father was cross-examined extensively in relation to a video recording taken by him in mid-2022. The father produced the video to police seven months later, and his decision to do so, led to the mother being charged. The video was not admitted into evidence.
The father was also cross-examined extensively in relation to a video taken by him in early 2023 being a video dated April 2023. The recording was thirty-one minutes in duration.[114] A two-minute video taken by the father a short time later was also admitted into evidence.[115]
[114] Mother’s affidavit filed 6 September 2024, paragraphs 55–56.
[115] Exhibit M33.
Video recording dated mid-2022
During the criminal proceedings with respect to the assault of the father by the mother, the father conceded that the parties had been arguing about the possibility that the mother would be sharing a villa with a male colleague. Indeed, on the day of the alleged assault, the father sent the mother a lengthy text message setting out his opposition to such a proposal.[116]
[116] Exhibit M9.
The mother’s counsel tendered the transcript and Judgment of the Local Court delivered in mid-2023.[117] The document was marked as an exhibit with the consent of the father’s counsel and the Independent Children’s Lawyer. Neither the father’s counsel nor the Independent Children’s Lawyer argued that the evidence ought to be excluded by operation of s 91 of the Evidence Act. In any event, that argument was not open to either of them given that the father did not seek to apply the provisions of s 69ZT(3) of the Act.
[117] Exhibit M8.
The presiding Magistrate reviewed the video recording taken by the father in mid-2022. When dismissing the charge, the presiding Judge said as follows:
I make an observation of the complainant in giving his evidence, that he was very verbose, that he was in his manner quite aggressive in his descriptions of what he thought was and was not appropriate for a husband to put up with. How he presented his opinions about his wife’s behaviour, I found to be very accusatory, very controlling. I thought that he had or demonstrated no insight into his own behaviour at all. He had absolutely no capacity to sit back and look at how his behaviour may have had an effect on his wife.
…
If I specifically deal with that event […], the fact that it had been, I think she said at least five hours of the complainant emotionally abusing her, attacking her, threatening her. She said “He baited me and here I am”.
…
In her evidence-in-chief she says that he kept going and going, that the day had started. She said that she had already agreed that she was not going [to the conference] and that he sent her messages. He did agree that he said that he had [the phone numbers of people at the mother’s work]. She said she was worried that things would escalate, they he would call the people, her bosses at work, and humiliate her. She said she was sitting on the floor crying and that he did not leave her alone and came into the room to keep the argument going, where she had tried to retreat’.[118]
[118] Exhibit M8, p.43-44.
The presiding Magistrate went on to find that the father’s actions were “completely attempting to be coercive and controlling and that he was in the habit of behaving like that, that he had done it leading up to that offence”.[119]
[119] Exhibit M8, p.44.
I find that the narrative of events referred to by the presiding Magistrate are consistent with the evidence, which the mother gives by her trial affidavit to the effect that the father “[f]rom late afternoon on [a day in mid-2022] until about 4.30pm [a few days later]… followed me around the house, or texted me, accusing me of being unfaithful”.[120] I also find that the father’s decision to record the mother in mid-2022 is consistent with my earlier finding, namely, that the father made accusations on an ad nauseam basis to the effect that the mother was having an affair. The father has conceded that such conduct amounted to family violence. Even if he did not do so, I have already found that the father’s behaviour by continually making allegations against the mother was behaviour of a controlling and dominating nature.
[120] Mother’s affidavit filed 6 September 2024, paragraph 40-41, NOTING that although references to mid-2023 are contained therein, such references are erroneous. By reference to the first and third sentences of paragraph 40, and by reference to the chronology generally, the events referred to by the mother occurred in mid-2022.
I also find that the act of taking a video recording is an act of family violence. It was an act, which was intimidating and caused the mother to be fearful. Indeed, the Single Expert records the following:
… [the mother’s] account indicated that she felt physically intimidated by… [the father] at times. She explained that if she did not give… [the father] the answer he wanted, she would be “backed into a corner” by… [the father] who would invade her personal space and “whip out the camera” to film her in a distressed state.[121]
[121] Family Report dated 18 December 2023, paragraph 46.
I accept the conclusion of the Single Expert that the father’s behaviour caused the mother to feel controlled and overwhelmed.[122]
[122] Family Report dated 18 December 2023, paragraph 192.
Video recording dated early 2023
The video recording taken by the father in early 2023 was thirty-one minutes on length. The video was disturbing to watch.
On the day in question, the father says that the elder child locked himself in his parents’ bedroom “screaming, hysterical…saying a lot of adult-like things…coached language…I videoed the whole thing”.[123] On this occasion, the father also called police and an ambulance having formed a view that his son required “an ambulance and a sedative”.[124] It is concerning that the father considered that third party assistance was required. As discussed below, I find that it was the father’s behaviour, which heightened the elder child’s anxiety.
[123] Family Report dated 18 December 2023, paragraph 107.
[124] Family Report dated 18 December 2023, paragraph 107.
The video recording reveals the following:
(a)The mother and the children were sitting on the floor of a bathroom. The elder child told the Single Expert that “I locked myself in the biggest room in the house. Dad got in the room. It was hard for me to get out. I just locked myself in the bathroom with mum”;[125]
(b)The elder child was in a state of distress. He tried to close the door of the bathroom to stop the father recording him. The child made a request on at least four occasions for the father to stop recording him. The father continued to do so;
(c)The father criticised the mother in front of the children and talked about the financial position of the parties;
(d)The father told the elder child that he had called police due to the child’s distress. The elder child became very distressed at this comment, expressing concern that police would “take away” his mother. As will be discussed later in this judgment, the father has attended a police station on at least two occasions together with the children to make complaints about the mother’s behaviour. This being so, I find that the elder child’s reaction to the father’s suggestion that he would call police is understandable;
(e)When the elder child started screaming, the father did not put down his mobile telephone to comfort the child. Instead, the father continued to record the children and the mother;
(f)Despite the elder child demonstrating significant dysregulation, the father offered comfort to the younger child by suggesting that he would take her to the shop and buy her “whatever you want chocolate wise”. The father’s offer to the younger child in the face of the elder child’s distress highlights a concern expressed by the Single Expert. Specifically, the Single Expert expressed concern that the elder child “feels repeatedly rejected and misunderstood by his father, which is compounded by the favouritism” that the father shows to the younger child;[126] and
(g)Towards the conclusion of the video the father asks the younger child for a hug. I agree with the opinion of the Single Expert that this demonstrates the child meeting the father’s emotional needs whereas it should be the other way around.[127]
[125] Family Report dated 18 December 2023, paragraph 136.
[126] Family Report dated 18 December 2023, paragraph 181.
[127] Family Report dated 18 December 2023, paragraph 178.
On my observation of the video, the father persisted with the recording of the children and the mother in the face of distress on the part of the elder child and several requests by that child to stop recording him. It was also my observation of the video that the father’s persistence simply increased the anxiety and dysregulation of the elder child. The father asked the elder child questions to provoke a reaction. His decision to do so causes me to agree with the opinion of the Single Expert to the effect that the father’s “lack of empathy serves to exacerbate… [the elder child’s] responses”.[128]
[128] Family Report dated 18 December 2023, paragraph 181.
Further, by discussing the parties’ financial position in the presence of the children, I agree with the Single Expert’s opinion that the father invited the children into the parental conflict.[129] The father should have done the opposite.
[129] Family Report dated 18 December 2023, paragraph 196(a).
The father’s suggestion to the elder child that he would call police and in fact did so was astonishing given that in early 2023, the father attended at a police station together with the children for the sole purpose of making a report to police about being assaulted by the mother seven months earlier.[130] There is no reason why the father ought to have required the children to accompany him to a police station. As discussed earlier, I find that the father’s decision to take the children with him instilled in the elder child’s mind that “police would take away” his mother.
[130] Father’s affidavit filed 17 August 2024, paragraph 45.
My observations of the father’s behaviour in early 2023 cause me to disagree with his assertion to the Single Expert that he has a “very caring” parenting style.[131] In my view, a caring parent who is attuned to his/her child’s needs would not have acted in the manner demonstrated by the recording. It is surprising to me that the father advised the Single Expert that the mother “used the incident [of early 2023] for her self-gain”.[132] There is no basis for such an assertion. In fact, the mother barely spoke during the footage of thirty-one minutes. Her behaviour was consistent with her advice to the Single Expert that the father’s behaviour “forced her to withdraw and be less of a parent than she wished to be”.[133]
[131] Family Report dated 18 December 2023, paragraph 111.
[132] Family Report dated 18 December 2023, paragraph 107.
[133] Family Report dated 18 December 2023, paragraph 177.
I find that the father’s behaviour in early 2023 was coercive and controlling. I make this finding because as discussed, the father perpetuated the event and escalated the elder child’s distress when he could have simply walked away. His behaviour was coercive and controlling in the sense that no family member was able to leave the bathroom during the saga. I also find that the father’s actions as demonstrated by the video footage were intimidatory and caused the elder child’s anxiety and distress in particular to escalate.
Video recording dated April 2023
The mother says that on an evening in April 2023, the elder child again became upset with his father and “threw things around the room and screamed at… [the father] to get away from him”.[134]
[134] Mother’s affidavit filed 6 September 2024, paragraph 66.
I have reviewed the video recording. It depicts a room in which couches and chairs have been thrown upside down. The mother says that the elder child did so, and the father did not refute it. During the video recording, the father asks the elder child “Why are you hitting me?” on several occasions. In response, the elder child says, "Shut your mouth, Shut your mouth”. The child then says, “grab that phone, grab that phone”. I infer that this was the elder child’s attempt to persuade his father to stop filming. After a period of time, and whilst the elder child was hiding under a blanket, the father asked the child to calm down his mother. By doing so, the father once again involved the elder child in parental conflict. The mother also asked the father on two occasions to stop video recording because it is “intimidating”. The father refused to do so.
There are some signs though that the elder child is vulnerable. He advised the Single Expert that his least favourite thing to do is attend at school,[249] and his teacher said that the elder child can sometimes be “tummy achey” [sic] in the context of disputes with his peers.[250] The father also says that the elder child “threatened to kill himself at school” in the context of such disputation.[251] The incident in the bathroom in early 2023 also highlights that the elder child is prone to emotional meltdowns triggered by rivalry with his younger sister.[252] The father’s narrative as conveyed to the Single Expert identifies that the father agrees that the elder child is prone to such meltdowns.[253]
[249] Family Report dated 18 December 2023, paragraph 133.
[250] Family Report dated 18 December 2023, paragraph 158.
[251] Family Report dated 18 December 2023, paragraph 104.
[252] Family Report dated 18 December 2023, paragraph 107.
[253] Family Report dated 18 December 2023, paragraph 110.
In the same manner as the Single Expert, I find that the elder child exhibits on occasion highly dysregulated behaviour marked by boundary and limit-testing behaviour. Given the events at the office of the family therapist in September 2024, I have limited confidence that the father has the skills available to him to control such behaviour. The mother also has some deficits with the father recording that the parents implemented a “time out” strategy with the elder child by placing him in the laundry. This was not effective. The younger child says that her parents adopted a similar strategy with her.[254] As an alternative, the father says that the mother threatened “to call police on them if they misbehaved”.[255] Of course, if this is true (and the father was not tested with respect to such an assertion), it bears a striking similarity to the father’s decision to call police in early 2023 so that his son might be given a sedative (supra).
[254] Family Report dated 18 December 2023, paragraph 128.
[255] Family Report dated 18 December 2023, paragraph 114.
Whilst the mother’s parenting of the children is characterised by some deficits, I have concluded for the reasons discussed above that it is necessary to progress the children’s time with the father in a cautious manner.
I was not addressed in relation to the cultural needs of the children although I note that the father seeks time with the children on the occasion of Orthodox Easter. He seeks that order in circumstances where he advised the Single Expert that “he is nominally […] Orthodox however largely sees himself as Australian”.[256] The mother described herself as Christian “but not overly religious”. She “denied any cultural or religious sources of conflict with [the father]”.[257] The parties were not cross-examined in relation to any events of cultural significance for them or the children.
Section 60CC(2)(d) - The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
[256] Family Report dated 18 December 2023, paragraph 70.
[257] Family Report dated 18 December 2023, paragraph 20.
It was agreed the mother should have sole parental responsibility allocated to her. Whilst the father made several criticisms of the mother’s parenting capacity, the father’s concession with respect to the allocation of parental responsibility must mean that he does not doubt the mother’s capacity to provide for the children’s developmental, psychological, emotional and cultural needs.
I agree with the observations of Justice Harper in Heron & Heron [2024] FedCFamC1F 465 to the effect that s 60CC(2)(d) a person ‘who has or is proposed to have parental responsibility’. I agree that this expression may embrace not just the person to whom parental responsibility is allocated by Court order, but also a person who has the limited parental responsibilities which may exist when a child spends any time with a parent. In this regard, I take account of the likelihood that the father may lack capacity, because he lacks insight into his own behaviour and has sought to deny or minimise it. Certainly, the father has not yet successfully addressed those criteria referred to by the Single Expert. Particularly, the father had not yet:
(a)developed insight into his problems;
(b)demonstrated adequate boundary-setting;
(c)demonstrated that he is able to manage the sibling dynamic; and
(d)developed an ability to shield the children from parental conflict.[258]
[258] Family Report dated 18 December 2023, paragraph 196(a).
The father’s inability to control the elder child’s behaviour at the family therapist’s office in September 2024 and the nature of his interaction with the children during the interview process by the Single Expert in November 2023 causes me to agree with the finding of the Single Expert that the father is unable at this juncture to provide the children with “emotional containment”. I also agree with the expert’s view that the children’s behaviour towards him may be evidence of “an attachment disturbance to the degree that the children need to act in a frenetic, needy, or regressed manner” in order to command his attention.[259]
[259] Family Report dated 18 December 2023, paragraph 142.
Whist I accept that the children “appear to have problematic attachments to both parents”,[260] I accept the Single Expert’s conclusion that absent parental conflict, the mother is showing some insight and “self-reported improvement” with respect to her ability to meet the children’s emotional needs.[261]
Section 60CC(2)(e) The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
[260] Family Report dated 18 December 2023, paragraph 174.
[261] Family Report dated 18 December 2023, paragraph 189.
In light of the agreed position regarding the children it is unnecessary to discuss the question of any benefit to the children of a relationship with the mother.
I find that the children will benefit from a relationship with their father. The Single Expert identified that the children expressed “effusive affection for their father and appear to love and miss him”.[262] I equally accept the Single Expert’s conclusion, however, that the benefits of the children having a meaningful relationship with their father is at risk of decreasing if he is unable to respond appropriately to the children’s boundary-pushing behaviours.[263] I also find that the benefits to the children of having a relationship with their father must be considered within the context of the father’s failure at this juncture, to successfully address the matters referred to by the Single Expert and discussed above.
[262] Family Report dated 18 December 2023, paragraph 175.
[263] Family Report dated 18 December 2023, paragraph 175.
Section 60CC(2)(f) – Anything else that is relevant to the particular circumstances of the children
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.
In McCall & Clark (2009) FLC 93-405 (“McCall”) at 83,476, the Full Court said at [122]:
122. …No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents will be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
In this case, I agree with submissions made by the mother’s counsel that there should not be “contact for contact’s sake”. Further, and referring to the comments of Bennet J in G & C, I am reminded that the task falling to me is a “prospective one”.
As discussed above, and when determining the arrangements, which would promote the safety of the children, I must refrain from speculation. As also discussed, I must not substitute probative evidence and valid inferences with conjecture about the father’s capacity to care for the children in the future.
For these reasons, I propose to make an order, which will restrict the children’s time with the father to day times only. When making such an order, I do not make a finding that the risk, which the father poses to the children is different at night. Such a finding would be absurd and lack a cogent basis. Instead, I agree with the assessment of the Single Expert that because of the father’s current level of parenting ability, it would be “damaging for the children to spend time with their father in large doses”.[264] I have crafted my orders accordingly.
[264] Family Report dated 22 August 2024, paragraph 79.
PARENTAL RESPONSIBILITY
As discussed above, the father consents to an order that the mother have sole parental responsibility for the children and sole decision-making authority in respect of major long-term issues.
I have found find that the father has perpetrated family violence. This finding is a factor, which weighs in favour of an order for sole parental responsibility.
The mother has been making the relevant decisions for the children since separation. She says that since she commenced proceedings, she has been unable to communicate with the father effectively.[265] The father agrees that he has not had any meaningful communication with the mother since separation.[266]
[265] Family Report dated 18 December 2023, paragraph 14.
[266] Family Report dated 18 December 2023, paragraph 104.
For these reasons, I find and agree with the conclusion of the Single Expert that the parents have an “inability to meaningfully communicate”.[267]
[267] Family Report dated 18 December 2023, paragraph 188.
In addition to the parties’ inability to communicate, I am mindful that it will be difficult for the parties to engage in any meaningful communication about major long-term issues given my findings as to the perpetration of family violence by the father. It was the mother’s perception that “the abusive dynamic in her relationship with [the father] impedes their communication”.[268]
[268] Family Report dated 18 December 2023, paragraph 61.
The evidence supports a finding that it is in the children’s best interests for the mother to hold parental responsibility.
The father also seeks an order that no later than seven days after making a sole decision about any major long-term issue for the children, the mother must advise him in writing of the decision. The father does not, however, require the mother to provide reasons for her decision.
As discussed above, and on interview by the Single Expert on 29 November 2023, the mother’s treating psychologist expressed a view that the mother “engaged very well with psychoeducation and proposed personal management strategies delivered in counselling”.[269] The counselling was so successful that the mother and her treating psychologist “agreed to cease counselling and for… [the mother] to reach out if needed”.[270] Regrettably, the mother commenced attending on her psychologist again in December 2023 after the elder child absconded during supervised contact with his father the previous weekend.[271] Despite this development, I find that given the success of treatment by the mother’s treating psychologist, any anxiety, which may be experienced by the mother in relation to her communication with the father will be adequately managed by sessions between the mother and her treating psychologist.
[269] Family Report dated 18 December 2023, paragraph 145
[270] Family Report dated 18 December 2023, paragraph 145.
[271] Family Report dated 18 December 2023, paragraph 145.
For these reasons, I am satisfied that the mother has the ability to communicate with the father once she has made a decision relating to a major long-term issue. I do not consider that the mother’s parenting capacity will be adversely affected in any way by making such a limited order.
OTHER ORDERS
Overseas travel
The mother seeks a positive order that she be permitted to remove the children from the Commonwealth of Australia for the purposes of travel on condition that she provide the father with six weeks’ notice of intended travel and further, on condition that she provide the father with copies of itineraries and copies of airline tickets.
The father agrees to the making of such an order provided that to the extent possible, any international travel occur primarily in the children’s school holiday periods. He also agrees to an order that the mother be permitted to apply for and maintain Australian passports for the children absent his consent.
I will make the orders sought by the mother and agreed to by the father. I will not restrict the children’s travel to school holiday periods. As discussed, the children are developing well from an academic perspective and there is no evidence whatsoever of truancy or a failure by the mother to attend to the children’s academic needs. I am confident that the mother will ensure that the children’s academic needs are attended to whilst at the same time providing the children with the benefit of international travel.
I also decline to make an order for make-up time as sought by the father. I have found that the parties have a limited ability to communicate and I have no confidence whatsoever that the parties would be able to negotiate make-up time as desired by the father.
Special Occasions
The father seeks an order that he spend time with the children on the occasion of Orthodox Easter, Orthodox Christmas and Father’s Day. Given that the mother describes herself as a Christian, I will make orders, which give the father the opportunity to spend time with the children on religious occasions of importance to him. For the same reasons, I will suspend the children’s time with the father on the occasion of Easter Sunday and Christmas Day so that the children might spend time with the mother. I will, however, make an order to the effect that the children spend time with the father from 10.00 am to 4.30pm on Christmas Eve. By making such an order, I am hopeful that the children will not be exposed to parental conflict on Christmas Day.
I will also afford the children the benefit of time with the father on the occasion of Father’s Day.
I decline to make orders regulating time between the children and their parents on the occasion of either parent’s birthday or the children’s birthdays. As discussed above, the parties have a very limited capacity to communicate. I conclude that the children’s time with each of their parents on the occasion of each parent’s birthday and the children’s birthdays should simply fall in accordance with the time spending arrangements prescribed by me. I do so to avoid disputation between the parties and the possibility of arguments between the parties on days, which should otherwise be days of celebration.
Attendance at events and Provision of Information
The father seeks an order permitting him to attend at school events to which parents are ordinarily invited. The mother does not promote such an order, and the topic was not otherwise addressed by the Independent Children’s Lawyer.
Given my finding that it is in the children’s best interests to maintain a relationship with the father, I similarly conclude that there is no reason why the father ought not be afforded the opportunity to engage with the children’s school and attend at events of significance to them. I will make orders in terms sought by the father permitting him to attend at Father’s Day events, parent-teacher interviews, and end of year assemblies. However, I will require the father to attend parent-teacher interviews separate to the mother to avoid conflict between the parties.
For the same reasons, I also consider it to be in the children’s best interests that I make the order sought by the father to the effect that he be permitted to obtain all information from the children’s school, which parents are ordinarily entitled to receive. Neither the Independent Children’s Lawyer nor the mother’s counsel made any submission to dissuade me from making such an order.
I also consider it to be in the children’s best interests to make an order sought by the father that the father be listed as an emergency contact for the children. Again, neither the Independent Children’s Lawyer nor the mother’s counsel made any submission to dissuade me from making such an order.
Medical information
The father seeks an order that each party immediately notify the other parent of any serious illness or serious injury experienced by the children requiring medical treatment or hospitalisation whilst in their care.
Neither the Independent Children’s Lawyer nor the mother addressed me with respect to the making of such an order. However, the making of such an order is obviously in the children’s best interests and I will make an order on that basis.
Provision of Family Report
The father seeks an order that each parent be at liberty to provide a copy of the Family Reports to the family therapist and any practitioner providing therapeutic treatment for the father, the mother and/or the children. Having regard to the terms of s 114S(1) and s 114S(2) of the Act, it is not necessary for me to make such an order and I decline to do so.
Communication between the parties
The father seeks an order that save in an emergency, each parent do communicate in relation to the care, welfare and development of the children by using the “Our Family Wizard” application. The mother promotes a similar order and accordingly, I make orders to this effect.
In order to facilitate communication between the parties on occasions of emergency as sought by the parties, I will make an order that each parent keep the other advised of his/her mobile telephone number and advise the other of any change to these details within 48 hours. I will also make an order that each parent keep the other advised of his/her residential address as sought by the father.
Attendance by the parties on various therapists and health professionals
The Independent Children’s Lawyer promotes orders to the effect that each party continue to attend on his/her treating psychologist and that the father continue to attend on the family therapist.
As discussed above, the Court does not have the power to make a self-standing order of this nature. Accordingly, I decline to make the orders promoted by the Independent Children’s Lawyer.[272]
[272] Oberlin & Infeld (2021) FLC 94-017
Restraints
An injunction is not, by definition, a “parenting order”.[273] The Act provides separate powers for making injunctions, parentings orders, or other orders in relation to the welfare of a child.[274] Whilst counsel did not address me on the issue, the only power afforded to me to make the injunctive orders sought by the parties is pursuant to s 68B of the Act. Section 68B is not subject to the paramountcy principle — the words of the section lack any express reference thereto. This issue has been addressed in many authorities and, as summarised in Attwood v Attwood [2022] FedCFamC1F 6, has to some extent been reconciled:
31.… Section 68B(1) of the Act states that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child. Section 68B(2) also states that the making of the order may occur in any case in which it appears to the Court to be just or convenient to do so.
32.The Full Court in Bennett v Bennett (2001) FLC 93–088 determined that the power in s 68B was not subject to the express legislative requirement that the Court must regard the best interests of the child as the paramount consideration; and even if s 68B were subject to the “best interests” principle, it is doubtful that this would displace the established common law principles contained in the authorities such as In re Boaler [1915] 1 KB 21; Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 and Coco v R (1994) 179 CLR 427. However, the Full Court in Flanagan and Handcock (2001) FLC 93–074 considered this and referred to CDJ v VAJ (No 1) (1998) 197 CLR 172 which decided that orders that are not a parenting order do not directly invoke the application of the paramountcy principle. Nevertheless the Court agreed with the Full Court that the consideration of what is in the best interests of the child are “powerful matters to be weighed up against a competing principle such as finality”. The Full Court therefore held that in respect of the issue of an injunction under s 68B, it is incorrect to state that the “paramountcy principle” applies. However, the best interests principle needs to be given careful consideration, especially where the orders sought to be made intimately concern the welfare of the children.
33.Thus, whilst the best interests of the child is not stated explicitly as the governing principle when making an injunction under s 68B, for all practical purposes the concept provides a useful framework within which to explore whether … the injunction is appropriate for the welfare of the child, and is otherwise just or convenient[275].
[273] Hedlund v Hedlund [2021] FedCFamC1A 84 at [118].
[274] Family Law Act 1975 (Cth) s 65D(1) and s 67ZC.
[275] Attwood v Attwood [2022] FedCFamC2F 6, [31]-[33]. Emphasis added.
Having regard to Attwood and Bennett, I will consider the injunctive relief sought by giving careful consideration to the best interests of the children.
The Independent Children’s Lawyer sought injunctions prohibiting each parent from:
(a)Denigrating the other parent or members of his/her family to the children or in their presence. Given my findings about the children’s exposure to parental conflict, I agree that it is in the children’s best interests for the parties to be subjected to such an injunction; and
(b)Removing the children from any situation where the children may be exposed to verbal, emotional or physical abuse. I decline to make such an order. The Independent Children’s Lawyer did not address me as to why such an injunction is necessary. In any event, and insofar as the father is concerned, I consider that the orders which I will make will provide the children with adequate protection.
The Independent Children’s Lawyer sought an order that the father only use testosterone as prescribed by a registered Australian health practitioner. There is no factual basis for me to make such an order given my finding that the father is compliant with the recommendations of his treating specialist.
The Independent Children’s Lawyer sought an order that the father not video the mother or the children without their express consent and even then, on “happy occasions” only. The phrase “happy occasions” is subjective and incapable of enforcement. I will, however, make an order that the father be restrained from taking a video recording of the children or the mother save and except with their express consent.
CONCLUSION
The orders set out at the commencement of these reasons are those that most capably meet the children’s best interests.
I certify that the preceding two hundred and fifty-eight (258) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate:
Dated: 29 October 2024
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