Millard and Millard
[2018] FamCA 258
•26 April 2018
FAMILY COURT OF AUSTRALIA
| MILLARD & MILLARD | [2018] FamCA 258 |
| FAMILY LAW – CHILDREN – Interim proceedings - With whom a child lives – With whom a child spends time – With whom a child communicates – Application by mother for a recovery order in respect of the middle child – Application by mother that children live with her and spend no time with the father – Recovery order issued for the middle child – Interim orders made that children live with the mother – Interim Orders made that children spend no time with the father – Specific Issues Orders- Injunctive Orders |
Family Law Act 1975 (Cth) s 60CC
| Toohey & Toohey [2016] FamCA 15 |
| APPLICANT: | Ms Millard |
| RESPONDENT: | Mr Millard |
| FILE NUMBER: | SYC | 5458 | of | 2015 |
| DATE DELIVERED: | 26 April 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 20 April 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Gillies S.C. |
| SOLICITOR FOR THE APPLICANT: | Broun Abrahams Burreket |
| COUNSEL FOR THE RESPONDENT: | Ms Nelson |
| SOLICITOR FOR THE RESPONDENT: | Hamish Cumming Family Lawyers |
Orders
The interim parenting orders 1, 2, 3, 4, 5, 6, 7, and 8 made 14 March 2018 in respect of B born … 2005, C born … 2007 and D born … 2012 (‘collectively the children’) are vacated.
UNTIL FURTHER ORDER
Ms Millard (‘the mother) have sole parental responsibility for the children.
The children shall live with the mother.
The children shall spend no time with the father Mr Millard(‘the father’).
The mother shall be at liberty to leave the Sydney metropolitan area with the children pending further order.
The mother shall be at liberty to organise counselling for the children at S Child Psychology Centre or such other counselling services as is determined by the mother and which can facilitate counselling for the children, and thereafter the mother shall ensure the children’s’ attendance on a counsellor as recommended by the counsellor.
Pursuant to s 68B(1)(b) of the Family Law Act 1975 (Cth) the father be and is hereby restrained from assaulting, harassing or molesting the mother in any way.
Pursuant to s 68B(1)(a) of the Family Law Act 1975 (Cth) the father be and is hereby restrained from the following:-
(a) assaulting, harassing or molesting the children or any of them in any way;
(b)forwarding, sending, initiating or sustaining any communication in any form with the children or any of them;
(c)entering or being within 50 metres of the mother’s home, presently E Street, Suburb F;
(d)entering or remaining or being within 50 metres of the children’s schools, presently being Suburb F Public School and/or G School; and
(e) Being within 50 metres of the children or any of them.
Each of the parents is restrained from:-
(a)denigrating the other parent or a person with whom the other parent has a relationship, in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with;
(b)discussing any aspect of these proceedings (other than to inform the children of these interim orders) or the Apprehended Domestic Violence Order proceedings, or any criminal proceedings instituted against either party with or in the presence of the children or any of them;
(c)showing the children any documents filed in these proceedings or discussing any of the allegations made in the documents filed with or in the presence of the children or any of them; and
(d)showing the children any documents produced under subpoena or discussing the content of any such documents with or in the presence of the children or any of them.
Until further order Mr Millard born … 1976, Ms Millard born … 1975 and their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children B born … 2005, C born … 2007 and D born … 2012 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist, until the Court orders its removal, or with consent of all parties.
Pursuant to s 67Q of the Family Law Act 1975 (Cth) a recovery order and warrant be issued to the Marshall, all officers or agents of the Australian Federal Police and all officers of the police forces of all the states and territories of the Commonwealth of Australia (“officers and agents”) authorising and directing them to at any time and with such assistance as they require and if necessary by force to:
(a)stop and search any vehicle, vessel or aircraft; and
(b)enter and search H Street, Suburb J NSW 2069 or any premises or place,
where there may be reasonable cause to believe that Mr Millard (‘the father’) born … 1976 and the child C born … 2007 (“C”) may be found and to take possession of C.
The officers and agents referred to in these orders may put these orders into effect on a fax or email copy of these orders.
Upon recovery of the child, the officers and agents are, pursuant to s 67Q(d) of the Family Law Act 1975 (Cth) are directed to deliver the child C to Ms Millard, born … 1975.
The father and his servants and agents are restrained from removing, or causing the removal of B born … 2005, C born … 2007 and/or D born … 2012 from the mother.
The officers and agents are authorised and directed to arrest, without warrant, any person who acts in breach of order 7 and 13 of these orders.
IT IS NOTED
Orders 8 and 9 made 14 March 2018 requesting Legal Aid New South Wales appoint an Independent Children’s Lawyer for the children remain in place.
Orders 10, 11, 12, 13 and 14 made 14 March 2018 appointing Dr K as single expert remain in place.
Orders 15 and 16 made 14 March 2018 giving leave for the Independent Children’s Lawyer and parties to have photocopy access to documents produced on subpoena and documents filed by each of the parties for the purpose of providing same to the Chapter 15 Expert for the purposes of preparation of the report remains in place.
The Court Notes that Orders 7 and 13 herein are made for the personal protection of the children.
Pursuant to s 65DA(2) and s 62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All extant applications in a case are dismissed except as to costs.
Costs of each of the parties in respect of the applications in a case are reserved.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Millard & Millard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC5458 of 2015
| Ms Millard |
Applicant
And
| Mr Millard |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Ms Millard (‘the mother’) and Mr Millard(‘the father’) are involved in parenting proceedings in respect of their children, B aged 13 (‘the eldest child’), C aged 11 (‘the middle child’) and D aged 6 (‘the youngest child’) (‘collectively the children’).
The eldest and youngest children are presently living with the mother. The middle child is living with the father, contrary to orders made by a Senior Registrar of this Court on 14 March 2018.
The mother’s case is that the children should live with her and that she should have sole parental responsibility for them (as was provided in the orders of 14 March 2018). Further, that instead of the children spending short periods of supervised time with the father that there be no time.
The mother seeks a recovery order in respect of the middle child and other orders including permission to change the children’s place of residence and to change the schools of the children if she considers it necessary. The change of school order is unnecessary if orders are made to enable move from Sydney and sole parental responsibility.
The essence of the mother’s application is that the children live with her and spend no time with the father.
The mother asserts this is because the father presents as an unacceptable risk to the children as he has a propensity to extreme violence, including choking. Further, she asserts that he will do whatever is necessary to alienate the children from her and that he has endeavoured to do so for the last twelve months or so.
The father has filed a series of applications in a case. The first (filed 24 March 2018) being that the order made by Senior Registrar Campbell (‘the Senior Registrar’) on 14 March 2018 be reviewed by a Judge, the second being an application filed 13 April 2018 that the review of the decision of the Senior Registrar be brought forward to the earliest opportunity and that the application for final orders be expedited. The third was by way of an application in a case filed 18 April 2018 effectively seeking that the parenting orders in relation to the children made 14 March 2018 be discharged; that the father have sole parental responsibility for them and that the children live with him and spend no time with the mother.
The father asserts that the children have been the subject of physical and emotional abuse by the mother for at least the last twelve months. Further, he asserts that they have all expressed strong views not to live with or spend time with the mother.
As a consequence of which, the father asserts that they are at risk of harm in their desire not to live with the mother including running away from her.
In terms of the father’s application for the expedition of the final hearing of these proceedings, it was agreed by the parties that this matter needed a hearing for the protection of these three children. As a consequence this matter has been listed for final hearing before another judge of the Family Court for five days commencing 20 August 2018.
An Independent Children’s Lawyer was appointed in accordance with the orders made 14 March 2018. Ms Norris initially appeared as the Independent Children’s Lawyer on behalf of Legal Aid, but indicated that there was a conflict of circumstances and she could not continue to appear.
Leave was given for her to withdraw. However, before she left Ms Norris made it clear that Legal Aid New South Wales would be appointing a private lawyer to act as Independent Children’s Lawyer.
The father effectively seeks orders as set out in his application in a case filed 18 April 2018. It is his contention that the children are at serious and immediate risk of harm in the mother’s care given the matters to which I have alluded earlier.
Given that there were no property proceedings and these parties have not resolved their property issues, the Court asked the parties whether they would be in a position to prepare for a property hearing in August. They are to make submissions on this point after delivery of these reasons on Thursday 26 April 2018.
BACKGROUND
The mother is a part-time professional who is aged 42.
The father is aged 41. He describes his occupation as home duties.
The mother asserts the parties commenced cohabitation in 1996. The father says they commenced cohabitation in 1998. They are in agreement that they married in 2000.
Their children were born in 2005, 2007 and 2012. The mother asserts that the father lived and worked in Asia from October 2013 to August 2015 returning every six weeks for about a period of seven or ten days. The mother says she was the primary carer for the children during this time.
The mother asserts that the parties separated in August 2015, they reconciled in April 2016 and finally separated on 14 December 2016.
The father asserts that the parties separated in September/October 2013 when he moved to and commenced living in Asia.
The parties commenced a shared parenting arrangement for the children in either December 2016 or January 2017.
Over 2017 the children’s’ relationship with the mother became more difficult. The middle child ceased spending overnight time with the mother in mid-November 2017. That time did not resume until shortly after the orders were made on 14 March 2018.
In late November 2017 the youngest child ceased spending overnight time with the mother.
In December 2017 the mother made a statement about the alleged strangulation of her by the father some three years before.
In January 2013 the mother had a holiday with the eldest child in Queensland.
In January 2018 the mother obtained a provisional Apprehended Domestic Violence Order against the father and that became an interim order in late January 2018.
The mother had limited communication and contact with the children until orders were made on 14 March 2018.
When the children came into the mother’s full time care and commenced seeing the father on a supervised basis there were difficulties with the children as they desired to remain primarily with the father.
On 16 March 2018 the middle child returned from a camp and went into the mother’s care. The middle child was reluctant to stay with the mother and ran away on 17 March and police were involved. Later that day the child was admitted to L Hospital where she remained until 29 March 2018, a period of about 12 days.
The middle child remained with the mother, although in difficult circumstances until 12 April 2018 when she ran away from a swimming lesson near the father’s home. The middle child has lived with the father since that time.
The middle child made complaints of violence by the mother against her and a provisional Apprehended Domestic Violence Order was made on 13 April 2018 in favour of the middle child against the mother. This has now been adjourned until early May 2018.[1]
[1] Exhibit E12 – page 65 provides a copy of the Order which provides that the mother shall not assault threaten, stalk, harass or intimidate the middle child and that she should not destroy or damage the child’s property.
An order was made on 20 April 2018 that the New South Wales Department of Families and Community Services intervene. Over recent times the Department have been concerned about these children particularly the well-being of the middle child particularly given the circumstances of the order of 14 March 2018.
THE EVIDENCE
The mother relied on the following documents:-
(a)her application in a case filed 18 April 2018;
(b)her affidavits filed 12 February 2018 and 18 April 2018:
(c)an affidavit of the children’s maternal grandmother, Ms M filed 19 April 2018;
(d)an affidavit of Ms N filed 12 April 2018;
(e)an affidavit of Ms O, the children’s paternal grandmother, filed 12 February 2018;
(f)an affidavit of Ms P, the paternal aunt, filed 12 February 2018;
(g)the orders of 14 March 2018; and
(h)the reason of Senior Registrar Campbell dated 14 March 2018.
The father relied upon the following documents:-
(a)his applications in a case filed 21 March 2018, 13 April 2018 and 18 April 2018;
(b)a Notice of Risk filed 18 April 2018;
(c)his affidavits father sworn 6 March 2018, 4 April 2018 and 16 April 2018;
(d)an affidavit of Ms Q sworn 19 April 2018; and
(e)an affidavit of Ms R sworn 19 April 2018.
The following documents were exhibited:-
Exhibit 1 a bundle of emails exhibited by the mother;
Exhibit 2material from Suburb F Primary School tendered by the mother;
Exhibit 3documents produced by the Department of Family and Community Services tendered by the mother;
Exhibit 4documents produced by S Child Psychology Centre tendered by the mother;
Exhibit 5documents produced by Ms T tendered by the mother;
Exhibit 6subpoenaed documents produced by L Hospital tendered by the mother;
Exhibit 7documents tendered by G School tendered by the mother;
Exhibit 8documents produced by Ms V tendered by the father;
Exhibit 9documents produced by New South Wales Police marked with a blue tab tendered by the father;
Exhibit 10letter dated 28 February 2018;
Exhibit 11mother’s case outline for these proceedings;
Exhibit 12documents exhibited to the mother’s affidavit dated 17 April 2018;
Exhibit 13documents exhibited to the affidavit of the maternal grandmother;
Exhibit 14case outline of the father;
Exhibit 15a tender bundle of documents in which were the exhibits to the father’s affidavit of 6 March 2018;
Exhibit 16exhibits to the affidavit of Ms W (being the X Group reports);
Exhibits 17/18 New South Wales Police Records; and
Exhibit 19Material from L Hospital
The father had relied upon an affidavit of Ms Q sworn 19 April 2018 which the mother only became aware of shortly before the interim hearing. As a consequence the Court permitted the mother to give oral evidence in respect of part of that material. It was not intended that that oral evidence deal with all of the evidence contained in that affidavit material. One of the issues raised by Ms Q was an assertion that she observed the father acted appropriately when he was given a passport for one of the children which was about to expire and consequently a trip to Asia could not go ahead.
The mother asserted that the father at all relevant times had control of those passports. If that evidence is subsequently found to be correct it is indicative of the subtle undermining of the mother by the father. That is that the failure of the trip was the fault of the mother, but the father was accommodating in terms of the mother’s alleged failings.
It was asserted by Ms Q that after the children returned from a visit with their mother in late 2017 the children told her that the mother had ripped up pictures of the father and put them on their pillows. The mother denied that this occurred. If true it is evidence of the mother demeaning the father in the presence of the children, if untrue it would be concerning.
The mother gave evidence of some bruising on the middle child and how the story about that seemed to change.
The mother denied removing a folder full of documents from the father’s house and provided other evidence.
THE LAW
The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children is set out in Part VII in particular s 60B articulates the objects and the principles underlying them as follows:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
The terminology of the section is such that the Court is to presume that it is in the best interests of the child for their parents to have equal shared parental responsibility unless the Court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise, then:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable; and if not
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, s 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and s 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In Toohey & Toohey [2016] FamCA 15 Foster J at paragraph 20 set out the law in relation to interim parenting matters and said:-
Interim Parenting
20.In Marvel & Marvel (No. 2) [2010] FamCAFC 101 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:
120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. (emphasis added). This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
21.In George & George [2013] FamCAFC 182 the Full Court cited Deiter & Deiter [2011] FamCAFC 82 in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.
22.In Deiter (supra) the Court was there concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
Those comments are equally apposite to an application heard ex parte or in the absence of a party.
23.The relevant principles in relation to parenting are well settled Goode and Goode [2006] FamCA 1346. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
24.Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child. In the context of this matter it is not necessary to undertake a detailed examination of each of the consideration set out in s 60CC. The protective issues are overwhelming.
25.Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
26.If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
27.Section 61DA of the Act provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence (s 61DA(2));
b)In interim proceedings where the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3)); and
c)If the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests (s 61DA(4)).
28.The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the “legislative pathway”.
29.Clearly in this matter the presumption is not to apply by reason of the fathers’ conduct and by reason of the best interest considerations referred to below it is appropriate that the mother hold sole parental responsibility for the children.
30.Thus the orders to be made are guided by the best interests principles.
In considering the position of each of the parties I was invited to and did read the case outlines of both parties which had been prepared for the hearing on 8 March 2018 before the Senior Registrar.
Senior Counsel for the mother made these observations from the reasons of the Senior Registrar about the concerns that the children may be at unacceptable risk of harm in the care of the father, namely:-[2]
The paternal grandmother’s evidence about the violence that she suffered at the hands of the father including his attempt to choke her and another incident where he punched her repeatedly, in the presence of one of the children. She also outlines his emotional abuse of her.
The paternal aunt’s corroboration of the mother’s account of the father choking her during the course of the marriage. That is, the paternal aunt was told around the time of the event that it occurred by the mother and she saw bruising consistent with what she was told.
The father’s long, rambling emails to the mother suggestive of mental health interruptions.
The father’s mental health where he has given inconsistent evidence about a breakdown he suffered on 25.12.14
The contents of an affidavit of Ms N, who describes grandiose and delusional behaviour by the father. That affidavit has never been refuted by the father. However, he has now attached a reference from [Mr Y] to one of his affidavits.
The father’s inability/ failure to ensure that the children spent proper time with their mother from November 2017 until the matter came before the Court. This was in spite of the father seeking orders from the Court that at least weekend time should occur between the mother and the children.
[2] Mother’s case outline filed 14 March 2018, page 3.
I likewise accept that if this evidence comes to proof that the children are likely to be at an unacceptable risk of harm in the father’s care.
Senior Counsel for the mother set out the evidence as to the relevant incidents in her case outline. These are:- [3]
[3] Ibid at pages 5 to 13.
| Early 2007 | Incident at paternal grandmother’s home. In the presence of Mother, Father, [the eldest child] and paternal grandmother’s husband Father says to paternal grandmother “Get out of the house!” Later that evening Father pushes the paternal grandmother 3 times in the chest screaming “I am the king of my house! I am the boss!” | KM-19 |
| Mid-2007 | Father grabs paternal grandmother by the neck with both hands and pushes her into the bedroom onto the bed with his hands around her throat. | KM-17 |
| 2010 | Paternal grandmother observes Father shove Mother in the chest with such force that Mother stumbles backward | KM -9 |
| Summer 2012/2013 | Father shoves Mother hard in the chest with the palm of both hands, in the presence of the children, Father’s aunt and her husband | M-31 RR-9 |
| January or February 2013 | Father assaults paternal grandmother’s husband. | KM-26-30 |
| August 2014 | [The eldest child] tells Mother that the Father pushed her forcefully in the chest | M-34 |
| 19 August 2014 | Father kicks Mother in the lower back so hard that she falls out of the bed and onto the floor. Father puts both hands around her neck and squeezes her neck. | M-17.3, 22 |
| August 2014 | Mother confides in Father’s aunt, [Ms P], about strangulation incident | RR-10 |
| Late November 2014 | [Ms P] confronts Father about his behaviour towards the Mother. Father makes excuses and says “She annoys me, she is always tired”. | RR-11 |
| 25 December 2014 | Father admitted to the Mental Health Unit at [L Hospital]. Discharged later that night. | M-13, 15 KM-12 |
| Late 2014 or early 2015 | Father grabs Mother’s wrists and holds onto her tightly. | M-29 |
| May 2015 | In [middle child’s] presence (aged 8) Father punches maternal grandmother with his fist in her shoulder and continues to punch her upper body. | KM-21 |
| August 2015 | Parties separate for the first time. Father moves out of the former matrimonial home (FMH). Spends time with the children irregularly (at his request), usually on weekends. | M-44, 46 |
| April 2016 | Parties resume their marriage. Father moves back in to the FMH. | M-48 |
| August 2016 | Mother returns home after taking [middle child] to her morning drumming morning to find [eldest child] in the backyard dressed in her sports uniform soaking wet and shivering. [Eldest child] tells Mother “Dad soaked me with the hose”. | M-51, 54 |
| 14 December 2016 | Parties separate on a final basis. Mother moves out of the FMH. | M-5 |
| At separation | Parties agree on an equal shared arrangement for children | M-58-59 |
| 1 January 2017 | Paternal grandmother receives threatening email from Father. | KM-36 |
| Early 2017 | Father begins interrogating children about time with mother, requiring them to ‘report’ to him, father constantly emailing children when with the mother “please let me know you are ok”, and ‘call me if there is anything you need’ | M-69.3. 69.5 |
| Early 2017 to November 2017 | Mother receives loving and caring messages from [the middle child] | M-64.1 |
| From separation / January 2017 | Father starts inundating Mother with abusive text messages, phone calls and emails. Telephones mother and ranges at her “you are such a terrible person for abandoning us. You have broken up this family, you need help”. Mother receiving 3-4 abusive emails per week from father, 2-16 pages in length | M-68, M-74 |
| February 2017 | Father spits on Mother at changeover. | M-67 |
| 18 February 2017 | SMS from father to Mother “My daughters do not enjoy seeing [the father’s mother] as a result of her bizarre behaviour and I support what they feel…” | M-119.3 |
| 24 February 2017 | Acting principal calls Mother to discuss [eldest child’s] journal entry that she was scared to return home to Father. | M-65 |
| February 2017 | Mother reports the physical and emotional abuse during the marriage to a police officer at [Suburb Z] Police Station. Police conduct welfare check and speak to [eldest child]. | M-70 |
| June 2017 | School counsellor suggests [middle child and eldest child] have external counselling Father agrees. Mother arranges counselling for them with [S] Child Psychology | M-110 |
| July 2017 | Paternal grandmother visits the children and Father at FMH. Observes all children are subdued. Father insists that [middle child] have a bath with her siblings and stands over all 3 children while they undress | KM-44 |
| 12 July 2017 | Father attends Mother’s house and says to the children “It is against the law for your mother to take you to any appointments without my permission, you do not need to see a psychologist”. | M110-111 |
| 24 August 2017 | Father returns to FMH, where Paternal grandmother has been caring for the children for a week. Father shoves paternal grandmother Paternal grandmother has not seen children since that date. Ceases to receive text messages and emails from [the eldest child], and text messages from [the middle child]. Has tried to call them and left messages that have not been returned | KM-48-53 |
| September 2017 | Father begins to turn up at children’s swimming lessons at times children are with the mother | M-79 |
| October 2017 | [The middle child] starts saying to Mother “you chose to leave the family”, and “dad has said that you are allowed to come back home..why won’t you go back?’ | M-69.1-69.2 |
| October 2017 | [The middle child] begins to constantly call and email the Father when with the mother, calling and emailing him in secret | M-69.3 |
| 4-6 October 2017 | Father sends abusive emails to Mother regarding children seeing a psychologist. Children cease seeing a psychologist | M-111, Annexure “K” |
| 14 November 2017 | Last time [the middle child] spends overnight time with Mother. | M-7.1, 81 |
| 27 November 2017 | [The middle child] starts having very limited contact with Mother. | M-84 |
| 28 November 2017 | Last time [the youngest child] spends overnight time with Mother. | M-7.1, 88 |
| December 2017 | Mother makes statement to Police about strangulation incident on 19 December 2014 | M-28 |
| 4 December 2017 | Mother arrives at school to collect [the middle child and youngest child] in accordance with agreed parenting arrangement. [The youngest child] cries and says “Daddy is picking me up!” Father collects children | M-88 |
| 5 December 2017 | Father arrives at school to collect [the youngest child] and [the middle child] despite Mother’s request that he not do so | M-89 |
| 11 December 2017 | Mother takes [the youngest child] out for lunch during school day. [The youngest child] is happy and affectionate with Mother | M-91 |
| 12 December 2017 | Father emails Mother reprimanding her, copies the email to principal of [Suburb F] Primary School | M-92, Annexure “I” |
| 8 December 2017 | Email from Father to mother of the children “…they also said that your parents act strange and they feel uncomfortable…” and “…the girls said that they ‘hate’ going to your brother’s…” | M-119.1 |
| 9, 15, 24 and 25 December | Mother receives unpleasant emails from [the middle child]. Email of 9 December is ‘cced’ to [the father]. Mother suspects emails have not been written by [the middle child] | M-85-87 and Annexure “G” |
| 8 December 2017 | Father emails mother to say he will be collecting [the middle child the youngest child] from school notwithstanding it is Mother’s weekend with the children | M-90 |
| 22 December 2017 | Father tells Mother that [the middle child the youngest child] do not want to spend time with her when she attends the FMH to collect the children per the agreed parenting arrangements. [The youngest child] says to mother “I can’t go with you because of your negativity”. Only [the eldest child] goes with Mother that day. | M-95, 96 |
| 25 December 2017 | Father tells Mother in the presence of the children that the children do not want to spend time with her when she attends the FMH to collect them as arranged. Father has made other arrangements for the children. Only [the eldest child] goes with the Mother that day. | M-97 to 101 |
| 6 to 13 January 2018 | Mother holidays with [the eldest child] [in Queensland]. [The eldest child] falls off a scooter and breaks her femur. Mother takes her to AA Hospital]. Mother telephones father who says “I am warning you [mother]!” Father collects [the eldest child] from airport on their return and says to the Mother in [the eldest child]’s presence “I expected the police to come and meet you off the plane. You have been reported by a mandatory reporter”. | M-102-103 |
| 9 January 2018 | Mother receives unpleasant email from [the middle child]. | M-85 and Annexure “G” |
| 15 January 2018 | Mother obtains a provisional Apprehended Domestic Violence Order (ADVO) against the Father for her protection. | M-20 |
| 16 January 2018 | Mother receives 3 emails from [the eldest child]’s over 90 minutes. First email is in [the eldest child]’s usual loving style, 2nd and third are a different style of writing | M-104 to 105 |
| 17 January 2018 | Mother receives email from [the eldest child] in her usual loving style | M-105 |
| 23 January 2018 | Provisional ADVO made as an Interim ADVO by Suburb BB Local Court against the Father for the Mother’s protection. Orders varied from a 500 metre restraint on father going to any place where mother lives, works or her residential address to 100 metres of any place where mother lives, works or her residential address, unless for the purpose of dropping off and picking up the children from school. | M-20 |
| 29 January 2018-2 February 2018 | Email chain between Father and Paternal grandmother, including 3 page email. Father forwards copies of messages said to have been written by [the middle child and the eldest child] to the Mother | KM- 57-58 and Annexure “C” |
| 1 February 2018 | Mother spends time with [the youngest child] on her birthday at school at lunch time as arranged with the school, as Father will not facilitate Mother spending time with [the youngest child] on her birthday. | M-107 |
| 1 February 2018 | Mother’s last communication with [the eldest child]. | M-7.7 |
| 1 February 2018 | Correspondence from Father’s lawyer to Mother alleging various matters which are denied by Mother | M-109 and Annexure “J” |
| February 2018 | Father advises through his lawyer that he is making arrangements for children to attend a counsellor, [Ms CC]. Father’s lawyer later advise that no appointments have been made for the children to see [Ms CC] | M113-114 |
| 6-8 February 2018 | Emails between Mother and [the middle child]. [The middle child]’s emails are lengthy and copied to the Father. | M-115 and Annexure “L” |
| 8 February 2018 | Letter from Father’s lawyer to mother. Father proposes a trial arrangement for children to live with Father, and for [the middle child and the youngest child] to be collected from school and taken to Mother by [X Group], with [X Group] to be instructed to return the children to the father if any of the children express a wish not to spend time with the Mother. If Father’s proposal not accepted then Father will suspend all time with the children. | M-123.4 and Annexure M |
| 8 March 2018 | Interim Hearing before Senior Registrar Campbell | |
| 12 March 2018 | [The middle child and the youngest child] spend time with the mother for 3 hours after school. [The youngest child] says to mother “If we’re too nice to you, we’ll never see Dad again”. [The youngest child] is happy and opens presents. [The middle child] is uncooperative | M2 – 16-25 RV - 21 |
| 14 March 2018 | Ex Tempore Judgement Delivered by Senior Registrar Campbell. | |
| 14 March 2018 | Mother collects [the eldest child and the youngest child] from school. Mother and children go out for dinner to celebrate being reunited | M2 – 26-28 |
| 14 March – 17 March 2018 | [The eldest child] sends emails to the father. Emails suggest that [the eldest child] is not safe, is concerned about her father, apologetic to the father, and is ‘trying to be like him’ for [the youngest child] and [the middle child] | M2 89-90 and Tab 14 |
| 16 March 2018 | [The middle child] returns from school camp and is informed by Principal of [Suburb F] Primary about the Interim Orders. [The middle child] expresses concern for her father. That afternoon [the middle child] visits a friend. Mother and children have dinner at local pizza restaurant | M2 – 30-32 |
| 16 March 2018 | 8.30pm Police attend the mother’s home and advise the mother they have received a report that [the middle child] was wandering around [Suburb DD]. Mother is informed that the report was made by [EE]. [The middle child] has been messaging [EE]. | M2 – 35-41 and Tab 6 |
| 17 March 2018 | At about 10.20 am [the middle child] runs away from mother’s home. Mother calls Police, who advise her to stay and wait for Police. Mother receives text from next door neighbour to former matrimonial home advising that [the middle child] is there. Mother informs Police and drives to the former matrimonial home to find father and [the middle child] on the street with Police. | M2 - 43 |
| 17 March 2018 | [The middle child] taken to Suburb Z Police. Mother advised that [the middle child] has made a serious allegation against the mother. [EE] and father’s girlfriend [Ms Q] (“[Ms Q]”) remain with [the middle child]. Later that day, [the middle child] is voluntarily admitted to [L] Hospital. Police attend mother’s home that evening and speak to [the eldest child] | M2-45-48 |
| 18 March 2018 | Social worker from [L] Hospital informs the mother that [the middle child]’s allegation against her had something to do with the mother putting her hands around [the middle child]’s throat | M2 – 49.1 |
| 19 March 2018 | Mother meets with [the middle child]’s treating doctors who are concerned that [the middle child] will run away Mother receives the first hug from [the middle child] she has received in 6 months | M2 – 49.2, 49.6 |
| 20 March -29 March 2018 | Mother attends attended meetings with the Principal of [the middle child]’s school, the Wellbeing Officer at [the eldest child]’s school, FACS caseworkers, social workers at the hospital and the hospital paediatrician, [Dr FF]. Mother spends significant time with [the middle child] at the hospital and takes 2 weeks off work. . | M2 – 49.4 |
| 21 March 2018 | [The middle child] becomes distressed when social worker mentions discharge from hospital and says: . “[Ms O] and [Ms P] lied about Dad in Court to help Mum” and “Mum asked the Court for us not to see Dad for 6 months.” Nursing Unit Manager tells the mother “I have spent time with [the middle child] over these last few days, even though she keeps saying she’s frightened of you, I don’t believe she is. She just wants to be with her father. They have an unusually close relationship. It is like Stockholm Syndrome.” | M2 – 49.6 |
| 27 March 2018 | Mention of ADVO proceedings against the father (listing mother as protected person). Father seeks for ADVO to be withdrawn, application denied | M2-102 |
| 29 March 2018 | [The middle child] discharged from hospital | M2 – 49.9 |
| Good Friday 2018 | Mother and children meet with members of mother’s family, who have not seen the children for many months. The meeting goes well. [the middle child] says to [the eldest child] when photos are taken “Don’t smile, she just wants to show her friends we’re happy” | M2 - 50 |
| 31 March 2018 | Mother takes children shopping at [Suburb Z] in the morning and they are happy and calm. First Supervised contact with [X Group]. Children become agitated when they learn they are not going to the former matrimonial home. [The middle child] speaks to mother rudely and children act coldly towards the mother. Children return, [the eldest child] runs 6 blocks up the street to [Suburb F] Plaza. Supervisor brings [the eldest child] back. Later that evening the children say to the mother: - Mother has been feeding them unhealthy food - Dad brought healthy food for them - They hate the mother’s family - Mother and father separated before father left for [Asia] - Mother never moved to [Asia] because she was happy with her life | M2 – 51-54 |
| 1 April 2018 | 9.00 am [the middle child] jumps from Mother’s balcony. Mother calls Police. Mother receives call from [GG’s] mum to advise that [the middle child] is there. 10.00am mother goes to pack the car and returns to find [the eldest child] and [the youngest child] gone. Mother calls Police and [Ms HH] to help find them. [Ms HH] finds them on [II Street], mother and Police attend. Police speak to [the eldest child] about the dangers of running away. Later that day, Mother and 3 children drive to [JJ Town]. They calm down in the car. Attend an Easter Egg Hunt with their cousins, then drive to Thirroul and spend the night with maternal grandparents. Children have an enjoyable time | M2 – 55-58; RV - 18 |
| 5 April 2018 | [The middle child]’s 11th birthday. Children spend supervised time with the father. [The middle child] is defiant and disobedient after contact and defaces [the eldest child]’s school timetable. Mother reprimands her. [The middle child] goes to her room and lies on her bed, ignores the mother. IN response, mother rolls her towards her by placing her hand on her right hip, [the middle child] shouts “Don’t touch me!” [the youngest child] wakes and cries. [The eldest child] is sad as [the youngest child] is upset due to her itchy rash | M2 – 60-64; RV – 16.2, 22-24 |
| 6 April 2018 | 1.30am. Police arrive in response to a call from the father alleging that mother has assaulted [the middle child]. Police speak to [the middle child] in her bedroom. After speaking to [the middle child], she goes back to sleep. Police speak to mother, inform her that [the middle child] emailed the father and said that she was assaulting [the middle child] | M2- 66 RV -26 |
| 6 April 2018 | Caseworker [Ms KK] from FACs attends [Suburb F] Primary School to speak to [the youngest child] and [the middle child] | M2 - 72 |
| 7 April 2018 | [the middle child] hits the mother when the mother puts her arm behind her in a ‘shepherding’ motion as [the middle child] was walking slowly in front | M2 - 71 |
| 11 April 2018 | Supervised Contact with the father after school. When children return, [the eldest child] gets out of the supervisors car and runs up the road. Mother convinces her to come inside. Children are rude and disrespectful to mother after contact | M2 - 73 |
| 12 April 2018 | At 5.40pm [the middle child] runs away from swimming lessons at Suburb J Pool. Mother calls the police and is advised to stay at the pool. 7.00pm mother speaks to Suburb Z Police who inform mother that [the middle child] is at the station with the father. Police tell mother to go home and wait. Later that evening Constable [U] attends mother’s home. Informs mother that a provisional ADVO has been taken out as [the middle child] has made domestic violence allegations against the mother. | M75 - 78 |
| 13 April 2018 | Provisional ADVO made for protection of [the middle child] naming mother as defendant. Standard orders sought | M2 - 104 |
| 13 April 2018 | [X Group] indicate to mother that they cannot guarantee returning [the eldest child] and [the youngest child] after supervised contact | M2 – 13.10 and Tab 5 |
| 14 April 2018 | Mother served with Provisional ADVO with [the middle child] as protected person | M2 – 80, Tab 13 |
| 14-15 April 2018 | [The eldest child] and [the youngest child] remain in mother’s care and are calm and happy until [the eldest child] reads an email from [the middle child] dated 13 April 2018 | M2 – 97 and Tab 17 |
| 17 April 2018 | Mention of Provisional ADVO against mother. Father attends court with [the middle child]. Domestic Violence Liaison Officer seeks and is granted a 3 week adjournment to gather further information before proceeding | M2 - 105 |
| 1 May 2018 | Criminal Charges against the father listed for hearing | M2 - 103 |
If these come to proof they are very serious and raise concerns about the father and his behaviour at many levels.
In these reasons I do not intend to regurgitate the facts at length. I intend to refer to some matters of fact and some issues of fact. I have avoided making findings of fact where there are areas of contention.
There are significant areas of concern in respect of the evidence in support of the mother’s contention that the father presents as an unacceptable risk in the unsupervised care of the children.
These include: the evidence of the paternal grandmother, which is disputed, that the father had attempted to choke her and another instance where he allegedly punched her in the presence of one of the children.
The father asserts that this evidence is not reliable and should not be given any significant weight given circumstances that he raises in his affidavit.
There is some concern about this assertion given that the father had, from time to time, asked his mother to care for the children including overnight on a number of occasions. There is the evidence of the paternal aunt supporting the mother’s version of being choked. The father rejected this assertion and said that he was overseas.
If the evidence of the mother, the paternal grandmother and the paternal aunt are accepted the father is disposed to unprovoked episodes of violence and has endeavoured to choke the mother and endeavoured to choke the paternal grandmother.
Unlike many cases there is some corroboration of the mother’s allegations of violence set out in her affidavits and the violence asserted is troubling.
Some of the lengthy and rambling emails of the father are troubling to read, although I make no findings of them. No doubt those emails will be made available to Dr K who may be able to make sense of them.
It was submitted and I accept that the health event of the father in December 2012 was troubling not because of the health event, but his partial denial of it which may show some lack of insight or some evidence of being duplicitous.
The evidence of the maternal grandmother provides a troubling indication of the father’s anger and lack of control. If accepted on a final hearing it is likely to show that he is controlling, physically, emotionally and socially abusive.
If accepted together with the other evidence it may show that the father has a tendency to isolate the children from those who disagree with him.
Similarly, the paternal aunt gave evidence about the father’s anger and violence. Her observations are troubling in terms of the father’s denials in relation to any violence or anger.
Similarly, the paternal grandmother’s evidence is also troubling in terms of the assertions she makes as to the father’s violence and in particular the assertion that the father, at one stage, endeavoured to strangle her.
I am also troubled by the evidence of the allegations of the father’s violence to the paternal grandmother’s former husband in January or February 2013.
An affidavit was provided by a cousin of the mother as to the grandiosity of the father. That evidence was neither refuted nor explained, although given the nature of interim hearings I have treated it as being in issue.
The father did not seriously endeavour to restore the relationship between the children and their mother between November 2017 and March 2018, and yet he suggested regular unsupervised time between the mother and the children in his case before the Senior Registrar including: that the children spend each alternate weekend from Friday to Sunday with the mother and periods of time over Easter.
There was no evidence that those arrangements were put in place for the proceeding four months.
There is evidence that the children complained, at least in 2017, that the father ‘smacks them and yells at them’ and that they have a good relationship with their mother. The father asserted that this was as a consequence of the mother putting pressure on them.
There was an incident in 2016 where one of the children had water placed on her. The father asserted it was a few drops. Given the broader evidence it is likely to have been a much greater issue than that and if accepted at the hearing is evidence that the father acted out in anger against that child.
The evidence from the Families and Community Services (Exhibit E3 report 2 August 2016) is significantly different from that asserted by the father.
I have had regard to the evidence referred to in the material from the S Child Psychology Service.
There is some evidence, which might lead a court on final hearing that the father has spoken with the children causing them to believe that the marriage breakup was a result of the mother.
Other evidence seems to show that the children worry about how the father will react and how he will cope without the children. If accepted on a final hearing this might be evidence of the father enmeshing his emotions with those of the children. In respect of enmeshment, some of the evidence from Suburb F School was troubling. The report from one of the counsellor’s was that the father had said ‘we don’t talk about people behind their backs so don’t talk to the counsellor about me’.[4]
[4] Exhibit E2 19 September 2017.
There was also a comment on 24 February 2017 that one of the children was at that time scared of the father and ‘does not want to see him’ and that the father smacks the girls and that the father angers quickly.
The mother asserts that the father will do whatever it takes to get his way and does not accept a view different to his. His response to the orders of 14 March 2018 is evidence of this and he did not take any meaningful steps to support the children in staying with the mother.
Valiant efforts were made by counsel for the father to overcome this submission however, the material that was pointed out was hardly convincing.
The mother asserts that the father looks to the children having an unquestioned alliance with him.
The acts of violence asserted against the mother, on the mother’s case, seem to ensure that the children were safe and did not run away. The taking of the telephones from the children was to prevent indirect access to the children via the father’s partner and his friends.
The involvement of the father’s friends, at some stage, seemed to be as surrogates for the father, was also troubling. Particularly the attendance of some of those friends at the hospital when the middle child was admitted in late March 2018.
There is some evidence that the children or some of them feel comfortable in calling their mother a ‘bitch’ and a ‘liar’.
There is also concerning deep expressions by one of the children, which seem to support the mother’s contention of the enmeshment.[5]
[5] Exhibit E15 tab 5.
One of the concerning pieces of evidence was the email asserted to have been sent from the middle child to the eldest child on 13 April last. No doubt Dr K will comment upon it. However, I accept the submission that it seems un-childlike given the language, lack of spelling and grammatical errors and that it seems to be engaging the other children in the conflict.
Senior counsel for the mother spent a significant amount of time showing the fears and concerns of the children and their running away. I have had regard to all of that evidence. I am concerned that the children are at risk in terms of their desire to run away and their reluctance to be with the mother.
What then do I make of this evidence in terms of the children? All three children have expressed strong views that they wish to reside with the father.
Given the circumstances in this case it is unlikely that if the children were placed in the father’s full time care they would have any meaningful relationship with the mother until at least the hearing, and by that time perhaps no relationship into the future.
Similarly, if the children are placed in the care of the mother it is unlikely that she would permit them to have a relationship with the father into the future.
There is a significant risk that the children will endeavour to run away and, in the words of counsel of the father, ‘vote with their feet’. It is likely that the relationship with the mother, which on the evidence seems to have been strong at least in the beginning of 2017, will diminish and cease to be in any meaningful form if the children are left in the care of the father.
I am concerned that the father’s approach to parenting and the separation of the children from the mother, particularly from November 2017 through to March 2018, exposes the children to a risk of psychological harm and inhibits their ability to re-establish the relationship with their mother.
I have concerns about the children in the mother’s care. Whilst there are allegations of violence of which I have had regard, and do not dismiss, I am concerned about their determination to run away and expose themselves to risk in those circumstances. The evidence at the hospital and with the police is deeply troubling.
However, I am also very concerned about the violence, the history of violence of the father, to which I have alluded earlier in these reasons.
The learned Senior Registrar put in place, in my view, sensible orders with provision for the children to spend time with the father in a way that he could move forward. I am concerned that it may be that the father has endeavoured to thwart those orders from the beginning. The engagement of his friends and partner has been troubling particularly when the middle child was in hospital and in ways may be construed as acting as surrogates.
If the evidence of the mother and her witnesses is established, and it is relatively strong evidence, then the father seems to have a mercurial anger and he is dealing with children (at least with the elder two) who are approaching puberty.
Further, there is concern that the father maybe isolating himself and the children from the broader community.
I am not satisfied that the father is willing to encourage a close and continuing relationship between the children and the mother.
It is unlikely that the mother, in these current circumstances, would encourage a relationship between the father and the children given her perceptions of the father.
CONSIDERATION OF S60CC FACTORS
I am required to consider the relevant factors under s 60CC of the Act in determining these parenting issues. In considering these factors, I have had regard to all of the relevant evidence provided during the hearing and findings made by me.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
The children have a meaningful relationship with the father and until recently had a meaningful relationship with the mother. It is the father’s case that the mother’s violence and poor behaviour have caused the children to reject her.
There is some evidence that such a result may be because of manipulation by the father. That will need to be examined by the trial judge.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
I have set out earlier the competing concerns about the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, and family violence.
The allegations are serous and concerning.
Section 60CC(3) Factors
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The apparent views of the children are clear and that is that they wish to live with the father. I have given those views significant weight, however, I need to consider them against the concerns I have as to risk.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The children express a strong relationship with the father. They express a poor relationship with the mother, although there are some aspects of the evidence that they settle down, except the middle child, once if the care of the mother.
There is concern by the mother that the father is alienating the children from her and enmeshing them in his life and with his views.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Until 2017 there was adequate joint parenting. Since that time each of the parties has endeavoured to participate in making decisions about major long-term issues in relation to the children, spend time with the children and communicate with the children. Each parent asserts that the other is interfering with their respective endeavours in that regard.
Section 60CC(3)(ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
This was not the subject of serious argument.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
It was submitted to me that the change on 14 March 2018 was a significant change. That is entirely correct however, there was a change in November 2017 and it is not entirely clear what brought that about.
The children who had previously had a close relationship with their mother became not just reluctant, but resistant to spending time with her and time substantially ceased for a period of four months. This was a progression through most of 2017.
To leave the children in the primary care of the father would likely end the relationship between the mother and the children. To leave the children entirely with the mother is unlikely to end their relationship with the father, although that would need to be considered further with the benefit of the tested evidence and psychiatric report.
I am satisfied that the mother has and does display the capacity for caring for the children through most of their lives. The father was absent from the children’s lives for significant periods of time when he worked in Asia.
There is some evidence, yet to be tested, that the father is a perfectionist and loses his temper when things do not accord with the way he thinks they ought to be done.
Section 60CC(3)(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The difficulty with the children spending time with the other parent is in terms of the children living with their father is whether time would occur with the mother, and whether he will encourage a relationship between the children and the mother.
With the mother the difficulty is that she fears any contact with the father would lead to the children being at risk and being enmeshed in the fathers views of the mother.
Section 60CC(3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Each parent has the physical capacity to care for the children. Each parent asserts that the other does not have the capacity to provide for children’s emotional and needs.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
These are not young children and I have had regard to their age and maturity.
Section 60CC(3)(h)Section 60CC(3)(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother has demonstrated a strong attachment and strong parenting to the children most of their lives. There is criticism of her by the father in the last twelve months and in particular in recent times given his assertions that the children do not wish to stay with her.
I have concerns about the father’s attitude to the children and responsibilities of parenthood. The mother is prepared to challenge the children in terms of bad behaviour such as taking away their telephone.
The father does not seem to offer any significant boundaries and it appears on some evidence that the middle child may be more parenting him rather than vice versa.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
Each of the parties asserts family violence and I have had regard to all of the evidence in that respect.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
I have considered the family violence orders and I have discussed the family violence issues elsewhere in these reasons.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Given the state of the conflict and the proximity of the final hearing, this was not a relevant consideration.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant;
I have considered the issues separately and jointly.
Conclusion
There is evidence that the father has given a different and perhaps unreliable account of a mental health incident recorded by the police.
The father’s family provide evidence that corroborates and mother's allegations of sudden and inexplicable physical violence and his controlling and coercive violence.
I share the concern of the Senior Registrar that this Court could not know whether there is an event that one of the children might trigger a similar violence, such as that asserted by the mother and paternal grandmother.
I am of the view that the children are at unacceptable risk of harm in the father's care, with or without supervision. This Court must act cautiously pending the expert evidence and final hearing.
On balance and in the light of the untested evidence I am satisfied that the children should live with the mother and the mother should have sole parental responsibility for them.
Further, I am concerned given the history of the matter that the father may do whatever it takes to undermine the relationship between the children and the mother and that any time the father spends with the children is likely to lead to the events that occurred between 14 March 2018 and 20 April 2018.
It may be that there will be difficulties in restoring the middle child to the family. That can no doubt be addressed by the judge at the final hearing in August 2018. It is a relatively short period of time, but is necessary given the circumstances of these children. In the meantime I propose to make a recovery order in respect of the middle child.
The Court will be better armed into determining the outcome of these proceedings when all of the evidence is before the Court, it is tested and findings made. It will also be better armed with the expert report.
I am concerned that the children are at an unacceptable risk of harm in the care of the father whether supervised or unsupervised.
I am concerned that the father will continue to use emails and surrogates which may further undermine the relationship between the mother and the children.
The outcome of this interim hearing and the orders are in my view are in the best interests of each of these three children. This must be seen in the context of the present limited options available to me combined with the lack of an expert report and an Independent Children’s Lawyer.
Given all of those circumstances, I intend to make the orders sought by the mother, including the recovery order for the middle child and the orders enabling the mother to move out of the Sydney metropolitan area and the like and I will so order.
I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 30 April 2018.
Associate:
Date: 26 April 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Procedural Fairness
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