MILSTED & MILSTED

[2020] FamCA 565

FAMILY COURT OF AUSTRALIA

MILSTED & MILSTED [2020] FamCA 565

FAMILY LAW – CHILDREN – With whom the children live and spend time – Where final parenting orders for four children were made in 2014 and 2018 – Where the current proceedings relate to the two younger children only – Where the 2018 parenting order provided for the subject children to live with the mother and spend time with the father – Where the father seeks that the youngest child live with him and spend time with the mother and seeks no order in relation to the other subject child – Where the mother seeks that the children live with her and spend no time nor communicate with the father – Where the parents have involved the children in their dispute since separation and the children have suffered as a consequence – Where the mother has engaged with a therapist and has developed insight into her past actions – Where the father has continued to involve the children in the dispute and has no insight at all into the damage he has caused his children – Where the father poses an unacceptable risk of emotional and psychological harm to the children – Where the children will live with the mother, and the father will be restrained from spending any time or  communicating with them.

Family Law Act 1975 (Cth)

Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bant & Clayton [2019] FamCAFC 198
Johnson & Page (2007) FLC 93-344
M & M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655

APPLICANT: Mr Milsted

RESPONDENT: Ms Milsted

INDEPENDENT CHILDREN’S LAWYER: Ms Kushal, Bridges Family Law Specialists

FILE NUMBER: DGC 720 of 2013

DATE DELIVERED: 15 July 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 1 - 3 July 2020

REPRESENTATION

FOR THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Ms C Dart

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms P Kirkman-Scroope

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bridges Family Law Specialists

it is ordered by way of final order that:

1. All previous parenting orders be discharged.

2. Subject to paragraph 3 herein, Ms Milsted (“the mother”) have sole parental responsibility for the children, X born … 2006 and Y born … 2007 (“the children”).

3. The mother keep the children enrolled at and attending B School until their respective high schooling is complete.

4. The children live with the mother.

5. Mr Milsted (“the father”) be restrained and an injunction hereby issues restraining him from spending any time with the children.

6. The father be restrained and an injunction hereby issues restraining him from contacting the children or from communicating with them in any way either directly or indirectly or with the assistance of another person.

7. The mother be at liberty to provide a copy of the family reports (filed 18 April 2017, 18 May 2018 and 8 October 2019 and the addendum report dated 2 July 2020) and the reasons for judgment dated 15 July 2020 to the children’s treating therapist.

8. The mother be at liberty to provide a copy of this Order to the children’s school.

9. Each parent inform the other of any significant health issues experienced by any child living with them as soon as reasonably practicable by email and/or SMS message.

10. In the event that the child, Y, comes into the care or control of the father or any person known to him, the father shall do all acts and things necessary to return Y to the care of the mother as soon as practicable thereafter, but no longer than 2 hours after the child first comes into his care or control or the care and control of a person known to him, with changeover to occur at Hungry Jacks, Suburb C.

11. That a recovery order issue directed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia with such assistance as may be required, and if necessary by force:

    (a)       To find and recover the child, Y born … 2007, and to deliver the said child to the mother at such place as the mother and the person effecting such recovery agree to be appropriate; and

    (b)       To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.

12. The recovery order issued pursuant to paragraph 11 herein lie in the registry for a period of 6 months from the making of this Order.

13. The recovery order issued in accordance with paragraph 11 herein be executed upon a request being made by the mother pursuant to r 21.15(2) of the Family Law Rules 2004 (Cth) accompanied by a supporting affidavit setting out the facts relied upon and the reason for the Order.

14. Pursuant to s 68B of the Family Law Act 1975 (Cth), an injunction issue restraining Ms D from contacting or attempting to contact the child, Y born … 2007.

15. The mother arrange an appointment for the child, Y, to attend upon her treating psychologist as soon as practicable after the making of this Order and arrange the continued attendance of the child upon her treating psychologist as directed by the treating psychologist for as long as therapeutically indicated. 

16. This order be explained to the child, Y, by a senior family consultant appointed by the Director, Child Dispute Services.

17. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order 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 this Order.

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 Milsted & Milsted 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 BRISBANE

FILE NUMBER: DGC 720 of 2013

Mr Milsted

Applicant

And

Ms Milsted

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. There are four children in the Milsted family, namely, W aged 17 years, Z aged 16 years, X aged 14 years and Y aged 13 years. Unfortunately for the children, their parents, Mr & Ms Milsted have been at war with each other for the past eight years and have made it impossible for the children to have an ongoing relationship with both parents.

2. Currently, W lives with the father and has no contact with the mother.  Z, X, and Y live with the mother and only Y has contact with the father. There have been numerous court proceedings and two ‘final’ parenting orders, one in 2014 and one in 2018.

3. The matter returns to court on the father’s application. Initially, the father sought an order for X and Y to live with him, but the father now seeks an order for only Y to live with him.[1] He does not seek any order in relation to X. The mother opposes any change in Y’s living arrangements and seeks an order to restrain the father from spending any time or communicating in any way with X or Y.[2]

   [1] The precise order sought by the father is set out in exhibit 4.

   [2] The precise order sought by the mother is set out in exhibit 1 as amended during submissions (with a written minute of order reflecting the amendments provided after the end of the trial) and kept with the Court papers. 

4. For the reasons which follow, I propose to order that X and Y continue to live with the mother and spend no time with the father and that he not communicate with them.

Issues

1. With the assistance of the parties and the independent children’s lawyer (“ICL”) the following issues were identified as material to the determination of this dispute:

   (1)Are the children being emotionally neglected by the mother?

   (2)Given the relationship between the parents, is it possible for the children to have an ongoing relationship with both parents?

   (3)Is there an unacceptable risk of emotional or psychological harm to the children from the father?

   (4)What is the likely impact on X and Y if they are separated?

2. While each of the parties agreed that the significant issues are as stated above, the focus of much of their evidence relates to historical matters with each accusing the other of lying, being manipulative and of involving the children in the dispute. As discussed in greater detail below, I consider it to be a fair observation that each parent has been guilty of conduct damaging to their children and each parent’s respective focus on the shortcomings of the other has been an unedifying spectacle. Each of them accept as gospel anything their children report about the other, seemingly oblivious to the expectations they have created in their children to report or even make up negative things about the other parent. The children have not been free to have a relationship with both parents. Fortunately for the children, the mother has engaged with a therapist and there has been some significant improvement in her conduct and insight but she still reports as if entirely reliable everything the children tell her.

3. Before turning to consider the issues it will be helpful to set out some background to this long saga.

Background

1. The father is 48 years of age and works in retail. The mother is 50 years of age and a healthcare professional, although she is currently engaged as a foster carer after undertaking an eight month process for approval over 2018/19. The mother receives Centrelink benefits and $80 per month from the father by way of child support for the three children in her care.

2. The parents were married in 2004 and separated on 28 February 2012. They have four children. W born in 2003, Z born in 2007, X born in 2006 and Y born in 2007.

3. The father commenced a relationship with Ms D prior to his separation from the mother and commenced to live with Ms D at separation. The father has three other children to two different women; Ms F is 23 years of age, Ms G is 22 years of age, and Ms H is 20 years of age. The father is estranged from Ms G and Ms H, whom he has not seen for about four years. He occasionally sees Ms F. Ms D has two daughters, Ms J aged 19 years and V aged 15 years who live with her and the father. Ms D works full time in retail.

4. The mother is not in a relationship. Her most recent relationship was with Mr K, which the mother says she ended in 2018 although he remains a visitor to her home from time to time. Mr K is a transport worker and the mother contends that he only ever spent a maximum of two nights per fortnight at her home.

5. The mother’s evidence about the extent of her relationship with Mr K is at odds with what she and Mr K told Ms L, the family report writer, during interviews on 20 March 2017 where they said, among other things:

   a)The mother said she and Mr K began living together in December 2016;

   b)The mother also spoke about Mr K helping Y with her homework and said that she and Mr K work as a team;

   c)Mr K said he would be happy to relocate to Melbourne (which was at that point what the mother wished to do); and

   d)When asked if he would consider staying out of the home while W and Z visited he said “That’s not an option as it is where I live and I won’t move out” and insisted that he would not be staying away from his own home.

6. The mother’s evidence about the extent of her relationship with Mr K is also incongruent with his being registered on the children’s school enrolments as their step-father and with the fact that he was contacted by the school as recently as 27 February 2020 and informed that Y had been suspended for five days.

7. The mother suggested to Ms L at the interviews for the updated family report on 27 April 2018 that Ms L was mistaken about the extent of her relationship with Mr K. Mr K did not attend the interview on this date.  

8. Mr K has six children aged between nine and 24 to two different women. The mother contends that Mr K had mental health problems and made a suicide attempt at her home in 2016 by trying to hang himself from her clothes line. She maintains that X and Y were not at home at the time (W and Z were living with the father) but arrived home when the ambulance was leaving. She maintains she did not tell the children about the suicide attempt and made up a story that Mr K had fallen off the roof. It is common ground the mother called the father and requested he collect X and Y. It seems someone told the children it was a suicide attempt. The mother maintains that Mr K did not return to her home for some time after that incident and recuperated at his parent’s home in New South Wales. She denied in her oral evidence that Mr K had made more than one suicide attempt but refers to suicide “incidents” in her affidavit. Whatever may have been the historical relationship between the mother and Mr K, it seems his presence at her home is now very limited indeed.  

9. In or about June 2012, the mother unilaterally relocated with the children to Victoria. On or about 13 February 2013, the mother commenced parenting proceedings in the Federal Circuit Court of Australia. The mother returned to Queensland with the children in or about September 2013.

10. A final parenting order was made by consent on 22 April 2014. The order provided for the parents to have equal shared parental responsibility and for the children to live with the mother and spend time with the father on alternate weekends, every Tuesday night, and half school holidays.

11. During the period from September 2014 to March 2015, Ms D sent numerous text messages to the mother of an abusive nature. For example, she called the mother “nothing but a two bit slut/prostitute”. Her messages to the mother repeatedly state that the children will know the “truth”. Ms D was ultimately charged and dealt with for offences relating to using a carriage service to menace, harass, or cause offence.

12. The involvement of Ms D and Mr K has historically made matters even worse for the children as each of them participated in the dispute between the mother and father.

13. A protection order was made against the father for the protection of the mother after a contested hearing on 22 June 2015. The order expired on 22 June 2017.

14. In 2015, the mother alleged that the father and Ms D physically disciplined the children and, accordingly, she withheld Z and X from the father from 9 October 2015 to January 2016. W and Y continued to spend time with the father. In January 2016, the father withheld W and he has remained with the father since then.

15. In February 2016, the father withheld Z and the mother withheld X and Y. The children did not see the other parent or each other until August 2016. An interim parenting order was made by consent on 20 August 2016 providing for the children to spend alternate weekends with the other parent. The father ceased time between the mother and W and Z in October 2016 and the mother ceased time between the father and X and Y shortly before the December school holidays in 2016.

16. In November 2016, the mother saw a piece of paper on which was written nine times “Ms Milsted is a fucking cunt”. She contends that X told her he was made to write it by his father as punishment. The police became involved and attended at the father’s home to interview him about it. The father denied all knowledge of the document.

17. Further interim orders were made on 18 May 2017 providing for W and Z to spend time with the mother from 10am until 1pm each alternate Saturday, and X and Y to spend time with the father each alternate weekend. If the father complied with this order at all he did not do so for very long.

18. On 4 July 2017, the father was dealt with for breaching the protection order and fined $400.

19. Further interim orders were made on 15 October 2017 and the mother spent time with W and Z on several occasions. The mother contends that she found the boys rummaging through her personal belongings.

20. The father again withheld W and Z from the mother after 23 November 2017.

21. On 8 March 2018, X and Y were to spend time with the father but X did not attend because he was sick. The mother had provided the father with a medical certificate stating that X had bronchitis and asthma and also included a copy of a referral for a chest X-ray. The mother dropped off Y at the changeover location. The father followed the mother back to her residence in his car. Ms D, W, Z, and Y were all in his car. The father did not accept that X was sick and repeatedly sounded his car horn insisting that X attend. The mother called the police who attended an hour and a half later. The father was directed to leave.

22. The mother offered the father make up time with X. The offer was refused.

23. The mother ultimately decided the best course in relation to W and Z was to take a step back. Her description of their behaviour towards her when they did visit is disgraceful e.g. they would spit and swear at her and when she gave W a kiss he pretended to dry reach and when she cooked a meal they said to her “What is this shit?”. The mother contends that she explained her decision to the boys and indicated her door would always be open for them.

24. On 6 June 2018, a second ‘final’ parenting order was made by consent. No provision was made for W or Z to spend time with the mother. The order provided for X and Y to spend alternate weekends and half holidays with the father. The mother was granted sole parental responsibility for X and Y other than in relation to education. The order also included a number of specific issues orders including the following:

    14.      That during the time the child is with either parent, that parent shall:

    (a) Respect the privacy of the other parent and not question the child about the personal life of the other parent;

    (b) Speak of the other parent respectfully;

    (c) Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

    15. That neither parent will discuss these proceedings with the children or show them court documents filed in the proceedings nor involve the children in adult issues.

    16. That neither parent will question the children about the other parent’s personal life or about what the children do in the other parent’s household.

    17. That neither parent is to attend the children’s schools unless it is to drop off or collect the children, or to attend a parent-teacher interview or a school function or event to which both parents are usually invited to attend or unless a parent is contacted by the school and requested to attend for any reason.

    18. That both parents shall ensure the other parent is kept informed by way of SMS communication followed by email communication as soon as is reasonably practicable and in any event within twenty-four (24) hours of such event occurring:

    (a) Any serious medical problems/emergencies or illness suffered by the children, whilst in the care of that parent (notification to be given forthwith with details of the illness/injury as well as the treating doctor/hospital if applicable);

    (b) Any medication that has been prescribed for the children;

    (c) Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;

    (d)      Any prescribed medication;

    (e)      Any other matter relevant to the welfare of the child.

    19. That the parents shall refrain from making derogatory and/or defamatory remarks about the other parent or members of that parent’s family or partner within the hearing of the children, and that the parents do all things reasonably necessary to ensure that no other person does so.

1. Neither parent appears to have consistently complied with the provisions in that order as set out above.

2. On 1 September 2018, Z ran away from the father’s home and returned to live with the mother on 3 September 2018 after what he said was a physical altercation involving himself and Ms D in the presence of the father. Z told the mother he ran away from the father on 1 September 2018 and stayed with a friend. He said Ms D called him a “fucking cunt” and said “you’re just like your mother”. He further said that Ms D then choked him in the presence of the father. Exhibit 8 is a photograph of Z’s neck which depicts some scratches, apparently to corroborate his allegation. The father and Ms D both deny the incident and the father contends that Z returned to live with the mother because she promised him he could do as he pleased in her household. All the father says about Z’s departure is that it was as a result of a “disagreement”. Z has not spent any time with the father since resuming living with the mother.

3. On 11 September 2018, the father removed Y from the front yard of the mother’s residence where she was playing. The mother contends this was prearranged between Y and the father.

4. On 18 September 2018, a recovery order was made and the father returned Y to the mother on that day.

5. On 19 September 2018, Y left the mother’s home and was collected at the local shopping centre by Ms D. The father denies he orchestrated Y’s departure and contends that Y obtained a lift with an unknown person and then contacted Ms D. The father nevertheless withheld Y from the mother. On 21 September 2018, a further recovery order was made and the father returned Y.

6. In early 2019, Z took some medication belonging to X and was taken by the mother to M Hospital. The father describes this incident as a suicide attempt and says Z remained in hospital for a week. The mother contends it was a minor incident involving Z losing control when she removed his phone. She concedes he took eight sleeping tablets and that she took Z to hospital as a precaution and he was observed for five hours but not admitted. The mother concedes she did not inform the father. I would not describe it as a minor incident.

7. X ceased spending time with the father until a further order was made on 17 June 2019 requiring the time to resume.

8. On 20 November 2019, the matter was transferred by a judge of the Federal Circuit Court to the Family Court as the matter was identified as an ‘intractable dispute’.

9. On 29 November 2019, X ran away from the father’s home alleging the father and Ms D were calling the mother an ugly, fat prostitute.

10. It seems that X spent very little time with the father after about September 2019. He apparently ran away on a number of occasions with neither parent knowing his whereabouts at times.

11. On 13 March 2020, Y did not return to the mother after school. The mother’s text messages to the father asking if he knew her whereabouts were not answered for a couple of hours. The father contends that he received a message from a third party and collected Y who was in a distressed state. He told the mother he would drop Y back to school the following Monday.

12. On 27 March 2020, Y was not at school when the mother attended to collect her. The father had collected her from school allegedly as a result of her distressed request that he do so.

13. On 7 May 2020, the father was ordered to return Y to the mother or a recovery order would issue. The father returned Y.

14. Y is vision impaired and wears quite thick glasses. She has already undergone eye surgery. The mother says she will have further surgery in about 18 months’ time.

15. Y has been struggling at school from time to time since at least November 2018. In November 2018, Y was refusing to participate in her lessons. An email from Ms N, the school’s Head of Special Education Services,  to the mother dated 13 September 2019 included the following:

    … Y doesn’t seem herself in the last couple of weeks. Today she made some comments about 'murder’ in class today. She had some time doing some colouring to calm down. She has needed adult support to calm a few times this week. Y’s first gala sports day had gone really well and Ms Q her coach said she was really enthusiastic. But last Friday, Y decided not to go with the sports team and instead chose to stay at school. At the end of the day she saw her coach and asked if she could join back in, which she was allowed to do. Hope to hear from you about how Y is travelling at home. Happy to talk on Monday if this suits you.

16. There were a number of incidents after that involving Y being defiant and disruptive. In October 2019, Y posted videos on a social media app which included footage of a teacher. Y was reprimanded.

17. In February 2020, Y was suspended from school for five days after punching another student in the back.

18. Y did not engage in online school programs when in the father’s care from March to May 2020.

19. There have been a number of incidents in which Y has been involved at school, ranging from what the school have identified as minor incidents to major incidents. For example, on 8 June 2020 the school emailed the mother with the following information:

    Y had a straw of white powder which she claimed was sorbet and she poured it on the table and sniffed it with her nose, simulating the intake of a drug. She also said she's pregnant, has a baby, and that she cannot concentrate because of this. She lay on the floor near the door. We asked her not to lie down. Y (sic) made a very lewd gesture at her lower genital area as if a child was coming out This distracted another student, who was then disengaged from her learning because of this. Y then went to the toilet, where she came back with a condom pack which was open with a lubricant leaking out and passed it to another student who got the lubricant on his hands. They then threw the condom pack in the bin, and the Teacher Aide asked him to go and wash his hands. I have put this as a minor incident but am very concerned that it could accelerate to something more concerning. Y clearly has a heightened awareness of these real life issues and I'm concerned that, in her current state of heightened anxiety, it would not take much for that to occur.

20. The incident was described by the school as a minor incident.

21. The mother has been in frequent contact with the school and appears to be working with them to support Y and X.

22. While conceding that Z has been difficult to parent at times, the mother contends that he did complete grade 10 (contrary to the father’s assertions) and that he is now happily working as an apprentice (the father does not believe this).

23. W is completing his final year at school. By all accounts he is a fairly quiet young man and in a number of the video recordings (e.g. the video is recording when the father picks W up from school) he engages little in the conversation.

24. X suffers from Attention Deficit Hyperactivity Disorder, Tourette syndrome (he has a facial tic), learning difficulties and behaviour problems. He has been under the care of Dr P since 2010 and the mother has taken him to his six monthly reviews since then. At his most recent review on 14 January 2020, Dr P confirmed that he has prescribed Ritalin (10 mg x 3 twice per day), Risperidone (0.5mg twice per day) and Catapress (150 mg x 2 at night). Dr P notes the following:

    X has completed year 7 but is doing a modified curriculum. It is modified to a year three level. His teacher reported that he is doing very well and coping with the workload. However, when the Risperidone wears off he does become easily led by other children and getting into trouble. It appears that the problem occurs in the second break.

25. The medication is taken only during school term and not on weekends. X’s next scheduled appointment was 9 July 2020. There have been a number of behavioural issues involving X at school in 2019 and 2020. He was suspended for five days in March 2020 for threatening and intimidating another student.

Applicable legal principles

1. Every proposed parenting decision requires application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[3]

   [3]Family Law Act 1975 (Cth), s 65D.

2. A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:

   e)The time a child is to spend with another person or other persons; and

   f)The communication a child is to have with another person or persons.

3. The objects and principles of Part VII of the Act are set out in ss 60B (1) and (2) and those sections make it clear that the court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.

4. In deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration (s 60CA).

5. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc (s 60CC).

6. In considering the primary considerations the court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

7. Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

8. In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the court is satisfied on the balance of probabilities having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding” and proof to the reasonable satisfaction of the court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[4] Where it is not possible to positively reject an allegation as groundless the court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[5] The components which go to make up a finding of unacceptable risk “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 some only of which, are proved to that standard” although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”.[6]

   [4] M & M (1988) 166 CLR 69 citing Briginshaw v Briginshaw (1938) 60 CLR 336, 362 per Dixon J.

   [5] M & M (supra); N and S and the Separate Representative (1996) FLC 92-655.

   [6] See Johnson & Page (2007) FLC 93-344, 81,890, [68], 81,891, [71].

9. The Full Court of the Family Court recently reviewed the role of the court in assessing risk in Bant & Clayton[7] and said:

   In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:

   Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).

   The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment.  As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:

   …Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …

   As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges 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.

   [7] [2019] FamCAFC 198.

10. The Full Court went on to stress the importance of the whole of the evidence in assessing risk and said:

    The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.

11. The court is not required to make findings of fact on every factual dispute raised by the parties.[8] The paramount issue for the court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[9]

    [8]Baghti & Baghtiand Ors [2015] FamCAFC 71.

    [9]M & M (1988) 166 CLR 69.

12. 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.

13. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the court (s 61C).

14. Section 61DA 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 there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

15. Where the presumption does apply, the court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

16. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

17. Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[10]

    [10]Banks & Banks (2015) FLC 93-637.

18. I turn now to consider the issues in this matter.

Are the children being emotionally neglected by the mother?

1. It is not entirely clear what evidence the father contends supports his assertion that the children are being emotionally neglected by the mother. The father asserts that Y wants to live with him so she can “just be a child” and that she is subjected to emotional abuse in the mother’s household.

2. The father is certainly highly critical of the mother and accuses her of “parental alienation” in relation to Z and X who now refuse to see the father.

3. In March 2017, the family and significant others were interviewed by Ms L for the purpose of a family report. In Ms L opinion:

   12.2 It was very clear to me that the sibling group has been subjected to cumulative harm through emotional and psychological abuse as a result of the ongoing conflict between the parents. …

   12.3 … Cumulative harm refers to multiple instances of adverse circumstances and events in a child's life. Such events can result in profound and significant impacts on a child's sense of security and safety. Persistent emotional harm, neglect and witnessing parental dysfunction results in a child's self worth and trust being diminished. … children are often influenced by one parent negatively about the other therefore impacting on the child's ability to form trusting relationships in the future.

4. In my view, it is fair to observe that Ms L’s concerns at that time were more about the mother than the father. In particular she assessed:

   12.10 … that Ms Milsted is struggling to promote a relationship between the children and their father. She appears fixated on the past relationship and I am concerned she is now involving the children in adult issues that are only going to cause the children more emotional harm …

5. There were some concerns about the father expressed by Ms L and he concedes he was advised by Ms L about the inappropriateness and possible harmful impact of video recording the children for the purpose of evidence gathering.

6. Historically, I am in little doubt that the mother involved the children in the parenting dispute. That much is clear from the first family report in 2017.  At the time of the interviews in March 2017, only X and Y were living with the mother. X told Ms L, the report writer, the following:

   a)His parents do not get along;

   b)“Mr K doesn’t like my dad”;

   c)He thinks it is mean of Mr K to say bad things about his father;

   d)His father locked himself in the car to avoid having to get in a fight with Mr K;

   e)His mother made him talk to police and others about his father;

   f)He was really upset when his mother took him and his siblings to live in Victoria;

   g)“I’m not waiting until court is over to see my dad and I want to see him now”; and

   h)He did not want there to be trouble between his father and Mr K.

1. Ms L noted that her observations of Y with her father and brothers were “incongruent” with what she told her during interview. Y told Ms L the following:

   a)“Dad has been keeping my brothers away” and is “splitting the family apart”;

   b)Ms D took all of the Christmas presents and gave them to her own children;

   c)“My mother doesn’t tell lies”;

   d)“My father abuses us and he gave me a love bite on my neck”;

   e)“I have seen him choke Z by the neck and he brainwashes me” (Ms L explored this with Y who could not tell her what ‘brainwash’ meant); and

   f)“I tell my mother everything that happens at dad’s because she worries about me”.

2. Ms L made the following observations of Y with her father:

   7.2 Despite having told me prior to her father arriving that she didn't want to see her father and she wanted to stay in a separate room, as soon as Y saw her father, she ran to him smiling and laughing and jumped into his arms telling him how much she loved and missed him.

   …

   7.5 … Y, who had initially spoken of how fearful she was of her father, asked her father if she could come and sit close to him and when she did she was also observed to cuddle in under his arms …

   7.6 At the conclusion of contact X and Y were very upset at their father having to leave and were visibly crying and holding on to him for as long as they could.

3. During Ms L interview with Mr K he admitted he had said things to the children about their father and said that if the children were his he would never send them back to the father. Mr K also confirmed that he and the mother had taken the children to police “at least four times .. possibly more”.

4. When the mother was interviewed, Ms L observed that:

   [The mother demonstrated] very emotional responses to questions regarding the children throughout the interview and when discussing the pros and cons of her views and wishes she displayed significant distress.

5. For the purposes of her report, Ms L spoke to child safety officers from the Department of Child Safety, Youth and Women (“the Department”) and was informed that the mother’s various complaints about the father’s alleged physical abuse of the children had been unsubstantiated (this information is not quite borne out by letters received by the mother from the Department but it seems these letters relate to an earlier period and will be discussed below). Y was interviewed by police about the mark on her neck and the assessment made was that there was no cause for concern. The Departmental assessment of the mother’s household noted that the children “continually used adult language and referred to child abuse by the father” and the Department recorded “substantiated for emotional harm with the person responsible noted as the mother”.

6. Further information about the s 93A police interview with Y was provided to Ms L by a child safety officer from the Department including the following:

   … her mother telling her she is going to the Police station today to speak of a "love bite" which is what ''girlfriends and boyfriends do". Y further claimed adult statements such as her father "abused her" and that her father "is a perve". … she is brainwashed at her fathers due to him telling her to say lies about her mother and her mother telling her to say lies about her father … visibly distressed and crying…she wants to see Z and W and be a normal family. … probable at this time that Y was not abused by her father and was told by her mother to make allegations against him to Police. … Y has suffered emotional abuse, resulting in cumulative emotional harm, due to the probability of her mother coaxing her into making allegations against her father to satisfy full custody of her through Family Law. Ms Milsted has been assessed as a parent both willing and able to protect Y and X from harm. … Y has been emotionally harmed by her mother …

7. The education files inspected by Ms L established that the mother had instructed the school that no information was to be provided to people other than herself and the step-father, Mr K.

8. On 20 April 2018, a second family report was undertaken by Ms L. As with the earlier family report, Ms L noted the close sibling relationship amongst all four children. During the mother’s interview with Ms L, she described how her counselling sessions with Ms R had been so helpful stating that she “has taken her from being an angry defensive mother to now being completely child focused and able to move forward”. The mother had also completed a parenting orders program which she said she had found very useful. The mother acknowledged that Y told her she wants to live with the father and that when she returns from the father’s home she is cold and distant for a time before returning to normal. The observation of the mother with W and Z was much more promising than the previous occasion. The boys willingly engaged with the mother and even exchanged physical affection. Although Ms L opined that there was some tension in the room, she observed the mother to handle the situation very well. She was described as “warm and positive” and was able to have conversations with all four children and divide her time among them equally ensuring the younger ones did not feel left out. There was no conversation about the father or his household or the court proceedings.

9. In Ms L’s interview with W he appeared to understand why the mother had stepped back. He spoke of wanting to see X and Y (Z was still living with the father and W at this stage). Z appeared very tired on the day of the interviews and expressed his frustration at the ongoing court process.

10. In these proceedings the mother now acknowledges her part in exposing the children to the dysfunctional parenting relationship she had with the father for so long. However, she contends that after undertaking therapy with Ms R she has vastly improved. This is corroborated by Ms L in her second family report. When Ms L spoke to Ms R in 2018, Ms R told her that the mother was initially “emotive and reactive in her parenting style and would easily become overwhelmed and at times hysterical about her co-parenting relationship” with the father. She had, however, worked with the mother and significant improvement was noted. Ms L agrees that the mother has made significant inroads in acknowledging her part in the dispute and changing for the better.

11. Y has said that she cannot get a hug from her mother and I suspect that the child may well feel that she does not receive enough or sufficient attention from the mother. However, the mother describes spending one on one time with Y and their enjoying each other’s company. I accept that the mother does her best to meet the emotional needs of all the children. Z and X provide significant parenting challenges to the mother and she now also has the full time care of a foster child, and during the trial took into her care another child on a short term foster placement. Ms L stated that the mother would have gone through a rigorous assessment process before being accepted as a foster carer. Indeed, the mother says the process took eight months. While I have some reservations about the wisdom of the mother taking on the extra demands of being a foster carer, I take some comfort in the fact that her household has been subjected to rigorous assessment and is likely to continue to be assessed from time to time for so long as she remains a foster carer.

12. While I accept the mother did expose the children to emotional harm in the past, I reject the father’s contention that the mother is emotionally ‘neglecting’ the children.

Given the relationship between the parents, is it possible for the children to have an ongoing relationship with both parents?

1. The Department and Police have been involved with this family from time to time. In a letter from the Department dated 24 July 2015, the mother was advised that the father had been assessed as causing “significant and detrimental emotional harm to the children” due to “ongoing consistent disclosures made by the children”. In a further letter to the mother dated 1 December 2015, she was advised the following:

   … assessed that there is sufficient evidence that the children have suffered emotional harm. This is as a result of the information provided by all the children that indicates they have been exposed to adult conversation, adult conflict and potential manipulation and coaching my Mr Milsted and yourself. Mr Milsted has also been recorded as the person responsible for emotional harm as a result of physical discipline.

2. The 1 December 2015 letter also refers to an agreement reached by the parents with the Department in the following terms:

   ·Negative behaviours towards the children such as name calling, abusive language, physical discipline with implements, choking, a fist to the head, pining someone against the wall, pushing, threats of violence and constantly questioning the children in relation to what they do with the other parent were not to be utilised.

   ·Discipline techniques such as removing items from the children, grounding them, time in their room or not providing special treats (like a 30c McDonalds cone) were to be utilised.

   ·Positive behaviours that were agreed upon were spending one-on-one time with the children, spending quality time with the children, telling the children you love them, food rewards (like tuckshop), technology rewards and simple rewards (like getting the eggs from the chickens or sitting in the front seat of the car).

   ·When the children tell you things you don’t like in relation to what happened at Mr Milsted’s house you are going to pick your battles and explore the context of the situation with the children and Mr Milsted.

   ·When you are worried about what happens at Mr Milsted’s house you are going to send a SMS message with a question to obtain context in relation to the situation and use your manners.

3. An order made on 5 October 2017 included a requirement for the parents to attend family therapy as follows:

   16. The parents do all acts and thing necessary to commence and attend for as long as therapeutically indicated, a course of counselling with a child psychologist, recommended by the family report writer or as otherwise agreed upon between the parties (“the parents’ counsellor”), with such counselling to be focused on:

   (a) accepting responsibility for their role in the dispute;

   (b) the impact on the children of involving them in the parents’ dispute;

   (c) how to communicate with the children in a child focussed manner when issues of an adult nature are raised with them; and

   (d) learning how to be solution focussed in their relationship with the other parent;

   (e) with such counselling to be non-reportable, save for the details of the parents’ attendance.

4. The therapist was Ms R. The mother embraced the therapy. The father attended two sessions only and alleges that Ms R was biased against him.

5. While Ms L said in her 2018 report that it was pleasing to see a “significant change” in the mother’s insight and “understanding of how the past parenting has impacted on the children” she opined that “it is unlikely this will rectify years of dysfunctional and reactive parenting”. Ms L expressed disappointment that she did not see the same “change or insight” in the father. In her view, the father “does not seem to be able to accept his role in the parenting dysfunction over many years”. She opined that “[d]welling on the past actions of each parent will not assist the family moving forward”. Ms L left the reader in no doubt about her significant concerns relating to the father involving the children in video recordings and social media posts denigrating the mother. In her view, both parents have been involved in an alienating parenting style which will cause the children to have “significant difficulties in forming and maintaining relationships in their own lives”. The ongoing consequence of that type of dysfunctional parenting style was likely to cause the children to “feel the need to develop an alliance with one parent over the other”.

6. Mr Milsted did not express concern to Ms L about the level of care X and Y were receiving from the mother and proposed that the children spend equal time with each parent.

7. On 29 July 2019, Ms L undertook interviews for a further family report. During her interview with Z he again presented as very angry and upset but this time with the father and said he wanted nothing to do with him. The father described Z to Ms L as “a gangster [who] hang[s] out with trashy kids”. W expressed frustration at further involvement in the court proceedings. He said he enjoyed living at his father’s and while he loved his mother, he would rather wait until the court proceedings are over before seeing her. Y was quite upset during her interview and told Ms L that her parents do not like each other and that she loves both parents but gets caught in the middle. Y said that Ms R had never listened to her and “took sides against dad”. She said the “worst thing that could happen is if the court says that she has to live entirely with her mother”. Y desperately wanted her parents to get along better. Ms L opined that Y appeared to have quite a lot of knowledge about the court case. X told Ms L that he no longer wanted to see his father because he “is very aggressive to him and he will physically discipline him”. He described an incident involving the father grabbing him, pushing him up against a wall and ripping his shirt. He said that Ms D intervened. The father denies ever physically disciplining the children. Ms D describes occasions when she has intervened in altercations between the father and Z and X. She said that when the father becomes angry at the boys he yells at them including yelling the word “fuck” and on several occasions when he has grabbed them by the arm she has intervened. X said that his father told him he will be in prison by the time he is 18 and that he does not care about him. X felt Y was being forced to take sides and that Y “loves it there [at the father’s] because she is “dad’s queen’”.

8. In Ms L’s view, all four children continued to demonstrate a close relationship with each other. She particularly noticed that W and Z were interacting well and that W and the mother exchanged physical affection. Z refused to see the father on the day of the interviews. Mr Milsted challenged Ms L about this and continued to raise it in front of the children. X had also objected to seeing the father but was persuaded to do so by Ms L.

9. The background to this case leaves me in no doubt that the parents’ relationship is unlikely to improve. There has been little improvement in eight years. While the mother has now developed considerable insight, the father has not developed any. He has continued to involve the children in the dispute despite clear advice from Ms L since 2017 about the damage such conduct causes the children. The father’s ongoing conduct in videoing the children and his fixation on proving himself to be in the right is nothing short of reprehensible. The father cannot see himself as anything other than the victim.

10. I accept Ms L’s very helpful insights and opinions. Many of her predictions have sadly come to pass. Ms L provided very helpful advice to the parents and prescient warnings on the impact of their conduct on the children. She provided the father with a guide map for improvement which he has chosen to reject. He eschews the need to attend upon any therapy because, in his view, he has no faults.

11. It is so tragic for the children because I have no doubt that if the father had been able to change his ways, as the mother has, the children would all have maintained a relationship with him. It is particularly difficult for Y, who desperately wants to have a relationship with the father. I accept she wants to live with the father. The mother accepts this and expects that Y may well run away from her for a time if her wishes are not acceded to by the Court, but as the mother’s counsel submitted and I accept, if the child lives with the father, she will be lost. Not only will she lose her relationship with the mother but also with her brothers, Z and X.

Is there an unacceptable risk of emotional or psychological harm to the children from the father?

1. Throughout the last eight years there are many examples of conduct by the father which have exposed the children to emotional and psychological harm. I set out some of the worst examples below.

2. Sometime in 2014 or 2015 the father recorded a video of himself and uploaded it to an internet site he created entitled ‘…’. The channel is open to the public. The video is an appalling rant by the father. The content of the video includes statements such as:

   ·“Making false statements to police is okay as long as you are a woman”;

   ·“Lie lie lie lie, it’s okay. The police will not prosecute you for lying … You gotta put some bullshit in there”;

   ·“You’ve gotta break down okay. Now I know you women out there. Some of youse are fucking good hey. You can turn on the tears”;

   ·“Legal aid love women”;

   ·“Get into the schools”;

   ·“Now you gotta fuck the kids over too unfortunately, but it’s okay. There’s plenty of social workers out there to try and reboot these kids’ brains in a few years’ time;

   ·“You gotta just keep throwing that shit out there becauses the fucking idiots will listen. … DOCS, the Department of Child Safety fuck”;

   ·“Threaten the kids, you’ve really gotta fucking get into them fucking kids”;

   ·“You’re not concerned about the kids’ welfare … All you’re trying to do is fuck that good man over”;

   ·“Department of Child Safety, good. You really gotta do it good because they will believe whoever gets in first”;

   ·“You gotta keep going back until you get exactly what you want”;

   ·“The father will be in and out of court maybe 20 or 30 times. The money that’s coming out of that sucker’s pocket. He’s fucked”;

   ·“Fuck you bitches… Fuck you. Fuck the system. The system does not look after men at all. Things need to fucking change”;

   ·“Did you know 21 men commit suicide every week in Australia as a direct result to family law issues”;

   ·“I’m not saying anything like that happened to me. Not at all” (the father’s facial expression on the video indicates the opposite);

   ·“Domestic violence system. What a fucking joke. They need to abolish that fucking bullshit immediately”;

   ·“Just don’t look at the bitch sideways. No fuck no man”;

   ·“I know men that have got domestic violence orders on against them, I don’t look on them as bad men at all”;

   ·“If there’s a man beating the shit out of a woman no one condones that bullshit … but what about the fucking bitches who make this shit up … The courts are so fucked up … So all you can do is bend over and get fucked up the arse”;

   ·“Men have no fucking hope at all in the current system”;

   ·“Fuck you bitches, fuck you all.”

3. At the end of the video recording there are two comments as follows:

   W: I have a mum like that and she is a real bitch.

   Mr Milsted: yes mate I think I know her.

4. The father, during cross-examination, initially denied that he was talking about his own alleged personal experience with the mother during his video rant but given the comments made on the site by his son and his response, the father eventually conceded that he was in fact directing his comments to the mother.  The father sought to minimise the seriousness of this public video and gave some self-serving evidence suggesting that an unnamed judge had accepted that the father was simply frustrated. The father appeared to have no insight into the impact on his children of such a video. Clearly at least one child, W (who was only 11 at the time) accessed the video. The father said the video was taken down after three weeks. 

1. On 11 June 2017, the day after W and Z had spent some brief time with the mother, she received a text message purportedly from W and Z alleging that W’s hat had not been returned. While the mother denied that W was wearing a hat, it would have been highly provocative for him to wear the one included in the photograph of W sent to the mother which had a logo …. The father concedes that this is the motto of a political organisation of which he is a member.

2. The father also concedes that he has taken the children to events organised by the political organisation but minimises the significance of this by suggesting “it was only a barbeque”, yet he acknowledges that the adults in attendance discussed the grievances for which the organisation was established i.e. being badly treated by their “exes” and the “family law system”. The father does not see any problem with his doing so.

3. On a weekend shortly after the father was dealt with for breaching the protection order against the mother in mid-July 2017, he collected X and Y from school and three video recordings taken over this weekend by the father form part of the evidence. From the moment the children were picked up from school by the father he records them.  The father has a recording device attached to the sun visor on the driver’s side of the vehicle. The children are aware the father is recording them. The father tells the children about being fined for breaching the protection order and how unjust it is. He tells X and Y that W and Z sent text messages to their mother. It is clear the children know about the messages and that they were derogatory of the mother. The father relates in detail his version of what happened at court. The father repeatedly questions the children about their mother and makes numerous self-serving statements. He repeatedly disparages the mother. The father shares his views about the family law “system” and how it is unfair and biased against men. X at one point tells the father to take him to court so he can “give the finger to the judge”. Many of the father’s sentiments expressed in the video (discussed above) are expressed by him to the children, although without the expletives.

4. What is striking about X in each of the three recordings is his pathetic eagerness to please his father by complaining about the mother. The father directs the conversation with constant questioning and affirmation of the child’s criticisms. The father repeatedly disparages the mother and encourages the children to do the same. Y is notably quiet, for the most part studiously looking at her phone and only rarely involving herself even when she takes the front seat of the car. X continues from the back seat to take centre stage. It is so sad to watch. These children clearly want attention from their father which is forthcoming when they say anything critical about the mother. The father involves the children in his plans about the family court proceedings and they offer their advice suggesting to the father that he show the videos to his solicitor.

5. Rather presciently, Ms L predicted in her March 2017 family report that X would be likely to start developing similar feelings to his brothers about the mother.

6. After the incident on 8 March 2018 (when X was sick and unable to spend time with the father), the father posted remarks about this incident on Facebook as follows:

   Fucking school holidays. The ex-wife only lets me have one child because the other child is sick. I call police and they say Sorry there is nothing we can do. This fucking shit never stops, 8 years of the children (sic) mother saying no you can not (sic) have the kids. The poor police are only doing there (sic) job I know that it’s the fucked up family Law system.

   The police said the only way we can get involved is if you do something wrong. Yes let's bush (sic) the poor father’s (sic) over the fucking edge. I feel so sad for the poor father’s (sic) that do not have the strength to stand up and just get fucked up year after year.

7. W commented on the father’s Facebook post as follows:

   Absolutely disgusted in what my mother has done over the years, today me, my dad and my step mother where (sic) supposed to pick up my little brother and sister, we only managed to pick up my little sister Y but my mother did not bother to hand over X even though we were supposed to see him. Police were notified about this but choose to do nothing as my mother is a woman. Because of bull shit like this one day I will sue the government for the pain and suffering they have caused me and my family. X was so excited to see everyone but my mother decided to ruin everyone’s day.  Absolutely disgusted in what has happened.

8. The father commented on W’s comment as follows:

   We must all stay strong Son. I know you see me upset but I have support from the political organisation

9. Other people on Facebook also make comments and offer support and advice seemingly oblivious to the damaging impact on the child of being embroiled in his parent’s bitter dispute.

10. During the second family report in April 2018, Z was defensive with Ms L and expressed how unfair it was that the mother had not permitted X to come to the father’s when he was allegedly sick. He accused the mother of “feeding X sleeping pills and one day he is going to overdose”. He said he did not want to visit the mother anymore. X was very “hyped up” during the interview session. He said W and Z did not want to spend time with the mother “because they know the truth.” He said he loves it when his father takes video tapes of their life and that his father was going to make a big movie with all the video tapes he has made about their “dramas” and all “the games [his mother] had played”. Y said she likes it at her father’s house because he loves them. She said her mother still has her father’s contact on her phone listed as “fuck head”. The mother denies this.

11. In her interview with the father, Ms L reports the father complaining about the occasion when the mother did not let X come to his home when he was allegedly sick. He nevertheless confirmed that apart from that one occasion, X and Y had been spending alternate weekends and holidays with him. He informed Ms L that the mother gives X sleeping tablets when she goes out to parties. Her observation of the father and the children caused Ms L to state:

    7.4 … I found it unusual that there was so much discussion that involved Ms Milsted, whether this be how much she gave W for his birthday, how much the new dog she had bought cost, or the state of X's bedroom at Ms Milsted's home. At one point there was a comment about X not telling his mother what he was doing on his iPad or his mother would probably take the iPad off him which everyone laughed at.

    …

    11.7 For at least 40% of the time they spent together for this updated report, they were discussing issues relevant to Ms Milsted's household. … The focus for the children in the care of Mr. Milsted should be on his household and what they do together not worrying about Ms Milsted and what occurs when the children are with her.

12. In the interviews conducted by Ms L for the third family report on 29 July 2019, Z referred to the father as a “brain washing dog” and said he hated him. He told Ms L that the father had for so many years made him believe the mother was a “prostitute, a slut and a whole lot more”. During these proceedings the father maintained that he had “proof” the mother worked as a prostitute. The father just does not seem to understand that whether or not the mother was ever a prostitute is not the point. It is how he has dealt with the information he says he has and how he has involved the children in his belief. Z makes various claims of physical abuse against the father involving himself and X and said that the father told him that if he went to live with the mother he would kill him. W told Ms L that Z had returned to live with the mother because he did not like the father’s rules and because he did not like having to clean up. W said he enjoys living with the father but was sick of the court proceedings. 

13. In her interview with the father, Ms L opined that he “appeared fixated on the court process and proving that he was the better parent” and “when challenged about his views regarding the children, he appeared to show minimal insight into the poor parenting practices from the past”. In Ms L’s opinion, the father “still cannot accept responsibility for his part in the dysfunctional parenting the children have been subjected to over many years”. The father related to Ms L that Ms R had told him that he had to admit his faults but he said he did not know what his faults were. He said Ms R was one-sided and gave him no support. He was not willing to see anyone else as he believed counselling was a waste of time. He told Ms L that he has no doubt that Z and X will be in gaol by the time they are 18. He accused the mother of ruining the children. Ms D did not attend the family report interviews. The father said she was sick, however, Ms D conceded during oral evidence that she had gone to work.

14. Ms L assessment included the following opinions:

    9.1 …The children in this family have been subjected to dysfunctional parenting for the majority of their lives and the impact of this chaotic and toxic parenting is clearly evident. It is a concern to me that the concerns before the court have been ongoing for many years and the children's ongoing exposure to the court process, assessments and reports are having a significant impact on them emotionally due to a lack of insight by the parents in the past and more recently Mr Milsted. …

    …

    9.3 Parenting toxicity and dysfunction is rarely one sided and over the years until early 2018, Ms Milsted and Mr Milsted were both equally responsible for exposing the child[ren] to a cumulative style of harm. When speaking about the past, Ms Milsted recognises how reactive she was at that time and that taking the children to the department hoping that the child protection system would intervene was harmful to the children and only exacerbated the process.

    9.4 When there is dysfunctional parenting occurring and the children are being exposed to unnecessary adult conflict and toxicity, it takes both parents to address their individual deficits and learn to start to respect that the children are the product of both parents. Both parents need to accept their roles in the dysfunction and be strong enough to accept their faults and willing to make changes in themselves for the sake of their children. Unfortunately for these children, only one parent has been willing to accept their faults and strong enough to admit the way they did behave wasn't in the best interests of their children.

    9.5 … Mr Milsted still believes that he has done nothing wrong and appears to believe that Ms Milsted is still the parent responsible for the children suffering harm. Even when told that Z didn't wish to attend the observation period, Mr Milsted continued to confront me about this in front of the other children multiple times.

    …

    9.7 …without both parents being willing to address their respective issues, it is my view there will be no other option for the court to consider than the children living with the mother and spending no time or at the very least supervised time with the father. It is my view that Mr Milsted will continue to expose his children to abuse and parental alienation as he cannot accept the role of Ms Milsted in the children's lives and he continues to hold a belief that he is the parent most suitable to care for the children.

    9.8. …. Y appears to be a very conflicted and confused child who does not appear … to be coping emotionally. … It is my view that both X and Y need to be protected from further harm caused by Mr Milsted. If the court believes it is in the children’s best interests for the children to continue to see their father, this should be on a supervised basis at a contact centre able to deal with Mr Milsted’s aggressive and nonchalant attitude towards the court proceedings and his children’s needs.

15. Notwithstanding the repeated advice to the father by Ms L and others about the damaging impact of the father video recording the children, the father video recorded an encounter between himself and X in about February 2020. Y was also present. X asks the father why he is videoing him. X also appears to be videoing the father. The father makes comments about X’s appearance, suggesting he walks the streets like a gangster and is a disgrace. He tells him to get a haircut. He tells the child he will be in “juvi” within a month. The father explained that this was a reference to juvenile detention i.e. getting into trouble with the police. The father comments to Y that X “is just gone”.

16. In another video recording, Y and the father engage in a conversation in the car while the father is driving. He directs questions at her and encourages her to make disparaging statements about the mother, Z, and X. Y refers to her mother as “that woman” and enthusiastically describes alleged events in the mother’s household. She is quite dramatic. Y presents as highly invested in the dispute and her demeanour bears similarities to X’s pathetic eagerness to please the father in the 2017 video.

17. In yet another video recording, Y films herself in the father’s car. She is very keen to say that no one has put her up to this and indicates that no one else is in the vicinity. She directs her comments to “the judge”. She says many things including:

    ·Judge why are you always saying that mum is right dad is wrong. It is the other way around;

    ·I called dad to ask how court is going;

    ·Judge you always believe my mum. You never believe my dad. He tries to say to me that the judge is a good man;

    ·I saw my dad cry yesterday. He could not hold it back. My step mom Ms D cried at work today. I am scared I don’t know what is going to happen;

    ·I just want to live with my dad;

    ·It is peaceful at dad’s, I can be a kid a dad’s;

    ·The only person I really love there is X at the moment;

    ·The reason Z and mum get along and are so alike is because they are both narcissists I looked that up on the internet site;

    ·Us kids are in the middle;

    ·I am angry because I have to go back. I’m sad because I don’t want to leave my dad;

    ·Mum walked out of the courtroom laughing;

    ·Mum has Mr K’s money and that is the only reason she is keeping him around;

    ·I don’t feel safe at mum’s house;

    ·My dad loves me;

    ·With my mum there is nowhere to go when I am sad. My mum doesn’t help me with my situation. She just says go to your room or go and calm down. The only thing that will help me is if she physically hugs me;

    ·I hope you watch this video mum and see how much pain you have put me through; and

    ·I love you to bits mum. I hate the way you treat my brothers like little toys. Let us be.

18. During the recording, Y appears very upset at times and even holds the camera close to her face so that the viewer can see what she says are “real tears”. She then settles remarkably quickly and suggests that she will probably make a “part two” next time she goes to the father’s.

19. After Y failed to return to the mother’s home after school on 13 March 2020, the father video recorded his drive to collect Y and when he collected her there were third parties present. The father does not inform these third parties that he was recording them. The father had a camera on a lanyard around his neck. The father mentioned the ongoing court proceedings in front of the child.

20. On or about 13 May 2020, Y told her school counsellor that she had tried to kill herself on her birthday two days earlier; earlier in the year she had tried to hang herself but was interrupted by her mother; and that the previous year she had overdosed on X’s medication. The mother refutes all of this. The mother says that after Z took X’s sleeping tablets in early 2019, all his medication has been locked away. She denies she ever interrupted Y trying to hang herself. Nevertheless, after these claims were brought to the mother’s attention by the school counsellor she arranged for Y to consult a psychologist, Ms S, whom Y has seen twice and will continue to see for as long as necessary. The mother did not inform the father that Y was seeing a psychologist. 

21. On 16 June 2020, Y sent the father a screen shot of a letter allegedly written by her. The father provided the child with an email address to enable the child to send it to the Court. There were numerous text messages between the child and the father and involving the father’s employer prior to the document being sent to the father. The content of the ‘letter’ is as follows:

    Hi my name is Y I am at school I cant stop thinking about court no one told me to write this but I think I have to at this point I have been wanting to live with my dad since grade 4^th there is proof. I am tired of the way I am treated court I only 1-2 weeks away you have no idea how scared I am. I don’t want to live with my mum can it be anymore clear I am done with my mum and her mind games she treats me like I am only 5 its so sad she overdoses me and my brother X. I want X to live with Mum and Z and Me and W to live with my dad that’s what I want and I want court to end for good no back and fourth. I think its great I am writing this just to tell you a little about myself I have been dealing with my sadness ways I shouldn’t I have overdose before it didn’t work sadly just made me so tired and sick of ur bullshit even more. And yes Z has overdosed before in 2019 when he was 15 in my mums care and the marks on Z next in 2018 was because of Z he self harms himself I have seen cuts on his wrist I cut to because that’s how I deal with it. And I have seen both of my brothers Z and X spiral down hill. X got rolled in 2020 because he dresses like and Eshay [as Eshay is a wanna be gangster] They both drink and smoke cigges not gonna lie I drink with X mum lets us. I hope everyone sees this because its true its not black and white its colour ful.

    REASONS WHY I WANT TO BE WITH MY DAD

    -He cares about me

    -He tells me the truth and he should

    -He makes me feel safe and wanted

    -He wants whats best for me

    -He makes me feel so loved and happy and when I am with him its like a fair tall I miss him so much

    -He doesn’t leave me through out the night like mum dose

    REASONS WHY I WANT TO LIVE WITH MY MUM

    REASONS WHY I DON’T WANT TO

    -She makes me feel like I am worthless

    -She overdoses me

    -She only wants people for money

    -I have to put speaker on when I talk to dad on Tuesday and Thursday at 4pm

    -Mr K scares me

    -When I wet the bed she just laughs and takes pictures and shows everyone

    -And many more you get the picture

    I am fed up It hurts me inside and out to even write this I am crying because its so true and so wrong. But no one likes to listen to me and how I feel. I feel so bad for X and Z because they see it as they get whatever they want when they say dad hits me dad bashes me that is the most fatest lie I have ever heard it makes me so sad because my mum allows it. I am just so hurt so fucken sad just wanna die because of the pain my mum has caused me. 558 words of nothing but facts.

22. The many video recordings made by the father include occasions where he films his FaceTime communication with the children and generally makes self-serving comments throughout. In one of those recordings, the father laughs when Y says she intends urinating on the mother’s pillow.

23. It is curious that while the father continues to blame the mother entirely for Z and X not seeing him, he fails to consider his role in the boys refusing to have anything to do with him. The father concedes that Z left his care after about two and a half years on 1 September 2018. During that time, Z spent no time with the mother. All the father says about Z’s departure is that it was as a result of a “disagreement”. In my view, it is likely to have been a great deal more than just a “disagreement”. Whether or not Z’s version of what happened is correct, the father cannot legitimately lay all the blame on the mother for his estrangement from Z. In relation to X, I have viewed the father’s video recordings from in or around July 2017. When the father meets up with X in 2019 and again in 2020 he video records his son and continues to do so even when X asks in a distressed tone “why are you recording me?” X tells his father in the later video recordings that he is sick of the father disparaging the mother.

1. Unfortunately, the father’s obsessive motivation is to ‘prove’ himself right. Indeed he says in his affidavit – “I was not going to let my children grow up thinking I was in the wrong ever” and “I will not let my children think for one second I am in the wrong…”. This fixation has blinded him to the damage he has caused his children.

2. Y has now become as pathetically eager to please the father as X was in 2017. I have no doubt she loves her father and wants to have a relationship with him. Unfortunately, the only way she can do so is to ‘inform’ on her mother and brothers and reject them.   

3. Given the father’s continuing conduct and inability to display any insight, I conclude that there is an unacceptable risk that the children, and in particular Y (the only child about whom the father seeks an order), will be exposed to emotional and psychological harm if she spends time with or communicates with the father.

What is the likely impact on X and Y if they are separated?

1. X and Y have always lived together. They are the one constant in each other’s lives. All of the children have a close relationship but sadly have not been able to maintain that relationship. If Y were to live with the father, she is likely to lose her relationship with X. She has always lived with X and described him recently as the only person she loves. Sibling relationships are particularly important in high conflict parenting disputes and the loss of their sibling relationship would have long term detrimental consequences for X and Y.

Conclusion

1. Ms L, the family report writer, aptly summed up this case when she said during her oral evidence:

   Mr Milsted, I think you want it to be over and I think Ms Milsted wants it to be over and more importantly, your four children want this to be over. And I have met them now numerous times and I feel today, looking through all this material, I felt physically sick for your children because I think they have gone through far too much in their young lives and I think that their views about their mother and their father have been quite distorted and I think it is really sad.

2. The children in this case have not been permitted by their parents to have a relationship with both parents. The Department engaged with the parents as long ago as 2015 and obtained some agreement from them to change their ways. They did not. Ms L predicted in her first family report in 2017 the dire consequences for the children if the parents did not stop what they were doing to their children. I am in no doubt that many of the problems the children have experienced up to now and are likely to experience in the future are the direct result of being exposed to their parent’s long running dispute.

3. Finally, in 2018, the mother took on board the advice from the professionals and engaged in therapy. She has made significant inroads into her former dysfunctional parenting and accepts her part in the problems the children now experience. Unfortunately, the father still refuses to accept advice or change his behaviour. He continues to be fixated on ‘proving’ the mother to be at fault. One might have thought he would at least pause to consider whether there might be something he is doing wrong when four of his seven children have nothing to do with him.   

4. The father has now rejected Z and X. In his view they will have a “shit life” if they live with the mother and he has said just that to X during one of his recorded encounters with the child. The father wants nothing to do with X unless he lives with him 100% of the time. Ms D echoed that sentiment.

5. The father presses for Y to be removed from the mother and contends that he will ensure she continues to see the mother if she lives with him. I have no confidence Y would do so given that W has barely seen the mother in four years and Z rarely saw his mother for a period of about two and a half years when he lived with the father. If Y were to live with the father, she would not only lose her relationship with the mother but also two of her brothers. There is a glimmer of hope that W will seek out the mother and his siblings once these proceedings are over. Given his age and increasing independence there is more chance of that occurring. The relentless exposure to the father’s ‘victimhood’ status would continue for Y if she lived with him.

6. It may well be a turbulent time for her in the coming months when she is told her stated wishes have not been acceded to by the Court, but in time I expect she will come to terms with the decision with the assistance of ongoing support from the mother, her siblings, and her therapist.

7. It may be that Y will run away from the mother as she has done in the past but with a restraint on the father from communicating with her, the prospect of her doing so will diminish. As a precaution though, I will issue a recovery order which will lie in the registry for six months and will be executed if required. I consider a six month period to be preferable to the 12 months proposed by the mother. Additionally, I propose to require the father to return the child if she comes into his care and to restrain him from approaching the child’s home or school. These are drastic steps but necessary if the child is to have any prospect of adjusting to life without the father and avoiding the ongoing unacceptable risk of exposure to emotional and psychological abuse from him.

8. As Ms D indicated during her evidence that she would need to be ‘told’ not to communicate with Y, I propose to issue an injunction against her for the child’s protection.

9. Although Y is undergoing therapy with Ms S, I consider it important to have an independent person explain the parenting order to her and the reasons it was made. Accordingly, I will accede to the request by the ICL to have a family consultant, appointed by the Director of Child Dispute Services, explain it to her.   

I certify that the preceding one-hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 15 July 2020.

Associate: 

Date:  15.07.2020