Molenaar & Molenaar
[2024] FedCFamC1F 603
•13 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Molenaar & Molenaar [2024] FedCFamC1F 603
File number: MLC 14377 of 2018 Judgment of: MCGUIRE J Date of judgment: 13 September 2024 Catchwords: FAMILY LAW – PARENTING – application by mother seeking to discharge previous parenting orders and that she have sole decision making responsibility for major long-term issues in relation to the children – that the children live with her – that they spend time-with and communicate with the father on one occasion per year – application opposed by the father who sought orders that he spend supervised time with the children at a contact centre once a week progressing to unsupervised time and communicate with the children twice per week via FaceTime – high level of emotional dysregulation in the self-represented father – focus entirely on blame and criticism of the mother - orders that children live with the mother and have Facetime communication with the father once a week – orders the mother have sole decision-making responsibility for major long-term issues in relation to the children and that she prudently keep the father informed of those decisions
FAMILY LAW – PROPERTY – application by mother seeking enforcement of outstanding property orders for the release of funds held in trust by her solicitors – application for costs against the father– applications opposed by the father – orders that the funds held in trust by the mother’s solicitor be paid to the mother – order that the father pay the mother’s costs in the sum of $6,224
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CC, 61A, 61B and 117
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Re: Litigants in Person Guidelines [2001] FamCA 348; (2001) FLC 93-072
Rice v Asplund (1979) FLC 90-725
Division: Division 1 First Instance Number of paragraphs: 188 Date of hearing: 12, 13, 14, 15 and 16 August 2024 Place: Melbourne Counsel for the Applicant: Mr Korke Solicitor for the Applicant: Ballarat Lawyers Solicitor for the Respondent: In person Counsel for the Independent Children’s Lawyer: Ms Treyvaud Solicitor for the Independent Children’s Lawyer: Bentleys Barristers & Solicitors ORDERS
MLC 14377 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MOLENAAR
Applicant
AND: MR MOLENAAR
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
13 SEPTEMBER 2024
THE COURT ORDERS THAT:
Parenting
1.All previous parenting orders be discharged.
2.Ms Molenaar (“the mother”) have sole decision-making responsibility for major long-term issues in relation to X born in 2013 and Y born in 2015 (“the children’”) and the mother will keep Mr Molenaar (“the father”) prudently informed of those decisions.
3.The children live with the mother.
4.There be no direct time-with between the children and the father.
5.The children communicate with the father via FaceTime once per week on Monday at 6.00pm for no longer than thirty (30) minutes on each occasion with the father to instigate such calls and the mother give the children appropriate privacy to accept such calls.
6.Each parent be and is hereby restrained from denigrating the other parent to or in the presence of the children or either of them and from discussing these proceedings with or in the presence of the children or either of them.
7.The father be and is hereby restrained from entering any schools that the children may be attending from time to time except with the express written permission of the mother.
8.The parents shall each keep the other advised at all times of their current residential address, telephone number and email address.
Property enforcement orders
9.Within 14 days of the date of this order O Pty Ltd pay the sum of $29,719.14, together with any interest which may have accrued, to the mother.
Costs
10.Within 28 days of the date of this order the father pay to the mother the sum of $6,224 being her legal costs of three appearances being on the 23 May 2023, 31 May 2023 and 2 August 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Molenaar & Molenaar has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J:
INTRODUCTION
On any reading of the Family Law Act 1975 (Cth) (“the Act”) Part VII makes it clear that the legislation is a benevolent one framed to assist and encourage relationships between children and their parents but also to ensure the safety of the children, physically, psychologically, emotionally, and morally.
Similarly, my experience in this Court is that the legal representatives of parties and the Judges of these Courts are imbued with a benevolent attitude towards these ends. It is not a strictly adversarial process but one where the fundamental proposition is the best interests of children. Nevertheless, experience shows that there remain litigants, often when unrepresented, who come to this Court with a personal agenda based on “winning” and immersed with an understanding that this is a place of enmity, blame and criticism. It is not, nor should it be.
Where the issue here is ultimately the best interests of two young children namely X born in 2013 (aged 11 years) and Y born in 2015 (aged 9 years) and, more particularly, their living and parenting arrangements, sadly the father, Mr Molenaar, unrepresented as he was, undertook his role as respondent as a crusade of personal criticism of the mother. All attempts by the Court, counsel for the Independent Children’s Lawyer (ICL), and even empathetic cross-examination by counsel for the applicant mother failed to bring his focus away from an unrelenting attack on the mother. Relevantly, the parenting issues in this matter have previously been agitated in a trial before Judge McNab (as he then was) in January 2021. I was urged by both parties and the Independent Children’s Lawyer (“ICL”) to consider Judge McNab’s Reasons[1] and did so although, of course, not bound by any findings made by His Honour.[2]
[1] Delivered 5 February 2021.
[2] The Evidence Act 1995 (Cth) s 91.
His Honour’s Orders provided inter alia as follows:
(1)that the mother have sole parental responsibility for the children subject to notification to the father;
(2)that the children live with the mother; and
(3)that the father spend time and communicate with the children each alternate weekend but with such time to be with the “substantial supervision/substantial attendance” of the paternal grandmother or paternal aunt.
His Honour’s Orders as to substantial attendance did not contain any sunset clause and notably where the children then would have been just eight and six years of age. Rather, at [12] his Honour ordered:
The Father have liberty to apply to the court to revisit the time spent Orders herein upon the Father attending for neuropsychological assessment and obtaining a written report that addresses the matters raised by [Ms D], Psychologist, in her report dated 17 June 2020 and the Father shall ensure that in obtaining the assessment he do provide the assessor engaged by him with a copy of [Ms D]’s report.
It is clear from his Honour’s Orders and Reasons that concerns were held for the psychological health of the father where his Honour noted in his Reasons at [2]:
In 1996, the Father was involved in [an] accident, where he sustained a significant head injury to his prefrontal cortex, an area of the brain commonly associated with executive functioning. He was in a coma […] and required emergency surgery […].
In his evidence to this Court, the father disclosed that he is not currently receiving psychological assistance. He repeated on a number of occasions that he saw no need for psychological therapy or assistance. It seems that whilst the father had made some efforts to activate Order [12] of Judge McNab’s Reasons in obtaining a neurological assessment, he ultimately did not accept the conclusions and recommendations of his preferred psychologist (who moved to being categorised as a court expert) and the matter has proceeded no further.
The father’s agitations are fuelled in no small part by the father, self-represented, unsuccessfully appealing Judge McNab’s orders.
The father’s grievances are compounded, and perhaps understandably, by him having had no direct contact with X and Y since 2021 and now being a period of almost three years.
The mother’s evidence is that she effectively stopped the children’s time with the father pursuant to Judge McNab’s Orders on the basis of the children returning to her in 2021 claiming that the paternal grandmother had not been present for all of a weekend visit. Although the father denies this assertion, the issue leading to this litigation, lay with an apparent misunderstanding by the mother and/or her legal representatives as to Orders [6] and [7] of Judge McNab’s Orders which provide:
6.The Father’s time pursuant to these Orders shall take place with the substantial supervision of the paternal grandmother [Ms B] or the paternal aunt [Ms C] or another adult person agreed to between the parents (which supervisor is to be in substantial attendance during the children’s time with the Father.
7.In the event that the paternal grandmother, paternal aunt or other agreed person is unavailable to supervise the Children’s time with their Father pursuant to Orders 5 & 6 hereof such time shall be suspended and the Father will spend time with the children:
(a)for up to 4 hours as agreed on the (sic) between the parents on the first Sunday of each month with supervision by a professional supervisor at the expense of the father;
…
(Emphasis added)
As mentioned above, the children came home to the mother in 2021 advising that paternal grandmother had not been present for all of a visit. The mother’s affidavit shows her response being to engage a lawyer who duly wrote to the father suggesting that Order 7 be activated where the mother’s trial affidavit before this Court at [20] deposes:
Following two weekends in […] 2021 and when it was clearly the orders for substantial attendance at [19] – [20]:[3]
[19]The children would come home from weekend with [the father] and report to me that their grandmother was often not therefore considerable periods of time. For example, spend time would commence after school on Friday and the paternal grandmother would not arrive until late morning-mid-day on the Saturday. The paternal grandmother would then not sleep there on Saturday night and would permit [the father] to take the children out by himself on Sunday.
[20]Following two weekends in […] 2021 where it was clear the orders for substantial attendance were not being adhered to by [the father] and given the risk that [the father’s] mental health may present to the children if there not be another adult there, I instructed my solicitor to write to [the father] and confirm that his time in accordance with Order 5 of the final orders will be suspended in compliance with Order 6, and the children’s time with him would now be in accordance with Order 7 of the final orders. My solicitor sent this letter to [the father] on 30 August 2021.
[3] Filed 4 March 2022.
Unfortunately, it seems that his Honour’s Orders of February 2021 have fallen over because of a misunderstanding or different interpretation of the terms used in his Honour’s Orders being “substantial supervision” and “substantial attendance”.
In any event, the father has steadfastly since 2021 refused any and all proposals that his time with the children be “supervised” professionally. Hence, the children have not seen their father for some three years.
Thus, the ground has been laid for the current dispute between these parents and where the father unfortunately remains unrepresented. He has not received psychological assistance recommended by a number of professionals involved in this matter, he does not accept the need for psychological assistance. He refuses to accept any proposal involving his time with the children being professionally supervised. To say that he is aggrieved by the mother’s actions and these proceedings generally is an understatement.
He has frequently claimed and now claims bias on the part of the expert witnesses including psychologists. He claims bias by the Court Child Expert. He claims bias by the ICL.
Further relevant background and in putting this matter into context, where the matter had been listed for trial before me for many months, the father on the working day prior to the trial filed an application for an adjournment. He appeared in person on the first day of the trial and repeated his application for an adjournment. On enquiry, it eventuated that the basis for the adjournment application was that he did not agree with the contents of the Child Expert Report and its recommendations. He was informed that this is not a ground for an adjournment but rather more properly for his cross-examination of the Court Child Expert.
Still further, it eventuated that the father had been the recipient of an order under s 102NA of the Act. It is clear, despite his vague protestations, that the father had not proactively engaged with Victoria Legal Aid to have a lawyer appointed. Again, his quest for an adjournment on this basis was refused. The father therefore appeared self-represented. He was not therefore permitted to cross-examine the mother directly given that the order under s 102NA was made under its mandatory provisions. The father was advised however, that counsel for the ICL would cross-examine the mother on issues relevant to the father’s case and that the Court would ask questions of the mother where necessary. The father was provided with some considerable background information as to the process and procedure in Court and with an invitation to ask the Court at any stage for assistance in respect of the procedure.[4]
[4] Re: Litigants in Person Guidelines [2001] FamCA 348; (2001) FLC 93-072.
It was obvious throughout the trial that the father found the process difficult. His focus was almost entirely upon the mother and his sense of injustice and bias against him. Attempts to return the father’s focus were met with his frustrations including numerous threats to leave the Court and on occasion actually leaving only to return.
RELEVANT BACKGROUND
The father is 48 years of age. There is no evidence that he is currently re-partnered in any dependent or supportive nature. In cross-examination the father was reluctant to disclose details of his current residence or work arrangements. He eventually did so although counsel for the mother and the ICL expressed scepticism as to the veracity of the father’s evidence in both respects. He claims to live in a rented property near City J. He says he works as a finance professional.
The father’s current mental or emotional health is an issue in these matters. He suffered a serious accident in 1996 and an incident in about 2018. He received psychological assistance for each. He no longer continues to receive assistance from a psychologist.
The father has an older child, Mr G, from a previous relationship with a Ms H. No probative evidence was given or adduced as to the father’s current relationship with Mr G although it is clear that there were previous family law proceedings.
The mother is 43 years of age. She has re-partnered. She lives in City J. She has qualifications as a professional and has employment history in her field.
There is no evidence that the mother is otherwise than in good health.
The parties commenced cohabitation in 2004 and married in 2011.
The two relevant children are X born in 2013 (aged 11 years) and Y born in 2015 (aged 9 years).
The parties separated finally in July 2018 after a previous short separation.
Final parenting orders were made on 5 February 2021 providing inter alia for the mother to have sole parental responsibility for X and Y and for the children to live primarily with her. The father’s time with the children was subject to a “substantial attendance” clause which might have been re-considered upon compliance with an order from Judge McNab that the father obtain a Neuropsychological Assessment.
In March 2021 the father appealed Judge McNab’s orders which also provided for a property settlement between the parties including that the mother have carriage of the sale of the former matrimonial home and that the father vacate that property. He also sought a stay of the final orders such being dismissed with costs. The father’s appeal was dismissed in November 2021.
When the father refused to vacate the property the mother brought an interlocutory/enforcement application for possession of the former matrimonial home so as to effect its sale and a Warrant for Possession was executed in 2021.
In 2021 the mother asserted that the father’s time with the children was not being substantially supervised or attended by the paternal grandmother. She then proposed, and continued to offer, supervised time until this trial. The father refused to take up any offer of supervised time and has not seen the children directly since 2021 save for interviews for family reports.
The father has been variously represented and at other times represented himself. He brought an Enforcement Application in respect of the children such then being moved between Registrars of this Court for various reasons, including as to the form of the application, but sadly with a result that no substantive attention seems to have been given to the issue of returning to the orders of Judge McNab from August 2021. The result, after three years of fruitless litigation, is the substantive application being listed for trial before me.
The father has continued regular FaceTime communication with the children.
The former matrimonial home has subsequently been sold under the carriage of the mother and she now argues that she has outstanding costs and expenses referenced in the orders of Judge McNab and for which monies in an amount of capital E $29,000 have been preserved. She seeks payment out to her of those monies.
The parties were divorced in 2021.
Both parties reside in the City J municipality although the mother has been obliviousness as to the father’s living arrangements. The father seeks full details of the mother’s residential arrangements for the children, but was loath to divulge his own details.
The father has filed various applications, appeals and reviews, during the course of this matter, from August 2021 and all apparently without success. It seems that the course of those enforcement/interim applications has contributed to the delay in the matter coming before a judge until August 2024.
THE MOTHER’S CASE
The mother came to the trial seeking orders inter alia as follows:
(1)That she have sole parental responsibility for the children;
(2)That the children live with her;
(3)That the children spend time with the father professionally supervised for a minimum of 12 visits after which there be “an assessment” by the Contact Centre which, if positive, ultimately leading to the children spending 12 unsupervised visits with the father.
It is proper to note that the mother’s counsel was advised that Full Court authorities confirms that it is not available for the Court to delegate such “assessment” powers outside of the Court.
In any event, and after the course of the evidence, the mother’s position had changed substantially to one where the children spend time and communicate with the father on one occasion per calendar year such to be supervised at a Contact Centre. It was apparent that the mother, in formulating this proposal, had embraced a concept known as “identity contact”. From my observations this is a phrase relatively recently introduced in parenting proceedings in these Courts. The source and theoretical legitimacy of the concept continue to escape me where it apparently allows children perhaps one visit per year “so as to maintain their identity” with a parent for a very limited time in a clinically supervised environment. It is perhaps easier to decipher the negative messages such a concept would have for the children rather than any positives!
The mother argues that the father presents as a risk to the children emotionally. She says that the Court could not be confident that he would refrain from denigration of her to the children given his obsessive criticism of her during his evidence in this Court and during his cross‑examination of the Court Child Expert. The mother’s argument is underpinned by her suggestion that the father needs psychological therapy and assistance.
Secondly, the mother seeks enforcement of financial orders made by Judge McNab in 2021. Essentially, there remains a sum of $29,719.14 (plus any further accrued interest) held in a solicitor’s trust account. Those monies were retained to allow the mother to make ready the former matrimonial home for sale. The orders of Judge McNab, the subsequent orders of his Honour, and the Appeal make it clear that the father did not vacate the former matrimonial home and enforcement proceedings including a warrant for his eviction were required. The wife’s affidavit deposes to expenditure of more than the remaining $29,719.14. She is, however, prepared to accept payment to her of this sum in resolution of the matter.
Finally, the mother seeks costs in respect of a number of reserved costs orders made by other judicial officers during the lengthy interlocutory course of these proceedings.
THE FATHER’S CASE
The father commenced this trial seeking orders that the children live with him. He was initially equivocal as to parental responsibility but apparently agreed that there could be orders for joint long-term decision-making in respect of the children.
The father proposed a traditional regime for the children to spend each second weekend with their mother and block periods in school holidays.
The father challenged the mother’s enforcement application. He argued that receipts provided for the mother amounted to only $24,000. Ultimately, he was of the view that the monies in trust might be paid to him but remained generally equivocal.
By the end of the evidence, the father’s position in respect of the children had changed. He now proposed interim orders, most likely on an observation made by the Court, that the orders initially proposed by the mother for “delegated assessment” could not be made and that it was only for the Court to make such an assessment, properly informed, and, if so, then interim orders might be necessary.
The father provided a memorandum as follows:
PROPOSED INTERIM ORDERS:
1.That all previous orders made in relation to the children made by Judge McNab 5 February 2021 remain unchanged with the exception of the following.
2.The children [X] and [Y] will spend time with their father at a supervised Contact Centre for 4 hours once a week which the father will arrange and of his choosing for a period of 2 months. After such time the father will be at liberty to apply for increasing time with the children.
3.The children have FaceTime call with the father at 6pm for a duration of 30 minutes every Monday and Friday weekly and the call to be initiated by the children’s mother.
4.The father is permitted to attend the children’s school sports, concerts, parent teacher interviews including all normal activities a parent may usually attend without interference by the mother, maternal grandparents and sister.
5.That a report be completed by the Child Contact Centre for the children and their father.
6.A Family Report be completed taking into account the report from the Child Contact Centre.
The mother update the new property address […]
Property
7.That property proceedings be stayed until further order.
…
The father argues variously that the children are being alienated from him by the mother or are enmeshed with the mother’s negative views of him. He says that this behaviour can only be alleviated and rectified by the children living primarily with him.
The father emphasises that the tenor of the evidence is that the children wish to continue a relationship with him including one of direct contact albeit that they have not seen him face‑to‑face for some three years (except for interviews for reports).
It is implied in the father’s argument and in his cross-examination of the mother that she was opportunistic in her interpretation of Judge McNab’s orders so as to thwart his relationship with the children.
THE ICL’S CASE
By the time of final submissions the ICL argued for no direct contact for the children with the father. The thrust of that argument was that the father presents as a risk to the children emotionally by his propensity to criticise and denigrate the mother and that he would be unable to refrain from such behaviour if the children were with him.
The ICL also harboured concerns as to the veracity of the father’s evidence generally and in particular as to his evidence as to his living and working arrangements.
Essentially, the ICL shared the mother’s view that the father required psychological assistance and therapy as recommended variously by professionals involved in this matter.
THE EVIDENCE
THE MOTHER
The mother relied on her affidavit of 24 July 2024 where she gave a comprehensive background as to both parenting and property enforcement issues.
Where the father was precluded by reason of s 102NA of the Act in cross-examining the mother, she was cross-examined extensively and, in my view, objectively and fairly, by counsel for the ICL and despite frequent interruptions, interjections and criticisms of counsel by the father for being biased.
The mother presented as altruistic but conflicted in her view, on the one hand, that the children should have a relationship with the father consistent with their wishes and where she confirms that the children love and miss their father but, on the other hand, a desire to protect the children from the father’s persistent, obsessive and critical views of her.
The mother remained of the view that the father had not complied with the spirit of the orders of Judge McNab in having the paternal grandmother or sister present with the children and that she was not confident that the father would now comply with court orders.
I found the mother generally to be a good and responsive witness. I considered her evidence to be child focused and with an ability to prioritise the children’s needs over her obvious upset at the father’s relentless criticism and accusation towards her.
Her counsel justified the change in the mother’s position by the end of the evidence as being firmly based on the father’s own evidence and behaviour in this Court during the course of the trial alerting the mother to the probability that the father would not be able to refrain from demeaning and criticising her to children.
THE FATHER
The father relied on an affidavit sworn 9 August 2024 being the last working day prior to the commencement of the trial. That affidavit was ostensibly prepared in support of his adjournment application but did, in fact, contain in its 13 pages considerable substance as to the primary issues before this Court. In addition, the father was permitted to, with the consent of counsel for the mother and the ICL, give evidence in chief viva voce including his responses to the mother’s evidence.
The father repeated that he did not see the need to obtain psychological assistance or therapy. He maintained a reluctance to accept supervised time with the children, at least until the time of final addresses.
The father was consistently non-responsive and deflecting of blame in his evidence. He was reluctant to give an affirmative answer to even the most straightforward of questions but preferred to take any question as an opportunity to deflect or attribute blame to the mother.
I observed a high level of emotional dysregulation in the father’s demeanour and his responses. He was fixated on his grievances. He was rigid of thought. He was verbose, argumentative, obstropalous and repetitive. He clearly understood himself as a “victim” of both the mother and the family law process. He frequently expressed his intention “to appeal”. On a number of occasions he threatened to or did leave the Court room only to return. His frustrations were palpable and to the extent that he, on occasions, apologised for his own behaviour.
The father was fixated on his perception of the mother’s obstruction of his time and relationship with the children. He was a proponent of various conspiracy theories. He saw himself as a victim of the system. He saw himself as a victim of gender bias. Any probative responses by the father in cross-examination were extracted only with the utmost difficulty.
Nevertheless, I observed the father to deeply love his children and be desirous of a relationship with them. Sadly, he seemed singularly unable to differentiate his want for a relationship with the children with his relentless criticism of the mother.
The father’s behaviour showed, in my unqualified eye, senses of paranoia in respect of the mother as, for example, when simply advised by the Court prior to a luncheon adjournment that he was directed not to speak to anyone about the evidence in Court whilst being cross‑examined, the father’s spontaneous response was to demand that the mother be similarly restrained, although she was not then giving evidence.
COURT CHILD EXPERT – MS P
Ms P is a Court Child Expert employed by the Court. She prepared a Family Report dated 15 April 2024 and had previously provided a Child Impact Report of 16 February 2023.
I found Ms P to be an informed and professional witness in both her reports and in her evidence in Court. I found her to be balanced despite allegations of bias from the father where, for example, she was critical of both the mother and the father in respect of the children’s FaceTime communications with the father. Ms P was critical of the father for recording those sessions but equally critical of the mother for “hovering” over the children during communications with the father.
Ms P had the advantage of seeing and hearing the father’s behaviour during her cross‑examination where on one occasion he threatened to leave the Court and on others interrupted an interjected with criticism both counsel for the ICL in her cross-examination and of Ms P asserting bias.
Nevertheless, Ms P noted and placed some weight on the fact that the children consistently expressed a desire to have a relationship with their father albeit despite reservations in the older child, X, as to the father’s propensity to question the children and/or attend without notice at her school.
Ms P in her Family Report provides the following recommendations which she adhered to in her evidence:
[108] That the children continue to live with [the mother];
[109]The children may benefit from an initial period of supervised time to occur under professional supervision for a period of no less than eight sessions. This could occur each fortnight for a period of up to four hours.
[110]Following a positive observational report, then progression to unsupervised time in a community setting could be considered. This is suggested to occur fortnightly for a period up to 6 hours for a period of six months. This would afford the children a suitable time to adjust to in person spend time and have opportunities to re-establish positive and trusting relationships with [the father].
[111]Additional time of up to two hours for special occasions such as birthdays, and Father’s Day.
[112][The father] is encouraged to engage with a clinical psychologist, as per recommendation of [Ms Q] in an effort to address any mental health and personality vulnerabilities and make efforts to enhance his parental capacity and insight into the children’s needs.
[113]The children and [the father] to continue to have a scheduled FaceTime call once per week.
[114]In relation to any progression to unsupervised spend time, it would likely be beneficial that any Orders are prescriptive in relation to changeover locations and times to mitigate the risk of conflict in relation to communication or negotiation about these arrangements between the parties. Should the parties need to communicate they are encouraged to communicate about any practicalities by way of a parenting application, should this be deemed implausible then consideration may be given to change overs being facilitated by a contact centre.
[115]Given this assessment does not support the introduction of overnight time at this stage, school holiday time is not considered. However, should the parents be agreeable to additional time on school holidays and special occasions, they are encouraged to facilitate this.
[116]If [the father] is unwilling to engage in the supervised time as recommended, there are limited opportunities available to progress spend time based on the available information and potential risk.
…
The mother was observed at the interview for the report consistent with my observations of her in court at [10] as follows:
[The mother] presented as friendly and engaging, and co-operative with the process. She impressed as positive and optimistic, whilst displaying an openness towards [the father], remains cautious and focused on any future spend time requiring supervision. Based on her concerns that there had not been adequate supervision provided by the paternal grandmother, [the mother] has proposed reduced time, and in place offered for spend time to be professionally supervised.
The essence of the mother’s argument before this Court is captured at [28] thus:
[The mother] remains concerned about [the father’s] emotional regulation, and his tendency to display outbursts of anger in the presence of the children. She referred to a recent exchange that had occurred at the children’s primary school, where she claims [the father] attended and became aggressive […]. … [The mother] spoke extensively of her desire to shield the children from any exposure to [the father’s] alleged aggressive or erratic behaviour. She reported she had spoken to the children and devised plans so that they are aware of this to ensure they are protected from such behaviours.
The father is observed as following at [32] – [34]:
[32][The father] was punctual and engaged in the assessment process. He was neatly dressed and presented as calm and focused. Throughout his conversation he would become fixated on the Final Orders made in 2021, with the view these were still active and current. His narrative appeared to be to consistently externalise blame to [the mother] for ceasing of spend time, and he was observed to be critical of previous reports and decisions determined by the Court. In particular, he commented on his dissatisfaction with the assessment provided by [Ms D], and also expressed his belief the recent assessment provided by [Ms Q] was incomplete.
[33][The father] referred to times when he has attended the primary school, and provided narratives regarding his decision-making which he described as logical. He appeared to display limited insight into why these actions may have been perceived to be problematic. In response to an allegation of him becoming aggressive […] at the children’s school, he denies this occurred, and shared his view that [the mother] had fabricated the story. He denied that he had become aggressive, and stated he is able to attend the school, based on the Orders.
[34][The father] appeared to remain negative towards [the mother] and members of the extended family, describing her as having a “overbearing need for control”. When not directing his frustrations at [the mother], he seemed to be critical of her current partner, [Mr R] and he repeatedly referred to an incident which he described as family violence whereby [Y] was hit by [an object] by [Mr R]. This incident had been reported to Child Protection and Police at the time, with no further action taken by authorities.
At [30] Ms P opines that there is no co-parenting relationship between the parents where the mother has sole parental responsibility for the children and there is an active Intervention Order in place which is due to expire in 2030.
The mother is reported as being concerned about sharing information as it often results in the father presenting unannounced at appointments. The mother described the father’s interpersonal skills as difficult, reporting that his fixation on events/experiences can hinder communications.
She claimed he harasses people and says that she has had to change professionals or services due to the father’s behaviours.
At [37] Ms P identifies an escalation of the father’s behaviours, reported by the mother, involving verbal aggression and controlling behaviours, some of which were sexual in nature, as a potential risk where she remains concerned as to emotional and aggressive outbursts in the presence of the children.
Ms P interviewed the children and observed them with each of the parents.
At [66] X is described as 10 years of age, confident and engaging. Her narrative had not changed since the interview for the Child Impact Report in 2023. She continued to cite being questioned and recorded by the father but apparently enjoyed spending time with her father and having the opportunity to speak with him on FaceTime each week. X did, however, volunteer that she needed to be careful in not sharing information for fear of her father “just turning up”.
Y was eight years of age at the time of the interviews. He spoke of memorable times with his father but also referred to being questioned during FaceTime.
Both children expressed a wish to spend time with their father albeit suggesting this happen at a Children Centre or with a supervisor.
X was observed as “visibly anxious and worried” prior to meeting with her father whereas Y was excited about the prospect.
Both X and Y were observed to respond well and be excited and affectionate with their father and the father acted appropriately and was responsive to the children.
The children were observed with their mother. She was positive about the children’s experience with the father. The children were able to tell their mother of that experience.
Significantly, where these children have been involved in litigation since about 2018, Y upon leaving the interviews with Ms P called out “see you next year” indicating the imbuement of the children in the family law process and the impact on them of the repeated interviews.
MS D
Each of the parties agreed that I read Ms D’s report from 2020 under cover of an affidavit affirmed 15 July 2020. Ms D is a Clinical Psychologist and provided her psychological report and assessment as a single expert.
The mother is reported as presenting for the interview as “somewhat naïve but warm, child focused and inadequately reflective”.
At [17] - [19] the mother reports to Ms D in respect of the father:
[17][The mother] said [the father] would prevent her from spending time with friends, worry about receiving male attention, or react if she did not give him enough attention […] She said he never physically assaulted her but […] he would throw and punch inanimate objects […]. She said the children were exposed to this behaviour and to arguments, though his outbursts were usually at night, and [X] would respond by closing the curtains, placing a blanket over her mother, and brushing her mother’s hair. She said he was a good parent if in a good mood, but he would blame her for his aggressive and controlling behaviour.
[18][The mother] claimed that [the father] became worse after [Y]’s birth, such as requiring her to be home when he returned for a “smoko” during the day or at lunchtime with lunch prepared. She said he became less social and she followed his lead to reduce the likelihood of conflict. [The mother] thought he might (sic) suicidal at times and recalled driving around with the children looking for him only to discover he had smashed his phone.
[19]Towards the end of their relationship, [the mother] said that [the father] would be up every night ruminating with paranoid thoughts like his brain did not stop. She said he became fixated on things and kept bringing them up and she became anxious and panicky in response and struggled with a lack of sleep. [The mother] began crying as she expressed that she realised she could not help him, did not love him, and wanted to leave him but was too scared to do so.
Ms D reported the mother never having been diagnosed with mental health issues and not presenting with any major psychiatric or personality disorders though she did experience stress and anxiety associated with the court proceedings and was prescribed a low dose of medication.
The mother is reported to seeing a psychologist for about twelve months until mid-2019 and having contact with Family Violence Services.
At [37] Ms D summarises and concludes the mother as having parenting strengths which outweigh her parenting needs on the FSNA, she is observed as having mild symptoms of anxiety within the context of then current psychosocial stressors.
Ms D’s assessment of the father was hindered by the father not attending the meeting at the time directed and not having completed the consent form by the time of the meeting.
The father’s demeanour in Court appears to mirror that experienced by Ms D where she reports at [6]:[5]
[The father] appeared to be walking around his backyard as he wanted to smoke cigarettes. The assessor asked that he sit down and remain still, but he was struggled to stay seated. Although advised in advance to have his phone fully charged, he noted that he was on 20% power during the evaluation but not did not seek to charge his phone indoors and he was eventually disconnected. He reappeared after perhaps 10 minutes and appeared to be in his car, but he disconnected again shortly afterwards; he did not reconnect to the meeting and could not be contacted. At 11:12am the assessor advised him via email that the evaluation had ended, and the report would be written. He then emailed the following (sic) at 11:38am “I have grave concerns that as we did not have a full assessment because of technical difficulties experienced that a fair full assessment can be made on only having it partly completed in these circumstances”. The assessor facilitated 2 phone calls between other assessments to complete the evaluation.
[5] Ms D’s Psychological Evaluation of the father dated 10 July 2020 annexed to her affidavit of 15 July 2020.
And following at [8] Ms D opines:
[The father’s] presentation raised significant concerns regarding executive functioning - the ability to organise, plan, think flexibly, and inhibit or control behaviour. His thinking was extremely rigid, and his behaviour was difficult to contain, before, during and after the assessment. He was neither prepared nor able to organise himself during the assessment. He lacked insight into his difficulties and externalised blame for them.
It was noted that the father was in an accident in 1996 and sustained a major head injury. He was in a coma for a period.
At [30] the father is reported as believing the mother’s allegations against him to be vindictive and made in support of her Court case. He says that he is the victim of denigration by her and that she has contributed to him being ostracised from the children’s school. He denies being a violent person.
The father asserts that the mother has generally been controlling of his time with the children since separation.
It was noted that the father had been diagnosed with anxiety and depression after in incident in 2018 and also following separation from the mother. Ms D opines then that the father presents with a mental health condition with mixed disturbance of emotions and conduct.
At the time of the interviews for this report it was noted that the father had not been functioning well and his mental health issues were such that he had been unable to engage in work of any kind for the previous two years.
The results of tests conducted by Ms D suggested that:
[61]… the likelihood that [the father’s] children will be exposed to neglect or abuse in his care is Moderate to High. He has limited insight into mental health, behavioural, and potential neurological difficulties, or the impact of his actions on his children, and was unable to critically reflect upon his behaviour. There is a concern that he was unable to modify his behaviour to be socially acceptable during the evaluation and therefore may struggle in the presence of his children. The risk to his children in his care will likely increase if he is found to be responsible for family violence and decrease if [the father] engages in recommended treatment.
Ms D recommends that the father’s time with the children be in the substantial attendance of another responsible adult pending neuropsychological assessment.
It was further recommended that the father engage with a psychologist with expertise in Cognitive Behavioural Therapy.
MS Q
Pursuant to court orders of 28 September 2023 Ms Q prepared a neuropsychological evaluation of the father. She had previously conducted a personality assessment of him.
Ms Q was informed as to Ms D’s report.
Ms Q’s assessment noted:
No gross deficits in attention and concentration were evident upon casual interview. On objective measures some attention deficits were evident particularly on tasks that required sustained and divided attention, as well as psychomotor speed. Performance was variable and ranged from ‘Borderline’ to ‘Average’ levels.
At page three of her assessment, Ms Q comments:
Within the formal and structured neuropsychological assessment environment, [the father] is functioning at a sound level. I cannot comment on his behaviour outside this environment. However, it is noted that [the father] can become quite fixated, persistent and demanding in his interactions, which likely is secondary to his acquired brain injury with the prefrontal cortex involved in weighing up available information and responding appropriately to the environment. The prefrontal frontal area allows a person to understand the relationship between actions and consequences rather than behaving in an impulsive short-sighted manner. However, since seen for assessment his level of anxiety appears to (sic) increased and this is likely a contributing factor with him wishing for contact with his children and expressing concern for their wellbeing.
Ms Q recommends that the father might benefit from the being linked to a clinical psychologist to assist with his mood state and adjustment to potential loss of contact/care of his children.
Ms Q is more optimistic as to the father’s functioning seeing it at an “average” or above level and not the “low average” suggested by Ms D.
MS B
Ms B is the paternal grandmother. She had provided an affidavit during 2022 and such was read into evidence at this trial. She gave evidence, despite no prior notice being given to the other parties, by telephone from her home.
Importantly, Ms B gave evidence that she was in substantial attendance during the relevant periods of time for the children with the father in 2021.
It was suggested by counsel for the mother that there may have been collusion between the father and his mother prior to her giving her evidence. An attempt had been made to accommodate the paternal grandmother’s evidence on the previous day but the father informed the Court that she was unavailable due to an “appointment”. Ms B denied that she had any appointment the previous day and appeared to be oblivious to the nature of the questioning.
The paternal grandmother’s evidence was unremarkable save and except for its understandable support of the father in his parenting of the children and his relationship with them.
The father tendered and asked the Court to read the previous Family Report from Ms S in respect of the father’s child Mr G. The contents of the report have been read into evidence. He also tendered a screenshot from 2020 of a FaceTime communication with the children. Other tenders from the father were:
(i)a lawyer’s letter of 30 of August 2021;
(ii)the Interim IVO of 3 December 2021;
(iii)the Final IVO of 9 November 2022;
(iv)a bundle of documents from Victoria Police;
(v)text messages from 2021; and
(vi)email communications.
Each of those documents has been considered and the contents read into evidence.
RELEVANT LAW
Part VII of the Act provides the jurisdiction and power for the Court to make orders in respect of children. Section 60CA provides that the children’s best interests are to be the paramount consideration for the Court in its determination.
The Court determines the children’s best interest by referencing the probative evidence to the factors set out at ss 60CC(1), (2), (2A) and, if relevant, (3).
Section 61A and following deals with parental responsibility which is defined at s 61B as being “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” but more colloquially manifests in the long term and important decisions that parents make for children in matters such as education, religion, medical procedure and the like and as opposed to the more mundane day-to-day decisions that parents habitually make for their children.
In this matter the father seeks an order for joint decision-making which would oblige the parents to consult with each other in relation to such decisions and to make genuine efforts to come to a joint decision.
Where the best interests of the children are the fundamental basis for the Court’s enquiry and determination, the onus and burden of proof in evidentiary matters is not highlighted. Nevertheless, where a party makes an assertion of fact then that party carries an onus to prove that fact on the balance of probabilities being the standard of proof consistent with the decision of the High Court in Briginshaw v Briginshaw[6] and now enshrined in the Evidence Act 1995 (Cth) at s 140 which provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged.
SECTION 60CC FACTORS
Section 60CC(2)(a) what arrangements would promote the safety (including safety from being subjected to or exposed to, family violence, abuse, neglect or other harm) of;
[6] (1938) 60 CLR 336.
(i)the child; and
(ii)each person who has the care of the child (whether or not a person has parental responsibility for the child)
The mother and ICL raise this consideration in urging the Court effectively to sever any direct relationship of contact between the children and their father. They receive some support in the various expert reports. Specifically, it is asserted that the children would be subjected to emotional/psychological and exposed to harm by reason of the father’s entrenched, vocal and negative views of the mother and that is it is likely that he would be unable to refrain from exposing the children to those views for any lengthy period of unsupervised time. The suggestion is that the father’s own mental health, although there not being a specific diagnosis before the Court, manifests in his rigid and fixated criticism and blame of the mother which compounds this risk where he appears unable to separate his own views of the mother from the overall best interests of his children and it cannot be overstated, that the exposure of children to denigration and conflict between their parents is contrary to their interests and will inevitably impact them negatively, emotionally and psychologically.
The father, for his part, claims that the children are at risk in the care of the mother. He says that she has pursued a course of alienating the children from him and enmeshing them with her unsubstantiated allegations in respect of his behaviour. He too, therefore, expresses concerns as to the emotional well-being of the children in the mother’s care and asserts her capacity for controlling behaviours.
The father raises concerns respect of the mother’s partner, Mr R, and frequently mentioned in his evidence an incident of Y being hit by a basketball thrown by Mr R. The father places the most serious of connotations on this incident.
The father concedes that he has instigated a number of Police Welfare Visits on the mother’s home.
Unsolicited visits by the father to the children’s school may, given the comments of X to the Child Court Expert, cause distress and emotional harm for the children. Notably, there has been one incident between the father and the school principal although the father’s version of events is more innocuous than that portrayed by the mother.
The mother holds a long-standing IVO against the father. In response, he suggested the mother, consistent with her controlling tendencies, sets him up for potential breaches of that IVO.
The father has applied for an Intervention Order against the mother naming the children as Affected Family Members due to what he says is the termination of FaceTime calls which the mother attributes to the father’s behaviour.
The mother alleges two breaches of an Interim Intervention Order obtained by her in 2021 but where she concedes that the charge was ultimately dismissed.
In 2022 the Magistrates Court in City J made a final full No Contact Intervention Order in favour of the mother against the father and with the children named as protected persons. That order continues until 2030.
The observations of the Court Child Expert, Ms P, of the children with the father were positive. Despite no direct contact for nearly three years, the relationship was observed to be an established and affectionate one. The children have expressed a view to continue their relationship with their father albeit also suggesting conditions such as supervision and, on a reading of Ms P’s report, with some hesitation as to the father’s capacity to question them during time together.
Where the proposals of both the mother and the ICL are now effectively to cease all direct time for the children with the father then the Court is obliged to give considered and substantial reasons for any orders that would be contrary to the children’s own views and preferences.
These children are just 11 and 9 years of age. They have been embroiled in litigation by their parents since their parents’ separation in 2018.
The comments by Y to the Court Child Expert of “see you next year” are enlightening as to the understanding and imbuement of the children in this process and where it is always the desire of these Courts to quarantine the children from their parents’ litigation.
At 11 and 9 years of age the children have not developed a maturity or level of rationality to enable them to fully understand and respond to the adult issues agitated by their parents.
It is, of course, a relevant consideration for this Court that the orders proposed by the mother and the ICL would also serve to effectively sever any direct relationship of any substance for these children with their extended paternal family including their grandmother.
Each of these parents challenges the capacity of the other to have the primary care of the children.
The father continues to assert that the children should live with him even after the completion of the interim orders that he now proposes. This is despite the children not having seen the father directly for some three years. Further, I place some weight on the scepticism of the ICL and counsel for the mother as to the father’s residential and employment arrangements. He professes to live in a private rental home in a suburb of City J. He was reluctant in the extreme to provide any details of that accommodation. He refused to complete a Notice of Address for Service showing that address. He gives no details of any lease arrangement and no corroboration of his residence at that address. Similarly, the father was reluctant to provide details of his employment where the mother suspects that the father has been serially unemployed for a number of years but where he now professes to work as a finance professional. He works remotely and part-time. He says that he receives an income of approximately $6,500 per month. Again, this information was provided only with extraordinary reluctance and no corroboration was forthcoming.
The issue for the Court is the father’s capacity to attend to the emotional needs of the children where his behaviour in Court is indicative of his rigidity of thought; his verbosity; his argumentative and obstropalous responses. His tendency to pack up his papers and attempt or threaten to leave the Court is a consideration if he is to have the care of the children and his dealing with stress where he has no recent experience of caring for children and no experience of being a “sole parent”. The support of his mother is tenuous given her evidence as to her age, driving limitations, and her living some distance from the father. Despite an invitation to do so, the father did not adduce evidence from his sister.
The father challenges the mother’s capacity where he says that she alienates the children from him and enmeshes them with her own negative and self-centred views of the father.
Where these children have happy memories of time with their father and prima facie are desirous of continuing a relationship with him, there may be benefits to the children in continuing a relationship with their father. There must be, however, some manifest benefit to the children and it is not the job of these Courts simply to make orders for relationships with children with a parent without any such benefit. The consideration here is a prospective one but one based on current and past evidence. It is also a qualitative consideration and not simply an exercise in allocating quantities of children’s time.
The consideration here is a prospective and qualitative one but also one based on current and past empirical evidence.
FINDINGS AND CONSIDERATION
There is a conundrum for the Court where these children desire a continuing relationship of some sort with their father albeit perhaps with the benefit of supervision or attendance by an adult against the positions now taken by the ICL and the mother being effectively to severe the children’s direct relationship with their father, at least until such time as the father enlists the psychological therapy and assistance recommended by various experts in this matter.
The fear for the Court, of course, is that should the children be denied a direct relationship with their father then they may grow to believe that the mother is the cause of this circumstance and come to resent her accordingly with a negative impact on their relationship.
Nevertheless, these children are just 11 and 9 years of age. They have clearly been long involved in these proceedings. They have been frequently interviewed. The comments of X as to being “questioned” by her father show that she is abundantly aware of aspects of her father’s often unusual behaviour and of his propensity to denigrate the mother.
In these circumstances, I place less weight the children’s stated preferences and wishes in respect of a relationship with their father when weighed against the other considerations towards their best interests but note, in any event, that their preferences are premised on conditions such as supervision.
I am persuaded that the children have been able to maintain a relationship, evidenced by the positive observations of the Child Court Expert, over the last three years by way FaceTime contact albeit where the children probably understand that their father has recorded those communications and where the mother has “hovered” with suspicion as to the father acting inappropriately. It is, however, a relationship between children and father that maintains its fundamental base of recognition and love.
The force of the evidence is that the children have an established, loving and successful relationship with their mother. She has been their primary carer since separation from the father. She has effectively been their sole carer for the past three years. She presents to this Court as a well-adjusted adult able to prioritise her children’s needs.
I am satisfied generally that the mother presented at this Court as an objective and altruistic litigant looking towards some result which would see the children having a relationship with their father but, at the same time, being kept safe from aspects of their father’s personality, demeanour and behaviour. She is not to be criticised for her change of position by the time of final addresses where, as mentioned above, it is not available to trial judges to delegate the decision making responsibility in respect of children to laypersons even if highly professionally qualified. The mother’s position has been adjusted accordingly but I sense that she remains hopeful of the children being able to establish a relationship with their father into the future should he address his psychological issues.
By reason of the children being able to express a desire to continue a relationship with their father, I find no substance in the father’s assertion that the mother has alienated the children or enmeshed them with her own views of the father. Should she have been culpable in either regard then it is highly unlikely that the children would have been able to enjoy the comfortable and affectionate visit with their father observed during the Court Child Expert interviews or express their preferences to continue a relationship with him.
Having had the benefit of experiencing and observing the father’s behaviour in the five days of this trial, I share the concerns of the ICL and the mother as to the father’s personality and behaviour. Put simply, his sense of purpose in the trial appeared singularly to use this Court as a forum to rage his criticism of the mother. He was unable to restrain himself from such overt criticism. He used every opportunity to deflect towards criticism of the mother. The introduction to these Reasons is an attempt to give context and reality to the at times bizarre demeanour exhibited by the father during the trial. My observations were of a man both paranoid and obsessive in respect of the mother. His inability to restrain himself in this Court gives little confidence to the Court that he would be able to quarantine the children from his views of the mother and the likely emotional and psychological impact on them would be severe and harmful.
The father’s paranoia extends to conspiracy theories and biases. In this sense his obsession is with himself being a victim and presented without any sense of insight into the needs of his children.
The options for this Court are limited. Firstly, I cannot accede to the father’s argument that the children should live primarily with him. He has no recent experience of caring for the children. They have no recent experience of him. His facilities and ability to financially support the children are tenuous in an evidentiary sense. I am not confident that he has available support. The children do not express a wish to live with their father.
An order that the children spend supervised time with the father is also problematic. Such an order in practical terms cannot continue until the children are 18 years of age. There is no evidence of available facilities for that to occur. In any event, such continuing supervised time‑with must necessarily send negative messages to the children as to the capacity of their father and hence the benefit to them is ultimately dubious.
I am not in a position where I could comfortably make an order for supervised time for a set period, such as was originally suggested by the mother and where there would be obvious benefits of the children being able to renew their physical and direct relationship with the father in a comfortable environment and to give him time and assistance in assimilating back into a direct parenting role.
Whilst these are identifiable benefits, there remain issues with the father’s rigidity of thought and fixation on his grievances such that the “protective” aspect of supervision cannot be predicted to resolve at any set time. As mentioned above, it is not available for the Court to delegate to a “review” to other persons or even to professionals.
An option of an interim order for supervised time followed by a further review by family report and evidence to this Court was contemplated. There are, however, negative implications of such a course. Firstly, it leaves the parties, and the children vicariously, in the sense of limbo in respect of these proceedings. The strongest possibility is that the father would simply seek the further opportunity to air his grievances in respect of the mother. The attractive concept of “finality” would be denied. Further interviews would be imposed on the children where there is a strong suggestion that they have already been negatively impacted by the interview process most evident in Y’s comments to the Court Child Expert when leaving the last interview.
Ideally, the father would have taken up the numerous suggestions made to him, not least by Judge McNab’s orders, that he undertake psychotherapy and assistance. If successful, then the observations I make of his personality and behaviour may have been rectified or alleviated to an extent that orders could be crafted so as to accommodate the children’s preferences to have some ongoing relationship with their father. He has not taken up those opportunities and suggestions. He says candidly in Court that he does not need psychological assistance. Such in itself may be the germ of the problem confronting the Court?
The ICL’s submission of some “finality” therefore has its attraction in respect of these children’s best interests. Of course, family parenting orders can only be “final” such that any material or substantial change in circumstances of either of the parents or the children might allow the matter to be re-agitated.[7] Indeed, such was clearly the spirit of Judge McNab’s orders.
[7] Rice v Asplund (1979) FLC 90-725.
I find, therefore, that I cannot make orders in the children’s best interests that would have them having direct contact with their father. I will adopt Judge McNab’s “lifeline” such that the father might himself, and voluntarily, obtain psychological therapy and assistance. My experiences of the father are such that I doubt he would consider that any order of this Court detailing his attendance on a psychologist would be met with the altruism intended.
Where the children have the benefit of both an objective and child focused mother, I am confident that they will deal with the disappointment of any expectation they may have held as to direct contact with their father.
Despite doubts by the ICL and counsel for the mother, I am of the view that the FaceTime contact between the children and the father should continue. I note the mother’s comments that the children, not surprisingly, may become disinterested with high frequency and lengthy FaceTime calls, a situation not unusual for children. As such, I propose to order that the children have FaceTime with the father on one occasion per week. I expect that the father will be further aggrieved but assure him that the order is made in the hope that such time can be both enjoyable for the children and successful in their relationship and help towards a successful communicative relationship.
In all of the circumstances of the extraordinarily toxic relationship between these parents where direct communication is not a prospect, it is, in my view, in the best interests of the children that their mother have sole parental responsibility for them and in respect of long-term decisions to be made for them. I will order that she keep the father prudently informed of those decisions. She should however give the father notice of any decision made by her.
Given the evidence and X’s sentiments to the Court Child Expert the father will be restrained from entering the children’s schools except with the express written consent of the mother. For these purposes the parties should keep each other advised of their relevant contact details.
Given the trust of the evidence, it is proper to make an order restraining each of the parties from denigrating the other to or in the presence of the children.
ENFORCEMENT APPLICATION
The final orders of Judge McNab of 5 February 2021 provided for the father to vacate the former matrimonial home within 30 days and for the property be placed on the market. The father unsuccessfully appealed that decision. He had in the interim unsuccessfully sought a stay of his Honour’s orders. The father did not comply with the orders.
On 11 May 2021 the mother was obliged to make a further application to his Honour for possession of the property. Orders were made in her favour on 4 June 2021.
In 2021 the father was removed from the property by the Sheriff and the property was secured.
The mother then carried out, at her expense, repairs to the property. She marketed the property for sale and had carriage of that sale. The father refused to sign the contract.
The mother then asserts, and I accept, that the father attempted to further frustrate the sale process in various correspondence with the Court and continued to refuse to sign the contract for sale. Settlement was delayed.
Upon settlement it was found that the father had lodged a Caveat against title and without notice to the mother. This caused further delays and frustration on the settlement of the contract and additional costs for the mother.
The mother was obliged to take an application in the Supreme Court of Victoria for removal of the Caveat. The application was successful and costs were taxed in favour of the mother. An amount had been held in trust. These monies were paid out to the mother leaving a shortfall. To date, the father has not paid those costs.
On 31 August 2022 the Court made orders that monies held by the solicitors in their trust account from net proceeds of sale be paid to the mother being in respect of the costs order from the Supreme Court. The mother was obliged to repay those monies to Victoria Legal Aid.
A further amount of $29,719.14 plus any accrued interest, remains in the solicitors’ trust account. The mother’s affidavit at [94] – [109] details her rectification of repairs to the property and making it ready for sale. She provides a number of receipts. She asserts, I accept, other payments were made in cash. She asserts that she expended $38,745.26. The father has not contributed save and except in the sense of monies being held in trust. The mother is prepared to accept the monies held in trust of $29,719.14 given the likely futility of pursuing the father further for his proportion of the costs.
I accept that it is just and equitable that the monies held in trust by the solicitors in a sum of $29,719.14 be paid out to the mother and will order accordingly.
COSTS
The remaining issue for my consideration is the mother’s application for costs in respect of three appearances being 23 May 2023; 31 May 2023 and 2 August 2023. The costs sought are respectively $2,750; $1,800; $1,674. The first two appearances were before Senior Judicial Registrar Sudholz. The third appearance was on the father’s Review Application before Judge Parker.
Matters of costs are dealt with pursuant to s 117 of the Acts where at subsection (1) there is a general rule that each party to proceedings in these Courts pay his or her own costs. That general rule is, however, subject at ss (2) to a discretion being available in a Court to make an award for costs to a party if there are “justifying” circumstances. It is well established that the term justifying circumstances is not to read as synonymous with extraordinary circumstances. In determining whether or not there are justifying circumstances the Court is mandated to consider the factors set out at subsection (2A).
It is clear that the father was the applicant in the review application before the Judge Parker on 2 August 2023. His application was dismissed at order [3]. Specifically at [9] the mother’s and the ICL’S costs of and incidental to the hearing that day were reserved.
It is clear that the listings of the matter on 23 May 2023 and 31 May 2023 resulted from the substantive order [12] of Judge McNab’s orders of 5 February 2021 being:
The Father have liberty to apply to the Court to revisit the time spent Orders herein upon the Father attending for a neuropsychological assessment and obtaining a written report that addresses the matters raised by [Ms D], Psychologist, in her report dated 17 June 2020 and the Father shall ensure that in obtaining the assessment he do provide the assessor engaged by him with a copy of [Ms D]’s report.
The evidence suggests that the father himself first engaged Ms Q for the purpose of obtaining a neuropsychological report. The evidence satisfies me that the report was made available to the father and dated 2023. I do not accept his evidence in this Court that he had not received the report by the time of the first mention before the Senior Judicial Registrar. It follows that the listings of 23 May 2023 and 31 May 2023 were primarily in respect of the father’s activation of substantive order [12] of Judge McNab’s orders.
The order of 23 May 2023 notes that the ICL and the mother were yet to be provided with a copy of the report. Their costs were reserved on the adjournment. I am comfortably satisfied that the father was privy to the report by that date.
Similarly, the listing of 31 May 2023 follows from the previous adjournment.
It is clear from the evidence given to this Court that the father was unhappy with the contents of the Neuropsychological Assessment (despite it being the father himself who initiated the engagement of Ms Q who later became a single expert). It follows that the father did not achieve any substantial benefit from the listing of the matter. I repeat that the Review Application to Judge Parker was dismissed.
In all of those circumstances it follows that the father was unsuccessful in his application. The father’s conduct, on my finding, that he was privy to the contents of the report as early as mid- 2023 is a relevant consideration.
Neither of the parties in this matter is in a strong financial position. The father says that he now earns some $6,500 a month from his employment although the Court was provided with no further details or corroboration. He currently pays little or no child support. The mother has the primary responsibility for the support of the children. She has expended (and wasted) costs on the preparation of the former matrimonial home for sale where I am comfortably satisfied that the father did not co-operate in that process and further applications were required by the mother to secure his eviction from the property.
I am not advised that either of the parties is in receipt of grant of a grant of legal aid.
This is not a matter where offers of the settlement would be relevant.
In all of the circumstances, I am of the view that the mother should have her costs of the listings 23 May 2023; 31 May 2023 and 2 August 2023 in a total of $6,224.
The father’s own evidence is that he is now in a relatively comfortable financial position by reason only of information as to his gross income and his rental obligations. He provides no other financial information. I will allow him 28 days to make payment of the costs order in the total sum of $6,224.
I certify that the preceding one hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 13 September 2024
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