Moon & Moon
[2023] FedCFamC1F 414
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Moon & Moon [2023] FedCFamC1F 414
File number(s): BRC 10802 of 2020 Judgment of: HOWARD J Date of judgment: 24 May 2023 Catchwords: FAMILY LAW – PARENTING – Allegations of family violence – Where the father alleges the mother is alienating him from the children – Where the children live with the mother and spend alternate weekends with the father – Where the father failed to attend interviews with a Family Report writer and a psychiatrist in contumelious disregard of Court orders – Where the self-represented father was prevented from personally cross-examining the mother – Where the father is found to have engaged in coercive and controlling behaviours – Where the father poses a risk of harm to the children by involving them in the dispute – Where there remains a benefit for the children in spending unsupervised time with the father – Where the risk of harm is sufficiently ameliorated by an order for alternate weekend time with the father throughout the year as well as orders that the father attend psychological counselling and complete a parenting course – Where the mother is also required to complete a parenting course. Legislation: Family Law Act 1975 (Cth) ss 4AB, 45A, 60CA, 60CC, 61DA, 65DAA, 65DAC, 102NA Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Beckham v Desprez (2015) 55 Fam LR 310
Cox v Pedrana (2013) FLC 93-537
Cubbin & Cutler [2018] FamCAFC 84
Eagle & Scarlett (No 2) [2020] FamCAFC 291
Fitzwater & Fitzwater (2019) 60 Fam LR 212
Housing Commission of New South Wales v Tatmar Pastoral [1983] 3 NSWLR 378
Isles & Nelissen (2022) FLC 94-092
Johanson & Johanson [2022] FedCFamC1A 74
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 113 Date of hearing: 2, 5, 6, 7 and 8 December 2022 Place: Brisbane Applicant: Litigant in person Counsel for the Respondent: Mr George Solicitor for the Respondent: WP Lawyers Counsel for the Independent Children’s Lawyer: Mr Foley Solicitor for the Independent Children’s Lawyer: Smithson Lawyers Gold Coast ORDERS
BRC 10802 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MOON
Applicant
AND: MS MOON
Respondent
order made by:
HOWARD J
DATE OF ORDER:
24 May 2023
THE COURT ORDERS:
1.That by no later than 4.00pm on 7 June 2023, the Independent Children’s Lawyer shall provide to the Court and the parties a proposed final order reflecting the reasons for judgment.
2.That by no later than 4.00pm on 14 June 2023, the Applicant and the Respondent shall provide to the Court a proposed final order reflecting the reasons for judgment.
NOTATION
A.Once the parties have complied with these orders, the Court shall issue a final order reflecting the reasons for judgment, having had regard to the wording proposed by the Independent Children’s Lawyer and the other parties.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Moon & Moon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J:
BACKGROUND
The applicant in this parenting case is Mr Moon, born in 1986 (“the father”). The father resides in Suburb C, Queensland. He is not currently employed, although he has previously worked as a labourer and it is his intention to commence his own business at the conclusion of this litigation.
The respondent is Ms Moon, born in 1987 (“the mother”). The mother lives in Suburb D, Queensland. She is not currently employed.
Both parents were born in Country E. Their relationship commenced in or around 2007, while they were both studying at the same university. The parties were married in 2009 and they commenced cohabitation at the same time.
The parties migrated from Country E to Australia in 2013 and were granted permanent resident status later that year, becoming Australian citizens in 2018.
There are three young children of the relationship, all of whom were born in Australia. They are X born 2014; Y born 2015; and Z born 2017 (“the children”).
The parties first separated for a short time in early 2019 before reconciling the following month. The parties separated on a final basis on 13 December 2019.
The parties have not been able to agree in relation to parenting arrangements for the children. In broad terms – the father seeks an order that would see a progression to equal time between the parents;[1] the mother seeks an order that the children spend alternate weekends with the father from 4.00pm Friday until 5.00pm Sunday – provided the father complies with attendance upon a psychiatrist (with certain requirements as set out in the mother’s proposed order 6) and the mother also seeks that the father’s time be supervised until the father does comply with the mother’s proposed order 6;[2] the Independent Children’s Lawyer (“ICL”) does not agree with either proposal but submits that the Court should order alternate weekends from Friday afternoon until Monday morning.[3] The father seeks an order for equal shared parental responsibility. The mother seeks an order for sole parental responsibility in her favour. The ICL supports the mother in relation to parental responsibility.
[1] Note the final written submission of the father filed 26 December 2022.
[2] Note the final written submission of the mother forwarded to the Court on 13 December 2022.
[3] Note the final outline of submissions filed by the ICL on 19 December 2022.
The parties attended three mediations in 2020, being a mediation with Ms F on 5 March 2020; with G Services on 30 April 2020; and with Legal Aid Queensland on 20 July 2020. No agreement was reached as a result of these mediations.
The father filed an Initiating Application on 11 August 2020 in the Federal Circuit Court of Australia seeking parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The mother filed a Response to an Initiating Application on 23 September 2020.
The current operative parenting order was made by her Honour Judge Cassidy on 19 November 2021.[4] By that interim order, the mother was granted sole parental responsibility for the children. The Court also ordered that the children live with the mother and spend time with the father – “at all times agreed between the parents and failing agreement each alternate weekend from 4.00pm Friday to 5.00pm Sunday (with such time to continue throughout school holidays).”[5]
[4] Federal Circuit and Family Court of Australia (Division 2).
[5] Paragraph 5, Order of Judge Cassidy 19 November 2021.
There were also orders in respect of special days and other orders – including orders relating to changeovers, communication and non-denigration orders.
The Order of 19 November 2021 also contained the following paragraph:
“Psychiatric Assessment
20. That the Father attend upon a psychiatrist nominated by the Independent Children’s Lawyer for the purpose of obtaining a psychiatric report in relation to the Father’s capacity to care for the children and any mental health issues that may impair such capacity.”
The Independent Children’s Lawyer nominated Dr H as the psychiatrist. The father refused to attend an appointment with Dr H. The father appears to have taken the position that he was prepared to attend a psychiatric assessment – but not with Dr H. Paragraph 20 of the Order of 19 November 2021 required the father to attend upon a psychiatrist “nominated by the Independent Children’s Lawyer”. There was no scope for the father to choose or nominate a psychiatrist.
On 17 June 2022, I conducted a Case Management Hearing in relation to this matter. On that day, I made various orders including the following order:
“3.That the Applicant is to contact the Independent Children’s Lawyer, the Respondent and the Court in writing by 4:00pm on 1 July 2022 to confirm whether or not he will be attending upon the psychiatrist [Dr H] on the date advised by the Independent Children’s Lawyer.”
The father advised that he would not be attending upon Dr H.
The father had earlier been ordered to attend at a Family Report interview – with a Family Consultant “as appointed by the Independent Children’s Lawyer for the purpose of preparation of a Family Report…”. In this regard, I note paragraph 1 of the Order of the Senior Registrar made 21 February 2021.
There were some delays in the making of arrangements for the father to attend the Family Report interviews. I am satisfied though that the father had an opportunity to attend for the Family Report interviews with Ms J. The father chose not to do so.
The father attempted to provide explanations for his conduct in failing to attend upon Dr H and Ms J.
Counsel for the Independent Children’s Lawyer (Mr Foley) submitted that the father’s conduct in failing to comply with the Court orders was “brazen”. I would go further. The father acted in contumelious disregard of the orders of this Court. Indeed, the Order of 17 June 2022 threw to the father a lifeline in respect of not only attendance upon Dr H – but an opportunity to be interviewed by Ms J. The father chose not to attend upon Ms J and the father chose not to attend upon Dr H.
The father is the applicant in the proceedings. The father sought parenting orders from the Court. He then failed to comply with Court orders in relation to attending upon the Family Report writer and the psychiatrist. He seemed to think that it would be okay for him to choose a Family Report writer and a psychiatrist. To invoke the jurisdiction of the Court seeking parenting orders – then act in contumelious disregard of the Court orders in the manner that he did – meant that the father deprived the Court of important independent expert evidence relating to matters which the Court needs to consider in ascertaining the best interests of the children. The conclusion which I have drawn (having regard to the findings referred to in these reasons for judgment and my assessment of the father as a witness) is that the father deliberately embarked upon a course of conduct to attempt to frustrate the Court’s processes and the administration of justice.
The consequences for the father are significant.
At the commencement of the final hearing on Friday 2 December 2022, Mr George (counsel on behalf of the mother) made an oral preliminary application pursuant to s 45A of the Act seeking an order for summary dismissal of the father’s Initiating Application and seeking a further order that the matter proceed as an undefended hearing. The Court dismissed the preliminary application and provided reasons on Monday 5 December 2022. It is apparent from those reasons for judgment that the timing of the application militated against its chances of success.
There were a number of other preliminary applications made. The father sought an order that he be permitted to cross-examine the Independent Children’s Lawyer. That application was refused and reasons were provided on 5 December 2022. It is to be noted that the father had previously applied for the removal of the Independent Children’s Lawyer. In that same earlier application, the father sought orders that the mother’s lawyer be restrained from acting in the proceedings and that the father be given leave to arrange a Family Report with the mother. He also appears to have asked her Honour Judge Cassidy to recuse herself on the grounds of apprehended bias. Her Honour dismissed all of those applications by Order of 19 November 2021. The father appealed to the Full Court. The Full Court dismissed the father’s appeal on 18 May 2022. The father then sought special leave to appeal to the High Court of Australia. The father’s application for special leave was refused by the High Court on 8 September 2022.
During the course of the trial, the father maintained that he had previously applied for an order that I recuse myself on the grounds of apprehended bias. I pointed out to the father during the hearing that he had never in fact made such an application. The father had attempted to make an oral application that I recuse myself during the Case Management Hearing on 17 June 2022. I made it very clear to the father on that day (and the transcript of that day reveals as much) that in the event the father filed an application seeking an order for recusal – I would deal with such application in the ordinary course. I was not willing to entertain an oral application brought by the father in relation to such a serious issue. I made this clear to the father on 17 June 2022. Indeed, during the course of this trial, I read from the transcript of 17 June 2022 to remind the father (and the other parties) of precisely what had been said. At no time did the father file an application for recusal.
Mr Moon attended the trial as a self-represented litigant. Despite the fact that an order had been made pursuant to s 102NA of the Act, Mr Moon failed to avail himself of legal representation. Pursuant to the scheme established by the Commonwealth – both of the parents in this case were entitled to legal representation funded by the Commonwealth. An order pursuant to s 102NA was made by the Court on 11 March 2022. The impact of the s 102NA order was explained to the parties by the Court on 17 June 2022 at the Case Management Hearing.
Finally, by way of background, I would point out that at the commencement of the hearing there were various objections to evidence brought by the father. The Court made a ruling in relation to those objections and that occurred on 5 December 2022. There was nothing in those objections of any import and there was nothing in the evidence ruled upon which would have in any way altered the decision of the Court in these parenting proceedings.
SECTIONS 60CA, 60CC(2) AND 60 CC(2A)
In s 60CA of the Act it is stated:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
In s 60CC of the Act, the Legislature has set out how it is that a Court is to determine what is in a child’s best interests. Section 60CC(2) and (2A) state:
“(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
Having listened to the mother give evidence and noting also the evidence of the Family Report writer (Ms J) I have come to the conclusion that there is a benefit to the children in having a meaningful relationship with the mother.
The Court does not have the benefit of any independent expert evidence relating to the father’s relationship with the children. I do note that the children have been spending time with the father from 4.00pm Friday until 5.00pm Sunday each alternate weekend. This time has been occurring since the Order of Judge Cassidy on 19 November 2021. That time between the children and the father continues throughout school holidays. That order was made after a contested interim hearing. There had been previously operating (from 7 July 2021) an order made by the Senior Registrar. That order was in reasonably similar terms (alternate weekends) – but there was also (in week two) additional nights from Sunday afternoon until Tuesday morning and some extra time after school on the Tuesday. After the interim hearing before her Honour Judge Cassidy, the time in week two was deleted.
During the course of the trial, I had a good opportunity to observe Mr Moon in the witness box. I also had the opportunity to observe him presenting his own case. The father gave evidence in relation to the types of activities which the children enjoy whilst in his care. These activities include outdoor activities. The father has an apartment in Suburb C. It is a short distance from the father’s residence to the beach. When the father was in the witness box, he gave evidence (for the first time) that he has a flatmate living with him in his apartment in Suburb C. This information had not been provided by the father to the Independent Children’s Lawyer prior to the trial. Furthermore, the information had not been provided by the father to the mother at any time. There was no opportunity for the Independent Children’s Lawyer (or the mother) to serve any subpoenas in order to try to ascertain the nature of the flatmate’s character – to see if the children might possibly be exposed to some form of risk. There will be an order requiring the father to evict his flatmate forthwith. There is simply no other way to deal with this issue in the circumstances.
Importantly, I do note that the mother gave evidence to the effect that the children happily go off to spend time with their father. The children appear to enjoy their time with the father. When the children return to the mother, I infer from the mother’s testimony given in the witness box, that the children are happy – however they generally act in an unruly manner and, further, the children often reveal to the mother that the father has been having adult conversations with them. It is possible for the Court to draw inferences from the available evidence – in particular, the evidence of the mother. The inferences which I draw are that the children do enjoy their time with the father and this leads me to conclude that the children are likely to benefit from having a meaningful relationship with the father. As to the amount of time that the children should spend with the father (in their own best interests) – this requires further consideration. Furthermore, the inference that I have drawn (in relation to the benefit to the children of having a meaningful relationship with the father) has to be read subject to further matters to which I will refer later in these reasons for judgment. Primarily, this includes the need for there to be put in place an order that will require the father to obtain psychological counselling to address issues that I will identify in these reasons for judgment.
There have been various allegations of family violence made by both parents in this matter. The father maintains that the mother disciplined the child Y in mid-2019. I note that this was when the parties were still together. The mother says that the child received a light smack with a thong. His bottom was red but not welted. Y has been diagnosed with attention deficit disorder. The father photographed Y’s bottom on that occasion. It was obviously a source of dispute between the parents. The mother maintains that the father did not always smack the children in a “controlled manner”. The mother says that she had to plead with the father not to smack Y after she had spoken with a psychologist and paediatrician who advised that smacking was not appropriate for a child with attention deficit disorder. The advice was that the child needed to be disciplined differently – for example by removing activities that he enjoyed. This is the manner in which the mother now disciplines Y.
The view that I have formed is that neither parent is currently inappropriately smacking the children. In any event, I note that the parents have agreed that there should be an order that neither parent physically discipline any of the children.
An incident occurred in mid-2020. This was prior to the institution of proceedings and there were no parenting orders in place. A dispute arose between the parents at a changeover. Following the incident the parties made cross applications seeking domestic violence orders. A temporary protection order was made naming the mother as the respondent and the father and the children as the aggrieved. This appears to be because the mother parked her car in such a way that it prevented the father from driving his vehicle. As to the precise events which occurred on that evening – it is somewhat unclear. I do not consider (in the context of this case) that it is necessary for the Court to make precise findings in relation to what occurred in mid‑2020. It is well settled that the Court “…is not required to make findings in relation to all of the facts put in issue by the parties. A court need only determine those facts that are necessary for the determination of the issues between the parties.”[6]
[6] Baghti & Ors [2015] FamCAFC 71 at [63].
The mother maintains that the father’s conduct during the relationship amounted to coercive control. The mother also submits that the father has attempted to exercise control over her since the end of the relationship. The mother says that the father’s conduct (during the relationship) was manipulative on occasions and, on other occasions, amounted to “gaslighting”.[7] I note the following evidence from the mother contained in her trial affidavit filed 15 November 2022:
“38.[Mr Moon] was working for his brother during the first 2 years of living in Australia and threatened on more than one occasion to commit suicide. He would say that he was just going to walk into the ocean and keep walking. He also drank a lot of alcohol when he went out with his brother and came home extremely intoxicated on more than one occasion.
39.[Mr Moon] also threatened suicide after [Z] was born in 2017, because he did not have a job and he had been 'fired' from his previous job.”
[7] The term “gaslighting” is defined in the Oxford English Dictionary as follows – “The action or process of manipulating a person by psychological means into questioning his or her own sanity”. The word “gaslighting” derives its name from the 1944 film “Gaslight”.
The father was questioned about his threats to commit suicide. Under cross-examination, the father said that he never in fact had any intention of committing suicide. In those circumstances, the father’s conduct in making such a threat was indeed manipulative.
In paragraph 41 of her trial affidavit, the mother stated:
“41.[Mr Moon] accused me, throughout our relationship, of having an affair. When a counsellor challenged him on these allegations and asked what I could do or say to prove that I was not having an affair and telling the truth, [Mr Moon] could not give an answer. It seems that once [Mr Moon] gets 'hyper fixated' on something, no one can change his mind, even if his allegations have no basis.”
I accept this evidence from the mother. Such extreme criticism amounts to serious bullying by the father.
I also note the following evidence from the mother:
“32.[In] 2019, a friend and I had been working at [an event] in Brisbane all day and when I returned, I had intense menstrual pain. [Mr Moon] accused me of making excuses to avoid having sex and dismissed that had severe pain.
33.[Mr Moon] was very controlling during the relationship and often accused me of having an affair. He would question me about where I had been , why was I taking so long, what was I doing, who did I see and say things such as "were you even at Bible studies, who did you talk to?" He also often tried to log into my phone to see what I was doing and around the time that we separated he became annoyed because I changed my passcode so that he could not access my phone.
34.[Mr Moon] also tried to control what I wore and [in] 2015 when we were about to leave for a wedding, he told me, in front of friends who were babysitting [X] and [Y], to go and get changed. On another occasion, whilst we were living in [Suburb K], we were going out to dinner and he was annoyed that I was wearing a jumpsuit, because he wanted me to wear a dress so that he could put his hand up my dress.
35.I am concerned about the continual belittling comments that [Mr Moon] is making about me to the children. I understand that sometimes children can get facts slightly wrong, but there have been numerous occasions when the children have told me that [Mr Moon] has told them that I am a bad person or that I am not a Christian. I believe that these statements confuse the children, and that [Mr Moon] is trying to put a wedge between them and me.
36.Recently I felt very intimidated during a changeover on 16 October 2022. The children were all in my car and the boys started shouting at each other. I was busy trying to diffuse the situation, and instead of stepping in and helping, [Mr Moon] appeared to be filming me on his phone from where he was sitting in his car. I later found out that the children had been woken up at 4 or 5am to watch the sunrise (a regular occurrence) and were therefore very tired.
37.[Mr Moon] also sits in his car most times after changeover and waits while I get the children settled. Sometimes he appears to be making notes and other times he stares at us. The children are often 'hyped up' and it sometimes takes a while for them to settle before we can go. I find it stressful when [Mr Moon] stays there while I try to get the children settled, because often the children, especially [Y], are quite hyped up and struggle with emotional regulation after returning from his home.”
I accept this evidence from the mother. To the extent that the father makes any denials concerning this evidence – I reject his denials. The mother was an impressive witness. I have no doubt that the father behaved in a controlling manner towards the mother during the relationship. This included acting in a coercive manner. For instance, the father would move to sleep in the spare bedroom if the mother did not want to have sex with him (paragraph 23, mother’s trial affidavit). The evidence reveals that the father would shout at the mother and abuse her. I accept the mother’s evidence that the child X still recalls the exact roundabout that the family were travelling through when the father was shouting at the mother (paragraph 27, mother’s trial affidavit).
I accept that the father engaged in the conduct alleged by the mother. I accept that the father had no grounds upon which to allege that the mother was having an affair. Such conduct by the father was manipulative and caused distress to the mother. In fact, I accept all of the mother’s evidence in relation to family violence perpetrated by the father.
I have no hesitation in coming to a conclusion that the father acted in a very controlling manner toward the mother throughout the course of their relationship. My view in this regard is based upon the mother’s evidence (which I accept) and it is also based upon my assessment – having observed the father in the witness box for a considerable period of time. In addition, there is the manner in which the father has conducted his case during the course of these proceedings. The father, for instance, has tried to control the processes of the Court. The father insisted that he should be permitted to attend upon a psychiatrist of his own choosing and, further, the father insisted that he should be involved in the decision-making process concerning the name of a Family Report writer. In these ways, the father sought to control the Court process.
The father continues to speak to the children about adult issues including complaining to the children that the mother will not permit the children to have more time with him. Further, as recently as 6 November 2022, I note that the two boys (X and Y) reported to the mother that the father had described a movement as a ‘sex move’. To the extent that the father denies any such adult conversations with the children – I reject his denials. There is no suggestion that the children are inventing conversations with their father. I note paragraph 59 of the mother’s trial affidavit. In that paragraph, the mother stated:
“59.I have controlled the time that the children have spent with [Mr Moon] because I thought it was in their best interests to do so and because every time they come back from spending time with him, they are 'out of control’. I have also regulated the time because [Mr Moon] manipulates the children - when they come back, they say "Dad wants us to have a phone" or "Dad wants us to spend more time with him and sleep over more nights", etc. I have found that [Mr Moon] discusses adult issues with the children and asked [X] why I did not allow him to speak to Granny. [X] stated that he was allowed to speak to Granny. [Mr Moon] accused him of lying so I then sent him an email because I wanted to check whether it was true. However, he did not respond. I therefore think that [X] is telling the truth and [Mr Moon] has accused him of lying.”
I accept this evidence from the mother. “Granny”, I assume, is the paternal grandmother. Prior to the issuing of parenting orders – the mother appears to have controlled the amount of time the children were spending with the father. The conclusion I have reached, based on the evidence and having observed the parties in the witness box, is that the mother has acted in a child focused manner at all times.
Of particular concern to the Court is the fact that the father has consistently complained that the mother has been alienating the children from him. There is no evidence to support such an allegation. The mother is, in difficult circumstances, doing an exceptionally good job raising these children. The children happily go off to spend time with their father. This is unlikely to be the case if the mother were, in any way, undermining the relationship between the children and the father. I accept the evidence of Ms J that there is no evidence that the children have been alienated from the father. This appears to be another example of the father’s abusive conduct. I consider that it is abusive for one parent to accuse the other of alienating behaviour – when there is no evidence to support such an allegation. It also appears to be an example of the father attempting to force the mother to doubt her own conduct and her own judgment.
To be clear – the conclusion that I have reached is that the father has engaged in a manipulative and controlling manner towards the mother both before and after separation. During the relationship, the father falsely accused the mother of having an affair. Since separation the father has falsely accused the mother of alienation. The father has used this type of behaviour to coerce or control the mother. Derogatory accusations such as these come within the definition of family violence (s 4AB of the Act).
The mother is particularly concerned that the father has not presented for an interview with the Family Report writer and the mother is also concerned that the father has refused to attend upon a psychiatrist. The Independent Children’s Lawyer shares the same concerns. So does the Court. The father, by his conduct, has done himself no favours. The father seeks significant increases in his time with the children – but because of his conduct both during the relationship and since the relationship (as outlined in the mother’s evidence) and because of the father’s failure to attend the Family Report interviews and failure to attend upon a psychiatrist, the Court is, to a very large extent, restricted in terms of the breadth of any parenting order that can be made in respect of these children. In this regard, I am talking about the length of time that the children spend with the father. The Court does not have the benefit of any independent expert evidence in relation to the father’s relationship with the children. Furthermore, the Court does not have any independent expert evidence in relation to the state of the father’s mental health.
In relation to the father’s mental health – the father informed the Court that he was not willing to attend upon Dr H. The father explained during the course of the trial that he had some particular reasons for not wanting to attend upon Dr H. The father did not disclose to the Court what those reasons were.
One of the father’s complaints was that there had been no order made for the mother to also attend upon a psychiatrist. The order for the father to attend upon a psychiatrist had been made by her Honour Judge Cassidy on 19 November 2021. Orders are made by the Court based on evidence. It does not follow that, because there may be some evidence to support the making of an order for a psychiatric assessment concerning one parent – that there necessarily has to be an order made by the Court requiring that the other parent undergo psychiatric assessment.
Exhibit 2 is a memorandum to the Court following a Child Inclusive Conference. That conference took place on 27 November 2020. The memorandum was prepared by Ms B. Ms B was unavailable to give evidence in Court. Ms B provided a medical certificate – Exhibit 3. Neither the ICL nor the mother required Ms B’s attendance at Court. The father did want to cross-examine Ms B. When it became apparent that Ms B was unwell and she would not be available to give evidence – the father withdrew his request to cross-examine Ms B. The father stated that he did not want to delay the trial in any way. Ms B’s written memorandum was admitted into evidence and (as noted) is Exhibit 2. Because of the unavailability of Ms B to give evidence – I have been very cautious in the weight that I have given to her memorandum. Indeed, there was no recommendation made by Ms B concerning the parenting arrangements for the children. Ms B highlighted a couple of concerns. Most of the information contained in Ms B’s memorandum has been provided by the parties in other evidence. For instance, the Court was aware that the father had consulted a doctor (a general practitioner it seems) in relation to some mental health issues in or about 2017. The father gave evidence that he did see a general practitioner and (I understand from his evidence) a psychologist. He was apparently prescribed (by the general practitioner I presume) some form of medication. He either did not take the medication or he took it for a short period of time. In any event, the only reason I have referred to this memorandum from Ms B is to note that there is some reference in that report to the father’s mental health and his previous attendance upon a general practitioner and a psychologist. Clearly, that was sufficient for the Court (on a prior occasion through the order of her Honour Judge Cassidy) to require the father to attend upon a psychiatrist. I tried to explain to the father during the course of the trial that such a procedure and such an order (as that made by the Judge relating to a psychiatric assessment) was not unusual – indeed such reports are commonplace in this jurisdiction. This is for understandable reasons. The only evidence relating to the mother (from that memorandum of Ms B) in relation to counselling – was that the mother had received some psychological counselling to assist her with stress. The point that I am making – is that it is often the case in this type of litigation that one parent will be required (by the Court) to attend for a psychiatric assessment – even though the other parent is not required to do so. It is no part of my role to second guess what her Honour Judge Cassidy did. The only point that I am making is that there was, indeed, evidence to support the course of action adopted by her Honour. To be clear then, in relation to the actual conclusion of the Court and the making of parenting orders (following the trial) – I have not placed any weight upon the opinion of Ms B – such as it is.
This leads me to a consideration of the question of risk of harm to the children. Since the decision of the High Court in M v M (1988) 166 CLR 69 (“M v M”) – courts exercising jurisdiction in family law are required to take into account, in resolving the issue relating to the best interests of children, the existence and magnitude of risks of harm to children. These are fundamental matters “to be taken into account in deciding issues of custody and access”.[8] It is the case that in M v M the High Court was considering a case of alleged sexual abuse. But it is apparent that the Court was talking about risk and the assessment of risk in all cases where there is a risk of harm to a child – not merely those cases where there are allegations of sexual abuse.
[8] M v M at 77 per Mason CJ, Brennan, Dawson, Toohey & Gaudron JJ.
There have been many cases concerning the assessment of risk since the High Court’s decision in M v M. On 1 July 2022, the Full Court of this Court delivered judgment in Isles & Nelissen (2022) FLC 94-092 (“Isles & Nelissen”). In that case, the Full Court[9] considered the question of the assessment of risk and, in particular, considered the standard of proof required in assessing future risks of harm. At [55] of the decision in Isles & Nelissen, the Full Court adopted, as the correct statement of the law, a previous decision of Austin J in Fitzwater & Fitzwater (2019) 60 Fam LR 212 (“Fitzwater & Fitzwater”).[10] At [50] of the decision in Isles & Nelissen, the Full Court specifically adopted Austin J’s earlier decision in Fitzwater & Fitzwater. I note the following paragraphs of Austin J’s judgment in Fitzwater & Fitzwater:
[9] Per Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ.
[10] The judgment of Austin J in Fitzwater & Fitzwater was a dissenting judgment.
“133.In civil proceedings, s 140(1) of the Evidence Act provides the “case of a party” must be found proven if the court is satisfied of its proof on the balance of probabilities. For that purpose, the “case of a party” is defined (in the Dictionary to the Evidence Act) to mean “the facts in issue in respect of which the party bears the legal burden of proof”. The substantive law determines where the legal burden of proof falls in respect of facts in issue.
134.It must be borne in mind that proceedings in respect of children under Pt VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at CLR 76; ALR 581; Fam LR 611; ZP v PS (1994) 181 CLR 639 at 647; 122 ALR 1 at 6; 1 Fam LR 600 at 604). The paramount consideration in Pt VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at [64]). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at [186]).
135.The conclusion reached by a court in Part VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J C Hutton Pty Ltd (No 2) (1990) 169 CLR 638; 94 ALR 206 (Malec)).
136.In Malec, Brennan and Dawson JJ said (at CLR 639–40; ALR 546):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
and Deane, Gaudron and McHugh JJ said (at CLR 643; ALR 548):
…The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring…
137.The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald v Karrington (2016) 55 Fam LR 344; (2016) FLC 93-726; [2016] FamCAFC 152 at [60]; Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter v Potter (2007) 37 Fam LR 208; (2007) FLC 93-326; [2007] FamCA 350 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored…”
In looking at the risk of possible future harm to children, the Court is not required to and, indeed, is not able to make a finding of the existence of such harm on the balance of probabilities. As Austin J stated in Fitzwater & Fitzwater[11] - “Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening”.
[11] At [139].
At [53] in Isles & Nelissen – the Full Court stated:
“53.The point being made, importantly for present purposes, was that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proved on the balance of probabilities.”
The extent of any assessment of risk that will be required by the Court will be dependent upon the facts in any given case. In some cases, family violence perpetrated by a person might be so heinous, obvious and longstanding that a Court might not need to say much in relation to the nature and extent of risk. Some factual circumstances really do speak for themselves. That is especially so in cases involving serious physical violence perpetrated by a parent.
But that is not the case here. It is sufficient to note that the mother (by an Outline of Case document filed the week of the trial on 29 November 2022) seeks an order that the father’s time be supervised until he obtains a psychiatric assessment. This was a changed position from the mother. In the Family Report prepared by Ms J (dated 27 September 2021 and annexed to an affidavit of Ms J filed 28 September 2021) – Ms J does not make a recommendation for supervised time pending a psychiatric assessment. But, of course, the father refused to attend the Family Report interview with Ms J and, hence, Ms J did not have the benefit of an interview with the father when preparing her report.
The mother has given evidence (and submissions have been made on her behalf) that there is a long history showing that the father has engaged in manipulative conduct (especially in relation to the mother) and that the father has also engaged in coercive control of the mother. The conclusions that I have reached confirm that the father has engaged in manipulative conduct and has controlled the mother (or attempted to control the mother) in a coercive manner. The mother says that she was subjected to this type of conduct by the father for a 10 year period and it took her a long time to break free of his influence. This is the import of the mother's testimony given during the trial. From the mother’s point of view – she makes the point that if the father engages in manipulative conduct with the children – it will be much more difficult for them – firstly, to realise that the father is behaving inappropriately and secondly, to actually do anything about it.
The harm that could be caused to the children would include the father continuing to speak to the children concerning adult issues. If the father continued to engage in such conduct, then the children could conceivably suffer psychological or emotional harm. That is the Court’s assessment – although I would point out there is no expert evidence on the point to which my attention has been drawn. Of particular note is the fact that the father talks to the children about wanting to see them more often. The message that the father conveys to the children (I note from the evidence of the mother, or at the very least I infer from the evidence of the mother) is that it is the mother who was preventing the children from seeing the father more often. This amounts to the father undermining the mother’s position and her relationship with the children. As a result of the Order of Judge Cassidy of 19 November 2021 – the mother has sole parental responsibility in respect of the children.
To say the least, it is not helpful for the father to discuss with the children adult issues such as "sex moves". Furthermore, it is problematic for the father to provide or attempt to provide one of the children with their own mobile telephone – in circumstances where the mother (who has sole parental responsibility) is opposed to such a move.
The examples that I have given in relation to the risks of harm to the children should not be viewed as exhaustive. One thing that is unknown – is whether the father does have some underlying psychiatric or psychological issue which makes it more likely that he will act in a manipulative or controlling manner. The Court certainly does not know the answer to that question. The Court has been deprived of having the answer to that question because the father did not follow the Court order and attend upon a psychiatrist.
In addition, the father’s failure to attend upon the Family Report writer has (as I have noted more than once already) deprived the Court of the benefit of important evidence. Family Report writers are experienced in identifying problematic conduct and behaviours (by a parent towards children for instance) which may then lead to the necessity for some further investigation – such as a psychiatric assessment.
The risks of harm to the children which I have identified need to be balanced against the other findings that I have made. The children do go off to see their father. They appear to be happy. They appear to return home happy – although somewhat unruly. The children make unreasonable requests of their mother upon returning home. The children also alert the mother to adult conversations they have had with the father.
For many years, the dissenting judgment of Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 (“N and S”)[12] has provided guidance to trial judges in this jurisdiction. In paragraph 12 of the decision in Isles & Nelissen, the Full Court again referred back to Fogarty J’s judgment and stated:
“12.Fogarty J stated it is necessary for a trial judge to give real and substantial consideration to the facts of the case and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child[13]… and, furthermore, the qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm…”[14]
(Citations omitted)
[12] Especially at p.82,713 – 82,714.
[13] At 82,713 – 82,714.
[14] At p.82,714 in N and S.
Having regard to the father’s previous conduct and the findings made by the Court, it must be said – that there is a risk that the father will continue to raise adult issues with the children. There is also a risk that the father will involve or continue to involve the children in his conflict with the mother. As I noted previously (although there is no evidence in this regard) it seems to me that the type of harm that could be caused to the children by the continuation of such conduct by the father would be in the nature of emotional harm or possible psychological harm. It could have the potential of harming the children’s relationship with their mother. As best I can, within the confines of this evidence, I have carefully turned my mind to the existence of the possible risks of harm and also to the magnitude of the possible harm. It is however, in conducting this review of the evidence and the balancing of the various considerations, important to note that there is no evidence (to date) to show that the children’s relationship with the mother has been undermined or damaged by the father’s conduct – in particular the father’s adult conversations with the children. I infer from the available evidence that these children are intelligent and astute. The fact that they arrive home from visits with their father and immediately recount to the mother any adult conversations they have had with their father – indicates that they are, at the least, aware that they ought to report such conversations to the mother. The evidence from the mother would also tend to suggest that the children have insight into the fact that the father ought not be holding adult discussions with them. The inferences which are open to the Court on the available evidence, and which I draw, are that the children have gained important insight into what is happening. They may not appreciate precisely the type of harm that they could be exposed to – but they do seem to have the insight to know that it ought not be happening.
In terms of the precise wording sought by the mother in relation to the need for a psychiatric assessment of the father – I sought and obtained a written submission (in the form of a draft order) from counsel on behalf of the mother. The ICL and the father were also given the opportunity to reply. The proposed order was contained in the mother’s Outline of Case document filed 29 November 2022. During submissions at the conclusion of the trial, I specifically noted that it would not be appropriate for the mother to retain any discretion in relation to the outcome of any psychiatric assessment concerning the father. That is why the mother’s lawyers were given an opportunity to draft a proposed order which removed any residual discretion remaining with the mother. The precise order submitted on behalf of the mother on 13 December 2022 contains the following paragraph:
“6(a)That the father forthwith consult with and attend upon a Psychiatrist for the purpose of initial assessment as to any risk that he poses to the emotional and psychological wellbeing of the children.
(b)That the father must provide to the Psychiatrist:
(i) a copy of the Reasons for Judgment of the Honourable Justice Howard dated ……,
(ii) a copy of the Child Inclusive Conference Report authored by [Ms B] dated 27 November 2020, and
(iii) a copy of the Family Report authored by [Ms J] dated 27 September 2021.
(c)In the event that the Psychiatrist recommends that the father should undertake therapy or if medication is prescribed, then the father must undertake such therapy and comply with the advice of the Psychiatrist.
(d)In the event that the father is able to provide the mother with a report from the Psychiatrist in which the Psychiatrist opines that the father does not pose a risk to the emotional and psychological wellbeing of the children, then the provisions of subparagraph (f) hereof shall apply.
(e)Until such time as the father complies with the provisions of subparagraph (d) hereof, the children shall spend time with the father for up to two hours each alternate weekend at [L Contact Centre] at such times as may be facilitated by that Contact Centre. The father shall pay all costs associated with the provision of services by that Centre, including intake interviews.
(f)Once the father complies with the provisions of subparagraph (d) hereof, the children shall spend time with the father on each alternate weekend from 4.00pm on Friday until 5.00pm on Sunday.”
The father opposes the making of any such order. Indeed the father seeks an order that the children live primarily with him for a short period of time and then progress to an equal time arrangement with the mother. There is very little (if any) evidence to support the father’s proposal.
The ICL is also opposed to the making of an order in terms of paragraph 6 of the mother’s proposed order.
A move to supervised time pending a psychiatric assessment would be a significant change for the children. The prospect of supervised time pending the psychiatric assessment was put (by Mr Foley of counsel on behalf of ICL) to the Family Report writer (Ms J) during cross-examination. Mr Foley explained to Ms J the kind of order sought by the mother. That order is now included in these reasons for judgment in paragraph 66. I note from p.300 of the transcript on 7 December 2022 from line 28:
“Mr Foley: …At paragraph 6, the mother seeks an order… that the children’s contact with the father in the first instance should be confined to supervision at a contact centre until the father has provided evidence to the mother that he has attended with a psychologist/psychiatrist to address his mental health issues…
[Ms J]:Yes. Yes, I’ve read that.
Mr Foley: Would you have a concern about the impact on the children of a change from the current arrangements to there being constrain to see their father only under supervision?
[Ms J]:When I read – when I read that, I – I reflected back on when I was writing the report and the considerations around contact.
Mr Foley:Yes?
[Ms J]:And it did go through my mind at that point that a supervised arrangement might be a good idea until [Mr Moon] does get a psychiatric evaluation. And I believe – I would have to check the recording – that I – I proposed that at the time to [Ms Moon] and she said that she didn’t think that that was required at this point back when I did the report. So, I mean, since that time there has been a fair amount of time past and she has outlined some very concerning comments and behaviours in the children that may, and in my experience, could warrant a supervised arrangement. Now, in saying that, it would have – it obviously would have a big impact on the children because at the moment, they’re spending weekend – every other weekend with Dad and it’s unsupervised, but [Mr Moon] had the opportunity to have a psychiatric evaluation; he chose not to do that, so that may be something the court would consider, and I would support that given the – what’s transpired between my interviews and now with [Ms Moon’s] material. So if the court was to consider that, it – it would be disruptive, but it would also reduce the – the inappropriate – alleged inappropriate behaviour that’s happening during contact. It would – would contain it and stop that effectively from happening until [Mr Moon] did seek some assistance for his behaviour.
Mr Foley:As a general proposition, would you agree that supervision of contact on a final basis would be undesirable for the children?
[Ms J]:Yes. Yes. It – absolutely. I think that it has to progress that – in this case, it would have to progress, obviously, because that’s not ideal. But in this situation, the court may find that that’s a – a good opportunity to contain – like I said, contain that. And also it gives the court the opportunity to have some independent feedback from a supervisor because at the moment, the children aren’t in – they’re being home-schooled, so there’s not an external school to provide information. So that supervisory centre would be able to provide some feedback on the interactions between the children and their father which may assist the court moving forward.”
I have given careful consideration to the order proposed by the mother (proposed paragraph 6). I am particularly mindful of s 60CC(3)(l) of the Act. That subsection of the Act requires the Court to consider – “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child."
I am concerned that making an order along the lines of paragraph 6 of the mother’s draft is more likely to lead to the institution of further proceedings in relation to these three children. The level of conflict between these parents is intense. The institution of further proceedings or the continuation of litigation between these parents in any form will undoubtedly be detrimental to the children. This family needs finality. There needs to be a final order.
I have weighed all of the evidence and considered the various possibilities in coming to a decision concerning the best interests of these children. My view is that adopting the kind of order proposed by the mother (proposed paragraph 6) is not only more likely to lead to the institution of further proceedings but – is, in fact, the kind of order that is more likely than not to prevent the finalisation of these existing proceedings. At all times, I am mindful of the paramount consideration – namely the best interests of these children. What I do know is that, at least since July 2021, the children have been spending time with their father on alternate weekends. The children are keen to see their father and they are happy to go to spend time with him. The father is having adult discussions with the children and is involving the children in his dispute with the mother. The father needs to amend his ways. The father needs to forthwith stop having adult discussions with the children. The father needs to cease immediately his practice of having adult discussions with the children in an attempt to manipulate or coerce the mother towards a particular outcome – in particular, an outcome which he considers more favourable to him concerning the amount of time the children spend with him. Having adult discussions with the children and involving them in the dispute between the parents is a problem. The risk of harm to the children can be significantly ameliorated (it seems to me) by limiting the father's time with the children. The view that I have formed is that, in the best interests of the children, there should be no extension of the father’s time with the children on a final basis. The father should be restricted to alternate weekends from Friday afternoon to Sunday afternoon. My view is that this time should continue through the school holiday periods as well. Having been apprised of the facts as best she could – the Family Report writer came to a similar conclusion in her written report concerning holiday time.
The fact that the father continues to have adult discussions with the children does, however, lead me to conclude that there will need to be a further order made requiring the father to attend upon a psychologist for counselling. This counselling will include the need for the counsellor to explain to the father the type of harm and damage that can be done to the children if they are involved in or included in adult discussions and further, the harm that can be done to the children if they are drawn into the dispute between their parents. From the date of the final order – the father will be given a period of six months within which to attend upon a psychologist for the purpose of the counselling that I have outlined. In addition, the father will be required to attend a parenting course. I will also order that the mother attend a parenting course. The parents will be required to complete that parenting course within six months of the date of the final order. There will be a further requirement upon the father to then file an affidavit confirming the name of the psychologist and the date of the counselling sessions. The order will in fact require the father to attend at least three psychological counselling sessions. There will be an order that the psychologist receive a copy of these reasons for judgment and a copy of the Family Report prepared by Ms J dated 27 September 2021. Because Ms B was not available for cross-examination – I do not consider it appropriate to have a copy of her Child Inclusive Conference Report forwarded to the psychologist. The father must choose his own psychologist and inform the ICL of the psychologist’s name within three weeks of the final order. The ICL will be required to send the reasons for judgment and Ms J’s Report to the psychologist.
The mother will also be required to file an affidavit confirming that she has completed a parenting course. Both parents in the affidavits that they are to file are required to annex a copy of the certificate confirming completion of the parenting courses. The parents do not need to attend together. That is rarely a good idea.
My view that there should not be an order for supervision of the children’s time with the father is reinforced by my consideration of other evidence. I note the evidence of Ms M. Ms M lives (or at least in 2021 lived) in the same apartment building in Suburb C as the father. Ms M states:-
“2.I have been [Mr Moon’s] neighbor for the last thirteen months (04/04/2020 - present).
3.In that time I have seen that [Mr Moon] is the kind of person who is friendly, courteous, and will always lend a hand to help when people are in need.
4.The children, [X], [Y], and [Z], have been living part-time, at [N Street] for the past thirteen months.
5.In that time I have witnessed kind, positive and loving parenting between [Mr Moon] and the children: [X], [Y] and [Z].
6.I have seen [Mr Moon] being a good role model and talking through his actions.
7.I have also witnessed [Mr Moon] explaining and helping them learn from their mistakes in a positive and consistent manner.”
Ms M was not required for cross-examination. I accept her evidence.
Furthermore, I note the evidence of Ms P. Ms P is also a resident at the father’s unit block in Suburb C. Ms P is (or at least in 2021 was) a 60 year old citizen. Ms P states:-
“1.I met the applicant, [Mr Moon in] 2020 when he moved into [N Street, Suburb C], which is the unit directly underneath the unit that my husband, [Mr Q] and I live in.
2.[Mr Moon] is a friendly, considerate, caring neighbor. I am 60yrs old and my husband is an aged pensioner. [Mr Moon] offers and is always willing to assist us and others around him in anyway he can. [Mr Moon] is a fine upstanding young man.
3.During the past 14 months I have witnessed [Mr Moon] as a father of [X], [Y] and [Z] when the children come to stay with him.
4.The children are always so very excited when they come to visit [Mr Moon] and display that they feel secure and comfortable in their environment with their father. [Mr Moon] provides a clean, tidy and organised home environment whilst still being interesting, stimulating and homely for the children. It is a 3 bedroom unit and the children have been excited to show me their bedrooms, with their special colourful bedspreads on their beds and toys all set up as they like. [Mr Moon] plans interesting experiences for the children to enjoy and takes them on many outings of different natures which they talk about with enthusiasm and excitement to my husband and I. The children seem very happy whilst being with their Dad.
5.[Mr Moon] is a very capable and responsible parent. [Mr Moon] is a wonderful loving compassionate father with noticeable, well informed parenting skills. I recognize these skills from being [experienced and qualified in child-related work]. I notice this in the way [Mr Moon] speaks with and to the children, always in a calm gentle manner. [Mr Moon] is a very patient father and puts the best interests of the children first. [Mr Moon] is diligent with the safety of the children.
6.[Mr Moon] regularly takes the children to our local beach which is situated [nearby]. The children are always dressed appropriately and have their special drink bottles with them and play equipment they may be fond of at the time. [Mr Moon] definitely meets the children's basic needs and much more, in a compassionate, caring and loving manner.
7.Whilst venturing to the beach, walking or riding up the street, the children have a great social time with friends in the street. It is a small friendly community where everyone says hello and is talkative and interested in each other's happy day. The children get very excited when they see friends walking their dogs and always have a ‘Happy Hello' time with them and often a playful time on the beach.”
Ms P was not required for cross-examination. I accept her evidence.
The evidence of both of these witnesses, Ms M and Ms P, does paint a pleasant picture of the children’s life with their father on the alternate weekends. I am well aware that appearances are not everything. Neither Ms M nor Ms P are present 24 hours a day when the father is talking with the children. But, nonetheless, it does indicate to the Court that the children appear to be enjoying their unsupervised time with the father. If the children’s time with the father was required to be supervised (for any reason) it would impact upon the children’s enjoyment of their time with the father. I would reiterate that, to date, there is no evidence to show that the children’s relationship with the mother has been undermined or damaged by the father’s conduct.
It is a convenient time to note (again) that the Court is not required to refer to every fact or argument relied upon by the parties to proceedings. The parents (including the father) have made a large number of allegations and submissions. I note what was said by the High Court in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 (“Whisprun”) at [62]. At that part of the decision the High Court, per Gleeson CJ, McHugh and Gummow JJ stated:
“[62]…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.”[15]
[15] Also note Eagle & Scarlett (No 2) [2020] FamCAFC 291 at [103] and Johanson & Johanson [2022] FedCFamC1A 74 at [43].
I also note the decision of Housing Commission of New South Wales v Tatmar Pastoral [1983] 3 NSWLR 378 (“Tatmar Pastoral”)[16] where Mahoney JA stated at pp.385–386:
“It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing…”
[16] The decision in the Tatmar Pastoral case was relied upon by the Full Court of the Family Court of Australia in Baghti & Baghti and Ors [2015] FamCAFC 71.
I would also note that the Court, in parenting decisions, is not required to consider the various sections and subsections in any particular order: Cox v Pedrana (2013) FLC 93-537 at [29]–[31]; Beckham v Desprez (2015) 55 Fam LR 310 at [31].
SECTION 60CC(3)
In the foregoing reasons relating to ss 60CC(2) and 60CC(2A), I have, in various ways considered the various subsections within s 60CC(3).
The Court is not required to specifically mention each factor in s 60CC in the reasons for judgment. The Court is required to "consider" the various matters contained in s 60CC when determining what is in the best interests of children. In this regard, I note the decision of the Full Court in Cubbin & Cutler [2018] FamCAFC 84 (“Cubbin & Cutler”). The Full Court at [12]–[13] stated, inter-alia:
“[12] The primary judge set out at [224] what he found to be the most significant of the father’s contentions. We are not persuaded that he failed to consider these, even if he did not address them by reference to s 60CC. It was not obligatory to do so since the only obligation on a judge in dealing with the s 60CC factors is to “consider” them.
[13] It is erroneous to suggest…that there is an obligation to give reasons about each s 60CC factor. The duty to give reasons does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. The obligation requires only articulation of the essential basis upon which the decision was reached so that the parties (and the appeal court) can understand the reasoning and so that justice can be seen to have been done: Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 ; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 ; Bennett and Bennett (1991) FLC 92-191 ; SCVG & KLD (2014) FLC 93-582 ; and Banks & Banks (2015) FLC 93-637 .”
The Family Report of Ms J (annexed to her affidavit filed 28 September 2021) notes that she spoke briefly with the children about her role. Ms J offered the children an opportunity to speak with her individually however they declined. The Family Report writer was able to observe excellent interactions between the children and the mother throughout the observation period. The Report writer notes at paragraph 5.5 that it was apparent to her that the mother was the primary attachment figure for the children. It was also apparent to Ms J that the attachment between the children and the mother was secure. In paragraph 5.2 Ms J noted that the children interacted extremely well with their mother.
It is these kinds of observations that the Court does not have the benefit of – in relation to the father interacting with the children. I do note that the mother, despite the difficulties in her own relationship with the father, strongly supports the relationship between the children and the father. I note at paragraph 4.16 of the Family Report that the mother told Ms J that she (the mother) believes that:
"4.16 …[Mr Moon] loves the children dearly and generally was good with them however he would sometimes lack patience with them, particularly if he felt they were ‘whining’".
The mother also specifically denied that the father had ever been violent towards her or the children. There was apparently one occasion where he threw a coffee cup at the wall but – I apprehend that was at the time of the final separation.
The Court does not have direct evidence (via the Family Report writer) of the children’s wishes, however the mother reported to Ms J that X speaks about enjoying spending time with his father. X also speaks to the mother about enjoying going to the park and beach together with the father.
My impression from the evidence (including the evidence of the mother, the father and the father’s neighbours) is that all three children enjoy spending time with the father.
Section 60CC(3)(b)
I have already made comment in relation to the evidence relating to the nature of the relationship between the children and the mother. The mother is their primary attachment figure and they interact very well with her.
In relation to the father, from the evidence that is available (the mother's reports, the father's own evidence and the evidence of Ms M and Ms P) – the children enjoy spending time with their father. I infer from the available evidence (including what the mother told the Family Report writer) that the father loves the children dearly and I have no reason to doubt that this love is reciprocated. What I don't have is independent expert evidence in relation to the relationship between the children and the father. Adult conversations and manipulative comments by the father towards the children are not helpful and could cause harm to the children. I note at paragraph 4.18 of the Family Report that the mother reported that whilst the family were living in Suburb K the father had apparently said goodbye to the children and told them he was not going to see them again. The children became very distressed and the mother at that stage rang Lifeline because she was so concerned about him. It is not altogether clear on what date this occurred. But those kinds of comments by a parent to young children are problematic (to say the least) and could cause emotional harm to children. This is another reason why there will need to be an order requiring the father to obtain counselling from a psychologist as outlined.
Section 60CC(3)(c)
Both parents have taken every opportunity that they can to participate in making decisions about the major long-term issues relating to the children. Both parents have also taken every opportunity that they can to spend time with and communicate with the children.
Section 60CC(3)(ca)
Both parents have fulfilled their obligations to maintain the children. This certainly was the case when the parents were together. I do note, however, that since separation it seems to be the case that the father has paid very little by way of child support to maintain the children.
Sections 60CC(3)(d) & (e)
Section 60CC(3)(d) is not relevant.
Further, there are no particular practical difficulties or expenses for the children in relation to spending time with each parent.
Section 60CC(3)(f)
The mother certainly has the capacity to provide for all the needs of the children including their emotional and intellectual needs. I suspect that the father also has the capacity to provide for those needs for these children – but my view in that regard remains somewhat inconclusive – particularly in relation to the father providing for the emotional needs of the children. I am quite certain that if the father stops holding adult conversations with the children – then he will be fulfilling his obligations in relation to the provision of emotional support for the children.
Section 60CC(3)(g) & (h)
There are no particular issues relevant in relation to s 60CC(3)(g) or (h).
Section 60CC(3)(i)
I have already touched on certain aspects relating to s 60CC(3)(i). This subparagraph of s 60CC(3) relates to the attitude of the parents towards the children and relates to the attitude of the parents to the responsibilities of parenthood. Both parents have displayed a positive attitude towards the children. Both parents have (for the most part) displayed a positive attitude to the responsibilities of parenthood. The father does need to address the issue in relation to child support. The father also needs to address the issue in relation to the content of his conversations with the children.
Section 60CC(3)(j) & (k)
I note that the Court has already made findings in relation to family violence. It is therefore not necessary to consider the matter further.
Section 60CC(3)(l)
I have also made some comments in relation to s 60CC(3)(l).
Section 60CC(3)(m)
I have already noted that, having regard to the information provided to her, Ms J (in her written report) came to the conclusion that the children live primarily with the mother and spend alternate weekends with the father from 4.00pm Friday until 5.00pm Sunday. There was no recommendation from the Family Report writer in relation to any additional holiday time. The task of the Family Report writer was made more difficult by the fact that the father failed to attend for the interviews. The father had every opportunity to attend for interview with Ms J. The father chose not to do so. The father’s failure to attend upon a psychiatrist and the father’s failure to attend at the Family Report interviews, combined with the findings made in these reasons for judgment, lead me to conclude that it would not be in the best interests of these children for there to be any additional time between the children and the father during holiday periods. The children’s time with the father during school term and during holiday time will be restricted to each alternate weekend from 4.00pm Friday until 5.00pm Sunday.
I also accept the opinion of Ms J that, in relation to the children's schooling, there is no need to end the home-schooling. Ms J stated that, when she saw the family, the needs of the children in relation to academic and social interactions were being met in the home-schooling context.
The mother gave some reasonably detailed evidence in relation to the activities connected with the home-schooling. I have confidence that the mother has been and will continue to adequately cater for the children in respect of home-schooling.
The father would prefer if the children attended R School. The father has some reasonably good arguments to put forward in relation to that issue. The ICL supports an order that the children attend a mainstream school. The ICL's proposal appears to be geared more towards bringing about a changeover scenario whereby the parents can use the school as a changeover point – and therefore not have to come into contact with each other. I do note that the mother has felt uncomfortable at changeovers with, apparently, the father not departing the scene – and remaining to observe the mother with the children. I did not get the impression that the mother was unduly concerned about those aspects. Changeovers occur at a public place at Suburb D. The mother does not want the children to attend a mainstream school – certainly not at this point in time. Utilisation of a changeover point (namely the school) is not, in my view, a good enough reason to end the home-schooling. The children have been home-schooled since they started their education. When the parents were together it was their joint wish that the children be home-schooled. I have every confidence that the mother will transfer the schooling of the children to a mainstream school – in the event that she considers that it is in their best interests from an educational and social perspective. The Court has confidence that the mother in this case is well able to make those kinds of decisions.
SECTION 61DA
The presumption of equal shared personal responsibility has been rebutted. It has been rebutted on several grounds. The presumption is rebutted because of the family violence to which I have referred. In this regard, I note s 61DA(2)(b). The Court has already made findings in relation to the kinds of family violence perpetrated by the father.
Further, the presumption is rebutted because it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s 61DA(4)). I also note that s 65DAC(3) applies if two or more persons are to share parental responsibility in relation to a child. If an order is made for the sharing of parental responsibility – each person is required to consult the other person in relation to the decision to be made and those two people are required to make a genuine effort to come to a joint decision about that issue. Both parents have given evidence that the communication between them is poor. The findings made by the Court confirm that the father has, over a long period of time, controlled or attempted to control the mother in relation to any number of issues connected with daily life. It is highly unlikely that an order for equal shared parental responsibility would work.
The mother has given evidence that once the father takes a particular view – he will not change his mind. This is the essence of some of the evidence given by the mother. I accept the mother’s evidence in that regard. The impression that I have formed in relation to the father is that he is obdurate. I have come to this conclusion based upon not only the evidence in this case but also the manner in which the father has conducted the proceedings on his own behalf. Given that kind of personality – an order for equal shared parental responsibility is highly unlikely to be workable.
Further, in relation to this issue, the view formed by the Family Report writer, on the information available to her, and for the reasons which she included in her Report, is that the mother should have sole parental responsibility. At the end of the day, of course, it is a matter for the Court having regard to all of the evidence. Given that the children will be living primarily with the mother (for the reasons stated) and noting the history of family violence, in particular the findings concerning coercive control, the conclusion of the Court is that the mother must have sole parental responsibility. I agree with the conclusion of the Family Report writer. The relationship between these parents is at a point where communication is, to all intents and purposes, impossible. Hopefully, the parents will be able to resurrect this to some extent by use of the OurFamilyWizard parenting app. The completion by the father[17] of a parenting course, and the psychological counselling sessions for the father – will hopefully assist the parents in relation to communication. Notwithstanding these matters – the view that I have formed is that the mother (for the reasons stated) must have sole parental responsibility in respect of the children.
[17] And the mother.
SECTION 65DAA
The Court does not propose making an order for equal shared parental responsibility. It is, therefore, not necessary for the Court to consider orders for equal time or substantial and significant time. In any event, I note that orders for equal time or substantial and significant time would not be in the best interests of these children – based on the available evidence. Because of the findings concerning the father's conduct (including the family violence outlined and including the adult conversations that the father is having with the children) it is necessary, to ameliorate the risk of harm to the children, to restrict the father’s time with the children – to alternate weekends from Friday afternoon until Sunday afternoon. These aspects of the decision have already been explained earlier in these reasons for judgment. In the circumstances of this case, restricting the father’s time with the children plays an important part in ameliorating the risk of harm to the children.[18]
[18] The risk of harm being those risks outlined earlier in these reasons for judgment.
Ms J’s evidence did confirm that some counselling and even the attendance by the father at a parenting course would be beneficial. In this regard, I note the transcript of Wednesday, 7 December 2022 p. 304 lines 12-14.
It will be apparent from these reasons that, in this case, to a large extent, the father’s conduct in failing to attend for the Family Report interview and the father's conduct in failing to attend upon a psychiatrist has led to a situation whereby his time with the children will have to remain limited. This is in the best interests of the children. The limiting of the time is a mechanism by which the risk of harm outlined can be adequately reduced or ameliorated. In addition to the limiting of time, a further way to reduce and to ameliorate the risk of harm – will be the making of orders by this Court requiring that the father attend and complete a parenting course and, in addition, an order requiring the father to attend upon a psychologist for counselling as outlined earlier in these reasons for judgment.
There will need to be in place non-denigration clauses and orders in relation to neither parent holding adult discussions with the children.
I would ask that the ICL prepare orders to reflect the reasons for judgment. The parents will also be given an opportunity to send to the Court an order which they say reflects the reasons for judgment.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated:24 May 2023
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