Myer & Givan
[2022] FedCFamC1F 573
•12 August 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Myer & Givan [2022] FedCFamC1F 573
File number(s): MLC 9890 of 2015 Judgment of: MCNAB J Date of judgment: 12 August 2022 Catchwords: FAMILY LAW – PARENTING – Family Violence – Whether supervised time should be ordered where the children expressed wishes not to see their father – where evidence – where the children expressed a strong view to not see the father – where orders for supervised time have been made in the past and have not worked – where there is a finding that the father has subjected the mother to significant family violence during the course of the relation and the mother continues to suffer the effects of that –assessment of risk and finding of unacceptable risk to the children Legislation: Family Law Act 1975 (Cth) s 60B, 61DA, 65DAA, 60CA, 60CC, 4, 4AB
The Evidence Act 2008 (Vic) s 140
Cases cited: A v A (1998) FLC 92-800
B & B (1993) FLC 92-357
Bant & Clayton (2019) FamCAFC 198
Blinko & Blinko [2015] FamCAFC 146
Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5
Isles & Nelissen [2022] FedCFamC1A 97
Johnson & Page (2007) FLC 93-344
Keane & Keane (2021) FamCAFC 1
M v M (1988) 166 CLR 69
McCall & Clark (2009) FLC 93-405
Russell & Close [1993] FamCA 62
Stott & Holgar [2017] FamCAFC 152
Division: Division 1 First Instance Number of paragraphs: 195 Date of hearing: 4-8 July 2022 Place: Melbourne Counsel for the Applicant: Ms McCreadie Counsel for the Respondent: Mr Williams Counsel for the Independent Children’s Lawyer Dr O’Brien ORDERS
MLC 9890 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MYER
Applicant
AND: MR GIVAN
Respondent
MACGREGOR SOLICITORS
Independent Children’s Lawyer
order made by:
MCNAB J
DATE OF ORDER:
12 AuGUST 2022
THE COURT ORDERS THAT:
1.All previous Orders be discharged.
2.The mother have sole parental responsibility for the children, X born in 2010 and Y born in 2012 (“the children”).
3.That the children live with the mother.
4.The father communicate with the children via gifts and letters to be sent to a specified PO Box, with the mother to notify the father in writing of any changes to this address.
5.The mother shall encourage the children to respond to the father by way of cards and letters to the father’s home address, or any other address provided by the father.
6.In the event the children request to spend time with the father then the mother to do all things to facilitate this, and unless otherwise agreed in writing such time to be supervised either at a supervised contact centre or by a private supervisor with the cost of such supervision to be paid by the father.
7.For the purposes of the supervised time:
(a)The mother to nominate a professional supervisor or supervised contact centre to supervise visits with the father to bear the cost of same;
(b)The paternal grandparents and the paternal aunt and uncle be at liberty to attend such contact;
(c)The father be and is hereby restrained from taking the children to F Street, Suburb G;
(d)In the event that such contact does not occur at a contact centre, then to occur at a venue as agreed between the supervisor and the mother;
(e)Drop off and pick-up be as agreed between the supervisor and the mother;
(f)The supervisor be required to sign an undertaking to the court as set out in Annexure “A” hereto; and
(g)The mother be at liberty to provide the supervisor with a copy of the following documents:
(i)This Order;
(ii)Ms E’s Family Report;
(iii)Ms O's Family Report;
(iv)Any report of the parents’ treaters filed in these proceedings; and
(h)The mother be at liberty to request that the supervisor(s) prepare written reports (with the request limited to no more than two times per year), with the father to pay the cost of those reports.
8.The mother cause copies of the children's school reports and application forms for photographs to be provided to the father by sending to the father's home address.
9.For the purpose of Order 8, the father to advise the mother of any change of his residential address via the above PO Box.
10.The mother do all things necessary to cause Y to attend a paediatric psychiatrist for assessment and comply with all recommendations of such assessment.
11.The mother shall provide an authority to the children's' medical and allied health treaters to allow them to, at their sole discretion and recommendation, communicate or not communicate with the father and include or not include him in any therapy and/or treatment for the children they consider appropriate and in the best interests of the children.
12.The mother be at liberty to provide a copy of these Orders to the Children's medical and allied health treaters.
13.Any consultation pursuant to Order 11 be at the Father’s sole expense.
14.The father shall at all times ensure any consultation in accordance with Order 11 above shall not occur at any day or time at which the children or either of them or the mother is attending
15.The mother shall as soon as reasonably practicable advise the father, in writing to the father's residential address, of any significant medical illness or injury affecting either of the children, whereby a significant medical illness or injury is defined as one whereby the children or either of them have been diagnosed with a permanent medical condition or have received a permanent injury.
16.Except as otherwise provided for in these Orders, the father be and is hereby restrained by injunction directly or indirectly, where through a third party or otherwise from (save for as set out in these Orders):
(a)Contacting or communicating with the mother and/or the children;
(b)Approaching or remaining within two hundred (200) metres of the mother and/or the children;
(c)Going to or remaining within two hundred (200) metres of any other place where the mother and/or the children lives, works or attends school/childcare; and
(d)Publishing on the internet, by email or other electronic communication any material about the mother and/or the children.
17.The mother be at liberty to provide her psychologist and the children’s psychologist(s), medical and/or allied health professional with a copy of Ms E’s Family Report; Ms O’s Family Report; any report of the parents’ treaters filed in these proceedings; Reasons for Judgment delivered 15 October 2018; and these Reasons dated 12 August 2022.
18.The appointment of Independent Children’s Lawyer be discharged.
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 Myer & Givan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCNAB J:
Introduction
Ms Myer (“the mother”) and Mr Givan (“the father”) commenced cohabitation in February of 2010 shortly after they met and thereafter the mother became pregnant within a short period. There are two children of the relationship, X (“X”) born in 2010, currently age 11, and Y (“Y”) born in 2012, currently age 10. They separated on 10 November 2014 after a relationship of approximately 4 years. The parties separated on a final basis on 25 December 2014 after an incident of significant family violence directed towards the mother by the father, which was witnessed by the children.
Final Orders were made on 15 October 2018 with the consent of the parties. Those orders provided for a regime of supervised time between the children and the father. That supervised time ceased in December 2020 when the children refused to spend time with the father. The orders also provided a mechanism by which the father could apply for leave to return to court to seek to vary the final orders. That application was made a made on 28 September 2020 and leave was granted on 10 November 2020.
The parties each seek parenting orders, the terms of which are set out below. The mother was represented by Ms McCreadie of Counsel, and the father was represented by Mr Williams of Counsel. The Independent Children’s Lawyer (“ICL”) was represented by Dr O’Brien of Counsel.
The trial in this matter ran for 5 days, from 4 July to 8 July 2022.
Matters to be Determined
The parties identified the following issues (as have been refined over the course of the hearing):
(1)Spend time arrangements between the children and the father including whether that time is supervised; and
(2)The views of the children in relation to the father; the ability or willingness of the mother to promote a relationship between the children and the father and; the most appropriate method in assisting the children.
The Parties
The parties to these proceedings are the parents of two young children.
The applicant in the proceedings is the children’s father, Mr Givan.
Mr Givan was born in 1979 and is, at the date of hearing 43 years of age.
Mr Givan has re-partnered and lives with his partner, Ms P. Ms P has adult children of a previous relationship.
The respondent to the proceedings is the mother of the subject children, Ms Myer.
Ms Myer was born in 1974 and is 48 years of age.
Ms Myer has not re-partnered. The children currently reside with her, and she is their primary carer.
The Children
The children are currently living with the mother, and have been since 2015. Their address is not to be disclosed due to issues involving family violence.
The children have not seen the father since December 2020, due to their alleged refusal to attend supervised spend time arranged with their father.
Chronology
The ICL provided the following undisputed chronology:
Event Date […]1975 Mother is born […] 1998 Father is born [Late] 1998 Father charged with refusing or failing to state name and address, resisting police, escaping from lawful custody and unlawful assault. Received Community Based Order for 12 months without conviction and ordered to undertake assessment and reoffenders program. [Late] 2003 Father charged with refusing to state name and address, resisting arrest, escaping from unlawful custody and unlawful assault. [Early] 2004 Father charged with intentionally causing injury and recklessly causing injury. Convicted of recklessly causing injury and criminal damage [Mid] 2005 Father charged and convicted of recklessly causing serious injury and criminal damage. [Late] 2005 Father charged and convicted of recklessly causing serious injury and criminal damage resulting in 5 days’ imprisonment. [Early] 2006 Family violence incident occurred between the Father and his then partner, [Ms Q]. Intervention Order (IVO) obtained against the Father for the protection of his previous partner. [Late] 2006 Father charged with discharging a stone to cause injury/danger and wilfully damaging property. [Late] 2009 Police called to family violence incident between the Father and his former partner, [Ms R]. Intervention Order (IVO) obtained against the Father for the protection of his previous partner. 2009 Parents meet and commence relationship [Early] 2010 Parties commence cohabitation. […] 2010 The first child, [X], is born […] 2012 The second child, [Y], is born. 8 November 2014 The parties separate [Late] 2014 Victoria Police obtain an Interim Intervention Order against the father naming the mother and children as protected persons. November – December 2014 There are informal arrangements for the father to spend time with the children [Late] 2014 There is an incident of family violence involving the strangulation of the mother, resulting in the police being called [Mid] 2015 The father pleads guilty to charges of recklessly causing injury and two counts of contravening a family violence order. April 2015 – June 2015 The children spend time with their father on approximately 8 occasions, supervised by the paternal grandparents. June 2015 – May 2016 The children and the father do not spend any time nor have any communication. October 2015 Mother commenced parenting proceedings in the Federal Circuit Court 31 March 2016 Initial Family Report by [Ms J] released suggesting six months supervised time before moving to unsupervised time 5 April 2016 Orders made for the father to spend supervised time consistent with [Ms J’s] report [Early] 2016 Mother moves from previous home with the assistance of [Organisation S] after her address was mistakenly provided to the father May 2016 – April 2017 The children spend supervised time with their father at [B Contact Centre] each alternate weekend for a period of 2 hours until there was an alleged incident which caused the centre to suspend time. 26 April 2017 Consent orders made suspending father’s time with the children pending an early trial 25 July 2017 Father filed an Application in a Case seeking to spend time with the children, with supervision of his mother 31 October 2017 Orders made formally suspending the father’s time with the children November 2017 The children engage in therapeutic counselling [Early] 2018 Contested Hearing for extension of Intervention Order. Final Order made extending the Intervention Order for 5 years until 22 March 2023. August 2018 A second Family Report of [Ms E] is released 15 October 2018 Final Orders made by Consent in the Family Court of Australia for the mother to have the sole parental responsibility and for the children to spend limited supervised time with their father. 28 September 2020 Father files an Application in a Proceeding pursuant to order 11 of the Final Orders aforementioned. 10 November 2020 The father is granted leave to reopen proceedings. December 2020 – Current No time has taken place between the children and their father, as the children are refusing contact. [Early] 2023 The current IVO is set to expire unless further extended Orders Sought by the Father
The current proceedings were commenced by the father on 28 September 2020. The relevant spend time orders sought were:
1.That all previous parenting orders be discharged.
2.That the children [X] born […] 2010 and [Y] born […] 2012 live with the mother and the mother retain sole parental responsibility for the children.
3.That the children spend time and communicate with the father as follows:
a.Each alternate Sunday from 10.00am until 2.00pm for a period of 6 Saturdays and thereafter:
b.Each alternate Saturday and Sunday from 10.00am until 2.00pm each day for a period of 6 weekends and thereafter:
c.Each alternate weekend from 10.00pm Saturday until 4.00pm Sunday for a period for a period of 6 months and thereafter:
d.Each alternate weekend from after school Friday until 5.00pm Sunday.
e.Each father’s day from 9.00am until 5.00pm.
4.The father be at liberty to amend his application upon receipt of any child welfare reports including the Report from [Ms C].
The Final Orders sought by the father are contained in his Minute of Orders, which were tendered to the court in the course of the hearing.[1] This is not a criticism of the father, rather it reflects changes in circumstances. Parental responsibility was an issue throughout the proceeding, however on the final day of hearing, the father, by his counsel, informed the court that he agreed that an order for sole parental responsibility in favour of the mother was appropriate and the terms of the final minute sought by the father (with the change regarding parental responsibility), are as follows:
[1] Exhibit A-3
1.The mother have sole parental responsibility for the children [X] born […] 2010 and [Y] born […] 2012 (“the Children”).
2.The children live with the mother.
3.The parties do all acts and things and sign all necessary documentation to forthwith engage [Ms W] or in default an alternative therapist as nominated by the ICL to conduct Family Therapeutic Counselling.
4.The parties to comply with all directions of the nominated Therapeutic Counsellor, in respect to the format and frequency, including making the children available when requested, and the cost of such counselling to be at the parties’ equal expense.
5.The Therapeutic Counselling be non-reportable.
6.Contemporaneously with the commencement of the therapeutic counselling the father spend time and communicate with the children as follows:
a.Each alternate Saturday from 10 am until 4 pm, for the first four (4) occasions, then;
b.each alternate weekend the father’s time be extended to 9 am until 6 pm for a period of four (4) months, then;
c.each alternate weekend from the conclusion of school on Friday until Midday on Sunday for a period of four (4) months, then
d.each alternate weekend from the conclusion of school until the commencement of school.
e.Every Wednesday between 6.30pm and 7.00 pm for the purpose of a telephone/Facetime call and the mother to facilitate the telephone call to the father’s mobile number.
Christmas
f.Commencing 2022 and every alternate year thereafter from 2 pm Christmas day until 2 pm on Boxing Day, then
g.commencing 2023 and every alternate year from 2 pm Christmas Eve until 2 pm on Christmas Day.
Children’s Birthdays
h.For the children’s birthday the parent whom the child is not in the care of will spend time with the children as follows;
i.if a non-school day from 2 pm until 7.30 pm and both children to attend.
ii.if a school day from after school until 7.30 pm and both children to attend.
School Holidays
i.From the commencement of the first term school holidays in 2023;
i.for half the midterm school holidays as by agreement or failing agreement with the father from the conclusion of the school week, then;
j.in 2023/2024 for half the long summer holidays with the father in the first half in each alternate year thereafter, then
k.in 2024/2025 for half the long summer holidays with the father in the second half in each alternate year thereafter.
Mother’s Day/Father’s Day
l.If the children are not already in the care of the celebrating parent, then from the conclusion of school until the commencement of school.
Changeover
7.Changeover to occur at the children’s school or in the event of a non-school day then changeover will occur at [Handover Location Z]. The parties or their nominee, ensuring that the nominee is a person known to the children, will conduct the changeover when the children are not at school.
Liberty to Father
8.The father is at liberty to provide a copy of these orders to any of the children’s school/s to ensure the father has access to all school related information normally provided to a parent, including access to any online school portal/s.
9.The parties, at their own expense are able to receive information from the children’s schools and after school activities, which are normally provided to a parent and be at liberty to attend events such as parent/teacher interviews, school concerts and the like that parents are usually invited to or otherwise encouraged to attend.
10.Each parent give consent for all doctors or hospitals to speak with the other parent and all information be communicated to the other parent in the case of any illness or injury to the child.
Communication
11.The parties communicate by way “Appsclose” to be confined to issues directly relating to the child or children and arising out of these orders only.
12.Each party will notify the other forthwith by SMS of any serious medical illness or injury concerning the children and provide details of the medical practitioners involved.
Non-Denigration
13.Without admission of the necessity to do so the parties, their servants and agents be and are hereby restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other parents and from discussing these proceedings to or in the presence or hearing of the child or otherwise permitting any other person to do so.
Dispute Resolution
14.If a dispute arises from these orders the parties will first attempt to resolve the dispute through the nominated Family Therapist before issuing any further proceedings in the Family Court.
The father stated at the conclusion of the trial that if the court was not minded to make orders in the terms sought by him, then the court ought to order:
1.For the father to have supervised time with the children, to occur at least once a month with the amount of time progressing, or failing that;
2.To revert to the orders made in October 2018 which provide for 6 supervised visits per year.
Orders Sought by the Mother
The Amended Response filed by the mother on 31 May 2022 sought orders in the following terms:
1.That all previous Orders be discharged.
2.That the mother have sole parental responsibility for the children, [X] born […] 2010 and [Y] born […] 2012 (“the children”)
3.That the children live with the mother
4.That the father communicate with the children via gifts and letters to be sent to [a specified PO Box], with the mother to notify the father in writing of any changes to this address.
5.That the children spend time with the father at times as requested by the children.
6.That, in the event the children request to spend time with the father then the mother to do all things to facilitate this with such time to be supervised either at a supervised contact centre or by a private supervisor with the cost of such supervision to be paid by the father.
7.That for the purposes of the supervised time:
a.the father be and is hereby restrained from allowing any other person, save for the father's mother and/or father, (including the father’s partner or partner’s children) from being present at any time that he is spending time with him.
b.the father be and is hereby restrained from taking the children to [F Street, Suburb G];
c.such time to occur at a venue as agreed between the supervisor and the mother;
d.drop off and pickup be as agreed between the supervisor and the mother;
e.the supervisor be required to sign an undertaking to the Court as set out in Annexure “A” hereto; and
i.the mother be at liberty to provide the supervisor with a copy of the following documents:
ii.this order;
iii.[Ms E’s] Family Report;
iv.[Ms O’s] Family Report;
v.any report of the parents’ treaters filed in these proceedings; and
vi.Reasons for Judgment delivered 15 October 2018
f.the mother be at liberty to request that the supervisor(s) prepare written reports (with the request limited to no more than two times per year), with the father to pay the cost of those reports.
8.That the mother cause copies of the children's school reports and application forms for photographs to be provided to the father by sending to the father's home address.
9.That for the purpose of Order 8, the father to advise the mother of any change of his residential address via the above PO Box.
10.That the mother do all things necessary to cause [Y] to attend a paediatric psychiatrist for assessment and comply with all recommendations of such assessment.
11.That the mother shall provide an authority to the children's' medical and allied health treaters to allow them to, at their sole discretion and recommendation, communicate or not communicate with the father and include or not include him in any therapy and/or treatment for the children they consider appropriate and in the best interests of the children.
12.That the mother be at liberty to provide a copy of these Orders to the Children's medical and allied health treaters.
13.That any consultation pursuant to paragraph 11 be at the Father’s sole expense.
14.That the father shall at all times ensure any consultation in accordance with paragraph 11 above shall not occur at any day or time at which the children or either of them or the mother is attending
15.That the mother shall as soon as reasonably practicable advise the father, in writing to the father's residential address, of any significant medical illness or injury affecting either of the children, whereby a significant medical illness or injury is defined as one whereby the children or either of them have been diagnosed with a permanent medical condition or have received a permanent injury.
16.That except as otherwise provided for in these Orders, the father be and is hereby restrained by injunction directly or indirectly, where through a third party or otherwise from (save for as set out in these Orders):
a.contacting or communicating with the mother and/or the children;
b.approaching or remaining within two hundred (200) metres of the mother and/or the children;
c.going to or remaining within two hundred (200) metres of any other place where the mother and/or the children lives, works or attends school/childcare; and
d.publishing on the internet, by email or other electronic communication any material about the mother and/or the children.
17.That the mother be at liberty to provide her psychologist and the children’s psychologist(s), medical and/or allied health professional with a copy of [Ms E’s] Family Report; [Ms O’s] Family Report; any report of the parents’ treaters filed in these proceedings; and Reasons for Judgment delivered 15 October 2018.
18.That the mother's costs of and associated with these proceedings be paid by the Father.
On the final day of the hearing, the mother, by her counsel, indicated to the court that if the court was not minded to make the orders sought in paragraph [2] of her proposed orders, she sought orders in the alternative:
1.Four supervised visits with the father each year, to occur at [B Contact Centre], with each visit to occur on the first Monday of the term 1, 2 and 3 school holidays, and the final visit to occur on the last Monday of the term 4 holiday period (or if school starts on Tuesday, then the Monday prior).
2.For the father to be at liberty to send cards, gifts and letters to the children through a PO box the mother will maintain.
3.The mother will inform the father of any medical emergencies involving the children via her sister texting the father.
The ICL proposed orders in line with those sought by the mother.
Brief Procedural History
This matter first came before the court in 2015 following an Application for Final Orders filed by the mother.
Final Orders made on 15 October 2018 with the consent of the parties by Justice Baumann provided in relation to spend time arrangements, parental responsibility; and the father’s attendance on a psychologist, in the terms:
(1)That the mother have sole parental responsibility for the children, [X] born […] 2010 and [Y] born […] 2012 (“the children”).
(2)That the children live with the mother.
(3)That subject to Orders 5 and 6 hereof, the children spend time supervised time with the father as follows:
a.Six (6) times per year, the first Sunday of every February, May, July, October, December and on Father’s Day (save for the first four (4) visits which are to be on a Saturday);
b.That the first four (4) visits be supervised by the [B Contact Centre], and thereafter that they be supervised by [Ms C] (professional supervisor) and in the event [Ms C] is unavailable her nominee subject to Order 6 herein (collectively “the supervisors'”, with the father to pay the full cost of the supervision (including any reports); and
c.That the first four (4) visits be for a duration of two (2) hours, with the next four (4) visits to be for a duration of four (4) hours, and thereafter the visits be for a duration of six (6) hours.
(4)That the mother be at liberty to request that the supervisors prepare written reports (with the request limited to no more than two times per year), with the father to pay the cost of those reports.
(5)That the father be required to continue to attend upon [Mr D] or such other qualified clinical or forensic psychologist:
a.and provide the mother with a report from his treating psychologist in relation to his treatment and his mental health status, within twenty one (21) days of receiving a request for the production of a report from the mother (with the request to be limited to no more than two (2) times per year); and
b.to notify the mother (via written notice provided to the supervisors) within seven (7) days of any changes to his psychologist; and
c.The mother be at liberty to provide the father’s treating psychologist with a copy of [Ms E’s] Family Report; reports of the parents and/or the children’s treaters filed in these proceedings and the Reasons for Judgment delivered 15 October 2018.
The orders also provide for the father to seek leave to vary the orders as follows:
That save for an application to enforce these Orders the father must seek leave to make an application to the Court to vary these Orders prior to the expiration of the existing Intervention Order in the Magistrates Court naming the father as the Respondent and the mother and the children as the protected persons.
Justice Baumann gave reasons when the orders were pronounced. Those reasons were transcribed and annexed as an exhibit to the mother’s affidavit. The reasons succinctly set out the background of the matter and made reference to the relevant evidence up to that point. His Honour noted at [7] - [9]:
(7)In making these orders I also take into account the evidence of the mother’s
therapist, [Dr K]. On the face of the evidence of [Dr K], the Court may
have had some concerns about the mother’s capacity to support the Orders
which she now asks the Court to make. That is because [Dr K] in her report
makes it clear that having accepted a diagnosis of the mother of PTSD and
anxiety, that the mother’s parenting of these two little boys might be
compromised if she was required to have contact with, or in fact support, the
children maintaining some form of relationship with their father. In those
circumstances, though it is appropriate to give credit to the mother who
notwithstanding that psychological profile that she has found in her heart and in
her mind the capacity to support the children having an ongoing opportunity to
maintain a relationship with their biological father. It is to be hoped that, the
very structured way in which time will occur over the next four years will
provide sufficient opportunity for these growing boys to develop their
relationship with their father, although it is limited time, but also for the mother
to feel some confidence that the children may be able to move into some other
form of time with the father, in the future, which will be in their best interests
and safe.
(8)That there is a prospect that that will occur, for the boys perspective, is in my
view at least available when one sees the way that they presented when seeing
the father at the two Family Report interview opportunities - one with
[Ms J] in 2016 and one more recently with [Ms E] in August 2018.
Also what seemed to be initially at least some positives from the visits outlined
in a report of [Ms L]. In making that less than totally confident prediction
that we can reunite the father and the boys I am conscious that they have had
now no time for it seems over 18 months and that the most recent assessment
by [Ms H] is that the children’s fear of their father has not diminished with
the lack of time. Some of the aspects of their relationship with their father will
require much time and effort to be made to repair.
(9)The Orders that I am asked to make are quite restricted in respect of the amount
of time the father will have with the Children over the next almost five years.
In my view they are appropriate in the best interests of these children at this
stage. However, even these limited prescribed orders would be doomed to fail
if the mother, who is a good and capable mother and attuned to her young
children’s emotions, is not able to genuinely support the children exploring this
relationship with their father. The children draw their strength and their
identity at this stage from their mother and although the father at least gives the
impression in some of his material and perhaps his past words that he believes
the mother has in some way alienated the children from him, I do not make any
such finding.
The supervised time proceeded according to the orders from October 2018 until December 2020, when the children refused to see the father. Further details are provided as to this below.
The father sought leave to re-open the proceedings on 28 September 2020 in an Initiating Application. That leave was granted by orders made on 10 November 2020.
Material Relied On
In these proceedings, the father relied upon the following documents:
(1)Trial Affidavit of Applicant father filed 28 April 2022.
(2)Response Trial Affidavit of father filed 07 June 2022.
(3)Affidavit of Dr U (Forensic Psychiatrist) filed 02 December 2021.
(4)Affidavit of Mr V (Psychologist) filed 28 September and 28 April 2022.
(5)Affidavit of Ms P (Partner) filed 28 April 2022.
(6)Affidavit of Ms C filed on 26 May 2022 (with redacted exhibits).
The mother relied on the following documents:
(1)Amended Response to Final Orders filed on 30 May 2022.
(2)Trial Affidavit of the mother filed 25 May 2022.
(3)Affidavit of Ms AB filed on 20 May 2022.
(4)Affidavit of Dr K filed on 20 May 2022.
(5)Affidavit of Mr AC filed on 20 May 2022.
(6)Family Report prepared by Ms O dated 15 November 2021.
(7)Affidavit of Ms AB filed on 27 August 2021.
(8)Affidavit of Dr K filed on 20 August 2021.
The mother’s trial affidavit included in exhibits reports on the children from the following treating practitioners:
(1)Report from Organisation AD from July 2018.
(2)Report from Ms AE of AF Psychologists dated 11 April 2020.
The Independent Children’s Lawyer relied on the following documents:
(1)Family Report of Ms E filed 10 September 2018.
(2)Family Report of Ms O filed 15 November 2021.
(3)Affidavit of Ms C filed 26 May 2022 (with exhibits as redacted).
Father’s Trial Affidavit Evidence
The father relied on his trial affidavit, filed 28 April 2022, and his affidavit in response, filed 7 June 2022. If I have not referred to particular evidence before the court of the mother or father, that is not an indication that I have not read or had regard to that evidence.
In his trial affidavit, the father gave a brief overview of the proceedings prior to the making of Final Orders on 15 May 2018 and the events leading to the current proceedings.
The father details the supervised spend time orders, and his consequent experience under these orders. He gives evidence of the attempts to arrange visits with the contact centres, and where visits were not possible, he sets out his explanation for why. This was generally due to the contact centre not having capacity, or the mother allegedly not making the children available.
As per the father’s affidavit, spend time (attempted or successful) occurred as follows:
[B Contact Centre] Date Did spend time occur Reason 1 December 2018 No No availability at the contact centre 2 February 2019 No The children were not made available 12 April 2019 Yes This is the first 2 hour visit with the children 4 May 2019 No The children were not made available 8 July 2019 Yes Father’s day (1 September 2019) No No availability at the contact centre 23 September 2019 Yes 27 December 2019 Yes [Program AG] with [Ms C] 16 February 2020 Yes 17 May 2020 Yes Visit was ‘cut short’ by the mother arranging prior plans 5 July 2020 Yes Visit was ‘cut short’ by the mother arranging prior plans Father’s day (6 September 2020) No The children refused to come 4 October 2020 Yes Session ended early because the child was ill 6 December 2020 Yes 7 February 2021 No No reason given 2 May 2021 No No reason given 4 July 2021 No No reason given Father’s day (5 September 2021) No No reason given 9 October 2021 No No reason given 5 December 2021 No No reason given 6 February 2022 No No reason given
The father sets out his response to the mother’s medical evidence regarding the children, which is detailed in the mother’s affidavit evidence.[2] The father surveys the number of professionals seen, and the number of sessions with professionals the children have attended. He gives evidence that he has never met nor spoken to any of these professionals. He gives evidence that he believes the children are seeing too many specialists, and does not accept some of the children’s diagnoses. The father responds to the mother’s contention that Y was self-harming as a result of distress following the children’s visit with the father on 6 December 2020 by providing, through his affidavit, correspondence between himself and the school detailing that there was no record of this incident in line with the school’s mandatory reporting requirements. The father argues that this refutes the mother’s claims of self-harming.[3]
[2] Father’s affidavit in response filed 7 June 2022 at paragraphs [14] – [21].
[3] Father’s affidavit in response filed 7 June 2022 at paragraph [11].
The father details that on 5 July 2021, through his solicitor, he proposed to the mother’s solicitors and the ICL that Ms W be appointed to carry out a Family Reunification program. He provides the mother’s response through her solicitors, naming three possible supervisors to take over from Ms C, and their comments that Ms W’s program is not appropriate for the parties.
The father then goes on to detail issues with the mother’s compliance with the Final Orders. These include issues obtaining school reports and photos, and the mother’s claim that she does not know the father’s address.
The father expressed the view that the mother “has engaged in a course of conduct to align the boys in her views of me without regard for the boy’s wellbeing thus, they are forming a one-dimensional view of me”.[4]
[4] The father’s trial affidavit at paragraph [195].
The father provides evidence that his child support payments are up to date, in response to the mother’s claims that the payments are $1,207.42 in arrears.
A notable feature of the father’s affidavit evidence is that he does not, by his affidavit in reply, respond to the very detailed account of family violence given by the mother through her trial affidavit. That account is not limited to incidents in November and December 2014 but refers to serious ongoing family violence throughout the relationship.
Mother’s Affidavit Evidence
The mother’s trial affidavit is lengthy (comprising 360 paragraphs over 73 pages) and contains 59 exhibits running to 327 pages. This account of the mother’s evidence does not purport to set out all of the evidence given by her. Rather, it seeks to distil the relevant evidence directed to the final orders sought.
In her affidavit filed 25 May 2022, the mother gives a brief background of the proceedings, and a summary of why the orders sought by her are appropriate. These reasons include:
(1)Repeat instances of extreme family violence throughout her relationship with the father;
(2)The father’s longstanding criminal history, including violence;
(3)A number of incidents occurring at contact centres which she saysthe children are at unnecessary risk;
(4)The long-term impact on the children of witnessing the violence;
(5)Seeing the father brings up memories of the father which causes the children great distress;
(6)The emotional difficulty the children have experienced in the past prior to and following their supervised visits with their father;
(7)The children openly expressing repeatedly that they do not wish to see their father;
(8)Her diagnosis of PTSD and Anxiety as a consequence of the family violence, and her increased anxiety around the children seeing the father; and
(9)The impact the children’s continued relationship with the father has on her ability to recover.
The mother makes it clear in her affidavit that in the event that the court grants the father time with the children, she believes this time needs to be supervised by a professional supervision service.
Family Violence
The mother deposes at length the details of family violence she has experienced. She includes references to repeated threats made by the father, including threats of suicide, and that “[the mother] and the kids will end up at the bottom of [River AH]”, among other things. The father denies making such threats, although the mother says that these threats are a cause of her frequent anxiety.
Certain aspects of her accounts of the family violence were disputed by the father in the course of his oral evidence. As noted above, the father by his affidavit evidence did not respond to dispute the very detailed accounts of the family violence set out in the mother’s trial affidavit.
The wife’s allegations of family violence include:
20 April 2010 Father pushed Mother against the wall while she is pregnant with
first child and was verbally abusive towards her. Father then banged
his head against furniture until he bleeds. Father then taken
multiple sleeping tablets and threatens to kill himself. She says [X] witnessed this.November 2010 Father returned home late in a state of intoxication and attacked one of the mother’s dogs, resulting in [severe injury]. He then strangled her and attempted to sexually assault her. The police were called. April 2011 Mother alleges that during Easter celebrations with the father’s family, the father and his brother had a violent altercation and assaulted one another in the presence of the mother and [X]. January 2012 An incident occurred, the mother cannot remember details, but has records of a text message sent to the paternal grandmother as a result April 2012 When the mother was eight months pregnant with [Y], the father strangled the mother in front of [X]. April 2013 While the mother, father and some family members were at a holiday house with the two children, the father started verbally abusing and acting aggressively towards the mother in front of the family and the children. 6 May 2013 After the birth of [Y], which involved complications that the mother was recovering from, the father raped the mother and threatened to take the children from her. January 2014 The father punched the mother in the face after wrapping his hand in a tea towel. He then pushed her down on the bed. The mother left and stayed with her parents. Late 2014 During the mother’s birthday party, in front of the guests he shook the mother by the shoulders while denigrating her.
A few weeks later, the father verbally abused the mother in front of [Y], and ten took the children and went fishing. The mother was particularly concerned given the threats about drowning the boys detailed below.3 November 2014 The father verbally abused the mother in public whilst going to a supermarket. 8 November 2014 The father took the child [X] and drove with him while intoxicated, verbally abused the mother and caused injury to their neighbour. Victoria Police attend the property and remove the father and an IVO was taken out on behalf of the mother. The parties separate. The mother says [X] witnessed this. 25 December 2014 The mother attended the paternal grandmother’s home for Christmas with the children. The father, under the influence of alcohol, assaulted the mother, in front of the children, including strangling the mother, cutting her face with an unknown object, and waving knives around. He rammed his car into the mother’s car while she and the children are inside and trying to leave. The police were called. 9 May 2015 During a changeover attended by the father, mother and mother’s sister, in breach of the IVO, the father grabbed the mother in a ‘bear hug’ and refused to let her go. This was in front of the children.
The mother describes the family violence as “an ongoing cycle whereby there was a violent incident, and then the father apologised and said he was going to seek help, or did seek help, however this did not improve things”. [5] The allegations as set out above are recounted in a bland and summary fashion, and do not convey the extremely concerning level of family violence and denigration directed towards the mother. For instance, at an event in late 2014, being what was meant to be a celebration of the mother’s birthday at a restaurant with 23 guests, was described by the mother in the following terms:
[Ms AJ] (a work colleague) and I came down the stairs and were met by (the father). I jokingly said to the father words to the effect “I just had a puff of a cigarette and I’m still okay” [I hadn’t had a puff of a cigarette for over 5 years so this was a bit unusual for me]. The father then grabbed me by the shoulders and pushed me against the wall and yelled at me saying words to the effect “you have no regard for me or the children. You are a stupid bitch” He yelled at me for a few minutes. This happened very close to the table where everyone was sitting and they could see it happening. I was crying. The father then went to the table and said to [Ms AJ] words to the effect “you’re a cunt. You are [an ethnic slur]. You don’t deserve to work for [Ms Myer]. He then got into her husband saying words to the effect “you’re a cock sucker”. Security was called and we were asked to leave the restaurant. [Ms AJ] resigned the next day. [6]
[5] Mother’s trial affidavit at [110].
[6] Mother’s trial affidavit at [112] (mm).
The text messages from the employee Ms AJ the following day, which are annexed to the mother’s trial affidavit), corroborate the mother’s account.[7] That incident can be described as mild in the intensity in relation to the family violence described in the litany of examples given by the mother.
[7] Mother’s trial affidavit annexure 15.
She also deposes to a number of threats made by the father, including:
(1)“if [she] ever left [him] and [took] the boys, whether it takes one day, one year, two years, five years or ten years, those children will disappear. They will end up at the bottom of [River AH]”;
(2)The father told her that he had a ‘bikie’ friend and threatened that he would “help him out if he needed it”;
(3)The father told her that his father was a Magistrate and could “get around” the court system. He also described him as having a “shot gun collection”; and
(4)While X was four months old, and the mother, father and X were in a car, the father, when driving through regional Victoria threatened that he could make them all disappear by driving over the side of a cliff. He was driving at the time.
In relation to the IVO, the mother sets out a number of alleged breaches by the father, including extensive posts about the children on social media, which she exhibits in her affidavit.[8]
[8] Mother’s trial affidavit annexure 11 and 12.
Facilitating Time with the Children
The father alleged that the mother has not adequately facilitated time between the children and the father. The mother sets out her attempts to facilitate time with the children and the father. It is undisputed that she initiated discussions about time with the children and the father through her solicitors on 6 March 2015. These negotiations continued until the first visit occurred on 5 April 2015.
When visits were interrupted by issues with availability for changeover, the mother instructed her solicitors to write to the father’s solicitors to facilitate a conference to work out arrangements for the children. This did not occur and she says the father inexplicably stopped attending visits. While the mother attempted to arrange visits via their solicitors, the father texted the mother’s sister directly, which the mother and her sister both found threatening. On 30 June 2015, she caused a letter to be sent to the father via her solicitors to request the father not communicate with her sister, and until she received a response to that letter, she would not be making the children available for visits. She did not receive a response until 14 September 2015. The mother says that the father’s behaviour demonstrates a lack of insight into the impacts of his behaviour.
The mother commenced proceedings on 22 October 2015 seeking that the children live with her, and she sought the court’s view as to whether the father should spend time with the children. At this time, the children had not seen the father for five months. It was agreed by consent prior to the interim hearing in December of 2015 that no spend time arrangements would be made with the father prior to the preparation of a Family Report.
On 5 April 2016, Interim Orders were made by consent that the children live with the mother and spend supervised time with the father:
(1)Upon a place becoming available at B Contact Centre, for two hours each alternate week; and
(2)Upon a place becoming available at AK Contact Centre, for two hours each alternate week.
Applications were made at both of these contact centres, and the father engaged in the intake session at AK Contact Centre. The mother was notified that the father did not meet the assessment risk criteria for the centre and thus the intake was terminated. The mother says that this diminished her confidence that the father would be able to regulate his anger around the children. Notes were subpoenaed from this intake session and the mother referred to these notes in her trial affidavit:[9]
When the Writer requested information for the genogram about [Mr Givan’s] family of origin he became enraged and started to yell and swear. [Mr Givan] said, "Why do I have to answer questions about my fucking family, I am here to talk about my fucking kids?”
[Mr Givan] also referred to his sister as "Just a fucking lesbian"
During this conversation [Mr Givan] yelled directly at the Writer and expressed his frustration at being asked questions about his family…
After a short time of enduring being yelled at by [Mr Givan] the Writer explained to him that she felt intimidated and uncomfortable and asked [Mr Givan] to leave the service. [Mr Givan] responded aggressively with “ What? Really? Sorry?”
[9] Mother’s trial affidavit at [152].
On 21 May 2016, the intake was completed with the B Contact Centre, and the children attended this centre for supervised time with the father as detailed above until March 2017. The mother notes that while she accepts the children reportedly had a good time during these sessions, they were often anxious and moody beforehand and following these visits. The children were reluctant to go, but the mother says she encouraged the children.
The Children’s Health
The children have a number of therapists and specialists assisting with their mental and physical health. Y has a diagnosis of Autism Spectrum Disorder (“ASD”), Attention Deficit Hyperactivity Disorder (“ADHD”) and Post Traumatic Stress Disorder (“PTSD”). The PTSD diagnosis was made by Ms H and is referenced throughout the other diagnoses and referrals, including the assessment of Ms AL and Ms AE.[10] This diagnosis was supported by Ms AB’s report of 19 July 2021.[11] His conditions manifest in behavioural issues:
…which include an inability to concentrate and focus, maintain relationships with his peers, understand personal boundaries, an inability to deal with changes to his routine or living situation and safety measures as well as significant and progressing behavioural issues.[12]
[10] This assessment is exhibit 45 and 46 of the mother’s trial affidavit.
[11] Exhibit 3 of the mother’s trial affidavit.
[12] Mother’s trial affidavit at [257].
Y is currently under the care of:
(1)Ms AB, psychologist;
(2)Mr AM, mental health nurse;
(3)Dr AN, paediatrician;
(4)Ms AO, occupational therapist; and
(5)Ms AP, occupational and specialised therapist.
Annexed to the mother’s affidavit is the report of Organisation AD prepared July 2018, by Ms AL, who has postgraduate qualifications in childhood psychology. Y was referred for an assessment to determine whether he presents with ADHD.
This report includes a cognitive assessment, using the Clinical Evaluation of Language Fundamentals. Y received a score of 92, which is within the average range, indicating his auditory comprehension is as expected for a child of his age. He also underwent a more comprehensive Wechsler Preschool and Primary Scale of Intelligence (WPPSI-IV) assessment, which is used to assess thinking and reasoning skills for young children. It is a composite of multiple IQ scores, including
1.Verbal comprehension;
2.Visual special;
3.Fluid reasoning;
4.Working memory; and
5.Processing speed.
This report indicates that Y’s verbal comprehension is very high, being in the 95 percentile. Likewise, his overall IQ is very high, being in the 75 percentile. His scores for the remaining categories are average, falling between the 27 and 63 percentile. This report did not conclude whether Y had ADHD.
A further psychological assessment report, completed on 11 April 2020 by Ms AE, is annexed to the mother’s affidavit, which diagnosed Y with ASD, level 2, without accompanying intellectual impairment, and moderate ADHD. The assessment involved Y undergoing an Autism Diagnostic Observation Schedule, which looks at social-communication skills, imagination and creativity. The report details that Y is likely not aware of a range of factors, including personal space, volume, tone, pitch, sarcasm, the impact of his behaviour on others. The report also referred to relevant behaviours including repetitive mannerisms, noises and topics. Further, Y’s disruptive behaviours are associated with ASD and ADHD specific behaviours. The assessor found that Y could change these behaviours when positively encouraged to do so, but this encouragement/reminding will need to be regular.
The report emphasised that his behaviours are associated to his ASD rather than ‘misbehaving’.
Y’s current treating paediatrician, Dr AN, provided a letter on 2 October 2021 to Dr AQ in support of a referral for ongoing care from a paediatric psychiatrist.[13] Dr AN recommends a specific service for same. Y sees Dr AN every 6 months. In his letter, he sets out a brief summary of Y’s circumstances at that time, including his medication, and the belief that he requires a multidisciplinary mental health team and full psychiatric evaluation due to his complex history and trauma exposure.
[13] Mother’s trial affidavit Annexure 47.
The mother is currently trying to engage with a paediatric psychiatrist, but has not, at the time of the trial, been able to do so. Both parents agree on orders that Y attend upon a paediatric psychiatrist.
The mother describes Y as experiencing “blackouts”, during which he describes feelings of being “outside his body”. He becomes unresponsive and aggressive during these periods. These are being dealt with currently by medication.[14]
[14] Mother’s trial affidavit at [262].
The mother’s evidence is that these behavioural issues become worse before and after spending time with the father. She gives evidence that in December 2020, following a visit with the father, the occupational therapist, who was attending a session with Y at the home of the mother, called an ambulance due to concerns about his behaviour during a “blackout” period. As a result of this incident, Dr AN was appointed as his paediatrician, as he specialises in behavioural difficulties.
X also sees a psychologist but has no specific diagnoses.
The mother says that the father lacks insight into the children’s health and developmental challenges, and she quotes the Family Report of Ms E of 10 September 2018:
The writer apprised [Mr Givan] of [Y’s] recent diagnosis of ADHD. [Mr Givan] quickly refuted this, believing instead any behavioural issues are the result of poor parenting.[15]
[15] Mother’s trial affidavit at [268].
The mother sets out the ongoing impacts of the father’s behaviour on the children. These include issues sleeping and eating, difficulty with emotional regulation, and frequently recalling memories of violence, especially when exposed to “triggers”. Further, the children are very protective of the mother and often fear for her safety, particularly when away from her for longer periods of time. The mother says that Y refuses to refer to Mr Givan as “dad”.[16]
[16] Mother’s trial affidavit at [277].
The mother says that the father’s denials or attempts to excuse or downplay the family violence is detrimental to the children’s mental health. She says they feel lied to, and it exacerbates their anxiety and fear of the father.
The evidence in relation to the children’s health is noted in detail as the father, through his affidavit evidence, sought to question the extent of the children’s medical issues. I also do note the father’s closing submissions accepted that the child Y has significant issues of ADHD, ASD and PTSD, and the children X has issues of anxiety.[17] There was no closing submission made by the father to the effect that the mother had subjected the children to excessive medical or psychological treatment.
[17] Father’s closing submissions at [11] + [12].
The Impact on the Mother
The mother describes the ongoing impact on her health of her exposure to the father’s family violence and threats. The mother has a diagnosis of PTSD, made by her treating psychologist, Dr K, and is in the 99th percentile for severity according to clinical tests. Despite this fact, she is still a competent parent, and no issues have been raised as to her capacity to parent.
She states that her condition has not improved due to exposure to the father through these ongoing proceedings and supervised visits. She describes how she is in constant fear, and is unable to heal.
She gave evidence that she has put in a lot of work to regulate her own emotions and has been seeing a psychologist, Dr K, for six years. Her emphasis is to be able to better parent the children, but there are certain triggers for her which cause flashbacks and panic attacks where she is unable to control her symptoms. She says that Christmas is a particularly hard time for her and the children.
Father’s Cross Examination
The father was cross examined at length as to the extent and impact of his family violence on the mother and children. He does not deny that there was family violence prior to separation; however, he does not believe the mother’s accounts are accurate.
He answered repeatedly that he understood the extent and impact of his actions, and said he took “full responsibility” for his past and he is ashamed of it, but moving forwards he is a different person and now wants to have a relationship with the children.
Counsel for the mother went through the mother’s affidavit and put to the father details of the family violence perpetrated by the father. The father said he had trouble remembering details, but refuted several of the mother’s claims, and said that the mother’s evidence minimises her part in the conflict.
In relation to the 2014 Christmas incident, the father gave evidence that he recalled holding the mother against the wall by the throat. However, he otherwise disagreed with the mother’s version of events, or had no recollection when asked whether he could recall specific details. He accepted that when grabbed by the throat, the mother would have been afraid, but he did not recall the events that followed. Counsel for the mother noted that the paternal grandparents were in court and that they witnessed the events of Christmas day, but were not called to give evidence to support his version. When asked if the children were present for these events, he said that he had no recollection. He gave evidence that he had no memory of the children screaming, as deposed in the mother’s affidavit. He did accept that if the mother’s description of events was accurate and the children witnessed the family violence, that the children would have been terrified. He gave evidence that the argument escalated due to the mother saying to him “you will never see your children again”. The mother does not deny saying this. Later in the course of cross examination, the father was played a recording of the mother’s telephone call to the police on the night. In that recording, the children can be heard screaming in the background in the context of the father screaming at the mother while she made the call. In court, the father became upset at hearing that call and after a break, when questioned, he accepted that the children were present during this incident.
The father was then asked about the events after the paternal grandfather’s birthday in early 2010. He gave evidence that he had been smoking cannabis that night, and he did not have a strong recollection of events. He could not remember threatening suicide to the mother and taking a large number of sleeping pills, or banging his head repeatedly against a wall, but he did remember speaking to Men’s Help Line. He has no recollection of the rest of the night, including allegedly holding the mother against the wall by her throat. This resulted in the mother spending four days with her parents.
In relation to questions about an incident in November 2010, he denied any violence towards the mother’s dogs. He acknowledged that the police were called and subsequently attended. He had left by that point, but denied that he was hiding in the backyard and jumped the fence to avoid the police.
Notably, in his responses when referring to family violence, he would refer to “the incident”, being the incident on 25 December 2014. When it was brought to his attention that what was alleged was not a single incident, but a pattern of behaviour spanning across years, he challenged this. He said there were only “a few” instances. It was put to him that the mother’s position is that he had strangled her on at least 10 occasions throughout the relationship. He denied this and said that he believed it only occurred on two or three occasions. When asked if he understood that the mother was petrified of him, he responded that he understood she had “some level of fear”. When the mother’s text message to the paternal grandmother was read (which is set out below for ease of reference) indicating that she feared for her life if the father found out about the message asking for help, the father said he could not understand why this message had been sent, nor why she had such an acute fear as at no stage had he threatened to kill the mother or the children, as she alleges[18]:
Don’t tell him i text you or he will kill me!! He beats me up [Ms AR] in front of [X] & threatened to kill me!! Either he gets help or I have him arrested [Ms AR]. I don’t deserve this – he is psycho & won’t converse with me & I don’t deserve to be beaten up & yelled at & called names in front of my son. U need to get him out [Ms AR]now or [X] & I will be dead. I have done nothing wrong. I am happy with my life just not happy with [Mr Givan] anymore when he is violent & psycho to me. If u tell him I text u this he will kill me. He is completely unstable. [Mr AS and Ms AT] know what he did last week & they will step in if he doesn’t stop hurting me & get help..! I miss you & love you always. Fyi this has nothing to do with my family – it is how he treats me which is like I’m a dog. Im not kissing someone that hits me & threatens to kill me xxxx
[18] Mother’s trial affidavit [112] (k).
In response to a question that he was supplying by his responses that the mother was lying about parts of her account, he stated that given his state of intoxication, he is sure that at the time he was not in any state to understand his actions. He gave evidence that he hoped her account of events was not true, and he agreed that his behaviour was “appalling” if her account is accurate.
The mother’s evidence during cross examination
The mother deposed that even at the time of being pregnant with X, very early in their relationship, that it was not a happy relationship between her and the father. She said that four months into the relationship, he became abusive. When put to her that the reason they had a second child together was because they were happy and they did not want X to be an only child, she says this is partially true. She says wanting X to have a sibling was one reason, but the other reason was that she thought the father was less likely to hurt her, and she was less likely to “disappear”, as the father had threatened she would, if she was carrying his child.
The mother’s evidence established that the children have a strong relationship with the maternal grandfather and the maternal aunt.
It was put to the mother that she had lied to the boys about the father cutting her face with a knife, and this lie was the reason the children held this belief. She adamantly denied this, and told the court that she never talks about the past instances of family violence nor her fear of the father in front of the children. She said that she had repeatedly told the children that this did not happen, but the children continued to hold the belief that it did.
It was put to her that she deliberately arranged playdates during the father’s supervised visits with the children. She told the court that these playdates did not exist, and she suspected it was the children attempting to make an excuse in order to leave early.
The father’s counsel questioned the mother at some length about what arrangements might look like if the court ordered unsupervised time with the father and the children. The mother’s only response was that she hoped that did not happen because there are no circumstance in which she would feel that the children would be safe with the father. She said that nothing in the father’s evidence, either in court or in his supporting documents, has shown her that he has any insight into the impact of his behaviour. She clarified that it was her position that it was in the children’s best interest that the father has no contact with the children other than cards and presents. She gave clear evidence that if the children were ready and wanted to see their father, she would do everything in her power to facilitate that time, provided it was in a safe and supervised environment.
The mother was questioned in regards to her claim that Y self-harmed at school. It was put to her that this did not occur because the school did not have a report of the incident. The mother gave evidence that the teacher had spoken to her about Y dragging scissors across his arm, but that this was not part of the mandatory reporting procedures. She said his teachers and his care team at school were all aware of concerns about Y self-harming.
The mother was then asked about her observations of Y. She gave evidence that he was very trusting to the point that if she told him that an apple was purple, he would believe that in the face of all evidence to the contrary.
She said that the children require a steady routine, and do not react well to change. She has worked closely and at length with the children's treaters to develop strategies to best manage the children's symptomatology and general anxiety, including daily timetables and visual cues to assist in the regulation of their emotions.
She confirmed that Y has been diagnosed with ASD, ADHD and PTSD. She gave evidence that behavioural issues were one of the more problematic symptoms. These diagnoses mean that Y has to be parented in a specific way to manage his behaviour, and any negativity in relation to unwanted behaviours would cause him extreme stress and damage his trust in that person. She said that rather than try to stop certain behaviours, she has worked with his psychologists to develop an approach wherein she discusses what he has done, why he has done it, and options for a better way to react next time. She gave the example of him breaking his iPad out of frustration. She said that the alternative would be that he would hold onto and internalise any criticism and this would have a hugely detrimental impact on his self-esteem and confidence.
In relation to the children’s ability to regulate their emotions, she gave evidence that their ability to regulate is strongly connected to her own emotional health, and that if she is not able to be emotionally stable, this would negatively impact the children. She emphasised that the family home needs to be a calm and safe environment because too much stimuli seems to have a negative impact.
She explained that another manifestation of Y’s diagnoses is a fixation on certain things. She said this could explain his fixation on the idea that the father cut the mother’s face with a knife even when the mother and father assured him that this did not occur.
When asked about what other impact the family violence has had on the children, the mother gave evidence that X in particular finds it embarrassing not to have his father around, and it is a source of some pain to the children that they do not have a father figure in their lives; however, the children are not ready to see the father at this point.
She gave evidence that she did not believe the recommendation put by the father to go through family therapy was a good idea, because the children already had to speak with so many professionals, and it would not be in their best interests to “start fresh” with another therapist. She feels that the children being forced to see their father against their wishes will only serve to further damage that relationship with the father, and that it may damage the children’s relationship with her because they will feel like they are not being listened to and they cannot trust her.
She stated in evidence that if the children want to see their father, that the best approach would be to integrate the father into the therapy sessions with the children’s current treaters, and move from that into supervised time.
EVIDENCE OF MR V
In addition, the father relied on the affidavit evidence of Mr V, psychologist, filed 27 April 2022 which included a report of that date.
Mr V expressed the view:
[Mr Givan] is ready to proceed to this next step of, seeing his children more often, unsupervised, as he is not drinking anymore and has gained understanding and insight into his past abusive behaviours through our treatment session, as well as his treatment sessions with his previous psychologist. [Mr Givan] is also ready to co-parent. If the court sees fit that this happens, I would suggest that it be done in a gradual way so that all parties adjust to the changes.
The report is also to be read with the evidence of Mr V of 27 September 2021 which sets out in great detail the level of psychological treatment that the father has received both from Mr V but alsofrom Mr D which outlined that the father had attended upon Mr D 30 times from December 2014 to October 2018.[19] The father’s claims of sobriety are supported by a large bundle of blood tests referred to by Mr V, in his first affidavit.
[19] Affidavit of Mr Eonomou exhibit CE-3.
In his report of 27 April 2022, Mr V stated under the heading “Psychological Treatment”:
The therapeutic work undertaken by [the father] continues to be a combination of "interpersonal therapy" (therapy that involves solving interpersonal problems) and "cognitive behavioural therapy” (therapy the challenges unhelpful cognitive distortions and behaviours). It improves emotional regulation and leads to the development of personal coping strategies that target solving problems.) As I've indicated in my report of 27 September 2020, these therapeutic approaches were both necessary given [Mr Givan] past alcohol misuse and current situation. [Father's] prognosis is extremely (very) good given his high motivation to resolve all issues and have more regular contact with his children (when they are emotionally ready) and co-parent with the mother when she is emotionally ready…
General comments [the father] is now aged 42 years, he is in full-time employment, has a supportive and stable relationship that is nearly 2 years old, has not come into conflict with the Law, has stopped drinking alcohol which has affected his behaviour and in his words "caused him to be abusive”.
In our treatment sessions this man has indicated to me, again and again, that he wishes more frequent and regular contact with his two children, in an unsupervised capacity, that he wishes to be involved in co-parenting with the mother.
I stated in my report of 27 September 2020, my view is that the father is ready to proceed to the next step of seeing his children more often, unsupervised, as he is not drinking anymore and has gained understanding and insight into his past abusive behaviours through our treatment sessions.
The father is also ready to co-parent. If the court sees fit, I would suggest that it be done via family therapist (e.g.[ Ms W, Ms AU]) so that all parties adjust to the changes.
The father's claims of sobriety are supported by a large bundle of blood tests referred to by Mr V in his first affidavit. There was no challenge made to the evidence of the father that he has been sober for the last two years.
Evidence of Dr U
The father also relied on the evidence of Dr U, psychiatrist, who filed an affidavit dated 1 December 2021 which annexed a report dated 30 November 2020. Dr U provided a psychiatric assessment of the father. In relation to the father's capacity to "be a positive influence and an appropriate role model" he expressed that the opinion:
If he returns to drinking, I would be particular worried. If he started to blame shift in our sessions towards the mother, I would also be concerned. If he did not express a willingness but to participate, and take advice, I would also have concerns. If he was simply expressing a motivation to be part of their lives, rather than also being part of the solution and problem-solving to their own development, I would have major concerns.
From today, with those areas addressed, I do not have concerns.
the reports of Ms C
The father relied on the reports of Ms C, a supervisor of the children's time spent with the father pursuant to the orders made in October 2018. These affidavits were filed with exhibits which were the observation reports (as redacted by agreement between the parties) made by Ms C. The evidence of in those observation reports are detailed and discursive. I do accept the submissions made by the father that:
(1)When considered as a whole, that they demonstrate the father's contact with the children was child focused and appropriate during the time that he spent with them in a supervised setting;
(2)The father is able to respond appropriately to challenging behaviours or when the children refused to spend time with him; and
(3)The children engaged well and happily with the father when the time proceeded.
I also note that the observation reports are replete with examples of the mother actively encouraging the children to spend time with the father, despite resistance from the children.
Evidence of Ms P
The father also relied upon the evidence of Ms P contained in an affidavit filed on 28 April 2022. Ms P also was cross examined upon that evidence. Ms P has known the father for about 10 years through a work connection, and they have cohabited at Ms P’s home since about early 2020. Ms P gives evidence of a happy and positive relationship between herself and the father. She describes the father having a positive relationship with her adult children. She was adamant under cross examination that she had not seen any signs of family violence, or aggressive or intimidatory behaviour on the part of the father towards her or her children. In my view, Ms P gave honest evidence of her impression of the father, and I accept that the father has not subjected Ms P to family violence, and that they are in a happy relationship.
Evidence of Dr K
Dr K is the mother’s treating psychologist, and has been for six years. She has a doctorate in psychology and has been practicing since the mid 1990s. She is a member of the Australian Psychological Society and is an accredited as a forensic psychologist by APHRA. She provided a report dated 8 May 2022.
By her report of 8 May 2022 (which refers to an earlier more exclusive report of 17 August 2021), Dr K gave evidence in summary that the mother had been seen by her over 6 years and had seen her 6 times since July 2021, and on average once a month from April 2016 to June 2021. She expressed the opinion that:
(1)She continues to suffer from PTSD at a severe level;
(2)She had been the subject of extreme and specific counselling to cope with the symptoms of PTSD;
(3)The mother’s stress has significantly impacted on her health; and
(4)She is not able to communicate with the father.
That report addressed the following questions which had been posed by the mother’s solicitors:
1. When she had seen [Ms Myer], and over what period of time as well as the frequency?
2. She responded that she had seen the mother, on average, monthly for six years.
3. The nature of her counselling with [Ms Myer] and any diagnosis.
4. She responded that the mother had been diagnosed with Post Traumatic Stress Disorder (“PTSD”).
5. Details of what steps [Ms Myer] has taken in order to attempt to cope with the previous and current care arrangements.
6. Her professional opinion as to how [Ms Myer] was able to cope with the previous and current care arrangements whereby the children were spending supervised time with [Mr Givan], and in particular what the impact those care arrangements had on [Ms Myer].
7. Her professional opinion as to the impact that [Mr Givan] has had [Ms Myer] (and the impact this may have on the children in the context of [Ms Myer] being the children's primary carer).
8. Her professional opinion as to the likely impact on [Ms Myer] (and/or the children in the context whereby [Ms Myer] is the children's primary carer) in the event that the children were to spend unsupervised time with the father?
9. Her professional opinion as to the likely impact on [Ms Myer] in the event that she is required to communicate with [Mr Givan] (either face to face or in writing, for example via email or text message) in relation to the children.
At trial, Dr K gave evidence that the mother suffers from severe PTSD, and her daily life involves an incredibly high level of stress, which was escalated when the father was to have time with the children. Dr K agreed that the mother’s fear of the father is genuine and enduring, and that her PTSD cannot and will not improve while she is still exposed to the father to any degree.
When asked about the mother’s symptoms, Dr K described that the mother is in a state of constant ‘fight or flight’, or hyper arousal of her nervous and cardiovascular symptoms. This constant heightened state has had significant impacts on her physical health, including her weight loss and impact on bone density which has resulted in recurrent bone fractures, and frequent bouts of pneumonia. Dr K said that the exhaustion of this constant hyper arousal can lead to hypo arousal, in which the mother experiences phases of extreme depression. However, Dr K’s opinion is that this illness has not impacted the mother’s parenting capacity, and her parenting capacity is not in dispute in this matter.
Dr K’s evidence is that the role of parent is the most important thing to the mother. She has done several parenting courses, and frequently speaks to the children’s treaters about the best ways to approach the children. Dr K’s opinion is the mother would not do anything that was not in the children’s best interests.
In relation to the father’s proposal that the children spend unsupervised time with him, including overnight time, Dr K gave evidence that this would have a dramatic negative impact on the mother. She would be highly anxious and would experience increased stress in the periods leading up to and during the children’s time with the father.
In relation to the impact of the mother’s PTSD on the children, Dr K gave evidence that the mother currently has her own support system, but in the event that the mother’s anxiety is increased by unsupervised time with the father, it is very likely that her increased visible symptoms will impact the children, particularly because the children also have PTSD. Further, Dr K’s opinion is that the mother’s physical and mental health would deteriorate further if unsupervised time was introduced, and this would have some impact on the mother’s parenting capacity, although she was not certain of the extent of that impact at this stage.
This is a matter where serious family violence perpetrated by the father on the mother during the course of the relationship looms large. This is notwithstanding that he has not committed family violence or breached a court order since 25 December 2014.
The evidence establishes on the balance of probabilities:
(1)The mother has been subjected to serious family violence throughout the course the relationship with the father and that family violence was not limited to one or two isolated events but is as alleged by the mother in her trial affidavit;
(2)The mother has PTSD as a result of being subjected to family violence throughout the course of her relationship with the father;
(3)The mother is the primary carer of the two children, and the child Y has significant ongoing needs;
(4)The mother consented to orders in October 2018 for the boys to spend supervised time with the father;
(5)The time proceeded reasonably well for a period, but then broke down with both children becoming increasingly resistant to spend time with the father;
(6)By December 2020 the children were refusing to spend time with the father;
(7)The mother has encouraged the children to spend time with the father prior to December 2020;
(8)If the court presently ordered that the children spend unsupervised time with the father, this is likely to lead to a dramatic increase in the stress on the mother and will significantly impact on her capacity to look after the children, which in my view poses an unacceptable risk to the children;
(9)There is a strong likelihood that if the court ordered that the children spend time with the father whether supervised or unsupervised the children would refuse to go;
(10)The unacceptable risk of harm to the children is not ameliorated by making orders for long term supervised visits as this is likely to lead to ongoing conflict involving the children, which is not in their best interests; and
(11)In my view the better approach is to make orders for the father to be able to communicate with the children through cards and letters but include orders that make provision for the children to engage with the father if they express a desire to do so. The orders provide a pathway to facilitate that.
The orders that I will make take into account that the children are getting older and will become more confident to express their own views. I find that the children have unequivocally expressed their views to Ms O that they do not wish to spend time with their father. It was implicit in the Family Report of Ms O that they both had the capacity to express that view. Counsel for the father submitted that the report of Ms O was defective because she failed to make an explicit finding that the children had capacity to express their views. I do not agree. The children are of an age where children can ordinarily express views, and there is no evidence that either child has any incapacity to express a view. I note the evidence before the court is that both children are of above average intelligence.
In making these orders and considering the matter generally, I am particularly mindful of the submissions made on behalf of the father regarding the quality of the time that he spent with the children up to 2020 when the children attended supervised visits. I also note the observations of the children with the father recorded in the Family Report of Ms J of 31 March 2016 at [67] - [73]. That passage describes the children displaying genuine affection towards their father notwithstanding that both children were initially extremely reticent about seeing their father in that setting.
Similarly, I have regard to the observation of the interactions between the children and their father referred to in the Family Report of Ms E dated 10 September 2018, which are set out at [104] – [107]. Ms E observed:
There was strong eye contact, warmth and engagement between [the father], [the children], and certainly this observation and the children’s earlier expressed hesitation about spending time with their father was not reflected in this 30-minute observation. It would seem some time in [the children’s] young lives, there has be a strong bond and memorable times with their father.
I also note the opinion of Ms E at [129]:
This is a complex matter. The mother has been a victim of family violence, and time has not begun to heal her emotional pain and hurt. If the court decides that the children will benefit from spending time with their father, the mother’s capacity to support this occurring will unlikely be sustained. The children’s positive views of their father may eventually be overruled by the mother’s emotional capacity to parent the children and support them spending time with their father.
I am also cognisant of the positive reports of the time spent between the father and the children following the orders that were made for supervised time in October 2018. There was a good deal of focus in the hearing on what occurred on what turned out to be the final day of supervised time between the children and the father, which took place on 6 December 2020. The time was organised to run from 10.00am – 4.00pm and things appeared to have proceeded well with the children and the father spending a happy time together with the paternal grandparents, until the child Y became focused on the time that he was spending with his father being increased from 4 to 6 hours. In the Family Report of Ms O at paragraph [49], the report writer records her conversation with the child Y in relation to the last visit where:
[Y] reported that on the last visit with the father, he had requested to go home early and had become upset and crying. [Y] reported the father did not listen to him and the spend time continued for the full three hours. He described this experience as distressing, articulating that he did not feel he had been heard, or that his views were respected. [Y] reported that he spent the full three hours upset and crying and that the father did not care. [Y] explained that this was the most recent thing that his father had done that upset him, and following this session, he did not want to see the father anymore.
I acknowledge the father’s frustration at reading that account because it does not accord with his own and the supervisor’s observations regarding the quality of the time spent between the children, particularly the child Y, and their father on that final visit. However, what must be borne in mind is the fact that the child Y is autistic, and as has been observed by the mother, Ms AE and Ms AB, the child is able to create his own notions or beliefs as to how matters have proceeded or how he has perceived them, and that has become his genuinely held belief. That matter was directly addressed by Ms AB in her evidence before the court.
In this case, the mother is mindful of the benefits that the children would have by the father having a meaningful role in their lives. From my observations, when giving her evidence, she became genuinely upset, particularly at the thought of her eldest child having to explain why he did not have a father in his life. Unfortunately, the evidence in this case supports a finding that the damage that has been done as between the mother and the father is so significant that the ongoing ramifications have impacted upon the children and their capacity to have a relationship with their father. Whilst the father may have moved on by taking positive steps in abstaining from alcohol, engaging with professionals who might assist him, and forming a loving relationship with a new partner, the ongoing trauma arising from the serious family violence continues to significantly impact on the mother and children.
Making an order for unsupervised time poses an unacceptable risk of harm to the children because an order of that kind is likely to significantly impact on the mother and her capacity to care for the children. That likely incapacity is such as to constitute an unacceptable risk of harm to the children given that the mother is their primary carer. I am also cognisant of the father’s submissions that the mother has been able to maintain a business as a business owner, and has been able to continue to parent to a high degree of competence notwithstanding her diagnosis. Her capacity to do these things is quite different to her be able to manage the anxiety that she feels as a consequence of the family violence that she has suffered, that the children observed, and that continues to traumatise her.
The father correctly points to evidence that he has actively sought psychological assistance and has abstained from alcohol for over two years. He also points the evidence of his partner, who has reported no incidence of concern both in relation to family violence or the misuse of alcohol in the period they have been together. He points to the opinions of his treating psychologist, Mr V, and psychiatric, Dr U, that he does not present a risk to the children as he has addressed the underlying issues that were the source of risk, being his incapacity to properly manage himself whilst using alcohol.
Those matters when raised in isolation tend to suggest that the father should spend more time with the children and that the time should be unsupervised. However, when viewed in the context of the history of family violence and the ongoing impact that has had on the mother and the children, I do not believe that unsupervised time, whether for longer or shorter periods, are in the children's best interests at this time.
Further, I do not think that it is in the best interests of the children to make orders for ongoing supervised time between the father and the children. Orders of that kind have been made and have been found not to have worked for the benefit of the children because they are now refusing to see their father. Whilst an order for ongoing supervised time may ameliorate the risks to the children of physical harm, they do not present as a viable ongoing option in circumstances where the children have clearly expressed opposition to that time occurring, and where the mother will have to deal with the consequences of the children feeling that they are being forced to do something against their wishes. Given the evidence regarding the particular psychological attributes of the child Y, it is plainly not the case that the mother can simply direct the child to do something of which he is highly resistant. The evidence does not support a finding that the children’s resistance to spending time with the father has been as a result of poor parenting on the mother’s part.
Further, I take into account the father’s submission that it is undesirable for the court to make orders for indefinite supervision even though it may be warranted: see Bant & Clayton [2019] FamCAFC 198 at [53] of the case referred to herein:
It is well accepted that an order requiring a child’s time to be subject to indefinite supervision is undesirable even though it might be warranted, and courts are encouraged to consider crafting orders which might avoid permanent supervision (see Slater v Light [2013] FamCAFC 4; (2013) 48 Fam LR 573 at 583-584; Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407 at [209], [215]; Moose & Moose [2008] FamCAFC 108; (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]- [41]; B and B [1993] FamCA 143; (1993) FLC 92-357 at 79,780).
Orders providing for ongoing supervised time, particularly as the children are no aged 10 and 11, are likely to lead to an experience which is unsatisfactory for all concerned, particularly where the children have been so resistant since December 2020.
The opinion of Ms O on the question of the children spending time with the father at [76] and [77] of her Family Report is compelling and supported by the evaluation that she sets out from [66] of that report. I set out those passages for ease of reference.
67. It is positive [Mr Givan] appears to have made some therapeutic and rehabilitation progress, and he is actively engaged with professionals to assist him, and he was able to identify alcohol consumption as an issue and cease this consumption. It is particularly positive that [Mr Givan] identifies his treating psychologist, [Mr V] as a professional, whom he trusts and is able to be emotionally vulnerable with. It is likely that ongoing intervention with [Mr V] will be highly beneficial for [Mr Givan] in continuing to develop insight and awareness.
68. In saying this, throughout the interview [Mr Givan] referred a number of times to the post separation dynamic between the parties as a primary source of difficulty for the children, as opposed to the children’s experience of family violence as having significant impact. This can be construed as minimising of the children’s experiences, and conversely to [Mr Givan’s] purported views experience of family violence is indeed what [Mr Givan] may consider one of the primary risk factors or vulnerabilities for the children. That [Mr Givan] does not seem able to consider this, may demonstrate a lack of both insight and accountability.
…
75. [Ms Myer] is the children’s primary carer, and there is nothing in the material that suggests this should change. It is clear [Y] and [X] are both protective of [Ms Myer’s] safety and emotional well-being. Supporting [Ms Myer] in her therapeutic treatment, and overall parenting to create safety and security is going to offer the children the greatest predictability. [Ms Myer] and the children need time to heal and repair, disruption to this would likely be destabilising.
76. [Mr Givan’s] proposal of building up to overnight spend time with the children is reflective of his therapeutic intervention, and what he is ready for. It unfortunately does not consider the children’s therapeutic journeys and where they are in their repair and recovery and their views of him. Considering this, spend time occurring now between [Mr Givan] and the children is unlikely to enable genuine connection, or aid their developmental trajectory. Should consideration be given to re-introducing [Mr Givan] into the boy’s life, primacy needs to be given to the [Y] and [X’s] emotional vulnerability, and their needs for safety and security.
77. In order for the children to consider re-establishing a relationship with [Mr Givan] in the future, they need to feel stabilised and safe. [Mr Givan] needs to be able to consistently demonstrate he is not a threat to them or their mother, and in time, they may become more amenable to seeing him. However enforcing spend time, when there is a high level of resistance, it is a destabilising factor for [Ms Myer], and the children’s highly protective presentations, may hinder the possibility for any relationship building into the future.
After considering the matter, I have concluded that the father spending time with the children at this time would involve an unacceptable risk of harm to them, which would not be ameliorated or sufficiently mitigated by ordering supervised time with him.
Additional Considerations
Section 60CC (3) of the Act sets out a number of additional considerations to which the Court is required to have regard. I will deal with those below.
To assist analysis, those considerations can conveniently be grouped under the following headings, save for those matters that deal with the father’s background of criminal offending, a disrupted adolescence and alcohol abuse which are discussed above:
Issues relating to the children – their views, level of maturity, culture and relationships:
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
I have discussed the children’s views above. Both children have expressed view to the Family Report writer, Ms O, that they do not wish to spend time with the father. The children are sufficiently mature to express that view; however, I acknowledge that the views they express are significantly affected by their feeling a need to protect their mother.
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
The children have a very close relationship with their mother and the maternal family, including the maternal grandfather and maternal aunt. Having regard to the observations made by Ms J and Ms E, the children had a close relationship with the father, but that now appears to have broken down for the reasons that have been outlined above.
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
There are no particular matters relating maturity, sex, lifestyle and background that are relevant.
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
The children are neither Aboriginal nor Torres Strait Islander.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
The mother has been the primary care giver. By virtue of the circumstances of the separation of the parents, the father has not been in a position to participate in making decisions about long term issues in relation to the children. He has done what he could do to spend time with the children and communicate with them, but his capacity to do so is affected by the circumstances of the case, which I have dealt with.
As noted above, notwithstanding the psychological conditions that affect the mother, she has the capacity to provide for the needs of the children, including their emotional and intellectual needs. She has made what efforts she is able to facilitate a relationship between the children and the father, but again, that capacity is affected by the trauma that she suffers as a result of the family violence visited upon her over the course of the relationship, and which continues to affect her.
As to the father’s capacity, whilst his treating psychologist, Mr V, and the psychiatrist, Dr U, have expressed the view that he presently has the capacity to spend unsupervised time with the children because he has stopped drinking and has gained insight into his past behaviour, in my view, there remain doubts as to the extent of that capacity. I make this finding based on the manner in which the case has been prepared and presented on behalf of the father, which devoted considerable energy and time, up until final submissions were made, seeking to criticise the mother because of alleged over medicalisation of the children. The evidence did not support a finding that the mother has subjected these children to excessive medical processes, and I note that no closing submission were made to the effect that she did. The father’s focus on this aspect of the case must have had the effect of appearing to undermine the mother. The father’s approach suggests that he does not fully understand the challenges faced by the children, in particular the child Y, notwithstanding the very clear and detailed accounts of the effect of his conditions, which are annexed to the mother’s affidavit. The approach taken, particularly in cross examination, strongly suggested that the father did not appreciate the challenges faced by the mother in parenting the children with special needs, running a business which supports her family and employs staff, and managing her own health issues.
Further, by reason of the tone of the evidence that he gave in response to cross-examination, I do not believe that he fully recognises the extent of the family violence that he committed, or the impacts that it has had on the mother. He had a tendency to blame alcohol on all negative or violent behaviour. He did not appear to confront the difficulties that he has had in his life since he was a teenager and the impacts that his behaviour has had on other people. The depth of the issues in relation to the father’s mental health are dealt with in paragraph [60] of the Family Report of Ms E.
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
The father would ideally wish to play a greater role in relation to parental responsibility. In my view, he has acted in a mature way by acknowledging that the best wishes of the children are served by the mother having sole parental responsibility.
As noted above in the opinions of Mr V and Dr U, the father has the capacity to provide support to the children. The circumstances which he has created, by his own actions, means that capacity is limited. Of course he is in a position to provide support to the children for education and extra-curricular costs, over and above the assessed child support. Given that he is employed full time without dependants, I assume he will be in a position to do that. That is something that might provide a tangible sign to the children and provide a further basis of reconciliation in the future.
Issues of family violence:
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
The issues of family violence have been dealt with above.
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
The family violence orders have been dealt with above. The mother seeks orders to be made that the father be restrained by injunction from contacting or communicating with the mother or the children, and approaching or remaining within 200 meters of the mother and/or children, and going to or remaining within 200 metres of any place where the mother and/or children live, work or attend school. No submission was made by counsel for the father in opposition to those orders in circumstances where they form part of the case put on behalf of the mother, and reflect the orders that are presently in place. In my view, it is in the best interests of the children for orders of that kind to be made, given the mother’s intense anxiety in relation to the father.
Effect of change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
The orders that I make reflect the situation that has pertained since December 2020. The orders will provide a level of certainty to both the parents and the children, and take them out of the situation where they are either involved in court proceedings or anticipating further proceedings.
Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
There are no particular practical difficulties in facilitating time.
Avoiding further proceedings:
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
In my view, the orders that are made are more likely to resolve the matter between the parties without the need for further proceedings. I have given careful consideration to the proposals of both parents, including those proposals put in the alternative at the conclusion of the final hearing. I put to each of the parties and the ICL the benefits to the children of having some level of relationship with the father other than through cards and letters. Having considered the significant volume of material comprising the written and oral evidence in the case, I have formed the view that the orders proposed by the Mother and the ICL are in the best interests of the children. I gave strong consideration to making orders for supervised time, with that time to commence next year, but have decided that those orders are unlikely to be followed because of the strong indications given by the children that they do not want to spend time with the father. It would do further damage to these children for orders to be made that resulted in claims of breaching the orders, which then led to a further round of proceedings. That course is likely to do significant damage to both the children and the parents.
Further, if orders were made for ongoing supervised time, that is more than likely to lead to a further application being made for the time to increase or to move to unsupervised time because of the inherently unsatisfactory nature of that time from the father’s point of view.
The court is confronted with a situation where orders for supervised time were made and they have not worked. This has led to a protracted and highly conflictual hearing over 4 days. My strong impression is that if further orders were made for supervised time, the cycle of litigation would continue. The orders as framed recognise that the children may express an interest in spending time with their father in the future, and processes are in place to enable this to happen – with those processes taking place outside of the court setting and involving experienced health professionals who know the children. Otherwise, the parents are going to have to find some way of facilitating a relationship between the father and the children if either of them express an interest in seeing him. During the mother’s evidence, I raised with her the scenario of one or both of the children playing sport and expressing an interest in the father watching them playing in a team. The mother had no immediate response to how that might be arranged. Obviously if those circumstances arise, thought has to be given by parents with the assistance of the professionals they consult as to how that might happen. It is not reasonably practicable for the court to frame orders that deal with every possibility when any such orders require the cooperation of the parties. In this case, each parent agrees that cooperation is non-existent. It is hoped that with the passing of time where that time is not spent in litigation, the parents and children may find a way to enable the father to play a positive role in the children’s lives.
Other relevant matters:
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
No other matter is relevant to the consideration of parenting arrangements.
the supervision reports
The court received into evidence the redacted affidavits of Ms C filed, 19 February 2021, 13 October 2021 and 26 May 2022. Those affidavits, and in particular the observation reports which were attached to them, were redacted by agreement between the parties on the basis that they contained expressions of opinion, and went well beyond simply observing the children and providing a report for the benefit of the parties as to whether the children are safely spending time with the father. The difficulties presented by the observation reports was that it appeared that the supervisor was embarking on a process of becoming a de facto family report writer and purporting to provide advice to the parties and the independent children's lawyer. For instance, at page 6 of the report attached to the affidavit of 13 October 2021 Ms C stated in the report:
I sent an email to the independent children's lawyer on 3 May 2021, suggesting that there needed to be a circuit breaker, some form of intervention to restore the children's connection with [Mr Givan].
I raised concerns about the children's mindset and queried how the boys were being prepared in the lead up to supervised time with the father. For example, [X] reporting that his psychologist had allegedly encouraged him to end his relationship with [Mr Givan] and [Y] appearing convinced that he had been tricked by his father and I to spend the court-ordered six hours of supervised time with [Mr Givan] in December 2020. I further suggested that [Ms Myer] might benefit from professional help to support the children with having a relationship with [Mr Givan]. I recommended psychologist Sofia Franks.
On page 7 of the same observation report Ms C states:
I told [Ms Myer] that supervised time seems to be counter-productive at this point in time and recommended psychologist, Ms W.
[Ms Myer] mentioned an up and-coming Family Report.
I explained the difference between a Family Report and ongoing child inclusive counselling. [Ms Myer] agreed to engaging with [Ms W]. I told [Ms Myer] that I would write to the ICL about my recommendations.
I said goodbye to the children, who politely reciprocated.
I spoke to [Mr Givan] who waited inside the venue. He appeared very disappointed when I explained that the children did not want to see him. The father agreed that supervised time arrangements were not working. I mentioned that I'd spoken to [Ms Myer] about engaging with psychologist, Ms, [Ms W] and that that the mother had agreed. Ms Gibb also explained agreed explaining, "I'm desperate. I'll do anything"
On 5 July to 2021, I sent the ICL and an email stating that supervised time arrangements seemed counterproductive and unlikely to assist with the children's re-connection with [Mr Givan]. I mention that I was working on another matter with psychologist, [Ms W] and that her therapeutic intervention had assisted with successfully restoring parent-child relationships. I informed the ICL that I'd spoken to the parents separately about [Ms W] and reported that both were agreeable to engaging with her service.
Real caution should be exercised by persons who undertake the role of a supervisor, and they should not be encouraged, through the acceptance of very long and detailed expressions of their opinions, to undertake a role as an advisor or de facto family report writer unless the parties expressly agree that this is what is to happen. The encouragement or endorsement of that practice is attended with real risks and may undermine the process of ordering supervised time which is there for the benefit of the children. The person expressing the opinion may not have access to all the evidence in the case and the parties may be in receipt of advice from people who are entirely unqualified to give that advice. Furthermore, the parties who are subject of the process are vulnerable and may become subject to a process where there is no proper oversight. It is plain from the passages extracted above that the supervisor has purported to act as an advisor to the parties.
Conclusion
For these reasons, I made the orders set out above.
I certify that the preceding one hundred and ninety-five (195) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 12 August 2022
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