Neaden and Fillborow
[2020] FamCA 607
•24 July 2020
FAMILY COURT OF AUSTRALIA
| NEADEN & FILLBOROW | [2020] FamCA 607 |
| FAMILY LAW – FAMILY VIOLENCE – allegations of abuse of the children – abuse not dependent on intent or recklessness but dependent on result – allegations of risk of psychological harm to the children caused by adherence to abuse allegations – role of evidence relating to physical and sexual abuse where findings not sought by the party adducing the evidence – significance of jurisdiction not being strictly inter partes – parenting capacity – risks occasioned by lack of parenting capacity – characteristics of children – where children face increasing risk if continue to live with the Mother – where risks will abate over time if live with the Father – where change of residence in best interests of children –- where Mother has not complied with orders for children to spend time with the Father – where Father has not seen children since 2014 – views of children whether there should be a moratorium on time with Mother – where supervised time transitioning to weekend time is in best interests – where Final Orders will reduce likelihood of further litigation |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2A), 60CC(2)(b), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(d), 60CC(3)(g), 60CC(3)(h), 60CC(3)(j), 60CC(3)(l), 63A-63H, 65DAA, 68F |
| Johnson & Page [2007] FamCA 1235 Alternative facts in the Courts, The Honourable Justice Stephen Gaegler AC, ALJ 93/7 |
| APPLICANT: | Mr Neaden |
| RESPONDENT: | Ms Fillborow |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Hansen |
| FILE NUMBER: | CAC | 114 | of | 2011 |
| DATE DELIVERED: | 24 July 2020 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 25-27 May 2020; 30 June 2020; 1 July 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr J Haddock |
| SOLICITOR FOR THE APPLICANT: | Walsh & Blair |
| COUNSEL FOR THE RESPONDENT: | Mr Stagg |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid ACT |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Blank |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Friedlieb Fox Mcleod |
Orders
That all previous parenting orders made by the Court be discharged.
Parental responsibility and Live With
That the Father has sole parental responsibility for the children X, born … 2007 and Y, born … 2009, (the children).
Prior to and when making a decision about the long-term issues listed above, the Father will:
(a)inform the Mother in writing of the decision to be made (where possible at least 28 days before it is to be made);
(b) invite written comments from the Mother;
(c)if the Mother responds within the stated timeframe, take such comments into account when making the decision; and
(d)inform the Mother in writing of the decision.
That the children live with the Father.
That following the making of these orders the Mother shall immediately deliver the children to the Independent Children’s Lawyer (the ICL), at B Street City C, for the ICL to explain the orders to the children and for the Father to collect the children.
Therapeutic Family Counselling
That the Father shall cause the children to attend upon Ms D of E Counselling Service at F Street, City G for counselling as soon as is reasonably practicable following the making of these orders.
That at the direction of Ms D the Father will make the children available to attend on Ms D for therapeutic family counselling.
That the cost of the children's attendances with Ms D be paid for by the Father.
That a copy of these orders and a copy of the Single Expert reports prepared by Ms H dated 3 May 2017 and 8 July 2019 be provided to Ms D by the ICL.
Time with the Mother
The children shall spend such time with the Mother as may be agreed between the parents in writing and failing such agreement:
(a)That for a period of three months from the date of these orders the children shall have supervised time with the Mother once each week at the J Contact Centre at such times as the J Contact Centre may make available;
(b)That at the conclusion of the period above, the children commence spending each alternate weekend during school term time subject to the following arrangements:
(i)The alternate weekends shall commence each first weekend following the start of a school term;
(ii)The Mother shall collect the children at the end of school on the Friday and return them to school the following Monday, unless the Monday is a public holiday in which case she shall return the children on the Tuesday.
In order to facilitate Order 10 the parties shall, as soon as reasonably practicable, undertake the necessary intake processes for the J Contact Centre.
The Mother is responsible for the payment of fees in respect of the J Contact Centre.
School term holiday time
From the first school holiday that occurs after the time in (10)(b) commences, the children spend time with the Mother for one half of each New South Wales gazetted school term holiday period as agreed and failing agreement from after school on the last day of term until 12 pm on the middle Saturday.
Christmas holiday time
From the first Christmas holiday time that occurs after the time order 10(b) above, the children spend time with the Mother:
(a)In odd numbered years from 3 pm on 24 December to 12 pm on 26 December;
(b)In even numbered years from 3 pm on 26 December to 12 pm on 28 December; and
(c)In each year for a period of 14 days to occur as agreed and failing agreement, to commence at 12 pm on 3 January and conclude at 12 pm on 17 January.
Special days
Each of orders 15 to 17 applies once after time in order 10(b) commences.
If Mother’s Day falls on a weekend when the children are not already spending time with the Mother, from 5 pm on the Saturday before Mother’s Day until 5 pm on Mother’s Day;
On each of the children’s and the Mother’s birthday for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non-school day.
That the Mother’s time with the children be suspended:
(a)If Father’s Day falls on a weekend when the children are to be spending time with the Mother, from 5 pm on the Saturday before Father’s Day until 5 pm on Father’s Day;
(b)On each of the children’s and the Father’s birthday, if the children are to be spending time with the Mother on those occasions, for two hours from immediately after school if the birthday falls on a school day or four hours from 3 pm if the birthday falls on a non-school day.
Handover
Unless otherwise specified or agreed, handover for the children shall be:
(a) At each child’s school on a school day; and
(b) If not on a school day, at McDonalds, Suburb Z.
Other Orders
That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 7 days of such change.
That in the event of childhood illness or emergency the parent with whom the child or children are with, contact the other parent as soon as practicable to inform them.
That each of the parties, their servants and agents be hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party or their family members in the presence or hearing of the children; and
(b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, or any of them.
Each parent will do all things reasonably possible to prevent other persons from permitting any other person from discussing these proceedings or abusing, insulting, belittling, rebuking, or otherwise denigrating the other party or their family members in the presence or hearing of the children.
That by these orders the Mother and Father be each permitted to liaise directly with the children's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.
That each party is at liberty to attend at the said children's school for the purposes of any function or activity normally attended by parents, noting that the Mother is not permitted to attend until time in order 10b has commenced.
That the parties establish and use a communication book and record, for the information of the other, issues that are limited to the children’s care and that the communication journal accompany the children between the parents’ homes.
Discharge of ICL
That the ICL is discharged 8 weeks from the date of these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Neaden & Fillborow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 114 of 2011
| Mr Neaden |
Applicant
And
| Ms Fillborow |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to this matter are Mr Neaden, the Applicant Father and Ms Fillborow, the Respondent Mother. The parties dispute the date of commencement of relationship. The parties were married in 2003, were separated on a final basis in August 2009 and were divorced on … 2015.
There are two children of the relationship, X, born … 2007 (currently aged 13 years) and Y, born … 2009, (currently aged 11 years). The parties and children live in City C, NSW.
The Father’s time with the children following separation has been variable. He has not spent overnight time with the children since separation, and has not spent any time with the children (despite interim orders to the contrary) since March 2014.
Although not an exhaustive list, the primary issues between the parties involve family violence during the relationship, allegations of abuse of the children against the Father, allegations of risk of harm posed by the Mother in terms of causing the children serious psychological harm, along with issues arising in relation to the parenting capacity of each of the parties.
Although leading up to the trial the Mother had based her case, in part, on the Father presenting as an unacceptable risk of sexual abuse to the children, at the commencement of the trial she identified that she would not seek findings either that the Father has physically or sexually abused the children, or that he poses an unacceptable risk to the children. However, under cross-examination the Mother said that she believed the children were both physically and sexually abused by the Father, and maintained her evidence that the children had told her so. She said that if the children were to spend time with the Father she would be concerned that he would sexually abuse them.
Orders sought
The orders sought by the parties appear at Annexure 1.
In general terms, the Father sought orders that the children live with him, that he have sole parental responsibility for the children and that the children spend time with the Mother. During submissions, counsel for the Father indicated that the Father’s position was that the Court make orders in accordance with those sought by the ICL as outlined below.
The Mother sought sole parental responsibility for the children, that the children live with her and that the children spend no time with the Father. On the first day of trial, the Mother changed her position and that the children spend graduated time with their Father upon a psychologist advising the parties that it is appropriate. During submissions, the Mother’s Counsel advised that, if those orders were not made, the Mother sought that, rather than reverse the children’s living arrangements, the matter to be adjourned for a period of three months to demonstrate that the Mother can effect meaningful change. If she did not, then orders could be made to effect a change in whom the children live with.
The ICL sought that the Father have sole parental responsibility for the children, that the children live with the Father and that there be moratorium on the time the children spend with the Mother for three months. After this moratorium, the ICL said that there should be a gradual increase in the Mother’s time so that after twelve months the children are with her each second weekend.
Documents relied upon
The parties relied upon:
a)Amended Initiating Application (Family Law) filed 15 November 2019;
b)Trial Affidavit of Mr Neaden sworn 15 November 2019;
c)Affidavit of Ms K sworn 15 November 2019;
d)Report of Ms H, psychologist, dated 2 May 2017;
e)Report of Ms H, psychologist, dated 19 December 2017;
f)Report of Ms H, psychologist dated 8 July 2019;
g)Case Summary document filed 18 May 2020;
h)Amended Response filed by the Mother 29 November 2019;
i)Affidavit of Ms Fillborow 29 November 2019;
j)Case Summary document filed 18 May 2020; and
k)Tendered material.
Approach to decision making about children
The paramount consideration in determining what order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of the child. That is to be determined on consideration of the matters set out at s 60CC of the Act, as understood in the light of the objects and principles set out in s 60B and following the reasoning process set out at s 65DAA.
It may be readily recognised that the objects and principles do not all necessarily point in the same direction.
In the light of the objects and principles, in order to determine what is in a child’s best interests, the Court is required to consider the two primary considerations and the additional considerations as set out at s 60CC, to the extent that they arise in a case. In Phillips & Hansford, Strickland, Ainslie-Wallace and Aldridge JJ explained that the considerations in s 60CC are “not a mantra to be recited in every case”.[1] Rather, their Honours said that “only those that are in issue in the proceedings require detailed consideration”.[2]
[1]Phillips & Hansford [2019] FamCAFC 165, [43].
[2] Ibid.
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest.
Legal approach to risk of harm
At the commencement of the trial, as noted above, the Mother indicated that she did not press for findings that the Father committed the alleged acts of sexual and other abuse, and did not press for a conclusion that the Father presents an unacceptable risk of such abuse. Despite that concession, the Mother maintained her factual contentions that the Father has both sexually and physically abused the children.
While in many forms of civil litigation, a concession by a party that they do not seek particular factual conclusions will conclude such issues, the particular characteristics of the jurisdiction conferred by the Family Law Act mean that those factual assertions made by the Mother could not simply be ignored.
It is well recognised from cases such as U v U[3] and M v M[4] that litigation under the Family Law Act in respect of children is not strictly inter partes. A frequent recognition of this lies in the consideration by the Court (after according procedural fairness) of outcomes for children that do not accord with the proposals of any of the parties to the litigation.
[3]U v U (2002) 211 CLR 238
[4]M v M (1998) 197 CLR 250
In U v U, Gummow and Callinan JJ observed as follows:[5]
the parties in cases concerning the welfare of children do not define the issues. It is div 4 (s63A-s63H) of Pt VII, headed ‘parenting plans’, which does that. For example parties may not even make or vary an enforceable parenting plan without the approval, that is to say the intervention, of the court (s63B-63H).
[5] U v U (2002) 211 CLR 238, [72]
Their Honours then identified that s 68F (the forebear of s 60CC) was especially important to the “detailed description for determining the best interests of the child” which they noted is the paramount consideration.
That is not to say, as was identified by Hayne J in that same case, that the Family Court may “embark upon some roving enquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest.”
However, in this case, although the Mother resiled from the position that the Court should find that the sexual and other abuse took place, and that the Father presented an unacceptable risk of harm to the children, she did not resile from the evidence that she originally led in pursuit of such conclusions. She adhered to the position that the Father has abused the children and is a risk.
Under those circumstances, although the Mother’s concessions remove some force from those assertions, they did not permit the Court to ignore the factual contentions raised by the Mother in considering the welfare of the children pursuant to s 60CC. Further, the Court is not permitted to ignore the impact of those factual contentions upon the primary considerations.
Hence, the factual matters underpinning the issue of risk posed by the Father remained live in the proceedings and were still traversed by the parties.[6] They call for the consideration of risk.
[6] I note that Hannam J took a similar approach in Song & Wei [2020] FamCA 368
Consideration of risk of harm forms one of the two primary considerations at s 60CC(2)(b). The consideration is of:
The need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) directs the Court, in determining the best interests of a child, as follows:
In applying the considerations set out in subsection (2), the court is to give greater weight to the considerations set out in paragraph (2)(b).
Of all of the considerations that bear upon a child’s best interests, the statute recognises the relative importance of the protection of children from such harm, and gives emphasis to this as a consideration.
Issues of the consideration of risk arise on the making of factual assertions or allegations that point to risk.
The general approach in dealing with allegations is that set out by the Full Court in Sahrawi & Hadrami [2018] FamCAFC 170 where at [39] Ryan and Aldridge JJ stated as follows:
It is a fundamental principle that a party who asserts facts bears the evidentiary onus or burden of proving them to the requisite standard. It is apparent that the mother failed to do so to the satisfaction of the primary judge. As the evidence adduced in support of the allegations was not accepted, it could not, therefore continue to have a role to play in the fact-finding process.
This reflects the approach generally applied in litigation,[7] but is subject, in cases involving assessing whether a child is at unacceptable risk of harm, to the approach taken by the High Court in the seminal case of M v M[8] where it was said:
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression…the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child.
[7] See Alternative facts in the Courts, The Honourable Justice Stephen Gaegler AC, ALJ 93/7
[8]M v M (1988) 166 CLR 69, p.76
Noting that the objective of the judicial process is to make orders that best promote and protect the interests of the child, the High Court went on to observe at page 75 that:
“The basic flaw in the appellant’s argument is to identify the allegation of sexual abuse as the paramount issue for determination by the court. In proceedings under Pt VII …the court is enjoined to “regard the welfare of the child as the paramount consideration”…..The consequence is that the ultimate and paramount issue to be decided in proceedings for the custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.”
The consequence of this was said by the Court to justify a deviation from the usual approach in litigation:[9]
“Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child…the Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.”
[9]M v M (1988) 166 CLR 69, p.76
This approach was further explained by the Full Court in Johnson & Page, adopting N and S and the Separate Representative at page 82,713[10]:
the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
[10]Johnson & Page [2007] FamCA 1235, [66]
Further in Johnson & Page the Full Court emphasised the non-binary approach, in terms of fact finding, to the question of unacceptable risk, adopting M and M at [76]-[77]:[11]
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.
[11]Johnson & Page [2007] FamCA 1235, [63]
In N & S Fogarty J observed (as approved in Johnson & Page) that the assessment of unacceptable risk is a qualitative analysis, not merely evaluating the risk of the abuse occurring, but also involving assessment of the magnitude of harm to which the risk relates.[12]
[12]N and S and the Separate Representative (1996) FLC 92-655 (Fogarty J) (‘N & S’).
The question of unacceptable risk is not resolved by the mere conclusion that the allegations as to the underlying facts pointing to risk have not been established on the balance of probabilities. In Johnson & Page the Full Court approved the extra curial writing of the Honourable John Fogarty AM, where he (in part) said:[13]
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
[13] Johnson & Page [2007] FamCA 1235, [68] quoting the Honourable John Fogarty AM ‘Unacceptable risk – A Return to basics’
In N & S, consistently with the article quoted above, Fogarty J explained:[14]
There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.
[14]N and S and the Separate Representative (1996) FLC 92-655 (Fogarty J)
That is, it is the overarching conclusion of unacceptable risk that is to be established on the balance of probabilities.
The approach to assessing such a risk in the absence of positive findings of abuse was addressed in N & S, again as confirmed by Johnson & Page,[15] adopting and expanding upon comments made by the New Zealand Court of Appeal:
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“….
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.”
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
[15]Johnson & Page [2007] FamCA 1235
It is then necessary to apply the principles relating to risk, and the s60CC considerations more generally to the factual matters pursued by the parties in order to establish what is in the children’s best interests.
The parties’ relationship
Although unimportant in a substantive sense, a dispute emerged between the parties as to some of the particulars of the commencement of their relationship.
The Father varied his evidence as to the circumstances to their meeting. In his Affidavit he said that they met on a dating site. On cross-examination, he said it was not a dating site. It was put to him, then, that what he put in his Affidavit was not the truth. He said it was the truth and then conceded that it was not a dating a site and then he said he was not sure.
Whether or not it was a dating site is not a matter of substantive importance; however, the variability of his evidence on this point raises a minor question as to his reliability.
Coercive and controlling behaviour during the relationship
The Mother alleged that the Father behaved toward her in a coercive and controlling manner during their relationship. She identified particular aspects as demonstrative of such a dynamic.
The Mother alleged that the Father isolated her from her parents, in particular that he would not allow her to talk to them, in part by monitoring her use of telephones. If accurately described, such conduct would constitute family violence.
However, serious inconsistency emerged in the Mother’s description of her interaction with her family during the relationship. At the same time as asserting that the Father prevented her from contacting them, she asserted that she was heavily reliant upon them, as they would attend the home to support her to fill in the gaps left by the Father’s lack of involvement in supporting her and caring for the children.
The Mother also accepted that she described no particular instance of the Father preventing her from speaking with her family.
Under these circumstances I am not satisfied that the relationship was characterised by coercion and control on the part of the Father.
Allegations as to the Father’s lack of support of the Mother and the children
During the relationship the Mother suffered from dizziness and short blackouts. She said that the Father would refuse to look after X when the Mother requested in the context of the blackouts.
The Mother alleged, and the Father did not challenge that on one occasion the Mother blacked out while the Father was out. He declined to return from the pub, and advised the Mother to remain in bed.
It may be accepted that the Father was unsupportive of the Mother, thereby also lacking in his support of the children. Even if the impact on the Mother is disregarded, these incidents point to deficiency, at least, in the Father’s care for X.
Specific instances of family violence
The Mother identified two specific instances of family violence perpetrated by the Father, occurring in June 2008 and resulting in a period of separation, and then occurring in June 2009, immediately followed by the end of their relationship.
It was accepted by the Mother that these two instances constituted the whole of the physical violence of the relationship, and that the first of the incidents came as a complete surprise to her, there being nothing to indicate to her that the Father might engage in such awful and violent behaviour.
The Father accepted that he had been abusive of the Mother during the relationship, exemplified by the two specific instances outlined above. He denied that he was an abusive person, but accepted that he could be when his “buttons” were pushed.
The Incident in June 2008
The parties agree that there was an incident of family violence on 13 June 2008 and, although certain factual elements are disputed between the parties, the Father deposes to being arrested and charged with assault and damage to property to which he entered pleas of guilty. An AVO was issued.
The incident followed the Father going out drinking for an evening. Following his return home there was a verbal altercation between the parties, which included the Mother saying hurtful things to him.
The Father accepted that he picked up a chair out of anger, intending to smash the chair on to the table. He accepted that in the process of doing this, he put the chair through the wall and the ceiling. He accepted that he then smashed the chair into the table, damaging the table. He also accepted that he smashed a glass vase.
The Father was then wrestled by Ms L (the Mother’s daughter) who intervened to protect the Mother. He left the house but searched for an implement, obtaining a pick with which he smashed Ms L’s car, his car and also the house.
The police attended and, after a period of negotiation, the Father was arrested. Although the Father asserted that he was immediately compliant when the police arrived, this was not the case.
The Father’s explanation was that he was provoked by the Mother’s nagging to do what he did and that if she had not nagged him, he would not have behaved in that manner. He also said that he thought the Mother was a ‘little to blame’. When asked how she could be to blame, he queried her intention when she collected him (from his night out) that evening. He accepted that he has subsequently told his current wife that it was not his fault that he behaved in that manner that evening. He says that he has now told her that it was in fact his fault. His acceptance of blame was on the basis that if he had not gone there drunk, it would not have happened.
This constituted, at best, an inadequate and minimal acceptance of responsibility.
In cross-examination, the Father said that the Mother had never seen him behave in such a manner before, so it was behaviour that was totally unexpected by her. He accepted that the Mother could never have imagined that he would behave in that manner. Initially, he said that she would have been a ‘bit scared’, but then accepted that she must have been absolutely terrified.
This incident should be understood to be a serious act of family violence. The Mother had every reason to be afraid and to mistrust the Father. The Father shows almost no insight into his actions, shifting the blame onto the Mother, giving no reason to think that he has understood or grappled with his capacity to behave in such an extreme and violent manner to a person that he is in an intimate relationship with.
Questions about his unreliability were given greater credence when questioned about this incident. Again, issues about his reliability commenced with matters that were not of substantive importance. He initially asserted that when he went out that evening (being the circumstance that is the precursor to the violent incident), he had expected to be purchasing alcohol. In his Affidavit, he asserted that he had not had to pay for ‘many’ drinks.[16] In his oral evidence, he amended that to him not purchasing any drinks.
[16] Father’s affidavit [17]
In the context of being questioned about an argument that subsequently occurred that evening over his expenditure of money, he then asserted that he had told the Mother before he went out that he was not going to spend any money on alcohol. This conflicted with his earlier evidence where he said it was his expectation that he would be purchasing the alcohol. He later said that he could not remember if, when he had gone out, he told the Mother he would not be spending money at the hotel. Again, as a matter of substance, the subject matter was not important. The variability of his evidence, however, pointed to unreliability on his part.
A third example of unreliability (in relation to the same incident) was the conflict between his affidavit where he asserted that he ‘walked to the roadside and waited for the police to arrive’[17] as opposed to the police report which described that he was seen to have a pick axe in his hands and was waving it about. The report indicated that he became more agitated upon seeing police and commenced yelling at police and swinging the axe.[18]
[17] Father’s affidavit [21]
[18] Page 347 tender bundle
August 2009
This incident involved two aspects of dispute between the parties, firstly on 22 August 2009, as to the Mother attending Ms L’s wedding with Y and X, a wedding to which the Father was not invited and, on 23 August 2009, as to Ms L bringing her clothes to the Mother to wash.
The Father discovered that the Mother was to attend Ms L’s wedding. He was angry about this attendance, and threatened to burn the house down. Under cross-examination the Mother asserted that she took this as a serious threat, although it was not reported to the police, despite there being an AVO in place. The threat itself did not appear to be in contest.
Later, on discovering that the Mother was going to wash Ms L’s clothes for her, he screamed at the Mother "You are not washing that little bitch's clothes in my washing machine."Ms L heard him screaming over the phone. She came to the home bringing the Mother’s two brothers with her.
The Mother further alleges that in this incident the Father held a knife to her neck while she was holding X and while she was speaking on the telephone to Ms L. Whatever was occurring between the Father and the Mother caused Ms L to have the Mother’s brothers attend the Mother’s home. However, despite the Mother asserting that she would have said something about the knife to Ms L, neither Ms L, nor the Mother is recorded as having mentioned a knife to the police, despite their attendance. The Mother asserted further that the police brushed her complaints off when they attended, but that an officer later attended to apologise, following the Mother’s complaint about their conduct.
Ms L, who is currently estranged from the Mother, was not called to give evidence.
While the Father, in his oral evidence said that he thought it was reasonable for the Mother to do Ms L’s washing, he objected strongly. He accepted that he cut the power cord for the washing machine to stop it happening. He was asked whether or not this was an example of him exercising his authority. He accepted that it was, then qualified the authority he was speaking about was the authority as to who could use the washing machine. He did not accept that this exemplified his general attitude to the relationship.
He accepted that it was entirely unreasonable for him to cut the cord and entirely unreasonable to tell the Mother to not wash the clothes. He explained that he was frustrated that Ms L kept bringing the washing over because it was too much to leave on the Mother.
The Father admits to being charged with a damage property offence to which he pleaded guilty.
I am satisfied that the Father behaved in a highly aggressive, controlling manner to the Mother in refusing to allow her to use the washing machine for Ms L, and in using a knife to cut the cord to the machine. I am not satisfied that he also held the knife to the Mother’s throat, in the absence of a record of either the Mother or Ms L mentioning it to the police.
The Mother was cross-examined about her willingness to engage in conflict and disagreement with the Father about attending the wedding and doing the washing, despite her assertions of his violent and controlling conduct, as evidencing a lack of fear in relation to the Father. It should be observed that engaging in conflict with an intimate partner does not necessarily negate that person being afraid of the intimate partner. It does not in this instance and, even if it did, the Father’s conduct in then cutting the cord reinforced the unpredictability of his violence as had been suggested by his conduct in August 2008.
Even absent the holding of the knife to the throat, the incident remains a strong and frightening incident of family violence, giving the Mother good reason to fear the Father’s conduct toward her, and toward the children.
This marked the point of the parties’ final separation.
The Mother accepted that there has been no incident of physical violence directed to her since this incident.
Father’s anger management
While the Father agrees that he was abusive of the Mother during the relationship (in reference to the above two incidents), he says that he was never an abusive person. He denied that he was capable of being abusive, although accepted that he had been in 2008.
The Father was asked what he could do to reassure the Mother that he would not react that way with the children. He responded that he does not get angry for no reason and he would not hurt the children.
He accepted that, when his “buttons” were pushed in 2008, he had become abusive. He then asserted that he was the “same person” as he had been in 2008, and that nothing had changed.
He also said that following the washing machine incident he had attended a course for a period of 6 weeks that gave him a technique for dealing with such situations. The technique involves going for a walk. Despite his assertions regarding his temperament, he said that there were many occasions when he found it necessary to employ this technique. The particular example he identified was where a conversation about the “footy” got out of hand and he needed to leave the room.
The lack of insight exhibited by the Father, the blaming of his responses on outside factors, his description of his use of his anger management technique, along with his extreme reactions in 2008 and 2009 give little comfort that the Father will not resort to such if his “buttons” are pushed, despite the absence of further violence to the Mother. This lack of comfort is reinforced by the unpredictable and incendiary nature of the 2008 and 2009 incidents.
Allegations regarding the Father and his step children
Allegations as to the Father’s resort to violence were not restricted to the Mother. The Father was alleged to have been violent toward his current wife’s two older sons.
Passing reference was made in the FaCS material at page 234-5 of the tender bundle to allegations that in 2013-2014 the Father threatened one of his step children with a machete, that he gave one of his step children a black eye, and that he behaved in a threatening manner to one of his step children.
This third allegation also appeared to feature in the police material at page 331 of the Tender Bundle. The police record indicates an argument, but that the step child and the Father both denied that any threats or violence were involved.
To the extent that they were questioned about these both the Father and his wife denied such occurrences.
The hearsay nature of the material is, in this instance, insufficient to prove the incidents in the face of the denial by the Father, corroborated by his wife.
Post separation contact between the children and the Father
The Mother asserts that shortly after separation the parties entered into an informal agreement which saw the children spending time with the Father approximately once every three weeks.
The Mother alleges that sometime in 2010 she suspended the Father's time with the children as, on attending to collect the children she found Y in a house alone screaming, X in the ‘man cave’ shed asleep and the Father and his friends smoking marijuana and drunk. The Father denies that this was the case. The parties subsequently undertook mediation and agreed to consent orders for the children spending time with the Father each second weekend and on some Fridays, with the time to be supervised by a children's contact centre. The Mother asserts that due to problems in Y's reaction to spending time with the Father, further mediation was necessitated and a further agreement was reached to continue the supervision.
After a few months, the Mother says that the Father started to see the children unsupervised together, with changeover happening at the contact centre. The Mother says that the parties signed an agreement in 2011 or 2012 for the Father to have each second weekend for daytime periods on a Saturday and Sunday, along with special occasions.
The Mother says that in 2013, the Father sought overnight visits which she did not agree to. She asserted that there was a change in the behaviour of the children, the children being resistant to going to their Father’s.
Following the return of Y and X from time with the Father on 30 March 2014, the Mother ceased the Father's time altogether on the basis that X had an injury to her chest that she attributed to the Father, and Y had bruises on his arm and asserted that his Father had caused those bruises.
Since that time, the Father has made applications to the Court for time with the children with orders being made on 15 July 2019. The orders provided for the parties to complete an intake process with the J Contact Centre at City C and then for X to spend supervised time with the Father for up to two hours a week. If Y expressed a willingness to spend time with the Father, he would spend supervised time with the Father at the same time as X.
The Father contacted the Children’s Contact Service on 15 July 2019 and made arrangements to attend an intake appointment on 9 August 2019. After following up with the service, the Father was told that visits would commence on 17 October 2019.
However, on 11 October the Service advised the Father’s wife, Ms K, that the supervised visit would not be taking place on 17 October 2019, because X had not completed her second orientation yet.
On 5 November 2019, the Father was told by his solicitor’s assistant, Ms M, that 'the J Contact Centre have finally gotten back to me - they have said they have decided they will not be allowing the visits to proceed.’
The Father called the contact centre to find out why this decision was made and was told that after X's first orientation there were some distressing things said and they believed because of her mental state visits should not commence. Similar advice was given to the Mother, who told the Court that she had been unable to get X to attend for the visits with the Father.
The Service then closed X’s file.
Post-separation allegations of abuse of the children
The bulk of the evidence in relation to allegations of abuse of the children by the Father post separation arises after the time with the Father came to an end. They are set out in the manner and order in which they arose.
As noted above, 30 March 2014 marked the last occasion when the Father spent time with the children face to face.
The Mother described that X was crying when being handed over by the Father following time with him, complaining that she had a sore chest. The Mother says that she observed a red mark that X said had been caused by the Father pushing her into her chair when she would not eat her vegetables. The Mother immediately confronted the Father about this, holding X’s hand as she did so, and preventing him from leaving the carpark. The Father denied that such an incident had occurred with X, attributing the mark to X coming into contact with his ring. As the Father left the carpark the Mother shouted after him that if he wanted to see the children she would see him in court.
Immediately after this, the Mother observed a mark on Y’s arm, that she described as a bruise caused by a thumb and finger. She questioned Y about this and he said that the Father had thrown him from the Father’s lap while the Father was playing a video game. The Mother made a report to the police and took Y for examination by a general practitioner the next day who made comments about the potential source and age of the bruise.[19]
[19] Exhibit M2 (Mother’s tender bundle), page 84
It should be observed that neither the general practitioner, nor the Mother, were demonstrated to have an expertise to allow them to identify the source of the bruise, nor the age of the bruise.
The Father was not told, at that stage, why the Mother had brought the time with the children to an end.
The Mother claims the children have made a number of other disclosures of abuse including sexual abuse about the Father since their time with him came to an end.
The first occurred soon after the time with the Father ceased and involved Y having told the Mother's mother, following watching a Bugs Bunny cartoon, that the Father had a gun and had told Y where the bullets were kept and how to load it.
The Mother alleges that a few weeks after this, X alleged that the Father had taken the children into the backyard, pointed the gun at them and told them to run. In oral evidence, the Mother explained that X's comments had come in the context of X overhearing the Mother making reports to New South Wales police about Y's claim in relation to the gun. New South Wales Police subsequently searched the Father's home and found no gun.[20]
[20] Cross-examination of the Mother, 30 June 2020
In March 2015, the children commenced counselling with Mr N at the P Service in City C. The Mother alleges that the children made serious disclosures to him in March 2015, including allegations of sexual abuse.[21]
[21] Mother’s affidavit [70]
No records of such disclosures to Mr N were produced in the proceedings, nor was he called in relation to the alleged disclosures. Accordingly, the evidence of the disclosures alleged to have been made to him came solely from the Mother’s assertions as to what she had been told by him, or had seen in his office.
The Mother alleges that within the first few weeks of counselling, Mr N told her “Y has told me that his dad had a big knife under the car seat. Y tried to break the window with it. He told me that his dad got angry and dragged him out of the car and belted him around the head."
The Mother also claims that, after this alleged disclosure, when she attended on Dr V with X, X described “Daddy took us to a place with lots of trees and put Y in the car and then drove around him."
The Mother alleges that after the first eight visits with Mr N, in mid-2015, X said to her while they were cuddled up in bed together “Dad put a dinner knife handle into my bottom" and “he put the knife to my vagina and said if I tell mummy or the police he will come and kill me and mummy." The Mother says she started to cry and that X said “don't worry mummy, daddy said I deserved it" and that X also said, “daddy got a stool and a rope and put the rope around my neck. The rope went to the roof and then daddy rocked the stool.” The Mother says that she reported these comments to Mr N when he was seen a few days later.[22] While she was speaking to Mr N, X was left in Mr N's office.
[22] Mother’s Affidavit [73]
On attending the office, the Mother says that she observed that X had drawn a picture on the whiteboard of a stick figure person hanging by a noose, written the word X next to the figure, drawn a picture of a car with a knife under the driver's seat and drawn three stick figures, writing X and Y next to it. She said that there was a picture of a big person called daddy holding a knife.[23]
[23] Mother’s Affidavit [74]
The Mother says that she reported these matters to X's school teacher and that the Joint Investigation Response Team (JIRT) became involved. The Mother tendered the FaCS records from 15 July 2015, which contained reference to the JIRT interview and investigation.
These constitute allegations of serious abuse of the children. However, as set out below, the evidence (or lack thereof) of the circumstances of the children saying these things to the Mother, inconsistencies, and the inherent unlikelihood of a number of the incidents, calls for both caution in accepting them and, ultimately, calls for the rejection of the claims.
The reason for caution in relation to the allegations becomes apparent when considering X’s report (set out above) about the gun. This was an example where the circumstances of the report were revealed on cross-examination of the Mother.
In assessing this allegation, it should firstly be recognised that contrary to X’s initial description of the Father producing a gun and telling the children to run, X later conceded to JIRT on 21 July 2015, that she had never seen the gun. Secondly, the circumstance of X raising the gun were exposed in cross-examination to involve the Mother calling the police about the Father having a gun within X’s hearing, suggestive of the possibility of X being influenced (perhaps unknowingly) by the Mother’s attitude to the Father. Thirdly, absent some further context, X’s claim as to the Father’s conduct is bizarre and inherently unlikely.
This gave reason to be sceptical in relation to claims about the Father reportedly emanating from X.
On the same issue, Y’s reported claim that the Father had exposed him to a firearm was absent context, other than that it had occurred with Y watching a cartoon and was reported to the maternal grandmother who made a report to the Mother. At best the Mother had a second hand report, devoid of what was said leading up to Y’s comments, if anything. The Mother’s mother was not called to give evidence. The subsequent police search which found no firearms undermines there being substance to Y’s claim.
Further, unlike X’s claim, Y’s involved no threat by the Father.
Together, these claims made by Y and X, which were undermined by, on Y’s part, the police search and, on X’s part by her concession that she had seen no gun, also point to caution in assessing other claims reportedly made by the children.
The acknowledgement by X that she had not seen a gun, contrary to her earlier claim also means that X’s potential unreliability requires consideration where other allegations are heavily reliant on her claims.
The next allegation raised against the Father appears in 2015.
The JIRT material[24] described the assertion by the Mother in 2015 that when X was five or six (that is, in approximately 2012 - 2013) she had said that “dad put his fingers in my vagina and dug his fingers in.” The Mother reported that X had been presented for examination with her General Practitioner and that scratches had been observed, including internally. The practitioner’s records were not provided and the Mother conceded under cross-examination that she had not told the doctor that X had said that the Father had put his fingers into her vagina. The Mother had accepted to JIRT that X may have scratched herself.
[24] Exhibit M2 (Mother’s Tender Bundle) page 91
The Mother’s affidavit material gave a very different complexion to this allegation. At [82] the Mother reported the issue as arising in 2010, when X was about four. She recounts the doctor as saying there were no physical signs of abuse although there were scratches around X’s vagina. In the affidavit there is no recounting of a claim by X that the Father had put his fingers in X’s vagina. Rather, the Mother suggested that one of the Father’s associates may have been responsible.
The Mother’s descriptions of these incidents is materially inconsistent.
This calls for caution in accepting reported claims of abuse recounted by the Mother.
X was interviewed by JIRT on 21 July 2015 and made disclosures of harm at the hands of the Father that were (reasonably) described by the investigator as “bizarre.” These included the allegation that Y had been locked in a car and attempted to stab his way out of the car with a knife, that the Father had let Y out and then attempted to run over him, and that she had been made to stand on a stool with a rope around her neck.
In relation to alleged sexual abuse, X alleged to JIRT that the Father had put a serrated knife into her anus, but was unable to “particularise” the incident, and was described as giving contradictory accounts of where it had occurred. She is recorded as jumping between allegations without context or sequence, and as having commented “I don’t know who told me, mum or Y” at one point, which was taken by the JIRT officer as “indicating that some of her disclosures were not her memory of events, rather someone else’s.”
It should be noted that the allegation made to JIRT in respect of the knife was significantly inconsistent with what the Mother reported that she had been told by X, the Mother saying that she was told that the Father had inserted a knife handle into X’s vagina, X claiming to JIRT that a serrated knife was inserted into her anus.
Even accepting that people can behave in a bizarre manner, the nature of the claims calls for some caution before accepting them at face value.
In assessing this, as with each of the allegations sourced from X, caution is indicated because of X’s potential unreliability.
The fundamental nature of the inconsistency between what was reportedly said to the Mother and the police by X, coupled with the bizarre nature of the claims, means that the claims in relation to the knives being inserted into X should be rejected.
Similarly, the claims about Y and the car have a bizarre quality that means that they should not be accepted. The notion of Y finding a knife, attempting to stab his way out of the car, and having the Father drive either around him or at him in the car is inherently unlikely.
Similarly, X’s description of the Father putting a rope around her neck, having her stand on a stool and rocking the stool is also inherently unlikely, to a degree where, when seen in the light of other unreliable claims about the Father, it too should be rejected.
These issues bear upon the assessment of the children’s reports in March 2014 that caused the Mother to end the children’s time with the Father. The assertions made by the children about the red mark and bruises, even if accurately reported, are neither sufficient to cause findings to be made that the Father was abusive on that occasion, or that he poses an unacceptable risk by virtue of those allegations.
Further, when considered in the light of the Father’s denials of abuse (even taking into account general hesitations about his credibility), it should be concluded that the Father has neither sexually nor physically abused the children.
In summary, the allegations made after the Father ceased spending time with the children in March 2014 are insufficient to support either a conclusion that the alleged abuses occurred, or that there is an unacceptable risk of such occurring in the future. The evidence supports the conclusion that the Father did not abuse the children.
The children’s characteristics
X and Y are vulnerable children. X has been diagnosed with autism spectrum disorder, ADHD, precocious puberty and has intellectual deficits. Y has been diagnosed with Oppositional Defiance Disorder and PTSD. Although, as set out below, the Expert observed that these diagnoses were not set in stone, they point to X and Y having characteristics that will require much in terms of parenting capacity in order to both support them and aid them in their development.
Both children are significantly overweight. The Mother said that X had put on 20 kgs in the 5 months prior to the Mother filing her affidavit.
Despite the ongoing issues for both of the children with weight gain, the Mother stopped appointments for them with their dietitian in 2018.[25] Although the Mother asserted at trial that Y was enrolled in football (as part of her approach to deal with his weight), it emerged from her further evidence that this had not yet occurred, but was merely planned.
[25] Expert report dated 8 July 2019 [27]
Both of the children are reported by the Mother to be medicated. X is prescribed antidepressant and ADHD medication, along with Melatonin to assist her to sleep. Y has been prescribed two forms of ADHD medication.
The vulnerability of the children was illustrated most starkly by X’s self-harming behaviour.
The Mother reported that X’s self-harming behaviour started in 2016 (about two years after she had ceased to spend time with the Father), although medical records show that the behaviour started in 2017.[26] X cut herself with a razor and was copied by Y. X was also reported to be biting herself and drawing blood. The Mother says that X would stick knitting pins into the beds of her finger nails.
[26]Tender Bundle page 375
The Mother reported further self-harming following X meeting with the ICL following interim orders being made for her to have time with the Father in July 2019. The Mother identified four occasions:
102. On the first occasion following the meeting with the ICL, she cut herself with a razor blade. She made six cuts to her shin bone, three on each legs.
103. On the second occasion, which occurred basically straight after the previous attempt, X took some scissors from the kitchen draw at home to make further cuts on her shin bones… I just cleaned them with disinfectant and bandaged X up.
104. On the third occasion, which took place approximately 2-3 weeks ago, X took the cover off a mini plastic fan and used the fan blade to make cuts on her leg. X did this after an incident occurred at her school…She sent naked photographs of herself to some random man on Instagram…
105. On the fourth occasion, we were at home and X went up to Y and told him that she had swallowed 25 Maxolon tablets and 15 Claritin tablets. X did this after the incident where the Police took X's mobile phone… The Q Hospital called an ambulance and the Police also came. When she was asked by the medics and the Police, she denied taking the pills.... They kept her overnight and monitored her.
X’s vulnerability is also emphasised in the recent police intervention in relation to X posting nude pictures of herself as set out at [104] of the Mother’s Affidavit. The Mother reported that X had sent naked pictures of herself to a “random man on Instagram” and that the police had attended and were investigating. Page 357 of the Tender Bundle records the police analysis of the interactions between X and a person presenting as a 12 year old male. That person had sent X coercive and threatening messages demanding X send naked pictures and videos or he would kill himself, or that he would come to her house with a knife he had recently acquired. The police identified that X had sent images and videos that were apparently sexually explicit, although the police had not sighted such.
In the context of not having spent time with the children since 2014, the Father was cross-examined as to how he might deal with these particular characteristics and what steps he had taken to equip himself.
The Father agreed that X has seen a number of different practitioners, including a paediatrician. He had seen that she had been diagnosed with autism spectrum disorder. He said that he had not spoken to anyone about what this meant, although he agreed that it was important to understand and to see what treatment was necessary for X. He was unable to explain why he had made no inquiries about it. When asked as to his understanding as to what it was, he said that he thought that he understood it and that it would mean that X was hyperactive. He said “I think that’s it, isn’t it?”
The Father was asked about how he might approach Y having Oppositional Defiant Disorder. It was suggested to him that Y could be strongly resistant. In terms of what he could do to help Y, he said that he would he would try to let Y know that it was not his fault and try to help him. He said he would source help from his wife.
The Father was asked how he deals with discipline for his other children, R born … 2010 and S born … 2012, and the youngest child of Ms K’s prior relationship, T born … 2002. His description indicated that they were reasonably compliant and that he was able to discipline them by engaging in activities that he wanted them to undertake – to help. He agreed that he has not yet had to deal with these children going through a difficult time. He accepted that he would have to seek ‘a lot of advice’, noting that he has been violent in response to challenges in the past. While he accepted that it would be useful to obtain that advice before having the children live with him, he has not done so other than via his wife.
The Father was asked whether he knew the identity of X’s general practitioners. He initially said that he did. He accepted that he had not contacted them within the last six months. He explained that this is because he did not know what was going on and then he asserted that he does not know who X attends upon.
The Father has not taken the step of asking his lawyers to assist him in identifying who X’s doctors were.
The Mother reports that the children are of Aboriginal heritage. The Father was questioned about the assertion that the children have Aboriginal heritage. He said that he found it hard to believe that was the case. He did not know what tribe or mob the children are connected to, but said that he would be able to access community activities in their home town of City C.
The Single Expert
The Single Expert (the Expert), a forensic and clinical psychologist with specific expertise in relation to children and families, and in working with adults and young people who have either committed sexual offences, or been impacted by sexual abuse, prepared three reports in this matter, on 2 May 2017, 19 December 2017 and 8 July 2019. She is ideally qualified by her combination of training and experience for dealing with the issues in this case, particularly those relating to the allegations of sexual abuse.
The Expert observed that the children are highly vulnerable. She noted that each is subject to a number of diagnoses. X has been diagnosed as being on the autism spectrum, and as suffering from ADHD. Y has been diagnosed with Oppositional Defiance Disorder and PTSD. She noted that Y had been diagnosed with post-traumatic stress disorder in 2018, but without having access to the information currently the subject of these proceedings.[27]
[27] Expert report dated 8 July 2019 [26]
The Expert did not regard these diagnoses as being “cast in stone” at present, but noted that if X is on the autism spectrum, she requires a stability that is not currently available in the Mother’s care.
The Mother reported to the Expert that X’s behaviour in the home is “atrocious” including destroying objects if she does not get her way. She reported that X is gaining weight, such that the Mother does not keep food in the house, to deal with X’s difficulty moderating her food intake.[28]
[28] Expert report dated 8 July 2019 [23]
The Mother reported to the Expert that Y shares a bed with his grandmother because he is “petrified that (the Father) is going to come and get him.” No evidence was led in support of this, or to explain why Y might be petrified of this.[29]
[29] Expert report dated 8 July 2019 [25]
The Mother told the Expert that it was not unusual for X and Y to physically fight with each other, including “full on punching”. The Expert thought that this non-normative behaviour (seemingly accepted by the Mother as a normal aspect of sibling relationships) indicating that the Mother is not setting appropriate boundaries for the children.[30]
[30] Expert report dated 8 July 2019 [29]
The Expert noted that the Mother’s view of X appeared to have become also wholly negative. The school had noted this negative approach to X on X’s receiving a “really lovely report,” that the Mother spent some time trying to identify the negative aspects of it. The Expert observed that:
'However, she describes X negatively to the school, despite the school's positive experience of X. As such, it appears that she is describing X in a way that serves her own needs, for example, through obtaining support or sympathy from the school compared to not having to engage meaningfully in X's therapy. This suggests that she is prioritising her own needs over X's needs.”
She also noted that although the more difficult relationship was between the Mother and X at present, that as Y transitions into adolescence there is a likelihood that a more conflictual relationship will emerge between the Mother and Y, and that the Mother will develop a more negative view of him.
The Expert identified that the children face long-term risks arising from inadequate parenting capacity. She considered that the Mother is highly deficient in her parenting capacity.
Although the Father has not spent time with the children for a significant period, and offered little insight into the management of the children’s conditions, the Expert considered that he does not have the same vulnerabilities as the Mother, either cognitively, nor by virtue of the Mother’s difficult background. She considered that the strongest attribute of the Father is his wife, who she thought exhibited insight, had experience in difficult parenting issues and has undertaken parenting programs herself.
The Mother confirmed to the Expert that X had recently contacted the Father by telephone. She claimed that this had occurred in the context of a dispute about X taking her medication, with X contacting her Father and alleging that the Mother and maternal grandmother were trying to poison her. The Mother alleged that consequently the police attended.
The Mother further said that Y “abused” X for contacting the Father and said that he would stab the Father if he attended at the home.
The Father’s wife reported to the Expert that X had said to her in a telephone call that she was ready to live with her Father, that she was cutting herself “because she felt unloved” and alleged that the Mother had said that she “hates” the Father.
The Expert spoke to each of the children about the prospect of spending time with the Father. The Expert described X as appearing “surprised” at the idea that the Father wanted to spend time with her. When X was offered time with the Father during the interview process and then said that she did not want to see him, saying “if I do, mum’ll go off her head. I’m gonna have to say no”. X also said “if Mum didn’t know, I would, but I don’t want to because I’m scared (of the mother’s response).” X also said that she was scared that the Expert would tell the Mother that X wanted to see her Father.
In her interview for the 2017 report, X told the Expert that “Mum kept telling me to ‘tell her what he did, tell her’. Talk about my Father, or whoever he is, and she kept on saying it every single day.”[31] On that occasion, X told the Expert that if she saw the Father she would “fight him”, even though she could not recall any “mean” behaviour by the Father towards the Mother, and explained that she would “fight him” because the Father “was being mean to mum.” She had said that she would be “angry” if she had to see her Father.
[31] Expert report dated 2 May 2017 [104]
Y spoke positively about the Mother’s home and said that the Father was “very mean” but was unable to identify what the Father had done. He told the Expert that he does not want to see the Father, that he does not miss him or wonder about him. Y did not believe that the Father either missed him or would like to see him. Y said that there was nothing that the Expert or anyone else could do to make him feel safe spending time with the Father. Y further said that he would refuse to see his Father even if the Court said that he had to.
Similarly, in the Expert’s 2017 report, she identified that Y did not wish to spend time with the Father, and that if he could say something to his Father would be that he “hates” him.
The Expert identified a risk that the Mother had exerted influence over the children in the expression of their views.
The Mother reported to the Expert engagement between X and various counsellors and psychologists.
Previously, in her report of 2 May 2017, the Expert had advised that the children undertake therapeutic intervention by a counsellor, conditioned upon the therapist having her previous report:
162. Should the Honourable Court be unable to make a conclusive finding in relation to the allegations, but hold sufficient doubt about their reliability: a) The children should be referred to counselling with an appropriately qualified clinician to explore the issues in a therapeutic setting. The clinician should be provided a copy of this report. The purpose of this counselling should be to support the children to work towards some contact with their father, but with awareness that such contact (a) may not be appropriate and/or (b) may not be achievable
Although the children undertook therapy subsequent to this recommendation, the therapist approached their treatment on the basis that they had suffered the abuse and trauma as alleged by the Mother. While she noted that such an approach is normal in relation to allegations of trauma, the Expert spoke to the problems in such an approach for the children.
The Expert identified the problems that arise with such an approach in the event that the abuse has not taken place. The first is the reinforcing of the false claim in the children, where belief by the children that they have been subjected to the harm risks their psychological functioning, their views of relationships, in particular in relation to trust and connection, and the idea that it is appropriate not to regulate themselves. Related to this is a learned helplessness.
The Expert also identified other negative impacts, being an approach to managing the children that is “hands off” which she asserted would not work to improve the children’s positions whether or not they were subjected to the alleged abuse. Further, it led to a position where the Mother regarded herself as not responsible for the children’s behaviour, leading in turn to a failure to deal with their issues.
The Expert noted that, even if the children have not been abused as alleged, the Mother’s approach to the children embeds a narrative of trauma in the children.
In her most recent report, the Expert differentiated between outcomes for the children dependent on whether the Father posed an unacceptable risk or, if not, dependent upon whether the Mother was genuinely mistaken in her assertions of sexual and other abuse, or whether the Mother was maliciously concocting such allegations.
During the trial, the Expert modified her position in relation to these differing factual conclusions. She observed that, “broadly speaking” there was no significant difference in either the prognosis or impact upon the children between the position where the Mother genuinely, but wrongly believes that the children have been exposed to the abuse that she alleges, and the position where she has knowingly concocted the allegations.
Further, she considered that in neither case were there good prospects for the Mother to be able to moderate her position, either in the case of an entrenched but mistaken belief, or an entrenched concoction.
Accepting this assessment means that there is no utility, in determining the best interests of the children, to seek to discern between these two potentialities.
In the face of the potential risks, either posed by the Father having engaged in abuse of the children, or posed by deficiencies in parenting capacity of each of the parents, the Expert offered differential resolutions.
In the event that the Father has engaged in abuse, including sexual abuse, she considered that the children should still spend some time with him. She noted that X has indicated that she would like to have a relationship with him. She was concerned that under those circumstances, and given that X has already initiated contact with him, it was important to provide a safe place for future contact to occur, lest it otherwise occur in an unsafe manner.
In the event that the Father has not engaged in such behaviour, then the Expert considered that there should be a change in who the children live with, and that such should occur promptly and with therapeutic support, for the Father, the Mother and the children. She considered that support for the children should occur promptly on change in who the children live with.
The Expert considered that such change is necessitated by the deficiencies in the Mother’s parenting capacities. These deficiencies were not limited to the Mother either genuinely but mistakenly believing the children were abused by the Father, or the Mother concocting allegations of abuse, but extended more generally to the Mother’s capacity to parent these two vulnerable children.
In making this recommendation for change in who the children live with, the Expert accepted that there would be an immediate spike in the risk to the children, particularly in the context of X’s recent self-harming. The immediate increase in risk would include an increased risk of self-harm and dysregulation on X’s part. However, the Expert also observed that self-harm and dysregulation remain an ongoing risk while X remains in the Mother’s care.
The Expert considered that the change in living arrangements is preferable, in the expectation that the increased risk would be short term and would abate as the children live with the Father over the long term. By contrast, if the children remain living with the Mother, the risks posed by her parenting would increase over time.
The Expert further recommended that, if a change in who the children live with was to occur, that the Mother engage in therapy, there be a period of supervision or, if the Mother is unable to moderate her interactions with the children, that there be a moratorium on her spending time with the children for a period of up to three months. Such a moratorium was to enable the children and the parties to settle into the new arrangement. It was also to facilitate change for the Mother, particularly in her attitude to the Father and the risk she asserts he poses to the children. The Expert acknowledged that such change may not occur.
During this moratorium, provided the Mother was able to self-manage her response to such circumstances, the Expert recommended that there be telephone contact with the children. Following the moratorium, the Expert thought, dependent upon how the parties and the children settled into the new arrangements, that ideally the Mother would spend weekend time with the children.
The Expert recommended a number of practitioners who could provide therapeutic support for the parents and the children. The Mother is currently attending on a Mr U for support and it was recommended that this continue. The Expert recommended a Ms D from City W for therapy for the children and the Father.
With the assistance and agreement of the parties, orders were made for therapy to commence immediately and pending judgment, on the basis that such therapy for the children was indicated regardless of whether there is a change in who the children are to live with.
On indication to the Expert that orders may be made on an interim rather than final basis if a change in who the children were to live with should be ordered, the Expert indicated that she was able to prepare a further report on the matter following such a change.
Discussion
As identified above in setting out the applicable principles for determining this case, the best interests of X and Y are the paramount consideration. What is in their best interests is to be determined by reference to the considerations set out at s 60CC of the Act.
The prominent or decisive s 60CC considerations in this case relate to the following matters:
a)the history of family violence perpetrated by the Father on the Mother;
b)allegations against the Father of abuse of the children, combined with the Mother’s response to such allegations, and the effects of such upon the children;
c)the children’s particular vulnerabilities and the capacity of the parents, and those who support them to emotionally and physically care for the children;
d)the views of the children;
e)the children’s right to enjoy their Aboriginal culture;
f)the impact upon the children of a change in their circumstances, particularly a change in which parent they live with; and
g)the desirability of making orders less likely to lead to further proceedings.
It may be observed that while each of these matters may touch upon a number of the s 60CC considerations, those that are most prominent are the primary considerations, coupled with the additional considerations as they appear at s 60CC(3)(a), (b), (d), (f), (g), (h), (j) and (l). This does not disregard that other considerations may be touched upon, such as, for example, s 60CC(3)(e) in dealing with the practical difficulties of the parent spending time with the children, but rather recognises that those that are determinative of the dispute between the parties are those identified above.
In considering those matters, it should be readily recognised that the Father has, on occasion, exhibited strong violence toward or in the presence of the Mother, the most notable occasions being in June and August 2009. The violence in 2009 was associated with an intent to exercise control in relation to the Mother. Although the Mother alleges that there were more general attempts to exercise control by the Father, these were not established by her. The last physical violence by the Father in relation to the Mother was in 2009.
It has not been established that, since this time, he has behaved in an adverse manner toward the Mother.
However, even without a repetition of such since 2009, the unpredictable and severe nature of the incidents in 2009 points to an ongoing latent risk presented by the Father of engaging in family violence, potentially in the presence of or involving the children.
Consideration of the allegations of sexual and physical abuse of the children against the Father present some complexity.
The concessions by the Mother removed some force from the factual matters alleged by the Mother. That force was further eroded in that the Mother, in accordance with the concessions, did not cross-examine the Father on the basis that he had sexually and physically abused the children, or that he presented an unacceptable risk. These presented as strong reasons for the Court not to depart from the concessions made by the Mother, despite her adherence to the underlying facts.
In any event, as outlined above, the evidence did not rise to a standard that permitted the factual allegations made by the Mother to be established, or an unacceptable risk on the part of the Father to be established.
Simply stated, it has neither been established that the Father sexually abused, or physically abused the children or that he is an unacceptable risk of such to the children. Rather, it should be accepted that he did not engage in the alleged behaviour.
That, however, does not end the significance of the Mother’s adherence to her underlying factual claims. The Mother’s adherence to those claims, in the face of her concession, and under circumstances where they have not been made out, illustrates how firmly anchored the Mother is to those claims.
It should also be noted that the Mother has not complied with orders for the children spend time with the Father for a significant period. This is despite orders being in place, and the matter being re-litigated on an interim basis in 2019.
As well as identifying that while the children live with the Mother there is little scope for meaningful relationship with the Father, this speaks to one of the other risks that was identified during the proceedings. That is a risk to the children occasioned by the Mother’s adherence to her claims of abuse.
Counsel for the Father argued that this was a risk of psychological harm from being subjected to or exposed to abuse or neglect. The definition contained at s 4 of the Family Law Act sets out that “abuse” means:
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
“Neglect” receives no corresponding definition.
It should be observed that (c) does not import a subjective notion of culpability. It requires no intention. It is not reliant on recklessness. It is based on a result, being “causing the child to suffer serious psychological harm.” The manner of causing serious psychological harm is an open category that includes but is not limited to subjecting or exposing a child to family violence.
The Mother’s adherence, in the face of her concession, to the notion that the Father has sexually and otherwise abused the children, and remains a risk to the children, carries with it risks identified by the expert to include embedding within the children a (false) narrative of trauma, the (false) belief that they have been abused, risking their psychological functioning, and their future relationships. In terms of their general functioning, the risk is also to their self-regulation, along with helplessness.
These should be understood to constitute “serious psychological harm” as they impact on the psychological functioning of the children in a manner that is potentially long-lasting, as well as impacting broadly upon their functioning.
Hence, although the Mother’s adherence to her allegations about the Father did not result in a finding of him constituting an unacceptable risk of abuse of the children, it points to the Mother as a risk of causing the children to suffer serious psychological harm.
Dovetailing with this issue is the issue relating to the children’s particular vulnerabilities. The particular needs of the children, when seen in the context of the psychological risk, emphasise the need to consider the nature of the relationships between the children and each of the parents, along with the parenting capacity of each of the parents.
As the Father has not spent time with the children since 2014 it may be readily concluded, particularly in the light of the children’s refusal to engage with him during the assessment process with the Expert, that there is little to no current relationship between them. However, X’s attempts to, and contact with the Father over the telephone soften this conclusion in relation to X.
This limited relationship needs to be viewed in the context of the evidence more generally relating to the Father’s parenting capacity.
The Father demonstrated very little understanding of the particular characteristics and needs of X and Y. He has made very few if any attempts to engage with their schools or extra curricular activities. He has not attended a parent teacher night since 2014 despite knowing the schools that the children attended. He has not attended any school sporting events with the children. Admittedly, this has occurred in a context where the Mother holds the relevant information about the children, has not shared it with him, and any attempts at contacting her directly would seem to be fraught.
The Father has taken no apparent steps to understand the diagnoses of autism spectrum disorder for X and Oppositional Defiant Disorder for Y. He has displayed only the vaguest ideas about what he might do to find out about these characteristics. On his evidence, he has not been confronted with any similar issues with the care of his other children. Even though he accepts that he would need advice, he has not taken any steps to develop any understanding.
While the Father’s limited capacity is ameliorated by his wife, these matters point away from the resolution pursued by him, being a change for the children to live with him rather than the Mother, as does the latent risk he poses in relation to exposure to family violence.
However, the risk of serious psychological harm posed by the Mother by virtue of her adherence to the abuse allegations against the Father is coupled with other serious deficiencies in her parenting capacity. This is despite the Mother having been the primary carer for both children throughout their lives. While she has been the primary carer, the relationship between herself and X is difficult and appears to be characterised by negativity on the part of the Mother towards X. Their relationship appears to be highly conflictual. Although the Mother’s relationship with Y does not present for such features of the moment, the Expert’s evidence points to the likelihood that such difficulties will emerge as Y enters into adolescence. That is, the nature of the relationship between the Mother and the children, in spite of her being the primary carer, has significant limitations.
Those significant limitations, when coupled with the risk of psychological harm, erode the benefits of meaningful relationship with the Mother.
Further, the Mother’s inherent limitations were assessed by the Expert as greater than those faced by the Father, particularly given that he has the support of his current wife. The Expert noted a hands-off approach by the Mother towards the children, which she said was not in the children’s interests. In the Expert’s view, the Mother’s blaming of the children’s issues upon being subjected to trauma meant that she was not providing the children with adequate support.
It should be recognised that the Mother, in the context of the violent end to the relationship, and in the further context of raising children with strong vulnerabilities, has faced a very difficult task. It is not a task that has as yet been faced by the Father. However, in the face of that difficult task, the Mother has been unable to provide sufficient support for the children. The Expert’s conclusion in relation to the Mother’s capacity to care for the children was that the children’s position will continue to worsen if they remain in her care.
The Expert noted views expressed by each of the children. Y is opposed to spending time with his Father, let alone living with his Father. It may be expected that this view may flow (in part) from what has been an undermined relationship between Y and the Father.
While X was also opposed to spending time with her Father, her views may be seen as being rather more ambivalent, as reflected in her attempts to contact him by telephone. In assessing the weight of these views, the Expert recognised that although X is 13 years old, she is suffering from developmental limitations.
While some weight should be accorded their views, ultimately other considerations are of greater weight.
The Mother has given uncontradicted evidence that the children are Aboriginal. The evidence, however, barely touched upon the personal significance of this for either Y or X. The evidence did not establish the nature of the links that Y or X might have with the Aboriginal community. In relation to this aspect, neither the Father nor the Mother led evidence that indicated that they were capable of enabling Y or X to enjoy their culture, or to do so with other people who share that culture. Accordingly, it is unclear, whatever orders are made, as to what impact the orders will have on the right to enjoy their culture.
The consideration relating to the likely effect of changes in the children’s circumstances is of considerable significance. On the Father’s case, the children would move to live with him, despite limitations in his parenting capacity, very limited relationship and anticipated resistance by the children. The Expert assessed that this would involve a sharp rise in risk, including risk of self-harm to X. It must be assumed that not only will X and Y find such a change very difficult, but it is also likely to be difficult for the Father and his wife. Perhaps ameliorating this difficulty is the introduction of Y and X to the therapist in City W, such that they may have therapeutic support on moving to live with the Father.
A move to live with the Father will allow the children to have a meaningful relationship with him, with corresponding benefits in terms of the improved parenting available to them. There is also no indication that the Father will fail to comply with orders for the children to spend time with the Mother, increasing the prospect that the children will be able to reap what benefits of meaningful relationship may be available with her.
Despite the difficulties which will flow from a change in who the children live with, the best interests of both Y and X call for such a change. While each of the parents poses a risk to Y and X, the assessment of the Expert as to the levels of those risks and how the risks will change over time should be accepted. The children will face short term heightened risk in a change to live with their Father. However, should they continue to live with their Mother, they face an ever increasing risk, being a risk of serious psychological harm posed by the inadequacy of the Mother’s parenting capacity.
As against that, the Expert assessed that, should they live with their Father, the risks will abate over time.
Accordingly, orders should be made for Y and X to live with the Father.
Such a move should, as recommended by the Expert, be accompanied by therapeutic support and orders will be made requiring such.
Such a move also has impact upon the consideration of making orders less likely to leave the institution of further proceedings. Although the Mother advocated as a fallback position that there should be a delay of a number of months to see if there was an improvement in her parenting capacity, such as to mean that the children should remain living with her, there is little reason to suppose that such a course of action would be fruitful.
The move of the children to live with the Father also supports orders that the Father exercise sole parental responsibility, in accordance with the proposal by the ICL, which provides for the Mother to be involved in major decisions. The presumption in favour of equally shared parental responsibility is not applicable in this case, and, given the vast gulf between these parties it cannot be considered to be in the children’s best interests to require long term decisions about them to be determined in a cooperative manner between the parties.
There remains a vexed question as to the orders that should be made for the contact that the children will have with their Mother. The Expert sensibly proposed that there be a supervised period, but if the Mother is unable to regulate her responses to the children, that a moratorium should be in place, should there be a change in who the children live with.
The Expert pointed to the necessity for the Mother to receive therapeutic support to improve the way in which she deals with the children. However, it is difficult to predict whether the Mother will be able to make appropriate improvements to support time with the children.
The question then arises as to whether it is appropriate to adjourn the proceedings insofar as they relate to the arrangements for the Mother to spend time with the children. Such an approach was opposed by both the Father and ICL. It is likely to incur a heavy burden upon the litigants, including in terms of ongoing uncertainty. The difficulty in funding such a course of action was also identified by the Father.
On the other hand, even if final orders are made that set out arrangements for the Mother to spend time with the children, it may come to pass that they are poorly adapted to that purpose and further litigation may then become necessary.
On balance, it is better to have an arrangement that predicts, as well as it can, the appropriate arrangements for the children on a final basis, with the risk that litigation may ensue from such an approach, rather than to guarantee further litigation by adjourning those aspects for further interim consideration.
Although the ICL and Father pursued a moratorium for a period of three months, the Expert identified a moratorium as an option in the event that the Mother is unable to regulate the responses to the children in the context of supervised time. The Expert saw that a moratorium should be in place for no longer than three months.
Although a moratorium may give the children and Father a more straightforward time in adjusting to the new arrangement, it would come at the expense of a sudden and extended disruption of all time with the Mother who has been the primary carer from birth. Despite the difficulties in the relationship with X, and the Mother’s limitations, the views expressed by the children indicated that they wish to be with their Mother. Although a change in residence cuts across those views, a moratorium does so in a much more severe fashion.
Accordingly, orders will be made for the children to live with the Father and, for a period of three months, have regular supervised time with the Mother, transitioning to weekend time at the end of this period. Supervision provides an appropriately protective framework for this to occur, lessening the prospect of an adverse impact upon them occasioned by the Mother failing to regulate her responses to them.
Although the Father and the ICL sought a slower transition to weekend time, it is unclear what the benefits of such might be in this case. It is not necessitated by an unfamiliarity on the part of the children with the Mother. Rather, the issue is how the Mother responds to the children (and they to her), which is not a matter necessarily dealt with by a slower transition to weekend time.
This transition to weekend time gives the children a greater opportunity to enjoy benefits of meaningful relationship with both parents, and also more closely aligns with their expressed views.
Given the difficult issues in this case and the difficulties between the parties, it is appropriate that supervision and the initial handovers be facilitated through a contact centre.
I certify that the preceding two-hundred and forty-five (245) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 24 July 2020.
Associate:
Date: 24 July 2020
Annexure 1
Orders sought by the Applicant Father[32]
[32] Case Summary document filed 18 May 2020
That the children X born … 2007 and Y born … 2008 (‘the Children’) live with the Father.
That the Father have sole parental responsibility for the Children.
That the Children spend time with the Mother as follows:-
a.Each alternate weekend from after school Friday to 5.00pm Sunday;
b.Each Wednesday from after school to the commencement of school on Thursday;
c.For one week in each of the Term 1, 2 and 3 school holiday periods, commencing at 9.00am on the Monday of the first week of the school holidays in odd years and commencing at 9.00am on the Monday of the second week of the school holidays in even years;
d.In the Christmas school holiday period:-
i. From 3.00pm Christmas Day to 3.00pm Boxing Day in odd years and from 3.00pm Christmas Eve to 3.00pm Christmas Day in even years;
ii. From 3.00pm on 27 December to 3.00pm on 3 January; and
iii. From 5.00pm on the third Friday of January to 5.00pm on the Sunday immediately following.
e.From 10.00am to 2.00pm on the Children’s birthdays in the event they fall on a weekend or public holiday;
f.From 9.00am to 5.00pm on Mother’s Day (being the first Sunday in September);
g.Or as otherwise agreed between the parties.
That the Children spend time with the Father as follows:-
a.For the balance of the school holidays (including the Christmas school holiday period) so that the Mother’s time with the Children pursuant to 3.a. and b. is suspended during the NSW gazetted school holiday periods.
b.From 5.00pm Easter Thursday to 5.00pm Easter Saturday in even years and from 5.00pm Easter Saturday to 5.00pm Easter Monday in odd years.
c.From 2.00pm to 7.00pm on the Children’s birthdays in the event they fall on a weekend or public holiday;
d.From 9.00am to 5.00pm on Father’s Day (being the second Sunday in May);
e.Or as otherwise agreed between the parties.
That the Children communicate with the Mother by telephone each Tuesday with the Mother to assist the children to initiate the telephone call between 5.00pm and 5.15pm and to provide the Children with privacy during the phone call.
That all changeovers that are to take place at the conclusion or commencement of school take place at the Children’s school and otherwise at McDonalds, Suburb Z.
That each parent keep the other informed of the Children’s health and any health issues as soon as practicable.
That both parties be permitted to receive school notices, information, newsletters, school reports, school photographs and to attend all school activities or functions that parents are usually invited to attend.
That neither party denigrate the other party or the other party’s family in the presence of or hearing of either Child.
Orders Sought by the Respondent Mother[33]
[33] Minute of Orders Sought by the Respondent Mother Exhibit M4
All previous Orders be discharged.
The mother is to have sole parental responsibility for the children X, born … 2007 and Y, born … 2007, (“the children”).
Within 14 days of the date of these orders the parties do all things necessary to arrange for the children commence therapeutic counselling with a registered psychologist ('the psychologist') for the purpose of re-establishing their relationship with and spending time with their father.
The psychologist be as agreed between the parties or failing agreement, as recommended by the independent children’s lawyer.
The Mother will ensure that the children attend all appointments as scheduled by the psychologist.
Each parent will comply with any recommendations of the psychologist including their own participation in the children’s therapeutic counselling and any recommendations for their own therapeutic counselling.
The cost of the children's attendances with the psychologist be paid for by the Father.
A copy of these orders, a copy of the Single Expert report prepared by Ms H dated 3 May 2017 and a copy of the updated report of Ms H dated 8 July 2019 be provided to the psychologist by the Independent Children's Lawyer.
The children will initially spend time with their father as part of the therapeutic process under the direction of the psychologist.
Upon the psychologist advising the parties it is appropriate, and unless the psychologist recommends otherwise, the children will spend time with their father as follows:
a)For a period of three months, each fortnight for a period of one hour supervised at the J Contact Centre;
b)After conclusion of the period of three months under order 10(a), for a period of a further three months, each week for a period of two hours supervised at the J Contact Centre;
c)At the conclusion of the three month period under order 10(b), for a period of a further three months, each alternate Saturday for six hours with handover to occur at the J Contact Centre.
d)At the conclusion of the three month period under order 10(c) for a period of a further three months, each alternate weekend from 10 am Saturday until 4 pm Sunday with handover to occur as agreed between the parties and failing agreement at ??????.
e)At the conclusion of the three month period under order 10(d) for a period of a further three months, each alternate weekend from 10 am Saturday until 4 pm Sunday, and from after school Thursday until commencement of school Friday each alternate week, with handover to occur as agreed between the parties and failing agreement at ??????.
f)At the conclusion of the three month period under order 9(e) and thereafter, each alternate weekend from after school Friday until commencement of school Monday (or Tuesday if the Monday is a public holiday) and from after school Thursday until commencement of school Friday each alternate week.
From commencement of order 10(f) and thereafter during school holiday periods the children spend time with their father for half of each school holiday period as agreed and failing agreement:
a)During the holidays that fall at the end of terms 1, 2 and 3 from for the first half in even numbered years and the second half in odd numbered years:
b)During the school holiday that falls at the end of term 4 on a week about basis commencing with the first week in even numbered years and the second week in odd numbered years.
For the purpose of order 11:
a)The first half of the holidays at the end of terms 1, 2 and 3 is deemed to commence at the conclusion of the last day of school and end at 4pm on the Saturday falling at the middle of the holiday period;
b)The second half of the holidays at the end of terms 1, 2 and 3 is deemed to commence at 4 pm on the middle Saturday of the holiday period and conclude at the commencement of the first day of school of the new term;
c)The first week of the school holiday period that falls at the end of term 4 is deemed to commence at 10 am on the day Saturday immediately following the last day of school and each week of the holiday period will end at 10 am each Saturday.
Neither parent shall denigrate the other parent or a member of their family in the presence or hearing of the children and neither parent shall permit a third parent to do so.
Each parent shall:
a)Notify the other parent of the name, address and telephone number of any medical or health practitioners that the children attend upon from time to time, including but not limited to General Practitioners, specialists, mental health practitioners, allied health professionals, including physiotherapists, speech therapists, occupational therapists and any other medical professionals;
b)Notify the other parent as soon as possible and in any event within 24 hours of any serious injury or illness suffered by either of the children while in the care of that parent;
c)Notify each other as soon as reasonably practicable of any medical issues involving the children;
d)Be at liberty to consult the children’s medical practitioners, hospital and/or other health care professionals to obtain any information they require and these Orders shall serve as sufficient authority for that purpose;
e)Notify the other parent not less than seven days before changing that parent’s address, email address, landline or mobile telephone number, of such change;
f)Notify the other parent and keep the other parent notified of a telephone number where they may be contacted in the event of an emergency;
g)Be at liberty to contact the children’s schools to obtain copies of any information relating to the children including, but not limited to, school reports, school circulars, school notices, school invitations, school correspondence, school photographs and other documents concerning the education and the school activities of the children, and any other information in relation to each child’s academic progress and any involvement they may have with the school counsellor; and
h)Be permitted to attend all school functions (including parent-teacher interviews), all sporting events and any other extracurricular activities that either of the children participate in which parents are usually permitted to attend.
Orders sought by the ICL[34]
[34] Minute of Orders – exhibit ICL7
That all previous parenting orders made by the Court be discharged.
Parental responsibility and Live With
That the father have sole parental responsibility for the children X born … 2007 and Y born … 2009 (the children)
Prior to and when making a decision about the long-term issues listed above,
the father will:
a)inform the mother in writing of the decision to be made (where possible at least 28 days before it is to be made);
b)invite written comments from the mother;
c)if the mother responds within the stated timeframe, take such comments into account when making the decision; and
d)inform the mother in writing of the decision.
That at [insert] on [insert] the mother will deliver the children to the J Contact Service (‘J Contact Service’) and the father will collect the children from the J Contact Service.
That the children live with the father.
Therapeutic Family Counselling
That on Monday 6 July 2020 the father and his wife will attend with Ms D of E Counselling Service at F Street, City G for assessment (‘assessment’).
Following assessment and for a period of not less than one month the father and any other significant person as identified by Ms D will attend with Ms D at her direction for the purposes of commencing therapeutic family counselling AND for that purpose the father will do all things reasonably possible to ensure that significant person attends.
That at the direction of Ms D the father will make the children available to attend with Ms D to be included in the therapeutic family counselling.
That the cost of the children's attendances with Ms D be paid for by the father.
That a copy of these orders and a copy of the Single Expert reports prepared by Ms H dated 3 May 2017 and 8 July 2019 be provided to Ms D by the Independent Children's Lawyer.
Suspension of time with the Mother and Restraint
That for a period of three months from the children commencing to live with the father:
a)the mother’s time with the children is suspended;
b)the mother be permitted, no more than once a week, to send a voice or video message for the children to the ICL who in her discretion will provide it to the father.
c)the mother is otherwise restrained from contacting or spending time with the children including by telephone, email, text message or by any other electronic means;
d)d. he mother be restrained from attending the children’s schools, the father’s home or from approaching the children at all.
Time with the Mother
At the conclusion of the three month period referred to in Order 11 above, the children commence spending time with the mother as follows and subject to each parent having completed any requirements of the J Contact Centre:
a)For a period of three months, each alternate Saturday or Sunday for one hour such time to be supervised at the J Contact Centre; then
b)For a further period of three months each Saturday or Sunday for two hours such time to be supervised at the J Contact Centre; then
c)For a further period of three months each alternate Saturday from 10am to 4pm with changeover to take place at the J Contact Centre; then
d)For a further period of three months: each alternate weekend from 10am Saturday to 4pm Sunday with changeover to occur as agreed between the parties; then
e)Thereafter from after school Friday each alternate weekend to 4pm Sunday.
School term holiday time
From the first school holiday that occurs after the time in order 12e above commences, the children spend time with the mother for one half of each New South Wales gazetted school term holiday period as agreed and failing agreement from after school on the last day of term until 12pm on the middle Saturday.
Time in order 12 is suspended during school holiday time.
Christmas holiday time
From the first Christmas holiday time that occurs after the time order 12e above, the children spend time with the Mother:
a)In odd numbered years from 3pm 24 December to 12pm on 26 December;
b)In even numbered years from 3pm 26 December to 12pm on 28 December; and
c)In each year for a period of 14 days to occur as agreed and failing agreement, to commence at 12pm on the 3rd of January and conclude at 12pm on the 17th of January.
Time in order 12 is suspended during Christmas holiday time.
Special days
Each of orders 17 to 19 applies once after time in order 12d commences.
If Mother’s day falls on a weekend when the children are not already spending time with the mother, from 5:00 pm on the Saturday before Mother’s Day until 5:00 pm on Mother’s Day;
On each of the children’s and the Mother’s birthday for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non-school day.
That the mother’s time with the children be suspended:
a. If Father’s Day falls on a weekend when the children are to be spending time with the mother, from 5:00 pm on the Saturday before Father’s Day until 5:00 pm Father’s Day;
b. On each of the children’s and the father’s birthday, if the children are to be spending time with the mother on those occasions, for two hours from immediately after school if the birthday falls on a school day of four hours from 3pm if the birthday falls on a non-school day.
Handover
Unless otherwise specified or agreed, handover for the children shall be:
(a) At each child’s school on a school day; and
(b) If not on a school day, at McDonalds, Suburb Z.
Other Orders
That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 7 days of such change.
That in the event of childhood illness or emergency the parent with whom the child or children are with, contact the other parent as soon as practicable to inform them.
That each of the parties, their servants and agents be hereby restrained by injunction from:
(a) Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party or their family members; and
(b) Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, or any of them.
Each parent will do all things reasonably possible to prevent other persons from permitting any other person from discussing these proceedings or abusing, insulting, belittling, rebuking, or otherwise denigrating the other party or their family members:
That by these orders the mother and father be each permitted to liaise directly with the children's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.
That by these orders the mother and father be each permitted to discuss any matters pertaining to either child’s education, health or wellbeing with the relevant school, club or medical practitioner and to obtain copies of any reports relating to the children.
That each party is at liberty to attend at the said children's school for the purposes of any function or activity normally attended by parents, noting that the mother is not permitted to attend until time in order 12d has commenced.
That the parties establish and use a communication book and record, for the information of the other, issues that are limited to the children’s care and that the communication journal accompany the children between the parents’ homes.
Discharge of ICL
The ICL be discharged upon time as set out in 12d commencing [insert].
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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