Nespola & Brzezicki
[2024] FedCFamC1F 415
•19 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nespola & Brzezicki [2024] FedCFamC1F 415
File number: DGC 2330 of 2023 Judgment of: MCNAB J Date of judgment: 19 June 2024 Catchwords: FAMILY LAW - PARENTING – Where there are two children with two different fathers – Where the fathers withheld the children after they disclosed abuse perpetrated by the mother’s partner – Where the mother commenced proceedings seeking the return of the children – Whether there is an unacceptable risk posed by the mother’s partner – Whether the mother’s presence can ameliorate risk – Where the mother’s partner lacks insight into his actions – Where the mother’s partner presents a risk of physical and psychological harm to the children – Where the mother is unable to mitigate the risk - Where the children are to live with the respective fathers – Where the mother’s time with the children is to occur in the absence of her partner – Orders for equal shared parental responsibility Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE Division: Division 1 First Instance Number of paragraphs: 101 Date of hearing: 25–28 March 2024 Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Ms E Mallett KC Solicitor for the First Respondent: Coulter Legal Counsel for the Second Respondent: Mr D Whitchurch Solicitor for the Second Respondent: Melbourne Family Lawyers Counsel for the Independent Children's Lawyer: Mr B Kiernan Solicitor for the Independent Children's Lawyer: Yarra Family Lawyers ORDERS
DGC 2330 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NESPOLA
Applicant
AND: MR BRZEZICKI
First Respondent
MR TRAVERS
Second Respondent
INDEPENDENT CHILDREN'S LAWYER ORDER MADE BY:
MCNAB J
DATE OF ORDER:
19 JUNE 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged and the matter be removed from the list of pending cases before the Court.
2.The Mother and Mr Brzezicki ("the First Respondent Father") have equal shared parental responsibility for the child Y born 2016 ("Y").
3.The Mother and Mr Travers ("the Second Respondent Father") have equal shared parental responsibility for the child X born 2014 ("X").
4.Y live with the First Respondent Father.
5.X live with the Second Respondent Father.
Spend Time Arrangements
6.Y and X spend time and communicate with the Mother, unless otherwise agreed by the parties in writing, subject to Orders 17 and 18 herein:
(a)Each alternate weekend from the conclusion of school (or 3:30pm if a non-school day) on Friday for X and 5:00pm on Friday for Y until 4:00pm on Sunday in relation to Y and 5:00pm on Sunday in relation to X.
(b)Y and X communicate with each other and their Mother via video or audio call upon their reasonable request to do so, and the Mother be at liberty to telephone or video call both X and Y every second day that they are not in her care at 5.00pm or such other time as agreed by the parties in writing.
(c)For half of each of the school term holidays at times to be agreed between the parties and failing agreement for the first half of the school term holidays. For the avoidance of doubt, the school holidays are calculated as from the last day of the school term to the first day of the following school term; and
(d)For half of the long summer school holiday period, on a two-week about basis, as agreed between the parties and failing agreement with Y and X to spend the first two weeks with the Mother.
Father's Day/Mother's Day
7.In the event that Father's Day falls on a day when Y and X are living with the Mother, Y and X spend time with their Father from 5:00pm on Saturday preceding Father's Day to 5:00pm on Father's Day.
8.In the event that Mother's Day falls on a day when Y or X are living with their Father, Y spend time with the Mother from 5:00pm on Saturday preceding Mother's Day to 5:00pm on Mother's Day
Christmas
9.The arrangements provided for in Order 6 be suspended from 5:00pm on Christmas Eve to 5:00pm on Boxing Day by agreement between the parties and failing agreement the following shall apply:
(a)Y and X spend time with the Mother from 5.00pm Christmas Eve to 5.00pm Christmas Day in 2024 and each alternate year thereafter;
(b)Y and X spend time with their Father from 5.00pm Christmas Day to 5.00pm Boxing Day in 2024 and each alternate year thereafter;
(c)Y and X spend time with their Father from 5.00pm Christmas Eve to 5.00pm Christmas Day in 2025 and each alternate year thereafter; and
(d)Y and X spend time with the Mother from 5.00pm Christmas Day to 5.00pm Boxing Day in 2025 and each alternate year thereafter.
Facetime
10.Y and X communicate with each other and their respective Fathers via video or audio call upon their reasonable request to do so, and their Father be at liberty to telephone or video call their child every second day that they are not in his care at 5.00pm or such other time as agreed by the parties in writing.
Easter
11.The arrangements provided for in Order 6 be suspended from 5:00pm on Easter Thursday to 5:00pm on Easter Monday and Y and X spend time with the Mother and respective Father by agreement between the parties and failing agreement the following shall apply:
(a)Y and X spend time with the Mother from 5.00pm Easter Thursday to 5.00pm Easter Saturday in 2024 and each alternate year thereafter; and
Y and X spend time with their Father from 5.00pm Easter Saturday to 5:00pm Easter Monday in 2024 and each alternate year thereafter.
(b)Y and X spend time with their Father from 5.00pm Easter Thursday to 5.00pm Easter Saturday in 2025 and each alternate year thereafter; and
(c)Y and X spend time with the Mother from 5.00pm Easter Saturday to 5:00pm Easter Monday in 2025 and each alternate year thereafter.
Changeover
12.In relation to Y, changeover take place as agreed by the parties and failing agreement at the retail precinct in Suburb C.
13.In relation to X, changeover which does not take place at X’s school is to take place at Suburb B Bunnings.
Change of School/Relocation
14.The First Respondent Father be permitted to relocate with Y to City D.
15.The First Respondent Father be at liberty to enrol Y to attend E School in Suburb F with such enrolment to commence immediately and for the purpose of same the First Respondent Father is permitted to provide a copy of these Orders to the school.
Communication
16.The parties communicate with one another in writing using text message.
Miscellaneous
17.The Mother and each of the Fathers are restrained by injunction from:
(a)Physically disciplining Y or X or permitting any third party to do so;
(b)Allowing Y or X to be left in the care of Mr H; and
(c)Exposing Y or X to any family violence.
18.All time that Y and X spend with the Mother occur in the absence of Mr H and the Mother be and is hereby restrained from bringing Y and X into contact with Mr H without the prior written consent of each of the respective Fathers.
19.The Mother and each of the Respondent Fathers have leave to provide to any treating professionals for themselves or either of X and Y and to any family therapist engaged:
(a)a copy of these orders;
(b)a copy of the Affidavits annexing the Short Form Preliminary Issues Assessment and Family Report prepared by Ms G.
20.The Mother forthwith enrol in and complete Tuning In To Kids or Triple P Parenting Course and provide a certificate of completion to each of the Respondent Fathers.
21.The Mother and Fathers and their agents be restrained from denigrating each other in the presence of the X and Y.
22.The First Respondent Father shall authorise Y's school to provide to the Mother at the Mother's expense information in relation to Y's education (including but not limited to school reports, school photograph order forms and notices).
23.The Second Respondent Father shall authorise X's school to provide to the Mother, at the Mother's expense information in relation to X's education (including but not limited to school reports, school photograph order forms and notices).
24.The Mother and First Respondent Father inform each other of any medical illness suffered by Y and provide information to each other and consult with the other party prior to Y receiving medical treatment or undergoing surgery except in an emergency.
25.The Mother and Second Respondent Father inform each other of any medical illness suffered by X and provide information to each other and consult with the other party prior to X receiving medical treatment or undergoing surgery except in an emergency.
26.The Mother, First Respondent and Second Respondent Father notify the other of any change of address and telephone number within twenty-four hours of such change.
27.The parties themselves, their servants and/or agents be and are hereby restrained from discussing any matter pertaining to these proceedings to or in the presence of or the hearing of Y and X.
Y's Passport and Travel
28.The Mother and First Respondent Father will do all such acts and things and sign all documents necessary, at their equal expense, to ascertain a passport for Y with such passport to be held by the First Respondent Father.
29.The Mother and First Respondent Father be permitted to travel overseas with Y upon providing the non-travelling party with thirty (30) days’ notice of their proposed travel together with a copy of the travel itinerary, flight tickets and including a proposed telephone contact number.
30.In the event the Mother seeks to travel with Y the First Respondent Father is provide to the Mother Y's passport no later than 21 days prior to the proposed travel with the Mother to return the passport to the First Respondent Father within seven (7) days of her return to Australia.
X's Passport and Travel
31.The Mother and Second Respondent Father will do all such acts and things and sign all documents necessary, at their equal expense, to ascertain a passport for X with such passport to be held by the Second Respondent Father.
32.The Mother and Second Respondent Father be permitted to travel overseas with X upon providing the non-travelling party with thirty (30) days 'notice of their proposed travel together with a copy of the travel itinerary, flight tickets and including a proposed telephone contact number.
33.In the event the Mother seeks to travel with X the Second Respondent Father is provide to the Mother X's passport no later than 21 days prior to the proposed travel with the Mother to return the passport to the Second Respondent Father within seven (7) days of her return to Australia.
34.The Independent Children’s Lawyer is hereby discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nespola & Brzezicki has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McNab J
INTRODUCTION
Parties in this matter are:
(a)applicant mother Ms Nespola (“Ms Nespola/the mother”) born 1988 aged 35 years. The mother has been employed as a receptionist. Her current partner is Mr H.
(b)first respondent father Mr Brzezicki born 1974 aged 49 years. He is employed as a manager and has reduced his working hours to reside in Suburb J so as to facilitate the Interim Orders of 21 November 2023.
(c)second respondent father Mr Travers born 1986 aged 37 years of age. He is employed in the transport industry. His current partner is Ms K.
Children of the relationships relevant to this matter are:
(d)X born 2014 currently aged 10 years (child of the applicant mother Ms Nespola and second respondent father Mr Travers); and
(e)Y born 2016 currently aged 7 years (child of the applicant mother Ms Nespola and first respondent father Mr Brzezicki).
Other children from relationships directly from these parties or related parties are:
(a)L, born 2020, currently aged 3 years (daughter of applicant mother Ms Nespola and Mr H).
(b)M, born 2009, currently aged 15 years and N, born 2010, currently aged 14 years (first respondent father Mr Brzezicki’s daughters from a previous relationship).
The issues that must be determined in this proceeding are:
(1)Whether Mr H presents as an unacceptable risk to the children; and
(2)If so, what orders should be made so as to enable the mother to maintain a relationship with the children and for the children to maintain a relationship with their sibling L.
BACKGROUND
Ms Nespola and Mr Travers commenced a relationship before early 2014 with X being born in 2014. They separated in 2015. Ms Nespola and Mr Brzezicki commenced a relationship in or around late 2015 with Ms Nespola and X moving to reside in Suburb F with Mr Brzezicki. Y was born 2016.
Mr Travers in his trial affidavit stated that Ms Nespola relocated from City D to Melbourne in 2017.[1] In either mid-2017 according to Ms Nespola or late December 2017/early 2018 according to Mr Brzezicki, Ms Nespola and Mr Brzezicki separated. In early 2018, Ms Nespola moved to Suburb J and commenced cohabitation with Mr H. She gave Mr Travers and Mr Brzezicki one week’s notice of her intention to move. Prior to proceedings being initiated, the children were living with Ms Nespola and Mr H and spending time with each of their respective fathers in reasonably amicable co-parenting arrangements which had not required court intervention.
[1]Mr Travers’s trial affidavit filed 12 March 2024 at [2] under ‘Relationship post separation’.
Mr Travers states that in July 2023 X made a disclosure to him that she had been physically abused by Mr H.[2] That disclosure was preceded by allegations that she had seen the mother and Mr H physically fighting.[3] Mr Travers attended Suburb O Police Station to report the disclosures and he was advised that it warranted a notification to the Department of Fairness, Families and Housing (DFFH). Mr Travers notified Mr Brzezicki by phone of the disclosures in mid-2023 when Y was in the care of Mr Brzezicki. Mr Brzezicki asked Y whether Mr H behaved aggressively and he stated that he had been hit by him. Not wanting to make an “emotional decision” Mr Brzezicki returned him to the care of his mother that day as planned.[4] After considering the allegations overnight he reported them to Victoria Police who notified the DFFH.
[2]Mr Travers at [46].
[3]Mr Travers at [39].
[4]Mr Brzezicki’s trial affidavit filed 12 March 2024 at [48]-[52].
In July 2023 both fathers picked up the children from school and kept them in their respective care and advised the mother via text around 2.00pm that they were withholding the children.
By an Initiating Application filed by the mother on 19 July 2023, the mother sought sole parental responsibility of the children X and Y. On 24 July 2023 Mr Brzezicki agreed to return Y to the care of Ms Nespola as long as there were appropriate safeguards, one being that Y is not left in the care of Mr H without an adult being present.
On 27 July 2023 Mr Travers agreed to return X to Ms Nespola’s care upon Mr H signing an Undertaking. That Undertaking noted that Mr H would not expose the children to family violence. At trial Mr H was presented with the Undertaking purportedly signed by him on 28 July 2023[5] and he stated that he never saw nor signed such an Undertaking on 28 July 2023.
[5]Mr Brzezicki at Annexure MB-11.
Interim orders were made by a Senior Judicial Registrar on 21 November 2023 for the children to live with their respective fathers and spend time with the mother, but all time with the mother was to be in the absence of Mr H. The interim orders required that the children continue to attend school in the Suburb J area.
Mr Brzezicki relocated to Suburb J from his home in the Suburb F area to comply with the interim orders where he resided with Mr Travers and his family for the first week before staying at a motel and then again with Mr Travers and his family during the week of the trial. At trial it was acknowledged by all parties that Mr Brzezicki’s living situation was not something which could remain ongoing.
Interim orders were made on the last day of trial for the interim orders of the Senior Judicial Registrar of 21 November 2023 to remain in full force and effect subject to the amendment that:
First Respondent Father
2.The First Respondent be permitted to enrol [Y] born […] 2016 to attend [E School] in [Suburb F] forthwith and for the purpose of same the First Respondent Father is permitted to provide a copy of these Orders to the school.
3.For the avoidance of doubt [Y’s] primary place of residence will be the Father’s home in [Suburb F].
The mother’s spend time arrangements with the children were amended to a slightly later time after school for both children. Each child spends half the school term holidays with the mother subject to Mr H being absent.
MATERIALS
The applicant relies upon:
(1)Outline of Case filed 22 March 2024.
(2)Trial affidavit filed 22 March 2024.
(3)Affidavit of Mr H filed 21 March 2024.
The first respondent relies upon:
(1)Outline of Case filed 21 March 2024.
(2)Consolidated Minute (detailing joint proposal of the First Respondent, ICL and Second Respondent) dated 21 March 2024.
(3)Trial affidavit filed 12 March 2024.
(4)Further Amended Response to Final Orders filed 13 December 2023.
(5)Affidavit of Ms G (annexing Short Form Family Report) filed 17 October 2023 and affidavit of Ms G (annexing Family Report) filed 14 March 2024.
(6)Documents produced pursuant to Subpoena to Victoria Police and Department of Education dated 8 September 2023.
The second respondent relies upon:
(1)Outline of Case filed 21 March 2024.
(2)Consolidated Minute (detailing joint proposal of the First Respondent, ICL and Second Respondent) dated 21 March 2024.
(3)Affidavit of Mr H filed 21 March 2024.
(4)Trial affidavit filed 12 March 2024.
(5)Affidavit of Ms K filed 12 March 2024.
(6)Affidavit of Ms G (annexing Short Form Family Report) filed 17 October 2023 and affidavit of Ms G (annexing Family Report) filed 14 March 2024.
(7)Undertaking of Ms Nespola and Mr H 28 July 2023.
The Independent Children’s Lawyer (“ICL”) relies upon:
(1)Outline of Case filed 22 March 2024.
(2)Consolidated Minute (detailing joint proposal of the First Respondent, ICL and Second Respondent) dated 21 March 2024.
PROPOSALS
The applicant mother sets out a minute of proposed orders in her Outline of Case filed 22 March 2024 and is seeking final orders that:
(1)the Parties have equal shared parental responsibility for respective children and respective fathers;
(2)Y remain in Melbourne and not relocate to City D and spend equal time on a week about basis with the mother and father.
(3)X spend equal time with the mother and father on a week about basis.
(4)The children be permitted to reconnect with Mr H via a child psychologist and pending him undertaking a Men’s Behavioural Change Program as deemed appropriate by R Family Services and providing Undertakings to the Court.
(5)Mr Travers complete a Men’s Behavioural Change Program and be required to have alcohol and drug counselling.
The fathers and the ICL provided to the Court a minute of proposed final orders seeking:[6]
(1)Equal shared parental responsibility between the mother and each of the fathers.
(2)Y and X to live with the first and second respondent fathers respectively.
(3)Spend time with the mother each alternate weekend from the conclusion of school or 3.30 pm if a non-school day on Friday for X and 5.00 pm on Friday for Y until 4.00 pm on Sunday for Y and 5.00 pm on Sunday for X with the provisos that all parents are restrained from:
(a)physically disciplining Y or X or permitting any third party to do so;
(b)allowing Y or X to be left in the care of Mr H; and
(c)Exposing Y or X to any family violence.
[6] Exhibit R1-8.
The second respondent father is seeking to enrol Y at E School in Suburb F.
There remained contention surrounding the reintroduction of Mr H to the children. The minute provided above by the fathers and the ICL contained the following provisions for Mr H’s reintroduction:
19.All time [Y] and [X] spend with their Mother occur in the absence of [Mr H] and the Mother be and is hereby restrained from bringing the [Y] and [X] into contact with [Mr H] without the prior written consent of each of the respective fathers (see Notation A below)…
AND THE COURT NOTES THAT:
A.The Respondent Fathers adopt the recommendations of [Ms G] that prior to any reintroduction of [Mr H] to the children or his presence during any time that the children spend with their mother the following would be necessary:
i.[Mr H] to have completed a recognised Men’s Behavioural Change Program in either a group or one-to-one program;
ii.[Mr H] to have completed the Tuning In to Kids program in person;
iii.[Mr H] and [Ms Nespola] to have attended relationship counselling for a period not less than 6 months;
iv.following completion of (i)-(iii) the family (to include each of the children, each of the parents and any partners) engage in Family Therapy with a therapist agreed (and in default of agreement the Second Respondent Father to propose 3 providers and the Mother to select one); such Family Therapy to be at the sole cost of the Mother.
v.The terms of any Family Therapy engagement would include authority for the therapist to speak to and professionals involved in (i)-(iii) and any mental health professionals engaged with [X] or [Y].
Counsel for the ICL submitted during final submissions that he was not in agreement with the above. He submitted that the above order should be an interim order whereby the matter can return after a period the Court finds suitable and Mr H can present evidence of his compliance with Notation A. The ICL submitted that this would alleviate any issues arising from the fathers ultimately deciding on Mr H’s reintroduction, with the decision returning for the Court’s consideration instead.
EVIDENCE
LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Family Law Act 1975 (Cth) (“the Act”), where the meaning of a "parenting order" is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child's best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child's best interests (s 60CC).
The Act imports a rebuttable presumption that a child's best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to "major long-term issues" concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child's best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child's parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court's discretion about the child's care arrangements is at large, though the discretion must still be exercised in the context of the child's best interests being the paramount consideration.
BEST INTERESTS – PRIMARY CONSIDERATIONS
Section 60CC(2)(a)
The Benefit of the Child having a Meaningful Relationship with Both Parents
Each of the parents agree that there are benefits in the respective children having a meaningful relationship with both their parents. The fathers’ views, however, are subject to protections being implemented to minimise the risks associated with the children being exposed to physical or psychological harm by Mr H.
Section 60CC(2)(b)
The Need to Protect the Child from Physical or Psychological Harm from being Subjected to, or Exposed to, Abuse, Neglect or Family Violence
The Act requires advertence to the need to protect children from “physical or psychological harm” which may be caused by subjection or exposure to “abuse”. For that purpose, “abuse” is defined to include causing “serious psychological harm” to the child, howsoever that may occur and regardless of whether it is intentional (s 4(1)).
There are allegations that Mr H has subjected the children to physical and psychological abuse in that he has subjected the children to excessive physical discipline and psychological abuse arising from the way he talks to them.
I accept the notes that have been compiled by X's school of her disclosures to teaching staff are an accurate account of what she said. I also accept those as an accurate account of the record of conversations between school staff and the children's parents, most particularly the mother. The disclosure dated mid-2023[7] reads as a verbatim account of what the child told the schoolteacher and I set it out in full:
I was having a shower last night. I accidentally got water on the roof of the shower. Once I got out mum thought that I was going to have to wipe down the shower because it would lead to mould. Because I got water on the ceiling and that type of texture could lead to mould and millions of dollars mum said. [Mr H] grabbed me by both ears really tightly like tight. He was that pissed off, he pulled them out like really hard. He said the f word, he said that’s not fucking on. He made my ears red, as red as a texta and a red iPad cover, like dark red. It very much hurt, like so bad he was pulling them so hard out. He said, I have to shower with a hose, but mum won't let that happen she said today. [Mr H] told me another time to pull bubble paper but I couldn't. I had to pull it off a glass table. He had mum carrying the glass and he kept saying rip it off loudly. Then mum dropped the glass table and her fingers were under it and went blue. She screamed my fingers are under there blue, like blue as blue. He left her there for a while, not too long but they were so blue.
[7] Exhibit R1-5.
A further recording of a disclosure dated mid-2023 records the child speaking to a schoolteacher around 3:20PM asking the teacher whether she could have a sleepover at the teacher’s home:[8]
[X] asked me if she could have a sleepover at my home tonight because she didn’t want to go home to her mum and [Mr H’s] house. I told her that as Teachers, we can’t do that. I said that I can make sure she is safe and anything she tells me about home, I will write on Sentral and tell Wellbeing.
[8] Exhibit R1-5.
At 3:30PM on that same day, the mother attended the classroom and is recorded as asking “did [X] say anything to you about last night?” The teacher thence recorded:
I indicated a lack of knowledge regarding the context by shaking my head… [Ms Nespola] proceeded to inform me that “[X] was very, very naughty last night and was in a lot of trouble.” She then said, “So I thought she might have said something." [Ms Nespola] said this to me with anger in her tone.
The mother continued querying whether X had said anything to the teacher regarding the prior evenings incident, which the teacher denied.
These notes are recorded in the context of other notes which indicates that the child is unsettled at school and expressing that she is not happy in the home due to the behaviour of Mr H and the level of tension between her mother and Mr H.
The Court has the benefit of two reports from a Court Child Expert, Ms G, with the reports being dated 25 September 2023 and 21 February 2024. The report of 25 September 2023 was a short form report. For the purposes of the reports, Ms G read the filed applications, responses, affidavits and interviewed the parties, the children and Mr H. At the time of the first report, Mr H had not filed an affidavit and was interviewed by telephone. Ms Nespola asserted during the trial that Ms G had blindsided Mr H when calling to interview him for the first report. This was put to Ms G and she gave evidence that her notes clearly state that Mr H called her back after she had called him and left a message for him to call her back, which he did at a time which was convenient to him.
The first report at [53] noted that during the interviews, the applicant had presented as extremely defensive of Mr H and that she considered him as a victim of false allegations made by the fathers who were envious of the lifestyle and home that Mr H could provide. It was also said by the applicant that X had been manipulated by her father to make false allegations against Mr H.
In his first interview with Ms G, Mr H confirmed that he had smacked Y on two occasions over the years and had smacked L on the hand if she does not listen to him but stressed:
55.…the importance of boundaries for children to raise them to be responsible individuals such as himself. He considered without the boundaries he had as a child, he would be unable to run a successful business as he does. [Mr H] reported that when managing the children’s behaviour, the primary consequence he implemented was to make them face the wall during time out. He denied being physical or manhandling the children in any way, apart from smacking on some occasions.
Ms G recorded the following:
60.[Mr H] denies a criminal history relating to violence or aggression. He denied knowledge of ever having an IVO against him. He confirmed historical convictions in relation to ‘hooning’. He denied [Ms Nespola’s] assertion he had an IVO against him which she said (in interview) that he had refused to provide her the details of, as it was his business only.
61.The assessor asked if (hypothetically) [Ms Nespola] asked him to leave the maternal home (temporarily) should the Court consider further risk assessment (of him) was required. [Mr H] confirmed he would refuse to do so. [Mr H] emphasised again it was his home, and he would require [Ms Nespola] leave and he would then take “custody” of [L].
62.During the discussion with [Mr H], there was no evidence of empathy or concern for the children or [Ms Nespola] in the context of the proceedings in his narrative. Instead, he blamed and deflected issues. [Mr H’s] lack of awareness of and interest in the current proceedings and his lack of empathy may indicate a lack of motivation to meaningfully assist or engage in interventions in resolving the current impasse in the best interests of the children.
63.The assessor formed the impression that [Mr H] considered the children and particularly their parents owed him thanks and positive recognition for what he provided for the children.
In the second Family Report dated 21 February 2024, Ms G interviewed Mr H by MS Teams video as Mr H was unable to attend a meeting in person in work hours due to his work commitments. Mr H expressed the view that he had been unfairly maligned in the previous report, that the case had become concerned with allegations against him and the allegations had been driven by the fathers, particularly Mr Travers.
Mr H was adamant that he should not leave the Suburb J house to enable the mother to spend time with the children in his absence. He did not acknowledge the benefits of the children spending time with the mother in that home (rather than a motel) and stated:
105.his belief that “purely because it’s my house” he should not be asked to leave, and it was “unfair” of the assessor to do so. [Mr H] asserted that [Ms Nespola] had no legal rights to his home as he had purchased it with inheritance and it was attached to his business and furthermore, he made all of the repayments exclusive of [Ms Nespola].
106.[Mr H] went on to explain that he had been enjoying one on one time with [L] during the maternal time and he does not have any family to stay with on the weekends. He pointed out that whilst [Ms Nespola] had been staying with her mother in [City D] that was no longer an option. [Mr H] was not in a position to suggest where [Ms Nespola] and the children might be accommodated in the coming weekend spend time, as he had not had time to consider what options were available to them.
At [133] of the second Family Report, Ms G when evaluating the material available to her, identified three factors which lead her to form the opinion that it would not be in the children’s best interests to reside with the mother at the Suburb J home stating:
133.These factors are the children’s disclosures of abuse perpetrated by [Mr H] and sustained fear of [Mr H]; [Ms Nespola’s] minimisation of the children’s expressed experience of [Mr H] and family violence in the [Suburb J] home; and [Mr H’s] attitude and presentation in respect to the issues concerning the children in both the Preliminary Issues Assessment and in the Private Family Report.
134.The children have disclosed physical punishment inflicted to them, by [Mr H] that appears beyond what would be considered ‘normal’ chastisement, and more indicative of abusive or aggressive behaviour. They described a sense of fear and unease in the [Suburb J] home due to [Mr H’s] behaviour towards them and their mother. Information provided in the preparation of this assessment indicated the children experience a low warmth and rigid relationship with [Mr H]. Ineffective behaviour management strategies, such as smacking and ear pulling, and infrequent verbal threats and verbal chastisement may not be considered to pose an unacceptable harm to the children. However, the regular occurrence of these behaviours can have a cumulative effect on children by creating a sense of fear and unease, and a rigid and punitive, low warmth environment are factors increasing risk to the children’s emotional and psychological safety.
When giving evidence to the Court, Ms G confirmed her recommendations for the spend time arrangements made in her second report that the mother and the respective fathers have equal shared parental responsibility, that the children live with each of their respective fathers and that there be some mid-week and weekend spend time arrangements with the mother where such arrangements accommodate both children spending time together but at the exclusion of Mr H.[9]
[9]Ms G's Family Report dated 21 February 2024 at pages 29-31.
When asked under examination about the practicality of Mr H leaving the house for the mother to spend time with the children and whether Ms G had asked him about this in her report, Ms G said Mr H thought it was not appropriate and referred to [61] of her first report:
61.The assessor asked if (hypothetically) [Ms Nespola] asked him to leave the maternal home (temporarily) should the Court consider further risk assessment (of him) was required. [Mr H] confirmed he would refuse to do so. [Mr H] emphasised again it was his home, and he would require [Ms Nespola] leave and he would then take “custody” of [L].
(Emphasis added)
Ms G stated under examination she “was also trying to obtain a sense of how flexible Mr H was in terms of supporting his partner”. She recalls it was “very clear” at the time of the second report dated 21 February 2024 following her telephone conversation with Mr H on 14 February 2024 that he was not prepared to consider any kind of provision at the Suburb J house for the mother and children to spend time in his absence.
Ms G was directed to her first report at [54]:
54.According to [Ms Nespola], [Mr H] can be strict with the children and possesses a “straight down the line” personality/communication style. She suggested he is a first-time parent, learning how to parent, and she has raised with him that some of his methods are rigid. For example, recently he admonished [X] for splashing water on the bathroom ceiling, sent her to her room and told her she would be hosed down outside should she do so again.
When asked by the Court whether she had made any notes of this particular incident (“the shower incident”), Ms G confirmed she had and that she also had a reference to another incident of Mr H slamming his hand on the table to get the children’s attention and then asking them “Are you listening to me?”
Ms G was referred to the school record dated mid-2023[10] where X reports the shower incident to her teacher and having her ears pulled until they were red and Ms G confirmed X had talked to her of having her ears pulled in the first session.
[10]Exhibit R1-5.
X made the disclosure to a teacher in mid-2023 about an incident where her ears were pulled by Mr H the night before and where she described them as turning dark red (“red as a red texta and a red ipad cover, like dark red”).[11] The Court Child Expert was told that the mother was asserting the fathers were coaching X to say things about Mr H and it was put to Ms G that there was no opportunity to do this and she was asked for a response as to how the disclosure was worded. Ms G stated the teacher provided X’s comments in inverted commas and she also stated the way the teacher has recorded X describing her ears as being red is how a child of her age would describe them.
[11]Exhibit R1-5.
Ms G went on to state the following concerns regarding risk in relation to X:
She is learning she has to be quiet and put up with this abuse and it’s becoming normalised, it’s normalised in the [Suburb J] home and it’s becoming normalised at school and I wonder if she is learning I can’t go to school and get help and I wonder if she is thinking can I go to school and get help or should I give up?
Issues of risk were outlined in Ms G’s first report and stated in her second report at [25]:
25.On 18 September 2023, the parties and the children attended interviews for the Preliminary Issues Assessment, (dated 25 September 2024). [Mr H] was interviewed via telephone on the 23 September 2023. Information provided in the preparation of that assessment indicated it was likely that the children had been subject to physical and verbal abuse perpetrated by [Mr H] and in breach of the Orders made 9 August 2023. [Y] disclosed to the assessor having recently been smacked by [Mr H], and [X] disclosed having her ears pulled by [Mr H].
(Emphasis added)
Ms G stated X is not just scared for herself but also for her little brother. In relation to L, Ms G at [79] of her first report stated that X is not as scared for L as she has stated that Mr H did not slap her as hard.
Ms G expressed the view that there is a real risk of physical and verbal abuse from Mr H in the Suburb J home where Mr H yields a lot of control. When asked about whether there could be a reintroduction of the children to Mr H once he had either attended four sessions with someone such as Mr P or a Men’s Behavioural Change Program, Ms G stated “I would want to know that he acknowledges he has been abusive, to demonstrate he has made the change.”
She stated four sessions was not enough for someone who lacks empathy to the degree that it appears Mr H does and that she has concerns as to how this will make the children feel protected. She is sceptical as to whether Mr H would engage in any Men’s Behavioural Change Program in a meaningful way. When asked whether four sessions plus some insight and certificate might assist, Ms G queried what message this sends the children when the mother is insistent that they spend time with Mr H, when everyone allows them to spend time despite information which suggests there has been longstanding abuse and where the mother has been unable to protect the children. Ms G says this creates complex dynamics of trust. When asked about reintroduction of Mr H via a family therapy session, she stated such an introduction would require more than one family therapy session.
Ms G further stated that the mother poses a risk of emotional harm by allowing the children to remain in an environment where they are at risk and where there is hostility between the mother and Mr H. She notes at [78] of her second report:
78.[X] said that her mother and [Mr H] “fight aggressively” a lot and she demonstrated she understood the meaning of ‘aggressively’. When [Mr H] yells, she feels “scared”. When asked of any positive aspects of [Mr H], [X] said that “sometimes he buys us stuff”.
In relation to Ms Nespola and whether Ms G considered her to be a victim of family violence, she said she had concerns as she did see some indicators. The most significant indicator to her was that on the day the fathers withheld the children (sending a text at 2.00 pm) Ms Nespola did not contact Mr H, he came home at 7.00 pm and had a shower and thought it was a bit quiet but did not notice initially that X and Y were not there. Ms G talked to Ms Nespola and it was noted that this is a theme in the relationship where such an occurrence is a “me issue” and that she did not share this and lean on Mr H for support as you would expect of a domestic partner.[12]
[12] Ms G’s Short Form Preliminary Issues Assessment dated 18 September 2023, at [92].
Ms G was further questioned by Ms Nespola as to whether she continued with questioning of Y about smacking even when he asked her to stop. Ms G stated she does not ask children directly with such questioning happening spontaneously and that she had no recollection of Y being uncomfortable.
At [133] of the second Family Report, Ms G stated:
133.There are three factors that lead the assessor to form the opinion that it would not be in the children’s best interest to return to reside with their mother in the [Suburb J] home. These factors are the children’s disclosures of abuse perpetrated by [Mr H] and sustained fear of [Mr H]; [Ms Nespola’s] minimisation of the children’s expressed experience of [Mr H] and family violence in the [Suburb J] home; and [Mr H’s] attitude and presentation in respect to the issues concerning the children in both the Preliminary Issues Assessment and in the Private Family Report.
I accept that Mr H has exposed the children to family violence both on the occasions that are recorded in the school notes and of his behaviour noted by the children to the fathers which have constituted Mr H:
(1)Pointing at X and threatening her;
(2)Throwing a shoe and hitting X and Y in the head;
(3)Making threats near X; and
(4)Grabbing X by the ears.
I accept that Mr H has used physical discipline on the children. In his evidence before the Court he stated that he only smacked the child Y twice, with one occasion being when the child was young and inconsolable as he was lying on the floor of supermarket having a meltdown. He described smacking the child not as means of discipline, but rather because the child was extremely distressed and it was an attempted shock tactic to distract the child. That is not an appropriate way to deal with an inconsolable toddler and one does not have to have completed a parenting program to know that.
I accept the assessment made by Ms G which was based on the discussion that she had with Mr H and recorded at paragraphs [55] to [61] of the first Family Report. There is a real risk that Mr H’s lack of empathy or concern for the children, combined with his rigid approach and excessive disciplining, may lead to psychological harm. That the children may feel unsafe in his presence is entirely understandable having regard to his presentation to the Court Child Expert and the Court.
Each of the children expressed their reservations about spending time with Mr H and X expressed the view to the Family Report Writer that she was happy living with her father but that if the mother no longer lived with Mr H she would prefer living with her mother.
I do not believe that the mother has the capacity to regulate Mr H's behaviour and is in fact afraid of confronting him to ensure that he does not physically discipline the children or expose them to psychological risk through harsh language. I find that the mother failed to provide an undertaking which was signed by Mr H because she did not wish to deal with his response to the allegations which led to the undertaking being purportedly proffered by him. It is more likely that in order to avoid upsetting Mr H, the mother herself signed the undertaking so as to avoid having to confront him and deal with his response.
This is reasserted by Ms G at [88] of her first report where she states:
88.There were no concerns raised for [Ms Nespola’s] capacity to care for the children. However, in circumstances where there is family violence, in the maternal home, [Ms Nespola’s] capacity to protect herself and the children from [Mr H] may be limited despite her wiliness to do so. This may be due to a controlling and coercive (fear and perceived dependency) based dynamic.
(Emphasis Added)
There is a theme throughout the evidence where the mother attempts to either minimise or conceal abuse perpetrated on the children by Mr H. It is indicative of the mother being aware that the abuse is occurring, but she is unable to prevent it.
This leads me to the view that it is most unlikely that the mother will be able to have any significant influence over Mr H and that she is extremely concerned about upsetting him and jeopardising their relationship. I find that the mother’s ability to protect the children from physical and psychological harm is severely hindered by way of her relationship with Mr H. It is worth restating that that the Family Report Writer at [91] stated that there were indicators of a “problematic relationship dynamic” between Mr H and the mother, possibly constituting an “abusive and controlling relationship.”
Mr Brzezicki gave evidence that he was assaulted by Mr H at a changeover in July 2023. Mr H and Ms Nespola denied that there had been any assault as alleged. Having seen both Mr Brzezicki and Mr H give evidence, I find it more likely than not that Mr H approached Mr Brzezicki in a hostile manner whilst recording and assaulted him. I accept Mr Brzezicki's account of being assaulted by Mr H.
Having considered the evidence of Mr H including his evidence before the Court, I accept the evaluation made by Ms G. In his evidence before the Court, I found Mr H to be very focused on himself and the impacts having to be away from work had on him. He emphasised that he was a successful business owner and that the time taken to give evidence was impacting on his business. I note that the are many parents and parties who give evidence at Court who are business owners or who occupy positions of high responsibility in businesses, who in the time that they are attending Court are focused on the subject of the proceeding, particularly where children are concerned. Mr H did not give the impression that he was particularly concerned about him or the mother maintaining a meaningful relationship with Y or X. I also accept that he had acted in a way that requires the Court to make orders that the children’s time with the mother occur in his absence until he is able to demonstrate that it is safe for them to spend time with him.
Mr H’s demeanour in the witness box was at odds with the evidence given in his affidavit affirmed 20 March 2023, where he professed an insight into his behaviours and expressed love for all the children and that he missed them. He also stated that he wanted to take the steps to address concerns, however, the Court has doubts whether he is genuine in this regard.
The evidence in this case does establish that Mr H presents a risk to the children if they are alone with him in an unsupervised setting.
The mother deposes at [16]-[20] of her affidavit that Mr Travers has perpetrated significant family violence on X and Ms K. She annexes to her affidavit ‘diary notes’ of what she was told by Ms K regarding an incident between Mr Travers and Ms K in 2022:[13]
4am wake up call. [Mr Travers] had a drug and alcohol rampage. Grabbed [Ms K] and threw her to the floor while comforting [X] after he came home and smashed some drinking glasses for no reason. Got arrested and charged.
[13] Ms Nespola’s trial affidavit filed 22 March 2024, Annexure MN1.
The police attended and Mr Travers was charged with three offences. Mr Travers accepted a Diversion of the charges in the Magistrates’ Court on the condition that he complete an alcohol and drug awareness course in conjunction with an anger management course. Mr Travers completed that course. Mr Travers gives evidence that he has abstained from alcohol since the incident and maintains that a positive ethanol reading in a hair follicle test conducted in October 2023 was due to regular use of mouth wash and aftershave (see [48] of Family Report). Ms K gave evidence that he had abstained from alcohol from that time and there had been no further family violence. There has been no report or disclosure that X or Ms K have been exposed to risk in Mr Travers’s care since 31 December 2022. Ms K presented in the witness box as a person who would not tolerate being subjected to violence or disrespectful behaviour from Mr Travers. She had acted protectively in the past and assisted the mother when Mr Travers had presented as a risk to her and the child. When Mr Travers was questioned by Ms Nespola, he was measured and respectful in his responses.
Ms G was asked by Ms Nespola about whether she had seen results of the hair follicle test of Mr Travers and she said that she had and that she had discussed the results with him. She stated he was told that the laboratory said it was not uncommon for people wearing certain aftershave or using mouthwash to return a result such as his (a low reading). Ms G stated she was aware of the 2022 incident and this did not present any current issues.
I find that Mr Travers does not present a risk to X whilst she is in his care nor does he present a risk to Y.
BEST INTERESTS – ADDITIONAL CONSIDERATIONS
Section 60CC(3)(a)
Any Views Expressed by the Children and any Factors, such as the Children’s Maturity, that the Court Thinks Relevant to the Weight it Should Give to the Child’s View
The children are both young and the Court does not place a lot of weight on their views as to how time should be spent. Both children express their love for their parents and affection for one another and their sibling L. They are both apprehensive and fearful of Mr H and I have regard to those views.
Section 60CC(3)(b)
The Nature of the Relationship of the Children with Parents and other Relevant Parties
Y has a positive relationship with both his mother, father and his stepsiblings. He would benefit from enjoying a stronger relationship with them. The fathers have worked together to ensure that Y and X maintain a relationship and cooperated to the extent that Mr Brzezicki and Y were able to reside in Mr Travers’s house with his wife.
This is set out in Mr Brzezicki’s affidavit at [109] where he says:
In the week of 21 November 2023, the week the Interim Orders were made, I resided with [Mr Travers] and [X] at the home of [Mr Travers’s] Mother. [Mr Travers] and I have worked together well following the Interim Orders to ensure that [Y] and [X] spend as much time together as we can accommodate, outside of the time that they spend with [Ms Nespola] together.
(Emphasis Added)
Mr Brzezicki then provides at [122] numerous occurrences of Y and X spending time together, with some of those instances occurring outside the Court mandated time.
I am confident that Y and X will continue to develop their relationship in circumstances where Mr Brzezicki and Travers have demonstrated an admirable commitment to maintain the relationship between the pair.
There may be an issue with the children spending time with L as was noted at paragraph [90] of the Family Report that Mr H has taken the opportunity to spend:
one-on-one time with [L], during the maternal time and therefore, the time [L] has spent with [X] and [Y] (in person) had been limited.
I expect that the mother will do what she can to ensure that the children maintain a relationship with L.
Section 60CC(3)(c)
The Extent to which each of the Children’s Parents has Taken, or Failed to Take, the Opportunity to Participate in Decisions, Spend Time and Communicate with the Children
There is no evidence before the Court that any parent has failed to take the opportunity to participate in decisions regarding the children. Conversely, the evidence shows that the parties are devoted to maintaining their relationship with the respective children. Mr Brzezicki deposes to having depleted his savings so as to reside in accommodation in the Suburb J area to spend time with Y in accordance with the interim orders.
Section 60CC(3)(ca)
The Extent to which each of the Children's Parents has Fulfilled, or Failed to Fulfil, the Parent's Obligations to Maintain the Children;
Each of the parents have fulfilled their financial obligations to maintain the children. As mentioned above, Mr Brzezicki has been obliged to and has contributed significant funds and accommodation expenses to maintain his relationship with Y through the interim period.
There have been issues raised concerning the child support payments from the mother to the fathers. Mr Travers at [99] of his affidavit says he has received a “very small amount” of payments, which is corroborated by Mr Brzezicki at [118] of his affidavit who states that he does not receive his assessed $180 per fortnight, but rather odd amounts. This was seemingly explained to Mr Travers by the agency due to the mother advising them that she is no longer working and is not currently in a relationship with Mr H.
Further, it is alleged that the mother failed to provide the necessary funds for the Family Report pursuant to interim orders, forcing Mr Brzezicki and Travers to equally meet the sum of $2,700 to ensure the Family Report was available prior to the hearing.
Section 60CC(3)(d)
The Likely Effect of any Changes in the Children’s Circumstances, including the Likely Effect on the Children of any Separation from a Parent/Grandparent they have been Living with
The interim orders of 21 November 2023 provided significant change for the children and the evidence suggest that the change in their residency was beneficial.
The changes as they relate to Mr Brzezicki and Y have arisen since the making of interim orders on 28 March 2024 and are significant in the sense that Y has returned to Suburb F to attend school there. However, I am confident that Mr Brzezicki will continue to do what is necessary to adhere to the orders, ensuring that the child spends time with his mother and siblings.
The effect of final orders on X are not as significant and again I am confident that Mr Travers will do what is necessary to ensure that the child spends time with his mother and siblings in accordance with the orders.
Section 60CC(3)(e)
The Practical Difficulty and Expense of Children Spending Time with and Communicating with a Parent and whether this will Substantially Affect the Children’s Right to Maintain a Relationship with Both Parents on a Regular Basis
The distance between Suburb F and Suburb J does present issues to Mr Brzezicki and Y. However, I echo the sentiment above that Mr Brzezicki will do what is necessary to ensure that the orders are complied with.
Sub-section (3)(f) and Sub-section (3)(i)
The Capacity of Parents/Grandparents to Provide for the Needs of the Children and their Attitudes to the Children
Each of the fathers have demonstrated a capacity to provide for the needs of the children, in particular by responding to their psychological needs and acting protectively.
The mother's capacity to provide for the needs of the children is compromised by her torn loyalties between the children and Mr H.
Section 60CC(3)(g)
Maturity, Sex, Lifestyle and Background of the Children/Parents
The children are aged 7 and 10. Mr Brzezicki and the extended paternal family reside in the City D and City Q area and the orders made will allow both children to maintain their various extended family and sibling group relationships as well as their relationship with the paternal and maternal extended families.
Section 60CC(3)(j)
Any family violence involving the child or a member of the child’s family and if a family violence order applies or has applied to the child or a member of the child’s family.
I have made findings that the children have been exposed to family violence in the home with Mr H both as a result of his treatment of them and the quite high level of conflict between Mr H and the mother.
Section 60CC(3)(l)
Whether it would be Preferable to make the Order that would be Least Likely to Lead to the Institution of Further Proceedings
These reasons set out the concerns that the Court has with Mr H’s behaviour and attitudes and sets out the fathers’ reasonable concerns and how they might be addressed. The Court will not make orders as urged by the ICL as this would inevitably lead to further proceedings. If the mother or Mr H wish to obtain orders in relation to the mother’s time with the children, Mr H has a clear statement of what steps are required.
Section 60CC(3)(m)
Any other Factors or Circumstances that the Court Thinks is Relevant
Parental Responsibility s 61DA
This is not an issue that requires determination as the fathers and the mother agree that that the respective parents of the children should have equal shared responsibility for the children.
SPEND TIME ARRANGEMENTS
Given the orders that I have made restraining the children from spending time with the mother whilst she is in the presence of Mr H, the Court asked the parties, particularly the fathers, what mechanism by way of orders, could be imposed which gave Mr H the opportunity to establish that he is not a risk to the children. There was considerable discussion, following which the ICL and the fathers made a proposal in the following terms:
19.All time [Y] and [X] spend with their Mother occur in the absence of [Mr H] and the Mother be and is hereby restrained from bringing the [Y] and [X] into contact with [Mr H] save in compliance with the following:
a.Upon the Mother providing each of the Respondent Fathers with documents evidencing that:
i.[Mr H] has enrolled in, attended and completed the Tuning In To Kids Parenting Course or Triple P Parenting; and
ii.Either completed the intake for and attended no less than four sessions in a recognised Men’s Behavioural Change Program or, engaged with and attended 4 sessions with a one-on-one provider of a behavioural change program approved by the Independent Children’s Lawyers; (“the behavioural change work”)
b.Following compliance with Order 19 (a), each of the Respondent Fathers and the Mother will do all things necessary for the children to attend upon a suitable qualified professional for the purpose of them receiving from the professional a preparation for the re-introduction of [Mr H] (“the preparation session/s”);
c.Following the successful completion of the “preparation session/s” the mother be permitted to allow [Mr H] to be present during her time with the children for up to 6hours on any one day;
d.Upon the mother providing documents evidencing that [Mr H] has completed the behavioural change work or otherwise completed a minimum of ten sessions with a one-on-one provider of behavioural change programme and provided that there has been compliance with order 22 below, the restrictions upon the mother allowing [Mr H] to be present during the children’s time with her be discharged. It is noted that order 22 will continue to have full force and effect.
20.For the purpose of the children’s attendance for the “preparation session” whether the children attend together or separately and whether any of the parties or [Mr H] attend shall be entirely at the discretion of the professional conducting the session and each of the Mother, and the first and second respondents will do all things necessary to facilitate the same.
21.The Independent Children’s Lawyer have leave to provide to the professionals referred to in Order 19 (a) and (b) a copy of the Affidavits annexing the Short Form Family Report and Family Report prepared by [Ms G].
22.During any time when [Mr H] is present during her time with the children the mother shall:
a.Not permit him to use or threaten physical chastisement for each of [Y] and [X];
b.Immediately remove the children from his presence in the event that he is physically or verbally abusive to her, or any other person within the sight or hearing of the children and forthwith contact each of the respective fathers to facilitate the children retuning to their care.
A further proposed order provided for the children’s time with the mother occur in the absence of Mr H save that where there was written consent provided by the fathers. That consent was conditional upon Mr H satisfying conditions which would be the subject of a notation on the order in the following terms:
A.The Respondent Fathers adopt the recommendations of [Ms G] that prior to any reintroduction of [Mr H] to the children or his presence during any time that the children spend with their mother the following would be necessary:
i.[Mr H] to have completed a recognised Men’s Behavioural Change Program in either a group or one-to-one program;
ii.[Mr H] to have completed the Tuning In to Kids program in person;
iii.[Mr H] and [Ms Nespola] to have attended relationship counselling for a period not less than 6 months (6 joint sessions);
iv.Following completion of (i)-(iii) the family (to include each of the children, each of the parents and any partners) engage in Family Therapy with a therapist agreed (and in default of agreement the Second Respondent Father to propose 4 providers and the Mother to select one); such Family Therapy to be at the sole cost of the mother.
v.The terms of any Family Therapy engagement would include authority for the therapist to speak to and professionals involved in (i)-(iii) and any mental health professionals engaged with [X] or [Y].
The ICL also submitted that the order restraining the mother from spending time with the children in the presence of Mr H should be an interim order whereby the matter can return, if the mother wishes, for the Court to consider the reintroduction of time between Mr H and the children subject to evidence of his compliance with Notation A.
I will not make orders with the notations proposed by the fathers or orders in the terms sought by the ICL regarding interim orders. The Court Child Expert has given evidence about what steps Mr H ought to take before he spends time with the children. The fathers have indicated, by the terms of the notations of the orders that they sought, what they would require before permitting the children to spend time with Mr H. The requirements referred to by the fathers do seem appropriate in relation to the steps to be taken by Mr H, but it is a matter for the mother and Mr H to work together and do the work necessary to persuade the fathers that it is appropriate for the children to spend time in the presence of Mr H and if they do not agree and the mother wishes to vary the orders, she must persuade the Court on her application that it is appropriate and in the best interests of the children to vary the orders.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 19 June 2024
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