Ormond & Kimball
[2023] FedCFamC2F 1603
•27 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ormond & Kimball [2023] FedCFamC2F 1603
File number(s): MLC 4539 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 27 November 2023 Catchwords: FAMILY LAW – interim parenting orders – whether time between the children and the father should be supervised professionally or by family members – whether there should be a restriction on the father spending time with the children at his house – relationship between mother and adult daughters broken down – adult daughter’s suitable supervisors – no reason father can’t see children at his home Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC Cases cited: Rice v Asplund (1979) FLC 90-725 Division: Division 2 Family Law Number of paragraphs: 38 Date of hearing: 27 November 2023 Place: City F Solicitor for the Applicant: J A Middlemis Counsel for the Respondent: Mr Leeton Solicitor for the Respondent: HQ Law ORDERS
MLC 4539 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ORMOND
Applicant
AND: MS KIMBALL
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
27 NOVEMBER 2023
THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:
1.All previous spend time with orders be discharged.
2.The father spend time with the children:-
(i)Commencing 4 December 2023 for three Monday’s from 5:30 pm until 8:30 pm for dinner.
(ii)Commencing 6 January 2024 from 10:00 am until 4:00 pm every second Saturday.
(iii)From 3:00 pm until 7:30 pm on Christmas Day.
(iv)For a minimum of four hours on Father’s Day.
(v)At such further times as are agreed between the parties.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
3.The father’s time with the children shall be supervised by the party’s daughters (Ms C or Ms B) or such other supervisor as agreed between the parties in writing.
THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:
4.The parties use the “AppClose” app to communicate with each other about parenting issues in a respectful manner.
5.The father be restrained by injunction from consuming alcohol in the 24-hour period leading up to his time with the children and/or when he is spending time with the children.
6.Both parties be restrained by injunction from:-
(i)From denigrating the other party to or in the presence of the children or allowing anybody else to do so; and
(ii)From showing or sharing any family law documents or information with any other parties (save for legal advisors and counsellors) and specifically not to the party’s daughters.
7.All changeovers between the parents shall take place at the McDonald’s restaurant in Suburb D unless otherwise agreed.
8.That when recommended by the children’s psychiatrist (Dr E) the father individually or jointly with the children and if recommended by Dr E the mother attend for counselling with respect to his relationship with the children.
9.In the event of either child wishing to return home to the mother whilst spending time with the father he will respect their decision and promptly contact the mother to make such arrangements to return the child or children (noting that the mother will undertake act to persuade the children to remain with the father).
10.The further mention of this matter be adjourned to Monday, 26 February 2024 at 2.15pm before a Judicial Registrar.
AND THE COURTS NOTES THAT:
A.The parties agree that the supervisors Ms C and Ms B be provided with paragraph 146 of the Family Report dated 17 October 2023 on a confidential basis.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore on the November 2023 City F Circuit sitting of the Court. These reasons were delivered orally. They have been corrected from the transcript. Grammar and repetition have been corrected, heading, citations and/or passages of authorities and evidence added and an attempt has been made to make the orally delivered reasons easier to read. But the substance is unchanged.
Mr Ormond (‘the Father’) and Ms Kimball (‘the Mother’) ask the Court to assist with their parenting arrangements pursuant to Part VII of the Family Law Act 1975 (Cth).
The parties commenced cohabitation in about 1996 and separated in March 2021. They have five children, the older three children are aged from 22 to 25, and they have 11-year old twins, X and Y (‘the boys’).
The boys live with the Mother and have significant medical conditions, meaning that there is a heavy burden on their mother to care for them. She is very pressed with their care consuming her life with the number of appointments and the frequencies of them. They are fortunate to have her to be available to do that. The mother's affidavit of 23 November 2023 sets out their circumstances.:
5. [X] experiences significant health issues including:-
(i) Autism;
(ii) ADHD;
(iii) [and other medical conditions].
He was born premature and was hospitalised for a period of [time].
[X] is subject to NDIS support.
6.[Y] experiences significant health issues including :-
(i) Level 3 Autism;
(ii) ADHD;
(iii) [and other medical conditions];
He was also born premature and was hospitalised for a period of [time].
[Y] is subject to NDIS support.
…
17.Because of our son 's difficulties there has been the involvement of numerous professionals including:-
(i) [Mr G] from [H Centre] - Emotional and Behavioural Occupational Therapist;
(ii) [Mr J] from [K Psychology] - Psychologist;
(iii) [Dr E] - Clinical Psychologist;
(iv) [Dr L] - Paediatrician;
(v) [Ms M] from [N Health Centre] - Occupational Therapist;
(vi) [Dr O] , "[P Speech Therapy]" - Speech Therapist;
(vii) [Dr Q] - Ears, Nose and Throat Specialist;
(viii) [Dr R] – [S Health Centre] [City F];
(ix) [Dr T] – [City F] Orthodontist ;
(x) [Dr U] – [V Health Centre] - Specialist Paediatric Dentist;
(xi) [Dr W] – [Z Medical Clinic] - General Practitioner;
(xii) [Mr AA] - Chaplain at [BB School];
(xiii) Numerous NDIS support workers ; and (xiv) [CC Hospital] - outpatients clinics.
The boys have the disadvantage that their parents strongly disagree about the involvement of their parents in their lives.
The short history of the matter is that the parties commenced cohabitation in 1996, married in 1997 and separated on or about 19 March 2021. What were then branded as "final orders" were made in Court on 23 November 2021, and they read:
BY CONSENT IT IS ORDERED
1. That the father and the mother retain equal shared parental responsibility for the long term care, welfare and development of the children namely:-
[X] 2012
[Y] 2012 (''the children")
2. That save as set out below the children live with the mother.
3. That (subject to orders set out below) the children spend time with the father as follows:(
a) Each Monday from the conclusion of school until the commencement of school on Tuesday.
(b) For one night overnight on each weekend at such times and dates as are agreed upon between the parties.
(c) Such further or other times as agreed between the parties from time to time .
4. The children shall spend time at Christmas:-
(a) On Christmas Eve and overnight with the mother;
(b) The father shall be permitted to attend at the mother's home on Christmas morning to spend time with the children; and
(c) The children shall remain with the mother until 3:00 pm on Christmas Day and shall then spend time with the father overnight on Christmas night until 4:00 pm on Boxing Day.
5.That- until -the father completes a "Men's Behavioural Change Program" and provides evidence of such completion to the mother then the mother be at liberty to suspend the abovementioned father's time with the children but additionally otherwise in the event that the mother is of the view that the father is suffering or is at risk of suffering a psychological condition which would jeopardise the safety of the children the mother may again act to suspend the father's time with the children.
6. That the husband he allowed to communicate with the child as follows:
(a) By telephone with such time and duration as is agreed upon between the parties; and
(b) The mother shall provide all reasonable assistance to enable such communication to take place.
7. That whichever party receives a copy of the children's school reports shall forthwith provide copies to the other party, or if the school is agreeable, direct the school to provide copies of such reports directly to the other party.
8. That each party shall upon receiving notification of any school or extra curricular special event (including but not limited to concerts, parent teacher interviews, excursions and camps) forthwith provide the other party with details or a copy of the notification of such event.
9. That if either party receives notice of a party or other special event for the children which will take place while the children is with the other party, he/she shall forthwith give the other party notice of such event.
10. That each party shall forthwith notify the other of any medical or other emergency affecting the children.
11. That the children will not be left unsupervised in the care of [Mr EE] and/or [Ms DD] and/or the father's siblings or partners of siblings.
THE COURT NOTES
A. That the mother and father acknowledge that the father has recently suffered from serious mental health concerns and that from time to time it may be necessary for the mother to exercise sole parental responsibility . In the event that this occurs the mother is to keep the father informed of her decisions in a timely manner an this to continue for no longer than is reasonably necessary.
The Mother's account is that the Father was represented at that time and that the orders were appropriate then, and in affidavit she pressed that they're appropriate now. The Father's position is that he felt coerced into agreeing to those orders, notwithstanding that he was represented by solicitors, because he felt he would not get any time with the boys otherwise.
The time between the Father and the boys pursuant to those orders seems to have ceased after a very short period. The time was effectively two occasions of overnight time each fortnight, one night on a weekend and one night mid-week. The orders carried within it a mechanism that effectively meant, according to the tenor of the orders, that one of the parents had the right to suspend that time if they saw fit.
The parties sensibly, through their lawyers, organised for the Father to see the children at the GG Children's Contact Service(‘GG Contact Service’). Those times were:[1]
[1] From the affidavit of the GG Contact Service Officer, filed 1 May 2023.
4. Summary of scheduled service - 14 sessions in total
2022- time shortened by 45 minutes by [the Mother] due to reports of 'meltdowns' after boys saw [the Father] for his birthday.
9th of September 2022 - cancelled by [the Mother] upon advice from [the boys’ psychologist].
16th of September 2022 - time shortened by [the Mother] due to her concern about how [X] will cope with visits with his father
21st of September 2022 - 1 hour make up visit for AFL public holiday on the 23rd September
30th of September 2022
7th of October 2022
14th of October 2022
21st of October 2022 - cancelled due to the boys reportedly being unwell
28th of October 2022
4th of November 2022
11th of November 2022
18th of November 2022
1st of December 2022 -cancelled by [the Father] due to work commitment
9th of December 2022
GG Contact Service has considerable experience and expertise in children's welfare matters, albeit not the degree of expertise and opportunity for close observation of a family report writer. The affidavit from the GG Contact Service officer includes the following:
5.1 Attachment
[Y] and [X] have a natural and secure attachment to [the Father]. There is a loving connection between [the Father] and each of the boys, without any apparent strain and the supervised contact sessions flowed easily.
The children are always excited to see [the Father], and he reciprocates with the same level of enthusiasm. [X] and [Y] willingly engage in affection. There are hugs at the commencement of the session and "love you" from both boys, reciprocated by [the Father] at the completion of each session.
When cancellations have been made [the Father] has accepted these however has verbalised his disappointment; When offered a makeup session he always communicates, "I will make it work", in relation to re-organizing his work schedule.
[The Mother] presents as loving and protective of the children. She has expressed ongoing concerns about [Y] and [X]’s behaviour before and after contact visits, referring to the behaviour as meltdowns. The reported behaviours include, poo smearing, stimming (chewing clothes, tapping) due to anxiety, wetting pants, snappiness.
At the first supervised session [the Mother] informed the writer that the time of the session needed to be reduced to 1 hour instead of 1 hour 45 minutes, as she wanted to assess "what the fall out for the boys would be" from the session. She elaborated that the boys saw [the Father] for his birthday and both [Y] and [X] had a meltdown after that visit. [The Mother] reported the behaviours included, chewing clothes, and head banging, with both boys requiring containment in a small space to manage their individual emotional overwhelm.
[The Father] believes that the boys' behaviour can be related in part to their autism diagnosis but, also can be attributed to a range of changes they have experienced in a short space of time. [The Father] doesn't believe the boys have had time to process and adjust to all the ongoing changes they have experienced over the course of the past couple of years.
On a few occasions, [the Mother] has bought [Y] and [X] to the service early to lessen their anxiety and has asked the writer to remind them that they can leave at any stage during the sessions. The signal to use is to tap on the writer's hand to let her know they want to leave, and the writer will end the visit. The writer has consistently asked them if they felt comfortable to use the signal if they needed to. [Y] and [X] gave the writer eye contact and said "yes". Neither child has [sought] the writers support to leave a contact session or verbally expressed a desire to want to leave.
…
[The Mother’s] concerns for [Y] and [X]’s wellbeing after the reported meltdowns, are very real for her and therefore should not be minimized. She has provided professional supports to encourage the best possible outcomes for [X] and [Y]’s mental health and overall quality of life.
5.3 Parenting Style
Observations of [the Father’s] parenting style is caring, calm and engaging with both boys. He remains engaged with [Y] and [X] throughout the sessions, always demonstrating his interest in what they are doing and saying.
…
[The Father] has been seen to be calm, always fair but firm in setting boundaries and saying no. An example of this is when they were all playing [sports] and [X] and [Y] began to argue over the rules of the game. In a calm but firm voice, [the Father] told them, "don't yell, let's have a conversation, it's just a game, settle down". After listening to each boys' concerns, he told them, "one rule for everyone around throwing [a ball]". The boys listened to him, took instruction and the game progressed smoothly. He has been observed to embrace teaching opportunities, whether that be how to stand when playing [sports] or reading the rules of a game.
…
7. Recommendations
Based on observations and interactions with all parties it would be strongly advocated for a progressed increase in time spent unsupervised between [the Father], [Y] and [X]. There is nothing to indicate that unsupervised contact would be premature or a concern.
It would be suggested that initially a four (4) hour weekly unsupervised changeover occur, ideally on a Saturday or Sunday for two (2) months. This to be increased to a full day after this period for a further 2 months. At the end of this period, and all going well, a move to overnight would be supported once a fortnight or as determined by the family.
The Children's Contact Service can provide a changeover service if the parents wish to utilise this whilst they settle into a new routine.
That report was released on 23 February 2023. The parents were unable to agree on what time the boys should spend with the Father. The Father then issued proceedings on 17 April 2023.
It was always unchallenged that the boys would live with the Mother.
Following the last visit of 9 December 2022, the parents were able to work out Christmas Day arrangements, and the boys spent some time with their father and sister, Ms C, on Christmas Day of 2022.
Thereafter, it appears that they did not see their father until the start of the sports season. By agreement between the parents, very much to their credit, it was agreed that the Father could attend the boys' sports matches, which he did. That carried with it the condition that he not approach the boys, and there is no suggestion that he did not do as he was told. It is common ground that the boys would, at least on occasion, approach their father for a very short time on those days. Following the sports season, the boys have commenced another sports season, and on two of the games in the current season, the same arrangement has continued.
In the meantime, the boys saw the family report writer together with their parents. The family report was dated 17 October 2023 and contains the below:
139. The writer understands that the boys have been provided supports as part of NDIS services. This includes each seeing [Dr E] [the children’s psychologist]. The writer was supplied with correspondence form [the Mother’s solicitor] dated 7 September 2023 highlighting extracts from having viewed subpoenaed material including [Dr E]’s notes and provided extracts dated from 14 February 2022 to 10 July 2023. The writer, having viewed these has identified the themes that the boys raised in this assessment such as alcohol use, anxiety around seeing [the Father], fear of repercussions, a preference for supervised time and indications there are recollections of how [the Father] treated their mother. It appears to the writer that [Y]'s desire can be seen as slightly different to that of [X] with each having a slightly different perspective of the past and the future.
…
142. In terms of adult issues it appears that there has been a significant imbalance of power and allegations of significant abuse. [Ms Kimball] has raised issues of significant abuse which [Mr Ormond] has denied or limited. This may have to be tested.
143. As it is, it is clear that this history or journey whatever form it took will prevent the parents from being able to have an effective co-parenting relationship into the future and the writer urges that any arrangements made will require that the parents maintain a distance from each other at all times. Any communication between them will need to be limited and they may benefit from a parenting app such as App Close to impart child related information. It is also recommended that it would be of significant assistance for any arrangements for time spent to be very clearly articulated with failing agreement clauses as required.
144. In all, it appears that this family has been in crisis for some time. This has seemingly impacted the boys and their older sisters.
…
Specifically, the Court has requested that the writer deal with the following matters:
146. Any views expressed by the children and any matters (such as the children's maturity or level of understanding) that would affect the weight that the Court should take place on those views - The writer considers that the boys have been clear in their views that any time with their father needs to be carefully managed and supported by an independent third party for some time. The writer considers that they have been clear in suggesting that they would not manage overnight time at this stage. They presented as mature and clear in their discussions, particularly [X] who presented as more mature than [Y]. It is clear that [X] will require someone who he considers will listen to him and believe him. The writer has no issue with extended family undertaking this role as long as they are able to listen to the boys and meet their needs. It is expected that NDIS is unlikely to provide the supports required.
f) Recovery and rehabilitation of the Father with respect to drug and alcohol use - [the Father] has indicated that this is now under control. He has clearly indicated that, at times, it was not in control. The boys have spoken about their father drinking to excess and there being broken bottles in the back yard. The Court may need to gather further evidence to support the claim of sobriety as made by [the Father]. What is clear to the writer is that the boys anxiety would increase significantly if they were present with [the Father] and he began drinking. This is likely to be a trigger for them and is likely to put them on edge, waiting for associated behaviour such as yelling and other abuse. It is respectfully suggested that should [the Father] drink alcohol when with the boys or either of them they would be likely to refuse to return to his care again. As such, it appears that [the Father] has a choice to make, no alcohol and begin a reunification process with the boys or risk permanent refusal;
g) Any risk the Father poses to the children - Through the eyes of the boys, [the Father’s] past behaviour has been poor and has clearly put them at risk. [The Mother] has identified that she has been at risk. If the Court is satisfied that [the Father] has sufficiently addressed alcohol misuse then it is expected that the level of risk to the boys will have significantly reduced. The writer gained the view that [the Father] has done so and is now aware that his drinking in the past has caused damage. [The Mother] has raised other concerns about [the Father] around coercive controlling behaviour and the writer considers that this was seemingly primarily in relation to his relationship with her. The writer considers that the boys are getting older and as such their awareness of any risk for themselves will fine tune. They appeared to be aware of risk and [X] in particular was clear that he was able to call it out. It is considered that [the Father] is at risk of not having a relationship with the boys should his behaviour deteriorate whilst he is with them or if his behaviour become abusive of them or of their mother in front of them. As such it is again expected that the boys would withdraw from arrangements and the writer respectfully suggests that it is [the Father] who is on notice that any risk factors he may introduce, be it aggression, alcohol fuelled behaviour or such other issue will see a complete withdrawal of willingness to engage in any time with him;
…
RECOMMENDATIONS
On the information gathered it is respectfully recommended that the following be considered:
147. Consideration be given to an Order providing sole parental responsibility to [the Mother] with an obligation to inform and seek the view of [the Father] and to consider such view before making a decision. There should also be provision for [the Father] to inform [the Father] of any decision made once a decision is made. .
148. The boys remain living with [the Mother]
149. The boys spend time with [the Father] starting with supervised time with an agreed third party for daytime only with consideration given to time spent occurring;
a. midweek for a matter of hours,
b. on alternate Saturday and Sunday around sports and,
c. for special occasion times such as; Christmas, Birthdays, Father's Day,
d. time during the day for school holidays with specific dates provided or a reliable regime outlined where possible.
150. It is recommended that the time spent arrangement start slowly and increase incrementally. This should be done over a two month period as the immediate commencement of midweek and weekend time may be overwhelming for the boys and [X] in particular and see refusal occur.
151. It is recommended that exchange should occur at school or at … McDonalds with [the Mother] not getting out of her vehicle. Failing this exchange process being successful, the parents use [GG Contact Service] for exchange if/where available.
152. There be a suspension of time for; the boys birthdays, [the Mother’s] Birthday, Mother's Day and time at Christmas in the event that the boys are ordinarily in [the Father’s] care, and;
153.There be correspondence regarding the boys wellbeing and an authority to share medical and educational information so [the Father] can remain informed.
The Mother's position when the proceedings started was that the Father's application be dismissed pursuant to the rule in Rice v Asplund (1979) FLC 90-725 (‘Rice v Asplund’). That position was maintained until the commencement of the hearing this day, save that the Mother's outline of case proposed orders in the alternative in the event that the Rice v Asplund application was not successful.
The Rice v Asplund doctrine is that litigation is harmful to children, and that when final orders are been made and litigation is ceased, it is not in the children's interests that there be further litigation with all the stress, grief, expense, and conflict that litigation brings. That should only occur if there has been a sufficient change of circumstances that would justify that further inquiry, with all the stress and grief that comes with it. Quite recently, the Father proposed that his time with the children be supervised, including the below in his outline of care:
3. The children spend time with the Father as follows:-
(a) Each alternate Saturday from 10.00 a.m. to 4.00 p.m.
(b) From 4.00 p.m. to 7.00 p.m. Christmas Day 2023.
(c) By agreement in writing.
Such time to be supervised by a NDIS Worker or by [Ms C] or by [Ms B] save that Christmas time be supervised by [Ms C] or [Ms B].
At the commencement of the hearing before me, the Rice v Asplund position was not pursued, and the parties told me they had largely reached agreement in regard to the time the father should spend with the children. They agreed that the matter would otherwise be adjourned for mention in the February Circuit sittings of the Court.
The parties were apart on two issues. Firstly, they agreed that the Father's time would be supervised, but disagreed on who the supervisor would be. The Father relied on affidavits from the parties’ older daughters, Ms C and Ms B.
Ms C and Ms B, now 24 and 25 years old respectively, are estranged from their mother. The Mother puts responsibility for this entirely on the father. Ms C and Ms B put responsibility for that estrangement on their relationship with their mother growing up. I am unable to make a determination about that, and it may be that all of the now adults in the family have some responsibility for that tragic breakdown of relationship. I cannot make any finding about it.
The tragedy for these boys is that, notwithstanding the observations of the degree to which they enjoyed time with their father during the GG Contact Service observation, there hasn't otherwise been time.
It has been put that the GG Contact Service time went well because it was in the constrained environment of GG Contact Service. That does not mean it will go well at the Father's home, and that in particular the boys' memories of broken beer bottles at the Father's previous home, mean that he should not be permitted to see the children at his current home.
I permitted the Mother's solicitor to cross-examine both Ms C and Ms B, who were on affidavit. Ms C and Ms B were frank about the breakdown in the relationship with their mother. The issue of whether that breakdown in that relationship is entirely the Mother’s fault remains something that I cannot test on this interim hearing.
It is clear that the parties now agree that the boys would benefit from a relationship with their father, but are unable to agree about how that would progress.
Relevant law
In deciding what particular parenting orders to make I must regard the best interests of the children as the paramount consideration as commanded by section 60CCA the Act. I must consider the matters described in the act as primary considerations and additional considerations. I apply and take into account the whole of Part VII of the Act. In particular, I refer to sections 60CA and 60CC. Those provisions are as follows:
60CAChild's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
60CCHow a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Application of the law
It is clear that the family report placed significant weight on the boys' views, given their age and maturity that he observed. On the other hand, I am wary about placing too much responsibility on these 11-year-old boys, with all their advantages and disadvantages, for determining what their relationships will be with their parents. For example, if they tell their father they do not want to return to their mother at the end of their time with their father, they had better be returned to their mother, because that would not be something that they should be determining at 11 years of age. The parents should be making the decision about the time that the children spend with the other parent. They cannot, so it is up to the Court, with the assistance of the experts.
I place significant weight on the family report. Without the family report, the issue arises of whether supervision is required at all. As at February 2023, the opinion of the supervisors, albeit not with the expertise that the Court demands of family consultants, was that the time should move to unsupervised. It did not. We are now in November 2023, determining the same issue about supervision that started in September 2022.
The potential antipathy of Ms C and Ms B to their mother, and the potential of that to interfere with their sensible judgement about supervising the time with their brothers and their father is a matter that the Mother's solicitor has unsurprisingly placed significant weight on. That weighs heavily with me. However, having observed Ms C and Ms B in the witness box, I am satisfied that they are mature and professional young women, and Ms B has the advantage of being a mother of three small children. I am satisfied that Ms B and Ms C will bring to bear the promises that they make in their undertakings to the Court. I am cognisant of the degree to which they support their father in what they see as the injustice and unfairness of the boys not seeing their father. There is the potential for that to interfere with their proper sensible judgment, but on balance I am not satisfied that it will.
The mother proposed a paid professional supervisor shortly after the receipt of the family report, which was released on 23 October 2023. The parties were unable to agree on those provisions.
The family report has a little bit both ways as to whether there should be a paid professional supervisor or family supervisor. In the circumstances of this family utilising six months of the GG Contact Service facility, I am not satisfied that it is in the boys' best interests to have the intrusion into their lives of their relationships with their parents being further supervised professionally.
There is one further matter that needs to be acknowledged, and that is that Ms C and the Mother have been able to organise suitable times for Ms C to collect the boys for the Father to see them between themselves. That is to the credit of Ms C, the Mother and the Father, although I suspect more credit to Ms C and the mother, but to some degree at least the Father should have credit in acquiescing to it.
Balancing all of those matters, I am satisfied that it is in the boys' best interests that the supervision should be by Ms C and/or Ms B. I notice they are both sitting in Court, and have heard what I have got to say about their relationship with their mother interfering with their judgement. They are both nodding, so at least they have heard that. It is to be hoped that somehow the terrible chasm between the boys' mother and her older daughters can be bridged, though that is not my primary concern.
My primary concern is the relationship that the boys have with their parents. It would be troubling if the boys' relationship with their father was to go the same way as the girls' relationship with their mother has gone. With the boys' circumstances, they may not be able to ever have the prospect of renegotiating that, where at least Ms C and Ms B have some prospect of being able to, renegotiate their relationship with their Mother. The Mother is supported in Court by her NDIS worker, that is to provide support for her anxiety, some degree of mental illness, and significantly post-traumatic stress disorder arising from tragic circumstances thrust upon her in her workplace.
The other issues I have to decide is whether there should be an embargo or restriction on the Father spending time at his home, where he lives with his partner.
I will take into account that the Father has undergone the Men’s Behavioural Change programme. That is no magic wand, but not everyone does undergo it.
Further, the Father has at least, to Ms B, but it would appear not to the children's mother, apologised for his aggressive, or yelling, behaviour that she had witnessed during her childhood.
I also take into consideration the Father then undergoing the hair follicle tests in mid-2022 and mid-2023. Each cover a three-month period. The results of both of those tests show no recurrent problem with alcohol, at least as far as the hair follicle test is concerned. It is common ground that there will be a restraint on the Father consuming alcohol during his time with the children.
In all of those circumstances, I am satisfied that there should not be a restraint on the boys' time with their father at their father's home.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 13 December 2023
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