Ostell & Ostell
[2023] FedCFamC1F 375
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ostell & Ostell [2023] FedCFamC1F 375
File number(s): MLC 12242 of 2018 Judgment of: MCNAB J Date of judgment: 19 May 2023 Catchwords: FAMILY LAW - PARENTING – Where the mother has relocated to Western Australia and the children haven’t seen their father in two years – Where there are allegations of family violence – Where there are allegations that the father is actively seeking to undermine the children’s relationship with the mother – Where there is an order for no time and no contact between the children and the father – Where the father seeks for the children to be relocated to Melbourne and live in his primary care – Where the oldest child has expressed clear wishes to live with the father – Where the family report writer indicates the children’s wishes should not be given weight as they have been unduly influenced by the father Legislation: Family Law Act 1975 (Cth) s4, s4AB, s60B, s60CC s61DA Cases cited: A v A (1998) FLC 92-800
B and B (1993) FLC 92-357
Bant & Clayton [2019] FamCAFC 198
Betros and Betros [2017] FamCAFC 90
Blinko & Blinko [2015] FamCAFC 146
Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5
Germain & Germain [2017] FCCA 1980
Isles & Nelissen [2022] FedCFamC1A 97
Johnson and Page [2007] FamCA 1235
M v M (1988) 166 CLR 69
Ostell & Ostell [2021] FamCA 451
R & C [1993] FamCA 62
Slater & Light [2013] FamCAFC 4
Stott & Holgar [2017] FamCAFC 152
Truman v Truman (2008) 38 Fam LR 614
Division: Division 1 First Instance Number of paragraphs: 169 Date of hearing: 11 – 13 April 2023 Place: Melbourne Counsel for the Applicant: Ms Taylor Solicitor for the Applicant: Ambrose Kampen Counsel for the Respondent: Mr Scriva Solicitor for the Respondent: Pentana Santon Lawyers Counsel for the Independent Children's Lawyer: Mr Eidelson Solicitor for the Independent Children's Lawyer: Trapski Family Law ORDERS
MLC 12242 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS OSTELL
Applicant
AND: MR OSTELL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCNAB J
DATE OF ORDER:
19 MAY 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Mother have sole parental responsibility for the children X born 2009 and Y born 2011 (“the children”).
3.The children live with the Mother.
4.The children shall spend supervised time with the Father on four (4) occasions in each calendar year in Western Australia for up to six (6) hours at the Father’s expense and at such dates and reasonable times as can be facilitated by the professional supervisor.
5.For the purposes of paragraph 4 of these Orders, the Mother via her Solicitors shall nominate the name of three (3) professional supervisors and the father shall choose one (1) of the three (3) professional supervisors and advise the Mother’s Solicitor of his nomination.
6.The Mother be at liberty to provide the professional supervisor with copies of the Family Reports of Ms B, Dr C and Ms E.
7.The children otherwise spend no time and have no communication with the Father, his servants and agents (including but not limited to the paternal grandparents, MR D and MS F and any other members of the paternal family).
8.Paragraphs 4 and 7 of these orders apply to the children until they reach the age of 16, and thereafter the children or each of them be entitled to spend time with and communicate with the father according to their wishes, with the mother to facilitate such contact.
9.The Father, his servants and agents (including but not limited to the paternal grandparents), be and are hereby restrained by injunction from contacting or having any communication with the Mother and the children (or either of them) of any kind, including but not limited to:
(a)Approaching the Mother, the children or either of them;
(b)Remaining in the presence of the Mother, the children or either of them;
(c)Allowing the children or either of them to be or remain in their presence or care;
(d)Attending at the Mother’s/children’s home or school(s), workplace or extra‑curricular activity;
(e)Attending at any place where the Mother, children or either of them are staying, attending or living from time to time;
(f)Communicating with the Mother, children nor either of them by telephone, message or any electronic or non-electronic means;
(g)Publishing any material, information or images of the Mother, the children or either of them on social media or the internet; or
(h)Providing the children or either of them with electronic devices or any other means of communicating including but not limited to phone credit or internet access.
10.Within fourteen (14) days of the date of these Orders, the Father terminate any insurance policy held by him in the name of the children, and provide confirmation of same to the Mother’s Solicitors.
11.The Mother be at liberty to apply for passports for the children without the requirement for the Father’s consent and the Minister dispense with the requirement for the Father’s consent pursuant to s.11(5)(b) of the Australian Passports Act 2005 (Cth).
12.The Mother shall hold the passports for the children.
13.The Mother shall be permitted to travel outside of the Commonwealth of Australia with the children.
14.Within fourteen (14) days of the date of these Orders, the parties do all such acts and things and sign all such documents and consents as may be necessary to remove the children from the Airport Watchlist.
15.In the event either party fails to sign any documents required by these Orders within fourteen (14) days of a written request to do so, pursuant to Section 106A of the Family Law Act 1975, the Registrar of the Federal Circuit and Family Court of Australia is hereby appointed to sign any necessary document on behalf of the defaulting party.
16.Within seven (7) days of the date of these Orders, the Independent Children’s Lawyer explain these Orders to the children and thereafter the Order appointing the Independent Children’s Lawyer be discharged.
17.All extant Applications and Responses be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ostell & Ostell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McNab J:
This matter involves the parenting arrangements between Mr Ostell (“the father”) and Ms Ostell (“the mother”) for X, age 14, and Y, age 12 (collectively “the children”).
The children and the mother are currently living in an undisclosed location in Western Australia, and have been since orders dated 29 June 2021 permitted the relocation. The children have spent no time with the father since this relocation. The orders also provided for there to be no contact between the father and the children, however, there is evidence of X contacting his father frequently by letter and snapchat, and at least one instance of the father communicating directly with X.
The mother seeks orders in terms of the minute handed up by her counsel on the last day of trial including that:
(1)She have sole parental responsibility for the children;
(2)The children live with her;
(3)The children spend supervised time with the father on four occasions each year in Western Australia for up to six hours at the father’s expense;
(4)That through solicitors, the mother nominate three supervisors and the father choose one and advise the mother;
(5)The mother be at liberty to provide the supervisor with copies of all family reports completed for the Family Court;
(6)The children otherwise have no communication with the father or his servants or agents, and the father and his servants and agents be restrained by injunction from communicating with the children and mother; and
(7)A notation that the children be restrained from communicating with the father.
The father seeks orders in terms of his amended response filed 29 March 2023 that:
(1)The children live with him;
(2)In the event the mother remains in Western Australia, the children spend half of the mid-year and Christmas school holidays with the mother each year; and
(3)In the event the mother returns to Victoria, the children spend alternate weekends with the mother, and half of the school holidays and special occasions.
In addition to these orders, the father brought an application in closing submissions made on his behalf that in the alternative to the orders in his amended response, the court order a separation of the children, and X be permitted to live with him, and Y be permitted to live with the mother.
The ICL sought orders in line with the proposal of the mother in her initiating application with the adjustment that these orders apply to each child until they reach the age of 16, and thereafter they be able to choose their own arrangements. The ICL sought orders that:
(1)The mother have sole parental responsibility for the children;
(2)The children live with her and spend no time nor communicate with the father; and
(3)The spend time arrangements subsist until each child turns 16 at which time they spend time with the father in accordance with their wishes and preferences.
The mother relied on:
(1)Her Outline of Case filed 14 February 2023
(2)Minute of Orders handed up during the hearing
(3)Trial Affidavit filed 15 September 2022
(4)Updated financial statement filed 15 September 2022
(5)Family Report of Ms E filed 11 January 2023
(6)Family Report of Dr C filed 18 June 2021
(7)DFFH s 67Z Response dated 14 April 2022, 28 April 2021 and 18 June 2021
The father relied on:
(1)Trial affidavit filed 15 February 2023
(2)Case Outline filed 29 March 2023
(3)Amended Response filed 29 March 2023
(4)Family Report of Ms E filed 11 January 2023
(5)Family Report of Dr C filed 18 June 2021
(6)Family Report of Ms B filed 14 July 2020
(7)DFFH Report dated 7 December 2022, 22 March 2022 and 14 April 2022
(8)Affidavit of Dr G filed 28 May 2021
The ICL in this matter relies on the following:
(1)Family Report of Ms E filed 11 January 2023
(2)DFFH s 67Z Response dated 14 April 2022, 28 April 2021 and 18 June 2021
BACKGROUND
The parties commenced a relationship in 2002, married in 2004, and separated in October 2015.
The mother is currently working part time in the health sector whilst studying.
The father works part time as a manager of H Company, a business which is based in J Town, Victoria.
The mother alleges that she suffered coercive and controlling family violence perpetrated by the father during the relationship, and continuing post separation. The father denies these allegations.
Initially upon separation, the children resided with the mother and spent time with the father as negotiated between the parties from 2015 to 2018. There is no evidence about the specific arrangement during that period.
In about October 2018, X reportedly refused to return to the mother’s care, and the mother initiated proceedings in the Federal Circuit Court. On 19 November 2018, DFFH became involved and issued a protection application in the Children’s Court, and received a Children’s Court Report on 10 December 2018. The father was assessed “as responsible for harm in relation to perpetrating family violence, the emotional impact it was having on the children, and [Mr Ostell] taking no responsibility for his ongoing behaviours”.
The father submits that this report was inaccurate and provided a scathing opinion of himself. He argues that all subsequent reports were based on this first report to a significant extent. This report of the DFFH has been tendered into evidence.
In late 2018, the mother applied for and obtained an IVO against the father which named herself and the children as affected family members. She describes the conduct giving rise to the IVO in her trial affidavit from [60], all of which is denied by the father.
In late 2018, the Children’s Court of Victoria made orders permitting the father to spend supervised time with the children three times each week, which continued for a period of 18 months. The matter then was withdrawn from the Children’s Court in early 2020 and was filed in the Federal Circuit Court. However, the DFFH remained involved.
Ms B provided a Family Report dated 14 July 2020, which made recommendations that the children spend unsupervised time each Saturday with the father from 9am to 7pm. If this time went smoothly for six months, she recommended the children commence spending time each alternate weekend from after school Friday to 5pm on Sunday, and gradually increase this arrangement.
Thereafter unsupervised time commenced on 11 August 2020 following the orders made by consent by Judge Stewart on the basis that the father gave an undertaking that he would not commit family violence, that he would follow the orders, not remove the children from the mother’s care, and the paternal grandparents would not interfere.
The children were not returned to the mother under these arrangements, and the father alleges this is because the children refused. Orders were made on 17 March 2021 that the father return the children to the mother. When the children were not returned, further orders were made on 19 March 2021 that the children be returned to the mother and spend no time with and have no communication with the father.
In late 2020, the parties agreed for the children to commence counselling with Dr G, a psychologist. On 26 May 2021 the father obtained a report from Dr G. The report was based on “observation, clinical interview and formal psychological testing” of the children and the father, and expressed the view that the children’s mental health would be significantly harmed if they were not permitted to spend time or communicate with the father. Dr G did not interview the mother.
Within a short time of unsupervised time with the father commencing, the mother submits that the father engaged in coercive and controlling family violence which had the effect of undermining the mother’s parental authority and alienating the mother from the children. The mother gave uncontested evidence that she did not see the children from November 2020 to March 2021. The mother submits this was due to the father withholding the children, whilst the father maintains he encouraged the children to see the mother, but they refused.
On 18 June 2021, a second family report was prepared by Dr C which assessed that the children had been subject to alienation by the father, and recommended that the mother be permitted to move to Western Australia, and there be no communication between the children and the father.
Orders were made on 29 June 2021 after a contested hearing permitting the mother to relocate to Western Australia with the children, and reasons were published. The judgment of the Senior Judicial Registrar, as she then was, canvassed the reports of Dr C and Dr G. Dr C was cross examined by experienced counsel during the interim hearing. At [25] of her judgment, the SJR summarises Dr C’s observations as follows:
•a) The children expressed wanting to reside with their father, and spend no time with their mother at all, although [Y’s] views on this changed after spending extended time with her Mother. [Dr C] opined that the children’s views regarding time with their mother and their relationship with her were not commensurate with their complaints of her care and recommended that no weight be placed on their wishes, which she considered had been contaminated and unduly influenced.
•b) The Father had demonstrated a clear and consistent inability to support the mother-child relationship, shown a disregard for court orders and the advice of professionals, made decisions lacking a child focus and involved the children in the dispute, including by sharing information about the court proceedings with [X].
•c) The time spent in the father’s and paternal grandparents’ care had had disastrous consequences for the children, particularly for [X], whose relationship with his mother was severely damaged, but also for [Y].
•d) The Father had limited insight, poor boundaries and judgment and had exhibited persistent and dangerous behaviour.
•e) Both children were experiencing psychological vulnerabilities.
…
[Dr C] opined that so long as the children were having contact with their father, it would be at the ‘cost’ of their relationship with their mother. [Dr C] recommended that the children remain in the care of the Mother and have no contact whatsoever with the Father or the paternal family. She further recommended that they reside in an undisclosed location a great distance from the local area of the Father, such as in another state.
At [32], the SJR summarises Dr C’s evidence under cross examination:
•a) an observation that [Y] was becoming “more troubled as time goes on”;
•b) an acknowledgment that [X] in particular has a very strong attachment (though not necessarily a secure attachment) to and relationship with his father;
•c) an acknowledgment that if [X] were to be moved to Western Australia and have absolutely no contact with his father whatsoever, that would represent a grave and severe risk to his psychological, emotional and physical health and his personality; coupled with a view that the proposed relocation would be “the best of a bad lot of options” for [X], and to a much lesser extent, [Y];
•d) a denial of any bias and an indication that she had “pretty much completed” her assessment prior to reading the reports of [Ms B] and the Children’s Court Clinician [Ms K] and had formed her views independently of the views of any other experts;
•e) a view that the children are “in turmoil”;
•f) a view that the week about arrangement proposed by the Father “would further perpetuate the mental unrest and unease and the turmoil that these children are experiencing”;
•g) a view that [X] is angry at the courts; the Independent Children’s Lawyer; Child Protection; the Police; at everyone in authority and that he felt empowered, at the age of 12, to defy authority, which [Dr C] described as “dangerous” and as indicative of a very poor prognosis. This was associated by [Dr C] with the Father’s exposure of the child to the court material;
•h) a view that this is a “sad and heartbreaking” case in which the children would be the losers whatever the outcome and that her recommendations represented “the very best of a bad lot of options”;
•i) a view that the children would struggle to repair their relationship with their mother if they remained in contact with their father;
•j) expression of concern about [X] being sent the message that if he behaves poorly he will get what he wants;
•k) an indication that she had undertaken a risk assessment and found that [X] was not suicidal;
•l) a view that the current circumstances, pursuant to which the children had frequent DFFH and Police involvement in their lives were “disastrous”; and
•m) a report that the father has been quite vocal about his belief that court orders matter little and that what’s in his perspective of the children’s best interests is what matters most.
The children have not spent time with their father since this relocation and remain in Western Australia.
In August 2021, X and the father communicated via Spotify, and the father encouraged X to leave his mother’s care, for X to suggest to authorities that he is “scared and abused”, that his mother cannot care for him, and for X to enter foster care where the paternal family would collect him. Whilst Spotify is an application for streaming music, the father and X communicated by means of creating playlists, with the title of the playlist being the communication.
The father reportedly continues to receive one-way communications from X via regular snap chats and letters. The father annexes these communications to his affidavit, where X is reportedly experiencing suicidal ideation, mental health issues, and makes threats against the mother. Whilst the earlier communications raise these themes, the later communications are not as vitriolic and are more in the nature of a report on events. In an undated snapchat he states:
When I get back to Victoria I will find that bullshit cop named … and kill his … sons. As well as his girlfriend and then finally pull the guts out of him.[1]
[1] Court book page 341.
Similarly in a undated snapchat:
I’ve been kept awake for past hour because my head is filled with thoughts of brutally murdering that fucking PIG that kept coming to [Ms Ostell’s] aid when ever I caused havoic (sic), when I get back I will find his son and beat the fucking shiitttt out of him. I’m going to disfigure his face to the point where people can’t even look at him. And YK that fat fuck… ya he has a son my age and I’m gonna find him and drive his head in with a metal pole. I’m talking brain damage.[2]
[2] Court book page 360.
I refer to a letter dated 3 December 2021:
Today I tied a shirt around my neck. I seriously wanted to go unconscious because didn’t feel like life was worth it. [Ms Ostell], the fucking witch took everything I have away from me again. My literal life support. …[3]
[3] Court book page 376, letter dated 3/12/21.
Another letter dated 5 December 2021 states:
I’ve been thinking about the kid that snitched on me about my phone and I was going back and forth on it. I’ve now come to the conclusion that I’m gonna bash the shit out of him. He has low level of autism so he probably didn’t know the difference. But still I’m going to get him alone and punch him until he’s been knocked over. Also I don’t care about the consequences because I have nothing and unless police are involved they can’t do anything to me. …[4]
[4] Court book page 380, letter dated 5/12/21.
In comparison, later letters express the child’s sadness in leaving his friends in Western Australia if he was to resume living with the father.[5]
[5] Court book page 559, letter dated 28/07/22.
Following the relocation to Western Australia, it is clear from the evidence of teachers and independent sources that the children are settled and are performing well academically, socially and in their extra-curricular activities.
There is currently an IVO in place against the father and the paternal grandparents, which is set to expire in mid-2023. The father is opposing it being extended.
The mother alleges that in the father’s care, the children are exposed to developmental, emotional and psychological risks, and the potential for the children to be alienated from her.
ISSUES IN DISPUTE:
(1)Care arrangements for the children, including who they live with and whether there are spend time arrangements;
(2)The assignment of parental responsibility;
(3)Whether the children are at risk in the father’s care;
(4)The weight to give to the children’s wishes, particularly X’s wish to live with the father; and
(5)Whether the father engaged in coercive and controlling family violence towards the mother.
CHRONOLOGY
The parties agree on the following chronology provided by the ICL:
Date Event 1977 Father born. 1980 Mother born. 2004 Parties married 2009 X born. 2011 Y born. 2015/2016 Parties attended on Ms M, Psychologist. 1 October 2015 Parties separated on final basis. 2018 Divorce is granted. 22 October 2018 Mother filed Initiating Application. 6 November 2018 Mother deposed Father took X from her care. Late 2018 Intervention Order made with Mother and children as AFM’s and Father as Respondent. 12 November 2018 X was returned to the Mother’s care. 19 November 2018 DHHS commenced involvement. Late 2018 Father breached the IVO by posting a photo of Y on Facebook. Late 2018 Mother made statement to Police regarding the Facebook post and concerns the Father had unregistered firearms. 27 November 2018 Father commenced supervised time with the children. Late 2018 Father made ultimately unsuccessful application to remove the children from the Intervention Order. 29 November 2018 ORDERS of Judge Stewart (in chambers): Matter adjourned. Late 2018 Children’s Court made Interim Accommodation Order providing for the children live with the Mother and spend time with the Father for 1 hour, 3 times per week supervised by DHHS. 31 January 2019 ORDERS of Judge Stewart (by consent): Financial Orders with notation that an Interim Accommodation Order of 10 December 2018 was in place. Early 2019 Intervention Order made protecting the Mother with the Father as Respondent.
Further Intervention Order made protecting the children with Father as Respondent.23 March 2019 ORDERS of Judge Stewart (in Chambers): Financial and procedural Orders. 3 April 2019 Father filed Response. 24 June 2019 ORDERS of Judge Stewart: Trial directions. 4 December 2019 ORDERS of Judge Stewart: ICL be appointed. 13 December 2019 ORDERS of Judge Stewart:
Family Report be prepared;
Trial Directions.
By ConsentChildren live with the Mother;
Parties enrol at L Contact Service, City U;
Until the children commence at L Contact Service, children continue to spend time with Father per the Interim Accommodation Order;
Father be permitted to telephone the children each Monday between 6-6:30pm and on special occasions;
Father attend upon Ms N or another therapist recommended by the ICL; and
The Father be permitted to send gifts and cards via the ICL.21 February 2020 ORDERS of Judge McGuire: DHHS prepare s69ZW report. 25 June 2020 Father’s treating therapist Ms N released a report. 15 July 2020 ORDERS of Judge Stewart (in chambers): Family Report of Ms B released. Mid-2020 Intervention Order protecting the children varied by way of Undertaking. 11 August 2020 ORDERS of Judge Stewart: Trial directions.
By consent
Children spend with the Father on a graduating basis initially each Saturday from 10:00am to 7:00pm and on the completing of each step culminating in each alternate weekend from conclusion of school Friday to 7:00pm Sunday and each alternate Thursday;
Children communicate with the Father via telephone each Tuesday for 30 minutes and at the child’s request but not for more than 30 minutes;
Without admitting necessity, Father be in substantial attendance during the children’s time with him.
Parties enrol X in O School;
Father continue to attend therapy;
Father restrained from communicating with the Mother and attending the Mother’s house;
Updated Family Report 7 months after this Order; and
Upon release of Family Report, parties attend FDR.12 August 2020 ORDERS of Judge Stewart (by consent): Final Property Orders. Late 2020 Parties agreed for children to commence counselling with Dr G. 28 November 2020 Mother deposed she did not spend time with X from this time until March 2021 other than when the Father sent him to perpetrate family violence. 8 December 2020 Previous ICL met with the children. 29 December 2020 Father withheld children. Offered the Mother supervised time which she declined. 8 January 2021 Father advised he would return the children to the Mother’s care, at changeover the children (whilst laughing) ran away from the Mother’s car back to the Father. 13 January 2021 Y returned to the Mother’s care. 17 January 2021 Mother deposed Father refused to return Y following time with the Father. 22 February 2021 Mother deposed Father facilitated X breaking into the Mother’s home to take some personal items. Early 2021 Intervention Order made in mid-2020 protecting the children extended to late 2021.
Intervention Order made early 2019 protecting the Mother extended to late 2021.17 March 2021 ORDERS of a SJR:
• Father presents the children to City P Police Station by 9:30pm; and
The children live with the Mother and the Father’s time be suspended until further order.18 March 2021 Children returned to the Mother, once they arrive home the children left the property, X was observed to make a phone call and shortly after the children were collected by the paternal grandfather. 19 March 2021 ORDERS of a SJR:
Children be returned to Mother by 9:30am next morning or a Recovery Order be issued with, the children live with the Mother and spend no time and have no communication with the Father until further Order and children be placed on airport watchlist for two years.
Paternal Grandparents restrained from contacting or communicating with the children; and
That should the Mother change living arrangements, she notify the ICL.Early 2021 Mother temporarily relocated to Western Australia with the children, returned a short time later. 16 April 2021 ORDERS of a SJR: Matter adjourned. 1 May 2021 X collected by neighbors of the paternal grandparents (Q Family) and is later returned to the Mother by Police. 5 May 2021 ORDERS of Judge Stewart: Matter transferred to Melbourne Registry of Family Court and DFFH documents released. 5 May 2021 X ran away from home, lived with the Q Family for approximately 1 week. 13 May 2021 ORDERS of a SJR (in Chambers): Parties arrange for children to be bought to the Registry on 17 May 2021. 14 May 2021 ORDERS of a SJR: Family Report of Dr C released. 17 May 2021 ORDERS of a SJR: Children be released into care of the Mother and children be bought to the Registry on 4 June 2021. 25 May 2021 Mr R contacted Child Protection to advise X was in his care and he was advised by Dr G to collect X. Mr R states the should X be returned to the Mother ‘something terrible could happen. You know there is a lawn mower and petrol there’. X is returned to the Mother’s care with Police assistance. Mid-2021 X tipped hot soup on the Mother, disabled smoke alarms and threatened to burn the Mother’s house down. 26 May 2021 Dr G provided Psychological Report on both children. Mid-2021 Interim Intervention Order made with Mr R as Respondent protecting the Mother and children.
Mother’s solicitor wrote to Dr G withdrawing her consent for the children to engage with her.2 June 2021 ORDERS of a SJR (in Chambers): Matter adjourned. Mid-2021 Police advised Child Protection X was living a friend of the Father, Mr T. 8 June 2021 X returned to the Mother’s care. Mid-2021 The Father presented to City P Police Station with X. 9 June 2021 ORDERS of a SJR: Matter adjourned, children be bought back to court on the adjourned date and Dr C attend Court and speak with the children. Mid-2021 X attended S Hospital with the paternal grandparents to obtain a mental health assessment. The Mother collected X. 18 June 2021 ORDERS of a SJR: Judgment reserved on a date to be fixed. 29 June 2021 Judgement of a SJR, Orders made:
Children live with the Mother and the Mother have sole parental responsibility;
The children spend no time and have no communication with the Father or members of his family;
The Father be restrained from facilitating the children’s attendance on Dr G; and
The Mother be at liberty to relocate to Western Australia with the children.Mid-2021 Mother relocated to Western Australia with the children. Father has not spent time with the children since then. 8 July 2021 ORDERS of a SJR (in Chambers): Matter adjourned and all extant interim applications be dismissed. Mid-2021 Mother deposed the Father made contact with X via Spotify. Father was arrested with persistent breach of the IVO and sentenced to a Community Corrections Order.
Final Intervention Order made protecting the children for 4 years.Late 2021 Intervention Order made in Western Australia against paternal grandmother and paternal grandfather protecting the Mother. Late 2021 Final Intervention Order made protecting the Mother and Children from Mr R. Late 2021 Mother made application in Western Australia for Victoria IVO to be cancelled and replaced with a new Intervention Order. December 2021 Mother advised by WA Child Protection that X had sent a parcel with over 40 letters of a violent and graphic nature to the Father and paternal grandparents. 20 April 2022 ORDERS of a JR (in Chambers): DFFH documents released. 28 July 2022 ORDERS of Justice Bennett: s102NA applies, the Father make application for funding with VLA and trial directions. Late 2022 IVO against Mr R expired. November 2022 Mother contacted by Western Australia Child Protection who advised the Father had been communicating with X via Snapchat. 15 November 2022 ORDERS of a JR (in Chambers): Subpoena
Objection hearing listed.2 December 2022 ORDERS of a JR (in Chambers): Subpoena hearing vacated. 13 December 2022 ORDERS of Justice Bennett (in Chambers): Procedural Orders. 20 January 2023 ORDERS of Justice Bennett (in Chambers): Orders for redaction of Family Report and restraint from discussing Family Report (inter alia). 27 January 2023 ORDERS of Justice Bennett (in Chambers): Family Report of Ms E released. 1 February 2023 Case Management Hearing before Justice Bennett. 2 February 2023 ICL scheduled to meet with children via Zoom. 9 February 2023 Matter listed for Dispute Resolution Conference before a Deputy Registrar (Part 2). 16 February 2023 Matter listed for 7-day Final Hearing before Justice Bennett. 15 May 2023 Contested Hearing for Mother’s WA Intervention Order Application against the Father. Early 2025 IVO against the Father protecting the children expires. Late 2026 IVO against the paternal grandparents protecting the Mother expires. EVIDENCE
Family Violence
In her trial affidavit, the mother describes incidents of family violence including physical, verbal, and financial abuse. She states that the father was controlling of their finances, which made it difficult for her to budget for daily expenses. The father refused to provide regular income from his business to support the household, and the mother was often reliant on credit cards to meet expenses. The mother states she also experienced emotional and psychological abuse, and her personal belongings were often discarded or criticised by the father. She also describes that the father would use her mobile phone to send messages to friends in her name, causing friction. She states he also had specific requirements for household items, such as the height of kitchen blinds and the number of plates in a drawer, which she found controlling. She states that he would upend drawers and leave contents on the floor. Additionally, after their family dog was put down, she states the father left the body on the driveway for two days despite the mother’s requests to bury the dog, causing distress to herself and the children.
The mother relates at [56] – [59] of her trial affidavit an incident in late 2018 when the children had returned from a camping trip with the father. The father was heard to say to X "have you got the stuff?" and handed X a black plastic bag which the mother assumed had wet clothes in it.
The mother states that when they arrived at her home, X started yelling from outside the house, "mum there's a snake. I saw a large black snake under the clothes line". She says that she shouted for the children to stay away from the snake, but instead X ran towards the snake, jumped on it and grabbed it. X then picked up the snake by the head and smiled at the mother, at which point she realised that the snake was dead and saw that the black plastic bag contained blood.
The mother became distressed and began to cry, which in turn caused the children to become upset and cry. The boy then asked how long it took to die from snake venom. The mother put the boy in the shower. The father at [275] of his trial affidavit says that the snake was run over on the camping trip, that X asked to take the snake home and that the father had reluctantly agreed to this. Later that day X sent a message to his father saying "mum cried at the prank". He says that after he received a text from X he responded "that's not good". He then goes on to provide a commentary as to why, in his view, the mother's concerns about snake venom on a dead snake were misguided.
She states the father engaged in risky behaviour with the children to make her anxious and threatened her and the children's safety, such as pretending that she drowned in the dam and driving the 4-wheel-drive into the dam while the children were inside.
This event in 2018 forms part of a narrative of events including the one in late 2018. The mother gives evidence that she entered the house through the laundry and that the father was aware that she was there. She says at [37] of her trial affidavit that she heard the father say:
“Mummy's not coming home as she has drowned in the dam, blub, blub, blub". [Y] was around 4 years old at the time. Shortly after, [Mr Ostell] drove the 4WD into the dam which was partly submerged with the children in it. [Mr Ostell] then sent me a text message with a photo of the children standing next to the submerged 4WD in the dam. I was terrified that he was going to either drown me or the children.
In response, the father states at [254] of his trial affidavit:
… regarding the alleged incident about “mummy drowning in the dam”, I have no specific recollection, but very much doubt it happened as she has described. To link this with the time when the 4WD slipped into the shallow lagoon is deceitful. They may have happened in the same year, but they were completely unrelated. In neither case was there the slightest sinister intent to traumatise [Ms Ostell] or the children. The vehicle slipped sideways off the regular farm track after rain was a complete mishap, managed by me effectively to avoid any real danger. There was no trauma to the children as is evident on their faces in the photo, and it was normal for [Ms Ostell] and I to communicate with photos and texts about our activities. I highly doubt that [Ms Ostell] was terrified, and believe she is dramatizing this event for the purpose of the court. This was not raised with me at the time.
She submits that he also told the mother that he often dreams about killing people and babies, and wrote an email to her which stated, “What would you do if you saw the children dead on TV?”, which she interpreted as a threat to kill the children.
The mother details that the father has breach both court orders and the IVO on numerous occasions, and has been charged for breaching the IVO on 2 occasions.
The subpoena material from Victoria Police was tendered into evidence. The report shows several charges of breaching the IVO, including persistent breaching of the IVO, some of which were withdrawn or struck out. In mid-2021 he was charged with persistent breaches of the IVO and sentenced to CCOs, required to undergo a Men’s Behavioural Change program and had to comply with bail conditions. These breaches are summarised by the mother in her trial affidavit and include waiting outside her property to pick up the children, posting messages about the children on Facebook and approaching her at school events.
The reports to police include reports from the DFFH reporting “manipulative and inappropriate conversations occurring during supervised phone calls”, including “instructing the children that child protection were withdrawing and he was now ‘Passing them the baton’”. The report from the DFFH to police also states “I believe [Mr Ostell] was encouraging the children to run away to his home. [Mr Ostell] also went to the children’s school […] and told the school nobody was looking after the children’s wellbeing.”
One report states that the mother overheard a phone conversation with the children over speakerphone between the father and children as follows:
During this conversation the rp (mother) overheard the resp (father) repeatedly asking the AFM’s (the children) who they wanted to live with the AFM stated that he wanted to live with his father. The resp repeatedly pestered his daughter, [Y] about where she wanted to live and eventually she stated that she wanted to live partly with the resp and partly with the rp. The Resp stated the AFM that he would pass these messages on. The resp then told the AFM that he would message him via Instagram and the AFM told him that he would delete the message, to which the Resp replied “that would be good”.
…
The [AB School] Principal is extremely concerned that the Resp is manipulating and coaching the AFM in order for the AFM to come and live with him and the Resp has been forceful and demanding in his requests of the school to provide him with information on what has been occurring at the school. …
The police state in the subpoena material “although the breaches are relatively minor it appears the Resp is testing the boundaries in relation to contact with the AFM”.
The father, in his trial affidavit, denies all allegations of family violence the mother alleges are perpetrated by him against her and the children. The father submits that it was these false allegations that led to the involvement of child protection and the bringing of the protection application in late 2018.
Having regard to the other allegations involving the father, including the "prank" involving driving the car into the dam, I find it more probable than not that the child was put up to “prank” the mother with the snake by the father and that is confirmed by the short message about the prank without there being any need to explain what the prank was. I accept that the incident would have been extremely distressing for the mother. Any reasonable parent would have been extremely upset to hear that a child had done this of his or her own volition. There was no evidence that this upset or concern was communicated to the child other than the father saying “that's no good”. I regard this incident as a significant act of family violence with X being used to cause distress to the mother at the instigation of the father. The father will have known that this incident was likely to cause significant distress to the mother.
Parenting
The mother alleges that while the children were in the father’s care, he alienated them from her to the extent that she submits it has become impossible for the children to have a relationship with both parents. She submits that he undermined her parenting ability, and does not consider her emotionally able to parent the children.
She provides examples of the father telling the children that “there is something wrong with mummy’s brain”, and “mum doesn’t like cuddles”. She also states that the father is involving the children in inappropriate parental conflict, and refers to Y telling her that she “got daddy tissues when he is crying on the floor”.
She also alleges that the children were at risk in the father’s care as he was in possession of unlicensed firearms, and he allowed the children, in particular X, access to these firearms.
The mother provides background of the situation between August 2020 and June 2021, leading up to orders being made for her relocation to Western Australia.
She gives evidence that the behaviour of the children deteriorated significantly after they started spending unsupervised time with their father in August 2020. Y became anxious and withdrawn, while X became angry and non-compliant. She states that the father pushed boundaries in relation to the court orders, including providing the children with their own mobile phones without the mother's consent. He also encouraged frequent contact with the children through phone calls and social media.
She gives as an example 20 November 2020 when the children were supposed to spend time with the father and return to the mother on 22 November 2020. However, the mother became suspicious that the father might not return the children as planned, and when she texted him on 22 November 2020 to confirm, he replied that the children were refusing to return because they felt distressed and unsafe at their mother's home. The mother went to the scheduled meeting point to pick up the children and the children did not attend. The next day, the mother received a message from the principal of the children's school saying that they had expressed a desire not to return to her home and that they felt unsafe there. The mother eventually brought Y home on 24 November 2020 but X refused to return and ran away.
The mother gives evidence that X was running away frequently, and she decided to allow him to remain with the father rather than risk him suffering physical harm if he continued attempting to run away.
On 24 December 2020, Y was supposed to spend time with the father for Christmas, but the father did not return her to the mother until 11 January 2021. Leading up to the return of Y, X phoned the mother to tell her “[Y] will only get in the car if she can spend two days with you and then come back to play with her cousins." It is alleged that the father put X up to saying this.
On 19 January 2021, when the mother attended a changeover where the children were meant to return to her care, X approached her and said the following before returning to the father’s car:
I don’t want to be with you, I don't love you and I don't even like you. You have told horrendous lies to keep me away from my father and I have read it in the reports and until you apologise for your lies, I don't want a relationship with you.
She gives evidence of repeatedly attending school to pick up Y for changeover, and the father had already attended to collect her, or Y refused to go with her and said, “Dad said to catch the bus home”.
In early 2021, the mother was contacted by child protection, who informed her that the father had contacted them to tell them that Y was now in is full time care.
In early 2021, the mother gives evidence of the father and X breaking into her home by breaking the locked security screen. The father then drove X to school. She reported this to the police, and the father was arrested and charged.
On 26 February 2021, the mother wrote to the father’s solicitors to inform the father that she withdrew her agreement to the father retaining X in his care. X did not attend the changeover, and it was later discovered that he had run away to the paternal grandparent’s place and was refusing to return to the mother’s care.
The mother notes that she did not see X face-to-face from 28 November 2020 to 19 March 2021.
On 17 March 2021, orders were made for the children to live with the mother and time with the father be suspended. Upon the children returning, X told his mother that he did not want to be there, and he called the grandparents, who came to pick up the children. The children stayed with the grandparents that night.
On 19 March 2021, further orders were made for the return of the children to the mother. The mother had been advised by the Z Centre to drive the children to City U, which she did. The Z Centre and the DFFH had arranged for accommodation for herself and the children. On the first night in City U, the mother found inside X’s bag a handwritten note of phone numbers of X’s aunts in Melbourne and $100 in cash. The mother then contacted the Z Centre for assistance in flying to Western Australia. At this point, X expressed the desire to go into foster care rather than remain with the mother.
Shortly after arriving in Western Australia, the mother gives evidence that X had two phones, and found through police subpoena material that the father had arranged for a friend in Western Australia to leave two phones hidden in a bush for the children, and sent X photos of where to find the bag.
The mother raises concerns about the involvement of Mr R. She states she did not know who Mr R was, but understood him to be a recent friend of the father through his business. She gives evidence that Mr R seemed to have an intimate knowledge of her family law proceedings and her children. Subpoena material from the police revealed that the father had been sending all of the mother’s messages to Mr R, who formulated responses for the father to send back. It appears that Mr R has acted as an advisor to the father and a means of contacting X when the father was restrained from doing so by court orders.
On one occasion when the mother was made aware that X did not attend school, X was at Mr R’s house.
From May to June 2021, the mother lists a number of incidents that occurred involving X, including X:
(1)turning off the water mains to her home;
(2)putting water on her Bluetooth speaker to damage it;
(3)turning off the CCTV security cameras at her home on a number of occasions;
(4)punching a hole in the kitchen wall;
(5)turning off the water pump and electric fences;
(6)disconnecting the smoke alarm in his bedroom;
(7)kicking the dashboard of her car;
(8)throwing soup at her;
(9)threatening to burn her house down;
(10)smashing the back window of her car with a rock after being dropped to her house by an unknown person;
(11)damaging the walls inside her house;
(12)leaving her home without permission and being collected by unknown people and staying at different addresses including with the father’s friends Mr T, Ms Q and Mr R; and
(13)telling her that Ms Q had put her hand up to be his foster carer and that he would be placed with his friends or family first. She told X he would be put into residential care. X has been told this by the DFFH caseworker. X had also been told he would not be placed with Y.
The mother gives evidence that after relocating, the children calmed down and X’s acting out behaviours have largely stopped.
The mother submits that the current situation with the children having not seen the father in 18 months is solely due to the father’s behaviour and his pursuit of his own needs over those of the children. She denies that she is attempting to alienate the children from the father.
While the mother maintains concerns about the children spending time with the father, she submits that if there are sufficient rules and regulations around the time, she is willing to support a limited spend time arrangement. She submits that if X spends more time with the father, he is at risk of not individualising due to his immaturity.
She submits that if the father was capable of supporting a relationship with the mother, and encouraging the children to spend time with her, he would have done so, and his failure to do so demonstrates that he has not been and continues to not be able to do so. She points to his evidence that children younger than ten made up their own decision to not see their mother and they could not be persuaded otherwise. She submits the court ought to find this explanation unconvincing.
The Father’s Case
The father submits that he is closer to the children because the mother is less emotionally available for the children. He submits that the mother is alienating the children from him and his family, which is detrimental to their mental health.
He says X has consistently declared a strong wish to live with his father, and he submits X is mature enough for his decision to be given significant weight. He refers to and has annexed to his trial affidavit numerous letters and snap chats from X. The father says that X is likely to run away to try to return to the father’s care in the event the court makes orders that he live with the mother. He submits the only reason X has not run away is because he is waiting for the determination of the court.
The father in submissions says that X has experienced the legal system for the past four years, and he is waiting for the court to make the determination before he takes matters into his own hands. He submits that if orders are made in favour of the mother, the court will be faced with a recovery order because it is likely that X will take steps to live with the father.
In response to the claims that X is not mature enough for his wishes to be into account, counsel for the father made submissions that his wishes have been consistent and longstanding. It is submitted that whilst his letters to his father used to express serious violence and mental health concerns, they have “calmed down” recently, showing that X has matured and settled to a large extent, but in spite of this, he maintains the desire to live with his father. Similarly, he submits that this new maturity likely means he will be better able to maintain a relationship with his mother in future, even in the father’s care. The orders over the past 18 months have benefitted X to the extent that he has been able to form a stable relationship with the mother, but he still maintains the desire to live with the father. He submits that in the event the court orders X to live with his mother, he will likely resent his mother, which will be more damaging to their relationship than an order that X live with the father.
Counsel for the father also made submissions that if the court were to order that X live with his mother, X would further grow up with a disrespect and distrust in authority which would be problematic for him in future.
Counsel for the father referred to Isles & Nelissen [2022] FedCFamC1A 97, noting that in assessing risk to the child in the parent’s care, the court must assess the magnitude of risk. Whilst the father has breached court orders and IVOs, and there are allegations of family violence, he submits the risk to the child in his care is low. Further, he submits that the evidence in relation to the father alienating the children from the mother is inferential based on the fact that the children “turned away” from the mother when they spent more time in the father’s care.
Notably the father made an oral application that the court order the separation of X and Y so X live with the father and Y remain with the mother. He submitted there is sufficient evidence before the court as at the conclusion of the trial to support such an order.
The mother opposed this. She submits that to make such an order would not afford the mother procedural fairness, as she has had no opportunity to respond to such an application, and had she had the opportunity, there is additional evidence she would have put before the court. Further, she submits that if X lives with the father, he would begin to advocate for Y to live with the father on the father’s behalf, and it would likely be at the risk of Y’s relationship with the mother.
Family Reports and the Father’s Response to Them
The father is concerned about the “cascading” effect of the reports following incorrect information provided from the mother to child protection, which has been echoed in subsequent reports.
The father raises a number of legitimate concerns regarding the content of the report of 6December 2018.[6] Reference was made in the report to the father stating in an email of 29 April 2018, "what would you do if you saw the children dead on TV?" as being a threat to kill the children. The passage is taken from an email which is set out in greater detail at paragraph [265] of the father's affidavit:
let's say one of our children died and you heard on the news report that their father had killed them. Think about how you would feel towards me. He would naturally base your feelings towards me that you believe to be true. Then you found out that the news reporter had got it wrong and it wasn't true at all. Naturally, those feelings that you had towards me before "the you were certain were truth" would vanish. he says at the time was trying to find the most extreme scenario make a strong point that [Ms Ostell] was believing untrue things about me. I created an imaginary story to illustrate a point. [Ms Ostell] tried to use the story to convince the police take an IVO against me.
[6] Exhibit ICL-1.
I do not believe that the quoted passage could be reasonably taken as a threat to kill the children. It is a clumsy, excessive and inapt analogy or example, but not a threat to kill.
In another passage at page 12 of this report, the father stated to the children that his family, friends and church members will attend the court on Monday (the Children's Court). Concerns are raised that the father is making a private situation in his own, the mother and the children's lives public, which is also reported to be the theme on his social media page.
The Children’s Court Protection Report dated 6 December 2018 and the Children’s Court Clinic Report dated 15 April 2019 were tendered into evidence.
The Protection Report contains a summary of the mother’s version of the father’s family violence, reports made to DFFH and any police involvement.
The report concluded a number of things about the father, including:
(1)“concerning behaviour with little insight”;
(2)“Unrealistic expectations of others, and expects others to accept his behaviour and no matter how this impacts on them and relationships”;
(3)“Sees himself as a leader and a person who should be looked up to”;
(4)“takes no responsibility in the breakdown of the relationship”;
(5)“he believes [Ms Ostell] has not allowed God to heal the relationship”;
(6)“He sees it as appropriate to belittle and blame [Ms Ostell] to the children when things are not the way he wants”; and
(7)He “sets unrealistic expectations for [X]”.
The report of 10 December 2018 assessed the children as at serious risk of emotional and physical harm whilst in the primary care of the father. It states, “[X] is controlled by his father and wants to please him. [Mr Ostell] sets unrealistic expectations for [X]”. It also states that the father has little insight into the impact of his behaviour on the children’s emotional and psychological well-being, and that he is pressuring them to align with his narrative, and expressing his views to child protection and other experts as their own.
This report recommended supervised time with the father, which was ordered by the Children’s Court in late 2018.
[Mr Ostell] has strong religious beliefs with rigid views on divorce and a woman's role within the family. [Mr Ostell] believes that when [Ms Ostell] listens and seeks help the relationship will be restored.
Research identified that 24% of Christian women who have suffered domestic violence name the use of the language of submission and male leadership in marriage as being cited by their spouse in support of abuse. In discussing the Christian religious language that perpetuates domestic violence, one can categorise use of language in several key areas.
The first concerns women is submission and male leadership, the second centres on the sanctity of marriage and the third connects the value of suffering to the virtue of forgiveness.
Women in various studies cite language and concepts in each of these categories that were used particularly by their husbands and local pastors to support staying in the marriage regardless of domestic violence.
Domestic violence in Christian families is exacerbated with the use of Christian religious language that signifies a toleration of imbalance of power and abuse.
[Ms Ostell] does not wish to exclude [Mr Ostell] from his children's life, she wants the contact to be safe and appropriate, not including the children in adult worries.
Both the father and his parents identify and practice as Christians. The report of 10 December 2018 states that:
[Mr Ostell] is still wearing his wedding band and told the children that [Ms Ostell] will come back. There is religious and biblical information that [Mr Ostell] was saying to the children. The children repeat this to [Ms Ostell] including 'you didn't let God restore your marriage'.
The quoted passage at [93] above makes no reference to the particular research, where the research was conducted, when it was conducted, and to which denomination of Christianity it was referring. The passage seems almost calculated to affect prejudice against Christians, and I accept that this was felt by the father and has coloured his view of the reports, the Family Report process and the involvement of the DFFH. However, there is no evidence before the court that Report Writers have consciously (or unconsciously) accepted those passages or relied upon them for the purposes of formulating their own reports, and I do not believe that the use of that prejudicial language in the department's report undermines the efficacy of the subsequent Family Reports.
The Children’s Court report was provided by DFFH in support of a protection application in relation to the children. The report concluded:
… [the mother’s] account of [the father] as emotionally abusive and lacking in insight or empathy was the most consistent with evidence generated in the assessment as a whole. Moreover, [the father’s] past breaches of Orders; his willingness to test the boundaries of the law; plus, his actions in involving the children in risky behaviour indicate that there continues to be a need for strong legal boundaries to hold [the father] to account and ensure the children’s continued safety. …[7]
[7] Children’s Court Report dated 14 April 2019 at [55].
Ms B released a Family Report on 14 July 2020 which makes reference to the involvement of DFFH and their investigation which concluded that the father had committed “emotional, mental and spiritual abuse” on the children, and they were at risk of harm in his care if no clear orders were put in place.[8] In her report, she notes that both children presented as intensely missing their father and wanted an opportunity to spend extended time with him. She reports that it appears from the historic information that this has been consistent over the course of the matter. She made recommendations that the children spend unsupervised time with the father from 9.00am to 7.00pm on Saturday for 6 months, then graduate to each alternate weekend. These recommendations were accepted by the parties and court orders were made reflecting them on 11 August 2020.
[8] Court Book page 749.
Dr C then provided a Family Report on 18 June 2021. She reports that since unsupervised time commenced following orders of 11 August 2020, the mother described the children becoming increasingly alienated from her in that they were refusing to spend time with her, and she raised serious concerns in relation to X’s behaviour in particular.[9] Dr C notes that the children expressed the desire to live with the father and spend no time with the mother; however, Y’s view changed after spending extended time with the mother.[10] Based on this, Dr C believed their views were not aligned with their experience in her care, and therefore no weight should be placed on the children’s wishes.[11] She noted that she believed it clear through her assessment that the children’s wishes had been “contaminated and unduly influenced”.[12] She assessed that the father “had shown a clear and consistent inability to support the mother-child relationship”, in addition to a disregard for court orders and the advice of experts regarding the children.[13] She notes that the father had “limited insight, poor boundaries, poor judgment, and no regard for opinions nor recommendations that are not aligned with those of his own”.[14] She recommended that the children live with the mother in an undisclosed location, and not spend time with the father. She notes:
Both children are currently experiencing psychological vulnerabilities. [X] has recently expressed suicidal ideation, and is expressing much emotional pain. [Y] also appears to be presenting at time with torn loyalties, and distress over family matters, and school noted concerns in her presentation around the time of extended unsupervised time with the father.[15]
[9] Dr C’s report of 18 June 2021 at [16]
[10] Dr C’s report of 18 June 2021 at [132]
[11] Dr C’s report of 18 June 2021 at [133].
[12] Dr C’s report of 18 June 2021 at [7].
[13] Dr C’s report of 18 June 2021 at [8].
[14] Dr C’s report of 18 June 2021 at [10].
[15] Dr C’s report of 18 June 2021 at [26].
With regards to her recommendation that the children’s views be given no weight, she says:
… The children’s responses to interviewing were unusual and atypical for their age. Responses at times were adult in nature. Their responses at times lacked congruence. The concerns the children raised about their mother were identical. Their expressed concerns about the mother were general and vague, lacking specificity. The children’s main complaint about their mother was that she was “controlling” and didn’t listen to their feelings. However, upon exploration, it was apparent that the only examples provided over extended interviewing were in regards to time with their father (and the perception the mother has interfered with this), without any other concerns raised. … No other examples could be given despite extensive exploration. The source of [Y’s] anxiety regarding her mother was, quite clearly, due to what she was exposed to during time with her father, rather than any anxiety caused by the mother directly. Both children have, for the most part, claimed that they could not recall their history with their mother. However, from all other accounts (excluding that of the father’s), the children have been happy in their mother’s care historically, with no issues of note.[16]
[16] Dr C’s report of 18 June 2021 at [134].
As noted at [25] above, orders were made on 18 June 2021 by a SJR which reflect the recommendations of Dr C.
The father raises concerns about Dr C’s report at [166] of his trial affidavit:
I am concerned that there has been a cascading effect, where both [Dr C] and [Ms B] relied heavily on the Children’s Court Clinic Assessment by [Ms K] dated 15 April 2019 and [Ms K] relied heavily upon and accepted as true, the original report prepared by [Ms V], Case Worker at Child Protection, which is now outdated and was founded largely on false information provided by [Ms Ostell].
He also notes that Dr C did not contact the children’s treating psychologist, Dr G, nor did she read the police documents.
The father also referred to a passage of Dr C's report where she stated in relation to his appearance and presentation, inter alia, “There was evidence of magical thinking (which may be explained by religious beliefs).”[17] Reference is also made to the passage of the report which provides:
His responses regarding the mother and the children’s relationship with her were often general in nature, lacking specificity. There were concerns regarding his insight and judgement, and ability to make decisions in the best-interests of the children. His presentation certainly raised concern regarding the possible presence of mental-health and/or personality difficulties. The children’s responses during interview raised further concern about [Mr Ostell’s] thought processes.[18]
[17] Dr C’s report of 18 June 2021 at [49].
[18] Dr C’s report of 18 June 2021 at [49].
The difficulty with the expression of those views from the father's point of view is that there are no details given in the Report as to what matters she was relying upon in order to base the conclusion stated there; for instance, what it is about his presentation that raised concerns about the possible presence of mental health and/or personality difficulties. The expression of opinions in this form by Dr C has led the father to believe that she is prejudiced against him for, amongst other reasons, his Christian beliefs.
The fact that the DFFH and Dr C have included this discriminatory material in the reports has plainly undermined the father's capacity to respond constructively to the allegations that have been raised against him. His behaviour has apparently put him at odds with the DFFH and the police, and in turn, he has had to deal with numerous intervention order proceedings.
In the course of his evidence, the father was unable to make any positive comments about the mother's parenting capacity, other than to say something to the effect that she was well organised. He is unable to contemplate or acknowledge that he or his family have had any role in creating what can only be described as an extremely heightened and unhealthy situation the children have found themselves in. He failed to complete a Men's Behaviour Change program that he was ordered to attend because he claims he was told that there was nothing that the course could do for him, as there was nothing that needed to be changed. He was unable to acknowledge that any of the insights or opinions offered by the Family Report Writers had any basis in so far as they were critical of him.
The father relied heavily on a report that was prepared by Dr G, exhibited to an affidavit filed 28 May 2021. Dr G is a clinical psychologist who the children and the father attended. He extracts part of the report in his trial affidavit at [181].
The father in his outline of case did not state that he relied upon the report of Dr G; however at trial he said that he did rely upon it and, as noted above, quoted extensively from it in his trial affidavit.
The father did not call Dr G to give evidence and the Report was not tendered into evidence. Those parts of the report that are referred to raise concerns about the efficacy of the report and any recommendations in it. Firstly, Dr G has never met with the mother or observe the mother with the children. Further, her observations are based on information from the father, or from material written by X to the father, which appears to have been written to support the father and to convey how unhappy X was in the mother's care in order to bolster the father's position. X has plainly become aligned with the father.
In the context of not observing the child, and not having spoken to the mother when the report of 28 May 2021 was written, concerningly Dr G stated:
[X] has - from what I can understand - been appropriately contacting this gentleman through electronic devices to communicate what appears to be his desperation arising from separation from his father and arising also from the reported and apparent abuse to which he has been subjected by the mother. Examples include being locked in a [vehicle], not being fed properly and being kicked out of his mother's house. The level of desperation appeared to be such that [X] was considered to be at severe risk. From what I can understand (and please note this has been based on hearsay evidence only), [X] appears to be the subject of abuse by his mother. The idea that he is removed from his mother's house and actually not being fed properly and is being spoken to very badly within the context of the very poor attachment pattern is highly suggestive of severe neglect and emotional abuse.
Those comments about the mother's care of the children are at odds with the reports from the children's school and sporting coaches. I expect that, because there has been a level of communication between the father and X, that X is aware that the matters that he raises in his correspondence will be used in the proceeding, as it has been and which is evident when one has regard to the lengthy summaries of the correspondence from the father contained at annexure DP-22 (page 114 of 202 of the father's affidavit which purports to be an analysis of neglect and abuse based on X's letters from August 2022 to January 2023).
The Family Report of Ms E
The current and up to date Family Report in this matter was prepared by Ms E, dated 11 January 2023.
There were considerable steps taken by the court to ensure that the Family Report Writer was able to interview the children in person, notwithstanding that they were residing in Western Australia when the interviews occurred. Ms E had the benefit of meeting with and observing the children.
She notes that the father expressed to her his belief that “previous DFFH intervention and Family Law Court assessments and orders have been based on an unfounded, untested, and false premise that he has perpetrated family violence”.[19] Under cross examination, the father also said this about Ms E’s report.
[19] Court Book page 791, Ms E's Report at [27].
Ms E expressed the clear view that the children are currently at risk of emotional and psychological abuse, developmental compromise and embroilment within the parental conflict and will continue to be so as these court proceedings continue. She notes that the parental conflict is such that it “results in an inability for them to enter into any co-operative or collaborative parenting, either about day-to-day issues, or longer-term parenting decisions”.[20]
[20] Court Book page 798, Ms E's Report at [59].
In her interview with X from [60] of her Report, she notes that while he presents physically as an adult, his behaviour and attitude was less mature than she would typically expect in a 14 year old.[21] Whilst X maintained a strong desire to live with his father and insisted he was unhappy living with his mother, the Report Writer notes that external sources, including his teacher and coach, emphasise that he appears happy, well adjusted, and high achieving. In contrast, she notes that his letters and snap chats to his father express that he is suffering from serious mental health issues, suicidal ideation and violent thoughts towards his mother. She noted that his “complicated presentation” raised concerns. She reports:
He presents as an emboldened young person, seemingly mature because of his physical maturity, capacity to hold himself with adults and his articulateness. However, [X] seems to lack the maturity of an adolescent of his age. His views black and white, concrete, and lineal and he did not seem able to articulate contrasting and differing perspectives that might ordinarily be seen in an adolescent of his age who would be developing more abstract thinking. Additionally, he did not demonstrate a usual level of preparedness for emotional individuation and development of self as separate from one’s parent, another trait commonly seen in an ordinary adolescent developmental trajectory. His presentation at interview appeared at times dramatic or rehearsed. He presents as a troubled adolescent, he describes himself as “not normal” for his age, all he wants is his father.[22]
[21] Court Book page 799, Ms E's Report at [60].
[22] Court Book page 808, Ms E's Report at [93].
She expresses “the children, more so [X], and [Mr Ostell] seemed to have shared a somewhat complex, entangled or mis-aligned relationship”, which she opines can impede his ability to develop autonomy, and rather has led him to echo his father’s thoughts and beliefs.[23] She reports:
This parental relationship may feel good to the child, seemingly meet their emotional needs, but ultimately can impede a child’s healthy and ordinary development and at times manifest in a range of symptoms such as depression, suicidal feelings, shame, worry, and can be a pre curser to ongoing interpersonal distrust of others and problematic relationships in later life. It can also lead to confusing concepts of safety, the development of maladaptive copying mechanisms and schisms in the development of a sense of self. This is not to say that [X] exhibits all these difficulties or will in the future experience all these ongoing issues. However, he currently displays some of these characteristics, he views his father as the only one who can support and understand him, he wants to live in an isolated location and only include his father in this life. [X] is in an unenviable position. This does not allow him the opportunity for development in his relationships with his parents along an ordinary trajectory and may compromise his own developing independence as he traverses through adolescence. A developmental stage where the child begins to form their own sense of identity, value systems and to individuate from ones’ family of origin. It does not go unnoticed that these maladaptive characteristics seem to present more so in [X’s] communications with his father and in the context of Court proceedings rather than in other settings such as school, football, and his interactions with his peers.[24]
[23] Court Book page 812, Ms E's Report at [102].
[24] Court Book page 810, Ms E's Report at [96].
Y in her interview noted that while she is sad that she was forced to move and is unable to see her father, she knows that her father loves her, and is happy for the adults to make the decisions about spend time arrangements on her behalf.[25] She notes that “[Y] presents as developing a more realistic view of her family circumstances, all be it maintaining a neutrality, possibly to avoid any conflict”.[26]
[25] Court Book page 802, Ms E's Report at [75].
[26] Court Book page 813, Ms E's Report at [103].
Ms E notes that regardless of any findings the court makes in regards to family violence, there has been significant impact on the children through the parent’s behaviour. She notes “that the situation seems to have deteriorated into the children being aligned with one parent or the other”, and it is not the case where the children would be able to maintain a relationship with the other parent if placed into a shared care arrangement.[27] She believes the children being placed into the care of one parent creates a real risk that they will have no relationship with the other parent.
[27] Court Book page 814, Ms E's Report at [108].
She notes that the children have enjoyed consistency over the past year, and have settled into their new lives in Western Australia. If the court were to order the children to relocate back to Victoria, it would be another big disruption to the children.
She notes that if the court made orders in accordance with the mother’s proposal, the benefits would include consistency, greater autonomy and individuation, and the continuation of the relationship with their mother. If the court made orders for the children to return to Victoria according to the father’s proposal, the benefits would include the resumption of the relationship with the father and paternal family, and being able to engage with a familiar environment and friendship group.
Ms E recommends that if the court makes a finding that the father engaged in coercive and controlling family violence, the children remain in an undisclosed location with the mother, and there be no contact or spend time with the father. If the court makes no findings, she notes there are benefits and risks associated with either party’s proposal, and makes no specific recommendation.
PARENTING ORDERS
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Part VII. When making an order under Part VII of the Act, the best interests of the children are the paramount consideration (s60CA).
In determining the best interests of the children there are two primary considerations which must be taken into account. The two primary considerations are as set out in s 60CC(2). The court must consider:
(a)The benefit to the children of having a meaningful relationship with both of their parents; and
(b)The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
In addition, amendments to the Act effected by subs 60CC(2A) require that, in respect of proceedings instituted after 7 June 2012, the court is required to give greater weight to the need to protect the children from physical or psychological harm, from being subjected, or exposed, to abuse, neglect or family violence.[28]
[28] Germain & Germain [2017] FCCA 1980.
Unacceptable Risk
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
As per section 4, the definition of abuse provides:
"abuse", in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child
Family violence is defined in section 4AB as follows:
Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
In Stott & Holgar [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the court must give consideration to the facts of the case, and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the court is then required to consider whether that unacceptable risk could be ameliorated by safeguards.
The task of determining whether an unacceptable risk, in terms of s 60CC(2)(b) of the Act, exists is assisted by having regard to the following principles:
(1)In devising tests to determine whether unacceptable risk exists, the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child from parental access: see M v M (1988) 166 CLR 69 (“M v M”) at 78; B and B (1993) FLC 92-357 at 79,778;
(2)It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M at 77;
(3)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 at [146]–[148];
(4)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at 81,890-81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249; see also Isles and Nelissen [2022] FedCFamC1A 97; and
(5)Having identified the existence of an unacceptable risk, it is then necessary for the court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62.
In Slater & Light [2013] FamCAFC 4, May, Strickland & Forrest JJ endorsed the following statement by the Hon John Fogarty who, writing extra-judicially, (later endorsed by another Full Court in Johnson and Page [2007] FamCA 1235) said:
(1)The decisive issue is and always remains the best interests of that child. All other issues are subservient;
(2)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable;
(3)Where past abuse of a child is alleged, it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies;
(4)The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, it does not impede reliance upon those circumstances in determining whether there is an unacceptable risk;
(5)The concentration in these cases should normally be upon the question of whether there is an unacceptable risk to the child;
(6)The onus of proof in reaching that conclusion is the ordinary civil standard; and
(7)The components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
CONSIDERATION
The proposals put by each party and the evidence relied upon stands in stark contrast. It was acknowledged by each party and Ms E that if one party’s proposal succeeds, it is likely to lead to the other parent not spending time with the children.
I accept that the father has engaged in family violence and he has worked consistently to undermine the mother as a parent, and to turn the children away from the mother.
Attempts by the mother as shown by her consent to the orders which provided for the children to spend time with the father in 2020 have not worked to the benefit of the children, and have led to a situation with the children becoming estranged from the mother in July 2021. Compromised positions allowing the children to spend substantial time with the father have not worked to the benefit of the children. There is nothing arising from the father’s trial affidavit or his oral evidence before the court that gives any confidence that he has any interest in the mother maintaining a meaningful relationship with the children. On the other hand, the evidence of the mother and the evidence of her attitude throughout the events forming the narrative of this proceeding is one where she would like the father to be able to have a relationship with the children, but has no confidence that he has the capacity to enable that to happen without her relationship being substantially undermined.
As was the case before a SJR, the court is placed in the invidious position of making orders that may have significant detriment for the children, but I must select the best of a bad set of options. The fact that the court is in this position is as a direct result of the conduct of the father in relation to the mother.
I am mindful that I should make orders that are less likely to lead to litigation, and one of my concerns, which I raised with the parties in the course of discussions, is that in making orders providing for the children to spend no time with the father and not enable any communication is likely to lead to X taking steps to run away from the mother’s home and to return to live with the father. Given that he is living in Western Australia, this may lead him into risky situations and further destabilisation.
The mother’s proposal that the father spend time with the children on four occasions each year in Western Australia recognises the difficulties of making orders where there is no time, particularly where X has expressed such clear views about wishing to live with his father. There may be good reasons for ignoring those views for the reasons outlined in the Family Reports of Dr C and Ms E, that being that the child’s views are really an expression of the father’s views, which have been inculcated into him through the process embarked on by the father; however, they may still remain his views, whether for good or bad reasons. Bearing that in mind, the proposal that there can be some time is one that is in the best interests of the children. One difficulty of there being no time and no contact is that the children’s, particularly X’s, view of the father may become idealised and unrealistic, and causing him to effectively start obsessing about the father, rather than the child being able to live his own life and form his own views. I also accept the evidence of Ms E, that there is a risk to the children particularly to X if the orders sought by the father were made. That risk involves complete estrangement from the mother and the children being at risk of being unable to individuate as outlined in [117] above.
The mother’s evidence at trial in relation to the impact of the father’s conduct on X when time was unsupervised, and the children’s attitude towards the mother as a result of that conduct, was compelling. She gave evidence that X’s attitude became worse when the time was unsupervised. She gave evidence that during periods of supervised access, X was respectful and loving towards his mother. When the time became unsupervised, X would scream at the car and accuse the mother of telling lies, and then commence trying to negotiate for further time with the father.
The mother acknowledged that the children miss their father and that there was an absence in their lives.
Primary Considerations
As noted above, the court must consider:
(a)The benefit to the children of having a meaningful relationship with both of their parents; and
(b)The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
The court is required to give greater weight to the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
The evidence supports a finding that both children love their father, and would like to spend more time with him. Unfortunately, all the expert reports, and indeed the submissions of both the parents, acknowledged that if the children were to have a relationship with the father, it is unlikely that a meaningful relationship with the mother would continue. This is because of the father's entrenched negative views of the mother, as evidenced by his conduct both during and after the end of the marriage, that conduct including the family violence outlined above.
There would be an unacceptable risk to the children if orders of the kind sought by the father were made. The history of this matter establishes that if the father spends unsupervised time with the children, that leads to a further risk. The risk of psychological harm is canvassed in each of the Family Reports, but most particularly in the Family Report of Ms E. If orders were made for longer periods of supervised time, I do not believe that the father would rest there, and would continue to attempt to undermine the mother in order to achieve the result that he seeks. This is likely to involve the children in further conflict and expose them to psychological risk.
I do not accept that either of the children are now at risk in the care of their mother. The communications from X to his father have tempered significantly since the relocation was ordered, and the reports from his school and sporting coaches indicate that he is doing exceptionally well socially and scholastically whilst living with his mother and sister, that he is settled in Western Australia and becoming more settled as he matures. The mother gave evidence that the child is settled, and loving and respectful towards her. This presents a situation which is quite in contrast with the chaos surrounding the children when they were shifting between the father and the mother. I note at [46] of the reasons given by a SJR that, prior to orders being made 29 June 2021, the department had to be involved with the family upon almost a daily basis.
I do not think it is appropriate that the court make orders in accordance with the oral application made by the father at trial for the splitting of the siblings, whereby X lives with the father and Y lives with the mother. Although the question of whether orders of that kind might be made have been raised in directions hearings, that was never the subject of formal application and it has not been addressed in detail by either of the parties in their evidence or by the Family Report Writers. Such an arrangement would likely lead to X losing the relationship with his sister.
I will make the orders now sought by the mother which allows for there to be face-to-face contact between the children and the father four times per year in Western Australia in a supervised setting. This allows the children at least some time with their father, and that time is unlikely to impact on the relationship between the children and the mother. That may provide some benefit to the children. I appreciate that orders for ongoing supervision are far from ideal and authorities express that view (Bant & Clayton [2019] FamCAFC 198 at [53] and cases referred to therein; see also Betros and Betros [2017] FamCAFC 90 at [13]):
[53]It is well accepted that an order requiring a child’s time to be subject to indefinite supervision is undesirable even though it might be warranted, and courts are encouraged to consider crafting orders which might avoid permanent supervision (see Slater v Light (2013) 48 Fam LR 573 at 583–584; Champness & Hanson (2009) FLC 93-407 at [209], [215]; Moose & Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]–[41]; B and B (1993) FLC 92-357 at 79,780).
However, in the particular circumstances of this matter, I can see no viable alternative and having regard to the best interest of the children; some time is better than no time. I note that the impact of these orders for supervised time is moderated by the making of an order that these spend time arrangements cease to apply to the children upon them turning 16, which in X’s case is for a period of less than two years.
Parental Responsibility
Section 60DA(1) of the Act provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. Section 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)Abuse of the child or another child, who at the time was a member of the parents family or that other person's family; or
(b)Family violence.
In this case the father has engaged in family violence. That family violence is referred to above. I also refer to the numerous breaches of intervention orders by the father, including breaches which have occurred in mid-2021, where the father was charged by police with breaching the intervention order naming the children by contacting X via the Spotify app. This resulted in the father being convicted and sentenced to consecutive community correction orders.
In circumstances where there is such a high level of conflict between the parents and there is no co-parenting or cooperative relationship between the parties, where the mother has the sole care of the children, where there is a significant geographical distance between the mother's residence in Western Australia and father's residence in J Town, Victoria, and where the father has engaged in family violence, I find that the presumption of equal shared parental responsibility is negatived in this case.
Additional Considerations
Section 60CC (3) of the Act sets out a number of additional considerations to which the court is required to have regard. I will deal with those below.
Issues relating to the children – their views, level of maturity, culture and relationships
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the court thinks relevant; and
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
I do take into account the views of each of the children that they love their father and wish to spend time with him. I also find that the very strong views expressed by X in relation to his mother and to living arrangements are significantly affected by his father's influence on him and his desire to make his father happy. At [93] of the report of Ms E, she states:
[X] seems to lack the maturity of an adolescent of his age. His views are black and white, concrete, lineal and did not seem to be able to articulate contrasting and different perspectives that might ordinarily be seen in an adolescent of his age who would be developing more abstract thinking.
She also described X's presentation at interview as “appeared at times dramatic or rehearsed".
Therefore the weight that I give to the children's views, in particular X's views, are modulated by these considerations.
The relationship between the children and each of the parents has been somewhat tumultuous since separation for the reasons outlined. The father's parents clearly have had a significant role in looking after the children when the father was away working in the period when they were living with the father, and they feature throughout this litigation as people who strongly identify with their son's position and are deeply opposed to the mother's position. I have no doubt that they have a strong and loving relationship with the children and the present loss of that connection has had an impact on them.
Issues relating to the parents – decision making, time spent with the children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
Prior to separation, each of the parents have been involved and participated in making long term decisions in relation to the children and have also spent time with, and communicated with the children. Post separation, each party's capacity or ability to participate in making decisions has been affected by the arrangements as to where the children are living. The children have been living in the mother’s sole care since June 2021 and she has had sole parental responsibility pursuant to interim orders made on 21 June 2021. Since that time, the mother has been involved in the decision-making regarding enrolling the children in school and extracurricular activities.
Since June 2021, the father and X have found ways to communicate, and I expect because of the strength of the father's convictions, the father will continue to find ways to do so in breach of the orders of the court.
Evidence was given by the father that he is paying child support of $108 per week. The mother has given evidence that the father is assessed to pay child support for the children of $196.67 per month, and that he currently has a child support debt of $9,353.10. Because of the particular arrangements entered into by the father, in relation to the structure of the business that he operates, he is assessed to pay minimal child support. In my view, the father is not fulfilling his obligation to maintain the children.
Prior to separation both parents were close to the children. The mother gave evidence that X was very close with his father growing up. Unfortunately, since the dissolution of the relationship, the father has been unable to provide for the emotional and intellectual needs for the children. This is the principal reason why he lacks capacity to co-parent, and in turn provide for the emotional needs of the children.
As noted above the mother is currently meeting the emotional and intellectual needs of the children and she acknowledges that the children are missing their father.
Issues of family violence:
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
This has been discussed above at [38] - [52].
Effect of Change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
As noted above, the children have a close and loving relationship with each of the parents and the paternal and maternal grandparents, and any decision is likely to result in a loss to the children. For the reasons stated earlier, the change of circumstances sought by the father is likely to lead to destabilisation for the children, and most likely destroy the relationship they have with their mother.
Orders of the kind proposed by the mother are more likely to lead to stability and to allow them to function as adults, and as noted by the mother in her outline of case, both children likely will resume a relationship with their father in the future when they are both adults or when they are older.
Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The geographical difference between the mother's residence in Western Australia and the father's residence in Victoria presents significant issue. The fact that the mother is living in Western Australia is really the price that she is had to pay in order to be in a position to provide a stable residence for the children.
Avoiding further proceedings:
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
The orders proposed by the mother which provide for the father to have some limited supervised time rather than no time are, in my view, least likely to lead to the institution of further proceedings in relation to the child.
·Sub-section (3)(m) – any other facts or circumstances the court considers relevant.
Whilst I have not adopted the proposal of the ICL that the children spend no time with the father, I do accept the proposal that these orders operate until the children turn 16. At that point, the children will have matured and been subject to these orders for about two years in X’s case, when X will turn 16. Whilst there remains the risk that the father will continue to try to undermine the mother as a parent and that any views of the children (particularly X) will be the expression of views that he thinks the father wants to hear, at that age there is a real question of whether the court should be trying to determine where a 16 year old wishes to live. This is particularly the case where the 16 year old is not affected by any mental incapacity.
This has been a difficult decision for the reasons identified above in that any decision is likely to have a significantly detrimental effect for either parent. There is also the issue as to whether the orders go too far in controlling the father and thereby impacting him and his family.
After much consideration, in my view, the orders made are commensurate with the risks faced by the children and are an appropriate response to address those risks.
I make orders sought by the mother in relation to the father taking steps to cancel insurance policies held in the children’s names. No good reason was offered by the father for the existence of such policies and the money spent on the policies would be better spent by the father in supporting the children.
I certify that the preceding one hundred and sixty-nine (169) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 19 May 2023
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