Panelli & Panelli
[2022] FedCFamC1F 652
Federal Circuit and Family Court of Australia
(DIVISION 1)
Panelli & Panelli [2022] FedCFamC1F 652
File number(s): SYC 4668 of 2018 Judgment of: HARPER J Date of judgment: 1 September 2022 Catchwords: FAMILY LAW – PARENTING – Final parenting orders – Where mother has not spent time with children for 4.5 years – Each parent seeks orders for children to live with them – Agreement that parent with whom children live with should have sole parental responsibility – Where all children exhibit dysregulated and disturbing behaviour – Allegations of violence made by both parents – Allegations that both parents have abused the children – Abuse and risk of harm not pressed by conclusion of hearing – Where father demonstrates high resistance to children spending time with the mother – Where father’s negative views of mother have influenced children – Children extremely hostile towards and fearful of the mother – Numerous prior interim court orders for family therapy have failed – Mother proposes immediate change of residence and father to spend no time with the children for three months – Where such proposal would cause further harm and trauma – Orders made for children to live with father – Father to have sole parental responsibility – Orders for family therapy and graduated reintroduction of time with the mother.
FAMILY LAW – INTERVENTION – Where ICL proposed order under s 91B for the for the Minister or delegate of the NSW Department of Justice to intervene in proceedings for purpose of being allocated parental responsibility – Where s 91B is no more than a power to make a request – DCJ cannot be forced to intervene – Where such order proposed to avoid further disagreements in undertaking family therapy – Order would cause further delay – Order would be of limited utility as parents must still cooperate to engage in family therapy – Where best interests of the children require finalisation of proceedings.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65D(1), 65DAB, 91B, 117(4) Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Director-General of the Department of Human Services (NSW) & Tran (2010) FLC 93-443; [2010] FamCAFC 151
Faulkner and McPherson v Rugendyke; Department of Community Services (1995) FLC 92-630; [1995] FamCA 82
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102
M & S (2006) 37 Fam LR 32; [2006] FamCA 1408
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Secretary of the Department of Health and Human Services & Ray (2010) FLC 93-457
Secretary, Department of Communities and Justice & Opunui [2021] FedCFamC1A 41
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Division: Division 1 First Instance Number of paragraphs: 163 Date of hearing: 11–13 July 2022 Place: Sydney Counsel for the Applicant: Ms Ryan Solicitor for the Applicant: Legal Aid NSW Counsel for the Respondent: Ms Carr Solicitor for the Respondent: David H Cohen & Co Counsel for the Independent Children's Lawyer: Ms Rebehy Solicitor for the Independent Children's Lawyer: JLM Family Lawyers ORDERS
SYC 4668 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PANELLI
Applicant
AND: MR PANELLI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARPER J
DATE OF ORDER:
1 September 2022
THE COURT ORDERS THAT:
1.The Respondent Father, Mr Panelli (“the father”), have sole parental responsibility for X, born in 2011, Y, born in 2013, and Z, born in2015 (“the children”).
2.The children live with the father.
3.Within seven (7) days of these orders, both parents are to do all acts and things necessary for the children to make an appointment to attend therapy with a children’s therapist, and such therapy is to include a component of healing the children’s fear of the Applicant Mother, Ms Panelli (“the mother”) and to commence the process of repairing the children’s relationship with the mother at the earliest possible time.
4.Both parents shall:
(a)Comply with all reasonable rules of the therapist for conducting therapy; and
(b)Comply with all reasonable requests or directions of the staff of the therapist,
including referrals to any other professionals and complementary services.
5.The children spend time with and communicate with the mother as follows:
(a)For a period of three months, the mother is permitted to send the children cards and letters each fortnight, and from time-to-time small gifts, which the mother may deliver to the office of the children’s schools;
(b)The school is requested to hand the cards, letters and gift to the children without giving the children an opportunity to decline to take the item;
(c)After a period of three months, in addition to the cards, letters, and gifts, the mother be permitted to call the children by telephone or Facetime once a fortnight, with the mother to call the children between 7.00pm and 7.30pm on Wednesday in the alternate week she sends the cards or letters, and the father will ensure the children are available to speak with mother, and ensure that the phone the children are using is switched on and charged;
(d)After a period of three months of telephone or Facetime calls, and in addition to the calls, the children spend time with the mother:
(i)once each fortnight for a period of two hours to be professionally supervised for a period of 12 months, and
(ii)For two hours on either 24 December or 26 December each year to be professionally supervised; and
(iii)For two hours on the Saturday nearest to each child’s birthday each year to be professionally supervised;
6.After supervised time per Order 5(d) has occurred for a period of 12 months, the children spend time with the mother as follows:
(a)Each alternate Saturday from 10.00am until 12.00pm for a period of 12 weeks; then
(b)Each alternate Saturday from 10.00am until 4.00pm for a period of 12 weeks; then
(c)Each alternate Saturday from 10.00am until 5.00pm for a period of 12 weeks; then
(d)Each alternate week from after school (or from 3.00pm if not a school day) Friday to 5.00pm Saturday for a period of six months.
7.After the children have spent time with the mother for six months pursuant to Order 6(d), then the children shall spend time with the mother:
(a)From the second weekend after that six-month period is completed and each alternate weekend thereafter from after school (or from 3.00pm if not a school day) on Friday to before school (or 9.00am if not a school day) on Monday;
(i)In the event that the mother’s weekend falls on a long weekend including a Monday, then time shall be extended to before school (or 9.00am if not a school day) on Tuesday.
(ii)Alternatively, in the event that the mother’s weekend falls on a long weekend including a Friday, then the mother’s time shall commence after school (or 3.00pm if not a school day) on Thursday;
(b)Each Wednesday from after school to 6.30pm;
(c)For half of the April, July and September public school holidays, such halves to be agreed between the parties, and in the absence of agreement, for the first half of each of these school holiday periods;
(d)For half of the Christmas school holiday period, such half to be agreed between the parties, and in the absence of agreement, the first half in odd numbered years and the second half in even numbered years, excepting as follows:
(i)If Christmas Day falls during the children’s time with the father, the children shall spend time with the mother from 3.00pm on Christmas Day to 6.00pm on Boxing Day in even numbered years, and from 12.00pm on Christmas Eve to 3.00pm on Christmas Day in odd numbered years; and
(ii)If Christmas Day falls during the children’s time with the mother, the children shall spend time with the father from 3.00pm on Christmas Day to 6.00pm on Boxing Day in even numbered years, and from 12.00pm on Christmas Eve to 3.00pm on Christmas Day in odd numbered years;
(e)For the purpose of these orders, the school term and Christmas school holidays are deemed to commence at 10.00am on the first day after the public-school term ceases and changeovers shall occur at 6.00pm on the day in the middle of the school holiday period; and
(f)At such other and further time as may be agreed between the parties.
8.Upon the children commencing to spend alternate weekends with the mother in accordance with Order 7:
(a)The children will spend additional time with the mother as follows:
(i)On Mother’s Day weekend from 5.00pm Saturday to 5.00pm Sunday;
(ii)On the mother’s birthday each year from after school (or 9.00am if not a school day) to before school the next day (or 9.00am if not a school day); and
(iii)On each of the children’s birthdays each year from after school (or 1.00pm if not a school day) to 6.00pm
(b)If the children’s birthdays fall during time with the mother, the children shall spend time with the father on each of their birthdays each year from after school (or 3.00pm if not a school day) to 6.00pm or as agreed in writing between the parties;
(c)The children shall have telephone or Facetime communication with the mother on Tuesdays and Thursdays, with the mother to call between 7.30pm and 8.00pm, and the father will ensure the children available to speak with mother, and ensure that the phone the children are using is switched on and charged; and
(d)At any time, should any of the children indicate a wish to see the mother then the children shall spend time in accordance with that child’s wishes.
9.On the days the children are not at school, the mother or her agent will collect the children from the father or his agent at the beginning of the children’s time and deliver the children to the father at end of the children’s time at the father’s residence, otherwise changeovers shall take place at school.
10.Within seven (7) days of the date of these orders:
(a)the parties shall take all necessary steps, including signing enrolment forms or other necessary documentation, to bring about supervised contact between the children and the mother required by Order 5(d) above;
(b)the father shall take all necessary steps to obtain a referral for Z to attend K Services or E Service (“the intervention service”).
11.Within 21 days of obtaining the referral in Order 11, the father shall do all things necessary to engage Z with the intervention service, and he shall follow all reasonable recommendations of the intervention service, and for the purpose of this order the parties shall provide a copy of the report of Dr B released on 13 July 2020, the orders of the court, and these reasons for judgment to the intervention service.
12.Upon commencement of the operation of Order 5(d) above, the mother be entitled to attend be entitled to attend:
(a)Sporting fixtures;
(b)Extra-curricular activities that allow for parental attendance; and
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties, and social functions.
13.In the event the father has not completed Circle of Security course (“the course”):
(a)Within seven days of these orders the father shall contact an organisation providing the course and do all things necessary to enrol in the course;
(b)Thereafter, the father shall:
(i)Attend all appointments and sessions of the course;
(ii)Comply with all reasonable rules of the course;
(iii)Comply with all reasonable requests or directions of the staff of the course, including referrals to any other professionals and complementary services;
(iv)Pay the fees nominated by the course for the provision of its service; and
(v)Within seven (7) days of completion provide the mother with written confirmation that he has completed the program.
14.Within seven (7) days of the date of these orders the father is to contact L Service at City M (or a similar organisation) and do all such things necessary to undertake the intake procedures to enrol in the first available Taking Responsibility program (or a similar accredited men’s behaviour change program).
15.Upon being accepted, the father is to complete the men’s behaviour change program within nine (9) months of being accepted to the program, and within seven (7) days of completion he shall provide the mother with written confirmation that he has completed the program.
16.The parents are to do all things necessary to follow any recommendation made as a result of the psychiatric assessment of Z in the report of Dr N dated 6 July 2022.
17.Within 48 hours of obtaining any appointment for psychiatric intervention for Z, the father must advise the mother of the date of appointment and with whom it was made.
18.These orders provide authority for any counsellor, therapist psychiatrist or any medical practitioner working with any of the children to communicate with either parent.
19.Within 14 days of these orders, the father shall do all acts and things, and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the other parent copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities, and ensure the children’s schools are able to discuss all matters relevant to the children’s welfare with both parents.
20.During any period referred to in these orders, in the event of the children being hospitalised, the parent who has care of the children shall notify the other parent as soon as practicable (and in any event within one hour) after the first contact with either the medical practitioner, medical centre or hospital.
21.The mother and father are restrained from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children, and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.
22.The mother and the father are restrained from discussing these proceedings in the presence or hearing of the children, or showing the children any documents associated with these proceedings, and that each party do all things necessary to ensure that no third party discusses these proceedings in the presence or hearing of the children, or shows the children any documents associated with these proceedings.
23.The parents, either themselves or by their lawyers, and the Independent Children’s Lawyer, have leave to provide a copy of Dr B’s report to any service or organisation providing assistance to the family pursuant to these orders.
24.The process to be used for resolving disputes about the interpretation, implementation or enforcement of these orders shall be as follows:
(a)The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) (“the Act”) or as agreed in writing between the parties; or
(b)The mother and the father shall participate in family dispute resolution with a person authorised under s 10G of the Act.
25.Before an application is made to a court for a variation of these orders to take account of the changing needs or circumstances of the children or of the mother or the father:
(a)The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Act or by the Commonwealth Attorney General; or
(b)The mother and the father shall participate in family dispute resolution with a person authorised under s 10G of the Act.
26.In the event there is no application filed seeking costs within 28 days of the date of these orders, it is ordered that there is no order as to costs.
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 Panelli & Panelli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These are parenting proceedings between the Applicant Mother, Ms Panelli (“the mother”) and the Respondent Father, Mr Panelli (“the father”) in relation to the children of the relationship, X (born in 2011), Y (born in 2013), and Z (born in 2015) (collectively: “the children”).
In this unhappy case, the children have not seen their mother for about four and a half years. By the end of the trial, both parents and the Independent Children’s Lawyer (“ICL”) agreed that no order for equal shared parental responsibility should be made. Each parent submitted that the children should live with themselves, and they should have sole parental responsibility. But, each also accepted that the parent with whom the children primarily lives should also have sole parental responsibility.
The ICL argued that there was no secure basis in the evidence to justify an order for the children to move to live with the mother, and it would not be viable. Rather, at the end of the trial, the ICL proposed, instead of final orders, simply an interim order pursuant to s 91B of the Family Law Act 1975 (Cth) (“the Act”) that the Minister or a delegate of the Department of Communities and Justice (“DCJ”) be requested to intervene in the proceedings. I will return to this proposal later in these reasons.
As her primary position, the mother adopted the proposal of the ICL to request an intervention by the Minister or delegate pursuant to s 91B of the Act. Beyond that, her proposed orders then contained two alternatives. The mother tendered a final minute of proposed orders, which became Exhibit B. This minute is reproduced in Annexure A to this judgment. Her first alternative is that she have sole parental responsibility, the children move to live with her immediately and spend no time with the father for three months, plus a range of other orders. However, in the alternative, she proposes that the children continue to live with the father, subject to his compliance with orders to engage with the children’s therapist and in family therapy. Thereafter, she proposes the children begin having contact with her by cards and letters, progressing after three months to telephone or Facetime contact, then to supervised time for twelve months, followed by unsupervised daytime on Saturdays, then graduated overnight time.
By the end of the trial, the father sought an order for sole parental responsibility and for the children to live with him and spend time with the mother “as ordered by the Court”. Accordingly, he will accept whatever orders the Court may make for the children to spend time with the mother, and consequential orders, including orders proposed by the mother. His proposed orders are reproduced in Annexure B to this judgment. He did not agree with the ICL’s proposed order for a request to be made pursuant to s 91B.
By the end of the trial, all agreed that if the children were to re-engage with the mother, the parties and the children should engage in a form of family therapy.
For the reasons set out in what follows, in summary, I have come to the view that the children should continue to live primarily with the father, and begin to spend time with the mother supervised at first, then progressing to overnight time.
BACKGROUND
The mother was born in 1976 and is 46 years of age. The father was born in 1959 and is 62 years of age.
The parties commenced a relationship in early 2009 and married in 2017. They separated in mid-2017 and divorced in late 2018. The date of separation is contested. The mother asserts a date around October 2017, whilst the father states it was in June 2017, when the mother first left the family home. However, the mother does later state in her affidavit that from July 2017, the parties were effectively separated under the one roof.
The mother describes herself as a stay-at-home mum, whilst the father previously worked as a tradesman, although ceased employment due to a workplace accident.
The mother has two children from previous relationships, Mr O and Ms P. Both these children are adults. The mother also called evidence from Ms P. The father has six children from previous relationships, with only one child under the age of 18. He has limited involvement with this child.
There was a dispute as to when the parties commenced cohabitation, however this is not material to the issues for determination. The mother states that cohabitation commenced soon after their relationship started in 2009, however the father states it was not until around 2010. The parties initially resided in a three-bedroom apartment in Suburb Q. They then relocated to a community housing townhouse in Suburb R in early 2015.
Ms P and Mr O resided with the mother when the parties commenced their relationship. Mr O resided with the parties for the majority of the time that they were in a relationship, however Ms P moved out in early 2011 to reside with her father. She returned for several months in 2012, however moved out to her father’s again soon after. The maternal grandfather also resided with the parties from late 2009 to early 2011. Mr O continues to reside with the mother, although he resided with his father briefly in the second half of 2017.
Both parties make allegations of family abuse and coercive control. This will be discussed below under s 60CC of the Act.
The mother left the family home in mid-2017 and resided with a friend, Ms S, for approximately two weeks. The children remained with the father at this time. The mother eventually returned home for three days, before leaving again for one night. The father considers this to mark their point of separation. The mother contacted T Service in mid-2017 seeking assistance to have the father removed from the property. The father states that he and the children had no choice but to continue residing with the mother, as she had refused to sign a Statutory Declaration as required by the Department of Housing confirming their separation, which would have provided the father with a new home.
In late 2017, the mother travelled overseas to Country U and Country V. The circumstances surrounding these travels are in dispute. The father claims the mother left without notice to anybody for medical purposes. The mother states that the father not only agreed to this occurring, but that he paid for the procedures. She further asserts that the father and children were fully aware of her movements.
In late 2017, there was an incident at the children’s school. The mother attended their school to see the children. As the father had to go to a nearby health clinic, she supervised Z and Y as they played. The father’s new partner, Ms W, then attended the school grounds, where a confrontation ensued between her and the mother. The father then became involved, with the mother alleging the father had her up against a wall.
As a result of this incident, the school placed restrictions on the parties and Ms W. These restrictions were lifted in early 2018.
From October 2017 to February 2018, the mother saw the children approximately twice per week for one hour on each occasion.
In around early February 2018, X attended the BB Program following a recommendation from FACS. Y later commenced the same program, followed by Z in late 2018. Y and Z ceased this program in around mid-2019 and transferred to EE Counselling for trauma counselling. X ceased this program in late 2019.
The father deposes to an incident in early 2018 during a visit between the mother and children, where the mother allegedly took photos of Z without a nappy on. The father reported this incident to FACS. A near-identical incident was reported again a few days later .
In early 2018, the parties were involved in another physical altercation. This concerned a disagreement over who would take Z to the toilet, with the father alleging that FACS had informed him that the mother was not to take the children to the toilet. He attempted to restrain Z from going with the mother, which left a mark on her arm. The father alleges that the mother physically assaulted him. Police attended but took no further action at this stage. The mother has not spent time with the children since this occasion.
In early 2018, the mother was contacted by police in relation to this incident. Following a police interview, a provisional ADVO was taken out against the mother to protect the father. This ADVO permitted the mother to make contact with the children only under court orders or a parenting agreement. The ADVO was dismissed in late 2018.
In mid-2018, the mother had an argument with her ex-partner where she damaged his car. This resulted in a criminal charge. She was convicted in early 2019 and sentenced to conditional release, as well as being ordered to pay compensation and costs.
In mid-2018, the mother overdosed on antidepressants and spent one night in Suburb Q Hospital. She commenced a mental health plan and continues to see a clinical psychologist, Ms AA. Ms AA swore an affidavit but was not called to give evidence in these proceedings.
Since early 2019, the father has been engaged with the BB Program twice per month, CC Services, DD Services, and EE Counselling. From early 2019 until January 2020, a caseworker from CC Services attended the father’s home to see him and the children once per week.
In early 2019, X made a disclosure to the effect that in about mid-2018, Mr O had asked her to take her pants off so that he could take photos of her naked. X stated that she had informed the mother when this occurred, although the mother did not recall any such incident. This disclosure was reported to FACS and the police, who commenced an investigation. This ongoing investigation meant that FF Service was unable to facilitate time between the children and the mother.
The investigation was concluded in late 2019, following which FF Service resumed the process for supervised contact visits.
In around late 2019, Z suffered a respiratory problem and was taken to hospital, where she was an inpatient for three days. During her time in hospital, she exhibited severe behavioural problems.
The children were due to commence supervised time with the mother in late 2019. However, this did not occur, with the father stating that the children exhibited high levels of distress and dysregulated behaviour, and reluctance to spending time with the mother.
In mid-2020, the mother completed a course with GG Services. Around this time, she also contacted L Service about the possibility of attending family therapy. The father consented to using this service, and orders were made on 10 September 2020 adding L Service to the list of possible therapists to conduct family therapy for the parties. Due to various reasons, the mother did not have her first appointment until early 2021, whilst the father’s took place about a month later in 2021.
In mid-2021, Z transferred to TT School. The mother states that she was not informed of this, and did not become aware of this fact until June 2021 when reading an affidavit filed by the father.
In June 2021, the mother was informed that family therapy would not proceed in the circumstances of the family relationship.
Following court orders in September 2021, the mother contacted C Services to commence the process of family therapy. The mother also completed the Circle of Security course in late 2021, followed by a course with L Service in late 2021.
Due to numerous delays, the mother had her first appointment with C Services in early 2022 with Dr JJ. Dr JJ produced a report dated 21 March 2022, which became evidence at the hearing.
In early 2022, there was an incident at the childrens’ school. The mother attended the school as it was X’s birthday, and she bought some balloons and other small gifts for X. The mother saw and approached Y, who became visibly upset. The mother passed the gifts to a teacher and left.
In early 2022, the mother completed three further courses.
PROCEDURAL HISTORY
In order to place in context some of the final orders proposed by the parties and the ICL, it is necessary to set out some procedural history in addition to the background just given. The procedural history has particular importance in this matter, primarily to record the attempts between 2018 and 2021 by the parties to engage and various forms of therapeutic intervention and for the mother to have supervised time with the children.
The mother commenced proceedings in the Federal Circuit Court of Australia (as it was then known) on 24 July 2018. The father filed his Response on 4 September 2018.
After transfer to this Court, the parties attended the court’s Child Responsive Program with a Family Consultant in late 2018. A Child Responsive Program memorandum was released on 21 December 2018.
The matter was listed for interim hearing before a senior judicial registrar on 21 February 2019. Orders were made by consent on that date for the children to live with the father and spend supervised time with the mother each weekend. The matter was then listed for a directions hearing on 10 April 2019. It is noted that this time did not commence for reasons explained below.
On 8 May 2019, further interim consent orders were made before a judicial registrar. These orders provided for further supervised time between the children and the mother, first by the FF Service at Suburb KK, and then moving to supervision by Mr UU. It is noted that again, this time did not commence.
The matter was listed for Case Management Hearing on 30 May 2019. On that date, the Court was informed by the ICL that a JIRT investigation had been initiated in relation to disclosures made by X against the mother.
I listed the matter on 20 June 2019 for Case Management Hearing, when I was informed that the JIRT investigation was ongoing. The parties also made arrangements for the preparation of a Family Report by Dr B. The matter was accordingly adjourned pending the outstanding JIRT investigation.
On the adjourned date of 13 August 2019, the JIRT investigation had not been finalised, and the Family Report remained in the process of preparation. The matter was adjourned again, to 26 September 2019.
On 26 September 2019, further interim consent orders were made, again for supervised time with the mother to commence. I also made a notation that, at this point, the mother had not spent any time, including supervised time, with the children since February 2018, despite earlier orders for supervised time.
The matter was then listed before me on 1 November 2019 for Mention. The Court was informed that the children had attended intake interviews with a contact centre on 19 October 2019, with supervised visits due to commence on 23 November 2019. The Court was further informed that the Family Report would be completed in approximately May 2020.
On 19 December 2019, the mother filed an Application in a Case seeking variation of orders made in February 2018 for the children to live with the father. The mother sought for the children to live with the father only on the condition that he engage with a family relationships counsellor “to support him to accept that the children need a relationship with their mother and to support him in support him in facilitating that relationship with their mother.” Should he fail to do so, it was the mother’s position that the children should live with her.
The mother then filed an Application – Contravention on 23 December 2019. This application alleged a failure by the father to take the children to the contact centre for a scheduled supervised visit on 23 November 2019. The father asserted that he had been unable to convince the children to get into the car, as they did not wish to see the mother.
The father filed his Response to the mother’s Application in a Case on 28 January 2020, seeking it be dismissed.
The matter came before me for Case Management Hearing on 30 January 2020. Leave was granted to the mother to withdraw her Application in a Case, and orders were also made restraining the father from engaging the children with any mental health practitioner. The matter was also set down for final hearing commencing on 13 July 2020, with an estimate of five days. The mother’s Application – Contravention was stood over to the first day of trial.
The Family Report of Dr B was made available only two days prior to the commencement of the final hearing on 13 July 2020. The earlier absence of this report was material. Dr B was unable to observe the children with the mother, and in light of all the circumstances, the mother indicated that interim orders would be more appropriate than final orders at that stage. The parties were ultimately able to agree on a set of proposed interim orders, consistent with the recommendations of Dr B.
On 14 July 2020, consent orders were made vacating the outstanding final hearing dates and discharging all previous orders concerning time between the mother and children. Those orders also provided for the parties and children to engage in family therapy with C Services, for the children to live with the father, and for the children to engage with K Services. The family therapy was arranged for the purpose of reintroducing the children to the mother, with whom they had not spent time with for over two years. The matter was adjourned to December 2020 for further mention.
The mother discontinued her Application in a Case on 16 July 2020.
On 17 December 2020, on the application of the parties, the matter was adjourned again to 1 April 2021 for mention. The parties and children had commenced family therapy, and it was their view that further time was required to allow this to progress. Orders were also made dismissing the mother’s Application – Contravention.
On 1 April 2021, the matter came before the Court for Case Management Hearing, where a notation was made that the family therapy had yet to progress in any meaningful way. Accordingly, the matter was stood over to October 2021 for callover.
Orders were made by consent on 7 September 2021 for the mother to engage with Dr NN, the children’s paediatrician, and to discuss her concerns about the children. These orders also provided for Dr NN to recommend a therapist for Z, and for the parties to engage in the process of facilitating therapy for Z. A senior judicial registrar also ordered the parties to engage in a Family Dispute Resolution Conference with the Court.
The matter was then listed for callover on 21 October 2021. On this date, the matter was listed for final hearing on 11 July 2022 with an estimate of five days.
The Family Dispute Resolution Conference was originally to take place on 16 December 2021, however this was later adjourned until May 2022 due to ongoing family therapy commencing in February 2022. No agreement was reached.
It can be seen that by numerous attempts were made via court orders between early 2019 and the trial in July 2022, to reconnect the children with the mother, for them to spend supervised time with her, and for therapeutic intervention with the parties and the children. All these attempts have failed. The reasons were various. They can be summarised as follows.
Both parents formed the view that the other parent had influenced the views of proposed or retained therapists at times. More particularly, the mother did not spend supervised time with the children after the orders of 21 February 2019 because local contact centres had extensive waiting lists. On 8 May 2019, Mr UU was appointed as supervisor. But by then, the JIRT investigation derailed the mother’s time. Although supervised time was to commence on 23 November 2019, the father claimed the children were upset and would not get in the car to drive to the FF Service contact centre. No time took place. The centre then declined to facilitate any further time. The children did not see the mother with Dr B because they claimed to be scared. The attempts to commence family therapy with C Services in mid-2020 were delayed because of lack of counsellors. Then, there were problems with the mother engaging with Dr NN. In mid-2021, L Service declined family therapy because they formed the view the family would not engage. Family therapy was then to commence in late 2021 with Dr JJ. The mother did not meet Dr JJ until early 2022. Dr JJ then recommended a full psychiatric assessment of all family members.
The final hearing commenced on 11 July 2022.
CURRENT CIRCUMSTANCES
The father and the children live in a two bedroom home provided by T Service. The children share a bedroom, however the father deposed in cross examination that he had applied for priority rehousing, and they are presently on the waiting list for a four-bedroom house so that each child would have their own space. The father had reported to Dr NN that the home has a mould issue. He is unemployed due to a work-related injury, relying instead on a disability pension.
The mother continues to reside with Mr O in the former marital home. This is a three bedroom townhouse. The mother stated in her affidavit that she has one bedroom, Mr O has another, and the girls used to sleep in the third bedroom. Were the children to move to live with the mother, she stated that they would share the third bedroom. However, in cross examination she conceded that her adult daughter Ms P has also come to live with her. Ms P sleeps in the third bedroom. The mother did not explain very clearly how the children would be accommodated if they were to spend overnight time with her, because at present there are no remaining bedrooms available.
Both Ms P and Mr O are unemployed, and Mr O has also been diagnosed with ADHD. There was also evidence, which is discussed below, that the mother has had difficulties in controlling Mr O’s behaviour, which has become violent on occasion. For example, there was an incident in mid-2018 where Mr O smashed a glass jar and punched a hole in the linen closet door, causing the police to be called. She stated in her evidence that she would now have no concerns about the children residing in the same household as Mr O.
The mother relies on Centrelink payments for income. She has degenerative problems with her back. In December 2021, she was diagnosed with an autoimmune disorder.
The mother continues to engage with Ms AA once every three to four weeks, and also with LL Services on a weekly basis.
ISSUES IN DISPUTE
I have already referred to the proposals of the parties in broad outline.
By the end of the trial, the issues requiring determination were the following:
(a)Whether a request should be made pursuant to s 91B of the Act, as proposed by the ICL;
(b)Whether it is in the children’s best interests to live primarily with either parent;
(c)The time the children should spend with either parents;
(d)Whether there exist any unacceptable risk factors;
(e)The capacity of each parent to meet the children’s needs;
(f)The capacity and willingness of each parent to facilitate and support the other parent’s relationship with the children; and
(g)Whether the children, and either or both parents would benefit from engagement with ongoing therapeutic support, as well as who should provide this support.
Expert evidence
The family report was based, as described by Dr B, on the material filed by the parties so far in the proceedings, some documents produced on subpoena, and the interviews conducted, as set out at the commencement of her report. I will refer to the content of the report as necessary during the course of these reasons. It is noted that Dr B did not observe the children interacting with the mother.
Dr B made recommendations at [203] of her report to the following effect:
(a)For the parties to engage with a family therapist to ensure the parties could work on a more collaborative relationship. Failing this, the Court would need to consider granting sole parental responsibility to the primary caregiving parent;
(b)The children should continue to live with the father;
(c)The parties should engage with a family therapist to facilitate a reintroduction to their mother, with a view to spending time with her;
(d)Both parents should be involved in the children’s future medical and educational needs, including therapy interventions;
(e)Z should undertake a comprehensive paediatric assessment to ascertain her developmental needs and intervention strategies;
(f)Neither party nor their significant others should physically discipline the children; and
(g)Neither party nor their significant others should denigrate the other or significant others to the children or involve the children in any discussions pertaining to this dispute.
Dr JJ also produced a report dated 21 March 2022, although she did not interview the children. However, she recommended a full psychiatric assessment of all family members, including others who reside with either parent to ascertain the family full history and the level of psychological functioning of each parent and child.
The children
The father’s evidence showed the children are struggling. At [225] of his affidavit he said:
The children have continued to show signs of trauma including nightmares and bed wetting. The girls are scared to leave their room to go to the bathroom so they wet the bed or pee on the floor. They fear that [Ms Panelli] will come in through the window. I have been working on some solutions with my psychologist in the Parent Course with [DD Services].
In cross examination, he reaffirmed that the children continue to express fear, stating that “mummy is in the oven. Mummy is going to come through the window.” Their issues with urination had commenced upon the father and children moving out into a new property, with the father asserting that it was a response to their separation anxiety. He also reported that the children were echoing the mother’s behaviour, repeating words that she had used in her alleged abuse of the father, such as “you are a stupid old cunt.”
The father continues to assert that they both require trauma counselling as a result of the mother’s behaviours, however Dr JJ pointed out that he “failed to described (sic) behaviours that indicated the necessity for this.”
X and Y
X is currently aged 11, whilst Y is aged 8. Both children currently attend MM School. Their school reports indicate they are doing quite well at school. However, more broadly there were suggestions that they have been exhibiting a range of problems and dysregulated behaviour such as urinating in the bedroom, aggressive behaviour, and an inability to be controlled. This, the father said, was being exacerbated by the disruption caused by Z’s frequent outbursts.
Although there was evidence that Y, in particular, had displayed concerning behaviours when commencing kindergarten in 2019, there was a lack of more recent evidence to this effect. The father reported more generally to Dr NN that the girls were verbally and physically aggressive towards each other every day, “like they wanted to kill each other.” Meanwhile, he described Y as more “mentally affected,” by which she internalises her feelings, which escalates rapidly and results in meltdowns, verbal, and sometimes physical aggression towards others and personal property. She was observed by Dr B as having adopted a “frozen state,” which is often seen in children suffering from trauma.
There was also a report from Dr NN and Dr OO, another community paediatric fellow, where the father had reported X as being hyperactive, aggressive without a trigger, and causing damage to property. She was said to exhibit controlling behaviour, wanting to be “first with everything, first to get into the car, first to get food, etcetera. She would run across a road without checking for traffic so that she’s first to cross. She may even trip or physically stop her sisters so they can’t cross the road first.” There were also suggestions that she had stolen from a shop and at school, which the father attributes to the mother’s influence.
Z
Z is currently aged 7 and attends TT School. She previously attended MM School. The father gave evidence that since she commenced school in February 2020, she has been exhibited disturbing behaviour. She is said to suffer from ongoing trauma and behavioural issues, leaving her unable to transition into mainstream classes. Dr NN expressed that Z meets the criteria for oppositional defiant disorder and ADHD, although these do not account for all of her behaviours. Z requires significant support to adjust to basic school routines, with the support of the school and her psychologists. She is presently on a part-day exemption programme.
Z was suspended from school in around early 2020, following a series of violent behaviours towards staff and her peers. This included biting teachers, pulling teachers’ hair, destroying school property, spitting, and throwing a rock at a teacher’s head. Z’s school continues to assess what form of intervention she requires, and has recommended intervention by way of counselling.
She made the transition to TT School in Suburb PP, which is a special behavioural school, in mid-2021. She continues to experience behavioural problems at school and at home, which has caused X and Y to also act out.
In mid-2022, there was another incident involving Z which led to her suspension again. This occurred when she destroyed a school computer, ripped out a teacher’s hair, and destroyed a classroom. There are ongoing disputes between the parties concerning the appointment of a counsellor for Z. Dr JJ reports that she continues to “[lash] out at her siblings and others, lacks problem solving capacities, has difficulties engaging in cooperative play, and is aggressive and clingy.”
A recent report from July 2022 by Dr N reported that Z continues to have severe problems with “affect regulation, impulse control, aggression and cooperativeness” which appear to be worsening. This included callous behaviour such hoarding and killing insects, and idiosyncratic behaviour such as defecating in cupboards and cutting X and Y’s hair.
LEGISLATIVE FRAMEWORK
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions under s 61DA and s 65DAB.
PARENTAL RESPONSIBILITY
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child's parents to have equal shared parental responsibility for the child, unless it is rebutted: s 61DA(4). As pointed out at the commencement of these reasons, neither parent nor the ICL suggested an order for equal shared responsibility should be made. It was common ground that the presumption was rebutted in the best interests of the children and the parent with whom the children lived should also have sole parental responsibility allocated to them. There will be no order for equal shared parental responsibility.
The best interests of a child are the paramount consideration (s 60CA of the Act). They are to be determined by an examination of the considerations as set out in s 60CC of the Act. While the Court must consider each of the primary and additional considerations in s 60CC, express discussion is not necessary; the proposals of the parties, their evidence, and the manner in which they have run their case will largely determine what is discussed: Tibb & Sheean (2018) 58 Fam LR 351 at [68] and [87]. Accordingly, in this matter, the relevant considerations to be discussed are as follows.
PRIMARY CONSIDERATIONS
The “primary considerations” set forth in s 60CC(2) of the Act are:
(a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying these considerations, the Court is to give greater weight to the consideration in subsection 2(b) (see s 60CC(2A) of the Act).
Section 60CC(2)(a), “meaningful relationship”
A “meaningful relationship” is one which is “important, significant and valuable to the child”: (Mazorski & Albright (2007) 37 Fam LR 518 at [26]; McCall & Clark (2009) FLC 93-405 (“McCall”) at [115]). A “prospective approach” is preferred, requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall at [118]–[119]. The legislation aspires to promote a meaningful relationship, not an optimal relationship: M & S (2006) 37 Fam LR 32; Godfrey & Sanders (2007) 208 FLR 287 at [36]; Champness & Hanson (2009) FLC 93-407; see generally Sigley & Evor (2011) 44 Fam LR 439 at [135].
There was no dispute that the children have a meaningful relationship with their father. Although by the end of the trial some doubt was cast upon the father’s parenting capacity, as discussed later, there was no dispute that the children would benefit from maintaining a meaningful relationship with him.
There was agreement that the children would benefit from a meaningful relationship with their mother. The evidence shows that prior to separation, the children had a warm relationship with her. But this no longer exists. A central difficulty in this case is determining how any meaningful relationship between the mother and the children could be re-established.
Section 60CC(2)(b), “abuse” and “family violence” or risk of harm
The parties gave historical evidence of mutual allegations and recrimination, each suggesting the other may have been a risk to the children in the past. Each made allegations against the other of violent or abusive behaviour often witnessed by the children. It is unnecessary to recount the events or resolve factual disputes in relation to them, as the following discussion shows.
It was the mother’s contention that the father continues to pose a psychological risk to the children because he has instilled them with a highly negative narrative about her which needs to be immediately reversed. The father argued the children continue to fear the mother and suffer ongoing anxiety about her.
The children have not seen their mother for some four and half years, and there was no doubt they feel considerable fear of her. The children made a number of comments to Dr B about their memories of the mother. X claimed she remembered her mother hitting her and leaving a scar on her lip, punishing her with a spatula, and grabbing her by the neck and throwing her up the steps. X remembered her mother as an angry person, “bad mean, not nice, a bully and awful”. Y remembered the parents arguing and her mother being a rude person, who gave her a black eye when she punched her. She observed her mother hit other people, including the father. Z said her mother had “bashed us”.
There is reason to think that the views of the children about their mother have been influenced by the father. It was quite clear the father held a very negative view of the mother and expressed this from time to time to the children. Dr B observed that between the first and second interview, when the children had returned to the father’s care, the children appeared to have become more firm in their negative views about the mother. Dr B also noted as follows:
171. In her current presentation, [X] is strongly aligned with her father and takes almost a pseudo mature approach to his well-being in respect of his health and identifying with each other’s dreams. She echoes many of her father’s criticisms of her mother such as the accommodation arrangements and living on the stress and her alleged comments about their grandfather which belong in the adult domain. It was concerning that just as the children were moving towards meeting with their mother in mid-2019, [X] made allegations about brother [Mr O]. It is highly damaging when children are implicated in making disclosures about a sibling or parent, particularly if there are no grounds.
Dr B further expressed that “the children are almost certainly identifying with [the father’s] anxieties about their mother being dangerous and that being with her puts them at risk.” She also referred to a FACS report in which Y disclosed to the mother that the X had been “brainwashed” by the father.
When asked in cross examination whether the children may have picked up on his feelings of negativity towards the mother, the father denied this, stating instead that “they saw [him] getting beaten up” and that “any form of abuse that the child witnesses towards a parent will traumatise them.” There was evidence that X, in particular, expressed fears that “mummy tried to kill me”, referring to an incident [with a skipping rope]. The father had merely told her not to worry, that she was safe, and that “it was an accident”. He did not tell X that the mother had not attempted to kill her.
The father was also asked whether a child seeing their parents fight would cause them to be emotionally upset. It was put to him that this was precisely what the children had been exposed to since the parties’ separation, and the father agreed that it was occurring at every visit. The ICL suggested that this, together with the ongoing dispute in this Court, effectively meant that the father was “consistently sending these children negative messages about their mother.” He denied speaking poorly about the mother. He projected responsibility for this persistent conflict onto the mother.
Following an altercation between the parties in early 2018 where the mother allegedly head-butted the father, and where the police were called, a police entry tendered indicated that police “formed the opinion that [the father]’s sole purpose of making the allegations towards [the mother] is to benefit him in future Family Court proceedings and nothing else.”
The mother also reported changes in the children’s behaviour post-separation, stating that X felt like she had to speak to the mother secretly.
I am satisfied that the children’s fear of their mother was at least partly a result of dysregulated and abusive behaviour by her towards the father and them at times prior to separation, as described earlier in these reasons. For example, the father reported that from infancy, the mother would hit the children with closed fists, call them disparaging names, throw them up the stairs, and throw food at them. Although the mother denied any form of physical abuse, she admitted to some verbal abuse, such as calling the children “little fuckers.” There was evidence that she demonstrated unpredictable behaviour, changing from being calm to suddenly aggressive towards the children.
However, I also accept the children’s fear was partly a result of a persistent negative narrative by the father.
But whatever its source, there was no dispute the children’s fear of the mother is current and genuine. For example, recently, in early 2022 when the mother attended X and Y’s school when the father was picking up them up, X told the principal she did not want to accept birthday presents from the mother, and the mother did not appear to recognise Y.
The father also made allegations that the mother had failed to protect the children from possible sexual abuse. He referred to evidence that in about early 2019, he became aware of a photo of X bent over, revealing her bottom, which had been taken in 2017 when X was six years old. X was later said to report to him that Mr O had offered her candy to do so, and when she refused, the mother told her it was okay and “it [was] the new trend.” Initially, he also suggested that the mother had failed to protect both Mr O and Ms P from danger, although these allegations dated back to 2012. I am not assisted by such evidence.
He also asserted that in early 2018, X informed him that she witnessed the mother taking photos of Z whilst she was naked and standing on a park toilet. The same thing was asserted to have occurred two days later.
Allegations were also made against the maternal grandfather, who was said to have sexually abused Mr O in about 2010. However, despite the above contentions, it is unnecessary now to make any findings as to sexual abuse or the risk thereof whilst in the mother’s care.
This is because by the end of the trial, the father did not argue against the children spending time with the mother because of particular risk factors. As recorded above, he accepted whatever orders for time with the mother which the Court deemed appropriate. Moreover, the mother has engaged with numerous courses to help her with parenting. I am satisfied that the mother is unlikely to pose any unacceptable risk to the children if they spent time with her, if their fears can be overcome.
It was implicit in the ICL and mother’s proposal for a request to be made pursuant to s 91B that the children were at risk of some ongoing psychological harm in the father’s care because of his negative attitude to the mother, and because of the range of problems which the children have manifested, while in his sole care for the last four and half years. The ICL submitted that the children are in distress, and were following the “dismal trajectory” mentioned by Dr B. She echoed Dr B’s concern that the father does not have the capacity to meet the complexity of the children’s emotional needs, and does not understand what they are going through.
The mother made assertions of family violence perpetrated by the father against her, including physical and verbal abuse, as well as coercive control. She also alleged violence perpetrated against Mr O and Ms P in around 2010 to 2011. She stated that the father often physically disciplined the children and called them names, such as “little shits” and “little fuckers.”
Furthermore, there were suggestions that the children could be at risk of harm in the father’s care. Reference was made to an incident where Z had taken a knife out of a dish drying rack and whacked Y with it, causing her to require seven stitches.
Nonetheless, both the mother and the ICL’s proposal was for the children to remain in the father’s care while the request for the Minister or delegate to intervene was awaiting a response.
I do not find the children are at any risk of abuse or family violence in the father’s care. I will return to the question of his parenting capacity below.
ADDITIONAL CONSIDERATIONS
The Court must have regard to each of the “additional considerations” under s 60CC(3) of the Act. These are as are set out below:
(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;
The children have expressed fear of the mother to Dr B, who also noted that they were extremely critical and hostile towards her. They have said they do not wish to spend time with her. To Dr B, the father said their views should be given weight. However, the expert opined that the children were of an age where they do not have the developmental maturity for their voices to be given as much weight as the father suggested. Dr B noted that both X and Y were highly critical of the mother. She expressed the view that X carried highly punitive views which were inappropriate for a child to carry. X expressed a high degree of resistance to seeing her mother, even if another person was present. The thought of it caused a great deal of worry and fear, such that her teacher gave her the number of the VV Service. In her second interview with Dr B, X reported that both she and Z are traumatised by the mother “because she used to bash us”, describing feelings of anger and aggression.
Y recalled physical violence perpetrated by the mother and described feeling “disappointed and angry” with her. When asked for a list of people that she loves, she stated that she did not love her mother and did not wish to include her in the list of people she loves. Dr B reported resistance from Y to spending time with the mother, stating that she did not wish to, but would only do so if the father were present. If I were to order her to spend time with the mother, Y stated that she would “grab a phone and call the police and tell them that she has been bashing up may (sic) family members”.
Dr B found it hard to engage with Z about her mother, who seemed to “attend the first interview with a recited list of complaints about her mother”. Z reported that the mother forced the children to say “I love you” on the phone, and bashed them. Although she did not explicitly say so, the evidence suggests that Z is also resistant towards spending time with the mother. She displayed extreme attachment to the father and interrupted sessions with Dr B on numerous occasions.
It was fairly clear that the father’s negative views of the mother had been expressed to the children from time to time. Although I do not find there was any form of “coaching” of the children by the father, I accept that their views have been negatively influenced by his attitudes toward the mother. Dr B expressed that the “children are of ages where they do not have the developmental maturity for their voices to be given so much weight.” I accept this to be the case.
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
The children have a warm relationship with the father, although they are experiencing symptoms of anxiety. They are in his exclusive care, and report him to be the source of their emotional nurture. Z, in particular, exhibits extreme attachment to the father, evidenced through her constant interruptions of the father’s interviews with Dr B.
As noted, the children have no relationship with the mother at present, although prior to separation they had a warm relationship with her. There was evidence that for the first few months following separation, the children were able to spend time with the mother, although the father remained close by. However, when the first contact centre visit was scheduled, almost two years since their last contact, their resistance had escalated to the point that there was an extremely dysregulated response from each of them.
(ii) other persons (including any grandparent or other relative of the child);
The children have warm and positive relationships with their paternal grandparents, Ms W and her children, and their aunts and uncles.
According to Dr B, Ms W has become a “surrogate parent figure” for the children, with the two families become enmeshed with each other. She attended the father’s interview with Dr B, and gave evidence that she has supported him and the children in other programs such as ‘Tuning into Kids’, EE Counselling workshops, and workshops with CC Services.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity (i) to participate in making decisions about major long-term issues in relation to the children; (ii) to spend time with, and (iii) communicate with the children
The father has clearly made decisions about long term issues relating to the children, spent time with them, and communicated with them as their sole carer. The mother has had very limited opportunity to do so in the last four and half years.
There was limited evidence concerning the extent of the parties’ participation prior to separation.
In early 2022, the mother attended X and Y’s school in an attempt to provide birthday presents to X. She did not apparently recognise Y, and this experience left them extremely stressed and upset.
The mother asserts that despite orders requiring the father to provide her information about the children’s medical problems, school events, and welfare, he has failed to advise her of any issues nor to seek her consent or involvement for medical interventions. For example, she was not aware that Z had moved schools until reading the father’s affidavit sworn in June 2021, nor did she provide her consent for Z to commence seeing Dr NN in mid-2021. She deposes that the father has not contacted her directly since early 2018. I accept that were the mother given the opportunity, she would have sought to become involved in decisions regarding the children.
The parties have also been in conflict in attempting to reach an agreement concerning a counsellor for Z. Following an incident at Z’s school in mid-2022 which led to her being suspended again, the school principal requested that Z commence trauma counselling as recommended by Dr NN. The parties have been unable to agree on an appropriate counsellor, however this does indicate, to some extent, that both are and seek to be involved in the making of long-term decisions regarding the children.
(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;
I am satisfied the father has fulfilled his obligations to maintain the children. The mother has not been in a position to do so for four and half years. However, she continues to pay child support as assessed.
The father asserted that the mother effectively abandoned the children when she went to Country U and Country V for five weeks in late 2017. It was argued that she failed to sign a declaration with the Department of Housing, such that the father and children became homeless and were forced to reside in emergency housing for a period of time. I am not satisfied that events from five years ago are evidence of any failure to maintain the children.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
The mother submitted that the only way that the children would be able to lose their fear of her would be for them to be removed from the father and be placed to live with her.
The mother’s proposal would see the children suddenly uprooted from their lives with the father. The evidence of Dr B was that this would be traumatic for them due to the currently high amount of hostility and despair the children harbour. I accept the likely effect would be adverse for the children.
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This factor is not relevant. The children do not live with any other person but for the father.
(f) the capacity of:
(i) each of the child's parents, to provide for the needs of the child, including emotional and intellectual needs
The father has been parenting the children on his own for four and a half years. His parenting was ultimately the subject of criticism by the ICL. She pointed out that according to the father’s own evidence, the children are presently exhibiting a range of behavioural issues in his care. Dr B stated that it is difficult to see that the children’s behaviours “will not continue to be challenging and increasingly difficult for their father to manage”. In answer to questions from counsel for the ICL, she agreed that she has seen nothing to change this view.
The ICL submitted:
[The father] has told this to [Dr JJ], he has told this to [Dr NN], and I know that [Dr [Dr N’s]] report is only in respect of [Z] so I think it’s not in dispute that [Z] is under a great deal of psychological pressure, if I just use that expression. But it’s the father’s evidence that [X] and [Y] are also suffering and struggling, and he says they need trauma-informed therapy to help them recovery (sic).
(Transcript 13 July 2022, p.248 lines 29–33)
In her oral evidence, Dr B maintained the view that there were concerns about the father’s capacity to meet the complexity of the children’s emotional needs. The ICL argued that in cross examination, the father showed a great deal of difficulty demonstrating insight in the children’s needs.
I accept that the father has demonstrated some limitations in his capacity to parent his three daughters. Although he laid responsibility for all the challenges in the children’s behaviour at the feet of the mother and her alleged abuse of them, he has failed to appreciate that it is more likely, as put by Dr B, that
their dysregulated behaviour is the result of a constellation of factors including any trauma resulting from emotional and physical abuse or neglect perpetrated by both parents, poor attachment histories, poor boundary setting and perceived abandonment by their mother when they were 7, 5 and 3 years old.
The father gave detailed evidence, which I accept, of the numerous steps he has taken to obtain counselling and other therapeutic interventions for the children. He has not ignored their problems. But despite these steps, the children’s behaviour does not appear to be settling or improving. Their views towards the mother appear increasingly to reflect those of the father’s. I accept he harbours a serious resistance to promoting the children’s relationship with their mother.
However, I find that the father has a reasonable capacity to meet the needs of the children, even if his parenting has deficits. Any parent, no matter how committed, is likely to fall short under close scrutiny. I am satisfied the father has done his best as a parent in difficult circumstances over the last four and a half years.
There were concerns with the mother’s parenting ability while she still had contact with the children. Although there was evidence that she has participated in numerous courses and workshops since 2018 to help understand her parenting deficits and to understand her own behaviours and parenting, her capacity in actually caring for the children now is untested. Dr B opined that the children would “test her limits” and she would not cope without an extraordinary amount of support. The mother did recognise that she would require some form of intervention and social support system, however there was no evidence directed as to what form of support the mother could or would call upon.
When questioned in cross examination as to whether her current home dynamics would make it difficult to care for the children, the mother simply reiterated that the children needed to be separated from the father in order to undo the damage suffered whilst in his care. She failed to appreciate the inherent problems in managing three children with the behavioural difficulties and resistance to her they currently exhibit, together with her two adult children residing in the same household, and limited evidence of practical parenting experience in recent years.
(ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;
I am satisfied Ms W has some capacity to fulfil the needs of the children.
(i) the attitude to the children, and to the responsibilities of parenthood, demonstrated by each child's parents;
The father has demonstrated a committed attitude to the responsibilities of parenthood. I find that the mother has too, to the extent she has undertaken a range of courses to help with her parenting and emotional regulation. Her appreciation of the responsibilities of parenthood have, I accept, likely grown in recent years. However, as pointed out above, her capacity to parent three daughters, with whom she has not spent time with in four years, remains presently untested.
Although the father continues to assert that he wishes for the children to have a relationship with their mother, particularly in a supervised setting, his capacity to facilitate such arrangements has been evidenced to be limited. As pointed out by Dr B, he appears to have a “blind spot in his capacity to foster the children’s relationships with their mother.”
(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;
It is preferable to make orders which are least likely to lead to the institution of further proceedings. I am satisfied the proposed orders are least likely to lead to further litigation. Further explanation for this conclusion is given below at [144]–[160].
OPTIONS
I am not persuaded that it would be in the best interests of the children to peremptorily move away from the father to live with the mother. The length of separation of the children from the mother, being over four years, and the genuine fear they hold towards her, leave little room for any approach other than a carefully managed and graduated reintroduction. This alone justifies a conclusion that the children should remain living with the father.
But in addition, the mother’s domestic circumstances with her adult son and daughter living in a cramped townhouse simply reinforce the undesirability of any order for the children to live with her. The father’s accommodation is also cramped, but it is what the children are used to. The mother gave no clear evidence of how, in her current circumstances with two adult children living with her, she would manage providing adequate accommodation, or day to day care, for example, getting the children into a routine for school or extracurricular activities. I was not persuaded she demonstrates a satisfactory capacity to parent the children alone in such circumstances.
Putting to one side for the moment the ICL’s proposal for an interim request pursuant to s 91B, having considered the evidence and arguments of the parties, in my view, the only viable proposal for reintroduction is, broadly speaking, the type of gradual approach proposed by the mother as her alternative position. As already made clear, the father would accept this approach if the Court thinks it appropriate. It follows that the children should continue to live primarily with the father. For this reason, it would also follow that he should be allocated sole parental responsibility. Orders should then be made for the children to be gradually re-introduced to the mother, as she proposes.
I return then to the ICL’s proposal. It was the ICL’s contention that there was sufficient doubt about the father’s capacity to parent the children, and their present range of problems showed that it was not possible to conclude it was in their best interests to remain under the father’s sole care. She pointed out that although Dr B and the parties believed family therapy was essential, as noted above, a range of interim orders for family therapy have been made but have failed to bring the children back into contact with the mother. She argued that on the present state of the evidence, the Court was simply not in a position to know what parenting orders would be in the children’s best interests. As counsel put it, “the court does not have an option before it that would allow the court to discharge its obligation to make an arrangement that is in the children’s best interests”. She argued that if the children continue to live with the father and spend no time with the mother, the children will remain on an adverse and damaging trajectory.
It was for this reason that the ICL argued in favour of a request pursuant to s 91B for the Minister or a delegate of the DCJ to intervene.
Section 91B is no more than a statutory power for the Court to make a request. The Minister or a delegate cannot be forced to intervene or submit to the jurisdiction exercised under the Act: Secretary of the Department of Health and Human Services & Ray (2010) FLC 93-457; Secretary, Department of Communities and Justice & Opunui [2021] FedCFamC1A 41 at [61]. The Court has the power under the Act to make an order allocating parental responsibility for the children to the Minister or delegate, only if he or she chooses to intervene: Director-General of the Department of Human Services (NSW) & Tran (2010) FLC 93-443 at [67]–[68], [72], [151], and [256]; Faulkner and McPherson v Rugendyke; Department of Community Services (1995) FLC 92-630 at 82,321–82,322.
There are a number of reasons to refuse to make the order sought by the ICL.
I do not accept the proposition that the Court is not in a position to know what outcome is in the best interests of the children in this case. In proceedings under Part VII, unlike civil litigation based on causes of action for the enforcement of rights, parents do not prove a case to enforce their rights; “Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests”: per Austin J in Fitzwater & Fitzwater (2019) 60 Fam LR 212 at [134]; CDJ v VAJ (1998) 197 CLR 172 at [64]. The parents here have done so. But the best interests of a child in a given case can only be determined by reference to the circumstances of the case, not by reference to some normative “best” standard. Family dynamics are often messy and fractious, even within intact families. The Court cannot defer making final orders because it would prefer there existed a different parenting proposal which was somehow “better” than those put forward at trial. It is true the Court is not bound to adopt the proposal of either parent, and can make what it considers to be the orders in the best interests of the children, subject to giving the parties procedural fairness. But the Court is not in a position to do so unless there is evidence to demonstrate what such an option may be. It is not uncommon for the “best” option in a parenting case to be no more than the “least worst” option. The ICL conceded this, noting at the commencement of trial that “it’s going to be what’s the best of the worst outcomes.” Miracles, whilst desirable, are not within the powers of the Court under Part VII of the Act.
It may be thought that there is nothing to be lost, and possibly something to be gained, for the children, if the Court makes the request pursuant to s 91B. But this is not entirely correct. If the Court makes the request sought by the ICL, there will inevitably be further delay in the finalisation of the proceedings. It will be necessary for the Minister or delegate to consider the request. This will take at least some period of time. If the request is declined, the Court will be obliged then to proceed to finalise the proceedings by making final parenting orders, but this cannot happen until a response is received. I note that FACS has already had some contact with this family, detailed in the father’s affidavit, without deciding to become involved. If the request is acceded to, the proceedings will be delayed further because it will be necessary to relist the matter for further argument, to provide an opportunity to receive any submissions from the Minister or delegate. During this period of delay the children could not live with the mother, for the reasons already given.
If the Minister or delegate accedes to the request to intervene, the question will arise as to what role they will take in the proceedings. The notation proposed by the ICL makes plain the intention is for parental responsibility to be allocated to the Minister or delegate.
The ICL argued that this may be a better option. If sole parental responsibility was allocated to the Minister, decisions on major long term issues could be made by a third party rather than either parent. Therefore, because family therapy was agreed to be essential, and it had previously failed for various reasons, as described at [61] above, including lack of co-operation between the parents, the request to the Minister would make it more likely that orders for family therapy would bear fruit. Thus, it is implicit in the ICL’s proposal that a return to interim family therapy is most likely to bring forth the best option for the children.
There is some force in this argument, but I do not accept it. Certainly, Dr B thought family therapy was very important. But in substance, the ICL’s proposal is tantamount to repeating the earlier attempts to use family therapy to rehabilitate the children’s relationship with their mother, on an interim basis, but with the Minster or delegate being responsible for making the necessary decisions such as selecting the therapists. It is plain from the evidence that previous attempts to bring about family therapy have already delayed for a lengthy period the possibility of the children interacting with their mother. It is also true that the Minster cannot orchestrate the delivery of the children to the therapist. The parties will still need to co-operate. The father will have to ensure the children attend therapy. The evidence discloses no safe foundation to conclude that the intervention by the Minister or delegate is certain to improve the prospects of family therapy succeeding in assisting the re-engaging of the children with their mother. Such an outcome remains an aspiration, not a likelihood.
It should also be observed that the ICL’s proposal implicitly rejects the possibility that the graduated orders proposed by the mother can succeed in rehabilitating the children’s relationship with their mother. The ICL does not embrace any orders which could allow the children to have contact with their mother by cards and letters immediately on an interim basis, or proceed to electronic communication while family therapy takes place. It is possible that even limited initial contact between the children and their mother may lend efficacy to the family therapy by developing some familiarity between the children and their mother. The proposal of the ICL does not address the need for some steps to be taken to re-engage the children with their mother and begin the slow process of helping them overcome their fear of her.
The ICL’s proposal also suffers from an inherent inconsistency. As noted, she argues that the Court does not have before it an option which would serve the children’s best interests. This is said to be in part by exposure of the children to deficits in the father’s parenting while in his care. Although I have found his parenting capacity is reasonable in the circumstances, accepting there are some deficits, it remains unclear how a request to the Minister or delegate would cause such a “best” option to materialise. For the reasons given above, the children will, even on the mother’s alternate proposal, have to remain living in the father’s care, and this will be necessary for some significant period before they begin spending face to face time with her. So, even if the Minister or delegate were allocated sole parental responsibility, apart from possibly making family therapy more likely to succeed, it would do nothing to address directly the very reason why the ICL proposed a s 91B request in the first place, that is, perceived problems in the care of the father.
In my view, on balance, orders for the father to have sole parental responsibility, for the children to live with him, and to begin having graduated contact with their mother broadly in accordance with the mother’s alternate proposal is the best option in the circumstances, if undertaken in tandem with family therapy. I do not believe it is in the best interests of the children for there to be any further delay in finalising the litigation by making a request pursuant to s 91B. Having considered the mother’s alternative proposal closely, I am satisfied it is sufficiently gradual and careful in seeking to re-establish contact between the children and their mother, subject to some refinement as will appear from the orders made. It is preferable such orders be made now in the best interests of the children so as to commence a process which will allow the children to re-engage with their mother.
I note the father made no specific submissions for or against the detailed alternate orders proposed by the mother.
As made clear already, Z seems to have a range of problems which are more severe than the older girls. However, no reason was advanced as to why or how it would be preferable for her to be the subject of specific orders which differentiated her from her sisters. On balance, it is preferable for the children to all be subject to the same framework.
ICL’S COSTS
The ICL applied for costs against the father. The father resisted this on the basis he has limited means. I accept that evidence. His counsel relied on s 117(4) of the Act. I do not propose to order costs against the father.
Although not intending to foreclose any other application for costs, my initial view is that each party should pay their own costs.
CONCLUSION
For all the foregoing reasons, I am satisfied the orders set out at the commencement of these reasons should be made.
I certify that the preceding one hundred and sixty-three (163) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 1 September 2022
ANNEXURE “A”
1.The mother have sole parental responsibility for the children X born in 2011, Y born in 2013 and Z born in 2015 (“the children”).
2.Subject to orders 8, 10 and 11 the children are to live with the mother.
3.For a period of not less than three months after these orders are made father is not to have any time or communication with the children, and the father is restrained from initiating any contact or communication with the children by any means, including through third parties.
4.Within seven (7) days of these orders each parent must:
(i)Unless another contact service is agreed, contact the FF Service at Suburb KK (the contact service) to arrange an appointment for assessment for suitability
(ii)Attend the assessment
(iii)Comply with any appointment made by the contact service,
(iv)Comply with all reasonable rules of the contact service,
(v)Comply with all reasonable requests or directions of the staff of the contact service.
5.Upon a place becoming available at the contact centre and for a period of 12 months, the children will spend time with the father at the contact centre on days and times as agreed, or failing agreed at the dates and times nominated by the Centre, being not less than two (2) hours per fortnight.
6.After the children have spent time for not less than 12 months supervised with the father at the contact centre and provided the father has completed a men’s behaviour change program as set out in orders 24 and 25 the children shall spend time with the father as follows:
6.1for a period of four (4) weeks from 10.00am until 2.00pm each alternate Sunday;
6.2For a period of four (4) weeks from 10.00am until 4.00pm each alternate Sunday;
6.3At the conclusion of four (4) weeks, from 10.00am until 5.00pm each alternate Sunday for six (6) months;
6.4At the conclusion of six (6) months, each alternate week from 10.00am Sunday to the beginning of school Monday (or 9.00am if children are not at school).
6.5On Father’s Day weekend, if the children are not with the father, then children shall spend time with the father from 5.00pm on Saturday to 5.00pm Sunday;
6.6On 15 November each year from after school (or 10.00am if not a school day) to before school the next day (or 10.00am if not a school day;
6.7From 12.00pm Christmas Day to 12.00pm Boxing Day in even years and from 12.00 noon Christmas Eve to 12.00pm Christmas Day in odd years;
6.8Subject to the father having complied with orders 22, 23, 24 and 25 below and after the children have spent time as set out in order 6.4, for not less than six months then the children shall spend time with the father as follows:
6.8.1Each alternate week from after school (or from 3.00pm if not a school day) Friday to before school Monday (or from 9.00am if it is not a school day),
6.8.2From the end of Term 2 2024, for half of the April, July and September public school holidays, such halves to be agreed between the parties and in the absence of agreement for the first half of each of these school holiday periods.
6.8.3For half of the Christmas school holiday period such half to be agreed between the parties and in the absence of agreement the first half in odd numbered years and the second half in even numbered years.
6.8.4For the purposes of these orders the school term and Christmas school holidays are deemed to commence at 10.00am on the first day after the public-school term ceases and changeovers shall occur at 6.00pm on the day in the middle of the school holiday period.
6.9Such other and further time as may be agreed.
7.Regardless of any other provision in these orders if the children are not already with the mother, then the father shall return the children to the mother at 5.00pm on the Saturday before Mother’s Day.
8.Within seven (7) days of these orders the mother will take Z to a general practitioner to obtain a referral for a full paediatric assessment of Z, and within five (5) days of receipt of that referral the mother will make an appointment with a paediatrician to enable Z to be assessed.
9.Within 72 hours of making that appointment the mother shall notify the father via email or SMS of the time and date of the appointment and the name and contact details of the paediatrician.
10.Within seven (7) days of these orders the mother shall do all things necessary to either contact an organisation or practitioner or obtain a referral for an organisation or practitioner who can provide psychological assistance and support to the children, and the mother shall do all such things and acts necessary to obtain psychological assistance to the children for the purpose of providing therapy to the children, such therapy to include but it not limited to support
(a)The children’s emotional and psychological needs arising from any changes to the parenting arrangements for children; and
(b)Any mental health issues that have arisen from the parenting of the children, including any issues identified by Dr B in her report of 13 July 2020.
11.Within seven (7) days of these orders the mother shall contact an organisation or practitioner who can provide family therapy to the mother and the children repair the relationship between the mother and the children.
In the alternative to orders 1-11
12.Subject to the father complying with orders 13, 23, 24, 25 and 26 the children are to live with the father.
13.Within seven (7) days of these orders, both parents are to do all acts and things necessary for Z, Y and X to make an appointment to attend therapy with a children’s therapist, and that such therapy is to include a component of healing the children’s fear of their mother and to start the process of repairing the children’s relationship with the mother at the earliest possible time.
14.Both parents shall:
(a)Comply with all reasonable rules of the therapist and
(b)Comply with all reasonable requests or directions of the staff of the therapist, including referrals to any other professionals and complementary services.
15.The children spend time with and communicate with the mother as follows:
(a)For a period of not less than three months the mother is permitted to send the children cards and letters each fortnight and from time-to-time small gifts, which the mother may deliver to the office of the children’s school for a period of three-months;
(b)The school is requested to hand the cards, letters and gift to the children without giving the children an opportunity to decline to take the item;
(c)After a period of three months, in addition to the cards, letters and gifts, the mother be permitted to call the children by telephone or Facetime once a fortnight with the mother to call the children between 7.00pm and 7.30pm on Wednesday in the alternate week she sends the cards or letters, and the father will ensure the children available to speak with mother, and ensure that the phone the children are using is switched on and charged;
(d)After a period of three months of Facetime calls, and in addition to the Facetime calls, the children spend time with the mother for a period of not less than once a fortnight for a period of two hours to be professionally supervised for a period of 12 months;
(e)For two hours on either 24 December or 26 December each year to be supervised;
(f)For two hours on the Saturday nearest to each child’s birthday each year to be supervised;
(g)At any time should the children indicate a wish to see the mother then the children shall spend time in accordance with that child’s wishes,
(h)At such additional times as, the parties may agree.
16.After a period of 12 months, the children spend time with the mother as follows:
(a)Each alternate Saturday from 10.00am until 12.00pm for a period of 12 weeks, then
(b)Each alternate Saturday from 10.00am until 4.00pm for a period of 12 weeks, then
(c)Each alternate Saturday from 10.00am until 5.00pm.
(d)In the event that two of the three girls are spending time with the mother from 10.00am to 5.00pm Saturday, then after the two girls have spent this time for not less than 12 weeks then they shall spend time with the mother each alternate week from after school (or from 3.00pm if not a school day) Friday to 5.00pm Saturday for six months;
(e)At the conclusion of six months, then from the first weekend after that six-month period is completed and each alternate weekend thereafter from after school (or from 3.00pm if not a school day) Friday to before school Monday;
(f)Upon the children commencing spending alternate weekends with their mother the following times:
(i)Each Wednesday from after school to 6.30pm, with the mother to provide the children with dinner;
(ii)In the event that the mother’s weekend falls on a long weekend including a Monday then time shall be extended to before school Tuesday. Alternatively, in the event that the mother’s weekend falls on a long weekend including a Friday then the mother’s time shall commence at 3.00 pm on Thursday;
(g)For half the April, July and September public school holidays, such halves to be agreed between the parties and in the absence of agreement for the first half of each of these school holiday periods.
(h)For half of the Christmas school holiday period such half to be agreed between the parties and in the absence of agreement the first half in odd numbered years and the second half in even numbered years.
(i)For the purpose of these orders the school term and Christmas school holidays are deemed to commence at 10.00am on the first day after the public-school term ceases and changeovers shall occur at 6.00pm on the day in the middle of the school holiday period.
(j)At such other and further time as may be agreed.
17.Regardless of any other provision in these orders the children will spend time with the mother as follows:
(a)On Mother’s Day weekend from 5.00pm Saturday to 5.00pm Sunday;
(b)On 31 August each year from after school (or 10.00am if not a school day) to before school the next day (or 10.00am if not a school day);
(c)On 23 January each year from 1.00pm to 6.00pm;
(d)On 28 March and 5 September each year as follows - when a school day, from after school to 6.00pm and when not a school day from 1.00pm to 6.00pm;
(e)From 3.00pm Christmas Day to 6.00pm Boxing Day in even years and from 12.00noon Christmas Eve to 3.00pm Christmas Day in odd years;
(f)For half the April, July and September public school holidays, such halves to be agreed between the parties and in the absence of agreement for the first half of each of these school holiday periods.
(g)For half of the Christmas school holiday period such half to be agreed between the parties and in the absence of agreement the first half in odd numbered years and the second half in even numbered years.
(h)For the purpose of these orders the school term and Christmas school holidays are deemed to commence at 9.00am on the first day after the public-school term ceases and changeovers shall occur at 6.00pm on the day in the middle of the school holiday period.
(i)Such other and further times as may be agreed between the parents.
18.On the days the children are not at school the mother or her agent will collect the children from the father or her agent at the beginning of the children’s time and deliver the children to the father at end of the children’s time at the Estate Management building for WW Street, Suburb R.
19.Once the children commence spending alternate weekends with the mother the children will have telephone or Facetime communication with the mother not less than twice a week on Tuesday and Thursdays, with the mother to call between 7.30pm and 8.00pm, and the father will ensure the children available to speak with mother, and ensure that the phone the children are using is switched on and charged.
Regardless of with which parent the children live the following orders will apply
20.Within seven (7) days of the date of these orders the parent with whom the children are living, shall take all such actions and things necessary to obtain a referral for Z to attend K Services/E intervention service (the intervention service).
21.Within 21 days of obtaining the referral in order 21, the parent shall do all things necessary to engage Z with the intervention service, and that parent will follow all reasonable recommendations of the intervention service, and for the purpose of this order the parties shall provide a copy of the report of Dr B which was released on 13 July 2020, the orders of the court and any reasons for judgment to the intervention service .
22.From the date of these orders both parents be entitled to attend
(a)Sporting fixtures
(b)Extra-curricular activities that allow for parental attendance
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
23.In the event the father has not completed Circle of Security course within seven days of these orders the father shall contact an organisation providing Circle of Security course and do all things necessary to enrol in Circle of Security course (the course).
24.Thereafter the father shall
(i)Attend all appointments and sessions of the course
(ii)Comply with all reasonable rules of the course
(iii)Comply with all reasonable requests or directions of the staff of the course, including referrals to any other professionals and complementary services;
(iv)Pay the fees nominated by the course for the provision of its service.
(v)Within seven (7) days of completion provide the mother with written confirmation that he has completed the program.
25.Within seven (7) days of the date of these orders the father is to contact L Service at City M on … (or contact a similar organisation) and do all such things necessary to undertake the intake procedures to enrol in the first available Taking Responsibility program (or a similar accredited men’s behaviour change program).
26.Upon being accepted the father is to complete the men’s behaviour change program within nine (9) months of being accepted to the program, and within seven (7) days of completion he shall provide the mother with written confirmation that he has completed the program.
27.The parents are to do all things necessary to follow any recommendation made as a result of the psychiatric assessment of Z in the report dated 6 July 2022, and that both parents are to be involved with all psychiatric interventions relating to Z and/or the other children.
28.Within 48 hours of obtaining any appointment for psychiatric intervention as set out in order 28, the parent who obtained the appointment must advise the other parent of any appointments and with whom the appointment has been made, and date of appointment.
29.These orders provide authority for any counsellor, therapist psychiatrist or any medical practitioner working with any of the children to communicate with either parent.
30.Within 14 days of these orders the parent with whom the children live do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the other parent copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities, and ensure the children’s schools are able to discuss all matters relevant to the children’s welfare with both parents.
31.During any period referred to in these orders, in the event of the children being hospitalised the parent who has care of the children, shall notify the other parent as soon as practicable (and in any event within one hour) after the first contact with either the medical practitioner, medical centre or hospital.
32.The mother and father are restrained from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children or any of them and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children or any of them.
33.The mother and the father are restrained from discussing these proceedings in the presence or hearing of the children or any of them, or showing the children any documents associated with these proceedings, and that each party do all things necessary to ensure that no third party discusses these proceedings in the presence or hearing of the children or any of them, or shows the children any documents associated with these proceedings.
34.The parents and/or their lawyers and the independent children’s’ lawyer have leave to provide a copy of Dr B’s report dated 13 July 2020 to any service or organisation providing assistance to the family under these orders.
ANNEXURE “B”
1.That X born in 2011 (“X”), Y born in 2012 (“Y”) and Z born in 2015 (“Z”) live with the Respondent Father.
2.That the Respondent Father have sole parental responsibility for X, Y and Z (“the children”)
3.That the mother spend time with the children as ordered by the court.
4.Such other orders as the Court sees fit.
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