Parris & Parris (No 4)
[2024] FedCFamC1F 624
•18 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Parris & Parris (No 4) [2024] FedCFamC1F 624
File number: SYC 4604 of 2020 Judgment of: CHRISTIE J Date of judgment: 18 September 2024 Catchwords: FAMILY LAW – FINAL PARENTING ORDERS – Where the parties resolved many central issues by agreement – Allegations of family violence – Mother’s allegations accepted in part – Where the children live with the mother and the father lives overseas – Where there has been no meaningful contact between the children and father for four years – Where father is to be informed of any long-term issues in relation to the children – Children to live with the mother – Time with the father in accordance with children’s views. Legislation: Family Law Act 1975 (Cth) ss 68B, s 60C, s 68CC Cases cited: Blinko & Blinko [2015] Fam CAFC 146
Keane and Keane (2021) 62 Fam LR 190
Re F: Litigants in person guidelines (2001) FLC 93-072; [2001] FamCA 348
Russell & Close [1993] FamCA 62
Studer v Konig (Unreported, New South Wales Supreme Court, McLelland CJ, 4 June 1993)
Division: Division 1 First Instance Number of paragraphs: 138 Date of hearing: 9 & 11 September 2024 Place: Sydney Counsel for the Applicant: Mr Ford Solicitor for the Applicant: Kells the Lawyers Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 4604 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PARRIS
Applicant
AND: MR PARRIS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
18 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Upon the mother making a decision in relation to any major long-term issue in relation to any of the children, X (born in 2010), Y (born in 2012) and Z (born in 2017) (“the children”), the mother shall inform the father in writing of any decision made as soon as reasonably practicable and no later than 48 hours after the making of the decision, and the mother is not required to communicate further with the father about any decision or the making of such decision in relation to the children.
2.Until Z turns 12 years of age, her time with her father will be either in accordance with her wishes or as agreed in writing between her parents.
3.Pursuant to Section 68B of the Family Law Act 1975 (Cth), the father is restrained from contacting or approaching the children except in accordance with these Orders and the Orders of 9 September 2024 or with the consent in writing of the mother.
4.The father is restrained from posting or otherwise publishing on any social media platform or other website any information or photographs which identify the mother or the children of these proceedings or any issues arising from the family law proceedings.
5.Within 48 hours of the making of these Orders, the father shall (if possible) turn off comments on all previously posted photographs or comments about the children or mother published on any social media platform and shall not repost these posts.
6.Until Z turns 12 years of age, the mother will provide the father with any medical report she receives from a specialist, or any discharge reports she receives from a hospital which relates to any of the children. In addition, if the children are hospitalised, the mother will provide the details of the hospital to the father and he will be permitted to seek any information about the children from the hospital directly.
7.Until Z turns 12 years of age, the mother will furnish to the father a copy of each school report issued by the school for each child and she is permitted to redact the name and location of the school. After Z turns 12 years of age, the mother is to notify the father of the school attended by the children and each parent may liaise directly with each of the child’s school principal or teachers to obtain any information about the child’s progress at school or information about events such as swimming carnivals, sports days, parent/teacher interviews and other educational activities or to arrange for the sending out of newsletters, school photos and academic report cards and any other documents provided to parents directly from the school and these Orders will be sufficient authority to authorise the release of such information, to each of the parents.
8.The Independent Children’s Lawyer is permitted to provide a copy of these Orders and Reasons for Judgment to the children’s treating psychologists and draw their attention to [109] of the reasons.
9.Pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Parris & Parris has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for final parenting orders.
The parties are the parents of three children:
(a)X born in 2010 (“X”);
(b)Y born in 2012 (“Y”); and
(c)Z born in 2017 (“Z”) (“the children”).
The children’s interests were represented in the proceedings by an Independent Children’s Lawyer (“ICL”).
The parties conferred with a view to reducing the scope of the dispute between them and asked at the commencement of the proceedings that I make consent orders which provided for the following:
1.All previous parenting Orders be discharged.
2.The mother make sole decisions in relation to all major long-term issues in relation to the children, [X] (born [in] 2010), [Y] (born [in] 2012) and [Z] (born [in] 2017).
3.The children live with the mother.
4.[X] and [Y] spend time with the father in accordance with their wishes.
5.Upon [Z] turning 12 years of age, [Z] is to spend time with the father in accordance with her wishes.
6.[X] and [Y] communicate with the father (including, but not limited to, via telephone, text message, e-mail and other social media platforms) in accordance with their wishes.
7.Upon [Z] turning 12 years of age, that [Z] communicates with the father (including, but not limited to, via telephone, text message, e-mail and other social media platforms) in accordance with her wishes.
8.In the event that any child expresses to the mother that they wish to communicate with and/or spend time with the father in accordance with Orders 4 to 7, the mother will notify the father in writing as soon as practicable and the child (or children) will communicate with the father on days and times as agreed between the parties in writing, and failing agreement on the first Saturday of each calendar month between 4:30pm to 5:30pm (AEST) through the video function of the Talking Parents App with time to continue until the child (or children) expresses to the mother their wish to suspend or cease such communication (and the mother notifying the father in writing of the child or children’s wish to suspend or cease such communication).
9.The father be at liberty to send via post/courier to a postal address nominated by the mother gifts, letters and/or cards to the children on each of their birthdays and Christmas only.
10.For the purposes of Order 9, the mother shall:
10.1within 14 days from the date of these Orders, notify the father in writing of a nominated postal address to which the father is permitted to post/courier gifts, letters and/or cards and shall notify the father in writing within 48 hours of any change to this nominated address; and
10.2be permitted to review any card or letter accompanying any gift send by the father pursuant to Order 9 and should such card be deemed to contain words or phrases that make negative, critical, belittling, rebuking or derogatory comments about the mother or mother’s family or contains information related to these Family Law proceedings or parenting arrangements, the mother is permitted to dispose such card and only provide the gift to the children.
11.Leave is granted to the mother to provide a copy of the Single Expert Report prepared by [Dr U] dated 23 July 2024 and a copy of these Final Orders to any current or future health practitioner treating the children (with such mental health practitioner including any therapist, psychologist, psychiatrist or medical doctor).
12.Leave is granted to the mother and to the father to provide a copy of the Single Expert Report prepared by [Dr U] dated 23 July 2024 and a copy of these Final Orders to their treating mental health practitioner (with such mental health practitioner including any therapist, counsellor, psychologist, psychiatrist or medical doctor).
13.Leave is granted to the mother to provide a copy of these Final Orders to the children’s respective schools.
14.Each parent will treat each other with civility and respect at all times and throughout all forms of communication and during changeover.
15.Each parent be restrained from making any negative, critical, belittling, rebuking or derogatory comments about the other parent or members of the other parents’ family or household in the presence or within the hearing range of the children, or via written correspondence or on social media which may be viewed or accessed by the children, and each parent will do all things reasonably necessary to ensure that no other person does so.
16.The mother will immediately notify the father in the event of an emergency involving either of the children including, but not limited to, the child suffering a serious illness or injury or being hospitalised while in her care.
17.For the purposes of facilitating these Orders and unless otherwise agreed in writing between the parents, the parents are to communicate with each other via a free parenting communication application as agreed between the parents, and failing agreement by e-mail, and both parties shall ensure
18.That the mother shall facilitate the children meeting with the Independent Children’s Lawyer at such dates, times and location (or means) as can be reasonably requested by the Independent Children’s Lawyer for the purposes of explaining the Final Orders to the child.
(Orders of 9 September 2024, Recitals 1-18)
There was a further order which was agreed between the mother and the ICL. It provided:
22.That upon the mother making a decision in relation to any major long-term issue in relation to any of the children, the mother shall inform the father in writing of any decision made as soon as reasonably practicable and no later than 48 hours after the making of the decision, and that the mother is not required to communicate further with the father about any decision or the making of such decision she made in relation to the children.
(Proposed Minute of Order dated 9 September 2024, Recital 22)
The father clarified that he did not oppose that Order per se but could not see the need for the parties’ communications to be as limited as the Order provided.
I explained that the intention, as I understood it, was to emphasise that the mother’s decisions were not a matter for debate but that she would be obliged to inform him of those decisions. The father accepted that proposed Order 22 could be made and I intend to do so.
The effect of the making of the final consent orders was that the issues for determination are:
(a)Whether there should be an order that until Z turns 12 years of age she is to spend no time with the father or, in the alternative, whether Z’s time with the father between now and age 12 should be subject to conditions;
(b)Whether the father should be restrained from approaching the children’s home or school;
(c)Whether the father should delete social media posts and be restrained from future social media posts which identify the children or the mother;
(d)How the father should access medical and educational information about the children; and
(e)Whether the children’s names should be on the Airport Watchlist.
BACKGROUND
In 2019, the father was offered employment as an athlete in the United Kingdom. The mother was reluctant to leave Australia. The mother engaged a lawyer to prepare consent orders which recited that the parties were not separated but should the mother wish to return to Australia from the UK with the children, she would be permitted to do so. The court requisitioned the consent orders and they were not ultimately made.
The parties and the children moved to the UK. The evidence suggests the mother and children never really settled in the UK. The single expert recorded that the mother “said the children did not want to go and told her, “look at how he is treating us, he is not going to change” (at [529]). The children were nine, seven and two years of age.
This experience appears to have cemented an “us and them” dynamic where the mother and children were pitted against the father.
The parties were living separately in mid-2020 in the UK and both parties’ evidence suggests that they were arguing.
In July 2020 the mother and children returned to Australia. The father has remained in the UK since.
In November 2021, I made Orders for supervised time between the children and the father and it is uncontroversial that only one occasion of supervised time occurred and it lasted for nine minutes.
Orders for electronic communication have been in place since shortly after the children’s return to Australia. It is common ground that while the calls may have occurred, there has been no meaningful interaction between the children and their father since June or July 2020.
THE LAW
The parenting orders I make must be ones which I can be confident, on the evidence, will be in the best interests of the children.
In reaching a conclusion about what orders will be in the best interests of the children I am to have regard to all relevant matters including those set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
The power to make injunctions is contained in s 68B of the Act.
CONSIDERATION
Ironically, the parties’ competing applications are not significantly different from one another albeit that each would tell the Court that they seek the orders they do for different reasons.
As I have indicated, I understand the mother’s case to be that she has acted protectively and in accordance with the children’s views in limiting the children’s face-to-face time with the father and she has endeavoured to encourage the children to maintain electronic communication but they have been reluctant and the father has been unreliable.
The father’s case is that the mother has persuaded the children to reject him by exposing them to her own views of their father and has inculcated fear in them in circumstances where he has not engaged in conduct which would have had that effect.
The father’s case acknowledges that whatever the genesis, it is not in the children’s present interests to force them to spend face-to-face time with him.
The narrowed scope of the dispute does not change the statutory considerations.
Benefit to the children of a (safe) relationship with each parent
There is no dispute that the children have a close relationship with their mother. The mother says that the obligation to facilitate electronic communication between the children and the father has placed strain on her relationship with the children.
Z does not have a relationship with the father and the relationship between X and the father and Y and the father is fractured.
Safety
The mother’s case emphasises the children’s safety. The question of the children’s safety is relevant to my consideration of all the issues which remain for determination.
The mother gave evidence that the parties separated in circumstances where she said she was subject to family violence from the father. She used the expression “physically and mentally abusive” in her oral evidence. The father denies that he was physically violent or mentally abusive to the mother.
The father elected to represent himself at the hearing. He was provided with procedural advice, but it is well-recognised that self-representation will almost inevitably place the litigant at a serious disadvantage: Studer v Konig (unreported, SC (NSW), McLelland CJ, No 4900/92, 4 June 1993, BC9301722) (cited in Re F: Litigants in person guidelines (2001) FLC 93-072 at [213]). The most significant factor in this case is that the father did not cross-examine the mother about specific incidents set out in the mother’s affidavit to the effect that at the conclusion of the cross-examination he had not challenged her account. That does not mean that I am bound to accept the mother’s account. I am able to take into account the father’s affidavit evidence which included blanket denials. I am also able to take into account any other collateral material and the inherent probability or improbability of the account. I will deal with each of the allegations in turn.
As well as outlining events which the mother contends were incidents of family violence directed at her, the mother also gives evidence about some incidents involving the children which she says posed a risk to their physical and/or mental well-being.
Incidents involving the mother
The mother’s affidavit recounts an occasion in mid-2014 when the parties argued. The mother says the topic of their argument was the father’s interaction with women on social media. The father accepted in cross-examination that this was a topic about which the parties had argued during the marriage. He denied that he had smashed a bottle deliberately during this argument.
The mother says X was in the vicinity and the glass cut his foot. He was 3 years old.
The mother attached photographs of a broken bottle and of a cut which appears to be on the top of X’s foot. She does not explain how he came to have a cut on the top of his toe as her account does not seem to suggest that he was hit with the broken glass during the incident. I accept (notwithstanding his denials) that the bottle was broken by the father during an argument and that throwing the item in anger is an example of family violence. In accepting the mother’s account over the father’s denial I have also had regard to the mother’s claims that she was documenting the father’s conduct (consistent with her having taken photographs after this incident).
The mother says that in early 2018 she and the father were having an argument about whether he had been engaging with women on social media. In the course of this discussion the mother had the father’s phone. The mother says the father punched her chin with a closed fist. The mother says that when she said to the father “why would you do that to me?” he responded “I didn’t punch you I was just getting my phone back”. The mother attached pictures of a bruise to the underside of her chin to her affidavit. It seems unlikely that if the father punched the mother’s chin with his closed fist, then the bruise would appear on the underside of her chin. The account which the mother provided to the single expert appears more consistent with the photograph of her injury. The single expert records: “…he had punched her when she tried to grab his phone from him. She said this grazed her chin” (at [570] (emphasis added)). I accept that the mother was injured during a physical interaction with the father over his phone. I am unable to determine whether or not the injury was deliberate or inadvertent.
In 2018-19 the mother says the father threw a plate at the floor and a television remote at the wall – both in the context of disputes about the father’s alcohol consumption. In 2019 the mother says the father threw a soccer ball at her with force. The father denied this.
The mother gave evidence that in late 2019 the father struck her with his hand and barged into her with considerable force. The mother says she believed he was intoxicated at the time and they were arguing about the move to the UK. The father was not asked about this incident, nor did he cross-examine the mother about it. I am unable to determine whether it occurred as described by the mother.
The parties continued to argue and moved to the UK in late 2019.
Around the time of separation, the mother says the father often threw objects such as an apple and a sauce bottle that hit X.
X indicated to the single expert he could recall his father throwing “stuff at mum”: at [1170].
I accept that it is more probable than not that the father did throw things during arguments as the mother contended.
In mid-2020 the mother gives evidence that the father drove recklessly. The family were returning home from a day at the beach. On the mother’s account the father was driving in excess of the speed limit and she told the single expert “tried to drive us into a concrete barrier”: at [590]. This version of events implies an intention to physically harm himself and the family. The material from the Department of Communities and Justice which was viewed by the single expert records a report dated 17 April 2023 in which the same incident was described as follows: “[t]he father purposefully trying to kill the family by purposefully driving off the road at high speed (100 km/hr) while the family were in the car” (at [680]).
The father’s account was that he was driving within the speed limit and a car pulled out in front of him leaving him no option but to turn the wheel quickly and in so doing, the rims of the wheels were damaged by the concrete barrier.
The incident is significant because it has informed X’s view of his father as a person who tried to kill the family.
I accept that the incident would have been frightening for all of the occupants of the car, but the evidence does not allow me to find that the incident was a deliberate act by the father, and it is of concern that it seems to have become more serious in the re-telling. I cannot on the evidence find that this was an incident of family violence.
The mother alleged the father had used derogatory names in arguments with her such as “dickhead”, “dumb as dog shit”, “dumb bitch” and “mental idiot”. The father denied this.
X provided an account of his experience to the single expert which was consistent with his mother’s position. The issue for the court is whether this account reflects X’s lived experience or whether it has been influenced by his mother’s narrative (or some combination).
The single expert considered that X’s account had a somewhat “rote” or “rehearsed” nature which may be the result of discussions with his mother or repeated focus on the experiences in therapy. I have not discounted X’s account on the basis that it appeared rote or rehearsed. At the conclusion of the evidence, I formed the view that X did experience his father using derogatory taunts in fights with his mother. I am, however, concerned that the rote or rehearsed nature of his account has (as discussed later) been a product of repeated exposure to a narrative of abuse.
On 30 June 2020 the mother made contact with V Service. They record providing her with support between late June and early July 2020 for “domestic abuse”.
The mother returned to Australia in mid-2020 without informing the father. He remained in the UK.
Consent Orders made 16 July 2020 provided:
1.That the Wife facilitate the Husband communicating with the children by electronic means, being FaceTime or Whatsapp, as follows:-
i.On each and every Wednesday at 4.30p.m AEST; and
ii.On each and every Saturday at 4.30p.m AEST.
Or as otherwise agreed between the parties.
(Mother’s affidavit filed 21 August 2024, p.124)
I infer that both parties considered that it was in the interests of their children to speak to their father twice a week.
I have had regard to the evidence of the single expert witness who conducted a risk assessment of the father
In considering the significance of my findings about family violence I have also had regard to the manner in which the father has conducted himself since separation. His attendances, for example, on the home of the maternal grandmother in late 2020 were understandable and his decision to leave when requested indicates insight and restraint.
I do not accept that the father has engaged in conduct post-separation that could be regarded as stalking the mother. I accept that he has had a genuine desire to know where his children are and his conduct is explicable in that regard.
I do accept that the parties argued and the children were exposed to the conflict between the parties, which escalated over their disagreement about living in the UK. In that context I accept, as indicated above, the mother’s account that the father threw things.
The father was prepared to accept that he had been reactive and raged at the mother – as is plain from his apologetic text message dated 25 May 2020.
However, it is also apparent that the mother has included in her narrative of abuse disagreements between the parties that are not indicative of abuse or family violence such as the father asking for return of the car the mother was driving when it was recalled by a sponsor. In the same vein, the mother may genuinely view the father’s decision to move the family to the UK as an attempt to isolate her and, therefore, as coercive and controlling behaviour but objectively his discussion of this as a move motivated by the need to continue to provide economically for his family is more credible.
It follows that I accept that there were (as discussed above) incidents and events which meet the definition of family violence. The question is what significance that find has for the adjudication of the remaining disputes.
Having regard to the expert opinion about likely future risk and my findings in respect of the various matters alleged, I do not accept that face-to-face time between the children and the father would be likely to expose them to a future risk of family violence or being witness to family violence perpetrated by the father towards the mother.
The risk to the children in face-to-face time arises from the implacable opposition and the mother’s inability to support it. As is plain for the one incident of supervised time this has the potential to inflict physical harm and psychological distress but not as a direct result of action by the father.
Incidents involving the children
The first incident the mother recounts in her affidavit related to discipline of Y. The mother says that in 2018 (when Y was 5 or 6 years old) the father put her in her bedroom as a punishment and locked the door. The mother said the father would shout “she’s a stupid bitch why is she being so loud”. The mother says that Y would cry, bang on the door and ask to be let out and the father would laugh and tell the mother not to “interfere with what I with the kids”.
The father agreed that he used time outs in Y’s bedroom as a form of discipline. He denied that the door was locked. He denied referring to Y as a “stupid bitch”.
The mother’s affidavit suggested that during 2019/20 the father pinned Z down to encourage her to sleep, which caused her to become hysterical.
The mother said the father had yelled at X to get off his sister’s bike (as he was too big for it). The mother says the father then kicked X in the calf and hit the top of his head with an open hand.
The mother told the single expert the father threw an apple and sauce bottle at X – although these may be the incidents she recounts in her affidavit at [63] where she says they were thrown at her. I cannot resolve the apparent inconsistency.
The mother says the father has used derogatory terms to refer to the children and in particular X, for example “baby” and “bitch”. The father denied the same but accepted he may have called X a “little sook”, as in “don’t be a little sook” and that he may have called him a “mumma’s boy”. But specifically denied that he said of X “I hate him. I actually hate him.” The mother says the father told X in early 2020:
… “You better not be a poof, you better not be gay. I’m not going to have that or I’ll flog ya” …
(Mother’s affidavit filed 21 August 2024, p.4)
Many of the examples which the mother provided as indicative of a risk to the safety of the children focus on a different style of parenting. For example, the mother told the single expert the father would hold the children underwater and say this was teaching them to swim. X either recalls this occurring or has spoken about it with his mother because he told the single expert his father had made him hold his breath for too long underwater. In the ordinary course parents will have different styles of parenting and one parent may be more risk averse and another parent more cavalier. In the ordinary course, these differences are not a cause for concern and do not objectively impact on the children’s safety. The examples in this case appear to fall into that category. They also include such things as no being attuned to when the wrestling is too much for a child, not accompanying a young child into the public toilets or letting a fellow athlete hold your child. Given the more serious allegations of the mother the case does not turn on the parties’ differing parenting styles.
Drugs and alcohol
The mother alleges that the father’s use of drugs and alcohol are relevant to the determination of the issues before the Court.
The mother gave evidence about the father and his uncle drinking in 2018. The uncle was injured. The father agrees they were both drinking but, in court and contemporaneously, indicated to the mother that the uncle was injured when he fell. I cannot find on the evidence that the father was responsible for the injury to his relative (as the mother implies).
The mother says the father drank to excess. The father says the mother believed it was excessive to have a second glass of wine with dinner.
No party cross-examined about alcohol use, and on the balance of probabilities, I am unable to find that the father drank in a manner which would place the children at risk. Given the scope of the parties’ dispute the relevance of this is minimal in any event.
The mother alleged that she found and photographed a box of prescription drugs in mid-2019 which had been delivered to the parties’ home but bore the name of a family friend. The mother said this discovery caused a dispute during which the father identified the drugs as painkillers for his own use. The father denies this.
The mother says X found “drugs” in the pocket of the father’s jacket in the UK in early 2020. The father says it was likely an anti-inflammatory. I am unable to find on the evidence (including the text messages) that the drugs were illicit.
The mother’s case was squarely focused on the risk arising from family violence and the reactions of herself and the children to that violence. No submissions about drug and alcohol use were made and this is not a factor which has any significant bearing on my determination given the other issues and findings discussed here.
The single expert opined that the mother developed an overvalued idea about the perceived risk posed by the father. I accept that opinion. It accords with the evidence which suggests that the mother is a more cautious and anxious parent and the fact that many of the events which she describes (as discussed in these reasons), in support of the “no time” position she has taken, do not appear objectively to warrant this response.
That does not mean that I accept that there are no risks. The key message of the expert evidence was that the even at its highest the mother’s evidence about family violence demonstrated a pattern which existed during the relationship. It was situational and there was no evidence of its recurrence post-separation. This was relevant to her assessment of the likelihood of future risk being low and I accept that unchallenged evidence. The single expert report contained recommendations which would have functioned to ameliorate some risks but for the reasons which follow I am not confident that such recommendations are able to be implemented.
It is the mother’s view that any interaction between the father and the children would cause her great distress and anxiety and affect her parenting capacity. The Full Court in Russell & Close [1993] FamCA 62 (“Russell & Close”) stated that:
[32]The responsibilities and obligations of courts exercising jurisdiction under the Family Law Act in relation to children were set out at length in B and B (1993) at page 79,799. In summary, it was stated by the Full Court that:
…
In upholding children's right to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary caregiver concerning the child's exposure to potential harm where such anxiety is likely to impact adversely on that parent's caregiving ability.
The reasons of the Full Court in Blinko & Blinko [2015] Fam CAFC 146 provide a useful guide to the practical application of the principles in Russell & Close:
[83]It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:
•If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
•If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent's belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent's capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
•Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent's capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.
A helpful summary of the authorities applying the Re Andrew principle was recently set out in Keane and Keane (2021) 62 Fam LR 190:
[75]… [A]uthorities applying the Re Andrew principle, relating to the impact of a genuinely held belief on the primary caregiver’s ability to parent, has been expressed in a variety of ways including:
a. “may so impinge upon her capacity as the primary caregiver of the children” [In the Marriage of A (1998) 22 Fam LR 756; (1998) FLC 92-800];
b. “her co-parenting capacity would deteriorate and impinge the children’s best interests” [Dunst and Dunst [2016] FamCAFC 15 at [81]];
c. “as her likely being unable to continue to function effectively so as to adequately care for the children” [Hollister and Gosselin [2016] FamCA 759 at [193]];
d. “genuine fears of the residential parent about such a risk may so impinge upon the parent’s capacity” [Bayer and Imhoff [2010] FamCA 532 at [177]];
e. “where such anxiety is likely to impact adversely on that parent’s caregiving ability…” [Russell v Close (unreported, FamCAFC, Fogarty, Baker and Lindenmayer JJ, SA 45/1992, 31 March 1993)];
f. “have an effect on the custodial parent which will impair to a significant degree the emotional support and for that matter physical support which the custodial parent can render the child” [In the Marriage of Grant (1994) FLC 92-506 at 81–259] …
The mother’s subjective view, while not determinative, cannot be overlooked. I accept that she holds a genuine belief that the father is a risk to the children. I think that belief has increased over time (as opposed to decreased), as evidenced by her early agreement to twice weekly phone calls. The escalation of concerns might be explicable if the conduct of the father had escalated but as previously discussed he has (notwithstanding frustration) not acted in any manner which might be objectively characterised as threatening post-separation.
A separate issue arises in respect of the psychological safety of the mother. The single expert gave evidence that the mother had decompensated when facing stressors (in particular these proceedings) and this had had implications for the children in so far as she was unable to ensure such things as school attendance.
The single expert was careful not to say that the mother would inevitably react poorly to orders with which she disagreed (although the evidence to date suggests this is likely), focusing on the support and scaffolding from her own mental health treaters that may be necessary to assist her to implement orders with which she disagreed.
Following the father’s evidence (the mother’s case having already closed) she sought leave to reopen to provide the court with evidence of her reaction to the father’s proposal that Z undertake therapy with a view to restoration of her relationship with her father. The mother gave the following evidence:
After the conclusion of court on 9 September 2024 and after leaving the Court Room at about 3pm, I was suffering a panic attack. I became tearful and I could not get my words out to finish a sentence. My chest felt tight. This occurred as I was having thoughts about the difficulty that I would encounter, if an order was made for therapy between [Z] and the father. I had to wait a while until I was calm enough to be capable of driving myself home from court.
(Mother’s affidavit filed 10 September 2024, p.3)
I accept that the mother is likely to react to orders which she believes place the children at risk by decompensating. I find that the mother’s response to the stressor of court and compliance with court orders is likely to recur if orders are made which she perceives as harmful to the children. This finding has informed my cautious approach to the single expert’s recommendations about therapy for Z.
Children’s views
I am conscious from reading the single expert report and the mother’s material that the children the subject of this litigation do not feel as if they have been heard. This may arise from a misplaced sense that they were permitted to make choices about when to see or speak to their father. The mother agreed to orders which would have seen them speak to their father twice a week. Those orders could not have exposed them to physical risk and one can infer from the mother’s initial consent that she did not consider that the orders would expose them to any significant psychological risk. Yet, the mother did not encourage or promote the time or communication between the children and the father. This is likely because she held and holds the view that the relationship between the children and the father is not of utility to them.
She was unable to conceive of how such a relationship (if safe) would be of advantage to the children in the medium to long term.
The children met with the single expert Dr U in February 2024.
X
Dr U records:
[1380][X] did not wish to have any contact with his father… He was staunch in this view and could not entertain any suggestion of this being otherwise. He appears to fervently believe that contact with his father would be detrimental to his emotional well-being and that his father would physically harm him, his sisters and his mother. He believes that his father tried to kill them. [X] is strongly aligned with his mother and shares her views that his father should not be made aware of his whereabouts or be allowed any contact with them. He does not wish to have any contact with anyone from his paternal family either.
[1390][X] wishes to continue to live with his mother and siblings, with whom he feels safe and well cared for.
(Family Report dated 23 July 2024, p.49)
The language that X used to refer to his father in conversations with the single expert include: “the other one”, “he” and “him”. The single expert recorded that X did not consider his paternal family (including his father) to be members of his family. These observations suggest a rejection of the father.
There are numerous examples of X’s narrative being consistent with that of his mother, but one will suffice: the father sets out a conversation with X in early 2021 where he says X said:
[X]:You are not our dad. We are not your kids. All you have done is play [sport] and go to [Country S] every year and drink. Mum is the one who looks after us. I’m not talking to you because you purposely tried to crash the car in the UK [car incident] and jumped the fence at the house in the UK. I’m 10 years old that means I can make my own decisions on who I want to speak to. I know that.
(Father’s affidavit filed 30 August 2024, p.11)
Y
Following interview with Y in February 2024 the single expert observed:
[1560][Y] did not wish to have any contact with her father … As with [X], she appears to believe that contact with her father would be detrimental to her emotional well-being and that she would be at risk of physical harm if she had contact with him. [Y] is strongly aligned with both her mother and brother and shares the view that her father should not be made aware of her whereabouts or be allowed any contact with them. She wishes to continue to live with her mother and siblings, with whom she feels safe and well cared for.
(Family Report dated 23 July 2024, p.55)
Z
Z declined to be assessed by herself and as such her assessment was conducted with her mother.
I find that the mother has contributed to the children’s feelings of fear about the father. One of the ways in which she has done this is to speak to them about events which occurred when they were too young to have their own independent memory. An example is provided in the single expert report:
[1490][Y] states that her mother had told her about her father hurting her, referring to an incident in which ‘he dropped me on my head right here from this coach [couch] when I was a little baby, and he was like “she is fine”’. When asked by the supervisor if she remembered that, she responded, ‘Mum told me’.
(Family Report dated 23 July 2024, p.52)
The children’s views of the father have been significantly influenced by exposure to the mother’s views of the father.
The father said in his affidavit at [64] that:
From the date of the orders I have not spoken to [X] except for the times I refer to below. When I have asked the wife to speak to the children [Ms Parriss] responds, “you are a cheat”, “no one wants to talk to you”, “the children hate you”, “we all hate you” why don’t you leave us alone”, “we have all moved on from you”, “I’m not going to force the children to speak to you”, “my solicitors have told me that I don’t need to make them speak to you”, “my solicitors are going to make sure you never see the children”.
(Father’s affidavit filed 30 August 2024, p.8)
In the supervised contact report dated 14 November 2021 the supervisor recorded:
[Y] continued, “He dropped me on my head, right here from this couch when I was a little baby and he was like ‘she is fine’.” I asked her, “Do you remember that?” She said, “Mum told me.” The mother corrected her, “[Y] that was when we were in Queensland.” [Y] exclaimed, “No it was here. You said it was here.” [X] added some of his negative recollections.
(Mother’s affidavit filed 21 August 2024, p.165)
The mother, in correcting Y’s account did not reject the proposition that she had spoken to Y about the incident and merely sought to correct the account. The mother has not appreciated that sharing criticisms of the father’s pre-separation parenting, which may cause the children to conclude that he was negligent or dangerous, has consequences for the children both in the short and potentially the long-term.
The developmental, psychological, emotional and cultural needs of the children
The children have experienced significant emotional and psychological distress. They have been exposed to their mother’s anxiety. They are themselves anxious.
The single expert opined that even if the court were to find that the father had engaged in the conduct described by the mother – the mother has perhaps inadvertently exacerbated the children’s anxiety.
The children have a need to maintain a relationship with their father and a connection to his cultural heritage. The orders which the Court is being asked to make recognise that the children’s needs cannot always be met in this regard.
The question which arises is whether there is a safe way to keep the opportunity of a safe relationship with the father a possibility for these children.
The issue is most significant for Z because the parties accept (albeit for different reasons) that facilitation of time between X and the father and Y and the father is not tenable at present.
The father resists the making of what would effectively be a “no time” order in respect of Z in between now and when she turns 12.
Z, according to the father’s unchallenged evidence, was still saying “I love you” during phone calls in February 2021. The father also suggested she would participate in the calls for example by being keen to show the father her jumping on the trampoline.
The father seeks orders which implement the single expert’s recommendations about a therapeutic process for Z which would (potentially) create the opportunity for time between Z and the father.
At first blush, the proposal is attractive. Z was very young when the parties separated and her age makes the potential that the relationship between father and child could be re-established more probable than is the case for the older children. However, it cannot be ignored that Z lives in a family comprised of her mother and two siblings who would inevitably respond badly to any introduction of time between Z and the father.
I raised with the parties the utility of an order which would allow the father to provide the children’s treating therapists with collateral information. The single expert accepted that this would be advantageous to the children because it would assist to inform the therapist about matters which may be relevant and unknown.
The mother resists such an order on the basis that she asserts that the children would cease to attend the therapists. There is of course no direct evidence of this as the proposal is not one presently known to the children but, reasoning by analogy, the mother would say that the children are anxious about any contact (even indirect) with the father and so she would say her prediction is accurate.
This places me in a difficult position because the objective evidence suggests an advantage of the proposed course to the children but without the mother’s support, I have to accept that there is a very real risk that the children will (inappropriately) cease to attend upon treaters with whom they have a longstanding and supportive relationship. I cannot take that risk.
I propose that the treating psychologists be provided with a copy of my reasons and Orders and invited to consider whether they speak to the children’s father at a time of their election (having regard to the interests of the individual children and if they deem it appropriate they make contact with the father at such time as appears child-focused).
Information about the children’s health and education
All parties accept that the father should have information about the children’s health and education. The mother wants to provide that information herself so that she is able to redact the location/name of the children’s school and the location of the children’s medical practitioners.
The father would prefer that he have the capacity to access information independently of the mother.
As previously indicated, I have not found that the father having knowledge of the children’s location places the children at any physical risk from their father. What I am weighing is the potential psychological risk to the mother as against the value to the children in due course of their father having had access to information about their progress and welfare.
I am concerned that if the father is reliant upon the mother for information, then he may not receive it after the proceedings have concluded. The father’s receipt of information is designed to assist the children in the long-term. If the children want to speak with their father or spend time with their father, the process will be facilitated by his having remained informed about their lives.
To strike a balance between the advantages and disadvantages, I will order that until Z turns 12, the mother is responsible for providing information to the father. I have concerns about the appropriateness of an order which appears to authorise medical practitioners to discuss the physical and mental health of adolescents with both parents. In my view, there are risks involved in such an approach and it may be entirely inconsistent with the children’s best interests in the future for third parties to believe that an order requires them to provide information to parents. I do not take the same view about school records and reports. I will make an order which gives the situation time to settle, the mother and children to continue with therapy and then when the children are older the information should come directly to the father (as would be the case with any parents) rather than being filtered by the mother.
Social media
I accept the evidence of the single expert that there is value to the children in a relationship with both parents (provided it is safe). In that vein it is appropriate to examine the evidence around the father’s social media use to determine whether it is likely to be to the benefit (or detriment) of the children.
The mother has attached various Instagram posts to her affidavit. While it is not entirely clear, it seems as though the posts are all from 2021.
It is useful to set out an example:
[Mr Parriss] To my son I wanted to make a successful man out of you …. But more importantly you have made a successful father out of me … Proud of you son!
Happy birthday son theres not a day or minute where I don’t think about you I hope your looking after your little sisters!
Happy Bday king keep striving to the best you can be never forgot daddy always loves you and will continue to make you and your sisters proud you drive me everyday to succeed and time will tell and will all prevail!
Have a wonderful Day son Daddy will always love you! [emoji] #[…]
…
(Mother’s affidavit filed 21 August 2024, p.145)
In cross-examination, the father said he had made the posts and did not wish to remove them because he wanted the children to be aware that he had never given up on them.
The father has posted other comments or photos on social media which do raise concerns – such as those which allude to the dispute between the parties or where he has included photos of his children.
I am aware from reading the single expert report that X reacts negatively to information that his father has posted on social media about the family (even if the content may be objectively benign).
X’s well-being must be regarded by me as more important than the father’s (understandable) desire to send a message to his children that he has not given up on them. The father can keep a journal and the orders of 9 September 2024 provide for him to send the children gifts, letters and cards for Christmas and their birthdays. He may wish to keep copies of those letters and cards.
X was diagnosed by the single expert with PTSD. No party challenged that diagnosis, and the single expert was asked to comment on the diagnosis during her cross-examination and she confirmed the diagnosis noting that all 3 symptom clusters for the diagnosis were present, and those symptoms persisted in context of trauma – trauma which came either from his own experience or hearing about it from his mother. The single expert said that the aetiology is not important to the diagnosis.
The evidence suggests that, on balance, an order which prevents the father engaging about the children on social media in the future will be protective of them. It may well assist in the long‑term for the children to know what the father’s motivations in posting were and that he only stopped because he was required to by court order – following a finding that the posts were causing his children (or at least X) anxiety.
I do not propose to order that he remove old posts, but rather, that to the extent he is able, he turn off comments on old posts and not repost their content.
Compliance with this Order will mean that there ought be no occasion for anyone in the children’s wider circle to bring any current posts to the children’s attention.
Injunctions
At the beginning of the hearing, the ICL and mother agreed to an order which provided that the father be restrained from approaching the children’s home or school. The father does not consent. My power to make such an order comes from s 68B of the Act and is an exercise of the power in s 68B(1)(c)(ii) of the Act. The section makes plain that the decision as to whether or not to make an injunction is a discretionary one having regard to the welfare of the subject children.
The father has known the children’s previous address in Suburb F. There is no evidence of him attending at the home.
The father has at all times known the address of the mother’s parents in Suburb W. Apart from attending at the home in an effort to see the children in late 2020, there is no evidence he has otherwise attended there.
The father knew which school the children were attending in mid-2021 when he spoke to the principal and transferred funds to meet extracurricular expenses, excursions, sport fees and the like and there is no evidence that he attended at the school.
There are two difficulties with the proposed injunction. The first is that I cannot be satisfied that it is appropriate to restrain the conduct of a party unless the evidence establishes that there is a need. The second is that the injunction which is sought requires the father not to approach the children’s home or school. The mother has not made the location information known to the father and resists an order that she be required to so do. That creates a difficulty in so far as I am being asked to make an order which the father could inadvertently breach. I accept that the father is currently living in the UK but it does not appear to be his intention to remain there indefinitely.
Counsel who appeared on behalf of the mother argued that because the order sought is not sought explicitly for the personal protection of the mother or the children, then s 68C of the Act which creates a power of arrest would not be in play. I agree. However, that does not assist me with the dilemma which is created by the request for an order which restrains the father from doing something imprecise.
Usually, an order restraining the conduct of a person is made in circumstances where the evidence of previous conduct or representations create an evidentiary basis for invocation of the injunctive power. Here, it is not the father’s conduct which creates the foundation for the making of the order. The power conferred by section 68B is broad and provided the order is designed to address the welfare of the children the order will be appropriate. The evidence suggests that the children may obtain some comfort from the existence of an order. I have read the two supervised contact reports in evidence. I accept that the children appear fearful of the father. Further, I understand that X exhibited school avoidance after he learned that his father may be aware of his location. It is not of any moment that the fear may be unreasonable if I accept that it is genuine, which I do.
I therefore proposed that there be an order that provided that the father not contact or approach the children (or any of them) except in accordance with these Orders or with the consent in writing of the mother. That is the order which I propose to make.
Airport Watchlist
The mother wants the names of the children to be placed on the Airport Watchlist. The effect of such an order would be to prevent either parent from removing the children from the Commonwealth of Australia except with an order of the Court.
In order to make any injunctive order the court must have admissible evidence which establishes that such an order is appropriate. Usually, in the case of an order placing the children on the Airport Watchlist the type of evidence which would support the making of an order would establish a risk of unilateral removal.
There is no evidence before the Court which supports the conclusion that the children are at risk of unilateral removal.
The mother says she holds the children’s passports.
The father submitted that it was not in the children’s interests for the parties to be required to return to court if the opportunity for one (or all) of the children to travel arose, for example in a sporting context. I accept that submission. Therefore, in the absence of identified risk I decline to make an order placing the children on the Airport Watchlist.
I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 18 September 2024
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