Penrose & Albrecht (No 2)
[2024] FedCFamC1F 482
•23 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Penrose & Albrecht (No 2) [2024] FedCFamC1F 482
File number(s): ADC 5666 of 2022 Judgment of: BERMAN J Date of judgment: 23 July 2024 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Where the children have not spent time with the father in three years – Where the father seeks orders for equal shared care – Where the mother proposes the children spend time with the father in accordance with their wishes – Consideration of risk – Where there is no basis for the children to have a total opposition towards the father – Where the Court finds the mother does not have any capacity or desire to support the children’s relationship with the father – Consideration of best interests – Where the Court finds it unlikely that the children would comply with orders – Where orders for time spending would place the children at a high level of emotional and psychological risk – Consideration of children’s wishes – Where the children lack insight – Where the ambivalence of the children towards the father is a direct result of the parties’ conflict – Orders made for the children to spend time with father in accordance with their wishes. Legislation: Family Law Act 1975 (Cth) Division 12A, ss 60B, 60CA, 60CC, 69ZT. Cases cited: Baglio & Baglio [2013] FamCA 105
Harridge & Harridge [2010] FamCA 445
N & S & The Separate Representative (1996) FLC 92-655
Penrose & Albrecht [2023] FedCFamC1F 803
Division: Division 1 First Instance Number of paragraphs: 262 Date of hearing: 13-16 May 2024 Place: Adelaide Counsel for the Applicant: Mr Fryer Solicitor for the Applicant: Daniel John Lawyers Counsel for the Respondent: Ms Fleming Solicitor for the Respondent: Jordan & Fowler Family Lawyers ORDERS
ADC 5666 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PENROSE
Applicant
AND: MS ALBRECHT
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
23 JULY 2024
THE COURT ORDERS THAT:
1.Ms Albrecht (“the mother”) have sole parental responsibility for the health and education of X born 2010 and Y born 2011 (collectively “the children”).
2.The children live with the mother.
3.The children or each of them spend time with Mr Penrose (“the father”) at their election with the mother to facilitate any request to do so.
4.The father be at liberty to communicate with the children using a designated email account for each of the children, such account to be established by the mother.
5.For the purpose of the father’s ability to communicate with the children, the mother shall establish the email account and notify the father of the email accounts within forty-eight (48) hours of the date of these orders.
6.The mother shall ensure that the said email accounts remain active and available to the children on a device or devices accessible to them.
7.The mother shall advise the father by telephone in the event of a medical emergency involving the children, including the nature of the emergency, the location of the children and the details of any treating practitioner and/or hospital.
8.The father is authorised to:
(a)Communicate with the children’s school to obtain information about the children’s progress;
(b)Obtain at his own cost, school reports, notices, photographs and other information about the children’s progress that is ordinarily provided to parents by any school in which the children are enrolled or attending; and
(c)If permitted by the school, to attend at the children’s school events including but not limited to school concerts, school sports days, parent/teacher interviews and the like to which parents are able/expected or invited to attend provided that the father does not approach within fifty (50) metres of the respondent, Mr E or the children or attempt to communicate with them unless at their election they wish to approach the father.
9.The father be restrained and an injunction granted restraining him from:
(a)Approaching within fifty (50) metres of the mother;
(b)Approaching within fifty (50) metres of the mother’s residential address; and
(c)Attending the children’s schools between 8.30 am and 3.45 pm subject to paragraph 7(c).
10.The parties be restrained and an injunction granted restraining them from:
(a)Publishing on the internet or by any electronic means any material about each of the parties, the children, Mr E or F or any aspect of the proceedings.
11.The mother use her best endeavours to restrain Mr E from approaching within fifty (50) metres of the father.
12.The parties be at liberty to provide a copy of this order to the children’s school, treating medical allied health professionals and extra-curricular providers such that these orders shall be deemed to be sufficient authority for the provision of any information or reports pertinent to the children’s progress and development.
13.The parties keep each other informed at all times of a contact mobile telephone number and their current residential address.
14.The father be at liberty to forward presents and gifts to the children and each of them to celebrate their birthdays, Christmas and other special occasions with the mother to provide an address at which the presents can be forwarded upon the following conditions:
(a)That the mother will facilitate the children receiving appropriate gifts and presents; and
(b)That the mother will provide confirmation or cause the children to do so that the presents and gifts have been received by them.
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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Berman J
INTRODUCTION
Mr Penrose (“the father”) and Ms Albrecht (“the mother”) are unable to reach agreement in respect of the ongoing and future parenting arrangements for X born 2010 and Y born 2011 (collectively “the children”).
At present, the children are living with the mother and have not spent any significant time with the father since July 2021.
The father commenced proceedings by Initiating Application filed 13 December 2022 in circumstances where upon his return from a holiday in late 2021, he alleges that the mother ceased all communication between he and the children and refused to facilitate any time spending.
Prior to his departure in July 2021 the parties were facilitating an equal shared care arrangement with the children spending time with the parties on a week about basis. The agreement was reached at the time of separation being, 10 January 2020 and occurred for 18 months between January 2020 and July 2021.
The father considered that the time spending agreement was reached mutually, the parties were co-parenting amicably and that the time spending occurred without significant issue.
However, upon the father’s return to Adelaide, the children refused to spend time with him. The father alleges that the children’s refusal is as a direct result of the mother and her current husband, Mr E negatively influencing them and encouraging a total cessation of relationship.
In addition, the father alleges that Mr E presents as a risk of harm to the children on account of him being charged with an offence.
The father now seeks orders as set out in his Further Amended Initiating Application filed 10 May 2024. Those orders were filed on the Friday prior to the final hearing and were the subject of opposition by the mother’s counsel in circumstances where the father sought a reversal in primary care; a position that was significantly different to any orders sought throughout the proceedings. An oral application was made for the Court to provide leave to the father to rely upon those orders however, the application was refused albeit on a limited basis. As such, the orders sought by the father are that each parent have parental responsibility and that the children live with the parties on an equal shared care basis.
A difficulty arises in that the father accepts, and indeed proposes, that his time with the children should gradually increase before ultimately arriving at equal time. The father’s proposed order, as set out in his Amended Initiating Application filed 8 September 2023 is as follows:
2.That the children spend equal time with the mother and father, on a graduated basis, to be further particularised by the father after the Family Assessment Report is received.
The mother’s position is as set out in her Amended Response to Initiating Application filed 26 April 2024 wherein she seeks orders for sole parental responsibility, that the children live with her and there be no order for time spending as between the father and the children. Instead, it is the mother’s position that the children spend time with the father at their election.
The mother contends that she will facilitate time between the children and the father should they ask however, she does not anticipate such a request from them.
In addition to the issue of what time, if any, the father should spend with the children, there are also serious issues in relation to regular and ongoing verbal and physical altercations between the parties and Mr E of which most have either been at the children’s school, extracurricular activities or in the children’s presence.
As a result of the father not being able to spend time with, or regularly speak to the children, he resorted to alternative ways to display his affection to the children which were both relentless in their manners and methods and a cause of embarrassment to the children.
As such, the mother seeks orders that the father be subject to significant restraints and injunctions including that he not be able to attend the mother’s home, the children’s schools or any location where they engage in extracurricular activities and that the father be restrained from posting on the internet any material about the mother, Mr E, Mr E’s daughter or the children.
To say that the parties and Mr E have behaved poorly would be a gross understatement. The animosity between the father and Mr E is palpable.
There is no doubt that post-separation the children have been exposed to ongoing family violence in fact, it is an extremely unfortunate aspect of this case that the mother and Mr E have encouraged the children to behave in a manner that is less than exemplary.
By the sheer dint of the children’s ages, the lack of relationship with the father coupled with there being no encouragement from the mother or Mr E for the children to spend time with or even engage with the father, the Court is now also required to consider the practicality and reality of the unfortunate circumstances of this case and whether the children will comply with any orders to spend time with the father.
BACKGROUND
The father was born in 1977 and is 47 years old. The mother was born in 1977 and is 46 years old.
The father works on a full-time basis as a manager. The mother works on a full-time basis as a manager at her parents’ businesses.
In late 2021, the father commenced a relationship with Ms L who has three children from a previous relationship. The parties’ purchased a property together in 2022 however they do not reside together.
The mother re-partnered with Mr E in about mid-2020, Mr E moved into the mother’s home in or about early 2022 and they were married in 2024. Mr E has two children from two previous relationships. His daughter, F, lives with Mr E, the mother and the children.
The parties formed a relationship in or about 2003, commenced cohabitation in late 2008 and separated on a final basis on 10 January 2020.
The mother asserts, and indeed she seeks a finding, that the father perpetrated family violence during the relationship and post-separation and therefore the Court should bring to account that the father is an unacceptable risk of harm. She alleges that during the relationship, the father sexually and emotionally abused her. She deposes to occasions whereby the father consumed alcohol to excess and would become verbally abusive calling her a “slut” and yelling that she had “issues with [her] vagina” and that she needed to see a specialist to “get it working again”.
At separation, it was agreed that the children would live with the parties on a week about basis.
Initially, the father remained living in the former joint residence with the children and the mother lived on a property at her family’s address.
In early 2021, the mother moved into the parties’ rental property at Suburb J and the father found himself in poor financial circumstances with unstable living arrangements. The parties signed a parenting plan which provided for equal shared care on a week about basis. The father considers the parties reached this agreement mutually and amicably whereas the mother asserts she was pressured into the agreement and that the children were overwhelmed, resisted going between homes and that she had to encourage and persuade them to go to the father’s home.
The parties made Consent Orders in relation to property matters in June 2021. The orders required the former joint residence to be sold and provided for the mother to retain the Suburb J property. The father’s accommodation was uncertain and shortly thereafter he was made redundant from his employment and as a result. He suffered from poor mental health as a result of the foregoing, and in mid-2021, the father decided to travel around Australia for a few months.
The father had discussed an Australian road trip with the mother prior to separation but in any event, he informed the mother of his post-separation travel plans and asked if the children could spend time with him in various locations whilst he was away. The mother did not consent and the parties reached agreement that the children were to live with the mother whilst the father was away.
During the father’s travel, he had sporadic telephone communication with the children however, ultimately, the telephone time diminished and became infrequent. At this juncture, the mother was now living with Mr E and parties co-parenting relationship had started to break down. The father believes that whilst he was away, the mother and Mr E influenced the children to not resume a relationship with him and foster a grave dislike towards him. This position became more entrenched following the father’s return to Adelaide.
The father considered that Mr E played a pivotal role in the breakdown of his relationship with the children and in encouraging the mother to behave poorly in their presence. The father was also concerned about the children spending time with Mr E given that in 2018 he was charged with an offence. The matter went to trial and Mr E was acquitted however, he was later charged with a different offence to which he pleaded guilty.
It was during this period that the mother alleged that the father exhibited physically aggressive conduct and may have subjected the children to either sexual abuse or overt sexualised behaviour. She further alleged that during the relationship, the father sexually assaulted and raped her. It is noted that at the commencement of the proceedings, the mother’s counsel made submissions that the allegations of rape were no longer pressed. The allegations made by the mother could be described as a button pressed faintly.
Upon the father’s return to Adelaide in late 2021, he returned to living in temporary accommodation and as such, he did not request any overnight time with the children. He did however seek to spend time with the children which occurred on two occasions in October with X however, thereafter all time spending between both children, ceased.
The mother’s position is that she would ask the children if they wanted to spend time with the father and if they said no, she did not consider it appropriate to “force” them to spend time with him. She considers that she has never stopped the children from seeing their father and that she would support their decision to spend time with him however, at 10 and 9 years old, she believed that the children were old enough to make their own decisions.
As a result of the entrenched position of the children and the mother, the father took to publicly and literally displaying signs of affection towards the children which caused significant problems. The father started attending school events/ extra-curricular activities in an attempt to see and maintain contact with the children. It was common for the mother and Mr E to also be present often resulting in verbal, and on occasion, physical altercations.
The public displays of affection included the father attempting to give X a birthday present at school, standing out the front of the school with a sign that said, “I love you [Y]”, sending cards and gifts to the children in the post and becoming a volunteer at the children’s school,
Around the same time, the father and Ms L purchased an “investment property” on either the same street as, or the street behind the mother’s home. Whilst in dispute as to whether it was a coincidence or intentional, the father would often see the children on the street and tell them he loves them which led to increasing acrimony.
Matters continued to escalate in 2022 and in January, the mother contacted the father and informed him that neither she nor the children wanted any further communication from him.
The father however, continued to attend at X’s sports games. In January 2022, an incident arose at X’s sports game. The parties and Mr E were in attendance when Mr E asked the father to leave causing the father to yell out that Mr E was “on bail” and “[is] a paedophile”. Mr E assaulted the father, which required the intervention of the police.
The father continued to send the children gifts and attend at their school. On at least two occasions that the father sent Y presents to the mother’s house, Mr E was instrumental in encouraging Y to destroy and/ or return the presents to the father.
In late 2022, X attended his new high school for a transition and orientation event. At the conclusion of the orientation day, Mr E attended to collect X when he noticed the father was present. An altercation arose which required the police to attend and resulted in Mr E being taken away in handcuffs in a police car.
It is unfortunate that on almost every occasion that an incident arose, the children were present and witnessed the appalling behaviour as between the parties and Mr E.
In December 2022 the father commenced proceedings seeking orders to resume time spending. For reasons set out at [18] to [30] in Penrose & Albrecht [2023] FedCFamC1F 803 I highlighted how unfortunate it was that this matter was not listed for an interim hearing until 11 September 2023. I found that the “significant delay was only likely to further entrench the position of the parties and provides support to the children’s apparent reluctance to re-engage with the father”.
The difficulty that the Court is now faced with is given that the children have not spent any time with the father in three years, the mother and Mr E actively discourage a relationship between the children and the father and the children are now aged 14 and 12 years old respectively, there is a real possibility that notwithstanding any orders made by the Court, the children will continue to refuse to spend time with the father.
The father conceded that he was under no illusion that the reality of enforcing any time spending orders will be challenging however, perhaps naively so, the father considered that he would be able to successfully navigate the challenges together with the children.
DOCUMENTS RELIED UPON
The father seeks to rely upon the following documents:
(1)Further Amended Initiating Application dated 10 May 2024;
(2)Father’s affidavit dated 8 March 2024 (“the father’s trial affidavit”)
(3)Father’s affidavit dated 10 May 2024 (“the father’s reply affidavit”);
(4)Affidavit of Ms K dated 6 March 2024;
(5)Affidavit of Ms L dated 6 March 2024;
(6)Affidavit of Ms M dated 8 March 2024; and
(7)Case Outline document filed 10 May 2024.
The mother seeks to rely upon the following documents:
(1)Amended Response to Initiating Application filed 26 April 2024;
(2)Mother’s affidavit filed 26 April 2024 (“the mother’s trial affidavit”);
(3)Affidavit of Mr E filed 26 April 2024;
(4)Affidavit of Ms N filed 26 April 2024;
(5)Child Impact Report prepared by Ms O dated 27 March 2023; and
(6)Case Outline document filed 8 May 2024.
Both parties sought to rely upon the Court Child Expert, Ms G, who prepared a Family Assessment Report dated 19 July 2023.
TREATMENT OF THE EVIDENCE
At the commencement of the trial, I highlighted the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular, whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”) in circumstances where the mother alleges that the father sexually abused the children and raped her.
At first blush, the allegations lacked specificity and particularity and I considered it imperative that the parties’ understood the case that they were running and how the Court would deal with the allegations and the evidence having regard to the Evidence Act.
The Act provides that I am to ensure that the best interest of the children is met including, by ensuring their safety. Accordingly, the matter was stood down for the mother’s counsel to take instructions in circumstances where I indicated that it was inappropriate for the spectre of sexual abuse to hang over the proceedings unless it was genuinely a part of the mother’s case.
Upon the matter being recalled, the mother’s counsel submitted that a finding in relation to the allegations of the father sexually abusing the children or the rape of the mother was no longer sought but that the mother did seek a finding that the father committed family violence throughout the relationship and as such, the Court should find that he is an unacceptable risk to the children.
In those circumstances, counsel for the father did not speak against the application of the provisions of s 69ZT.
Having regard to the foregoing I indicated, and considered, that the best way to manage these proceedings is not to deviate from s 69ZT of the Act other than as indicated namely, to apply a strict approach of the application of the Evidence Act for matters relating to objection. I ruled on matters of objection so as to assist counsel and the parties focus on the real issues of this case namely, the care arrangements for the children.
I consider that for the balance of the matters, s 67ZT is to apply and evidence that would not be admitted as a consequence of the Evidence Act will be admissible but the weight that such evidence is to be given is a matter for the Court’s discretion.
THE EVIDENCE
The father
The father was asked to reflect upon the opinion and recommendations of Ms G and in particular, her summary of the current position adopted by the children highlighting their opposition to spending time with the father arising from their view of the father’s hitherto relentless conduct in trying to resume a relationship with them.
Whilst he did not concede that even at its most florid it could explain the children’s total opposition to resuming a relationship with him, he did consider that he could have conducted himself in a manner that would likely cause less embarrassment to the children.
In particular, the father was asked to consider whether his proposal for shared care, even though the father conceded that there may be a need for a graduated increase in time, was viable or even possible given what appeared to be the firm and entrenched position of the children.
An apparent concern to the children arises from the earlier conduct of the father in attending the children’s sports days and extra-curricular activities. In mid-2024, the father attended a sports event however, it was put to him that whilst there was no order prohibiting his attendance, he had given a clear indication that he would not attend.
The father admitted that he had attended at the sports event but considered that by remaining about 100 metres away from the mother there was no reason why the mother should object to his presence.
The father agreed that he had been asked to leave by a teacher.
The father did not concede that the orders he sought could be dismissed simply because the children have demonstrated reluctance to engage with him. He did not consider that his attendance in the street holding up a sign professing his love and affection could or should be seen as intimidating conduct or behaviour likely to cause the children embarrassment or distress.
The father also acknowledged that whilst he and his current partner live separately, they had purchased an investment property near the mother’s premises.
The father’s response was that the property represented a good opportunity for development and capital gain and should not be seen as in some way trying to keep the mother and/or the children under surveillance or enable him to live in close proximity to them. The father’s evidence is that he intends to continue to remain in his current home at a significant distance from the mother’s residence.
Throughout the warp and the weft of the proceedings has been the ongoing, and at times physical interactions, between the father and Mr E.
In late 2022, the father attended X's High School allegedly to provide some contact details to the school and confirm the child’s enrolment. The father then came into contact with Mr E. There is disagreement as to the precursor to the altercation with the father alleging that Mr E said “I’m going to get you, you’re dead” and “I’m coming for you”. The father further contends that Mr E represented to school staff that he was the father of X and that he referred to the father as “a rapist” and “a sexual predator”.
It is apparent that angry words were exchanged and that the verbal altercation was loud. X observed the interaction and in particular that Mr E was subsequently arrested by police. The father also contends that the mother was present and referred to the father as a “rapist” and “abuser”.
The father denied that his behaviour contributed to the escalation of the situation and in particular that he provoked Mr E into taking some action.
The father’s evidence was that Mr E was the aggressor and the language used by him was an indication that he wanted to intimidate and frighten the father.
The mother has alleged that the father perpetrated family violence in that he was controlling and coercive in his relationship with her. The father denied that he had engaged in any conduct consistent with family violence but did agree that from about the time of the birth of X, the relationship with the mother was troubled and began to deteriorate. The parties argued frequently and often in the presence of the children. It is likely that the father was verbally aggressive.
The mother alleges that the father was sexually aggressive and made persistent demands of the mother to engage in sexual relations. In particular, the mother alleges that during the period of her pregnancy with Y the father grabbed her by the throat and began to choke her which resulted in the mother ringing a help line. The mother did not refer the matter to police because the father was apologetic. The father denied that there had been any intention to strangle or choke the mother but did admit that he momentarily touched her throat.
Throughout the relationship it appeared that the mother had attempted to separate from the father. There were various incidents resulting in argument and disagreement. On one occasion the mother asked that one of the father’s friends, who had been invited over to watch a sporting event on television, go home. The father refused and an argument ensued. The mother then told the father that she would stay with her parents, she packed some of her belongings and put the children in the car. The father followed the mother out to the vehicle. The father concedes that he stood in front of the car, took the children and told the mother that if she was going to take the children, she would have to run over him.
The separation between the parties occurred on 10 January 2020. The father agreed that the mother had been away from the home for one night and when she came back, she told him the relationship was over. The mother alleges that the separation was acrimonious and that the father refused to allow her to take the children, whereas his evidence is that the parties hugged each other and the mother voluntarily left the property without the children. The father says that the mother did not see the children for a period of nine days.
The father does not agree that the mother was intimidated by him but rather says that they reached an amicable agreement in terms of the future parenting arrangements for the children. Both parties signed a parenting agreement which contained significant detail as to the arrangements for the children but also setting out the lines of property communication between the parties.
The agreement is to be found at page 41 of the fathers’ trial affidavit.
Whilst the mother considers that the agreement did not work from the beginning, the father highlights that the agreement managed the parenting arrangements for the children for nearly 18 months until he left on his holiday. The father further asserts that for the first nine months at least of the parenting arrangement the parties were able to engage in open and civil communication.
The reason given by the father to taking a holiday in 2021 was that following the resolution of financial matters between the parties he was in a financially difficult predicament having been made redundant. The father considered that he was going to be homeless, and he made a decision to rent his home and travel in his vehicle.
The father concedes that his communication with the children during his absence was difficult. He acknowledges that his communications with the children but in particular X was defensive of the mother and critical of him in terms of financial issues still outstanding.
Whether it was the irregular nature of the communication between the father and the children or a symptom of a deeper malady, it is apparent that either the children’s attitude to the father had changed dramatically or his perception of the strength of the relationship prior to his departure was misconceived and lacking in insight. The father last saw X upon his return in late 2021 and then Y a month later.
In early 2022, there was an incident at a sports match attended by X. The mother and Mr E were present and the father arrived shortly after the match had commenced. The mother asserts that the father approached them unnecessarily given that he could have taken up a position at other points in the venue.
The father approached X after the game and said “I’m sorry that you’re being made to feel this way”. X apparently responded that he was not being made to feel anything.
The father conceded that he was too close to the mother and Mr E and that his conduct was likely to be seen as provocative.
A verbal exchange ensued between the father and Mr E. The father was not sure whether he called Mr E a “paedophile” but agreed that at the very least he said that he was “on bail”.
Mr E apparently approached the father who then retaliated by throwing an item at him.
The incident gained alarming momentum underpinned by the following text message from X to the father dated early 2022 (exhibit “1”):
[Y] and I are so angry about what you did yesterday especially pushing and hiting (sic) [Mr E]. You didn’t listen again to mum about not talking to her. We know all about what [Mr E] has been through and you bringing it up at [the match] was horrible. Please don’t come to my [sport] or I am going to quit. [Y] isn’t going to [sport] anymore because she doesn’t want to see you. You scared me yesterday and embares (sic) me in front of everyone. You said that [Mr E] was wrong when he yelled at you that time at mums house you Aretha (sic) one who is wrong for touching anybody. [Y] and me are scared of you you yell at us you smack us and now you push some one right in front of me if you do anything again [Y] and I will talk to the police. Don’t come to my spotr (sic).
The father responded a few days later with the following message:
I’m sorry you feel this way mate as your (sic) only getting half of a broken story. These are adult conversations between mum and me only and it’s really unfair for you and [Y] to be involved with mums and [Mr E’s] adult problems. You don’t deserve it and I will not tolerate horrible lies and manipulative behaviour by [Mr E] or others. If you decide to quit [sport] and [Y sport], that would be a shame for you both. I’m not giving up on you or [Y] and I will continue to support you in your schooling and sporting activities. I’m happy to get extra help for us all in regards to this terrible situation we are all in. These are adult concerns that are easy fixed by communication and compromise. The police are well aware of the situation and if you need to talk to them then you should. I love you both always not matter what.
The father considered that his response was unlikely to defuse the situation nor was his further attendance at the children’s school in early 2022 for a workshop.
The father further conceded that he had contacted the Department for Child Protection (“DCP”) and SAPOL to conduct a search of the mother’s home for drugs. As matters transpired, drugs were not detected.
The father also engaged in social media publication concerns in respect of the children’s involvement in the parenting proceedings.
The evidence supports a finding that the father was determined to insert himself into the children’s lives irrespective of the consequences.
The father attended Y’s school event in mid-2022 in circumstances where the mother had told him that Y did not want him to go.
The father also attempted to engage the school by sending an email to school administration in late 2022 asking for the school’s help to see the children.
The father agreed that he had sent the following email to the Student Wellbeing Leader at the children’s school in early 2023 (exhibit “2”):
Hi […],
I’ve recently been made privy to VERY disturbing and concerning historical information from DCP (300 pages) and SAPOL (280 pages) regarding some of the people [Y] lives with. Please don’t hesitate to inform CARL, or SAPOL with ANY strange, violent, abusive or sexualised behaviour, no matter how small. There is a significant risk to [Y] given past behaviours are occurring again in regards to violent, emotional and psychological abuse not limited to manipulation, intimidating and grooming practices.
Happy to discuss.
Kind regards.
[The Father]
The father also agreed that he had spoken to the children’s schoolteacher and had become overwhelmed with emotion when told that the school did not want to get involved.
Whilst denying that he had ever stalked the mother or the children he agreed that he would wait for the children to pass him by in the street and would wave at them if he saw them. It is likely that the father understood the children’s travel arrangements to and from the mother’s home to their school and as such would position himself so that he would be clearly visible to them.
The father also agreed that there was an occasion at a Shopping Centre when he pulled up next to a car driven by Mr E with the mother and Y as passengers. He agreed he said “I love you, honey bunny” but denied he had called Mr E a “paedophile”.
The father did allege that as he drove away, he saw Mr E simulate sex with Y. As has become an unfortunate aftermath, the parties thereafter attended to the local police station to report the interaction.
The parties reached an agreement that they would attend upon Mr B for family therapy. As is now apparent, the therapeutic intervention was unsuccessful.
Consent Orders were made on 26 April 2023 for the parties and the children to attend upon Ms G for the purposes of the preparation of a Family Assessment Report.
Ms G opined that it was the internecine conflict between the adult parties and Mr E that was the primary obstacle. It appears that Ms G considered that the children were lacking in maturity despite their age, but it was understandable that they would seek to protect their perceived stability with the mother even if it meant severing their relationship with the father.
The father’s conduct in ignoring the adverse reaction of each of the children by his attendance at school functions, extra-curricular activities and attempting to intercept them in public places lacked insight and ignored embarrassment caused to them.
The father conceded that the age of the children was a relevant factor as was their opposition but even so, he still sought orders for equal time.
The evidence supports a finding during the relationship and in particular the latter part, the father was likely to have engaged in aggressive interaction with the mother. It is also likely that the children were witness to angry and volatile arguments. To a significant degree there was an unrealistic aspect to the father’s presentation in not accepting that the breadth of the orders he seeks were unlikely to be palatable to the children and therefore not likely to be accepted by them.
The father’s motivation is underpinned by a reasonable desire to resume a relationship with the children. It could not be said that the cross-examination of the father revealed any conduct that in and of itself was so egregious that would explain the present circumstances.
The father presented as a credible witness tempered by a demonstrable lack of insight as to the adverse view likely to be formed by the children arising from his behaviour.
Ms L
Ms L commenced a relationship with the father in late 2021. I accept her evidence that she and the father are in an ongoing relationship. Whilst Ms L has not met the mother or either of the children she has been the unfortunate victim of verbally abusive conduct by Mr E.
In her affidavit filed 6 March 2024, Ms L highlights various instances of being confronted by Mr E.
Ms L was not challenged as to her allegation that she had been verbally abused by Mr E both with the father but also on occasion when he was not present.
Ms L also alleged that Mr E “yelled, screamed, revved or beeped his horn in front of her home”.
In early 2023, Ms L caused a stalking caution to be issued to Mr E by the police which appears to have dampened his enthusiasm to approach or remain in the vicinity of Ms L.
I find that Ms L is a credible witness.
Ms K
Ms K is the father’s biological mother and the paternal grandmother to the children.
I accept that during the course of the relationship the children would spend significant time with Ms K. She was not challenged as to her evidence that prior to July 2021, the children would often spend overnight at her home.
Ms K’s evidence is that she considered she had a close and communicative relationship with the mother and interacted on a regular basis with curricular and extra-curricular activities undertaken by the children. Since the commencement of the parties relationship in 2013, she also gave the children gifts for Christmas, Easter and each birthday.
Following separation, Ms K maintained a relationship with the mother and the children independent of the father however, since mid-2022 she has not been able to make contact with either the mother or the children via their mobile phones. It is her evidence that the numbers that she had for the children were now disconnected.
I consider the evidence of Ms K to be reliable.
Ms M
Ms M is the father’s sister.
Ms M’s evidence is that both she and her two children had a close relationship with the mother and the children.
The cousins spent significant time together and it is her contention that the children enjoyed spending time with her family.
In evidence, similar to that of Ms K, following separation there was a total cessation of contact with the children.
Ms M was asked to consider whether she had seen the father engage in aggressive behaviour involving anger, yelling and abusive language. Whilst it was conceded that the father was at times argumentative, Ms M did not ever observe the father to become aggressive either in an intoxicated state or sober.
I consider Ms M to be a reliable witness.
The mother
The stated position of the mother is that she has not stopped the children from seeing the father if they want to spend time with him. Specifically, the mother does seek that the father be restrained from attending at the children’s school, curricular and extra-curricular activities unless there is clear agreement and unequivocal consent of the children.
At separation in January 2020 the children were 9 and 10 years of age and whilst the father contends that for the first nine months or thereabouts the equal time arrangement worked well, the mother disagrees and says that the arrangements were unsatisfactory from the very beginning.
Every fortnight the mother states that she observed Y in tears because she did not want to go and spend extended time with the father. It was also the mother’s observation that the children were exhausted by the process.
The relationship between the parties was poor and a concern of the mother was that they could not communicate. Given the pessimistic assessment by the mother of the shared care arrangements, she was not able to satisfactorily explain why for the period of shared care she did not seek any variation to the terms and conditions with the parenting arrangements nor was there any communication emanating from the mother that highlighted problems that needed to be addressed.
The mother agreed that the father told her that he would be on his extended leave or holiday for a period of four to six months.
The mother was asked to consider email communication with the father in November 2020.
It appears that the father raised concerns as to the lack of communication between the parties and the apparent decision of the mother that she would not answer his phone calls or reply to his text messages even if the topic related to the children.
The tenor of the mother’s response is a likely indicator as to the deteriorating relationship between the parties:
[Mr Penrose]
I am scared of you and your email is threatening and intimidating.
I no longer feel safe communicating with you.
I have forwarded this email to my lawyer and if these threats continue I will have no other choice but to seek an intervention order.
You have no right to tell me what time frame I have to text you back in or text you at all – unless it’s an emergency regarding our children I don’t have to communicate with you. I am more than capable of looking after my children in my week and vis versa for you.
As for emotional abuse and manipulation of our children I am very comfortable knowing that doesn’t happen in my week.
The mother conceded that the relationship continued to deteriorate as exemplified by her following email to the father dated September 2021 (exhibit “3”):
To start with I don’t except phone calls from you.
Secondly I don’t need to facilitate anything for you.
You don’t take anyone else into consideration least of all me with the selfish choices you make.
Once again I have asked both of the children this morning and they have both said they don’t want to.
It is not my job to point out all your mistakes with the children.
As for this co-parenting you go on about – my job is to be the best parent for my children and as I see them every day I am doing just fine here.
I have been in contact with the police in the last three months – you are not welcome anywhere near me or my house – if you do I have no choice but to put an intervention order on you.
I know you have contacted [X] so there is no need to contact me. If you think the kids are happy with what you have done the last 3 months – you are wrong.
It’s about time you realise instead of blaming me of every thought the kids have show them the respect they deserve for having there own feelings. I don’t talk about you in this house.
The mother was not able to detail the harassment that she considered justified contacting the police and threatening an application for an intervention order.
The mother sent a further email to the father advising that the children did not want to spend time with him. The mother contends that she spoke to the children about the parenting arrangements and they indicated a high level of resistance to seeing the father. She says that she did her best to encourage the children, but the children maintained their opposition.
The mother’s evidence did not instil confidence that she had any interest or perhaps even capacity to support the children’s relationship with the father.
The mother’s evidence as to her preparedness to promote the children’s relationship with the father and encourage their attendance was unconvincing.
In various communications with the father, the mother made it clear that she did not wish to receive any emails, text messages or have any contact with the father in any form. She acknowledged that even when the father asked her to provide Y’s shoe size, she refused.
Exhibit “4” represents a detailed text exchange between the father and X from August 2021 to February 2022. The text exchange is important in that it highlights a gradual change in X’s attitude.
The mother agreed that initially whilst X was willing to ask the father to pull back from the tenor of his communication and accusation in respect of the mother, he remained keen to spend time with the father.
X was happy to wish his father a happy Father’s Day and on 25 September 2021 he responded to the father’s suggestion of spending time with the children by saying “I was thinking that after the holidays you can pick us up after school and we can do some fun stuff and then you can drop us back at mums”.
By December 2021 X appears to have become reluctant to engage with the father and was not receptive to the father’s proposal that he and the children meet so that he can provide them with Christmas gifts.
The extent of the breakdown of the father’s relationship with X is apparent from exhibit “1” being the text message from X to the father.
The mother’s evidence was that the children had asked her to write a letter to the father’s solicitor expressing their concerns in respect of his conduct which they consider justifies their opposition to either communicating or spending time with him.
The letter is an unfortunate document, as conceded by the mother, in that it is her sentiment but purported to reflect the children’s wishes and perceptions.
Of more significant concern is the likelihood that the children were engaged in detailed discussion with the mother as to the proposed content of the email sent in August 2022. The following extract highlights the extent to which the children were involved:
[X] and [Y] don’t want their dad volunteering, attending any school activities in or out of school which include events like excursions, school events like book week, colour run, school sports day and [X’s] graduation etc. They have both said they will not attend these events if they know their dad might be there.
[X] and [Y] have also asked that their dad stop trying to blame their mum and [Mr E] for them not wanting anything to do with their dad. They have both experienced just how violent, dangerous, controlling, manipulating and nasty their dad is, and they don’t want to be around that again.
They just want to be able to feel safe, happy, and settled (which they didn’t feel when with their dad). They’ve also asked that their dad leaves their mum, [Mr E], and the family alone and stops trying to cause trouble every time he encounters them.
The mother did not consider that the sentiment expressed in the email communication to the father’s solicitor was exaggerated or presented as an inaccurate reflection of the children’s strongly felt views.
The mother was asked to consider whether Mr E could be considered at times the aggressor on occasions when the children witnessed angry and at times physical interaction with the father.
The mother was aware that Mr E had referred to the father as a “paedophile”, a “rapist”, a “sexual predator” and said that the father was “a dead man”.
The mother was also aware that Mr E had made threatening phone calls to the father’s solicitor, had spat on his vehicle and had yelled at the father whilst he was attending a parent-teacher interview.
The mother was also aware of Mr E’s conduct in early 2023 when he drove past Ms L’s house and verbally abused her 19 year old daughter.
In early 2023, Mr E passed the father’s home whilst yelling sexual innuendos at the father.
Of more significant concern was the father’s evidence that he had provided a $100 gift voucher for Y who then went with Mr E to the shop in order to cancel the original gift voucher and have it reissued in his own name. The clear intention was to reinforce in Y that the father had been affectively wiped out of her life.
The mother understood that Mr E’s behaviour was entirely inappropriate but had extreme difficulty acknowledging the fact.
The mother was also asked as to what concerns arose that would prevent the children from maintaining a relationship with the extended paternal family. The evidence supports a finding that members of the father’s family were kindly disposed to the children and that their relationship was safe and beneficial.
The mother conceded that there had been efforts by members of the paternal family to keep in contact but that she had not facilitated a relationship resuming.
The mother’s evidence in support of any basis for the paternal family to have no relationship with the children was unconvincing and unsatisfactory.
I find that the environment in the mother’s home is overtly toxic to the father. There is little or no likelihood that the mother would support or facilitate any relationship between the children and the father.
The mother conceded that gifts that had been sent by the father to Y were returned to him by either her and/ or Mr E attending the father’s home and leaving the gift in the driveway.
Whilst I accept that prior to separation the relationship between the parties became increasingly dysfunctional and may even have been best described as tumultuous, there is nothing in the mother’s evidence to provide a basis for her refusal to support a relationship between the children and the father.
The mother was an unreliable witness whose evidence was undermined by lack of insight as to the emotional damage likely to be caused to the children by their direct involvement in the dispute.
It is also apparent that the mother finds herself in the thrall of Mr E.
Mr E
Mr E commenced a relationship with the mother in early 2020.
Mr E has one adult child from his first relationship, Ms P born 2001 whom he does not spend time with. He has another child from his second relationship, F born 2013 who lives with him, the mother and the children.
In early 2018 Mr E was arrested on suspicion of committing an offence.
After a contested hearing Mr E was acquitted of all charges however, he pleaded guilty to another offence.
Since mid-2021, F has been in the sole care of Mr E and is part of the family involving the mother and the subject children.
Whilst the father sought to raise an issue in respect of Mr E’s criminal history, other than that it forms the basis for some of the inappropriate language exchanged between the father and Mr E, it is not part of the father’s case nor does the evidence support a finding that the earlier criminal proceedings suggests that Mr E presents as a risk to the children.
Mr E considered that initially he had a civil relationship with the father however that changed when he was hit by the item thrown by the father.
He agreed that he had indicated that he had previously said that he would knock the father’s “block off” as accurate. He also acknowledged that he had called the father as “fucking piece of shit” and remained unrepentant in that his conduct towards the father was protective to the extent that he would get angry and if necessary, resort to aggression if provoked.
Mr E admits to calling the father a “rapist” and a “paedophile”.
Whilst Mr E denies harassing or attempting to intimidate Ms L and her daughter, he does accept that in mid-2022 he drove passed Ms L’s home and yelled out “hey fuckwit”.
Whilst the language and what appears to be Mr E’s inability to limit or modify his angry disposition and propensity to exhibit threatening behaviour, the more egregious admission is his acceptance of the father’s allegations that in mid-2022 he drove Y to Ms L’s home and encouraged her to return a gift from the father.
In 2022, Mr E and Y were seen on CCTV footage at Ms L’s home with Y throwing her birthday present from the father from the vehicle along the driveway. The vehicle is seen driving away before it again drives past Ms L’s home, mounts the curb and Mr E is seen to get off and kick the gift further up the driveway whilst Y watched his conduct.
Mr E also acknowledged that in 2023 he received the father’s gift voucher for Y, returned the voucher and obtained a credit and then had another gift voucher issued this time in his own name.
To the extent that Mr E did not resile from the father’s allegations involving aggressive and abusive conduct and overt aggression towards the father and Ms L, he can be considered a truthful witness.
In terms of any suggestion that Mr E is capable or prepared to be respectful and/or supportive of a relationship between the children and their father, the evidence supports a finding that he will only add to the toxic environment in the mother’s home.
The evidence of Mr E is problematic for the mother in that it is so extreme and overt that at the very least the mother was aware of Mr E’s behaviour or more likely complicit in his conduct.
The evidence of Mr E enables a finding that neither he nor the mother are likely to facilitate the children resuming a relationship with the father.
Mr E presented as an unimpressive witness.
Ms N
Ms N is the mother’s treating psychologist. The mother first consulted with Ms N in September 2023 and has undergone five consultations. Ms N produced a short report dated April 2024.
Ms N opined that the mother’s initial concerns related to stress, anxiety and possible depression arising out of what the mother described as an abusive relationship with the father.
Whilst not necessarily relevant to the proceedings, Ms N considered that if the history of alleged abuse was accurate, then it was possible that the mother may have symptoms consistent with post-traumatic stress disorder (“PTSD”).
Ms N considered that the proper therapeutic focus was to assist the mother in managing her anxiety triggered or exacerbated by contact with the father and the ongoing litigation.
It appears that the mother’s prognosis is positive and if she is able to be shielded from direct contact with the father then she can adequately employ appropriate strategies to minimise her distress.
Whilst I can place no weight on the assessment of Ms N that the alleged behaviour perpetrated by the father is the cause and source of the mother’s anxiety and possibly her PTSD, I accept that the mother presents as anxious and that unnecessary engagement with the father is an aggravating stressor.
Ms N does not suggest that the mother’s ability to parent the children will be adversely affected should there be orders in place that the children resume a relationship with the father.
Ms G
Ms G was jointly instructed to undertake a Family Assessment Report in order to assist the Court in determining the future parenting arrangements for the children. Ms G produced a Family Assessment Report dated 19 July 2023 (“the Family Assessment Report”).
Ms G conducted an extensive interview process with each of the parties, the children and the interaction between the parties and the children and a joint interview with the mother and Mr E.
Ms G also had the opportunity of substantial material available from the Court file.
In interview with X, Ms G recorded the following:[1]
[X] thought he was present because “[Mr Penrose]” wants to see him and [Y], and they do not want to see him. [X] consistently referred to his father as [Mr Penrose]. [X] said he does not want to see his father because of all that he did when they lived with him. [X] presented as wanting to be taken seriously and of wanting his views to be heard.
[1] Family Assessment Report dated 19 July 2023, p 10.
In an attempt to better understand the concerns held by X in respect of his father, the following statement is relevant:[2]
[X] said his relationship with his mother has also gotten better since he stopped moving between his two homes, that previously he used to argue with her regularly, and his father, but now rarely argues with his mother at all. In discussing this [X] said he used to find it hard going between homes, that things would just start to get better with one parent and he would have to pack up and move again, that he used to feel moody and frustrated, and did not like having to pack up every week. [X] said it was good when his father left to travel around Australia because he was able to live with his mother full time, but also spoke of it making him feel “even worse” towards his father because “he left us” only to return and assume that [X] and [Y] would want to spend time with him again.
[2] Family Assessment Report dated 19 July 2023, p 10.
X complained that he thought his father was not listening to him and despite him asking that his father not attend curricular and extra-curricular activities he was embarrassed when his father did attend and would make a scene by expressing his love for them “(describing it as “creepy” annoying and weird”.
It is apparent that the main cause of conflict was the father’s behaviour in persisting to involve himself in the children’s activities.
X was recorded as accepting that the father was the principal protagonist and aggressor and that the mother and Mr E were innocent participants.
X described his father in the following as “rude, mean, [and he] tries to get everything he wants, doesn’t take no for an answer, doesn’t listen to us”.
X was also adversely affected by observing the verbally abusive interaction between Mr E and the father and then the involvement of the police which in his view, unfairly targeted Mr E and not the father.
For her part, Y’s presentation was similar to that of X in that she was clear she did not want to return to spending time with the father and remained hurt and upset at the father’s decision to travel around Australia. Y did however consider that if she was reassured that she could remain living with her mother then she might be receptive to receiving cards and gifts although it is unlikely that she would consider them to be treasured items.
Ms G recorded that the mother was worn down by the litigation and the conflict with the father. Whilst indicating that she would support whatever the children wanted including spending time with the father, she remained deeply suspicious and fearful of him.
For his part, the father considered that the behaviour of the mother and Mr E was intended to deliberately alienate the children from him and he would not accept that even if the children indicated they did not want to spend time with him that it was necessarily a true reflection of their wishes.
He considered that the children have a “unbreakable” bond with him and it is reasonable to assume that he would continue to seek to insert himself in the children’s lives.
In attempting to understand the attitude of the children and their refusal to engage with the father, Ms G considered that the present conflict (as it then was in 2023) was sufficient reason for the children to have aligned themselves with the mother.
Ms G summarised the presentation of the children as follows:[3]
Adolescents can be black and white in their thinking, and in this situation [X] and [Y] have determined that their father is wrong. In interview they presented as giving every reason they possibly could to have their wishes heard, even when their reasoning presented as inconsistent. More recently allegations of sexually inappropriate behaviour have been made, in addition to earlier statements from [Y] of being uncomfortable with sleeping arrangements her father reportedly expected during their camping trips. [X] and [Y] do not present as having the maturity or the understanding of the significant loss incurred in cutting out a parent, but it is understandable in the circumstances that this is the point they have reached. Given the recent statements made by them to SAPOL, it is likely to cause them significant stress at this time to be made to spend unsupervised time with [the father] in his home, and, it is considered highly likely that they would attempt to abscond if such contact was forced.
[3] Family Assessment Report dated 19 July 2023, p 22.
Ms G remained concerned that the entrenched position of each of the parties now underpins the difficult situation in which the children find themselves. Neither the mother or the father were prepared to accept anything less than their position of shared care or complete support for the expressed wish of the children not to spend time with the father.
Ms G did not consider that the children would abide by any order that removed them from the mother’s primary care. It is unlikely that the children would readily transition to spend time with the father but if a cautious approach was adopted and the children were given adequate support, then a resumption of communication and possibly physical contact might be possible.
The overarching consideration of Ms G is that the conduct of the parties and Mr E would need to be conducive to the children feeling able to resume a relationship with the father without fear of conflict resuming.
Ms G recorded that at times each of the children could contemplate the idea of seeing their father but in the absence of support for the resumption of a relationship the outcome would be uncertain.
Ms G considered that there were significant disadvantages to the orders that the father sought in that given their age and present disposition towards him, there is a real and genuine risk that the children would abscond from his care.
STATUTORY FRAMEWORK
I consider it necessary that I adopt the approach that brings to account the practical reality of the separate parenting proposals of the parties.
Section 60CA of the Act requires that I have the best interests of the children as the paramount consideration. The best interests test is to be considered by the application of the two objects of s 60B of the Act and to have regard to provisions of s 60CC in order to determine in each case what is in the child’s best interests.
Subject to the parties seeking a consent order, s 60CC(1) of the Act requires the Court to consider the general considerations as set out in s 60CC(2) and (2A) which places emphasis on history of family violence, abuse or neglect and any family violence order if consideration is to be given to arrangements that would promote the safety of either a child or a party from family violence, abuse, neglect or other harm.
A consideration of the question of safety is intended to emphasise a consideration of the future that may be informed by a past history.
The focus of the relevant provisions of the Act is to ensure that the best interests of the children, as opposed to the parties, is a preeminent consideration.
I consider that whilst the Act does not make specific mention of the importance of the children having a meaningful relationship, it is likely that the best interests of a child will be served if a relationship with a party or parent is maintained providing it is in all the circumstances safe to do so and will be of advantage to the child.
The father seeks orders for equal time and whilst he was not prepared to contemplate a different outcome, it is likely that first and foremost he seeks a resumption of his relationship with the children which may well be at least in part satisfied by the ability to communicate with them and their subsequent acknowledgment of him.
The mother seeks that the children spend no time with the father and that he not be permitted to come into contact with them by attending curricular and extra-curricular activities.
The mother’s evidence to Ms G and the Court is that she would be prepared to facilitate the children’s relationship with their father if they seek to do so. As considered, I am not satisfied that the mother has any capacity or desire to support the children’s relationship with their father. Moreover, the combined attitude of the mother and Mr E is such that the domestic environment is unlikely to enable the children to bring mature reflection in considering the extent if any, of the relationship they would have with their father.
The mother does not necessarily seek orders based on the father being considered as an unacceptable risk but rather, she supports the children’s expressed position which is to have no ongoing relationship with the father at this stage.
X is 14 years of age and Y 13 years of age.
PARENTING CONSIDERATIONS
Are the children at risk
In Harridge & Harridge [2010] FamCA 445 Murphy J, referred to N & S & The Separate Representative (1996) FLC 92-655, and adopted the following list of inquiries with respect to risk assessment and analysis:-
73. …
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
(B Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569).
The mother alleges that the relationship with the father was marred by ongoing family violence.
Whilst the evidence is scant as to the extent to which family violence could be established, I am satisfied that the father perpetrated aggressive verbal engagement with the mother. The significant mischief in this case of the conflict between the parties arises from the children observing high level conflict in the home and it having a significant impact upon the children to the extent that now four years after separation, the children raise their concerns in interview with Ms G.
A second aspect is the possible consideration, although not pressed by the mother, that her ability to parent the children would be impacted by a resumption of their relationship with the father.
At best, if the mother’s position is accepted, whatever misgivings she may have she will support and facilitate the children spending time with the father.
In that regard, I bring to account the concern expressed by Ms G that the children are unlikely to have developed sufficient insight to understand that a decision to disengage with a parent may well have adverse consequences later in life. An expedient decision by the children that they consider avoids conflict may have a deleterious consequence into the future.
The mother does not consider that the children have anything to gain from a relationship with the father. I have found that she is unlikely to provide the children with support and will not promote a relationship with the father.
For his part, the father appears not to accept the opinion of Ms G that if the children gained a level of certainty that their primary care with the mother would not be disrupted, they may well contemplate a gradual resumption of time and communication with him.
The father does not seem able to accept that the children have reached an age where even if it is considered that they lack maturity to have an understanding as to their circumstance and predicament, their potential to abscond and disrupt is a relevant consideration.
At present, the children appear to manage well at school and engage in beneficial curricular and extra-curricular activities. It is not known but is reasonable to assume, that if they were forced to spend time with their father against their will there may be a risk of emotional harm occurring.
There is no evidence to support a finding that all other things being equal, if the children were to spend time with the father they would be at risk. The father appears unable to compartmentalise his dislike for the mother and Mr E and whilst there is complaint as to the perceived content of various email and text communication passing over a considerable period of time, the tenor and content of the father’s communication appears reasonable.
Wishes of the children
The children have given a clear indication to the report writer that they do not wish to see the father. The text communication between X and the father, whilst uncertain as to its foundation, is nonetheless clear as to its intent. There is no evidence to suggest Y would adopt an independent attitude to X and if it is assumed that even though it is evidence of substantial immaturity on her part, her preparedness to engage in the appalling conduct of Mr E in returning the father’s presents to him is a likely indication that like X, she does not wish to be forced to see or communicate with the father.
Given the ages of the children, it is necessary to balance their clearly expressed wishes not to see their father against a finding that even at the highest of the mother’s evidence, there is no basis to support their total opposition to him.
Ms G opines that the decision to disengage from the father in favour of remaining with the mother is the easiest way forward for the children.
It seems that whilst Ms G highlights the high-level probability of the children absconding if made to spend time with their father against their wishes, that should not be considered in and of itself as a reason for there to be no involvement by him in their lives. The children will soon reach an age when they will have to navigate the conflict created by the significant adults in their life.
The developmental psychological emotional and cultural needs of the children
As considered, whilst the children do not wish to spend time with the father, Ms G highlights that if the father adopts a cautious approach the children might be receptive to receiving gifts and communication possibly paving the way for a resumption of a relationship albeit of uncertain nature.
A difficulty is that the parties, for different reasons, are unrelenting in promoting their appalling view of the other and as such it may be doubtful as to whether the home environment created by the mother will be conducive to the children being able to make their own decision as to the extent that they would wish to see the father.
It is of some importance that the children appear to be functioning well at school and are achieving developmental milestones in terms of curricular and extra-curricular activities.
The capacity of each person who has or is proposed to have a parental responsibility for the child to provide for the child’s needs
The evidence readily supports a finding that the needs of the children are appropriately supported in the household of the mother. Other than my finding that the mother is unlikely to support the children’s relationship with the father or at the very least readily facilitate same, the mother’s household is not one of risk and it is easy to find that the children’s needs are proper met.
Similarly, were the children to elect to spend time with the father, his household would also present no risk to the children.
The benefit to the child of being able to have a relationship with the child’s parents
As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “a chance of a meaningful relationship…which is beneficial to” the child was likely to be to the child’s advantage and the absence of such a relationship had “the potential to cause [the child] harm in the long term”.
The Court is required to focus on the practicality of each of the parties’ proposals and to consider the s 60CC factors.
I do not elevate the consideration of a meaningful relationship to the level of a presumption that needs to be rebutted but rather I consider it a matter of significance but not a primary focus.
Each of the parties has much to offer the children. As was apparent from the evidence of Ms G, she considered that whilst the children lack insight as to their predicament and circumstance, the fault for the ambivalence of the children towards the father must be seen as a direct result of the conflict engendered by the parties and fuelled by Mr E.
I consider it unlikely that the children would comply with an order made that requires them to spend time with the father. The powerful evidence of Ms G is that the children are likely to abscond. In doing so, that would only further entrench the position between the parties and may likely place the children at a high level of emotional and psychological risk.
I bring to account the age of the children and the practical reality that they are able to self-determine, even if it is an exercise of poor judgement.
There is however a level where they need to be able to take some responsibility for their conduct.
The children appear receptive to receiving appropriate gifts and reasonable communication. There is no evidence to suggest that they would be adversely affected if required to receive gifts and communication.
What is clear to Ms G is that the children need reassurance that their relationship with the mother and her continued primary care is reassured.
The evidence supports a finding that providing there are checks and balances in place, there is no reason why the children would not be able to cope with the father attending appropriate curricular and extra-curricular activities provided he is restrained from approaching the mother, Mr E or the children.
The father seeks orders that he be able to attend the children’s school events, be kept informed of all major medical issues affecting the children and to receive information about the children’s medical health, progress and development.
For her part, the mother contemplates the father being at liberty to forward communication via email to the children, communicate with the children’s school and obtain school related information.
It seems that neither party should be permitted to publish on the internet or utilise social media in respect of any aspect of the proceedings, the children or each of the parties including Mr E.
The mother opposes that the father attends the children’s school between 8.30 am and 3.45 pm. There appears to be some basis for the prohibition that the mother seeks save and except as to school events to which parents are ordinarily invited.
PARENTAL RESPONSIBILITY
Effective from 6 May 2024, s 61DA of the Act, which had previously provided for the presumption of equal shared parental responsibility when making parenting orders, was repealed.
Section 61C of the Act provides as follows:
(1)Each of the parents of a child who is not 18 has parental responsibility for the child.
(2)Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3)Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Section 61CA provides:
If it is safe to do so, and subject to any court orders, the parents of a child who is not yet 18 are encouraged:
(a)to consult each other about major long-term issues in relation to the child; and
(b)in doing so, to have regard to the best interests of the child as the paramount consideration.
Section 61D provides:
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
(3)A parenting order that deals with the allocation of responsibility for making decisions about major long term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision making in relation to all or specified major long term issues.
Accordingly, any change or alteration to the parental responsibility that the parties have pursuant to s 61C of the Act is to be determined by what is in the best interests of a child.
I consider that the thrust of the amending legislation that came into effect on 6 May 2024 was intended to focus the Court as to the needs of the children rather than the parties.
It is an unfortunate finding that there has been serious and potentially irretrievable damage to the father’s relationship with the children. As discussed by Ms G, it is likely that the children lack the maturity and insight to make an informed decision as to their relationship with the father. I have also found that the children’s views are likely to have been negatively impacted by the toxic environment created by the mother and at her invitation, Mr E.
Even so, a balance needs to be struck between ensuring that the father remains a presence in the children’s life but not to the extent where their misguided resentment is permitted to flourish.
There is no likelihood that the parties are able to communicate with each other at any reasonable level. The father has been the subject of intimidation and aggressive interaction with Mr E.
It is unlikely that the parties would be able to reach agreement as to matters relating to the children’s health and education. For their part, the children are unlikely to welcome the father’s input into what might be considered major long-term issues.
The evidence did not identify other areas of concern, and as such I propose to order that the mother have sole parental responsibility for the health and education of the children.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and sixty-two (262) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 23 July 2024
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