Perez & Sherman
[2023] FedCFamC1F 1134
•22 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Perez & Sherman [2023] FedCFamC1F 1134
File number(s): NCC 562 of 2023 Judgment of: SMITH J Date of judgment: 22 December 2023 Catchwords: FAMILY LAW - CHILDREN – Interim Hearing – best interests of a child - with whom a child lives – parental responsibility – father unilaterally withheld children alleging child made disclosure to medical practitioner – objective evidence to the contrary - concerns regarding father’s credibility and protective capacity – father did not inform Court Child Expert or mother of a further different disclosure made by the child about a step sibling to a teacher – where mother was primary carer – where children have suffered disruption from primary attachment - where court cannot make findings of fact – assessment of risk.
FAMILY LAW – Orders – Mother to have sole parental responsibility in relation to educational and medical or health issues – otherwise parties to share parental responsibility – children live with mother – children spend supervised time with father – mother to obtain referral for child to undergo full paediatric assessment – changeover – conditional recovery order if father fails to hand the children over.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CA, 60CC, 60DA, 61DA, 65AA, 65D, 65DAB, 68B, 69ZL Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
M & M (1988) 166 CLR 69; [1988] HCA 68
Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
SS & AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 80 Date of hearing: 20 December 2023 Place: Newcastle Solicitor-advocate for the Applicant: Ms Garay Solicitor for the Applicant: The Family Law Co For the Respondent: Litigant in person Solicitor-advocate for the Independent Children's Lawyer: Ms Fielden Solicitor for the Independent Children's Lawyer: Fielden & Associates - Family & Relationship Lawyers ORDERS
NCC 562 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PEREZ
Applicant
AND: MR SHERMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
22 DECEMBER 2023
THE COURT ORDERS THAT:
1.The matter be listed for mention on Wednesday, 21 February 2024 at 10.00 am by Microsoft Teams.
2.Grant liberty to the parties to apply to mention the matter at short notice.
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
3.Ms Perez born 1999 (“the Mother”) have sole parental responsibility for X born 2017 and Y born 2020 (“the children”) in relation to any educational issues and any medical or health issues.
4.Otherwise the Mother and Mr Sherman born 1997 (“the Father”) shall share parental responsibility.
5.The Mother shall notify the Father of any long-term educational or health decision in relation to either child in writing within 7 days of making the decision.
6.The children shall live with the Mother.
7.Pending further Order the children shall spend supervised time with the Father at the B Contact Centre at Suburb C ("B Contact Centre") each alternate weekend for (3) three hours, and such time shall be implemented as follows:
(a)Each of the parents shall promptly contact B Contact Centre to engage with B Contact Centre for the purpose of the Father spending supervised time with the children, and to complete any required intake procedures.
(b)The Mother shall facilitate the children's attendance at B Contact Centre at such times and on such days as B Contact Centre advises are available.
(c)The Father shall spend time with the children at B Contact Centre on such days and at such times as nominated by B Contact Centre.
(d)Each of the parents shall pay half of any fees requested to be paid by them for B Contact Centre to supervise the children's time spent with the Father.
(e)Subject to B Contact Centre policies, the Father may have his partner Ms D and her children E and F attend.
8.Within 14 days of these Orders the Mother shall take all reasonable steps to obtain a GP referral for the child Y to undergo a full Paediatric Assessment including any related Speech Pathology and Hearing Assessments as follows:
(a)The Mother shall be responsible for arranging an appointment for Y with his GP to obtain the necessary referrals and upon the date and time of such appointment being confirmed the Mother shall promptly notify the Father of such appointment details.
(b)Upon referrals being obtained for Y's Paediatric Assessment including any related Speech Pathology and Hearing Assessments, the Mother shall be responsible for arranging such appointments.
(c)Upon completion of such Assessments, the parents shall Authorise and Direct the attending clinicians to send copies of Y's Assessments to the Independent Children's Lawyer.
9.Both parties be permitted to receive from any school, day-care, extra-curricular organisation, counselling, or medical facility the children attend, any documents or information ordinarily provided to parents, at each parent’s cost, and a copy of these orders may be provided to any such organisation and be a good authority for that organisation to act.
10.Within 28 days of the ICL making a request to either party, that party shall undergo Hair Follicle Testing to test for their consumption of illicit substances and they shall each Authorise and Direct, the Hair Follicle Testing facility to forward their Hair Follicle Test results to the Independent Children's Lawyer via email sent to: …@....
11.Pursuant to section 68B of the Family Law Act 1975 (Cth), the following injunctions are made for the protection of the children, and each of the parents and their agents are restrained from:
(a)Denigrating or criticising the other parent or any member of their extended family, in the presence or hearing of either of the children and from permitting the children to remain in the presence or hearing of another person engaging in such conduct.
(b)Discussing these proceedings or any related Local or other Court proceedings in the presence or hearing of the children or in the presence of any other children who are members of their household and from allowing any other person to do so.
(c)Discussing any risk of harm allegations in the presence or hearing of either of the children or in the presence of any other children who are members of their household, and from allowing any other person to do so.
(d)Questioning the children about any disclosures of sexual harm made by either of them.
(e)Publishing negative, critical or denigrating comments, memes or other social media posts or "stories" on any social media forum that could be interpreted as referring to the other parent or a member of their extended family.
(f)Using any form of physical chastisement to manage the behaviour of the children and from allowing any third party to do so.
(g)Consuming alcohol to the level that a reasonable person would expect that they would return a Blood Alcohol Level of greater than or equal to 0.05 if breathalysed, for any period whilst either children are in their care/ or for twenty-four (24) hours prior to such time.
(h)Consuming illicit or prescription drugs outside the prescribed dose, whilst either of the children are in their care or for twenty-four (24) hours prior to such time.
(i)Allowing the children to be exposed to or remain in the presence of family violence as defined in Section 4AB of the Family Law Act 1975.
(j)Photographing injuries, scratches, bruises or other marks on either of the children.
(k)Using the children or either of them to pass on messages or to communicate about parenting matters with the other parent.
(l)removing, withholding or otherwise retaining the children from the other parent any third party to whom the other has delegated their care of the children, during any period of time that the children are due to be in the care of the other parent pursuant to these Orders.
Therapeutic Assistance and education
12.Within 28 days of the date of these Orders, the parents are each to attend upon their GP to obtain a Mental Health Care Plan and referral to for therapeutic counselling and thereafter each party is to engage in therapeutic counselling for as long as recommended in respect to their diagnosed mental health issues and documented polysubstance use.
13.Within 28 days of the date these Orders, each of the parents shall enroll in a six-to-eight week "Parenting After Separation" course and as soon as reasonably practicable thereafter, each parent shall complete such course and file and serve a Certificate of Completion.
14.Within three months of these Orders each of the parents shall enroll in a Circle of Security parenting course and thereafter each parent shall complete their Parenting After Separation course as soon as reasonably practicable, and file and serve a Certificate of Completion.
Audio-visual contact
15.The children shall have audio-visual communication with the father on Christmas Day and twice per week at times to be agreed between the parties.
Communication Between Parents
16.Unless in the case of an emergency, the parents shall communicate in writing via text message.
17.The parents shall keep the other informed at all times of their current residential address and mobile telephone number and shall advise the other of any change to their contact details within 12 hours of such change occurring.
18.All communications between the parties will be polite, civil and related to the children.
Hand-over
19.At 5.00pm on Friday, 22 December 2023 Mr Sherman (“the Father’) must deliver the children X born 2017 AND Y born 2020 (“the Children”) to the Mother at McDonald’s Restaurant, Suburb H.
20.The hand over shall be inside the McDonald’s.
21.The mother shall attend by 4.45pm. The father shall attend at 5.00pm with Ms D. The mother shall leave first with children. The father shall wait 10 minutes and then leave to avoid any issues in the mother removing the children. All parties will communicate in a positive and respectful manner.
22.To the extent that this order may be inconsistent with any current ADVO between the parents the Court considers it sufficiently safe and appropriate, and in the best interests of the children for this contact between the parents to occur.
Conditional Recovery Order – if there is a failure to hand the children over
23.If Order 19 is not complied with, then pursuant to section 67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the children X born 2017 AND Y born 2020 (“the Children”) and to deliver the said children to the Applicant Mother and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.
24.Order 23 herein commences at 6.30pm on Friday, 22 December 2023, but is subject to a precondition of, and only commences if, the Children not having been delivered to the Mother as required by and in compliance with order 19 herein, and if commenced in those circumstances remains operative for 12 months from that commencement.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Perez & Sherman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are short form oral reasons for decision pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’) in an interim application for parenting orders filed 30 November 2023, heard by me two days ago regarding the subject children, X, born 2017, and Y, born 2020.
X is six and has just completed kindergarten at G School. Y is three and attends J Early Learning Centre in Suburb K for three days per week.
The applicant is the mother, Ms Perez, born 1999, and the respondent is the father, Mr Sherman, born 1997. An Independent Children’s Lawyer (‘ICL’) has been appointed and has appeared in the proceedings and in this interim application.
Other people referred to in the evidence include Ms D, the father’s new partner; her children, E, born 2016, and F, born 2018; Ms D’s mother, who assists in caring for the children; the father’s brother, Mr L and his partner, Ms N; Ms M, who was a partner of the father in early 2022; Mr Q, the mother’s new partner, who was born 1999; and Ms P, who is the maternal grandmother.
At the hearing of the application two days ago, the father sought an adjournment on the basis that his lawyer had left the firm representing him. He was not satisfied with the other representation offered in that firm, and so he was seeking new representation.
Both the ICL and the mother opposed the application on the basis that the children’s best interests should not be delayed because of the father’s dissatisfaction with his legal representation.
Legal representation is a matter for each party. Each party is entitled to represent themselves, and, indeed, that is the primary right. Legal representation is not a right, but obviously it is something a person can obtain if they can afford to and choose to. It is not, in the context of these children’s interests, and noting that I had read the material before I decided the refuse the adjournment application and to proceed, a proper basis on which to delay the hearing of this interim application which was listed some time ago.
I note that the ICL considered the matter urgent, I listed it on the basis it was urgent, and I was and remain satisfied on the material before me that it was and is appropriate to proceed with the father representing himself and to refuse the adjournment application.
I indicated to the father that I will deal with this on what is sometimes known as an “interim – interim” basis, which effectively means that given the circumstances I might be willing to reconsider certain matters in the medium term if there is evidence to justify a further interim hearing.
The evidence before me, which was all included in the mother’s court book, which was MFI 2, includes the mother’s affidavit filed 30 November 2023, and the affidavit of Mr Q filed 30 November 2023. The father’s affidavit filed 13 March 2023, which he previously relied upon to move the court for orders, and which was filed by his former solicitors, was read. There was a Magellan Family Report dated 7 August 2023 by court child expert Ms R. I also admitted into evidence the mother’s tender bundle, the Magellan Report of 10 May 2023, and the ICL’s tender bundle, which I was advised was considered by the ICL to be supplementary to the mother’s tender bundle.
I also have before me, by way of written submissions, the mother’s Case Outline; the mother’s Notice of Child Abuse, Family Violence and Risk; the ICL’s Case Outline; chronology; and proposed minute of order. I note that, after the hearing, I was provided with a document from the father with his proposal and submissions, which, in the circumstances where the father was self-represented and this creates no prejudice to the mother or the ICL, I have taken into account as supplementary written submission in support of the father’s oral submissions.
The short facts are as follows, the parties commenced their relationship in 2014 when the mother was 15 and the father was 17. The ICL submitted this was evidence that at the start of a relationship it was potentially infected by an age-based power imbalance. The parties commenced cohabitation in 2015. X was born in 2017.
The mother was the primary carer. The parties separated in late 2017. In early 2018, the father unilaterally withheld X from the mother, the father says under the guidance or suggestion of the paternal grandfather. The mother filed an application for recovery, and in April 2018, orders were made for X to live with the mother and spend time with the father each weekend. The parties resumed their relationship in about mid-2018.
Both the mother and the father failed to appear at the mention on 6 July 2018 and that proceeding was effectively dismissed.
Y was born in 2020, and the parties finally separated in either late 2020 or early 2021. The separation was somewhat acrimonious. The father says the mother threw all of his things onto the front lawn.
However, it is clear that the children continued living with the mother in the house and it was agreed they would spend time with the father, alternate weekends, from Friday to Sunday. The mother’s evidence is that the father did not always attend and there were significant gaps in his time with the children. The father denies that. The mother says the father dropped the children to day-care with inadequate nappies. The father denies that, which I will come to in due course when I discuss the law.
This is an interim hearing where no party was cross-examined, and I cannot make any finding as to an issue of disputed fact. Of course, that does not mean I cannot weigh and balance the material. I have. It is clear that the parties’ relationship was contentious and their separation more so.
In about mid-2021, during the drop-off at the father’s house, there was an incident between the father’s brother, Mr L, his then partner, Ms N, and the mother, which resulted in a verbal and a physical argument. Ms N was subsequently charged with offences and an AVO issued naming the mother as a person who needed protection from Mr L and Ms N. The mother was not charged.
In about late 2021, the mother began her relationship with Mr Q. He first met the children in late 2021. In early 2021, the father had commenced a relationship with Ms M. Ms M installed a piece of equipment in the children’s bedroom. I note that some people use them as exercise devices. X showed the mother.
The mother says, however, that it was not an exercise device, and the father and Ms M were running an adult content page. The mother and the father apparently argued about the equipment. The mother slapped the father. She was questioned by police and admitted the slapping incident as set out in the COPS report, which the mother tendered. An ADVO was taken out by police against the mother for the father’s protection. In early 2022, as I understand it, the ADVO was made final for the protection of the father for two years, and the mother was also placed in a good behaviour bond. The mother acknowledges this was poor behaviour. The mother admitted the offence, which she submitted goes to positive credit.
The mother had fortnightly counselling for a period of three months. The father, soon thereafter, separated from Ms M. The mother says that at that time, the father’s time with the children became more irregular. He often cancelled. The father disputes that. As I have said, I can make no finding of disputed fact.
In early 2022, the mother enrolled X at S School to attend once a week for prep. The mother and the maternal grandmother paid the fees and there was a dispute about where X would go to school in 2023. In about mid-2022, the father commenced his relationship with Ms D, which the mother feels, in her evidence, says caused the father to be more present in the children’s lives and was a positive influence, which was good.
In late 2022, the mother suffered a medical event, which caused medical issues. Now, before going back to talk about the events which have led to these further proceedings, I will just note that at present, as I understand it, the father lives with Ms D. He started seeing her in about mid-2022. They commenced living together soon thereafter. They live with her two children from two previous relationships. There is E, aged six, and F, aged five. E has ADHD. F is being assessed for a range of developmental issues and is under the care of a paediatrician. E doesn’t appear to have a relationship with his own father but E and F both spend time, as I understand it, with F’s father each alternate weekend.
The father is employed and works full time, Monday to Friday. Ms D cares for the children during the time he is working. The mother works full time. I understand she is studying a tertiary qualification. The mother commenced her relationship with Mr Q in late 2021. Mr Q moved in with the mother in about mid-2023.
The matter has come back to Court because, in effect, there are allegations of risk of sexual harm to X, in particular, in the mother’s house. These are all contested and have not been tested.
The father says that in early 2023, X said to F in his presence, “I am going to spit in your mouth”. The father said he was concerned because the mother allegedly is sexually aroused by people spitting in her mouth. He sets out evidence about this being one of her sexual preferences. The father raised his concerns with the mother, who he says told him her this issue came from schooling.
In early 2023, X had pain in her genital region. The father said he made some inquiries and was advised by Ms D’s mother that it could be a urinary tract infection. The father said in his affidavit that on that basis he took X to the emergency department at T Hospital and requested a full sexual assault examination. That examination occurred.
The circumstances in which that came about are important. At page 97 of MFI 2, which is the mother’s court book, the mother having included the father’s affidavit so that he would have material since he hadn’t filed a court book, the father said the following:
At the hospital, [X] was seen by the emergency paediatrician. I explained [X's] comment, her behaviour the night prior and her behaviour in the weeks preceding. The paediatrician asked [X] what was going on and what had been happening. [X] said to the paediatrician that she had seen " Mummy, [Mr Q] and [Ms U] in the lounge room spitting in each other's mouths". [X] had not said this previously, so I was shocked to hear her say this. The paediatrician then asked why she was sore, and [X] responded by saying that there were " yuckies " in it and there was "hair" in it. [X] was referring to her vagina. When the paediatrician asked why she had tried to show me her vagina, she responded: "I don't know". [X] seemed scared and hesitant. She then said she hadn't shown her vagina to another person.
(Emphasis added)
It is important to note that the father says that X said these things, “to the paediatrician” and that X had not said this previously, so he was shocked to hear her say this. So, according to the father’s sworn evidence, upon which consent orders were made on 14 March 2023, the relevant disclosure was first made spontaneously by X to an independent medical practitioner, who just happened to be undertaking a full sexual assault examination.
On the following day, the father contacted the sexual assault unit and two days later, the police. In his affidavit at paragraph 32, he said he understood DCJ had concerns if the children were to be returned to the mother.
Now, obviously, the alleged disclosure by X to the doctor at the hospital is very concerning.
X was seen by Dr V, a senior staff specialist paediatrician in early 2023, and the ICL and the mother both drew the court’s attention to the letter of 7 February 2023 from Dr V, at page 160 of the mother’s Court Book MFI 2, which forms part of the exhibits. Now, the letter states a history was given that, due to concerns about Ms Perez’s parenting capacity, X and Y came to live with the father full time in late 2022. I note that there is no evidence that that is correct. It is not clear why such a history was given, noting the alleged concerns which were said to justify the father retaining the children only arose in early 2023.
Dr V further records under the “Presenting History” heading of her report that, “[a]fter preparing [X] to go to hospital for medical review [in early] 2023, [X] made a clear disclosure to [Mr Sherman] that she had seen [Ms Perez], [Ms Perez’s] best friend, [Ms U], and [Ms Perez’s] partner, [Mr Q], naked and spitting into each other’s mouths at [Ms Perez’s] house”. X further stated, “I know that spitting in each other’s mouths is yucky”. The disclosure here is said to be to the father, justifying the sexual assault examination, but there is no reference to X making the disclosure to the doctor in early 2023. I note that the clinical notes have subsequently been obtained, and Dr V had those notes, and it is clear from that material that there is no evidence that the disclosure was made to the doctor. That is a significantly different series of events from the father’s sworn evidence upon which basis the children were removed from the mother’s primary care.
I note that the father’s affidavit was not prepared by him as an unrepresented litigant but was prepared by a solicitor acting for him.
It also is further recorded that Mr Sherman has been informed that the Department of Communities and Justice will no longer be involved, as X has not made a clear disclosure about the alleged sexual abuse and DCJ were over capacity. I will just repeat again: the alleged disclosure as set out to Dr V in early 2023, was not, as the father said in his affidavit, made independently in the first instance to the medical practitioner but was allegedly made to the father and it does not appear to have been repeated to the medical practitioner. It is a significant difference, and the court and parties would appear to have been substantially misled by the father in this extremely significant regard, when the matter was settled, and interim consent orders were entered on 14 March 2023.
The circumstances in which that apparently misleading statement was made and whether it was intentional, or a misunderstanding will doubtless be explored in detail at any final hearing. If it was intentional, then obviously the consequences may be significant. I can make no finding at the moment.
The father unilaterally withheld the children and refused time or communication, allegedly on the basis of the advice from Dr V. However, although Dr V, based on the history she was given, expressed concern, there is no evidence whatsoever in her letter of 7 February 2023 that any such advice was given.
X apparently disclosing people were spitting in each other’s mouths was clearly a trigger for what occurred. In that context the Court Child Expert noted at paragraph 118 that during observations E was heard to state: “You spit on me.” Now, that’s clearly a very relevant matter, given the nature of the primary allegation.
The mother and the ICL also drew the court’s attention to the fact that the father included in his affidavit a letter, dated early 2023, which I note is before the disclosure was made according to the father, in which the NSW Department of Communities and Justice wrote in support of his application for an Additional Child Care Subsidy for Y, “…who resides with his father, [Mr Sherman], on a full time basis”.
The father says he thinks the letter must be misdated, but if the letter is correctly dated that also raises concerns about why the father is seeking additional funding order on the basis that the children are living with him full-time before there was any possible basis for that to occur.
These are again all matters which doubtless will be investigated in some detail at a final hearing.
There is also a further very significant concern raised about the father’s credibility and protective capacity arising from a clear disclosure by X, which the father confirmed was to a person at her school, as set out at page 202 of MFI2, which forms part of the exhibits and states:
RoSH concerns:
[X’s] dad, [Mr Sherman], has a new partner, [Ms D]?
[X] (redacted) disclosed that [E] (redacted) had touched her in her private parts with both hands (she demonstrated it to me). They are brother and sister and that [E] didn’t want to let go although she asked him to. She also told me he does it at home too and that she didn’t tell Mum and Dad but she told step-mum? She reported to me that stepmum had said to her not to talk about it anymore..
The father did not contest in his submissions that this disclosure occurred. He did not contest that he did not tell the Child Court Expert that this disclosure had occurred. What he says is that when E was punished, X had told him that she had lied about this and so, Ms D told X not to lie and not to talk to anyone about it. Again, that is something which doubtless will be tested, but it is a matter of grave concern that this clear disclosure was not raised with the Child Court Expert (‘CCE’ or ‘the expert’) and that this clear disclosure was not notified to the mother, the ICL, or to anyone and was not known about until the documents became available.
The father’s suggestion that because X had said it was a lie meant it was not relevant is not something I accept that he genuinely believes for the purposes of this decision. It was clearly relevant. If she is lying about one disclosure, maybe she is lying about other disclosures. But also, in the context, where we have the CCE hearing E talking about spitting in the mouths of other people, and this disclosure, which is a very clear disclosure and frankly not an unusual disclosure when children in this age group, who may not understand the sexualised nature of their behaviours, act in this way. But it is a matter of significant concern to me that the father has chosen not to disclose this.
I also note that I have Mr Q’s criminal record and there is no criminal record and that the father said in submissions that apart from the alleged disclosure, he has no basis to thinking that Mr Q poses a risk.
I also note finally the expert’s opinion, which does not bind me and is untested but which I give some weight on an interim basis, noting it the opinion of a Court Child Expert. And, again, it raises some concerns. That includes a concern, set out at paragraph 124 of the Family Report, that the abrupt cessation of the relationship with the mother:
…would have led to a disruption to their primary attachment relationship which can lead to adverse consequences for their functioning and development to include behavioural maladjustment.
The expert, in her report, makes a number of comments about the fact that the children have clearly suffered from the termination of the primary relationship with the mother by the consent orders that were entered on 14 March 2023 which resulted in a significant reduction in the children’s time with their primary carer.
I also note that the expert identified a number of concerns in her expert opinion regarding the father’s parenting capacity at paragraphs 126 to 128 Family Report, where the expert states:
126. The quality of the relationship between the children and the father is of significance in respect of the potential relational reparation of the impact of the disruption to their primary attachment figure. The father’s capacity to understand the children’s need and effectively respond to those needs was an issue identified in this assessment. Concerns were raised by the mother, and appear to be supported by a range of collateral accounts from people in the father’s network as to his capacity to prioritise and consistently meet the children’s needs. Through the course of this assessment the father demonstrated poor insight into the children’s needs. This included the father’s inability to value and support the children’s relationship with the mother. The concerns raised will be further explored, however in relation to the father’s attunement to the children and the impact upon their developmental trajectory, concerns are identified by the writer.
127. The father’s understanding of the children’s needs and therefor his capacity to meet their needs was cause for concern in this assessment. It is unclear to the writer whether the father’s narrative in interview was driven by his desire to portray that the changes to the children’s care arrangement as not having impacted upon them, or whether he may lack basic insight into their presentation and understanding how this offers insight as to their coping and adaption. Regardless of the underlying reason for the father’s reporting, it is concerning that this demonstrates limits in his parenting capacity, or indicates that he was intentionally attempting to mislead the Court to advance his position in retaining primary care of the children.
128. In relation to the father’s parenting capacity, further concerns were identified in his inability to recognise [Y’s] apparent developmental delays, which would be quite evident to most parents with even a basic understanding of child development. Again it is unclear if the father provided an accurate account to the writer of his views in this regards, or if he express no concern as a means to rationalise his neglect of [Y’s] needs. It is of concern that [Y] has not been referred for a review in relation to his speech, and it is recommended that this occur as a priority.
(As per the original)
On the other hand, at paragraph 129 of the Family Report, the mother was assessed as presenting with a high level of insight and understanding of the children’s needs.
The expert also noted concerns at paragraphs 132, 133 and 135 that:
132. Concerns were identified in relation to the father’s underlying motivation in placing restrictive measures upon the mother’s relationship with the children. There were a range of indicators raised throughout the assessment, across the interviews with the parties, other adults, and the children that would give rise to the possibility that the father is not supportive of the children’s relationship with the mother, and is acting to restrict these relationships. The father presented as being dismissive and unwilling or unable to recognise the children’s relationship with the mother as a primary attachment figure, or even as a significant meaningful relationship for the children. The father was unable to recognise or share the impact that the change in residence has had on the children. During interview with the father, elements of continued attempts to exert control over the mother were identified.
133. The issue of family violence was identified as a risk in this matter by both parties. The mother’s account of the father’s behaviour indicated behaviour which would appear to be consistent with a pattern of coercive control. This included the father restricting the mother’s movements during conflict, using physically aggressive and violent behaviour towards her, interfering with the mother’s friendships. The father conceded to having limited the mother’s movements, but justified this as a helpful step during conflict. As such the father demonstrated little insight into his controlling behaviour. The father was assessed to continue to have a strong desire to understand the mother’s circumstances, particularly with reference to her intimate relationships, which is an indication of continued risk of family violence. It is common ground that the mother used physical violence against the father on two occasions, assaulting him by slapping him on one occasion and punching the father in attempt to break free from him during an incident of family violence. It appears that the mother has struggled to regulate her emotions in the context of this dysfunctional relationship. The mother would benefit from re-engaging in therapeutic support to help develop her emotional regulation capacity, and as a means to assist in management of her mental health.
…
135. Given the concerns identified in this assessment for the wellbeing of the children in their current living arrangement with the father, and the potential erosion of the children’s relationship with the mother the longer they remain in the father’s primary care, it is suggested that the issue of risk to the children with the mother be considered with some priority. If the allegations of sexual harm to the children in the mother’s care have not been substantiated or corroborated in any way by external agencies, then based on this assessment, an interim change of residence for the children to the mother’s primary care may need to be considered as soon as possible.
(As per the original)
The expert recommended sole parental responsibility to the parent the children primarily live with, and if that is the mother, that they spend alternate weekends and time in the off week with the father, that both parties engage in psychological counselling, and that the father engage in post-separation parenting courses to assist him to understand the needs of the children and the need for the children to have a relationship with the mother.
The ICL’s proposal, set out in the ICL’s proposed minute of order, which is MFI 4, was that pending further orders the mother have sole parental responsibility, however, during the course of submissions that was narrowed. The ICL proposed and the mother accepted that, on an interim basis, the need for sole parental responsibility only arises in relation to medical and educational issues.
The ICL’s submission was, in effect, that there was no proper basis for the children to have been removed from the mother and there is no basis on which Mr Q should not spend time with the children.
The ICL then went further, however, in her orders by proposing that the father’s time be supervised because of her concerns about the father’s views, what the expert has said, and also the circumstances in which the children were removed from the mother’s care and may have suffered psychological harm, and given the father’s possible unreliability as a witness given that he did not disclose what X said had happened with E, noting again that I can make no findings about any of that but must weigh it.
There were a range of other proposals made by the ICL, and the only issue I understood the mother to have with the ICL’s proposals was that she did not think both parents should attend appointments at the same time.
The ICL also wanted s 68B injunctions about non-denigration and criticism, discussion of proceedings, or the allegations, or questioning the children; publishing negative, critical or denigrating comments on social media; using any form of physical chastisement; consuming alcohol beyond 0.05 if the children are with the party, consuming illicit substances or drugs; allowing the children to be exposed to family violence; photographing injuries, scratches or bruises; using the children to pass messages; or from breaching the orders.
The ICL also proposed a restraint against allowing the children to have any form of contact with Ms D or with E or F, although while the time is supervised the restriction will not be relevant. She also sought orders about the parties attending upon GPs and getting mental health plans, enrolling in parenting after separation courses and in circle of security courses. In terms of medical appointments, the mother did not agree with them both attending those appointments together.
The father’s supplementary submission, which detailed the submissions of his proposal, was firstly on the basis that the children live with him, in which case he said they should spend time with the mother every Wednesday afternoon from 3.00 to 7.00 pm, and every second weekend from 3.00 pm Friday to 5.00 pm Sunday, for one month, so the children can adjust to having extra time and not be disrupted. He also said, he would be happy for the mother’s partner to be present, “…on the proviso that I can meet him at some point before this arrangement”.
The mother says that the father has been offered every opportunity to meet her partner and he didn’t want to. That is a significant change from the position regarding the mother’s new partner to the position the father has taken to date. In any event, he says that if the decision is to return the children to the mother’s care and for his time to be supervised, he says he would propose his mother-in-law as a supervisor for a month, and said that he can’t see why Ms D’s should be restricted, noting what the mother has said about Ms D being a positive influence, although there is the apparent attempt to stop X from disclosing what has happened with E. Otherwise, the mother seemed to be quite positive about Ms D.
The father said if the children go back to the mother, he wants Boxing Day because something has been organised. He made a general submission about them co-parenting together.
Now I briefly turn to the question of the legal principles that govern this decision. The mother, the ICL and the father each in effect seek parenting orders as defined in Part VII, Division 5 and at s 64B of the Act. The Court has power to make such orders under s 65D The Court must have consideration for the best interests of the children pursuant to ss 60CA and 65AA of the Act. The primary considerations when determining the best interests of the children, are first and foremost the need to protect the children from physical or psychological harm or from being subjected or exposed to abuse neglect or family violence s 60CC(2)(b) and second, the benefit to the children of a meaningful relationship with both parents s 60CC(2)(a).
Greater weight is given to the protective requirement, pursuant to s 60CC(2A) and these are the twin pillars referred to Mazorski & Albright [2007] FamCA 520. I note there are extensive additional considerations; however, as observed by the Full Court in Banks & Banks [2015] FamCAFC 36 at [48] to [50]:
48. …It will be the issues that are joined that will dictate which section of 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at trial.
49. … It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors.
I note the power to make orders in s 65D is subject to the rebuttal presumption of equal shared parental responsibility in s 60DA and to the issue of parenting plans under s 65DAB, and also the s 61DA presumption. I note the circumstances in which the presumption does not apply, particularly relating to family violence. I also note s 65DAA.
I note what the Full Court said in Goode & Goode [2006] FamCA 1346 (Goode & Goode) at [68] that:
68.The procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.
And at [81]:
81. In making interim decisions, the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.
Obviously, the legislative pathway must be followed. I note what was said further by the Full Court in Marvel & Marvel (2010) 43 Fam LR 348, particularly at [120]:
120. … [I]nterim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm for the child is adopted.
I also note, however, what was said in Eaby & Speelman (2015) FLC 93-654 at [18], referencing Goode & Goode at [68] that:
However, that does not mean that merely because the facts are in the dispute, the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts.
I note the principles set out in SS & AH [2010] FamCAFC 13 at [88] and [100] regarding the court having:
100. … little alternative than to weigh the probabilities of competing claims and likely impact on the children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
I also note what was said in Deiter & Deiter [2011] FamCAFC 82 about the risk assessment process at [61]:
61.The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
I note the principles in M & M (1988) 166 CLR 69 and the recent decision in Isles & Nelissen (2022) FLC 94-092.
In this case, the issue is relatively straightforward, it seems to me. The mother has always been the primary carer and the primary attachment. The evidence from the experts is clear that the children have suffered from a disruption to that attachment. The consent orders were made based upon incorrect evidence filed by the father in his affidavit that X made an independent disclosure to a doctor, when that did not happen. X has not made any similar disclosures despite being interviewed by others. E talked about spitting in someone’s mouth at the assessment, which the CCE heard and noted. X made a disclosure to a school teacher that E has been acting in a sexualised fashion.
There is no rational basis for considering that the mother or her partner, Mr Q, present any risk of harm to the children. In those circumstances, and considering what the expert said, I think the children should be returned to the mother’s primary care. I accept the ICL’s submission in that regard and the mother’s submission. I think that should happen today.
At the end of this judgment, I will give the parties specific orders to ensure that the handover happens today. I think pending further order, the mother should have sole parental responsibility for limited issues given the level of conflict between the parties. At the moment, the only issues I think the mother will need to make unilateral decisions about will be schooling and health so that they can occur quickly.
The question then arises as to whether or not the time with the father should be supervised. There is material there, particularly including some concerns around what is happening with E, the failure to disclose what was happening with E, and conflict and issues raised, to the point where on balance I accept the ICL’s submission that at the moment, at least, the father should only spend supervised time with the children, rather than spending unsupervised time.
Accordingly, I will make order 3 as proposed by the ICL. I think it should be each alternate weekend for three hours. I will make orders for B Contact Centre and etcetera. I think the parties should each pay half of the fees. I am not willing to put a restriction on Ms D or E or F attending in circumstances where I do have concerns about E’s behaviour and whether that behaviour is being corrected, but in a supervised setting, there should be no difficulty in making sure that there is no risk to the children, and it is likely that there is going to be a long term relationship with Ms D and her children, and I think it is better that that continue on a supervised basis, rather than being terminated for a period of time at the moment.
I will make order 4, although not 4(c). I do not think it is good at the moment that these parties spend time with each other. I will make an order that each party should be able to have access to any school reports and any medical assessment reports that are usually provided to parents at their own cost. I will make order 5 for a hair follicle test. I will not say within 28 days of these orders. I will say within 28 days of the ICL making a request of either party, either party shall undergo hair follicle testing because of the cost questions, and the ICL can assess whether the recent testing of the mother is recent enough. I will make the injunction pursuant to s 68B in the usual form. I will not make suborder (m) stopping Ms D or her children spending time with the children supervised. I will make an order for mental health care plans and for each party to do parenting after separation courses.
In terms of the time with, I will note I am going to make the ICL’s orders at the moment. As I have indicated, I would like the parties to think about the question of risk and think about the long term issue of whether the father’s household does pose risks, whether the father and Ms D can explain to E what appropriate behaviour is, and the fact that it is likely that the supervision order will not last indefinitely, and to look at what would be realistic in terms of unsupervised time, and I will note that I will reconsider the question of supervision of the father’s time on his application when he gets a new lawyer in due course, but I think there is a sufficient evidence on the issue at the moment to concern me and convince me that supervision is, currently, appropriate.
In terms of additional orders, I note the mother’s proposal for communication in her Application. Order 17, I think, is appropriate, that unless in the case of emergency, parents shall communicate in writing via text message. I will make an order 18; the parents shall keep the other informed at all times of their current residential address and mobile telephone, and should advise the other of any change in their contact details within 12 hours of such change occurring. Parents shall advise the other immediately in the event the children suffer any serious injury or illness, including details of any medical practitioner, and the parties authorise any medical practitioner or hospital or medical practice upon or at which either child attend from time to communicate with the other party.
I will note that the parties are at liberty to provide any school or educational institution a copy of these orders or any medical practitioner a copy of these orders, and I will also note that if the parties and the ICL agree, they will be at liberty to vary the time the children spend with the father, including if they all think it is appropriate to vary the supervision requirements in due course and to submit such variation to the court.
Those are my reasons. I will make orders accordingly.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 6 February 2024
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