Pethes & Pethes
[2024] FedCFamC1F 213
•16 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pethes & Pethes [2024] FedCFamC1F 213
File number(s): NCC 2706 of 2021 Judgment of: SMITH J Date of judgment: 16 February 2024 Catchwords: FAMILY LAW – CHILDREN – issues narrowed a Trial – most orders by consent – sole issue whether three older children’s time with father should be increased by one day school day per fortnight in term time – issue of disruption to current settled regime – two of three children do not want any change – risk of change outweighs marginal possible additional benefit - on balance no change ordered. Legislation: Family Law Act 1975 (Cth) Pt VII, ss, 60CA, 60CC, 60CG, 65DAA, 68B) Cases cited: Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232
B & B (1993) 16 Fam LR 353; [1993] FamCA 143
Carlson & Fluvium [2012] FamCA 32
Division: Division 1 First Instance Number of paragraphs: 96 Date of hearing: 12–15 February 2024 Place: Newcastle Counsel for the Applicant: Mr Spicer Solicitor for the Applicant: The Family Law Co Counsel for the First Respondent: Mr Allen Solicitor for the First Respondent: Walker Family Law Second Respondent: Litigant in person Third Respondent: Litigant in person Solicitor-advocate for the Independent Children's Lawyer: Ms McMullen Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
NCC 2706 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS B PETHES
Applicant
AND: MS C PETHES
First Respondent
MR BODART
Second Respondent
MR VICARIO
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
16 FEBRUARY 2024
THE COURT ORDERS, BY CONSENT AND ON A FINAL BASIS:
1.That all previous Orders be discharged.
2.That the children, W born 2012, X born 2013, Y born 2015 and Z born 2017 live with the maternal grandmother.
3.That Ms C Pethes (“the maternal grandmother”) and Mr Bodart (“the second respondent father”) have equal shared parental responsibility for the children, W, X and Y provided that they:
a.notify Ms B Pethes (“the mother”) of any proposed decision relating to the long-term care and welfare of the children, including but not limited to:
i.proposed decisions about which schools the children shall attend;
ii.proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the children; and
iii.ensure that such notification is given to the mother in writing and is given not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency;
b.take into consideration any views expressed by the mother in respect of such proposed decision
4.That the maternal grandmother have sole parental responsibility for the child, Z provided that she:
a.notify the mother and Mr Vicario (“the third respondent father”) of any proposed decision relating to the long-term care and welfare of the child, including but not limited to:
i.proposed decisions about which schools the child shall attend;
ii.proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the child; and
iii.ensure that such notification is given to the mother and third respondent father in writing and is given not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency;
b.take into consideration any views expressed by the mother and third respondent father in respect of such proposed decision
5.That W, X and Y spend time with the mother as follows:
a.One weekend per month from 10:00am Saturday to 3:00pm Sunday when W, X and Y are not spending time with the second respondent father and when Z is spending time with the mother;
b.At all other times as agreed with the maternal grandmother;
c.That the mother be present at all times to supervise the children.
6.That notwithstanding any other order, the children spend time with the parties for Christmas in odd numbered years on an alternating basis:
a.In the first year from 12noon Christmas Eve to 3pm on Boxing Day with the mother
b.In the second year from 12noon Christmas Eve to 3pm on Boxing Day with maternal grandmother
7.That notwithstanding any other order, if Mother’s Day falls on a day when the mother does not otherwise have care of the children, the children shall spend time with the mother from 9 am until 3 pm on Mother’s Day
8.That notwithstanding any other order, if Father’s Day falls on a day when the second respondent father does not otherwise have care of the children, W, X and Y shall spend time with him from 9 am until 3 pm on Father’s Day
9.That notwithstanding any other order, if Father’s Day falls on a day when the third respondent father does not otherwise have care of Z, she shall spend time with him from 9 am until 3 pm on Father’s Day
10.Unless otherwise stated or agreed, changeover will take place with the parents collecting the children from and returning to the children to the home of the maternal grandmother.
11.That Z have telephone or Facetime communication with the mother and/or third respondent father each Wednesday between 6pm and 6:15pm with the mother and/or third respondent father to call the maternal grandmother.
12.That changeover will take place with the mother collecting Z from and returning her to the home of the maternal grandmother unless otherwise agreed in writing.
13.The maternal grandmother and second respondent father are to keep the other informed at all times of any medical, dental or other health related treatment being undertaken by the children, W, X and Y, including the name and telephone number of the treating dental, medical or other professional, details of all scheduled appointments and details of any prescribed medication.
14.Each party is to authorise any medical, dental or allied health professional who treats the child to speak with both parties about the child’s health and medical treatment, including providing both parties with copies of any reports or other information.
15.Each party is to advise the other as soon as practicable upon the happening of any of the following:
a.The children becoming seriously ill;
b.The children becoming hospitalised;
c.The children being involved in an accident;
d.The children requiring professional advice regarding a significant medical, mental health or dental condition.
16.All parties are restrained from denigrating the other party or any member of the other parties’ family or household in the presence or hearing of the children and as far as possible from allowing any other person to denigrate the other party or any member of the other parties’ family or household in the presence or hearing of the children, including, but not limited to social media.
17.All parties are restrained from discussing with or questioning the children about the current family law proceedings, any past or present conflict between the parents or the children’s preferred living and spend time with arrangements.
18.Each of the parties are authorised by these Orders to attend functions and public events relating to any school or extra-curricular activity in which the children, or any of them, are involved and to which parents and/or members of the community are normally invited.
CONSENT NOTATIONS
A.The parents will as far as possible ensure that the children meet all their extra-curricular and social engagements during the time the children are spending with them and they will endeavour, where possible, that it will be that parent or a person well known to the children who transports them to and from these engagements.
B.That it is intended that the mother and third respondent father will attend an extra‑curricular activity with the children and the maternal grandmother at least once a week by agreement.
THE COURT FURTHER ORDERS ON A FINAL BASIS:
19.That W, X and Y spend time with the second respondent father as agreed with the maternal grandmother and failing agreement, as follows:
a.During school term each alternate weekend from 5pm on Thursday until 5pm Sunday;
b.For the first half of the school holiday periods being the first half in even numbered years and the second half in odd numbered years; and
c.At all other times as agreed with the maternal grandmother.
d.For the purpose of this order the second respondent father shall collect W, X and Y from the residence of the maternal grandmother at the commencement of time, and the maternal grandmother shall collect the children at the conclusion of time.
20.That Z spend the following time, and any other time, with the applicant and third respondent father as follows:
a.Two weekends per month from 10:00am Saturday to 3:00pm Sunday:
i.When W, X and Y are not spending time with the Second Respondent;
ii.On one weekend when W, X and Y are with the Second Respondent;
b.At all other times as agreed with the First Respondent Maternal Grandmother.
c.That the mother be present at all times to supervise the children.
d.That changeover will take place with the mother collecting Z from and returning her to the home of the maternal grandmother unless otherwise agreed in writing;
e.The Third Respondent Father is restrained by injunction from spending any time with Z other than in accordance with these orders unless as agreed in writing by the mother and the maternal grandmother.
21.In the event the maternal grandmother forms the genuine belief that the mother or third respondent father has breached the orders requiring supervision, the maternal grandmother may give the mother and third respondent father a written notice alleging that a breach or breaches have occurred (“the Notice”).
a.On the giving of the Notice all of the children’s unsupervised time with the mother, and third respondent father pursuant to these Orders, shall be suspended.
b.The maternal grandmother may supervise the children’s time with the mother, and or with the third respondent father, if she chooses.
c.On the giving of the Notice the children shall spend supervised time with the mother, and or third respondent father, at a Contact Centre selected by the maternal grandmother, from the first available opportunity, on not less than a fortnightly basis for a period of two (2) hours, unless unavailable, and for that purpose:
i.within seven (7) days of the giving of the Notice the maternal grandmother shall identify a Contact Centre and each party shall do all acts and things and sign all documents reasonably necessary to undertake whatever reasonable intake procedures are required of them and thereafter adhere to the rules of the Contact Centre; and
ii.The mother and third respondent father shall jointly pay the costs of the Contact Centre.
22.If the mother and or third respondent father disputes the Notice either or both of them may file an Application to determine the alleged breach.
23.The children’s time with the mother and or third respondent father shall be supervised time at the Contact Centre until such time as the Court makes further orders.
Costs
24.If any party seeks costs they are to file an Application in accordance with the Rules.
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 Pethes & Pethes 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 oral reasons for decision in proceedings concerning the parenting arrangements for W (born 2012) aged 11, X (born 2013) aged 10, Y (2015) aged 8 and Z (born 2017) aged 6, pursuant to the Family Law Act 1975 (Cth) (“the Act”). I will refer to W, X and Y as the “older children” and all four children as “the children”.
The parties to the proceedings are the children’s mother, the children’s maternal grandmother, the older children’s father, Z’s father, and the Independent Children's Lawyer (“ICL”). The matter was listed before me for final defended hearing on Monday, 12 February, five days ago. The evidence concluded yesterday.
Across the course of the final hearing, the issues in dispute gradually narrowed so that by the end of the evidence, including after the child court expert, Ms D (“the expert”) had given her oral evidence, only one discrete issue remained for determination.
The issue is whether, in addition to half school holidays, the older children’s time with their father during school term should stay as it presently is from Thursday 5.00 pm until 5.00 pm Sunday or should be extended by a day, so it runs from Wednesday 5.00 pm to Sunday 5.00 pm.
The paternal grandmother seeks the time stay the same, having originally sought that it be reduced because she was concerned about the impact on the children, but ultimately, considering the evidence, reasonably submitted that it should stay as it is. The children’s father, supported by the ICL, and the mother, sought an extension from Wednesday 5.00 pm to Sunday 5.00 pm.
While the question of one extra night a fortnight on top of half school holidays is extremely narrow, the legislative scheme requires me to consider and apply all the relevant factors and, therefore, to consider a substantial portion of the background to this litigation, the prior litigation, and the evidence at trial to explain why I have come to the view I have; which is that contrary to the expert’s opinion, which appeared on its face to support that extension of one night, at this time in my view the older children’s best interests are served by an order that the school term time with their father not change unless and until there is an agreement between the older children’s father and the maternal grandmother, noting that the maternal grandmother is the person who has raised the older children, the person with who they have primarily lived, and the person with who their father shares parental responsibility.
Although much of the trial related to issues with Z, the position with Z was ultimately resolved by consent. I will therefore only deal with the issues around Z to the extent necessary to explain my decision on the remaining issue.
THE PARTIES AND PEOPLE
The applicant, Ms B Pethes (born 1982) aged 41, is the mother of all subject children. She is currently in a relationship with the third respondent, Mr Vicario (born 1972), aged 51, who is an Indigenous man. Together, they are the parents of Z. The mother and Mr Vicario have two younger children from the relationship, E (born 2019) and F (born 2020). The care arrangements of E and F are not the subject of these proceedings. The mother and Mr Vicario live in Suburb G and do not work.
The second respondent, Mr Bodart (born 1988), aged 35, is the father of W, X and Y. Mr Bodart has re-partnered and is married to Ms H. Mr Bodart is an Indigenous man. Mr Bodart and Ms H live in Suburb J with Ms H’s children from a prior relationship, K (born 2006) and M (born 2010). Mr Bodart is employed full-time, and Ms H is employed part-time.
The first respondent is the maternal grandmother, Ms C Pethes (born 1957) (“the maternal grandmother”). She is aged 65. She lives with the maternal grandfather, who is 66, and until recently, the maternal uncle lived with them, although it came out during the trial that the maternal uncle has just moved out. The maternal grandmother lives in Suburb N.
The parties all seem to live about 20 minutes’ drive from each other.
The children live with the maternal grandmother and attend L School. It is anticipated they will each move to P School in their turn.
W, X, Y and Z have lived with the maternal grandmother since they were aged three years, two years, under one year and under six months respectively, as a consequence of orders of this court.
Unfortunately, because the matter has come to a full trial and hearing and a judgment is required, it will be necessary to go back over some unpleasant times. I note that Exhibit ICL 4, reasons for Judgment and orders of her Honour Judge Costigan in (2019) FCCA 612 (non‑reportable), the prior judgment, sets out the unfortunate background litigation.
All current parties, other than the ICL, were parties to that proceeding and the findings are not challenged. This decision should be read with that decision. I take that background, including in particular in regard to Mr Bodart and the maternal grandmother, into account in reaching my decision.
The maternal grandmother stepped in and cared for the children because their mother and fathers were unable to do so and were, frankly, causing the children harm and trauma. The maternal grandmother gave up her employment and has selflessly devoted herself to their care for eight years now. At an age when most people are enjoying their retirement, the maternal grandmother is, and will continue to be for some time, their primary caregiver and attachment figure running around and caring for four young children.
Mr Bodart sensibly and properly agreed that but for the maternal grandmother’s intervention the children would not be the happy, well-adjusted children they are today.
I note that it would be difficult to praise the maternal grandmother, and the maternal grandfather who supports her, too highly. But for her noble intercession, it is difficult to imagine that any of these children would be doing as well as they are today, despite the best efforts of the foster and care system.
THE BACKGROUND
The mother and Mr Bodart commenced their relationship in 2009 and separated on a final basis in or around December 2015, having had W, X and Y. During the relationship, both the mother and Mr Bodart had very poor mental health, engaged in extended drug and alcohol abuse and there was an associated history of family violence. In this context, the children suffered significant trauma. Taking into account the reasons underlying the principles outlined in Carlson & Fluvium [2012] FamCA 32 at [165]–[169] and Adamson & Adamson (2014) FLC 93-622 especially at [90]; I will not detail Mr Bodart’s history, but I must indicate that it is necessary to take it into account, and I consider it relevant when I assess whether to give greater weight to Mr Bodart’s or the maternal grandmother’s assessments of the older children’s current status and needs, and the extent to which each of them is considering primarily the children’s needs or their own desires in relation to the outstanding issue.
Having said that, I note that Mr Bodart has fundamentally turned his life around and is now a committed father who is making living amends to his children through his involvement in their lives. He is to be congratulated for achieving this extremely difficult task, which many attempt, but in which few succeed.
Mr Vicario and the mother commenced their relationship in or around early 2016. Their three children are Z, E and F. Mr Vicario and the mother have separated on a number of occasions. While they both deny the presence of family violence in their relationship it is common ground that the mother relied upon emergency accommodation, even during the course of these proceedings. I note that, as is relevant to an understanding of why I make the consent orders I make for Z, those orders for Z having been agreed at the very end of the trial.
Having said that, I also wish to point out that I am satisfied that both the mother and Mr Vicario have also made great strides in their personal development, and let us be hopeful they continue to work on their mental health, their relationship, and their parenting skills, for the benefit not only of Z, but for E and F.
The prior proceedings were commenced by the maternal grandmother in 2016. The final judgment and orders were delivered and entered on 19 March 2019 and included orders:
(1)that the children live with the maternal grandmother;
(2)the maternal grandmother and Mr Bodart have equal shared parental responsibility for W, X and Y;
(3)the maternal grandmother and Mr Vicario have equal shared parental responsibility for Z;
(4)that W, X and Y spend time with Mr Bodart each alternate weekend from 5 pm Friday to 5 pm Sunday and half school holidays and on Father’s Day;
(5)that Z spend time with Mr Vicario on an incremental basis, ending with three days and two nights each week and for one half of school holidays when she commenced school;
(6)that the mother spend time with the children as agreed between her and the maternal grandmother and supervised by the maternal grandmother; and
(7)there were a variety of restraints against the mother, Mr Bodart and Mr Vicario, from using illegal substances or consuming alcohol to excess prior to spending time with the children and also standard orders regarding non-denigration.
THESE PROCEEDINGS
These proceedings commenced on 12 August 2021 when the mother filed an Initiating Application for final orders that the older children live with the maternal grandmother and spend time with both parents, and that Z is to live with the mother and Mr Vicario and spend time with the maternal grandmother.
On 27 September 2021, interim consent orders were made that the children continue to live with the maternal grandmother; that the mother and Mr Vicario engage in hair follicle testing, and that upon providing negative test results, the mother spend time with the children as follows: with Z, in accordance with Mr Vicario’s time pursuant to the 2019 final orders; and with the older children, from 10.00 am to 5.00 pm every fourth Saturday. On this date, the Independent Children's Lawyer (“ICL”), was appointed for the children, and the children and parties were directed to attend upon a court child expert for the purposes of a preparation of a Child Impact Report (“CIR”).
The CIR, dated 30 November 2021, which was Exhibit ICL1 before me, was prepared by Ms D, the court child expert (“the expert”). It was subsequently released to the ICL in accordance with an order dated 1 December 2021, and on 6 December 2021, it was released to all the parties.
The release of the CIR had an impact both on the conduct of the proceedings, but also on the relationship between the mother and Mr Vicario. I will return to that.
The expert stated in the CIR that the observations of Mr Vicario’s relationship with Z “were very concerning”.[1] I note that opinion evidence is also relevant to the consent order that I make for Z.
[1] Exhibit ICL1, Child Impact Report dated 30 November 2021 at [17].
On 16 December 2021, further interim orders were made for the mother and Mr Vicario to spend time with Z from 10.00 am to 5.00 pm every fourth Sunday, to coincide with the older children, and each Friday from 10.00 am to 4.00 pm. The mother could spend additional time with Z as agreed between her and the maternal grandmother – and the evidence is that this has occurred. The maternal grandmother has gone to some lengths to ensure that the mother was able to spend time with the children and to promote the mother’s relationship with all the children. Mr Vicario was at this stage restrained by injunction from spending time with Z in the mother’s absence.
Further orders were made for the parties to attend upon a court child expert, for the purposes of preparation of a Family Report, and the same expert prepared the Family Report dated 30 May 2022.
Further interim orders were made on 16 June 2022; that the mother spend time with Z each Friday from 10.00 am to 4.00 pm in the presence of the maternal grandmother; and that Mr Vicario spend time with Z supervised by Q Organisation.
In accordance with orders dated 28 October 2022, Mr Vicario was removed as a joint applicant in the proceedings and became joined as the third respondent.
On 18 November 2022, the matter was transferred to division 1 of the court, and on 14 August 2023, orders were made listing the matter for final hearing commencing on 12 February 2024.
THE PROPOSALS UP TO TRIAL
Up to the trial, the parties sought the following orders.
The mother sought orders that she and Mr Bodart have equal shared parental responsibility for the older children, the older children live with her and Mr Bodart on a week about basis and spend time with the maternal grandmother as agreed, or failing agreement, for the first weekend of each month.
In respect of Z, the mother sought that she and Mr Vicario have equal shared parental responsibility; that Z live with them and spend time with the maternal grandmother as agreed, or failing agreement, on the first weekend of each month. Mr Vicario echoed these orders.
Mr Bodart sought orders that he have sole parental responsibility for the older children and that they live with him. That was a substantial change to the existing position. He sought an order that the older children spend time with the maternal grandmother as agreed, or failing agreement, each alternate weekend from Thursday after school until Saturday; and spend time with the mother as agreed, or failing agreement, from 4.00 pm Saturday to Sunday 5.00 pm.
The maternal grandmother sought orders that the children continue to live with her. She proposed that she and Mr Bodart continue to share equal parental responsibility for the older children and that she has sole responsibility for Z. She further sought that the older children spend time with Mr Bodart each alternate weekend and spend time with the mother one day per month. In respect of Z, she sought orders for Z to spend time with the mother and Mr Vicario each alternate weekend.
Whilst Mr Bodart, and the mother, very sensibly changed their positions at trial, I accept the submission of counsel for the maternal grandmother that when weighing who is more child focused and more likely to be in a position to know what is presently best for the older children, it is relevant to take into account that right up until the trial commenced Mr Bodart was seeking orders which were clearly not, as I will explain, child focused, and which appeared to be focused far more on meeting his emotional needs than on doing what was best for the children. The fact that that changed at trial was good, but it would be naïve to pretend that his position was not self rather than child focussed right up until the trial commenced.
TRIAL AND EVIDENCE
The mother, maternal grandmother and ICL were legally represented, including by counsel or solicitor advocate. Mr Bodart and Mr Vicario appeared for themselves. The ICL provided the court book volume 1 of 779 PDF pages on behalf of the parties, containing the documents, MFI 1, and a court book volume 2 of 335 pages and MFI 2 of other documents. The applicant mother read, or relied upon, the following documents at trial:
(1)Amended initiating application of 4 August 2023;
(2)Affidavit of Ms B Pethes affirmed 4 August 2023;
(3)Applicant Mother’s Case Outline filed 6 February 2024 (4 Pages); and
(4)Applicant Mother’s Written Submissions filed 6 February 2024 (5 Pages).
The maternal grandmother read or relied upon:
(1)Amended response to final orders filed 4 August 2024;
(2)Affidavit of Ms C Pethes affirmed 4 August 2023; and
(3)First Respondent’s Written Submissions filed 7 February 2024.
Mr Bodart read or relied upon:
(1)Response to final orders filed 21 October 2021;
(2)Affidavit of Mr Bodart affirmed 4 August 2023; and
(3)Affidavit of Ms H affirmed 4 August 2023.
Mr Vicario read or relied upon:
(1)Response to final orders filed 24 November 2022;
(2)Affidavit of Mr Vicario filed 4 August 2023;
(3)Affidavit of his sister, Ms S, filed 4 August 2023; and
(4)Third Respondent’s submission bundle filed 6 February 2024.
The ICL relied upon the following documents at trial:
(1)Child Impact Report by Ms D dated 30 November 2021, Exhibit ICL1;
(2)Family Report prepared by Ms D dated 30 May 2022, Exhibit ICL2;
(3)Single expert report by Dr R, a psychiatrist who examined Mr Vicario, dated 12 May 2023, Exhibit ICL3;
(4)Judgment of her Honour Judge Costigan dated 19 March 2019 Exhibit ICL4; and
(5)ICL Case outline filed 6 February 2024.
There were various documents tendered during the Trial. I refer to these as necessary.
The mother, the maternal grandmother, Mr Bodart, Mr Vicario and the expert were required for cross-examination and gave oral evidence.
Ms H, Ms S, and Dr R were not required for cross-examination.
THE EXPERT REPORTS
The expert saw the parties and children on two occasions. She had access to extensive material and provided the Child Impact Report and the Family Report, as referred to elsewhere.
It is unnecessary to detail the extensive contents of her opinion given the narrow issue remaining. I nevertheless set out her recommendations:
156.Given concerns about [Mr Vicario’s] reported mental health decline in response to the CCE’s previous assessment, consideration may need to be given to the conditions under which this report is released.
157.It is recommended that the maternal grandmother and [Mr Bodart] have shared parental responsibility for [W], [X] and [Y].
158.It is recommended that the maternal grandmother has sole parental responsibility for [Z].
159. It is recommended that [W], [X], [Y] and [Z] live with the maternal grandmother.
160. It is recommended that [W], [X] and [Y] spend time with [Mr Bodart] alternate weeks from after school Wednesday to 5pm Sunday, and additional time during holidays and special occasions.
161. It is recommended that [W], [X], [Y] and [Z] spend time with the mother one Saturday per month from 10am and 4pm, and additional time as negotiated between the mother and maternal grandmother.
162. It is recommended that [Z] also spends time with the mother each Friday from 10am to 4pm until she commences school, and that this time not occur in the presence of [Mr Vicario].
163.If the Court finds that [Z] should spend time with [Mr Vicario], consideration could be given to her spending no more than four hours per month either formally supervised or in the presence of the mother and/or maternal grandmother.
164. Consideration could be given to the Court releasing a copy of this report to the Department of Communities and Justice.
Z
The issues regarding Z took up a significant portion of the trial. Prior to the expert giving evidence, all relevant parties had agreed in a document which contained both the orders agreed between the parties and the separate proposals (MFI 10). These included that Z should live with the maternal grandmother, who would have sole parental responsibility for Z with an obligation to notify and consider views. There was also agreement to FaceTime two weekends per month with the mother, coordinated with the older children’s time. There was not agreement regarding the length of weekends, special occasions, how changeovers would occur and a range of standard information and non-denigration orders.
The ICL, maternal grandmother and mother propose the two weekends would be from 10.00 am Saturday to 3.00 pm Sunday, and that, significantly, the mother would be present to supervise the children when with Mr Vicario, and that Mr Vicario would be restrained by injunction pursuant to s 68B of the Act from spending time with Z other than in accordance with these orders, unless with the written agreement of the mother and maternal grandmother.
Mr Vicario opposed the supervision requirement and maintained his application for half school holidays. At the conclusion of the expert’s oral evidence, Mr Vicario sensibly indicated that he wished to acknowledge the issues the expert raised and consent to the orders proposed by the maternal grandmother, and the ICL and accepted by the mother. This was a sensible change of position, which, while it reflected the inevitable result on the evidence, was pleasing in that it showed that Mr Vicario was listening and paying attention to the evidence and that he continues to work on his insight into Z and his other children’s emotional needs. Again, he is to be congratulated. It is a difficult path he is on, but he continues on it.
In oral submissions, it was accepted by all parties that, given the principles in B & B (1993) 16 Fam LR 353 at 369 and the evidence the mother is prima facie not an adequate supervisor.
Therefore, in order to minimise the risk of future litigation, and to avoid putting the maternal grandmother in a position where she might be at risk of a contravention application if she feels that Z’s time is not being adequately supervised and ceases time, balancing the issues and seeking to allow Z time while providing a protective mechanism, it was agreed the Court should craft orders allowing the maternal grandmother to give notice and cease time if she believes supervision is inadequate. It would allow the grandmother to bring the matter back before the Court. I have done that.
Otherwise, the proposed consent orders, including the mechanism for suspension of Z’s time with the mother and Mr Vicario, are consistent with the expert’s opinion and with my assessment of the evidence and are clearly in Z’s best interests.
I note that there is no suggestion, and I am satisfied, that Mr Vicario would never intentionally harm Z and he wants to do what is best for her. There are some issues with his understanding of Z’s emotional needs, and she is still very young, but he is clearly still working on that, and I have great hope that he will continue working on that, and that in time, if the maternal grandmother is satisfied that it is in Z’s best interests and that Mr Vicario has addressed these issues, she will be at liberty to consider whether supervision is required and what the time with should be, but that will largely be a matter for Mr Vicario and his progress and for the maternal grandmother to assess.
Nevertheless, I am satisfied that the proposed consent orders are in Z’s best interests and make them by consent.
W, X AND Y
Prior to the expert giving evidence, all of the relevant parties had agreed in the document MFI 10 that the elder children could continue to live with the maternal grandmother, that the maternal grandmother and Mr Bodart should continue to have equal shared parental responsibility, with an obligation to notify and consult with the mother, for time with the mother one weekend per month, from 10.00 am Saturday to 3.00 pm Sunday, that the mother be present at all times to supervise, special occasions , standard orders concerning keeping informed, access to information, non-denigration and attendance at public events. They also agreed the children would continue to spend half school holidays with Mr Bodart, as well as other time agreed between Mr Bodart and the maternal grandmother.
The only remaining issue is whether the older children’s school term time should be extended from 5.00 pm on Thursday to 5.00 pm Sunday, so that it instead runs from 5.00 pm Wednesday to 5.00 pm Sunday.
I note that, as I indicated previously, the maternal grandmother’s competing application had been that time would, in fact, reduce to the Friday to Sunday, because she was concerned about the impact on the children of the changeover during school times. She changed her position after hearing the expert to take into account the expert’s recommendation, and also to be consistent with her case that change could be difficult for W.
Therefore, it is a question of whether it should be from Thursday or Wednesday.
Now, the maternal grandmother has supported the relationship between the elder children and Mr Bodart. Quite simply, that relationship would not exist otherwise. Her evidence was that, considering all three children, the stability they presently have, some issues concerning W’s behaviour around holding a pair of scissors to his throat at school and threatening to stab his sister Y, and the practical difficulty of being flexible with the different needs of not just these three, but the four children she cares for in terms of sport and playdates, which sometimes occur at very short notice, and the fact that Mr Bodart and Ms H are not the only ones who necessarily pick the children up, because of their work commitments, and given W’s difficulty adjusting to change, she believed, I accept genuinely and with a sole focus on the children’s interests, that the extra day would not be in the children’s best interests at present.
I note, of course, that W, aged 11, was diagnosed with autism spectrum disorder (“ASD”), and attention deficit hyperactivity disorder (“ADHD”). Fortunately for W, he is a participant of the NDIS and attends upon a paediatrician, speech therapist, occupational therapist and psychologist, and the evidence from all witnesses indicates the difficulty he faces with change. I note that X, aged 10, is diagnosed with ADHD but does not qualify for NDIS, although, on the evidence, he does have additional needs as a consequence of his condition.
Significantly, the maternal grandmother pointed to the fact that Mr Bodart has only been to two medical or allied health appointments for the older children despite the many that they have attended over the years, in particular, W. Mr Bodart agreed with this, but said in future he would make more effort to attend. I must say, I found that very troubling, particularly given that, until trial, he sought a change of residence, effectively with primary responsibility for this critical aspect of the children’s care coming to him. It is just not good enough to say, given he currently shares parental responsibility that, “When I get the sole responsibility, I will start taking responsibility”.
The expert specifically supported the additional time in the Family Report, I note at paragraph [160], and the ICL and Mr Bodart relied upon this.
In oral evidence, the expert accepted that it was important not to destabilise the children’s current stability and wellbeing. She said it was about weighing the additional benefits against the risk of destabilisation.
The expert said that, in her view, weighing these matters, she still supported the extra day, based principally on three factors. Firstly, the benefit to the older children of the ability to build their identity with their father. Second, the benefit to the older children of the father actively engaging in rectification of the harm he had done and the trauma he had caused in their infancy, and thirdly, the benefit to the older children of the father helping them engage with their Aboriginal identity.
Whilst all three of these are indeed very important reasons why it is essential for the children to spend significant and substantial time with Mr Bodart, they already do that, and they will continue to do that under either proposal. It is not clear to the me that the children will receive any substantial additional benefits in respect of identity or rectification from one extra day during the school term, noting that there are also half school holidays.
The activities to promote the children’s connection with their Indigenous heritage, which are also important, are not likely to be noticeably increased on the father’s own oral evidence about the ways in which he and his extended family are working on these issues.
It was suggested that the children’s views support the increase, but while W said he wanted more time with the father at paragraph [110] of the Family Report, he also made it clear he wanted to “be mostly with nan” at [111], with whom he said he has the closest relationship at [112]. W has autism, and all the evidence was that change is difficult for him. While he says he wants more time with Mr Bodart, the maternal grandmother was concerned that W does not understand how that would be achieved in practice, and she thought he might perhaps think there could be an extra weekend day magically added.
X, who also identified the maternal grandmother as his closest relationship at [115], did not seek a change of time with Mr Bodart at [117]; and Y, who also identified the material grandmother as her closest relationship at [122], also felt the time with Mr Bodart right at [124].
So, while W at 11 wants more time, X and Y, at younger developmental stages, did not. It is also significant that it is quite clear from the expert evidence that all of them, as would be expected, since she raised them, see the maternal grandmother as their closest relationship and primary attachment figure, and they all made it clear in their statements to the expert that that is where they wanted to keep living.
I also take that into account, when I weigh whether or not the maternal grandmother or Mr Bodart has acted most in the children’s best interests in the conduct of these proceedings, noting that the ongoing conduct of litigation is, by its very nature, not in the children’s best interests as a rule.
It was also agreed that the older children should travel together between the households, and it is necessary to take into account the wishes and potential impact on all of the children noting their different ages and needs.
Further, while I give great weight to the expert’s opinion, noting that she is a very well-regarded expert in this field, and I also note that all of the remaining consent orders which I support and make are consistent with her opinion, when asked about the issue of the risk of change versus the marginal benefit from increased time, the expert proceeded on the implicit basis that the relationship between Mr Bodart and the maternal grandmother is now so positive and their focus on the children’s best interests so similar, that if the increased time did not work for the older children or did not work for all of them, that they would be able to negotiate a reduction from the Wednesday start time back to the Thursday.
I do not accept that implicit premise. While the relationship is clearly good and Mr Bodart’s child focus is improved, the fact that he sought to have the children move their primary residence to live with him and maintained that until trial suggests to me that he has been more focused on his own emotional needs and what he wants than on the children’s best interests. No reasonable person who had read the evidence, who considered the fact that the maternal grandmother has raised these children, they all expressed the fact that she is their primary relationship, that she is clearly their primary attachment figure, that they all said they wanted to live primarily with her, and that two of the three did not want change, could reasonably have put Mr Bodart’s case if truly child-focused, yet he ran that case to a trial.
Now, it is good that, at trial, he actually listened and primarily changed his view, but when I weigh whose evidence, I should give more weight to in considering what is in the children’s best interests, I must take this into account. The simple fact is that the maternal grandmother has been consistently focused on the children’s best interests. I have got no doubt she loves them and enjoys spending time with them, but they are not her children, and she has given up a great deal to care for them, and there is nothing that I have seen that makes me think otherwise.
Consistent with what I say, I am concerned that Mr Bodart’s affidavit raised various allegations about the suitability of the older children’s living arrangements in the care of the maternal grandmother. Indeed, he suggests the maternal grandmother might have a financial interest in retaining the children. I reject those matters and she dealt with them, but again, it concerns me that the relationship between Mr Bodart and the maternal grandmother, whilst functional and definitely improved and hopefully will continue to improve, is clearly not as good as the expert thought.
On the one hand, I am comfortably satisfied that the maternal grandmother is entirely focused on, and has always done what she believes is in, the children’s best interests. On the other hand, whilst Mr Bodart has clearly come a long way, the way in which he has conducted these proceedings indicates to me that he has been, until the trial, primarily focused on his own emotional needs, and whilst he no doubt loves the children and wants what is best for them, he has let his own emotional needs interfere in his assessment of what is in the children’s best interests.
Unfortunately, the matter was not settled, so I have been required to go through this process, and I understand it may cause difficulties; but if I am required to give a judgment, I am required to give a judgment, and that is a relevant factor which I had to take into account in this judgment. I cannot pretend that all that has gone before has not gone before. It seems to me that I would be entirely naïve to proceed upon the basis that if the time increases and does not work for the children, that it will necessarily be decreased by consent. On the other hand, I am comfortably satisfied that at the appropriate time, the maternal grandmother will test an increase in the older children’s time with Mr Bodart, and if that works, then that she will maintain it.
In summary, I have formed a different view about this critical issue to the implicit position taken by the expert in relation to the relationship between Mr Bodart and the maternal grandmother, so that a foundational assumption upon which the expert expressed her opinion is not made out on the evidence.
In those circumstances, I also note, that while I accept the maternal grandmother’s evidence that a change now might destabilise and be detrimental to the children’s effective and beneficial routine, I am not satisfied the evidence establishes that there will be much, if any, additional marginal benefit in each of the areas identified by the expert to be achieved by the extension of one day. I note that the expert’s factual assumption as to the quality of the relationship and Mr Bodart’s likely response if his proposal did not work for the children not being accepted by me, that affects the weight I place on the expert’s opinion on this issue, without in any way diminishing from the expert’s expertise or the regard one has for the expert.
BEST INTERESTS OF THE CHILDREN
In coming to my conclusion, I have had in mind the statutory framework which I am required to consider and the pathway.
The paramount consideration are the children best interests; see sections 60CA, 65AA and the factors set out in section 60CC. I am required to and have considered the various factors pursuant to the Act when making the above assessments. There is no risk of physical or intentional psychological harm to the children in either the maternal grandmother’s or Mr Bodart’s household, but there is a risk of some psychological harm from a change of circumstances by changing the day to Wednesday at this time.
The children have a meaningful relationship with both Mr Bodart and the maternal grandmother, which is excellent. There is equal shared parental responsibility, and the sole issue is the extra single day, so that the section 65DAA factors, including shared time, do not arise for consideration.
I have considered the views expressed by the older children and the factors, including each child’s maturity and level of understanding and medical conditions relevant to the weight I should give to them.
I have considered the nature of the relationship of each child with Mr Bodart and the maternal grandmother, the extent, historically as well as recently, to which each of Mr Bodart and the maternal grandmother have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children and to communicate with the children.
I have considered the historical issues of family violence and neglect by Mr Bodart and the attitude to the children and to the responsibilities of parenthood, and the extent to which each of Mr Bodart and the maternal grandmother have fulfilled, or failed to fulfil, both historically and recently, the obligation to maintain the children. In particular, I have considered the likely or possible effect of any changes in the children’s circumstances from the proposed change, noting that there will be no separation from either Mr Bodart or the maternal grandmother, and I have considered the capacity of each Mr Bodart and the maternal grandmother to provide for the needs of the older children, including emotional and intellectual needs.
I have considered the maturity, sex, lifestyle and background (including lifestyle, culture and tradition) of the older children and of Mr Bodart and the maternal grandmother and the specific characteristics of the children identified elsewhere in this judgment.
There are no issues with practical difficulty and expense.
The children are Aboriginal, and I am satisfied that the failure to increase time by one day per fortnight will not negatively impact on the children’s right to enjoy their Aboriginal culture, including the right to enjoy that culture with other people who share that culture, given the evidence of Mr Bodart provided that exactly how that feature of the children’s needs has been addressed.
There are no current issues of family violence and section 60CG has been taken into account.
I am satisfied that the order I propose is one least likely to lead to institution of further proceedings in relation to the older children.
CONCLUSION
On the narrow single issue before me, having considered the evidence and noting the findings I have made, in applying the statutory criteria, I find that the risks to the older children of destabilising their routine by ordering a change to Wednesday at this time outweighs the additional marginal potential benefit to the children of making such an order. I find that there is a risk that if the time is changed, and is not in the children’s best interests, Mr Bodart and the maternal grandmother will not be able to negotiate a reduction.
In those circumstances I will not change the current commencement time from Thursday to Wednesday.
Otherwise I make the consent orders.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 3 April 2024
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