Petrallis & Hanford (No 2)
[2023] FedCFamC2F 1019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Petrallis & Hanford (No 2) [2023] FedCFamC2F 1019
File number: DGC 2569 of 2018 Judgment of: JUDGE FORBES Date of judgment: 16 August 2023 Catchwords: FAMILY LAW – parenting –– where there is a high level of family dysfunction – long history of engagement with Courts, police, departmental services, therapists and external agencies – mutual allegations of family violence between parents – allegations mother has subjected children to family violence – no communication between parents - where three of four children live with father and refuse to see the mother – 12 year old girl in all male household – need to re-establish relationship between mother and daughter – where complex family therapy recommended – consideration of live with and spend time arrangements – relevance of children’s wishes - consideration of best interests of the children Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 11F, 60B, 60CA, 60CC 61DA, 65DAA
Cases cited: Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
R & R [2000] FamCA 43
Division: Division 2 Family Law Number of paragraphs: 310 Date of hearing: 20-21, 28 October 2022 Place: Melbourne Counsel for the Applicant: Mr Wilson Solicitor for the Applicant: Phaedonos Law Counsel for the Respondent: Ms Juneja Solicitor for the Respondent: Women’s Legal Service Victoria Solicitor for the Independent Children's Lawyer: Peter Lynch Lawyer ORDERS
DGC 2569 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PETRALLIS
Applicant
AND: MS HANFORD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
16 AUGUST 2023
THE COURT ORDERS THAT:
1.All previous Parenting Orders in respect of the children X born in 2009 and Y born in 2011 be discharged.
Parental responsibility
2.The parties have equal shared parental responsibility for the children X born in 2009 and Y born in 2011 (“the children”).
X
3.X live with the Mother.
4.Subject to order 5, X spend time with the Father every alternate week from Friday after school until the commencement of school on the following Wednesday.
5.Until such time the Father is able to facilitate X having his own sole-occupancy bedroom at the father’s residence, X live with the Mother and spend time with the Father as follows:
(a)from the conclusion of school or 3:00pm on Friday (or Thursday if Friday is a public holiday) to the commencement of school or 9:00am on Monday (or Tuesday if Monday is a public holiday) each alternate weekend;
(b)from the conclusion of school or 3:00pm on Wednesday to the commencement of school or 9:00am on Thursday each other alternate week.
6.X otherwise spend time with the parties on school holidays as follows:
(a)with the Mother
(i)for one half of the Term 1, 2, 3 holidays as agreed between the parties, failing agreement the first half of the Term 1, 2, 3 holidays in even years and the second half in odd years;
(ii)for one half of the long summer holidays as agreed between the parties, failing agreement on a week about basis, commencing the second week of the long summer holidays;
(b)with the Father
(i)for one half of the Term 1, 2, 3 holidays as agreed between the parties, failing agreement the first half of the Term 1, 2, 3 holidays in odd years and the second half in even years;
(ii)for one half of the long summer holidays as agreed between the parties, failing agreement on a week about basis, commencing the first week of the long summer holidays.
Y
7.Y live with the Father.
8.Y spend time with the Mother on a graduated basis as follows:
(a)each Wednesday from after school to 7:00pm, for four occasions commencing on the next Wednesday following the date of these orders; then
(b)each Sunday from 10:00am to 2:00pm for four occasions; then
(c)each Sunday from 10:00am to 5:00pm for four occasions; then
(d)every second weekend from 10:00am Saturday until 5:00pm Sunday for four occasions; then
(e)every second weekend from after school Friday until 6:00pm Sunday for four occasions; then
(f)every second weekend from after school Friday until 5:00pm Wednesday thereafter;
(g)with such time between the mother and Y to occur when X is also with the Mother.
9.The spend time arrangements specified in Orders 8 (a) to (c) shall take place between Y and the Mother in the community and thereafter may take place at the Mother’s residence.
10.In addition to the time specified in Order 8, shall Y spend time with the Mother:
(a)according to Y’s wishes; or
(b)as may be agreed in writing by the parents.
11.From the commencement of the Term 2 school holidays in 2024, or earlier by written agreement between the parties, Y’s spend time with the parties on school holidays and long summer holidays shall be in accordance with the schedule prescribed for X in order 6 herein.
12.The Father will use his best endeavours and encouragement to ensure Y attends changeover and spends time with the Mother in accordance with these Orders.
Family Therapy
13.There be complex family therapy for the whole Petrallis family to be conducted by the first available of Mr B or Ms C, such availability to be determined by the Independent Children’s Lawyer and advised to the parties
14.As far as is possible the family therapy with the nominated family therapist is to include:
(a)individual sessions with each of the parents and with each of the children, Mr D, E, X and Y;
(b)individual sessions with the Father and each child;
(c)individual sessions with the Mother and each child; and
(d)such other sessions as determined by the family therapist.
15.Prior to the commencement of the family therapy, the Independent Children’s Lawyer shall facilitate a conference of experts namely, Ms F and Ms G (if available) and the nominated family therapist, to discuss the future family therapy, with the costs of this conference to be shared between the Mother and the Father.
16.The family therapy referred to in Orders 13 and 14 shall be reportable in the event that there are further Court proceedings in this matter.
17.The parent with whom X and Y are spending time on the date of any family therapy appointment shall be responsible for ensuring that the relevant child attends at the appointment with the family therapist.
18.The father will use his best endeavours to encourage each of the brothers Mr D and E to participate in family therapy as may be requested by the nominated family therapist.
19.The family therapy referred to in Orders 13 and 14 shall occur in person unless it is not possible and advised by the therapist.
20.The costs of the family therapy shall be borne equally by the Mother and the Father.
21.The ICL be permitted to provide the nominated therapist with a copy of:
(a)the Family Report dated 10 August 2021;
(b)any current Intervention Orders;
(c)a copy of these orders and the Courts reasons; and
(d)such other documents as may reasonably be requested by the family therapist
Communication
22.Changeover take place at school where appropriate or as agreed between the parties, failing agreement at Suburb J Hungry Jacks, H Street, Suburb J.
23.The Mother and Father shall be at liberty to send cards, gifts and presents to the children for Christmas, birthdays and special occasions.
24.The parties are to communicate in relation to all parenting matters through Divvito, including but not limited to:
(a)requests for changes to spend time with and/or changeover arrangements;
(b)notification that they are running late for changeover;
(c)advising of emergencies, medical appointments, medical concerns and medical treatment for their children or any of them;
(d)communicating in general about the health and wellbeing of their children;
(e)change of address or contact telephone numbers for the parties and/or their children or any of them.
25.Each parent shall be permitted to:
(a)communicate with each of the children’s schools;
(b)at their own expense, receive all documents and information parents are ordinarily entitled to receive including but not limited to school newsletters school photo order forms and school reports; and
(c)attend at school functions and events that parents are ordinarily permitted to attend, including but not limited to parent teacher interviews and school concerts/performances.
26.Each parent is permitted to communicate with the children’s treating medical and health care professionals, including specialists at their own expense.
27.The parties by way of injunction be restrained from:
(a)denigrating the other party or the other party's family to their children or any other person in the presence of their children;
(b)involving their children in or revealing the content of adult conversations, including any discussions between the parents using the parenting app Divvito.
Independent Children’s Lawyer
28.The ICL shall explain the operation and effect of these orders of the Court to the children X and Y.
29.The ICL shall be discharged once he has complied with Orders 14, 16, 21 and 28 of these orders.
AND THE COURT NOTES THAT:
A.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TABLE OF CONTENTS
Introduction
Background
Final Hearing
Material Relied Upon
The Parties’ ProposalsFather
Independent Children’s LawyerMother
Family Therapy Issue
Issues in DisputeEvidence
The Father
The Mother
Family Experts
Statutory Framework
Section 60CC(2) the Primary Considerations
Section 60CC(3) the Additional Considerations
Parental Responsibility
Conclusions – Best Interests of the ChildrenY
Graduation of Spend Time
X
Family TherapyOther
JUDGE FORBES
INTRODUCTION
In this matter the Court must decide the parenting arrangements for two children of the parties’ marriage, X (born in 2009) and Y (born in 2011). X currently lives with the mother and Y with the father.
There are two other male children of the marriage, Mr D who is 19 years old and E who will turn 18 in 2023. Pursuant to final orders made on 30 August 2022 the father has sole parental responsibility for E. These two older brothers currently live with the father.
X currently spends overnight time with the father each alternate weekend, each alternate Wednesday overnight and half school holidays. However, for reasons which will be explained later in this judgment and despite Court orders, Y has refused to spend time with the mother since January 2021.
The principal issues in this case concern the spend time and living arrangements for each of X and Y. The issue which looms largest is whether Y should be required to live or spend time with the mother in circumstances where the relationship between them has been fractured. The parties do not contest that a relationship between Y and her mother is important, but they have very different views about what that might look like, how it can be achieved, how it should be supported, where Y should live and how time should be spent with the non-residential parent.
BACKGROUND
Regrettably, this matter portrays a long and sad history of family conflict. It is not possible in this judgment to traverse every point of disagreement between the parties and there is little point in doing so given the most pressing issues which need to be determined. Similarly, it is not possible to survey every Court event attended by the parties or to record the countless number of orders which had been made in different jurisdictions, including in this Court, in an effort to address family dysfunction. Suffice to say, the conflict between the parties resembles trench warfare with each seeking to wear the other down by attrition using litigation as the weapon. The legal costs incurred by each party reflect the parents’ incapacity to communicate other than through Court orders and solicitor’s letters.
Volumes of material have been filed in these proceedings vainly in the hope of scoring points against the opposing party. The fact that much of it was not put in cross examination or raised in submissions by counsel, is indicative of the way in which this battle has been fought. The key issues have been obscured by a lot of collateral and unhelpful allegations and material.
Nevertheless, based on the outlines of case filed by each of the parties and having heard the evidence, the following matters appear to be common ground unless otherwise stated.
The applicant father, Mr Petrallis, is 56 years of age and at the time of trial was working part‑time at K Company for about 12 hours per week. He is in good health.
The respondent mother, Ms Hanford, is currently 46 years of age and works as an educator. She is also in good health save for some mental health issues.
The mother contends that the parties commenced a relationship in 2000 after they met when both working at L Company. She says they began living together in 2002. The father's outline of case contends that the parties commenced cohabitation in 1999, however nothing relevantly turns on this ambiguity.
In 2003 the parties first child, Mr D, was born.
In 2005 the parties married.
In 2005 another son, E was born. Another son, X, was born in 2009.
Two years later, in 2011, the parties' daughter, Y, was born.
In 2012 X was diagnosed with a medical condition. Fortunately, the condition later fell into remission and after three years of treatment X had substantially recovered by 2015.
The wife alleges various incidents of family violence from about 2002. These are denied and to the extent relevant they are discussed later in these reasons. The husband also alleges harmful conduct on the part of the wife including excessive drinking, intoxication and aggressive handling and abuse of the children. These allegations are also contested and discussed later.
In 2017, Mr D reported his mother's behaviour including alleged choking incidents. The report was the subject of a Department of Health and Human Services (DHHS) investigation and recommendations which led the wife to engage in parenting courses.
In or about mid-January 2018, the parties separated, allegedly after an incident of family violence perpetrated by the husband. The parties continued to live in the family home and the wife alleges a series of family violence incidents over the following few months.
In June 2018, the wife made a complaint to Victoria Police which resulted in an Application and Summons for an Intervention Order being taken out.
In June 2018, a full no-contact interim Intervention Order was made in the husband's absence in favour of the wife and the children. The husband then left the family home and moved in with the paternal grandfather Mr M.
A few weeks later, in July 2018, there was a family violence incident perpetrated by the second eldest son, E. The wife called police and E was arrested. E was removed from the family home and voluntarily placed in the care of the maternal aunt, Ms N.
The husband commenced proceedings in this Court on 30 July 2018, seeking parenting and property orders.
In August 2018, the maternal aunt contacted the Department of Families, Fairness and Housing (the Department) to express concern about E’s escalating aggressive behaviour. As a result, the Department issued a Protection Application in the Children's Court of Victoria, following which an Interim Accommodation Order was made placing E in out-of-home foster care.
In or around mid-September 2018, the Children's Court made an order placing E in the care of his paternal grandfather, Mr M, with whom the applicant father was then living.
On 4 October 2018, this Court made interim orders directing that Mr D, X and Y live with the mother and spend time with the father as facilitated by the Department. The father was also ordered to attend and complete a post-separation parenting program and anger management program. Orders were also made for the mother to have sole use and occupancy of the family home and to pay all mortgage repayments and other outgoings.
On 17 October 2018, the father breached the Interim Intervention Order made in June 2018 and he was subsequently charged. The breach involved the father parking next to the school grounds to collect the two oldest children, Mr D and E, in contravention of a 200m exclusion order. The father later described this as a “technical breach”.
On 29 November 2018, an interim order was made for Mr D, X and Y to spend supervised weekly time with the father at a contact centre. An Independent Children's Lawyer (ICL) was also appointed.
On 20 December 2018, the father received a diversion order for contravening the Interim Intervention Order.
On 5 March 2019, the Court made further interim parenting orders including that the father and mother attend a Child Inclusive Conference pursuant to section 11F of the Family Law Act 1975 (Cth) (the Act). The interim orders also provided for the father to spend supervised time with Mr D, X and Y.
On 8 April 2019, the father consented on a “no admissions” basis to a Final Intervention Order with full no-contact conditions. The orders were made in favour of the wife as the affected party. A less restrictive order was made in favour of the children.
Later that day, Mr D telephoned his father regarding the mother's behaviour. Mr D then left the home and was collected by his father, with whom he has continued to live. The father took Mr D to the local police station, apparently at Mr D’s request, to report the mother’s conduct.
On 11 April 2019 the mother made an application to the Court for a Recovery Order in relation to Mr D.
On 17 April 2019, following the section 11F Child Inclusive Conference, interim orders were made for Mr D to live with the father. The Court also ordered, inter alia, X and Y to live with the mother and for Mr D to spend time with his mother in accordance with his wishes. Numerous other orders are made dealing with counselling, attendance at post separation parenting and behavioural change courses and arrangements around the attendance of Mr D and E when the father spends time with X and Y.
In May 2019, Victoria Police applied for an Interim Intervention Order against the mother, naming Mr D as the affected family member. On 13 June 2019, the mother applied for a rehearing of the Intervention Order application which is not opposed by Victoria police. The application was subsequently withdrawn by the police on 4 July 2019.
There were yet further Court events on 16 July 2019 and 22 August 2019. At the latter hearing orders were made regarding unsupervised spend time arrangements between X and Y and their father and for the parents and all children to engage in family therapy with Dr O.
On 17 and 18 December 2019, the parties engaged in reportable family therapy with Dr O. On 18 December 2019, Dr O provided a report and recommendations to the parties’ legal representatives. The following day the parties agreed to make changes to the spend time arrangements. The reportable family therapy was planned to continue into the New Year.
The respondent wife alleges that over the 2019/2020 Christmas/New Year period, she received numerous reports from X and Y that they had spent time at the father's house in the presence of E and Mr D (unsupervised) in contravention of the Court’s interim orders and the parties agreement.
On 21 February 2020, interim orders were made for X and Y to spend overnight time with the father and for the mother to attend upon a psychotherapist.
On 3 April 2020, the full no-contact interim Intervention Order against the father was extended for a further year, despite the father's opposition.
A few months later, on 13 August 2020, further interim orders were made for X and Y to spend half school holidays with the father. Other orders were made regarding property matters which are not relevant to the current proceeding.
On 12 October 2020, the father collected Y from the family home after she alleged an incident of family violence perpetrated by the mother. Mr Petrallis alleges that he was contacted by a distressed Y, who claimed to have been forcefully “bear hugged” by the mother and dragged outside to her car.
On 15 October 2020, Mr Petrallis filed an application for an Intervention Order on behalf of Y, naming the mother as the respondent. An interim Intervention Order was made including a section 68R order which suspended extant family law orders in relation to Y.
On 27 November 2020, the father filed an application in this Court seeking to vary parenting orders, including seeking an order that X live with the mother and for Y, E and Mr D to live with him. That application was heard on 3 December 2020 by Deputy Chief Judge Mercuri and an interim order was made on 4 December 2020 for Y to live with the father and spend 4 hours a fortnight with the mother.
On 16 December 2020 and 27 January 2021, Y spent time with her mother in accordance with the interim orders made by DCJ Mercuri on 4 December 2020. Thereafter, Y has not spent time with the mother. The mother alleges this break down in Court ordered arrangements occurred in circumstances where the father did not make Y available to spend time with her.
From late January and into early February 2021, issues emerged regarding the ongoing family therapy. The evidence around these issues is vague and contested. The mother alleges that the father made direct contact with Dr O and gave directions prohibiting contact between the mother and Mr D, E and Y – effectively sabotaging the process. The father denies this. In any event, the end result was that Dr O cancelled future interviews and she advised the parties that she was not in a position to provide an assessment for the family that was “impartial and not contaminated”.
On 26 April 2021, the mother filed a Contravention Application in relation to four occasions on which she alleged that the father had not made Y available to spend time with her. The Contravention Application was subsequently adjourned for directions on 9 September 2021.
On 28 April 2021, the Court made further interim orders, including that the parties have a family report prepared by Ms F.
In June 2021, a contested hearing commenced in the Magistrates Court in relation to the father’s application for an Intervention Order against the mother to protect the youngest child, Y. That hearing continued in July 2021 and after the conclusion of evidence, His Honour made orders:
(a)extending the wife's final Intervention Order against the husband for a further 5 years, until 2026; and
(b)dismissing the application for an Intervention Order against the mother in relation to Y.
Subsequently, in August 2021, the husband filed a notice of appeal in relation to the extended final Intervention Order to which he was subject.
On 12 July 2021, the mother and X attended on Ms F for the preparation of her family report. On 30 July 2021, the father, Mr D, E and Y attend upon the report writer and the mother attended with X for a session with all children.
On 27 July 2021, interim orders were made for the parties to undergo a CDT (Carbohydrate Deficient Transferrin) test. Results subsequently returned no recent or ongoing excessive alcohol consumption by either party.
On 12 August 2021, the mother filed a further Contravention Application. The mother alleged that the father continuously refused or failed to make Y available to spend time with her in accordance with the December 2020 interim orders.
On 9 September 2021, the mother's representatives sought leave to withdraw and refiled the original Contravention Application as it was considered defective. Later that day, an Amended Application was filed.
On 16 September 2021, I made final property orders by consent and further interim parenting orders. I also ordered by consent that the mother's contravention applications be withdrawn and that Y and the mother attend upon one of three nominated family therapists. I ordered that the father ensure Y’s attendance at all agreed appointments and that he not be present during them. Further, I ordered that the spend time arrangements between the mother and Y be suspended and not resume until recommended by the therapist after at least two months of therapy.
On 22 October 2021, the mother attended an individual family therapist appointment with Ms G. She attended further similar appointments on 10 November 2021, 4 December 2021 and 29 January 2022.
In 2021, all orders in respect of Mr D were discharged following his 18th birthday.
On 1 February 2022, Y attended her first family therapy appointment with Ms G.
On 14 February 2022, at a directions hearing, the father sought an order that X live in a shared care arrangement between the parents. No formal application had been filed, the mother opposed it and I did not grant the order.
The mother alleges that she was subsequently informed by her husband that X wanted to stay with him on Wednesday evenings each fortnight. She alleges that she was told by X that that was what he intended to do going forward – and it is pretty much what then happened.
On 9 March 2022, Y attended her second and final family therapy appointment with Ms G. Ms G gave evidence about this and the earlier appointment with Y, which I discuss later.
On 12 April 2022, the mother attended an individual family therapy appointment with Ms G and was told that joint therapy with Y could not commence unless Y attended at least three appointments - which she had not done and was refusing to do.
On 3 June 2022, the father abandoned his appeal against the Intervention Order made against him by the mother. The father says that he abandoned the appeal due to the ongoing cost of proceedings in multiple jurisdictions. In any event, by abandoning the appeal, the Intervention Order made against the father on 7 July 2021 remains in force until 7 July 2026.
On 30 August 2022, the parties attended a Family Dispute Resolution conference before a Registrar. Final orders were made in respect of E, namely that he live with the father and for the father to have sole parental responsibility.
At the time of trial, which commenced in October 2022, Mr D, E and Y were residing with Mr Petrallis at the home of the paternal grandfather. X continues to live with the mother but spends each alternate weekend and each alternate Wednesday overnight and half school holidays with the father.
FINAL HEARING
This matter was heard over 3 days across 2 weeks commencing on 20 October 2022. Mr Wilson of Counsel appeared for the applicant father, Ms Juneja of counsel appeared for the respondent mother and Mr Lynch appeared as the Independent Children's Lawyer.
Material relied upon
As I previously mentioned mountains of documents have been filed in this court in relation to interim applications, contravention applications, applications in a case, enforcement applications, recovery applications, enforcement applications and more. The background described above gives but a small insight into the activity which has occupied these parties and engaged the courts, police, solicitors, external agencies and family practitioners for some years.
At trial, the applicant father relied upon the following documents:
(a)Outline of Case filed on 17 October 2022;
(b)Notice of Child Abuse, Family Violence or Risk filed on 3 December 2020;
(c)Affidavit of Family Consultant, Ms F filed on 12 August 2021;
(d)Amended Initiating Application filed on 20 August 2021; and
(e)Affidavits of the applicant father filed on 20 August 2021, 13 September 2021 and 7 October 2022.
The respondent mother relied upon the following documents filed in these proceedings:
(a)Outline of Case filed on 13 October 2022;
(b)Further Amended Response filed on 21 September 2022;
(c)Affidavit of Dr O dated 26 November 2019;
(d)Affidavit of Ms F filed 12 August 2021;
(e)Applications in a case filed on 24 July 2021 and 10 December 2021; and
(f)Affidavit of the respondent mother filed on 24 August 2021, 24 September 2021, 10 December 2021, 9 August 2022 and 21 September 2022.
The ICL also filed an outline of case and in addition to the reports prepared by Dr O and Ms F, the ICL sought to rely upon the following additional documents:
(a)Section 11F Report dated 18 April 2019;
(b)Section 67Z DHHS report dated 3 January 2021;
(c)Section 69ZW DFFH report dated 8 April 2021;
(d)Case Summary document filed by the ICL on 15 January 2022;
(e)Mother's undertaking dated 18 August 2022; and
(f)Counselling report of psychologist Ms G.
The parties' proposals
When the final trial commenced in late October 2022, Y had not lived with the mother for about two years and had not spent any time with her for over one and a half years. The relationship between the two was as poor as it possibly could be, but there was at least consensus at the bar table that it needed to be repaired in the best interests of the child. X was also subject to a sub-optimal spend time arrangement between the two partisan households.
It was common ground that the children should spend time with each of their parents. However, the trial commenced on the footing that there remained a substantial contest in relation to where Y should live, how much time she should spend with each parent and how any change to the current arrangements should be managed and supported. The arrangements for X were also contested, with the husband seeking a shared time arrangement against the mother's application for time with the father to be reduced.
As a consequence, cross-examination of the parents was focussed and confined to these important but complex outstanding issues. By the time of final addresses, after the powerful evidence and cross-examination of the family report writer Ms F and the psychologist Ms G, the distance between the parties' positions narrowed but remained some distance apart.
The parties advanced the following proposals.
Father
Save for some minor adjustments, the father maintained the same position throughout the proceeding.
In a proposed minute of orders handed to the Court at the time of final addresses[1], the father proposed that the parties should have equal shared parental responsibility for both X and Y.
[1] Exhibit A4
As for X, the father proposed that he should initially continue to live with the mother and spend time with the father from the conclusion of school on Friday to the commencement of school on Monday each alternate weekend. In each other alternate week, it was proposed that X should spend time with the father overnight on Wednesday, as is currently the case.
However, the father proposed that once he was able to facilitate X having his own bedroom, X should then live with the parties in a shared care arrangement on a week about basis. Under either arrangement, it was proposed that X's time over school holidays would be shared.
As for Y, the substantive orders sought by the father are that she live with him and that Y and the mother engage in reportable family therapy with a nominated family therapist (Ms P) for the purpose of assisting Y to re-engage with the mother, and with a view to Y eventually recommencing time with her and slowly graduating to a shared care arrangement, which would run in tandem with X’s time.
The father's proposed orders set out in some detail where, when and with whom the family therapy should occur and they specify his obligations to ensure Y's attendance and self-impose limitations on his involvement. The father's order envisages that the family therapy should focus on the mother and Y, but that other members of the family may be included, if the relevant therapist considers it appropriate.
The father proposes that initially the mother should only spend time with Y for dinner until 7.00pm after each family therapy session and then for Y to be returned to the father's home. He does not otherwise specify spend time arrangements with the mother, that being left to Y expressing her wishes and depending on the success of the ongoing family therapy. The father argues that any order for spend time made beyond that is destined to fail because no one can forecast what shape things will take once the therapy unfolds.
Independent Children's Lawyer
The ICL contends that X should live with his mother and, until the father is able to facilitate X having his own bedroom, he should spend time with the father in accordance with current arrangements (after-school Friday to the beginning of school Monday each alternate weekend and overnight Wednesday in each other week).
The ICL proposes that if the father is able to ensure X has his own bedroom, time with the father should increase to a 9/5 arrangement, being from after-school Friday until the commencement of school on the following Wednesday in each alternate week. The ICL opposes the father's proposal for X to move to an equal time arrangement.
The ICL agrees that Y should continue to live with the father, but proposes that she should spend time with the mother on a graduated increasing basis as recommended by the expert family consultant Ms F. To that end the ICL proposes as follows;
(a)each Wednesday from 4.00pm to 6.00pm;
(b)each Sunday from 10.00am to 2.00pm;
(c)each Sunday from 10.00am to 5.00pm;
(d)every second weekend from 10.00am Saturday until 5.00pm Sunday;
(e)every second weekend from after-school Friday until 6.00pm Sunday;
(f)every second weekend from after-school Friday until 5.00pm Wednesday;
(g)such time between the mother and Y to then be aligned with the time when X is also with the mother (ie a 9/5 fortnight).
The ICL also proposes that in order to ease the re-familiarisation between mother and daughter each of the initial day time periods (ie (a)-(c)) should occur in a public place such as a shopping centre or coffee shop. Once the time progresses to overnight time it will naturally involve the mother's residence.
The ICL proposes that the progression of time should be determined by the Court having regard to all the evidence in the case.
The ICL also advocates a detailed regime of complex reportable family therapy for all members of the Petrallis family, prior to which there should be a meeting of experts (ie. Ms F and Ms G) to determine the course of that therapy. The ICL notes that the older boys Mr D and E may be reluctant to participate, but argues that is not a reason to avoid the family therapy which was so strongly recommended by Ms F. The ICL also recommends that there be an order for the father to use his best endeavours to ensure that all orders, including the order requiring family therapy, are complied with.
Mother
Until final addresses, the mother pressed for orders which were starkly at odds with those sought by the father. It serves to be reminded of the mother's position throughout the trial which was reinforced in a proposed minute handed up on the morning of the third day[2].
[2] Exhibit R1
The mother contended that she should have sole parental responsibility for both X and Y.
The mother proposed that X should live with her and spend time with the father from the conclusion of school Friday until the commencement of school Monday each alternate weekend and from the conclusion of school until 7.30pm each Wednesday in the alternate weeks. That is, the mother's proposal departs from the father and the ICL in the sense that she does not agree to any mid-week overnight time for X. The mother agrees that school holidays should be shared and she proposes a detailed schedule for special days and celebrations noting that Orthodox Easter and holy Easter do not coincide.
The mother also proposed that X should be permitted to attend upon a psychologist or any other mental health care professional as recommended by his general practitioner and that she and X be permitted to attend family counselling without objection from the father.
As far as Y is concerned, the mother proposed that she should live with her and that time with the father should be carefully controlled. The mother contends that for the first six months after Y returns to her, Y should only spend supervised time with her father in a contact centre once per week. Then for no less than the next three months, for two hours each alternate Saturday with such time with the father to be spent in public.
In addition to the above, the mother proposed that telephone or video call time between Y and the father be limited to 30 minutes each Thursday with such calls to be on speakerphone to enable the mother to monitor their discussion. The mother also seeks injunctions restraining the father from taking Y to his home or any other private residence and restraining the father from having any other person present for at least the first four weeks and, thereafter, only with the other children of the family. It is proposed that these injunctions would then be relaxed somewhat in the next three months (ie nine months after spend time commences) when the father and Y would be permitted to spend time each alternate Saturday for eight hours between 9.00am and 5.00pm.
Finally, after 12 months, the mother proposed that the father spend time with Y from 9.00am Saturday until 5.00pm Sunday then, after 15 months, from the conclusion of school Friday until the commencement school Monday then, after 18 months, to the same spend time schedule as the mother proposes for X.
The mother also proposed a comprehensive series of orders directed at permitting Y to attend upon a psychologist or other mental health care professional as recommended by her general practitioner and orders permitting Y to attend family counselling with the mother.
The mother's proposal runs to more than 50 orders which deal with a myriad of issues including restraints, participation by the father in parenting and behavioural change programs, interstate and intrastate travel, schooling, education and extracurricular activities, changeovers and methods of communication between parents. They are highly prescriptive.
In her final address, on the afternoon of the third day, counsel for the mother signalled a significant shift in her client’s position and indicated general agreement with the proposal of the ICL but with the following alterations:
(a)that X should not be permitted to move to a 9/5 spend time arrangement with the father until he has his own bedroom at the father's residence, meaning a separate single occupancy room, not some ad hoc room division;
(b)in terms of school holidays and long summer holidays (as proposed in ICL orders 6(a)(i)-(ii)) the mother seeks the first half of term holidays in even numbered years and the second half in odd numbered years;
(c)that the first period of spend time between Y and the mother be extended from Wednesday 4.00pm to 6.00pm (as proposed by the ICL) to conclude at 7.00pm to enable them to have dinner on the weeknight; and
(d)holiday time should be in accordance with paragraph 5 of the mother's proposal, which involves a shared arrangement for Christmas, Easter and Orthodox Easter.
The mother indicated her agreement with the graduated time proposal put forward by the ICL and suggested that there should be three weeks between steps, although she accepted that might depend on when the parties can commence the necessary family therapy. Ultimately the mother said the graduation of time was a matter best left to the Court.
After the hearing, the mother's counsel forwarded an amended minute to the Court which accorded with her final address, but which also retained many of the detailed orders proposed in her earlier minute (which were not the subject of any final submission).
Family therapy issue
At the conclusion of the hearing on 28 October 2022, I made orders providing for the parties to file and serve any submissions addressing the suitability and availability of senior practitioners to undertake complex family therapy. This arose in circumstances where it was unclear whether the sort of family therapy envisaged by the ICL was available in a timeframe necessary to make orders work. There was also significant disagreement between the parties as to who was suitable to perform such therapy and who should bear the cost of same. Each of the parties filed a short written submission to address these issues, the substance of which I have considered and factored into my determination.
Issues in dispute
As mentioned above, despite the parties being poles apart at the commencement of the last hearing day, just as they have been for years since separation, the distance between them significantly narrowed when final addresses were delivered. There seemed to be a moment of lucidity following the profoundly insightful evidence of the family consultant Ms F, who forensically laid bare the entrails of this tragic family situation. Her evidence gave a collective pause for thought.
As a result of the narrowed positions, it appears that the remaining issues in dispute are as follows:
(a)whether there should be equal shared parental responsibility for the children Y and X;
(b)whether the presumption has been rebutted and the mother should have sole parental responsibility for one or other or both the said children;
(c)whether X should continue to live with the mother and spend time with the father and, if so, on what basis;
(d)whether X should be permitted to live with the parents on a shared week about arrangement;
(e)whether the Court should prescribe a spend time arrangement between Y and her mother, or leave spend time to Y's wishes;
(f)whether Y should engage in further family therapy with the mother; and
(g)what, if any, other orders should be made to support or facilitate the re-establishment of a relationship between Y and her mother.
Evidence
The applicant father, the respondent mother and the two experts Ms G and Ms F, gave evidence. Each of them swore to the truth of their filed affidavits or reports and adopted them as their evidence in chief. They were each cross-examined.
In the course of these reasons I will refer to the evidence of the parties as necessary to resolve relevant contested issues. If I do not refer to an item of evidence or an event it should not be inferred that I have not had regard to it. The Court is not required to refer to every piece of evidence relied upon by the parties, traverse every argument that was advanced or make findings in relation to all of the facts that are put in issue by them. Suffice to say, I have read all of the documents relied upon and taken all of the evidence and submissions into account. Findings are made on the balance of probabilities and have regard to the nature of the subject matter of the proceedings and the gravity of the matters alleged[3].
[3] Evidence Act 1995 (Cth) s 140
The Father
Mr Petrallis gave evidence and adopted his affidavits sworn on 20 August 2021, 13 September 2021 and 7 October 2022 as his evidence in chief.
In his affidavits, the father deposes to circumstances within the marriage from about 2012 when X was diagnosed with a medical condition, an event which seems to have represented a turning point in what was otherwise an unremarkable marriage. The father describes the impact of X’s diagnosis including that the mother ceased work, he reduced his hours of employment and that they both encountered stress as they watched their son endure the illness and treatment.
The father asserts that from about 2016 the wife became louder, more strict and aggressive toward the family. He says that she increased her consumption of alcohol and often drank to excess, including in front of the children. On one occasion the father alleges the mother was so intoxicated at a family event that she injured herself and was taken to hospital.
The father also says that his wife became more physical towards Mr D and E, including choking them at times and aggressively restraining E. In relation to the choking allegation, the husband says this conduct was reported to Mr D's school in 2017 which then prompted an investigation by DHHS and a requirement for the wife see a psychologist and complete parenting courses.
The father deposes that post-separation and while they lived separately under the one roof, the wife became despondent and abdicated household duties and care for the children to him. He alleges that in June 2018, the mother also made false allegations in a complaint to Victoria Police which resulted in an intervention order being taken out against him, which excluded him from the home and from being in contact with the mother and children.
Mr Petrallis also describes the involvement of DHHS in the family's affairs, including an altercation between 13 year old E and the mother and maternal grandmother which resulted in E being arrested and taken to the police station. The father learnt about this incident from DHHS and was informed that E was to go into foster care. The father explains that E later came into his care after a series of Children's Court proceedings and despite the mother's preference for E to continue in foster care.
The father also deposes to the circumstances which unfolded after Family Court proceedings were commenced, including the appointment of an ICL and orders for interim supervised spend time arrangements with the children Mr D, X and Y. He claims the mother deliberately made it difficult for the spend time arrangements to get off the ground.
The father’s evidence describes the circumstances which resulted in Mr D coming to live with him. He says this occurred on 8 April 2019 which was the day on which he consented on a without admissions basis to a final Intervention Order in favour of the wife and a limited conditions order in favour of the children. The father says late that day he was contacted by Mr D who said that he had been yelled at by the mother for making contact with him. The father deposes that Mr D asked to go to the police station, where he made a statement, and that Mr D pleaded to stay with the father. Mr Petrallis claims that Mr D had been upset with his living arrangements since separation and that he had been on the receiving end of abusive and controlling behaviour from the mother.
The father also describes the circumstances which resulted in Y coming to live with him. The father deposes to an incident on 12 October 2020 where 9 year old Y reported to him that the mother had forcefully “bear hugged” her and dragged her outside the home to get into the car. According to the father, Y told him that she could not breathe when being squeezed by the mother and that the restraint was only released when a pedestrian walked by.
Mr Petrallis deposed that he had received months of messages from Y in the lead up to that event and decided that the time had come to inform the police. Initially, after consulting with DHHS the police informed Mr Petrallis that it was safe for Y to remain with the mother. Nonetheless, 3 days later, the father went to the Suburb Q Magistrates Court and made an application for an Intervention Order to protect Y. From that time on Y has remained in the father's care.
The father deposes that since coming to live with him, Y has prospered, she is loved by Mr D and E and she enjoys time with X when he visits. Mr Petrallis says that he has encouraged Y to see the mother but she does not wish to because she is afraid of the mother's behaviour. He says that Y is regularly in a highly distressed state and that she has begged him to collect her from school early so as not to see the mother at changeover for X.
Mr Petrallis deposes that X complains to him about the mother’s care and that he has reported drunkenness, outbursts and physical abuse. In his reply affidavit, the father says that X has been having issues at school, especially with attendance while in the mother's care. For example, in the first three terms of 2022, X missed 35 full days of school, nearly half of which involved truancy. The father believes that X wants a shared care arrangement and believes it is in his best interests for that to occur.
The father was extensively cross-examined by counsel for the mother and the ICL. He struck me as being impatient, frustrated and drained by the Court process and ‘over it’. He struck me as being dogmatic in his opinions and not willing to actively engage with alternative points of view or parenting options. He made few concessions. Overall I did not find him to be an attentive or reflective witness.
Cross-examination confirmed that Mr D had not spent time with the mother since September 2018 and E had not spent time with the mother since April 2019. Y has been living with the father since October 2020 and has not spent time with the mother since 27 January 2021.
The father vehemently denies all allegations of family violence. Mr Petrallis maintained that the allegations which formed the basis for the IVO taken out by the mother were false or fabricated. He denied her allegations of animal cruelty, financial control, smashing items and undermining the mother. The father did however admit to a “technical” breach of the intervention order in 2018 for which he was given a diversion order.
It was put to the father that DHHS had expressed concerns regarding his fathering of children[4]. Mr Petrallis denied pretty much everything that was reported to the DHHS.
[4] Respondent’s Tender Bundle 577-590
During cross-examination, Mr Petrallis tried to convey that he was a cooperative and caring parent, but his evidence portrayed someone who was quick to adopt a ‘my way or the highway’ approach to problem solving. His evidence also left me with the sense that he had limited insight into the children’s emotional, psychological and educational needs.
For example, Mr Petrallis was very vague about his involvement in support for E, including during his period of foster care. He mentioned that there was some involvement of a school psychologist and also a psychologist organised via the Court, but he could recall little detail about any of that.
The father went to police after an alleged altercation between Mr D and the mother. He said it was entirely Mr D's wish to engage the police but I was not persuaded by that evidence. Engaging with the police struck me as an odd first response to a parenting issue. Even if it was Mr D's wish to go to the police, it was surprising that Mr Petrallis simply deferred to his wishes.
The father also sought an intervention order against the mother on behalf of Y. He said he had no choice but to call the police about the incident rather than contacting the mother. He explained this by saying he is scared of the mother. This evidence again raised in my mind whether resorting to the justice system was an appropriate and proportionate response to this parenting issue. In all the circumstances of this case, I was left with the feeling that the IVO sought against the mother might at least in part have been a ‘tit for tat’ response by the father for being the subject of an IVO himself.
In my view the evidence points to a father who too readily defers to the wishes of his children. Under cross-examination Mr Petrallis remarked "I just want the children to be happy" and threw his arms in the air. The father in my view simply chooses the path of least resistance.
I was also concerned by the father's cavalier attitude to Court orders. He is overly deferential to the wishes of the children and lets them decide what is best for them (eg letting X stay over on Wednesday nights despite that being against Court orders).
The father was questioned about his response to E being suspended for threatening a kid at school over a gender issue. Rather than chastise or correct E about his inappropriate conduct and offensive views, the father told E not go around saying these things and that he should “keep them to himself”.
The evidence also reveals that Mr Petrallis has does little of substance to help the children maintain any kind of relationship with the mother. The evidence revealed that efforts to re‑establish family unity through therapy have run aground.
I am satisfied that the conduct of the father at least hastened the end of the family therapy with Dr O. I infer from the communications between Dr O and Mr Petrallis that he was not happy with her approach or her recommendations. While the father forcefully maintained that Dr O terminated the therapeutic relationship, the fact is this occurred only after the Mr Petrallis told Dr O that she was not to let the mother see the boys or Y. The father said it was the children's wish to end the therapy, but my impression was that it was the father who was dictating terms.
The father gave evidence that he has encouraged Y to see the mother and that he has tried to re-establish a relationship between them. He denies undermining mother or denigrating her character or her parenting. He denies telling the children that the separation was the mother's fault. I am not persuaded by that evidence.
When Ms G’s family therapy came to an end after just two sessions with Y, the father took no decisive action. He said he was told by Y that it had been called off. He did not follow up or reach out to find out why. I did not consider Mr Petrallis’ answers to cross-examination about this issue to be satisfactory and I am not at all convinced that he did anything to actively promote Y being involved with the therapy or getting her involved with the mother.
Under cross-examination from the ICL, the father agreed that Y is a bit young to make decisions about whether she sees her mum. However, when he was asked: “Do you agree that if [Y] remains living with you that there is no possibility of [Y] and mother re-establishing a relationship?”. His answer was: “I don't know. I don't know how to answer that question.” It was a completely detached response which demonstrated no effort to engage with the most critical question in these proceedings.
Having heard Mr Petrallis’ evidence, I am not confident that he will engage in or encourage family therapy without prescriptive Court orders. The father said he is not prepared to pay for any further therapy. He said “we have been in therapy after therapy after therapy and we have all had enough”. My sense is that he does not agree with the objective of it and regards it as a waste of time for all concerned.
When asked by ICL whether he was seeking equal shared parental responsibility for Y and X, he was not even sure what the expression meant. He said he was not aware of what was being sought by his lawyers.
In my view, the father’s evidence demonstrated little insight into his own behaviour or its effect on his parenting. Mr Petrallis was very vague when asked about his involvement in a post‑parenting course. When asked what he had learnt he struggled to identify anything of substance.
He described his attendance at a men’s behavioural change program as “bizarre” because he had not caused any violence. He told the ICL that he didn't need the course because he hadn't done anything wrong. He said he only did it because he had to.
The father blames the Court system for running him dry. Mr Petrallis said he is not prepared to agree to another post separation parenting course. Nor is he prepared to agree to mediation. He sees it all as a waste of time with no prospect of success
The Mother
The mother relied on four affidavits sworn on 24 July 2021, 9 August 2021, 10 December 2021 and 21 September 2022. She adopted those affidavits as her evidence in chief.
In her affidavit material, the mother deposes to numerous incidents of alleged family violence during the relationship with Mr Petrallis. Those incidents include allegations of aggression and yelling, emotional and psychological abuse, financial abuse, threatening and intimidating behaviour, coercive and controlling behaviour and physical abuse. The mother also claims that the abuse continued after the parties separated and has taken the form of threats, intimidation and coercive and controlling behaviour.
In her affidavit the mother describes the circumstances of how she obtained an Intervention Order in 2018, how the Intervention Order was finalised in April 2019 and then extended in 2021 for a further period of 5 years. The mother also explains the father's proven breach of the Intervention Order in October 2018 which resulted in him being charged and receiving a Diversion. She also alleges numerous other breaches of the Intervention Order which she says were reported to Victoria Police but never actioned.
The mother described a home environment in which the children were subject to very different parenting styles. She deposes that the children were often very difficult to manage and were aggressive with each other as they fought over electronic devices and other things. The mother says that the children were oppositional to her and to her parenting and that this behaviour was enabled by the father who refused to support her parenting initiatives and simply let the children have their way.
The mother gives evidence that she tried to put in place routines for the children and struggled to get them to do homework or assist around the house. She deposes that she undertook a number of parenting courses between 2017 and 2019, spanning both sides of the separation, to assist in this difficult task. The mother says that she was not able to implement the skills learned through these courses because her efforts were consistently undermined by her husband.
The mother says that from about June 2019, Y and X, both of whom were living with her at the time, became more oppositional and regularly threatened to move to the father's home. She claims that those children channelled the father's view that she was responsible for the breakup of the marriage and the family. The mother says that the children became increasingly disrespectful.
The mother's extensive affidavit material also surveys the involvement of DHHS in family matters, including specifically in relation to E. She addresses the allegations that she tried to choke Mr D in 2019, an allegation which led to a police report and an application for an Intervention Order for his protection. She vehemently denies the allegation and notes that the Victoria Police withdrew their IVO application in July 2019.
The mother gave evidence that Y displayed a number of behavioural issues which escalated during the COVID-19 lockdowns. She says that Y would often get upset and angry with her, would abuse her and refused to participate in online learning.
The mother says that post-separation, Y was reluctant to see her father and would often make excuses to avoid doing so. However, the mother says she persisted in encouraging Y to see Mr Petrallis, particularly when X was spending time with him. She says that the involvement of the psychologist Dr O and other support services helped to get Y to a point where she looked forward to spending time with her father.
The mother confirmed that the change in Y's living arrangements occurred in October 2020 after an Intervention Order application was filed by the father on behalf of Y. The mother denies the circumstances of the underlying incident as described in the father's affidavit. She says that Y became aggressive and abusive after she restricted Y’s use of an iPad, and that this occurred during a period where both Y and X were not engaging in home learning. Concurrently, the mother describes Y's deteriorating mental health caused by her being isolated from friends and family during lockdown. The mother says she endeavoured to get some mental health support for Y at the time. The mother says that all of these issues culminated in Y wanting to live with the father because she believed he would not force her to return to face‑to-face learning.
There is no prospect of the relationship between the mother and Y being restored without extensive therapeutic support to help break the ice and thaw their impasse. I accept that ordering time spent without parallel family therapy runs a high risk of failure.
However, I am not satisfied that weeks or months of complex family therapy should be a necessary prerequisite for commencement of time between Y and her mother. As has been proven in the past, where family therapy has been a pre-condition for time spent, it is too easy for that precondition to be frustrated or sabotaged.
I am not confident that the father will facilitate Y spending time with her mother, even for short periods, unless ordered by this Court to do so. Nor am I confident that the father will take steps to encourage Y to participate in family therapy unless directed by this Court to do so. I propose to make orders to ensure both those things happen.
I am not enamoured to the father's proposal that Y’s time spent with the mother should occur immediately after a family therapy session. Based on the evidence of the family report writer, family therapy sessions, particularly involving this family, are intense, highly charged, emotional and raw experiences. As a matter of practical reality, there is a significant risk that participants in such therapy will not be in the best place to enjoy a coffee or share a meal immediately thereafter.
My view is that family therapy and time spent should operate independently, albeit in parallel. It may well be that as between themselves mother and daughter might decide to spend some time together on a day on which family therapy occurs, but I am not of a mind to mandate it.
Whilst there was a strong consensus between the parties for the need for family therapy, the nature of the therapy and the identity of the proposed practitioner could not be agreed for various reasons.
The therapy proposed by the ICL, in line with a strong recommendation of Ms F, was described as “complex family therapy” which would involve all members of the family. That proposal was adopted in principle by the mother in counsel's final address.
The father's proposal is somewhat more focused on therapy between Y and her mother; that being the relationship most in need of repair. The father contends that whilst there is a role for the involvement of himself and the male children, that is a matter best left to the therapist to determine. He also points out, as a practical matter, that the one older boys Mr D and E may refuse to attend and that an order for whole-of-family could break down if either one decides not to participate. This practical reality is something to which the Court must remain alive.
In my view, it is important that the therapy involve the mother, the father, Y and X unless otherwise directed by the therapist. Given their ages, I am not sure I can direct Mr D or E to participate although I can and will impose an obligation on the father to use his best endeavours to encourage them to do so. It is in my view incumbent on the father to do what he can to sell the benefits of involvement to the two older boys, noting that it will be in the best interests of X and Y and family harmony generally.
As to the location of therapy, the father notes that the mother lives in Suburb R and that he, Y and the brothers live in Suburb S. The father contends that attendance at therapy will cut into everybody's time and will involve driving for all parties. It is submitted that the CBD is an inappropriate destination for therapy and that a provider in the suburbs will reduce the level of inconvenience for all.
Having read the submissions of the parties filed after the hearing, I have determined that therapy should be conducted by a practitioner with whom the family has not previously engaged. I note the mother’s strong objection to the ICL’s recommendation that Ms G be re‑engaged and I accept that she is not an appropriate choice given the difficulties encountered on her previous attempt. I am mindful that in a low trust family dynamic, neutrality is particularly important.
A fresh start is required. Unfortunately, the inquiries made by the Independent children’s lawyer confirms that there is a very small pool of qualified family therapists who are prepared to do the sort of reportable work which the family needs. Of that pool, even fewer are available, so it is inevitable that compromises have to be made in terms of where the therapy is conducted and at what cost.
I have decided that the family therapy should be conducted by the first available of Ms B (as nominated by the ICL) or Ms C (as nominated by the mother), such availability to be determined by the ICL and advised to the parties. I have not ignored the father’s preferred choice, Ms P, but it appears she does not do family law work.
The nominated family therapist should be provided with a copy of my orders and reasons and the family report of Ms F filed in these proceedings. The ICL shall be at liberty to provide the therapist with copies of such other court documents as the therapist requests or the ICL considers relevant.
I agree with the recommendation of Ms F that there should be a conference of experts prior to the commencement of this important family therapy. Those experts ought to comprise Ms F, Ms G and the nominated family therapist. Given the crucial juncture at which these parties now find themselves, it may be appropriate for the ICL to investigate whether Victoria Legal Aid would be prepared to fund that conference. If not, the costs should be shared equally between the parties.
The father seeks an order that the mother pay the costs of the family therapy. This is sought on the basis that the father has expended nearly $220,000 in legal fees in this litigation whereas the mother has been supported by Legal Aid and spent around $3,850. The father contends that both parties currently work part-time in modest jobs and have similar incomes, although he points out that the mother retained the matrimonial home after property orders were made by consent and his weekly expenditure is higher. The father submits that he has been significant disadvantaged by the costs of the litigation and that it would be unduly burdensome for him to have to pay the costs of the family therapy.
I do not agree that the mother should bear the cost of the family therapy. I accept the cost of this litigation has been significant, but I do not believe that is a sufficient basis for the father to be relieved of the shared responsibility of this important therapy for his children. The complex family therapy proposed by the ICL on the recommendation of the family report writer is not solely aimed at reuniting Y and her mother. It is aimed at repairing a sub-optimal family dynamic and will require involvement of all members of the family - and hopefully all members of the family stand to benefit.
Furthermore, the proposal that the mother pay for the family therapy sends a message of culpability and suggests that she should pay to repair what she has broken. Moreover, the subtle message from the father's proposal is that the Court should ‘even the score’, at least financially, by requiring the mother to pay for this therapy.
In my opinion the parents should be equally committed to the family therapy both financially and practically. My strong view is that the best thing that can be done for children is for the parents to bury the hatchet and jointly contribute to what is best for them. I will order that the cost of family therapy be shared equally.
Other
I will order that the ICL explain the effect of these orders to the children before he is discharged.
I certify that the preceding three hundred and ten (310) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 16 August 2023
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