RAIMER & WALCUTT
[2020] FCCA 1686
•26 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAIMER & WALCUTT | [2020] FCCA 1686 |
| Catchwords: FAMILY LAW – Parenting – dispute over whether order for equal shared parental responsibility – live with orders for the children –– dispute over time spend orders for the children – evidence of private report writer – position of Independent Children’s Lawyer – final orders in children’s best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 61DA |
| Cases cited: Albert & Plowman [2020] FamCAFC 23 Hall & Hall (1979) FLC 90-173 Goode & Goode (2006) FLC 93-286 MMR & GR (2010) 240 CLR 461 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 Tait & Densmore [2007] FamCA 1383 Sigley & Evor [2011] FamCAFC 22 R&R: Children’s Wishes (2000) FLC 93-000 Vallans & Vallans [2019] FamCAFC 260 Heath & HemmingNo. 2 (2011) FamCA 749 In the Marriage of JD & BG (1994) 18 FLR 255 In the Marriage of Patsalou (1994) 18 FLR 426 Withers v Russell & Anor [2016] FamCA 793 |
| Applicant: | MR RAIMER |
| Respondent: | MS WALCUTT |
| File Number: | DGC 3420 of 2018 |
| Judgment of: | Judge O'Sullivan |
| Hearing dates: | 16 & 17 December 2019 & 26 February 2020 |
| Date of Last Submission: | 22 April 2020 |
| Delivered at: | Dandenong |
| Delivered on: | 26 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Howe |
| Solicitors for the Applicant: | MMH Lawyers |
| Counsel for the Respondent: | Mr O'Connell |
| Solicitors for the Respondent: | Victoria Legal Aid |
| Counsel for the Independent Children's Lawyer: | Mr Lynch |
| Solicitors for the Independent Children's Lawyer: | Peter Lynch Lawyer |
ORDERS
All previous parenting orders regarding the children, X born in 2004 (“X”) and Y born in 2006 (“Y”) (collectively, “the children”) be discharged.
The mother have sole parental responsibility for the children.
The children live with the mother.
X spend time with the father according to his wishes.
After the father completes 10 sessions of a Men's Behavioural Change Program (and provide proof of these sessions to the mother), the father and Y attend Family Therapy with Ms B (or other Family Therapist as agreed between the mother and father) at the father's expense.
Thereafter, Y communicate and spend time with the father according to her wishes.
If Y expresses a wish to spend time or communicate with the father, the mother will facilitate this time/communication as far as practicable.
For the purposes of Order 5 the father provide the manger or director of the Men’s Behavioural Change Program and the mother provide the Family Therapist with a copy of these orders and the reasons for judgment.
The mother shall:
(a)keep the father advised as soon as practicable of any serious illness or injury sustained by the children or either of them and details as to the treatment; and
(b)provide the father with copies of each of the children’s school reports as soon as practicable after receiving them from the relevant school.
That neither parent denigrate the other to or in the hearing of the children nor allow any other person to do so.
To the extent orders 4, 5, 6 or 7 are inconsistent with the intervention order made in the Victorian Magistrates Court on 15 October 2019 pursuant to the provisions of s.68P of the Family Law Act 1975 (Cth) those provisions of these orders should continue to operate.
Upon the Court noting that pursuant to Order 2 the mother has sole parental responsibility then for the purposes of the Australian Passports Act 2005 (Cth) the mother is authorised to obtain any passport or travel document required to facilitate the children travelling overseas without first notifying or obtaining the consent of the father.
The appointment of the Independent Children's Lawyer be discharged after meeting with the children to explain these orders.
Pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Raimer & Walcutt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 3420 of 2018
| MR RAIMER |
Applicant
And
| MS WALCUTT |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern a dispute over parenting orders as that term is defined in the Family Law Act 1975 (Cth) (“the Act”) for the children, X born in 2004 and Y born in 2006 (“the children”).
The applicant in these proceedings is Mr Raimer (“the father”). The respondent is Ms Walcutt (“the mother”).
The father went to school at C School and the mother at D School. During their relationship the parties both worked in paid employment and in their own businesses. The children attended E School. Prior to separation, the parties were living at a property in F Street, Suburb G. In 2018 their lives changed irreparably.
These proceedings have highlighted the conflict, unhappiness and mistrust between the parties but also that there is little obvious prospect of that changing. The children are caught in the middle.
The common thread amongst the parties is that their relationship is highly conflictual and the children not only know it, but have been and continue to be affected by it. Of real concern is that the parental relationship has descended to such a level of lack of communication and conflict that it has had an adverse effect upon the children.
Below it will be seen that the parties altered their positions by the conclusion of the trial. For the reasons set out below, the best interests of both children are such that the final orders proposed by the Independent Children’s Lawyer, except where indicated, should be made.
Background
The father is 49 years old says he is a tradesman and that he now lives in Suburb H. The mother is 46 years old works in the home and as a labourer, and still lives in Suburb G with the two children. The parties married in 1997 and separated in July 2018. At or around that time, there was an interim intervention order naming the mother and the children as affected family members and the father as the respondent. As a result of this the father vacated the home.
Over the course of the next two months, it appears that the father sent correspondence to the mother, through a solicitor, who held out that they represented the father, in an attempt to negotiate inter alia arrangements to see the children. In late 2018 and throughout 2019, the father was involved in proceedings in the Victorian Magistrates Court. The father was found to have breached a number of those orders; and on at least one occasion, pled guilty to same.
The father commenced proceedings in this Court for parenting and property orders, under the Act, by an initiating application which he filed himself on 9 October 2018. In November 2018, the father’s application in the Victorian Magistrates Court to vary the interim intervention order made in July 2018 was refused. The mother also filed her own response to the father’s application under the Act in this Court on 11 December 2018.
On 12 December 2018, when the proceedings first came before the Court both parties were unrepresented. The father said that he had not spent time with the children for many months. The Court made interim orders for, inter alia, the children to spend supervised time with the father, the parties to attend an s.11F conference, the appointment of an Independent Children’s Lawyer and adjourned the proceedings to 5 February 2019.
By the beginning of the next year, the supervised time between the children and the father had broken down. The father was involved in an incident with the daughter and the supervisor, Ms J (for which he was subsequently charged and then also pled guilty). The father subsequently filed a contravention application and an amended application.
On 5 February 2019, when the matter returned to Court, the mother was represented. The family consultant who conducted the s.11F conference gave evidence before the Court. The family consultant noted in her evidence that the parties agreed the children should live with the mother but were in dispute about whether the children should spend time with the father.
In her evidence the family consultant detailed the results of her interviews with the parties and the children, and recommended time with the father should be reserved pending the father completing an anger management or Men’s Behavioural Change Program, the children receiving therapeutical counselling and the completion of the police investigation into the incident referred to in paragraph [11] above.
Given that evidence, and having heard submissions from the parties (including the Independent Children’s Lawyer), the Court made further interim orders which included that the children spend no time with the father.
When the proceedings returned to Court on 1 April 2019, the father was still unrepresented. There were directions made for the mother and the father to file and serve material for the purposes of determining the father’s contravention application which had been listed on 14 June 2019. The father filed an application for an intervention order against the mother in May 2019. The mother then filed an amended response, under the Act, on 31 May 2019.
In early June, the father and the mother returned again to the Victorian Magistrates Court where inter alia the father pled guilty to a breach of the intervention order.
When the matter returned to this Court on 14 June 2019 for the father’s contravention application, having heard the evidence, in accordance with r.25B.04 of the Federal Circuit Court Rules 2001 (“the FCC Rules”), the Court dismissed all four counts in that application and made orders and directions for trial which was fixed for 16 December 2019.
On 6 September 2019, the Court made a declaration and orders pursuant to s.102NA of the Act, which was necessary given the provisions of the extant intervention orders. The parties were involved in a two day hearing before the Victorian Magistrates Court on 14 and 15 October 2019. A final (indefinite) intervention order was made against the father naming the mother and the children as affected family members. The father’s cross application against the mother was dismissed.
Solicitors filed a notice of address for service on behalf of the father in these proceedings for the first time in November 2019. The mother filed a second (and further) amended response on 22 November 2019. Three days later, on 25 November 2019, when both parties were represented, there were final property orders made by consent. The remaining dispute over parenting orders for the children remained fixed for trial on 16 December 2019.
At the trial the father was represented by Mr Howe of Counsel. The mother was represented by Mr O’Connell of Counsel and Mr Lynch, Solicitor, appeared as Independent Children’s Lawyer.
The trial started on 16 December 2019 and continued on 17 December 2019. The trial was then adjourned part heard to 26 February 2020 to conclude the evidence as the author of the private family report, engaged by the parties pursuant to r.15.09 of the FCC Rules, was unavailable due to an accident. The trial resumed on 26 February 2020 and at the conclusion of the evidence on that day, the proceedings were adjourned to 18 March 2020 for the parties to make final submissions.
However, due to the restrictions subsequently imposed on the operation of the Court due to the COVID-19 pandemic, that date was vacated and orders and directions were made for the parties to file and serve written submissions along with a minute of proposed final orders in light of the evidence. Those orders provided that the timeline for submissions would conclude at the end of April 2020, and at that time, judgment would be reserved.
Material relied on
At the start of the trial, Counsel for the father told the Court his client relied on the following:
a)the case outline filed 11 December 2019;
b)proposed final orders set out below; and
c)the affidavit of the father filed on 9 December 2019;
Before the father closed his case, and without objection, Counsel for the father sought, and was granted leave to, rely on the affidavit of Ms K (“the father’s mother”) filed 17 December 2019;
Counsel for the mother told the Court at the start of the trial his client relied on the following:
a)the case outline filed 13 December 2019;
b)affidavit of the mother filed 21 November 2019;
c)report of Dr L (“the Psychiatrist”) on the mother;
d)report of the Psychiatrist, on the father;
e)s.11F memorandum to Court dated 5 February 2019;
f)affidavit of the Ms J (“the Supervisor”) filed 20 November 2019;
g)proposed final orders set out below;
Whilst Counsel for the mother told the Court that his client relied on the Victoria Police records (produced under subpoena dated 8 March 2019) and audio recordings of intervention order proceedings in the Melbourne Magistrates’ Court on 14 and 15 October 2019 (produced under the subpoena dated 30 October 2019) none of that material was explicitly put to any witness during the trial.
The Independent Children’s Lawyer told the Court at the start of the trial that he relied on the following:
a)the case outline filed 13 December 2019;
b)affidavit of the Supervisor;
c)affidavit of Ms M (“the Psychologist”) filed 4 October 2019, including the annexed private family report dated 12 August 2019 (“the Report”);
d)s.11F memorandum to Court dated 5 February 2019;
e)report of the Psychiatrist on the mother;
f)report of the Psychiatrist on the father;
g)proposed final orders set out below;
Whilst the Independent Children’s Lawyer told the Court he relied on the subpoenaed material in respect of the parties/children and Department of Health and Human Services’ reports none of that material was explicitly put to any witness during the trial.
Position of the parties at start of trial
The father’s position
In his amended initiating application filed 9 December 2019 the final orders sought by the father were:
“1. That all previous parenting orders be discharged.
2. That the Mother and Father have equal shared parental responsibility for the children for the children of the relationship, X born in 2004 and Y born in 2006 (“the children”).
3.That the children reside with the mother.
4.That the child X spend time with the Father in accordance with his wishes.
5.That the child Y spend time with the father as follows:
(a) From the date of these Orders for 8 visits;
(i) From the completion of school (or 3:30 if a non-school day) to 7:30pm each Friday with such time to be supervised by the paternal grandmother, Ms K or the paternal aunt Ms N.
(b) Upon completion of 5(a) for a further 8 visits:
(i) From 12:00pm to 8:00pm each Sunday with such time to be unsupervised.
(c) Upon completion of 5(b) for a further 8 visits:
(i) From the completion of school (or 3:30 if a non-school day) each Friday to 8:00pm Saturday with such time to be unsupervised.
(d) Upon completion of 5(c), onwards:
(i) Each alternate weekend from the completion of school (or 3:30 if a non-school day) Friday to 8:00pm Sunday with such time to be unsupervised.
(e)For half of each school term holiday period for one week at times to be agreed between the parties or in the absence of agreement the father is to have the first half of the term holidays during even numbered years and the second half of the term holidays during odd numbered years.
(f)For the long summer holiday for one week at times to be agreed between the parties or in the absence of agreement the father is to have the first seven-day block of the long school holiday period commencing on the Monday following the last day of school.
(g)Such further and other times as agreed between the Mother and the Father in writing.
6.That the Father’s time in accordance with the Orders in paragraph 5 commence on 26 June 2020 subject to the Father Completing 10 sessions of the Men’s Behavioural and providing a letter confirming the sessions completed to the Mother’s solicitor.
7.That the parties complete a Parenting After Separation Course and each party provide certificate of completion to the other party’s solicitors by 30 June 2020.
8.That the Father and the Children attend upon a psychologist for the purpose of Family Therapy (jointly or separately at the advice of the psychologist) with the Mother to ensure the children’s attendance upon notification of the appointment times provided by the Father with at least 7 days’ notice in writing with the costs of same to be borne by the Father unless the Mother fails to ensure the children’s attendance.
Telephone Time
9.The children and the parents be permitted communicate with each other by telephone or other electronic means at all reasonable times with the contact to be directly between the child and the parent and the parents to do all things necessary to facilitate such communication.
Special Days
10.Notwithstanding anything stated in paragraph 5, the parents shall each spend time with the child Y on each of the following special days:
(a) For Christmas period covering the Christmas period;
(i) Commencing in 2020 and each alternate year thereafter the child spend time with the father from 11:00am on the 24th December until 6:00pm on 26th December with the respective holiday time continuing thereafter as per these orders.
(ii) Commencing in 2021 and each second year thereafter the mother spend time with the child from 11:00am on the 24th December until 6:00pm, on 26th December with the respective holiday time continuing thereafter as per these orders.
Changeover
11.That save for pick up and collections at the children’s school, all other changeovers take place at Region O Police Station, P Street, Suburb G.
Access to Information
12.That the Mother and Father are to communicate in relation to the child by SMS text message and email.
13. That the Mother and Father be at liberty to:
(a)Communicate with any school or education-related professional involved with the child;
(b)Receive school reports, newsletters, photograph forms or any other information usually provided to parents;
(c)Attend at the child’s school events such as parent-teacher interviews, graduations, concerts, sporting events and any other event that parents are usually invited to attend;
(d)Communicate with any medical or allied professionals providing treatment or care of the child.
AND IT IS NOTED that these orders may be produced as evidence of such authority and these orders.
14.That the Mother shall provide the Father with details of the child’s treating health professionals via email.
15.Each parent notify each other forthwith by email or SMS in the event that either of the children suffers any serious illness, accident or injury.
Restraints and Injunctions
16.That the parties and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent and/or their family to or in the presence or hearing of the child, and from permitting any other person to do so; and to discourage the child from using inappropriate language.
Travel
17.Each parent be at liberty to travel interstate or overseas with the child and/or children subject to:
(a)The parent proposing such travel providing the other parent with 8 weeks written notice of the proposed overseas travel.
(b)That the overseas travel must be to a country that is a signatory to the Hague Convention and a parent may deny any travel that is not to a Hague Convention Country.
(c)Notice less than 30 days prior to any overseas travel, the parent proposing travel provide a copy of the children’s tickets, and confirmation of the addresses where the children will be staying during the period of travel together with an email address and telephone number at which the travelling parent may be contacted by the other parent.
(d)Absent of written agreement, such travel not exceed a period of 1 weeks.
18.The parties authorise the solicitors of the mother to forward the passports of the children to the Father's solicitors (or, in the event that the Father’s solicitors are unwilling to do so, a third party nominated by the Father) to be held pursuant to these Orders and released to the parties in accordance with these Orders or by written consent of the parties. Should the Mother fail to deliver the passports within 14 days of these Orders, the Father be at liberty to apply for new passports and the costs be borne by the Mother.
19.In the event that the children travel overseas in accordance with these Orders then on the return of the children to the Commonwealth of Australia the passports of the children are forthwith returned to the husband's solicitors to hold in accordance with these Orders.
20.That the parties will do all acts and things necessary to apply for or new a passport for a child of the relationship and the costs associate with the passport application be paid for equally.
Omnibus
21.That the appointment of the independent child’s lawyer be discharged.
22.That the Mother pay the Father’s costs in relation to his application.
23.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.”
On 26 February 2020 before the conclusion of the evidence Counsel for the father tendered a further minute set of proposed final orders which were as follows:
“1.That the parents have equal shared parental responsibility for the children, X born in 2004 and Y, born in 2006.
2.That the children live with the Mother.
3.That the child, X spend time and communicate with the Father according to the child’s wishes.
4.That the child, Y spend time and communicate with the Father after the Father has completed 10 sessions of a men’s behaviour change course:
a)For a period on 2 months, every Wednesday, after school for 2 hours in the presence of the paternal grandmother or a professional supervisor;
b)Thereafter for a period of 2 months, every Wednesday from the conclusion of school until the commencement of school the following morning;
c)Thereafter for a period of 2 months every alternate weekend from the conclusion of school Friday until 6pm Sunday;
d)Thereafter every alternate weekend from the conclusion of school Friday until the commencement of school Monday or Tuesday if Monday is a non school day;
e)For half of every school holiday period as agreed but in default of agreement the first half in add numbered years;
f)From 4pm on 24/12/20 until 12pm on 25/12/20 and similarly every alternate year thereafter;
g)From 12pm on 25/12/21 until 4pm on 26/12/21 and similarly every alternate year thereafter;
h)For 2 hours from the conclusion of school on the child’s and Father’s birthdays if they fall on a school day or for 4 hours if on a non school day as agreed but in default of agreement from 10am until 2pm;
i)By telephone, Skype (or similar) and text message at all reasonable times;
5.That the Father’s time in 4(d) and 4(e) above be suspended:
a)For 4 hours on the child’s birthday as agreed but in default of agreement from 10am until 2pm;
b)For the Mother’s birthday;
c)From 12pm on 25/12/20 until 4pm on 26/12/20 and similarly every alternate year thereafter;
d)From 4pm on 24/12/21 until 12pm on 25/12/21 and similarly every alternate year thereafter;
e)Otherwise as agreed by the parents in writing including text message.
6.That all changeovers that do not occur at school shall occur at Suburb G Police Station.
7.That both parents forthwith enrol in and complete a parenting after separation course.
7A.That the Father and children engage in relationship counselling with Ms Q at the joint expense of the parents.
8.That the Mother authorise any school attended by the children to provide to the Father at his expense copies of all documents normally provided to parents and this order shall be deemed to constitute such authority.
9.That each parent notify the other as soon as practicable of any serious illness or serious injury affecting the children or either of them and provide the names and contact details of any treating practitioner to the other parent and authorise such practitioner to liaise with the other parent and this order shall be deemed to constitute such authority.
10.That both parents be permitted to attend school, extra curricular and sporting events to which parents are normally invited to attend.
11.That neither parent denigrate the other to or in the hearing of the children nor cause nor suffer any other person to do so.
12.Certify for advocacy.
13.Pursuant to s.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.
14.That the parents communicate with each other by means of an app such as My Family Wizard.”
The mother’s position
In her case outline filed 13 December 2019, the final orders sought by the mother were:
“1.The mother have sole parental responsibility of the children of the relationship, X (born in 2004) and Y (born in 2006).
2.The children live with the mother.
3.The children spend no time with the father.
4.That the Registrar or proper officer of the Federal Circuit Court sign on behalf of the father all necessary forms required for the issuing of a passport by the Department of Foreign Affairs for the children, X (born in 2004) and Y (born in 2006), AND that the children be permitted to travel outside of the Commonwealth of Australia notwithstanding that the consent of the father has not been obtained.
5.Such further or alternative order as this court deems appropriate.”
On 26 February 2020 and also before the close of the evidence Counsel for the mother tendered a further minute of proposed final orders which were as follows:
“1. All previous parenting orders be discharged.
2.The mother have sole parental responsibility for the children of the relationship, X (born in 2004) and Y (born in 2006).
3.The children live with the mother.
4.The child, X (born in 2004) spend time with the father in accordance with the child’s wishes.
5.The child, Y (born in 2006) spend time with the father as follows:
a.The father forthwith enrol in and complete a 20 week Men’s Behavioural Change Program, the father to provide a certificate of completion of such course to the Mother.
b.The Mother and the Father do all things and sign all documents necessary to enrol in a Children’s Contact Service as nominated by the Independent Children’s Lawyer for the purposes of the Father having supervised time with Y, for a period of six months at three weekly intervals, supervised at such Centre. Such time to commence only after the Father has completed the course referred to Order 5(a).
c.The mother be at liberty to obtain a report from the supervisory centre in relation to the time the father spends with the child.
d.The Father shall be responsible for any costs related to the supervision of time.
e.Following the father’s six months supervised time with Y, the parties do all acts and things necessary to attend a Family Dispute Resolutions Service for the purpose of reviewing these spend time orders.
6.The Mother, Father and their servants and/or agents be restrained by injunction from:
(a)Denigrating the other parent or parent’s family member in the presence or hearing on the children;
(b)Exposing the children to any family violence, including but not limited to parental conflict.
7.That the Registrar or proper officer of the Federal Circuit Court sign on behalf of the father all necessary forms required for the issuing of a passport by the Department of Foreign Affairs for the children X (born in 2004) and Y (born in 2006), AND that the children be permitted to travel outside the Commonwealth of Australia notwithstanding that the consent of the father has not been obtained.
8.The Order for the appointment of the Independent Children’s Lawyer be discharged.
9.All extant applications be otherwise dismissed.
10.Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.”
The Independent Children’s Lawyer’s position
In the case outline filed 13 December 2019, the final orders sought by the Independent Children’s Lawyer were:
“Subject to the filing of trial affidavits, the submissions and evidence of the parties at trial, the provisional view of the Independent Children’s Lawyer is:
1.(a) That the Court needs to weigh up the contents and recommendations of the Family Report,
(b) The psychiatric assessment reports on the mother and father
(c) The expressed wishes of the 2 mature aged children to both the family consultant, (Ms M) in August 2019 and to the Independent Children's Lawyer (Mr Lynch) on 12 December 2019.
(d) Family Violence allegations against the Father.2.A possible problem with the Family Report is that the consultant does not appear to have provided arguments as to why it is in Y's best interests to resume time with the father nor has the Family Consultant perused the parents psychiatric assessments.
3.The Court may wish to consider therapeutic counselling between the child Y and the father.
4.Parental Responsibility is another issue that needs to be determined by the Court. It could be argued that the equal parental responsibility presumption may have been rebutted by family violence or otherwise not in the best interests of the children.”
However, on 26 February 2020, and like both the father and the mother, the Independent Children’s Lawyer tendered a further minute of proposed final orders which were as follows:
“That the ICL agreed with the proposed orders of the Respondent Mother save for the following amendments:
(1) Delete orders 5(b)-5(e).
(2)New 5(b) – upon completion of the Men’s Behavioural Change Program (or part thereafter to be determined by the Court) the father and the child Y engage in therapeutic counselling by a counsellor, nominated by the ICL with the costs to be paid by the father (and the ICL to provide the therapist with a copy of the Court judgment)
New 5(c) – That the father and mother follow all reasonable directions of the counsellor, including whether counselling should conclude.
New 5(d) – That the child Y spend time or communicate with the father according to her wishes.
New 5(e) – That if the child Y expresses a wish to spend time or communicate with the father, the mother will facilitate this as far as practicable.”
Section 11F Memorandum
As set out earlier, the mother and the Independent Children’s Lawyer relied on the memorandum prepared by the family consultant who conducted the s.11F conference with the parties and the children in February 2019. No objection was taken to this. The memorandum was as follows:
“AGREEMENTS REACHED
That the children; X born in 2004 and Y born in 2006 live with Ms Walcutt.
ISSUES IN DISPUTE
The spend time arrangements between Mr Raimer and the children. Mr Raimer proposed contact occur once a week with a gradual increase and this to be unsupervised. He also proposed the children attend therapeutic counselling with him.
Ms Walcutt proposed she have sole parental responsibility for the children and no contact occur with Mr Raimer until he undergoes a Psychiatric assessment. Then for supervised time to be revised dependant on the outcome of the assessment.RISK FACTORS
Mental Health:
Both parties raised mental health concerns during the assessment. Ms Walcutt reported she considered Mr Raimer needed a Psychiatric assessment because of his unpredictable behaviour. Mr Raimer alleged Ms Walcutt was an habitual liar and could be convincing to others and herself about events that have not occurred.Family Violence:
Ms Walcutt alleged there had been family violence during the relationship with Mr Raimer which occurred gradually over time during the relationship. She alleged she noticed Mr Raimer to like control in situations and exploded in rages and anger and towards others around them at the beginning. Ms Walcutt reported Mr Raimer to be physically and verbally abusive and on two separate occasions he had slapped her on the face in front of the children. She spoke of the incident in July 2018 after Mr Raimer’s alleged name calling to X as a ‘social retard’ which precipitated an argument between them. Ms Walcutt alleged Mr Raimer had pushed her and put a fist to her throat and had threatened to throw her down the stairs. Subsequently after this incident the parties separated and Ms Walcutt obtained an Interim IVO which remains in place.
Mr Raimer denied all past allegations of family violence. He conceded during the incident in July 2018 he had grabbed Ms Walcutt during the incident and had pushed her back as they argued however alleged Ms Walcutt had pushed him first during the altercation. He denied making any threats to her, however stated there was name calling between them. Ms Walcutt reported she did physically touch Mr Raimer on the shoulder however denied it was a significant push. She stated she felt she had to do this to prevent him from entering X’s room as she was scared he may have hurt him.
Ms Walcutt reported she understood there is a warrant out for Mr Raimer’s arrest from the Magistrate Courts as he did not attend a hearing in January in relation to the current Interim IVO. She stated she received a telephone call from the police who enquired if knew the whereabouts of Mr Raimer and that the warrant had been issued. This was addressed with Mr Raimer in interview who stated he had no knowledge of this or any correspondence he had to attend court.
Child Abuse:
The section 67z received from the Department of Health and Human Services reported there had been 4 notifications received over the period of 2018. These were in relation to the incident in July 2018, the father’s breach of the IVO, Psychological abuse of Y from Ms Walcutt and Mr Raimer’s verbal abuse towards the children. All reports had closed at intake and there is no current involvement.
Ms Walcutt alleged Mr Raimer had been physically and verbally abusive towards X on a number of occasions. Ms Walcutt alleged that when X was a toddler, Mr Raimer had grabbed him by his arm and dragged him across the floor. This was denied by Mr Raimer who stated it was fabricated. Mr Raimer reported he had called X a ‘social retard’ in the past, which he since regretted.
Contact:
Mr Raimer is currently having no contact with the children. This followed an incident in January this year whereby it is alleged Mr Raimer had assaulted Y and the contact supervisor following her making a decision to stop contact due to Mr Raimer becoming agitated and angry and denigrating Ms Walcutt in front of and to Y. Mr Raimer denied the alleged assault on the Supervisor and Y however acknowledged he made comments to Y about Ms Walcutt and court proceedings, which he expressed his remorse for.
Ms Walcutt reported there was an ongoing police investigation in relation to the alleged assault and that the Supervisor and Y have both given statements.
CO-PARENTING RELATIONSHIP
Since the parties’ separation their relationship and communication in regards to the children has been non-existent. Mr Raimer believed Ms Walcutt has turned the children against him whereas Ms Walcutt discussed she feared Mr Raimer and his reactions after the alleged family violence incident in July last year. There is high parental conflict between the parties and this has evidently impacted on the children and their feelings of stability and safety.
Mr Raimer denied he had any anger issues as alleged by Ms Walcutt. He stated that he knew what he wanted out of life and would stand his ground if he needed to. Mr Raimer stated that if he had been violent towards Ms Walcutt as she alleged then why had she not previously gone to police or obtained an IVO. Mr Raimer said in the past Ms Walcutt had told him during arguments she would stop him seeing the children and he felt she had followed through on this.
Mr Raimer maintained the children did not witness the incident in July and when discussed with him they would have likely heard it, if not seen, he replied that the children had seen many arguments between him and Ms Walcutt in the past and that this was unacceptable. Mr Raimer seemed to be confused as to why the children had reacted severely to the incident in July 2018 (by not wanting to see him) and stated that during the previous arguments between the parties they had not appeared to be anxious or affected by these.
There are identified risks in relation to Mr Raimer’s behaviour at the supervised contact and his perceived inability to control his emotions and frustration, which to others may come across as threatening and intimidating. The police investigation for this alleged assault against Y and the Supervisor is on going and it may be helpful to the Court to know the outcome of this, with Y being a potential witness to the case.
The other concern was the children’s schooling and current non-attendance due to having to move schools from private to public due to financial issues following the parties’ separation. Ms Walcutt stated during interview the children are enrolled at a local public high School and will attend this week.
THE CHILDREN
The children attended the Registry with their mother for the assessment. From the outset the children presented as nervous and on edge and both were observed to look around when people walked by, even in the child care room where they were reassured they were safe.
During the interview with the Y, aged 12 she presented as outgoing, confident and mature for her age. X, aged 14 presented as introverted, shy and anxious avoiding eye contact with the family consultant.
Both children were interviewed separately, however gave similar views in regards to contact arrangements with their father. Both children were adamant they did not wish to see their father whether this be supervised or not. Both children recalled the incident from July 2018 and spoke of them being ‘terrified’ when they heard and witnessed what happened. At the prospect of having contact with their father in the near future Y made extreme and concerning comments such as she would run away, refuse to go and take her own life. X expressed his concerns regarding his father’s behaviour towards him and stated he would regularly yell at him and call him names such as ‘social retard’ (for minor things).
Y spoke of an incident (without prompt and off topic) when she was aged seven and said her father had smashed a plate over her head, which made her wet herself. Y stated she could never forgive her father for what had happened during the incident in July and the plate incident. She stated she could not recall whether she sought medical attention afterwards. She stated after the incident she was very scared of her father.
Both children talked about being concerned if their father became angry towards them during a contact and not knowing how he may react. Y in particular stated after her father’s behaviour at the last contact visit she is scared of his actions and what he may do if she upsets him. The proposal of therapeutic sessions with the father was put to them and both children expressed a firm wish not to participate.
Both children discussed life at home as being calmer, more peaceful and without tension since their father moved out.FUTURE DIRECTIONS
In light of the assessment the following recommendations are made:
That the children live with the mother.
That time be reserved with the father in the interim to enable the children to engage in therapeutic counselling as a priority and the outcome of the police investigation for the alleged assault on Y and the Supervisor to be finished.
That the father enrol in and complete an Anger Management course or Men’s Behavioural Change Program.
That both parties enrol in and complete a Post Separation Parenting Course.
That spend time with the father and children be reviewed following engagement with the above services to attempt to rebuild and foster the relationship between them in the future.
That each party, and their agents, be restrained by injunction from:Insulting, belittling, abusing or otherwise denigrating the other parent, or a member of their household, in the presence or hearing of the children, and
Discussing these proceedings or providing documents relating to the proceedings to the children.”The family consultant was not required to give evidence or be cross examined at the trial.
The Report
In preparation for the trial, the Court made an order pursuant to r.15.09 of the FCC Rules for a private family report. The Report was prepared by the Psychologist as a result of that order and was filed under cover of an affidavit on 4 October 2019. The Psychologist engaged by the parties was a consultant psychologist, a member of the Psychology Board of Australia, the Australian Psychological Society and the Australian Chapter of the Association of Family and Conciliation Courts.
The Report was prepared following interviews with the parties and the children and was dated 12 August 2019. The Report identified the “Documentation” read, and the “Background”, “Proposals” and “Interviews” with the father and the mother.[1] The Report recorded that the results of the psychometric testing for the father and the mother were “uninterpretable”.
[1] See paragraphs 1-85 and pages 1-19.
The Report then set out the interviews with the children before providing the following “Evaluation”:
“120. Evaluation
121.This report concerns the parenting arrangements for X and Y, whose parents are in dispute.
122.A major issue in this dispute, is that each parent provides a different perspective and there appears to have been limited contacts outside the immediate family during the period of the marriage. What is clear is there are fractured relationships in this family, and it is clear they have emerged from the intense and entrenched conflict between Mr Raimer and Ms Walcutt.
123.Assessment of Ms Walcutt indicate dislike and hostile feelings towards Mr Raimer that are not well contained. She perceives herself as having a loving relationship with the children. Her presentation and the children’s presentation suggested she is likely to have conveyed her feelings, attitudes and beliefs about Mr Raimer with the children and there is difficulty separating these from the children’s perspectives, needs and interests.
124.Her account of her background indicated stability and no trauma. She reported no mental health conditions.
125.Psychometric testing produced an uninterpretable profile. Where there were no deliberate attempts to distort the profile, there were indications of deliberately trying to avoid answering questions honestly and in a frank manner.
126.Notably, Mr Raimer produced a similar profile that was also deemed invalid.
127.The overall assessment of Mr Raimer indicated a frustrated individual who has coped poorly in his marital relationship and post-separation. He has an anger management problem. He readily acknowledged that he has problems containing his anger in the interview. He accepts that his behaviour was intimidating and also frightening for the children. His contact with them since the separation more than a year ago was very limited and he had admitted that he conveyed his feelings, attitudes and beliefs about Ms Walcutt to Y.
128.Psychological assessment of X indicated a withdrawn and vulnerable young man. He is particularly at risk of being overly influenced by strong characters in his life that he trusts, and this is likely to include his mother. He takes protective stance with Ms Walcutt and to a lesser degree with his sister, but he does not appear to understand that his own vert feelings and attitudes towards his father are likely to be influencing his younger sibling. He impresses as hypersensitive to conflict and he spoke strongly against his father and shows loyalty to his mother’s position. His attitudes have resulted from his own negative experiences with his father, where he felt he was degraded by him and his attitudes also appear to be heavily influenced by exposure to his mother’s position.
129.X’s overt wishes and preferences are thought to compromised by his developmental vulnerabilities, his negative experiences with his father, and loyalty to his mother.
130.In terms of his relationship with his father, X is currently resistant to any form of contact with his father.
131.Assessment of Y found a bright social girl who seems to feel the loyalty conflicts in the family acutely. She also loves her mother and brother and she takes on their opinions with merit. She also had a first-hand experience of her father’s negative behaviour during her last access visit and the termination of further visitation reinforced these opinions.
132.She is experiencing a dilemma about seeing her father and the feeling that she should reject him. She appears to be very exposed to her mother’s position and attitudes and of concern was her sizable knowledge about the adult disputes.
133.The narrative from each parent about the fractured relationships within the family suggests that neither parent has taken a responsible and concerted approach to dealing with their conflict with one another or preventing their children’s exposure to it.
134.X is suffering considerably while Y shows lower than average self-esteem but no indications of depression, anxiety or acting out behaviours. The concern, especially for X, is their development is likely to significantly affected if the current circumstances continue.”
The Report then made the following “Recommendations”:
“136.Based on the information gathered, it is respectfully recommended that :
i.The parents, Mr Raimer and Ms Walcutt, share equal parental responsibility for X and Y;
ii.The children live primarily with Ms Walcutt;
iiiThat Mr Raimer successfully completes the Men’s Behavioural Change Program and that he seeks individual and ongoing counselling to address his behavioural responses, build his coping and communication resources and parenting skills.
iv.That both Mr Raimer and Ms Walcutt undertake a Parenting after Separation course.
v.That both Mr Raimer and Ms Walcutt refrain from insulting, belittling, abusing or otherwise denigrating the other parent in the presence or hearing of the children and that they refrain from discussing the Court proceedings or the children’s access or living arrangements in the presence or hearing of the children.
vi.That both Mr Raimer and Ms Walcutt receive or access information and documents from school in relation to the children and all matters pertaining to the children’s education, health and wellbeing with their school and medical and like practitioners.
vii.Once Mr Raimer has completed the Men’s Behavioural Change Program (or at least 10 of the 20 sessions) and one to one professional counselling is in place and he receives a positive report from the program and/or from that counsellor; that he has access with Y initially in the presence of one of his family members one evening a week where she is collected directly from school and retuned home at a reasonable time for a period of two months.
viii.After this period, it is recommended that access progresses to unsupervised visits with her father, to overnight stays once a week progressing to fortnightly weekends over a 6 to 9-month period and that Y be collected from school and be returned to school at the conclusion of the overnight visits. This is subject to no incidents of family violence and review (and opinion) by her treating counsellor at Headspace over this period, and opinion of Mr Raimer’s treating counsellor;
ix.That X be given a choice about whether he wants to attend with his sister.”
As noted earlier, the trial was adjourned part heard to 26 February 2020 so that each of the parties could cross examine the Psychologist. The Psychologist gave evidence and was cross examined. For the reasons set out below, her evidence, such as it was, could be described as desultory.
The Psychiatrist’s report
Pursuant to orders made on 14 June 2019, the parties each attended on the Psychiatrist for the preparation of a psychiatric report. The Psychiatrist is a Clinical and Consultant Psychiatrist with over twenty five years’ experience and a member of the Faculty of Forensic Psychiatry, RANZCP. The Psychiatrist swore affidavits annexing the reports prepared on the father and then separately, on the mother. These were filed on 28 January 2020 and 24 February 2020 respectively.
The mother attended upon the Psychiatrist on 14 November 2019. The Psychiatrist’s opinion in his report on the mother dated 12 December 2019 was:
“…
There is no psychiatric diagnosis. There is no personality disorder diagnosis. My impression was that Ms Walcutt was supportive of her husband until she became convinced that the children were suffering as a result of his behaviour. Nothing at interview suggested to me that she might be a hazard to her children.
...”The father attended upon the Psychiatrist on 28 November 2019. The Psychiatrist’s opinion in his report on the father dated 12 December 2019 was:
“...
No psychiatric diagnosis was apparent at this interview. The following remarks bear on his personality issues.While to me he built a plausible case that temper dyscontrol does not occur – rather, that he learned to use anger to get his own way – to Ms M ([page 12, at 26-), Mr Raimer “acknowledged difficulties containing his anger”.
There were other inconsistencies between this interview and the Family report. Ms M on page 12, para.25 gave his last seizure as five years ago and said he sees Mr R regularly – whereas Mr Raimer told me he thought Mr R was dead, and his last seizure was 10 years ago.
…
It did concern me that at no point during the interview did he express remorse for anything. Nor did he express sadness about the state of his relationship with his children, “It is what it is”.
I would advise Mr Raimer to google the DSM-5 definition of narcissistic personality disorder, and reflect on the extent to which it pertains to him. I do not expect he will want psychotherapy.
...”The Psychiatrist was not required for cross examination and I accept his evidence.
Evidence at trial
In Saunders & Saunders (1976) 90-078, it was said:
“[R]estraint is called for in expressing views about the parties because of the need to have regard to the preservation of the ongoing relationship between the parties and between parents and children.”
However, in order to be able to determine this dispute over parenting orders for the children, where those otherwise responsible have asked the Court to make decisions, affecting those children, it is necessary to form an assessment of the character and the personality of the parties in this case. I do not intend to recite all of the evidence at trial. However, all of that evidence, the material the parties relied on, the exhibits before the Court, and the submissions made by the parties has been considered and taken into account.
The father’s evidence
The father, who relied on the affidavits referred to earlier, gave evidence and was cross examined.[2] The father’s trial affidavit set out the background, his proposal (at that time), his version of the relationship (with the mother), the intervention order proceedings, and his time with the children since separation.
[2] See exhibit A4.
The father’s affidavit detailed his take on the events (and problems that occurred) during supervised visits. The father’s affidavit clearly set out his case that the mother was coaching the children in these proceedings.
However, the father’s claims in his affidavit that he was “wholly full [sic] remorseful” for his actions and his acknowledgment that “his behavioural responses and attitude” must improve were both difficult to accept given the disjunct between those claims and the rest of his evidence.
The father had deposed that his comments were inappropriate and his frustrations were not well contained. This evidence strained the bounds of credulity given his subsequent evidence in cross examination reprised, in similar form, many of the same comments. Indeed, the father’s evidence in cross examination belied the veracity of his claims in the affidavit.
In contrast to the tone of his affidavit, the father’s evidence before the Court made plain he believed he had been a victim of many wrongs. He was a voluble and truculent witness who did little to conceal his sense of grievance. For example, the father acknowledged he had, when he was unrepresented, and in open Court made a malodorous statement. It will be necessary to return to this later in these reasons.
Such a self-absorbed attitude by the father, as was evident from those remarks was clearly on display throughout these proceedings, did him no credit and was sadly, consistent with much of his evidence before the Court.
In his affidavit the father took issue[3] with the mother’s affidavit evidence at paragraphs [94] to [105] of her trial affidavit (the details of which are set out below).
[3] See for example, paragraph [204].
In his evidence before the Court the father was asked about the report of the Psychiatrist and the comment that “he had trouble containing his anger”. The father said in response that he had an anger management problem and added, “men in my situation have done a lot worse”.
The father was asked about the Psychiatrist’s report and the observations made therein about him. The father said in response if he had to be “somewhat toxic”, he would be in order to address a specific issue.
When asked to respond to the Psychiatrist’s report, the father said he “wouldn’t accept anything he (the Psychiatrist) said” and when asked whether he had taken up the suggestion in the Psychiatrist’s report to “google the DSM-5 definition of narcissistic personality disorder…”[4] the father said that this was not “the top of his priority list”.
[4] See page 5 of the Psychiatrist’s report on the father attached to his affidavit filed 28 January 2020.
The father was then asked about incidents of the mother’s allegations of violence dating back to 2002. Illustrative of the father’s attitude whenever he was asked questions about those incidents involving the mother, the father’s response to this question was to dismiss the mother’s allegations and claim she “fabricated lies” and then almost immediately say that the mother “is full of so much rubbish that he had lost interest”. However, the father admitted to being involved in violent incidents against others during the relationship and calling his son, on one occasion, a “retard”.
When asked about the incident involving the Supervisor, the father sought to explain both his reaction and behaviour by saying, “with the way the system [i.e. the family law system] is, it is designed not to bring out the best in a person”. The father admitted that he had pled guilty to charges brought against him following a confrontation with the Supervisor. When asked about the circumstances involved that led to that order being made, the father rejected the suggestion he should have let go and said, “why should I?”
The father was asked about incidents such as when he had smashed plates in front of his daughter or pushed the mother and whether he was venting his rage. The father’s answers did not indicate he had any insight into his behaviour or why this behaviour was inappropriate or adverse to the children’s best interests.
When asked by Counsel for the mother about his proposal before the Court at that time, the father blamed the mother for not communicating in 18 months and whilst appearing to acknowledge the ages of the children and that they could make up their own minds about seeing him, said, “win, lose or draw, I don’t really mind”.
In answer to questions from the Independent Children’s Lawyer, the father said he did not want to make things more difficult for his son by pursuing specific time spent orders, but maintained in relation to his daughter her stated views, he believed, were because she had been “coached”. The father maintained this position, notwithstanding that he had acknowledged that his daughter had told various professionals this over an extended period. The father said he did not accept they were her views and reiterated that it was his position that she had been “coached”.
The father accepted that an order for equal shared parental responsibility required communication and cooperation and implicitly acknowledged that this would be difficult due to the intervention order against him, naming the mother as the affected family member and his position the mother had a habit of “running to police”.
When asked in re-examination about the breakdown in the arrangements for him to attend cheerleading with his daughter following separation, the father said the mother was “just being a complete bitch”.
Overall, the father’s evidence left the clear impression that he was deeply aggrieved by what had happened since separation and paid only lip service to his mistakes or behaviour that could not be ignored instead of recognising the preponderance of the evidence which suggested that by virtue of his behaviour he was more culpable for that situation.
The paternal grandmother’s evidence
The paternal grandmother was called to give evidence on behalf of the father and she adopted the affidavit referred to earlier and was cross examined.[5]
[5] See exhibit A5.
The paternal grandmother’s affidavit was brief and, in parts, at odds with the evidence of the mother. Given the concessions made in cross examination by the paternal grandmother (and accepting she would understandably wish to support the father in whatever way she could), I am unable to accept her evidence that she was not aware of physical violence by the father “of any sort” during the marriage.
The paternal grandmother agreed with the suggestion put to her that she was “sceptical” of the mother’s allegations, but did agree the father could “fly off the handle”.
The paternal grandmother did not deny she “could have” told the mother in the past that she had to put up with the father’s angry outbursts, as he was epileptic. The paternal grandmother was taken through incidents spanning a number of years when the father had been angry and/or violent (including to her) and she did not deny these had occurred.
The paternal grandmother was asked whether she had been aware that the father had been charged by police following the incidents that led to the breakdown of supervised time. The paternal grandmother’s evidence made clear she was not and that she was also unaware that the father had subsequently pled guilty to those charges.
When asked about what she would do if she was a supervisor (as it appears that at least at one time this had been the father’s proposal) and what she would do if there was a problem between the father and the children, the paternal grandmother’s evidence was she would take her granddaughter’s hand and “walk off”.
The mother’s evidence
The mother, who relied on the affidavit referred to earlier, gave evidence and was cross examined.[6] The mother presented as a taciturn witness who gave her evidence with a flat affect.
[6] See exhibit R4.
The mother’s affidavit set out her version of the background, the history of these proceedings, her compliance with the orders related to parenting issues, the outstanding issues, before turning in some detail to her claims about the father’s anger and mental health.
In light of all the evidence there was the ring of veracity to the mother’s claim in her affidavit that being with the father was “like walking on eggshells”.
As the existence of family violence and the behaviour of the father (including during court proceedings) was an important part of the mother’s case, it is important to set out an extract of her affidavit (addressing the latter) which was as follows:
“94.On 12 July 2018 the Family Violence Intervention order application ... was listed at the Melbourne Magistrates’ Court. On that date a Magistrate made a full interim no contact intervention order protecting myself and the children from Mr Raimer. See annexure marked “W-07” attached to this affidavit.
95.On 24 August 2018 the Intervention Order ... was again listed for mention at the Melbourne Magistrates’ Court. On this date Mr Raimer indicated he was contesting the application, and the matter was adjourned off for a directions hearing.
96.On 7 November 2018 a hearing was held at the Melbourne Magistrates’ Court in relation to the police intervention order ... because Mr Raimer had made an application to vary the conditions on the intervention order so he could attend Y’s school and sporting events. On that date the Magistrate heard from Mr Raimer and ultimately dismissed his application. During the hearing Mr Raimer admitted to communicating with Y in contravention of the order. Towards the end of those proceedings Mr Raimer said to the Magistrate the following;
“This is all about turning the children against their mother and that will be done. I will succeed. I will be using this to turn the children against their mother in family court. So thank you very much for your help in doing this and I appreciate your help”.
The Magistrate responded by saying
“Mr Raimer, I will strike out the order Mr Raimer”.
Mr Raimer responded by saying;
“Please strike it out but please remember I will use the order to turn the children against their mother and that is what this is all about. That is my aim.”
The audio recording of those proceedings has been subpoenaed to the court as evidence in support of my case. I am of the firm view that Mr Raimer has demonstrated, throughout the intervention order and Federal Circuit Court proceedings, a direct intention to use court proceedings to punish, control and discredit me.
97.On 12 April 2019 I attended court for the contested hearing of the police intervention order ... protecting myself and the children. I was extremely stressed and anxious in the lead up to the date, and was worried about what would happen if the order was not made. At that hearing the court decided the matter could not proceed as the Applicant father had pending criminal charges for breaching the intervention order and the assaults against Y and contact supervisor Ms J on 2 January 2019.
98.Each and every time a court date for the intervention order came close the children and I would experience great distress and anxiety. The ongoing proceedings negatively impacted my health and wellbeing, and at times I would experience migraines and exhaustion from the stress. This has also been true for each and every hearing I attend at the Federal Circuit Court at Dandenong.
99.On 10 May 2019 I was served with an application for an intervention order which Mr Raimer applied for against me (...). In this application Mr Raimer alleged I had assaulted him and was the aggressor during the incident on 9 July 2018. On 14 May 2019 this application was listed at the Melbourne Magistrates’ Court. No interim intervention order was granted by the Magistrate on this date. I had had no contact with Mr Raimer since we separated on 9 July 2018. I consider Mr Raimer’s decision to apply for this order another attempt by him to use the legal system to punish, intimidate and control me. I do not consider this application as a legitimate application born from fear of his safety…
100.On 7 June 2019 both the intervention order matters ... and ..., together with the criminal breach charges, were listed together in the Melbourne Magistrates’ Court. The intervention order applications were both adjourned and listed for contested hearing on 14 October 2019. On this date Mr Raimer pleaded guilty to the breach intervention order charges and reiterated that he believes he needs an intervention order against me. During that hearing when the Magistrate asked if Mr Raimer had had any legal advice he told the Magistrate;
“I’ve had very good advice and the advice that I’ve got whilst the family court jurisdiction is higher, the advice that I’ve got is to stay away from my wife and as I’ve already experienced, even though I’ve had orders in place, all it takes for a woman to go to the police and make up anything she likes….and then they will charge the husband…I’ve been given clear advice that’s why I’m asking for five and a half years. I’ve been charged with saying to my daughter ‘I love you’. The Family Court Judge can’t believe it. But when you’ve got female members of Victoria Police, that’s what happens, that’s a fact.”
Toward the end of the proceedings Mr Raimer went on to say;
“Basically, I want to be clear. I’m not interested in dealing with this sort of thing. I’m happy for her to have the children till they’re 18 and whatever else but I just don’t want anymore trouble because I won’t be given a fair go in this system and neither will any other man. So I’m trying to protect myself….”
Mr Raimer clearly stated at this hearing that he is happy for the children to live with me, however, he is still pursuing shared care parenting orders to trial.
101.On 14 and 15 October 2019 the intervention order cross applications proceeded to a final contested hearing at the Melbourne Magistrates’ Court. On that date I had legal representation. On the morning of the hearing the police prosecutor and my barrister approached me in the safe room where I was to attend the hearing via videolink. They told me Mr Raimer had caused a scene at court because the lawyer or barrister legal aid had appointed him was a woman. They told me had he refused to be represented by a woman lawyer, despite there being special rules he could not cross-examine me himself. I was represented by a barrister, and I appeared via remote videolink from another location in the court. When I saw the courtroom on the screen, I could see that there were three security officers seated behind Mr Raimer in the court. I was later told by my barrister hat [sic] the officers were there in case he caused another scene like he had in the foyer of the court earlier.
102.Mr Raimer’s case relied solely on his allegations that I had been the aggressor during events on 9 July 2019. At one stage in the proceedings, when Mr Raimer was asked by the Magistrate why he had not filed further and better particulars, he responded by saying;
“I have not seen yet a male in the Magistrates’ Court in 5 hearings be successful in any way shape or form”.
The Magistrate then asked Mr Raimer whether he meant that he had chosen not to file further and better particulars, Mr Raimer responded by saying;
“I don’t see why I should have to when a woman can go to the court and make up anything she likes and be granted an Interim IVO whether there is any truth to it or not”. “We are getting divorced and I’m a happy man about it, good riddance to her.”
He attempted to provide the court with a copy of Ms M’s Family Report in support of his case, and this was the only ‘evidence’ he presented in support of his case.
103.On many occasions during these proceedings I heard Mr Raimer make remarks which offended me and reinforced my belief that Mr Raimer is taking steps in this court process to deliberately cause upset and trouble. At one point he said to the police officer giving evidence;
“Do you remember me saying that if my wife and the police want to play dirty pool, I’ll play dirty pool too?”
Mr Raimer later said to a female police officer giving evidence;
“When Mr S asked why I was mute I said to him …I would have nothing to do with female police officers as they could not act fairly and in a reasonable way towards men and I said to him that is the reason why I have been mute today and you’ve been fairly warned I will not co-operate with female police offices and if it had been two males present in the interview, I would have given a full and frank interview”.
104.During these proceedings, Mr Raimer made remarks which reveal to me the extent to which a shared care or equal shared parental responsibility arrangement could never work for our children. He said in his final submissions to the Magistrate;
“I would like an order for 25 years for the mother. I have no intention to have anything to do with the mother but more importantly when the children have 21sts and weddings and so forth, I refuse to be in the same room as the mother. So at that point I want to be able to say to the children – I’ll pay for your wedding and I attend or your mother pay for the wedding and you attend or I’m sure you know what I’m talking about. But I do not want anything to do with that woman, now, tomorrow or in the future full stop”.
105.At the conclusion of these proceedings a final indefinite no contact order was made against Mr Raimer to protect myself and the children. Mr Raimer’s application for an order against me was not successful. The audio recording of those proceedings has been subpoenaed to the court as evidence in support of my case.”
The mother was not cross examined about these events. The mother’s claims in her affidavit that she had witnessed the father display anger, aggression and violence towards many members of the community, in different situations, was consistent with the evidence as a whole. By way of illustration, the father when taken to just one of those examples, did not deny it occurred.
In her evidence before the Court and in answer to questions from Counsel for the father, the mother agreed that the daughter used to have a close relationship with the father, but disagreed with the suggestion put to her that she had influenced the child to express the views she had given voice to about the father reported by the professionals in this case.
The mother confirmed she had read the Report and said she disagreed with certain comments made therein. When asked why the children’s comments to the Psychologist were so noticeably similar, the mother denied this was due to any influence by her and said this was probably because they (the children) had been “in survival mode”.
When asked why she had not taken steps to report the instances of violence by the father that she alleged had occurred before separation, the mother made clear she did not think she would have been believed. The mother said the father was good at talking his way around. The mother, when asked what steps she had taken to encourage the children’s relationship with the father, said she had followed court orders.
When asked what she had said when talking to the daughter after supervised visits broke down, the mother’s evidence was the father’s behaviour on those occasions had been unacceptable. The mother’s evidence was the daughter’s relationship with the father had been adversely affected by his behaviour.
Counsel for the father asked the mother why it would be noted in the Report that the daughter was aware of discussions about this case. The mother’s evidence was any discussions with the children were kept to “a minimum” and the child had an active mind.
Whilst accepting the proposition put to her that it was possible her views could influence the children, the mother rejected the further proposition that she may have been responsible for the dilemma facing the daughter referred to in the Report.[7]
[7] See paragraph [132] of the Report.
The mother pointed to the instances of the father’s violent behaviour witnessed by the children as a better explanation for what was observed in the Report.
When it was suggested she had a very negative view of the father, had “pulled no punches” in this regard, and that this was not protective behaviour by her, the mother disagreed with the suggestion. The mother was asked whether the father had any good points. The mother’s evidence was he “can be very good” during “his happy moments”. The mother went on to say that the father had “mood swings”, “rages”, and (when he was like that) he could not be stopped and the children had seen this.
In answer to questions from the Independent Children’s Lawyer, the mother confirmed that the son had been engaged with ‘Headspace’, had been diagnosed with post-traumatic stress disorder, had suicidal ideation and would be in counselling for a long time. The mother also confirmed the daughter was to receive counselling through ‘T Counselling’ and had been “conflicted” after the breakdown of supervised visits, the father’s behaviour she had witnessed on these occasions, and said that she (the daughter) did not feel one hundred per cent safe (when with the father).
The mother’s response to questions from the Independent Children’s Lawyer indicated she was “prepared to look at” therapeutic intervention for the daughter’s relationship with the father. When asked about the Report and its recommendations for possible supervised time between the daughter and the father, the mother’s evidence was that she did not believe the paternal grandmother was an appropriate supervisor. The mother’s evidence was that, in her view, the paternal grandmother “accepts and condones” the father’s (violent) behaviour.
Whilst the mother’s evidence was that she had facilitated the paternal grandmother seeing the children over the 18 months leading up to the trial, her objection to the paternal grandmother as a supervisor was because the father, she said, had abused her in front of the paternal grandmother in the past and the paternal grandmother was unable to control the father. The mother also gave evidence that the only other family member referred to in the father’s evidence as a possible family supervisor was someone she had not seen in years.
The mother confirmed her proposal (at that time) was for any time between the daughter and the father to be professionally supervised, and this should not be done until the family therapy had commenced, which she agreed she would facilitate if it was ordered.
In relation to the son, given his age, the position of the parties and that he was attending CAHMS at the U Hospital, the mother agreed any order should leave the issue of any time with the father up to the views of the son, but said it was unlikely to occur, given the father had abused him for years.
In relation to the issue of parental responsibility, the mother said she could communicate with the father, but only so long as she did not say no to what the father wanted. The mother’s evidence was the father was uncompromising and, therefore, it was unlikely to be practicable or result in attempts to come to a decision together on long-term issues for the children.
Finally, in re-examination, when asked why she had not got an intervention order against the father previously, the mother said it was “very scary” as the father was so calm and composed and was (it was clear from her point of view) capable of manipulating circumstances or people to his advantage.
The Supervisor’s evidence
The Supervisor gave evidence and adopted the affidavit referred to earlier.[8]
[8] See exhibit ICL 4
Annexed to her affidavit was a report dated 2 February 2019 (“the supervisor’s report”). The Supervisor’s report set out the Supervisor’s qualifications and expertise, her summary of her involvement with the father, the mother and the children, and her observations of each during the supervised visits.
Also annexed to her affidavit was a letter received from Constable V of the Victorian Police which confirms that the father had been charged with assault and contravening an intervention order as a result of his conduct at supervised contact on 2 January 2019.
In answer to questions in cross-examination, the Supervisor made clear before the first visit, both children were anxious and concerned how the father could react. The thrust of the Supervisor’s evidence was that the children’s presentation was such that she was concerned the visit would not go well. However, her evidence was that the children’s anxiety (as she saw it) before the visit was not due to anything the mother had said. It was the Supervisor’s evidence that her impression was that the mother had actually tried to reassure the children.
The Supervisor’s evidence was that the son’s “very clear views” were influencing the daughter, rather than anything that the mother had said or done. I accept her evidence.
The Psychologist’s evidence
The Psychologist gave evidence and adopted the affidavit referred to earlier, including the Report. The Psychologist confirmed she was aware of the positions of the parties (as they then were) and the evidence of the Psychiatrist.
The Psychologist admitted in relation to many of the issues raised in the Report (such as whether the children had been exposed to discussions about the proceedings by one, or both, of the parents or had been told what to say by one, or both, of the parents) that she had never pursued this with the parties or the children during the preparation of the Report and had not asked them as to why that was her impression or whether there was any basis for it.
The Psychologist agreed that the parties were in high conflict and there was no communication. However, the Psychologist said she had “faith” and “belief” that after the case was over, some of the anger and anxiety would reduce. Beyond this, the Psychologist could offer no basis or explanation for her recommendation in the Report that it was in the children’s best interests for there to be equal shared parental responsibility. Ultimately, she conceded in her evidence before the Court she just “did not know” whether equal shared parental responsibility would work.
The Psychologist acknowledged the recommendation in the Report that she had made that the mother be restrained from “berating” the children was based on a hypothetical (or an assumption she had made) which had not been put to the mother. The Psychologist also admitted that a number of observations and impressions she had from the interviews with the parties and the children (as recorded in the Report) were not tested by the questioning of, or raising of those with the parties.[9]
[9] See, for example, p.26, line 21 to p.27, line 29 of the transcript dated 26/2/2020;
The Psychologist admitted that despite saying in the Report that the mother disliked and had hostile feelings to the father, it was only her impression of the mother (and not something the mother had said).[10]
[10] See pg.47, line 14 of the transcript dated 26/2/2020;
The Psychologist also agreed with the suggestion put to her when she gave evidence before the Court that most of her recommendations in the Report were built on hypotheticals. The Psychologist agreed that the father had a longstanding anger management problem and that he had major difficulties controlling his anger.[11] The Psychologist said that it appeared the father’s anger management problem was not treated and that she had not seen any details of the Men’s Behavioural Change Program the father (said he) was enrolled in.[12]
[11] See pg. 33, line 1 to 15 of the transcript dated 26/2/2020;
[12] See pg. 36, line 13 of the transcript dated 26/2/2020;
The Psychologist acknowledged that she was not qualified to dispute the evidence of the Psychiatrist and that the personality tests she had done on the parties, when preparing the Report were invalid, as they had not been answered truthfully.[13]
[13] See pg. 37, lines 15 to 19 of the transcript dated 26/2/2020
The Psychologist agreed there were “problems galore” with any option for supervision between the father and the daughter. The proposal put by the Independent Children’s Lawyer to her in cross-examination which was for the father to complete (or at least complete half of) the Men’s Behavioural Change Program, and then there to be therapeutic counselling with the daughter and then time to be subject to her views and wishes was described by her in her evidence before the Court as “fairly reasonable”.[14]
[14] See pg. 50, line 26 of the transcript dated 26/2/2020;
Given the evidence of the Psychologist before the Court it is timely to recall that it was noted in Albert & Plowman [2020] FamCAFC 23:
“…
19.Single experts, either by court appointment or consensual engagement by the parties, are called as witnesses because their qualifications and experience equip them to provide opinion evidence to the Court which is relevant to the determination of the issues in dispute. But they are just witnesses. Their expert opinion evidence is not necessarily decisive of the dispute. Judicial power to decide the legal dispute rests in the hands of the trial judge, not the expert witness.
20.Additionally, expert witnesses are not witnesses of fact, except as to matters that they directly saw or heard, including for example, that which occurs during interviews they conduct. They express opinions by applying their qualifications and experience to certain factual assumptions. Their opinions can only ever be as reliable as the facts upon which they are premised. If, at trial, the facts assumed by the expert to be true are either not proven or are proven to be incorrect, then the opinion evidence will necessarily be compromised. Moreover, expert witnesses usually breach their remit if they are drawn into and express an opinion about the underlying factual conflict.
21.As was observed in this jurisdiction long ago (see Hall and Hall (1979) FLC 90-713 at 78,819):
“… There is no magic in a [single expert report]. A Judge is not bound to accept it and there should never be any suggestion that the [expert] is usurping the role of the court or that the Judge is abdicating his responsibilities…
…
While the [single expert]’s views will normally have weight with the court because of his expertise and experience, the [expert] does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the [single expert]…”
(References omitted)
22.Those observations have been successively endorsed by the Full Court (see Carpenter & Lunn (2008) FLC 93-377 at [226]-[227]; Friscioni & Friscioni [2010] FamCAFC 108 at [96]-[97]; Bostoi & Bostoi [2011] FamCAFC 132 at [40]-[44]; Whipp & Richards (2012) 257 FLR 395 at [101]), but more importantly by the High Court of Australia, which confirmed a court hearing a dispute under Part VII of the Act is not bound to accept or reject the whole or any part of the evidence given by an expert witness (U v U (2002) 211 CLR 238 at 261).”
The Court bears in mind what the authorities have had to say about the weight the Court can and should place on any recommendations such as those made by the Psychologist in this case.[15] Each of the parties in this matter had an opportunity to cross-examine the Psychologist. It is for the Court to decide what is in the children’s best interests. In doing so, it is necessary to bear in mind the evidence of the Psychologist which includes giving appropriate weight to her evidence and her recommendations which departed from those in the Report.
[15] See Albert & Plowman [2020] FamCAFC 23 [19] to [22] and also Reeves & Grinter [2017] FamCAFC 19 at paragraphs [15] to [18] and authorities referred to.
As noted earlier, the evidence of the Psychologist was far from definitive and of limited assistance in arriving at specific arrangements that are more likely to be in the best interests of the children. Ultimately, it was only with the artful advocacy by the Independent Children’s Lawyer that the Court was able to get an opinion from the Psychologist that was informed by the evidence at trial.
Final submissions
Pursuant to orders made on 18 March 2020, each of the parties was given an opportunity to make final submissions on what parenting orders the Court should make in light of the evidence, as it had transpired during the trial.
The Independent Children’s Lawyer’s final submissions
In compliance with the orders made on 18 March 2020, the Independent Children’s Lawyer filed written submissions which were as follows:
“(a)The court is referred to the final orders proposed by the Independent Children's Lawyer (ICL) enclosed with this Memorandum. A copy of these proposed orders were sent to the parties' lawyers on 13 March 2020.
2. The parenting orders apparently agreed to are:-
(a)The children X born in 2004 and Y born in 2006 live with the mother.
(b)The child X spend time and communicate with the father in accordance with his wishes.
3. The parenting orders is dispute are:
(a)parental responsibility for the 2 children.
(b)the father's time with Y and the conditions (if any) that this time may be subject to.
4. Parental responsibility
There is a rebuttable presumption that both the mother and father have equal shared parental responsibility for the children.
5. It is submitted that it is open to the court to find that the presumption has been rebutted and that the mother should have sole parental responsibility for the children for the following reasons:
(a)Family Violence Allegations
It is open to the court to find that the father has committed family violence to the mother and children which includes the following:
(i) On 2 July 2018 an incident took place at the family home involving alleged family violence to the mother and children. The mother obtained a family violence intervention order against the father which was subsequently made on 12 July 2018 with the 2 children included on the order.
Subsequently, there was a 2 day Magistrates' Court Contested Hearing on 14th/15th October 2019 in which both parties sought family violence orders against each other. At the conclusion of the contested hearing the Magistrate dismissed the father's application and made indefinite family violence orders against the father in respect of the mother and children,
(ii) There was an incident that occurred in January 2019 when the supervisor, Ms J was assaulted (and arguably the child Y) at a supervised contact visit). Subsequently, charges were brought against the father in respect of this incident.
(iii) There was another incident at the Federal Circuit Court on 1 April 2019 when the father allegedly assaulted the mother's barrister and he made inappropriate comments in court directed to the mother.
(b) Communication
There has been poor or no communication between the father and mother since middle of 2018.
Arguably, there is an authority that suggests that this is a ground for sole parental responsibility to the "live with" parent.
(c) Best Interests
If is open to the court to make a finding that on the evidence at trial that is it not in the best interests of the children for the parents to have equal shared parental responsibility and that on that basis, the presumption is rebutted.
6. Y's time and communication with the father
It is the Independent Children's Lawyer primary position that whilst evidence suggests that the father and the child Y previously had "a close" relationship with each other, it is now open to dispute whether it is in the best interests of the children to have any time with the father, particularly given:
(a)Y's views as expressed to the family consultant in August 2019 and to the Independent Children's Lawyer in December 2019 that she was fearful of her father and she did not wish to see him.
(b)There is clear evidence that the father has an anger management problem at least in the sense that the Magistrate's Court and the Federal Circuit Court have both made orders that the father attend a Men's Behavioural Change Programme (which the father had commenced attending in late 2019/early 2020).
(c)The court has to consider whether there is a benefit to Y to have a future meaningful relationship with the father.
7. Father's proposal for supervised time
It is submitted that supervised time between the father and child Y (as proposed by the father) is not in her best interests for the following reasons taking into account that the supervised time may take 3 forms:-
(a)supervised by a family relative.
(b)supervised by a Children's Contact Centre.
(c)supervised by a paid professional supervisor.
(a) Supervision by a family relative
The father proposes that his mother supervise time (at least initially). Neither the mother or any other paternal relative was assessed by the family consultant but the mother did give evidence in the December 2019 hearing where she was questioned at length by His Honour Judge O'Sullivan.
It is submitted that it is open to the court to find that neither the paternal grandmother, nor any other family relative is suitable for supervision of Y.
(b) Supervision by a Children's Contact Centre
The Independent Children's Lawyer accepts the evidence of the Family Consultant in February 2020 that a children's contact centre is not suitable supervision for a child of Y's age.
(c) Professionally Paid Supervisor
Similar reasons as for paragraph 5(g) may apply to a private supervision agency. Also, professional contact services may be reluctant to become involved in this case given the incident that occurred in January 2019.
8. Proposals by the Independent Children’s Lawyer
The Independent Children’s Lawyer proposes that any time between the father and Y requires a 3 step progress:
(a)Father's completion of and produced evidence (at least in part) of a Men's Behavioural Change Programme.
(b)Therapeutic Counselling between the father and child Y. Given the previous close relationship between Y and the father, it may be desirable to test the benefit of a possible future meaningful relationship between the father and child by means of therapeutic counselling.
(c)Subject to satisfactory progress of (a) & (b) above, any future time and communication between the father and Y (and given her age, currently 13 years, 10 months turning 14 years in 2020), this should be subject to Y's views and wishes.
9. It is the Independent Children's Lawyer recollection that when he put the proposition set out in paragraph 8 to the Family Consultant in Cross-Examination regarding the father's proposed time with Y, she replied, “it was reasonable”.”
Extent to which the parents has 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;
The father addressed this consideration at paragraph [9] of his final submissions. The mother and the Independent Children’s Lawyer addressed this issue in their final submissions.
The mother is primarily responsible for the children’s day-to-day care, welfare and development since the parties’ separation.
I am satisfied having regard to the evidence that the father has failed to avail himself of the opportunity to maintain his relationship with the children.
Extent to which each of the children’s parents has fulfilled or failed to fulfil the parent’s obligation to maintain the children;
The father addressed this consideration at paragraph [10] of his final submissions. The mother and the Independent Children’s Lawyer did not address this consideration in their final submissions.
The mother is primarily responsible for maintaining and supporting the children. The father pays child support as assessed pursuant to the Child Support Assessment Act 1989 (Cth).
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents; or any other children or other person (including any grandparent or other relative of the children) with whom he or he has been living;
None of the parties explicitly addressed this consideration in their final submissions.
The children have hardly spent any time with the father since separation. Neither child wishes to spend time or communicate with the father. As a result of the evidence of what has transpired since the proceedings commenced the Court has reasonable grounds to query the viability of orders for the children to spend time with the father other than when they wish to do so.
I am satisfied that any change in the children’s circumstances to compel them to spend time with the father would be contrary to their best interests. The evidence before the Court and the position of the Independent Children’s Lawyer highlights the risks of physical and psychological harm to the children were there to be an attempt to compel them to spend time with the father.
Having regard to that evidence, I am satisfied that the orders I make should ensure that the children continue living with the mother and spend no time with the father other than when they wish to do so. The weight of the evidence supports a finding that orders in those terms are in the children’s best interests, to ensure that they are protected from physical and psychological harm.
The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relation and direct contact with both parents on a regular basis;
None of the parties addressed this consideration in their final submissions. Given the need to minimise the opportunity for further conflict and provide certainty for the children, orders should be preferred that do just that. On this basis many of the orders sought by the father are not to be preferred. Just one example why this is the case will suffice. The father sought orders for professional supervised time with the daughter. This has been tried and failed. The Psychologist in her evidence rejected it as an option.
The capacity of each of the children’s parents, any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs and the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
The father addressed this consideration at paragraph [10] of his final submissions. The mother and the Independent Children’s Lawyer did not explicitly address this issue in their final submissions.
Each party challenges the capacity of the other to appropriately provide for the children’s needs. The father maintains that the mother is incapable of supporting his relationship with the children.
In the Report it was observed that the mother’s presentation for assessment indicated that she may struggle to identify and prioritise the children’s needs, especially the children’s need to be protected from the adult views of the parenting dispute.
Nonetheless, during her oral evidence, the Psychologist conceded that she had no evidentiary basis for that observation. She conceded not only was it merely her impression of the mother but she also had not raised it with the mother during the interviews.
The father’s final submissions continued to advance, even in the face of the Psychologist’s evidence before the Court which had ruled it out as a finding on that basis, the claim that the mother’s views and actions had thwarted his relationship with the daughter. I reject that submission.
I am satisfied, having regard to the evidence that the mother has, and will continue to, provide appropriately for the children’s physical, emotional and intellectual needs.
All of the evidence supports a finding that the mother has demonstrated a strong commitment to her responsibilities to parent the children. She has acted to protect the children from family violence. I am satisfied that the mother will continue to act protectively and in the children’s best interests.
The principal concerns with respect to the father relates to the allegations of and the existence of family violence. As indicated previously, I am satisfied that the father has perpetrated family violence against the mother and in front of the children.
Further, as noted previously, I am satisfied that the father has demonstrated little insight or understanding as to the impact of his behaviour on the children. The father has demonstrated very little capacity to reflect on his own role within those conflicts, nor has he demonstrated any capability to reflect upon the impact of those altercations on the children.
Throughout his evidence, the father sought to impress upon the Court his love and devotion for the children. That is but one aspect of his responsibilities as a parent. It should be remembered that this is the same parent who was recorded in the Victorian Magistrates Court as saying that those proceedings were about “turning the children against the mother and that will be done”.
Orders have been made for the father to engage in a Men’s Behavioural Change Program. The Psychologist was optimistic about the benefits the father would get from participation in that program. However, at this stage I do not share the Psychologist’s optimism, having regard to the fixed views and limited insight that the father displayed during his evidence as to his role in the conflict with the mother. Nonetheless, I am prepared to defer to her expertise given her evidence as to her involvement in those programs.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other relevant characteristic of the children;
The father addressed this consideration at paragraph [12] of his final submissions. The mother and the Independent Children’s Lawyer did not explicitly address this issue in their final submissions.
To the extent these matters are relevant, they are addressed earlier in these reasons.
Attitude to the children and the responsibilities of parenthood, demonstrated by each parent;
The father addressed this consideration at paragraph [13] of his final submissions. The mother and the Independent Children’s Lawyer did not explicitly address this issue in their final submissions. Both parties blame the other for their conflict. The unfortunate conclusion arrived at in light of the evidence is that it is the father’s unbending attitude that has precipitated the breakdown in his relationship with both children and that in pursuit of his quest to correct the wrongs (he perceived to have been done to him) the father has lost sight of his real responsibilities.
If the children are Aboriginal children or Torres Strait Islander children the children’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right;
This consideration is not relevant to these proceedings.
Any family violence involving the children or a member of the children’s family; if a family violence order applies, or has applied, to the children or a member of the children’s family, any relevant inferences that can be drawn from the order, taking into account the following:
the nature of the order;
the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
any other relevant matter;
The father addressed this consideration at paragraphs [14] and [15] of his final submissions. The mother and the Independent Children’s Lawyer addressed this issue as set out above and in their final submissions.
The detrimental impact of family violence upon children is well understood. The Court is required to take into account any family violence involving the children or any member of their family and, as far as possible, ensure that any parenting orders made do not expose a person to an unacceptable risk of family violence (s.60CG).
The father’s real attitude to family violence was betrayed by the final submissions made on his behalf. In those submissions, it was said the father “denies any relevant family violence” and that he only pled guilty to the charges arising from the January 2019 conduct “to avoid the trauma to the daughter giving evidence”. Such a convenient ex post facto rationalisation flies in the face of the evidence before the Court and is rejected.[19]
[19] See s.4AB of the Act which defines family violence.
Matters otherwise relevant to this have already been set out in these reasons. Therefore in making this determination, the Court has given greater weight to the consideration of the need to protect the children from physical or psychological harm and family violence against the benefit of having the opportunity to have a meaningful relationship with the father into the future.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings.
The father addressed this consideration at paragraph [16] of his final submissions. The mother and the Independent Children’s Lawyer did not explicitly address this issue in their final submissions.
These parenting proceedings have been on foot since 2018. Having regard to that long history, I am satisfied that the time has come to bring an end to the litigation. I am satisfied having regard to the evidence that the only orders that will ensure an end to the litigation are orders that the children spend no time with the father, unless they wish to do so.
Attempts at supervised time for the children have failed. The children have expressed in the strongest terms their view that they wish to spend no time with the father. The eldest child is extremely vulnerable and is getting the help he needs with the assistance of the mother. Perhaps in time he will be able to understand the father’s behaviour has not been that of a proper male role model. The situation with the daughter may be amendable to family therapy by which time, as the Psychologist said in her evidence, she should make up her own mind.
Having regard to all of those factors, I am satisfied the time has come for final orders to be made to ensure that the children are no longer exposed to the litigation.
Any other fact or circumstance that the court thinks is relevant
There are no other relevant facts or circumstances.
Parental Responsibility
The first matter to be determined is the question of allocation of parental responsibility. The mother and the Independent Children’s Lawyer both seek orders that the mother have sole parental responsibility for the children. The father seeks an order that he have equal shared parental responsibility for the children.
The father’s final submissions maintained that there should be an order for equal shared parental responsibility. Given the evidence before the Court, this submission should not be accepted. Before the trial the Independent Children’s Lawyer had submitted that the presumption of equal shared parental responsibility may be rebutted or otherwise not in the best interest of the children. In final submissions, and in light of the evidence, the wisdom of this position was manifest.
In this case, the evidence is that there is no civil relationship between the parties, no effective communication, no good will, no evidence their parenting styles are similar, and no evidence they have a commitment to such an arrangement. The evidence is their relationship is characterised by mistrust, suspicion and an inability to communicate, let alone negotiate.
Moreover, all of the evidence supports a finding that there has been a high level of conflict between the parties for many years. There have been numerous applications for family violence intervention orders made by, or on behalf, of the mother, and the father has been charged with, and pled guilty to, breaches of those intervention orders. The evidence supports a finding that the children have been deeply affected by the conflict between their parents and the father’s family violence.
It would not be in the best interests of either child for there to be continuing conflict over a long term issue and no way of resolving it. Having regard to those circumstances, and the evidence before the Court I am satisfied that it would be contrary to the children’s best interests were there to be an order for equal shared parental responsibility (pursuant to s.61DA(4) of the Act).[20] Further, having made findings that the children have been exposed to family violence by their father, I am satisfied that the presumption in favour of equal shared parental responsibility is rebutted (s.61DA(2) of the Act). It is for the reasons set out above not otherwise in the children’s best interests to make an order for equal shared parental responsibility.
[20] See Vallans & Vallans [2019] FamCAFC 260.
Accordingly, in the circumstances I am satisfied that the mother should have sole parental responsibility in relation to the children. I am satisfied that the children’s best interests are served by the mother having responsibility to enable her to make all necessary decisions regarding the children’s long-term care, welfare and development.
Live with and time spent
Given the finding made in relation to parental responsibility, the requirement to consider equal time or to substantial and significant time, pursuant to the provisions of s.65DAA, is not triggered[21] and the Court should then make parenting orders consistent with the findings made in relation to section 60CC, having regard to s.60CA and s.60B.
[21] Heath & HemmingNo. 2 (2011) FamCA 749.
These parents have been involved in conflict and litigation since shortly after their separation. It has been ongoing in one court or another, whether that be in the Federal Circuit Court or the Magistrates Court. It has been ongoing and relentless and the children have been traumatised. It must stop.
The mother seeks orders that the children live with her. This application is supported by the Independent Children’s Lawyer. The father told the Court he agrees with such an order. The evidence of the Psychologist supports an order that the children live with the mother. The children have been in the mother’s primary care since separation.
Despite how his position in relation to the son was described in his final submissions the actual final order he sought contemplated a live with order if the son wanted. Such an order is on the evidence and in light of the consideration of the s.60CC factors not in that child’s best interests.
Having regard to the evidence, coupled with my findings as to the need to protect the children from physical and psychological harm, I am satisfied that the children’s best interests are served by an order that they continue to live with the mother.
The father told the Court he agreed the time with the son should be when the child wished to do so. This was agreed to by the mother and the Independent Children’s Lawyer. Whilst the father sought orders for a gradual reintroduction of time with the daughter, the evidence supports a finding that it is in the children’s best interests that they spend no time with the father unless they wish to do so.
Plainly, it is a serious matter to order that children spend no time with a parent. Such orders, as are called for by the Independent Children’s Lawyer and the mother in this matter, should be restricted to cases where that outcome is mandated in the child’s best interest and no other regime of orders is appropriate or workable.
As noted earlier, at various times throughout the proceedings (albeit up until the filing of final submissions) the father and the mother had considered the option of supervised time for the father with the daughter. The father had at one point proffered his mother as a family supervisor.
It is not the law that family members are excluded from supervision simply by virtue of their family association. However, it is inappropriate for family members to supervise where family members are not fully accepting of the level of risk particularly where the Court views the level of risk to be of a serious nature and the likelihood of the risk to be in the moderate to high category.[22] This is such a case as the paternal grandmother did not demonstrate she would be a suitable supervisor in the circumstances.
[22] See B v B 1993 FLC 92-357 at 79,780.
Moreover, in light of the Psychologist’s evidence (and as reflected in the final positions of the mother and the Independent Children’s Lawyer) professional supervision (which has been tried and failed) is also not in the children’s best interests.
The difficulties confronting any arrangement for supervised time in this case include the evidence of the Psychologist (such as it was), and the preponderance of the evidence that, if history is any indication, any arrangement for supervised time will not work. There is also the risk of the children being re-traumatised by seeking to do so where there is a risk of ongoing instances of family violence by the father.
Accordingly, the Independent Children’s Lawyer’s proposal (supported by the mother) is to be preferred and the appropriate order is there should be no order for time unless the children indicate a wish to do so. This would protect them from harm, given the risks posed by the father, and would be as meaningful as is in the children’s best interests.
As drastic as such an arrangement as contemplated above is, it is likely to continue until the father demonstrates his actions will be child focused, reflecting carefully on the likely effect his past actions, his demonstrated propensity for violence, poor attitude to the mother and inability to communicate in a child focused manner without the risk of conflict and the impact of all this would have on the children.
The Independent Children’s Lawyer had sought orders that family therapy with the father and the daughter to commence once the father had completed 10 sessions of the Men’s Behavioural Change Program. The mother’s final position was family therapy should not commence until the father had completed that course. The mother’s submissions detailed why that was her position. The father’s final position was consistent with the orders sought by the Independent Children’s Lawyer on this issue.
The Psychologist was asked questions in cross examination on the question as to when in her experience attendees at such courses would begin to demonstrate understanding of the problems with their previous behaviour. Her evidence, based on her demonstrated expertise which was not disputed, was ten sessions would see some change in the normal course and anyone with “grandiosity” or “self importance” would not get that far in the program.
Ultimately however, the Psychologist accepted that whether the course should be completed or only partly completed before family therapy commenced was a matter for the Court.
For the reasons set out above the rationale of the Independent Children’s Lawyer’s proposal on this issue was that it provides for the father to have at least passed the halfway mark, and proved he has, before family therapy with the daughter commences.
Notwithstanding the mother’s submissions as to why the father should first complete the whole twenty weeks given the evidence of the Psychologist I am not satisfied (given this will be the condition precedent to family therapy with the daughter only) that this is in the child’s best interests. The therapy should be at the cost of the father and that person should be provided with the final orders and these reasons.
In relation to the father’s proposal (which was never raised in evidence and then only in final submissions) I am not satisfied it is in the son’s best interests for there to be an order providing for the father to send cards, letters or gifts to him. The evidence is the father’s behaviour has shattered the paternal bond. The son has real mental health and other challenges which have only been exacerbated by the father’s behaviour before and since separation. He should be allowed time to heal.
It behoves the father to reflect on the observation that children learn their own future behaviour and how they deal with difficult situations from what they observe of their parents. In this regard a parent who uses violence against another person as a means of resolving a dispute, or who is derogating of another person especially the other parent, is not a suitable role model for children.[23]
[23] See In the Marriage of JD & BG (1994) 18 FLR 255 and In the Marriage of Patsalou (1994) 18 FLR 426.
There is otherwise in light of my consideration of the relevant s.60CC factors in the particular circumstances of this matter no warrant in the children’s best interests for orders 7, 9, 11, 12 or 14 in the father’s final proposal. I will however make orders for non denigration, the mother to provide information to the father and a s.68P notation. Given all parties are represented the provisions of s.68P (2) can be observed by their solicitors.
Conclusion
In this matter, the Court has given greater weight to the consideration of the need to protect the children from physical or psychological harm against the benefit of having the opportunity to have a meaningful relationship with the father into the future.
The reality is that the children have spent no time with the father since 2018. The children have expressed, in the strongest terms, their view that they do not wish to resume spending time with the father. I am satisfied that the children have been exposed to physical and psychological harm and traumatised by family violence as a result of the father’s behaviour. I am also satisfied that the children’s health and well-being would be compromised were the children to resume spending time with the father, unless and when they wish to do so. Notwithstanding the father’s contentions that the children’s views have been influenced by the mother, and that she has alienated them from him, I am satisfied that the evidence does not support those allegations.
Having regard to all of those factors, I am satisfied that it is appropriate and in the children’s best interests that there be no orders for them to spend time or communicate with the father unless they wish to do so.
Finally, in relation to the issue of passports if the mother is to have sole parental responsibility, as she must on the evidence be ordered to have, the inconvenience, disruption and uncertainty for the children on the mother having to have to come back to the Court for the issue of passports is not in their best interests.
The mother should, exercising sole parental responsibility, be able to apply for and obtain a passport for the children without having to obtain the father’s consent.[24]
[24] See approach in Withers v Russell & Anor [2016] FamCA 793 and Mosman & Taylor Mosman [2018] FamCA 842.
Accordingly, and for the reasons set out above, I will make the orders as set out at the beginning of these reasons for decision as I am satisfied they are in the children’s best interests.
I certify that the preceding two hundred and twenty four (224) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Associate:
Date: 26 June 2020
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