Remellis & Moneas
[2024] FedCFamC2F 450
•11 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Remellis & Moneas [2024] FedCFamC2F 450
File number(s): ADC 3125 of 2023 Judgment of: JUDGE DICKSON Date of judgment: 11 April 2024 Catchwords: FAMILY LAW – PARENTING – Interim proceedings – Children aged 12 and seven years – Where one child remains in the father’s care and the other remains in the mother’s care – Previous shared care arrangements – High conflict – Allegations of coercive and controlling family violence – Weight to attach to children’s wishes – Orders made pending Family Assessment Report. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA. Cases cited: Bennett & Bennett [2001] FamCA 462
EJK & TSL [2006] FamCA 730
Flanagan & Handcock [2000] FamCA 150
Goode & Goode (2006) 36 FamLR 422
Hedlund & Hedlund [2021] FedCFamC1A 84
Holding & Neville [2023] FedCFamC2F 1646
Kearney & McMaster [2024] FedCFamC1A 2
Mazorski & Albright [2007] FamCA 52
McCall & Clark [2009] FamCAFC 92
Rowan & Hopkins [2022] FedCFamC2F 214
U v U (2002) 211 CLR 238.
Division: Division 2 Family Law Number of paragraphs: 145 Date of hearing: 9 April 2024 Place: Adelaide Counsel for the Applicant: Ms Fleming Solicitor for the Applicant: Douglas Hoskins Legal Counsel for the Respondent: Ms Hume Solicitor for the Respondent: Sloan Legal Solicitor for the Independent Children's Lawyer: Mr Harley, Harley & Co Lawyers ORDERS
ADC 3125 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS REMELLIS
Applicant
AND: MR MONEAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
11 APRIL 2024
UPON NOTING THAT:
A.The submissions made by the father’s counsel that the father has, on a ‘no admissions basis’, undertaken at his sole expense the following:
a.A carbohydrate deficient transferrin (‘CDT’) test; and
b.A hair follicle test in accordance with the chain of custody protocol specified in AS/NZ 4308:2001.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.All extant Undertakings given by the parties to the Court are hereby discharged.
2.The mother is at liberty to collect the children X (born in 2012) and Y (born in 2017) (‘the children’) from the Court Children Services at the Adelaide Registry of the Federal Circuit and Family Court of Australia and thereafter depart the Court building with the children at the conclusion of this hearing.
3.The children do live with the mother unless otherwise provided herein.
4.The children do spend time with the father as follows:
(a)During the April 2024 school holidays, from 10:00am on Wednesday, 24 April 2024 until the commencement of school on Monday, 29 April 2024;
(b)Thereafter during school terms from the conclusion of school (or 4:00pm if a non-school day) Friday to the commencement of school (or 9:00am if a non-school day) Monday (and extending to 4:00pm on a public holiday Tuesday) commencing Friday, 3 May 2024 and each alternate week thereafter;
(c)At such other times agreed between the parties in writing.
5.Without admission, the mother shall be present on any occasion when the said children are to come into contact with her partner, Mr B.
6.The parties are at liberty to provide to Family Consultant Ms C copies of the following documents for consideration as part of her Family Assessment Report (‘the Report’):
(a)Any documents filed in these proceedings;
(b)The DCP Co-Located report dated early 2024;
(c)The SAPOL Co-Located report dated early 2024;
(d)The Reasons for Judgment of Judge Dickson dated 11 April 2024; and
(e)A copy of the Report of the Court Child Expert dated 11 April 2024 pursuant to paragraph 3 of the orders made 9 April 2024.
7.Upon publication of the Family Assessment Report by Family Consultant Ms C, the parties, their legal representatives and the Independent Children’s Lawyer do attend a Family Dispute Resolution Conference at the Legal Services Commission of South Australia on a date and time to be organised by the Independent Children’s Lawyer.
8.Upon publication of the Family Assessment Report the parties are released from the Harman Undertaking for the purposes of providing a copy of the said Report to their treating practitioners including but not limited to Dr H (for the mother) and Mr G (for the father).
9.Liberty to the mother to apply on short notice to relist the proceedings to seek a Recovery Order by way of joint email correspondence to the Chambers of Judge Dickson in the event of non-compliance with paragraph 2 herein.
10.No later than 1:00pm on 17 April 2024, Counsel for each party shall exchange and provide to the Associate to Judge Dickson by email an Outline of Document, with such Outline of Case Document to include the following (divided under headings):
(a)Those documents to be relied upon;
(b)The specific orders sought (if different to those set out in the Application/Response);
(c)A short chronology of significant events;
(d)A summary of the issues in dispute between the parties and any findings required at Trial;
(e)A concise summary of argument (with specific reference to any statutory considerations); and
(f)A list of any relevant authorities, together with submissions as to their relevance.
11.Any further document to be relied upon by either party at the hearing on 18 April 2024 is to be filed and served no later than 4:00pm 15 April 2024.
12.The proceedings are adjourned for directions to 8 July 2024 at 9:30am, such hearing to take place in open Court on a face-to-face basis in accordance with Court protocols.
AND THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:
13.Any handover not taking place at the said children’s respective schools shall occur by the parent having the care of the children delivering the children to the home of the receiving parent ON CONDITION that the delivering parent remains inside their motor vehicle and the parties do not approach one another at the handover.
14.The parties complete the D Program and Circle of Security parenting courses and provide proof of completion to the other parties’ solicitor and the Independent Children’s Lawyer as soon as is practicable.
15.Upon receipt of the CDT and hair follicle test results, the father shall provide a copy of the said test results to the mother’s solicitor and the Independent Children’s Lawyer within forty-eight (48) hours of receipt of the same and do file copies of the said test results at Court.
16.Each parent shall ensure the children attend at school for the entirety of each school day whilst the children are in their care, and if the children are unable to attend school for medical reasons that parent shall notify the other parent within twenty-four (24) hours and, if an absence exceeds one (1) day, provide a medical certificate to the other parent within forty-eight (48) hours.
17.The parties be restrained and injunctions are hereby granted restraining each of them from:
(a)Removing the children from the other parent’s care including by removing that child from their school, extracurricular activities, OSCH or any other location other than in accordance with an order of the Court or the express written consent of the other party;
(b)Denigrating the other parent, the other parent’s partner or the other parent’s family in the presence or hearing of the child, or causing any other person to do so;
(c)Discussing these proceedings and any matter raised in these proceedings with or within the hearing of either child, including any change to the number of nights that each child lives with the other parent;
(d)Causing the children to communicate with the other parent about care arrangements;
(e)Providing copies whole or in part of documents in these proceedings to either child or causing the child to have access to such documents; and
(f)Consuming alcohol to excess or consuming illicit substances whilst the child is in their care or within twenty-four (24) hours of such child coming into their care.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON
INTRODUCTION
These proceedings come before the Court upon the filing of an Application in a Proceeding on 1 March 2024 by the Applicant Wife, Ms Remellis ('the mother'), seeking interim parenting and property orders. The Respondent Husband, Mr Moneas ('the father') filed a Response to Initiating Application on 25 March 2024 seeking orders in his own right.
The parties have two children together, namely X, born in 2012 and currently 12 years of age and Y, born in 2017 and currently seven years of age (together ‘the children’). X commenced secondary schooling at E School in Year 7 this year. X is now in good health having undergone intensive treatment for an illness in 2018. Y attends F School and is in Year 1 and is otherwise in good health.
At the date of hearing, the children are separated and have had no meaningful contact with each other or the other parent since early 2024. X is living with the husband and Y is living with the wife. The children have not been attending at school consistently since the start of the school year with the children having been withheld by each parent at different times to prevent a removal from school unilaterally by the other, pending a determination of their respective applications.
It is in the face of this very difficult background that the matter comes for determination by the Court on an interim basis. The parties agree that the current impasse cannot continue but are unable to agree on how to bring it to an end.
BACKGROUND
The mother is currently 40 years of age and is a self-employed professional. The father is currently 52 years of age and is employed as a self-employed tradesperson.
The parties met in or about 2007, commenced cohabitation in 2008 and married in 2011.
The parties physically separated in late 2021 and are not yet divorced. On this date, the mother vacated the former matrimonial home and moved in with her parents.
The mother now rents a property owned by her partner, Mr B.
The father asserts that whilst the mother physically vacated the home in late 2021, the mother’s personal belongings remained at the home for “up to 12 months” and that he was hopeful of some form of reproachment with the mother. It is father’s case that he did not comprehend that the separation was permanent until in or around mid-2023.
It is also part of the father’s case that he has struggled to accept the relationship breakdown and is now seeking professional assistance and support in the form of psychological therapy from Mr G.
The parties have been engaged in litigation since 12 July 2023 upon the filing of the mother’s Application for Final Orders where she sought interim and final orders in relation to property settlement. On 8 October 2023, the father filed a Response to Final Orders in relation the property settlement. On 29 February 2024, orders in relation to parenting were first introduced to the litigation by way of an Initiating Application filed by the mother.
The party’s interim property applications have been listed for hearing on 18 April 2024.
An Independent Childrens Lawyer (‘ICL’) has now been appointed to represent X and Y. The parties are yet to attend upon a Court Child Expert. They have agreed to the preparation of a Family Assessment Report. Appointments with Family Consultant Ms C will commence on 2 May 2024 and with the said Report to be released, if possible, by 30 May 2024.
DOCUMENTS RELIED UPON
The mother relies upon the following documents:
(1)Outline of Case Document filed 8 April 2024;
(2)Application in a Proceeding filed 1 March 2024;
(3)Affidavits of the mother filed 29 February 2024, 1 March 2024 and 5 April 2024; and
(4)Undertakings filed by the parties respectively on 22 and 25 March 2024.
The father relies upon the following documents:
(1)Outline of Case Document filed 8 April 2024;
(2)Further Amended Response to Initiating Application (‘Interim Orders’) filed 26 March 2024;
(3)Affidavit of the father filed 26 March 2024; and
(4)Undertakings filed by the father on 4 March and 22 March 2024 respectively.
The father was afforded an opportunity to give oral evidence in reply to the Affidavit filed by the mother on 5 April 2024 but declined to do so.
The Independent Children’s Lawyer relies upon the following documents:
(1)Outline of Case Document filed 8 April 2024;
(2)Affidavits of the mother filed 29 February, 1 March 2024 and 5 April 2024;
(3)Affidavit of the father filed 26 March 2024;
(4)South Australia Police (‘SAPOL’) Co-located Response early 2024; and
(5)Department for Child Protection (‘DCP’) Co-located Response dated 4 April 2024.
At the hearing, the Independent Children’s Lawyer tendered a draft consent minute of order marked as ‘Exhibit I1’.
ORDERS SOUGHT
The Mother
The mother seeks the orders as set out in her Outline of Case Document filed 8 April 2024 as follows:
Delivery up
1. That the father forthwith deliver up the children [X] born [in] 2012 to the mother's care.
2. That in the event of the father's non-compliance with paragraph 2 herein, pursuant to section 67Q of the Family Law Act a recovery order do issue authorising and directing the Marshall, all Officers of the Australian Federal Police of the Police Forces in all states and territories of the Commonwealth of Australia with such assistance as may be required, and if necessary, by force:-
a. To find and recover the children;
b. Return the children to the mother forthwith at her residence or such other location as the mother and the person affecting the recover to be appropriate;
c. To stop and search any vessel, vehicle or aircraft and to enter to search any premises or place in which there is, at any time, reasonable cause to believe the said children may be found.
Care arrangements
3. That [X] born [in] 2012 and [Y] born [in] 2017 (the children) live with the mother.
4. That the children spend time no with the father as such time as the father has produced a psychiatric report deeming that he does not pose a risk to the children and in any event no less than three (3) weeks.
5. That the children spend time with the father as follows:-
a. For the first three (3) weeks after the making of these Orders, the children have no time with the father; and
b. Following the time referred to in paragraph 5.a herein, the children spend time with the father each alternate weekend from the conclusion of school on Friday (or 3:00pm on a non-school day) until 3:00pm on Sunday.
6. That the father forthwith obtain a psychiatric report from his current treating psychiatrist, or in the event that he does not have a treating psychiatrist then either [Dr J] or [Dr K] or such other psychiatrist as agreed between the parties, at his sole expense and do file and serve an Affidavit of same within 48 hours of receipt of the report being received by the father.
7. The parties be restrained and an injunction be granted restraining them from:
a. Removing the children from the other parents care by removing that child from their school, extracurricular activities, OSCH or any other location that is in accordance with an order of the Honourable Court without the express written consent of the other party;
b. Denigrating the other parent, the other parent's partner or the other parent's family in the presence of hearing of with child, or cause any other person to do so;
c. Discussing these proceedings, and any matter raised in these proceedings with or within the hearing of either child including any change to the number of nights that each child lives with the other parent;
d. Causing the children to communicate with the other parent about care arrangements;
e. Providing any copies whole or in part in these proceedings to either child, or causing the child to have access to such documents;
f. Consuming alcohol to excess or consuming illicit substances whilst a child is in their care or within 24 hours of such coming into their care.
8. That the father do pay the mother’s costs of these proceedings.
At the hearing, counsel for the mother submitted that her client no longer sought the orders as set out in her Further Amended Initiating Application filed 1 March 2024 in relation to interim parenting orders only.
The mother also proposed an order that she would always be present when the children came into contact with or communicated with her partner, Mr B.
The Father
The father seeks the orders as set out in his Outline of Case Document filed 8 April 2024 as follows:
1. That the children [X] born [in] 2012 and [Y] born [in] 2017 live each of the parties on a week about basis with handover to occur after school on Friday or 4.00pm on a non-school day.
2. That forthwith and by no later than 5pm on the date of the Order, the mother do deliver up to the father the child [Y] at [L Street, Suburb M].
3. That thereafter and commencing Friday 12 April 2024 that the children shall live with each of the parties on a week about basis NOTING that the children shall be in the care of the mother from Friday 12 April 2024 and each alternate week thereafter and that the children shall be in the care of the father from Friday 19 April 2024 and each alternate week thereafter.
4. The mother be restrained by way of injunction from permitting any contact or communication between the said children (or either of them) and the mother's partner, [Mr B], when the children are spending time with the mother.
5. Both parties are restrained by way on injunctions:
a. Not to travel with the children:
b. Interstate without first giving the other party twenty-four (24) hours written notice of the destination and dates of arrival and intended return;
c. Outside the Commonwealth of Australia without first giving the other party fourteen (14) days written notice of the destination and dates of arrival and intended return.
d. Not to discuss these proceedings with or in the presence of the children or permitting any third party from doing so.
e. Not to disclose the contents of any Court documents filed in these proceedings to the children or permitting any third party from doing so.
6. On a without admission basis, the father be restrained by way on injunction from:
a. Consuming illicit substances or consuming alcohol twenty four (24) hours prior to or during any time the children are in his care.
b. Abusing, harassing, threatening, or denigrating the mother and/or any member of the mother's family including any partner (verbally or in writing) in the presence or hearing of the children or allow any third person to do so.
7. That pursuant to section 62G of the Family Law Act 1975, the parties forthwith jointly instruct [Ms C] for the purpose of a child inclusive Family Assessment Report with the cost of such report shared equally between the parties (noting that appointments can be offered by [Ms C] [in early to mid]-2024).
8. That the parties forthwith enrol and complete the Circle of Security and [D Program] parenting programs and provide a certificate of completion to the other party's legal representative.
9. That an independent children's lawyer to be appointed to represent the children in the usual terms.
10. That pursuant Section 69ZW of the Family Law Act 1975 each of SAPOL and the Department of Child Protection provide to this Honourable Court documents recording, or information about, [X] born [in] 2012, [Y] born [in] 2017, [Mr Moneas], [Ms Remellis], and [Mr B] relating to:
a. any notifications to SAPOL or the Department of Child Protection of suspected abuse of the said children or of suspected family violence affecting the said children;
b. any assessments by SAPOL or the Department of Child Protection of investigations into a notification of that kind or the findings or outcomes of those investigations.
c. any reports commissioned by SAPOL or the Department of Child Protection in the course of investigating a notification.
11. The mother pay the father’s costs.
At the hearing, the father no longer sought orders that the children live principally with him and spend five nights per fortnight with the mother. Rather, the father sought an order that the parties return to the week about arrangement commencing with the children living with the mother as and from Friday, 12 April 2024.
The Independent Children's Lawyer
The Independent Children’s Lawyer seeks the orders set out in their Outline of Case Document filed 8 April 2024 as follows:
1.During the period of the adjournment, the children live with the parents on a week about basis with handovers at the conclusion of school, or 3:30pm if a non-school day, each Friday commencing with the father on Friday 12 April 2024.
2.During the period of the adjournment, the mother be restrained and an injunction is granted restraining her from bringing the children into contact with her partner [Mr B] or allowing any other person to do so.
3.The parties and the Independent Children’s Lawyer are at liberty to provide to [Ms C], for the purposes of the Family Assessment Report, any order, co-located report from the Department for Child Protection or SA Police, or document filed in these proceedings.
4.The parties complete the [D Program] and Circle of Security parenting course and provide proof of completion to the other parent’s lawyer and ICL as soon as practicable.
5.Each parent facilitates at their joint and equal expense the attendance of the children upon a Family Therapist or psychologist and shall comply with the therapists/psychologists reasonable treatment recommendations. The therapist/psychologist shall be selected as follows:
a.Within 7 days each parent shall nominate the name and contact details of 2 proposed therapists/psychologists in writing to the independent children’s lawyer; and
b.Within 14 days the ICL shall select one therapist nominated by the parties or if no nominations are received as selected by the ICL solely.
6.On a no admission basis:
a.Within 14 days the father undergo a Carbohydrate Deficient Transferrin (CDT) test and shall provide the results of such test to the mother's lawyer and the ICL within 48 hours of receipt by him or his lawyer.
b.Within 48 hours the father submits to a hair follicle test testing for all illicit substances to be conducted by [N Company] in accordance with the chain of custody protocols, at his sole cost and provide a copy of the tests results to the mothers legal representative and the ICL within 48 hours of receipt of same being received by the father;
7.Each parent shall ensure both children attend at school for the entirety of each school day whilst the child is in their care, and if the child is unable to attend school for medical reasons notify the other parent within 24 hours and, if an absence exceeds one day, provide a medical certificate to the other parent within 48 hours.
8.The parties be restrained and an injunction be granted restraining them from:
a.Removing the children from the other parents care including by removing that child from their school, extracurricular activities, OSCH or any other location other than in accordance with an order of the Honourable Court or the express written consent of the other party;
b.Denigrating the other parent, the other parent's partner or the other parent's family in the presence of hearing of with child, or cause any other person to do so;
c.Discussing these proceedings, and any matter raised in these proceedings with or within the hearing of either child including any change to the number of nights that each child lives with the other parent;
d.Causing the children to communicate with the other parent about care arrangements;
e.Providing any copies whole or in part in these proceedings to either child, or causing the child to have access to such documents;
f.Consuming alcohol to excess or consuming illicit substances whilst a child is in their care or within 24 hours of such coming into their care.
ISSUES IN DISPUTE
The issues in dispute between the parties at this interim hearing can be summarised as follows:
(1)Whether or not X and Y should live primarily with the mother or the father, or equally with both parties on an interim basis;
(2)If the children live with their mother, should there be no orders for time spending in favour of the father for a moratorium period of three weeks;
(3)What orders for time spending should be made in favour of the parent who does not have the primary care of the children;
(4)Whether or not one or both of the children are at risk in the care of either parent;
(5)Whether or not the father should undertake a psychiatric assessment as a precondition to time spending with the children or at all; and
(6)Whether or not an injunction should be made restraining the mother from permitting the children to have any contact or communication with her partner Mr B.
The parties were able to reach agreement in relation to a number of ancillary orders which are set out in ‘Exhibit I1’.
THE MOTHER’S POSITION
It is the mother’s case that during the marriage, she was the primary caregiver of the children.
The mother alleges that during the marriage, the father displayed “extremely controlling and coercive behaviour” which resulted in the mother leaving the marriage. Specifically, the mother alleges that:
(a)The father was controlling in relation to the parties’ finances, particularly in the early stages of their relationship;
(b)The mother had no visibility over the father’s bank accounts or savings and that the father would criticise the mother for spending money which he regarded “as his” money;[1]
(c)The father would call her “hopeless” and “stupid” and denigrated the mother regarding her weight whilst she was pregnant with the children;
(d)The father was unsupportive and absent caring for the children during the marriage and only commenced taking an interest in the children, particularly X, upon separation;[2]
(e)At separation, the father made threats that he was “not scared of the law” and that “his children would not be taken away from him” and “I’m not afraid of you, I’m not afraid of anyone.” and “I’ll fuck you up. I’ll fucking bury you in a shallow grave.”;[3] and
(f)The father had changed the passcode to the security at the family home and had denied the mother access to collect further belongings and effects.[4]
[1] See the Affidavit of Ms Remellis filed 29 February 2024 at paragraph 62.
[2] See the Affidavit of Ms Remellis filed 29 February 2024 at paragraph 64 and 66.
[3] See the Affidavit of Ms Remellis filed 29 February 2024 at paragraph 67.
[4] See the Affidavit of Ms Remellis filed 5 April 2024 at paragraph 17.
Upon separation in late 2021, the mother vacated the former matrimonial home and after living for a period of time with her parents, moved into private rental accommodation in early 2022. It is the mother’s position that the father was well aware that the separation was permanent and denies the submission made on behalf of the father that he was labouring under a misapprehension that the partes were exploring the possibility of a reconciliation for a period of 18 months after the mother vacated the former matrimonial home.
Immediately post-separation, the parties reached an informal agreement whereby the children lived with each of them on a four-day rotation. The arrangement was changed by consent in early 2022 wherein the parties agreed to implement a shared care arrangement on a week about basis commencing at the conclusion of school on a Friday.
It is the mother’s position that from the commencement of 2023, she observed a change in the children’s emotional and psychological wellbeing, particularly X.
The mother says that she became concerned that the father was actively undermining the children’s relationship with her. The mother alleges that the father was behaving in a way to alienate the children from her or at the very least, manipulating the children’s views towards the mother and members of the maternal family. The mother complains that the father would not abide by the week about arrangement and constantly sought to vary the agreement by either withholding one or both of the children in his care and without the mother’s consent. The mother further alleges that the father failed to facilitate weekly dinners between her and the children in the week that they were living with the father, as had been previously agreed.[5] Further, that the father sought to influence the children by telling them that it was “not normal” for children to live into separate houses and that the father blamed the relationship breakdown on her as the reason why they did not live together as a family unit anymore.[6]
[5] See the Affidavit of Ms Remellis filed 29 February 2024 at paragraphs 29 to 31.
[6] See the Affidavit of Ms Remellis filed 29 February 2024 at paragraph 32.
The mother has set out in detail disturbing telephone conversations with X which, if true, suggest that X has been exposed to adult conversations regarding the breakdown of the relationship between his parents and the involvement of solicitors in their parenting dispute.[7]
[7] See the Affidavit of Ms Remellis filed 29 February 2024 at paragraphs 33 to 36.
Due to her concerns, the mother says that she instigated mediation with the father. The parties attended a private mediation with their legal representatives in mid-2023 and reached agreement. The parties executed a Heads of Agreement.[8] In a substantive sense, the Heads of Agreement records that the parties had agreed on an interim basis to them retaining equal shared parental responsibility for the children and for the week about shared care arrangement to continue. The parties agreed to communicate using a Parenting App and to complete parenting courses. The parties jointly agreed for both children to attend upon a psychologist. The parties also agreed to attend upon Dr H for coparenting counselling to “… improve their communication, reduce any conflict and work together in providing a safe and supportive environment for the children…” It was also recorded that the parties would each inform the children that their parents had agreed for the family to seek assistance and that the current living arrangements of week about shared care would continue.
[8] See the Affidavit of Ms Remellis filed 29 February 2024 at Annexure ‘R-3’.
The Heads of Agreement were never made into Court order and remain a record of the parties’ intentions at the time. As I will come to shortly, many of the stated intentions were never implemented and could have been aptly renamed as ‘Heads of Disagreement’ given what was to follow.
The mother makes allegations of historical excessive alcohol and drug use by the father. This has caused the mother to be concerned that the father may have resorted to drinking alcohol to excess or being under the influence of illicit substances whilst the children are in his care as an explanation for what she describes as his “erratic and unpredictable behaviour”.[9]
[9] See the Affidavit of Ms Remellis filed 29 February 2024 at paragraph 75.
The mother has re-partnered with Mr B. The mother informed the children of her new relationship with Mr B in mid-2023. It is her opinion as at early 2024, the children had a good relationship with her new partner although the mother was becoming concerned that the father had been denigrating her partner to the children. The mother complains that the father referred to Mr B as “the loser” to the children and asserts that the father is endeavouring to undermine this relationship.[10]
[10] See the Affidavit of Ms Remellis filed 5 April 2024 at paragraph 80.
In early 2024, the mother became aware of social media messages between the father and X which have been transcribed and are set out in ‘Annexure R-1’ to the mother’s Affidavit filed 29 February 2024. It is the mother’s case that the father used the online communications to pressure and influence X into facilitating a variation to the shared care arrangement from week-about to nine nights per fortnight in favour of the father. The father is yet to be cross-examined in relation to the content of the transcript and the Court is unable to make any definitive finding as suggested by the mother. On their face, however, the messages support the mother’s allegation that the father engaged with X in discussions to vary the living arrangements from early 2024.
In early 2024, the father attended and collected X from school without the mother’s consent in his first week of high school. The mother attended at the conclusion of the school day to collect X as he was due to be in her care. Upon collection, the mother observed X to look “conflicted and confused” with both his parents arriving simultaneously to collect him. The mother made a decision to allow X to leave with his father and to avoid what she describes as an “uncomfortable situation” becoming even more difficult.[11] The mother therefore left the school premises and returned home with Y. For the period in early 2024, the children lived in separate households.
[11] See the Affidavit of Ms Remellis filed 5 April 2024 at paragraph 5.
It is the mother’s position that in collecting X, the father was attempting to implement a variation of the care arrangements and to impose such variation on the mother without her consent.
On 9 February 2024, the mother instructed her solicitor to forward correspondence to the father’s solicitor outlining her concerns regarding the children’s care. In summary the mother alleged that the father:
(a)Continued to vary the care arrangements for the children, often on short notice, causing disruption to the children;
(b)Had failed to download and implement the Parenting App agreed upon for the parties communication;
(c)Travelled frequently to Melbourne with the children and gave the mother no details concerning the proposed travel;
(d)Had not participated in the co-parenting counselling with Dr H. Specifically, the father had only attended one session before ceasing communication with Dr H;
(e)Had continued to verbally berate and denigrate the mother in the presence of the children;
(f)Continued to involve the children in adult conversations and negotiated with them directly about their care arrangements including the father unilaterally imposing his version of the care arrangements which resulted in the children becoming separated;
(g)Had engaged in behaviour she describes as “love bombing” whereby the father would display intense declarations of love to the children but would become emotionally cold and dismissive to the children if he did not receive the response or reaction that he wanted; and
(h)Continued to denigrate the maternal family to the children referring to their maternal grandmother as “Naughty” and the mother herself as “Devil.”[12]
[12] See the Affidavit of Ms Remellis filed 29 February 2024 at paragraphs 43 to 49.
In early 2024, the father again attended and unilaterally collected X from the conclusion of school without the mother’s consent. The following day the mother facilitated a handover of Y to the father to ensure that the children remain together over the weekend despite the fact that the children should have been in her care.
The mother, Mr B and the children were to travel to Melbourne to attend a wedding in 2024. The father sent a message to the mother informing her that he would be withholding the children and that the children would not be travelling to Melbourne. The father did not deliver the children to school on Friday.
Following urgent solicitor correspondence, the mother attended at the father’s residence at 5:00pm that day and collected the children. She describes the children as being in “heightened state and distress (sic)”.[13] X began to cry and when queried by his mother as to the reason for his distress responded with “I don’t know”.
[13] See the Affidavit of Ms Remellis filed 29 February 2024 at paragraph 24(d).
The mother and the children then travelled to Melbourne with the mother describing the children as “happy and settled” at the conclusion of the trip.[14]
[14] See the Affidavit of Ms Remellis filed 29 February 2024 at paragraph 26.
The mother describes text messages that she asserts were forwarded to her by the father in response to her advice to him that the Melbourne trip would proceed.[15]
[15] See the Affidavit of Ms Remellis filed 29 February 2024 at paragraph 24(f).
The mother alleges that in early 2024, having been put on notice of her impending parenting application, the father attended at the children’s schools without the mother’s knowledge or consent. Having removed the children from school, the mother alleges that the children were then withheld from her care.
The father did not respond to communications sent to him by the mother personally or the mother’s solicitor raising concerns about the removal.
In early 2024, the mother observed that X had not been delivered to school. However, Y was attending F School. At 2:57pm that day, the father sent a message to the mother alleging that “some serious information” had become available and further, that the children would be remaining with him “until the matter has been discussed”.[16]
[16] See the Affidavit of Ms Remellis filed 1 March 2024 at paragraph 13.
The mother then attended and collected Y from school fearing that the father would again take Y and retain him in his care.
In early 2024, the mother alleges that the father attended at the home of her partner by viewing him on security footage data. After taking photographs at the front of the property, the father drove off. The father returned to the partner’s property at 5:21pm and after sitting outside the property in his motor vehicle for a period of minutes, then drove off again.[17]
[17] See the Affidavit of Ms Remellis filed 1 March 2024 at paragraphs 20, 21 and 24.
The mother deposes that at 3:00am in early 2024, X sent her a message saying “I love you Mum”.[18]
[18] See the Affidavit of Ms Remellis filed 1 March 2024 at paragraph 29.
Also, the mother became aware of “social media” communication between X and Y wherein X forwarded messages to Y stating:
Do you want to come to daddy, do you want to come with us, [Y], Do you want me o come home, [Y], U ok, I have to go[19]
[19] See the Affidavit of Ms Remellis filed 5 April 2024 at paragraph 31.
In early 2024, X sent to the mother a text message saying:
Once again you have ignored my wishes I thought I trusted you but you are twisting things and using again your own children example I rang you in the middle of the night saying i was scared of the dark and wanted to here you voice but once aging you change the hole truth and say that I was scared of my father but that was a complete lie because I love my father dearly and I feel comfortable with him that is why I want to stay with him. This all child behaviour and you are affecting us by every vicious move you are making you are not caring about me and [Y] feelings all your decision sis just for you to look like the hero. You and your dorky boyfriend trie and tare us apart but just remember this never ever happen. Pls leave us alone. I wish you can see what is happening in front of your own eyes but you can’t because all you bloody care about is winning. Pls rethink some of you behaviour that you are showing me and [Y].i won’t be ringing when I need someone, again. STOP HARASSING US!!![20]
[20] See the Affidavit of Ms Remellis filed 5 April 2024 at Annexure R-1.
In early 2024, X is seen by his school’s wellbeing officer. An entry recording the attendance is dated early 2022 (sic).[21] The entry records X describing Mr B as “weird” but not elaborating further and that X does not consider that his mother treats him well. X reports a preference for a “9/5” care arrangement and blamed the mother for calling the police to undertake a welfare check. X correctly identified that “he feels like a lot has been put on him in the first four weeks of high school.”
[21] See the Affidavit of Mr Moneas filed 26 March 2024 at Annexure M-14.
In early 2024, X is taken by the father to be interviewed by SAPOL regarding complaints in relation to Mr B. On the same date, X then accompanies his father to the offices of the father’s solicitor,[22] which coincides with the date of a letter from the father’s solicitor to the mother’s solicitor of the same date.[23]
[22] See the Affidavit of Ms Remellis filed 5 April 2024 at paragraph 21.2.
[23] See the Affidavit of Mr Moneas filed 26 March 2024 at Annexure M-22.
The mother remains concerned that the children have been living apart since early 2024. It is her case that in the intervening period, the father has continued to engage in a campaign of attempting to alienate X from his mother and to try and persuade Y (via X) on moving to live with the father. By way of example, the mother alleges that in early 2024, she received a text communication from X wherein he said:
Stop keeping my brother from me I do not believe a word you say focused on being a positive mother and tell [Mr B] to piss off from my brother. And give us passports!!!!!
It is in that context that the mother is highly sceptical of the timing of the father’s allegations regarding her partner, Mr B, and the children.
The mother agrees that she did not facilitate Y’s attendance at school for the period of one month in early 2024 (save for one day) out of concern that the father would attend and remove Y from school and retain him.[24]
[24] See the Affidavit of Ms Remellis filed 5 April 2024 at paragraph 29.
The mother alleges that X has not attended school and that his attendances have been sporadic since going into the father’s care in early 2024. This concern was reinforced after the father and X attended at Y’s school in breach of the terms of the father’s undertaking filed 22 March 2024. The mother believes that the father was hoping to remove Y and retain him.
It is the mother’s position that the father has not ameliorated his attitude toward her as demonstrated by a text message forwarded by the father to her as recently as early 2024 which reads as follows:
[Ms Remellis],
You have changed the past on every turn to smear my character and make you look like the victim, it’s textbook covert narcism.
All I can remember is that you flirted and encouraged having coffees/lunches and who knows what, with another boy in secret catch ups who is now your partner.
Your dishonest and immoral sneaking around was while you were in a marriage with someone that was fully supporting all of us financially and emotionally. And to add to your disgusting behaviour and lack of loyalty you were doing all this while my son was going through [treatment for an illness].
How does that sit with your self-description of the “perfect girlfriend and wife?”…[25]
[25] See the Affidavit of Ms Remellis filed 5 April 2024 at Annexure R-4.
THE FATHER’S POSITION
In her oral submissions, counsel on behalf of the father emphasised that the father had struggled with the final separation from the mother. The father has now sought assistance to support him in the form of psychological treatment from Mr G, clinical psychologist. The father first presented for treatment in early 2024 and has attended three sessions to date.[26]
[26] See the Affidavit of Mr Moneas filed 26 March 2024 at Annexure M-16.
The father contends that it was not until about 18 months after separation that the mother informed him that the separation was permanent.[27]
[27] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 59.
The father denies that the mother was the primary caregiver to the children in the marriage. During the period when X was receiving hospital treatment for an illness, the father deposes to both parties working together to manage the family during this three-year period. The father does acknowledge that the mother ceased work for 12 to 15 months in order to spend more time with X.[28]
[28] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 49.
The father submits that both parents have involved the children in their parenting separation and conflict. The father admits that X is aware of the parental conflict regarding his care arrangements and that X continues to be stressed by the parental conflict.[29] The father admits that since separation, the parties have “regrettably” been unable to “collaborate effectively to our parenting as separated parents, and which has escalated to the current circumstances of conflict.”[30]
[29] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 30.
[30] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 108.
The father denies exerting financial control over the mother during the marriage and further denies “weaponising the children”. The father contends that the current difficulties arise because the children have not been listened to by their mother as to their feelings including how they feel in the company of Mr B.[31]
[31] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 112.
The father denies using alcohol to excess or illicit substances at any period when the children are in his care.
It is the father’s assessment that after the shared care arrangement was implemented, the children were more settled.[32] Despite this observation, the father contends that there were occasions when the children have not wished to return to their mother’s care. The father denies that such refusal is not as a result of anything said or done by him.[33]
[32] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 51.
[33] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 52.
The father admits that from about mid-2023, the Monday night dinner arrangement with the other parent ceased because the children indicated to him that they did not wish to attend. It is the father’s case that he encouraged the children to go but over time, they became more determined not to.[34]
[34] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 55.
The father recalled Y returning after a Monday night dinner where the mother’s partner had attended for the first time. The father described Y as being “upset” and complains that Mr B attended at dinner without any prior discussion with the children.
The father estimates that the children’s anxiety and distress when returning to their mother’s care became “more prominent after the commencement of the mother’s relationship with Mr B and has become more pronounced since the start of 2024.”[35]
[35] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 63.
The father denies denigrating the mother or referring to her as the “Devil”. The father admits having heard Y refer to his mother as “devil” on one occasion.[36]
[36] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 70.
The father accepts that the use of the words “Naughty” is not an appropriate reference for the children’s maternal grandmother and states that he will now cease the use of it moving forward.[37]
[37] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 91.
The father admits having not utilised the Parenting App for communication stating that he had difficulty in downloading it and that he had messaged the mother to explain his difficulties.
The father agrees that he only attended upon Dr H for one session. The father contends that he did not return to see Dr H because:
I did not gain confidence from the session that I would derive any benefit from coparenting issues, which was what I had agreed to.[38]
[38] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 85.
The father denies that he has withheld X from the mother without her consent and further denies manipulating and coercing the children to implement a “9/5” arrangement.[39]
[39] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 4.
The father asserts that X had told each of his parents that he wished to spend unequal time between his parents being nine nights with his father and five nights with his mother. The father asserts that the idea off the “9/5” arrangement came from X speaking with a school friend.
The father alleges that prior to early 2024, X had informed him of raising the new living arrangements with his mother.
The father admits that he attended at E School in early 2024 and collected X from school when X would otherwise have been in the mother’s care.
The father suggests that X had received approval from his mother to implement the new arrangement. It is the father’s position that the mother has been saying one thing to X and another to the father which has caused confusion for X and “undermined the trust he has with the mother”.[40]
[40] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 15.
The father says that the words “[…]” is a line from a song that the father sings to the children.
The father denies following a person on social media by the name of “[…]” whom the mother alleges is a person who supports misogynistic behaviour towards women.
The father says that he became aware that the mother intended to travel to Melbourne with the children and her partner, Mr B. The father deposes that X had reported to him that the mother would cancel the trip but later was told by the mother that it would proceed. The father alleges that X became very distressed and said that he did not wish to travel to Melbourne with his mother. Further, the father asserts that the children did not wish to travel to Melbourne except alone with their mother.[41] This is despite the children having travelled to Melbourne previously.
[41] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 44.
The father agrees that the children have been separated and have not spent time with one another since early 2024.
The father admits that he has concerns about the relationship between the mother’s partner and the children. The father states that his:
…feelings of hurt as to the loss of my marriage did initially impact upon my attitude towards the mother’s partner. I have sought to address those feelings of loss and grief with the assistance of my medical advisors. I have moved on from this and those feelings are not the motivation for the concerns I have for the children.[42]
[42] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 126.
The father describes the children complaining about “unwanted physical contact” from Mr B including the children telling their father that they do not wish to give Mr B a “hi-5” when he sees them.[43] The father alleges that the mother encourages physical contact between them and Mr B despite their protests. X has described Mr B as “weird”.
[43] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 131.
The father alleges that X has been showing increasing signs of anxiety since the start of 2024.
According to the father, at the time of an appointment with Dr O in early 2024, X was anxious about going to Melbourne with the mother, his maternal grandparents and Mr B.[44]
[44] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 135.
After attending school in early 2024, X complained to his father that Mr B had “got weirder” and that he did not wish to attend at his mother’s residence. The father then describes X complaining about an occasion “about three months prior” wherein X complained about Mr B touching his upper legs from behind, his “private parts” and his bottom.[45]
[45] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 140.
A further complaint made by X was with respect to a water balloon fight at the mother’s residence about “two months prior” which X was said not to feel comfortable with. During the course of the water balloon fight, X described physical tackles between himself and Mr B. X allegedly complained of being held from behind and the side and with Mr B “rubbing against him” and on one occasion describing that Mr B’s penis had rubbed against him near his leg and buttocks.[46] Further, that when filling the water balloons, Mr B had touched X’s hand with his and “ran it up the length of X’s arm”.[47]
[46] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 141.
[47] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 142.
A lot happened for X in early 2024, namely:
(a)The father and X attended upon Dr O, medical practitioner. X was interviewed about Mr B. A letter from Dr O dated early 2024 is Annexure ‘M-20’ to the father’s Affidavit filed 26 March 2024;
(b)The father attended at the Suburb F police station in early 2024 and made a report of X’ s allegations. The father and X were interviewed by police on two occasions. SAPOL have informed the father that they intend to take no further action at this time;[48] and
(c)The father attended with X at the office of his solicitor so that the father provided instructions for the letter of 8 March 2024. The father says through his counsel that X waited in a motor vehicle in an underground carpark while he saw Mr Sloan.
[48] See the Affidavit of Mr Moneas filed 26 March 2024 at paragraph 148.
The father now accepts that the DCP and SAPOL have closed their files and that no further investigations are ongoing.
The father agrees attending at a property owned by Mr B or a member of his family. The father alleges that he was looking for X’s student identification card which X had apparently lost. The father admits attempting to look inside the property to see whether or not there was any sign of the property being used for illicit drug distribution.
In early 2024, the father has completed the registration for enrolment in the D Program and the Circle of Security parenting programs.
The father denies any intention to abscond with either child interstate.
At hearing, the father’s counsel submitted that neither party had raised concern regarding either parent’s capacity to provide for the children’s physical and daily needs. The father now promotes a reinstatement of shared care. He contends that there is “pathway forward” in that he had undertaken drug and alcohol testing to reassure the mother and that the parties had agreed therapeutic treatment for the children. Together, with the injunctive orders now agreed by the parties, the father’s counsel submitted that the Court can have confidence that there is a way ‘back on track’ for the family.
The father submits that the mother’s proposal for a moratorium of time spending between the father and the children may have a detrimental impact on X.
Importantly, the father’s counsel submitted that the father now accepted that Mr B did not pose a risk to either of the children. In the face of this concession, the father still promoted an order restraining the mother from permitting the children to have any contact or communication with Mr B and submitted that the children would “benefit” from spending time with their mother in his absence.
The father draws attention to the negative comments made by Y regarding the mother and Mr B at interview with the Independent Children’s Lawyer despite not having spent time with his father since early 2024. The father asks the Court to accept that the statements made by Y at interview with the Independent Children’s Lawyer are his own independent views free from any interference by the current dispute.
The father’s counsel correctly identifies that this interim hearing is a “very important juncture” for the family and that whilst past events have been unacceptable, she submitted that it was now an opportunity for the family “to pause” and to reduce the conflict.
On that basis, a father promotes a week about return to shared care pending the provision of the Family Report. Through his counsel, the father submitted that if orders were made for shared care, he was confident that X would accept it.
THE INDEPENDENT CHILDREN’S LAWYER’S POSITION
The Independent Children’s Lawyer supports a return, during the period of adjournment, to week-about shared care and an injunction restraining the mother from allowing the children to have any contact with Mr B.
The Independent Children’s Lawyer had the opportunity to interview both children on 8 April 2024. A summary of his interviews with them is set out in paragraph 8 and 9 respectively of the Independent Children’s Lawyer’s Outline of Case Document filed 8 April 2024.
The Independent Children’s Lawyer describes X as presenting as “strongly aligned with the father” having “…interpreted the events of the last six weeks as solely being the fault of the mother.”[49]
[49] See the Outline of Case Document of the Independent Children’s Lawyer filed 8 April 2024 at paragraph 3.
The Independent Children’s Lawyer in submissions urged the mother to put her partner “to one side” and to concentrate on her relationship with X. The Independent Children’s Lawyer considered that the mother needed an opportunity to “repair” her relationship with X and that the father needed to be positive in supporting that relationship.
The Independent Children’s Lawyer was concerned that the mother’s proposal for time spending between the children and the parents involved yet another change in the face of the children having experienced a number of changes to their living arrangements since late 2021.
The Independent Children’s Lawyer saw no benefit to the father obtaining a psychiatric report.
The Independent Children’s Lawyer relied upon the DCP and SAPOL Co-located Information dated early 2024 in confirming that there were no ongoing investigations in relation to Mr B by either agency.
LEGAL PRINCIPLES
The legal principles to be applied at an interim hearing are the same as those to be applied at the final stage.[50]
[50] Goode & Goode (2006) 36 FamLR 422, [81].
The Court must regard the best interests of the children as the paramount or most important consideration.[51] The Court must take into account in determining a child’s best interests, the matters set out in section 60CC of the Family Law Act 1975 (Cth) (‘the Act’).
[51] Family Law Act 1975 (Cth) s 60CA.
Section 60CC of the Act sets out two classes of considerations, namely the primary considerations and a longer list of additional considerations. The Court is directed to give greater weight to the primary considerations which align with the objects and principles set out in section 60B of the Act.
There are two primary considerations, namely:
(1)The benefit to the child having a meaningful relationship with both of the child’s parents; and
(2)The need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.[52]
[52] Family Law Act 1975 (Cth) s 60CC(2)(a) & (b).
Section 60CC(2)(a) of the Act directs the Court when applying the primary considerations to “give greater weight” to the primary consideration relating to protective concerns.
Additional considerations are further set out in section 60CC(3) of the Act, being criteria that the Court must consider in determining the best interests of the children.
As observed by the Court in the decision of Rowan & Hopkins:[53]
The Court’s duty is to deliver individual justice, for the child affected, in every case.[54]
[53] [2022] FedCFamC2F 214 (Brown J).
[54] Rowan & Hopkins [2022] FedCFamC2F 214, [66].
In undertaking an enquiry regarding the best interests of children, the Court is to consider that the children are to have the benefit of both of their parents having a meaningful involvement in their lives.[55]
[55] Family Law Act 1975 (Cth) s 60B(1)(a).
Section 60B(2)(c) of the Act provides that an underlying objective of the Act is to ensure that parents jointly share duties and responsibilities concerning the care, welfare and development of their children. Subject to any prevailing counter indication, the law encourages parents to share responsibilities and to make major long-term decisions for the benefit of their children.
In this case, neither party seeks on an interim basis an order for equal shared parental responsibility. I am satisfied that the weight of evidence would not support an order being made for equal shared parental responsibility at this interim stage.[56]
[56] Family Law Act 1975 (Cth) s 61DA(4).
I infer from the mother’s proposal that she urges the Court to place greater weight on the legislative provisions designed to protect the children from emotional and psychological harm and from alleged coercive and controlling behaviour by the father.
In considering the children’s best interests I consider that the following subsections of section 60CC(3) are relevant on the facts of this case:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long - term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
As to the issue of family violence, section 4AB of the Act sets out the definition of family violence as follows:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) (emphasis added), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
CONCLUSIONS
Interim Living Arrangements
It is the mother’s case that the father has behaved in a way to coerce or control X and has prevented X from keeping connections with his mother and maternal family. In other words, that the children have been exposed to family violence as defined in the Act by their father. The mother is concerned that without urgent Court intervention, her relationship with X will be further damaged and that it is only a matter of time before the father increases pressure on Y.
It is important for the Court to recognise the father’s denials of the mother’s allegations which at this stage remain untested. I am not entitled to accept the mother’s allegations over the vehement denials of the father unless supported by corroborative or independent evidence.
The father promotes an order reinstating week about shared care with both children. This is despite the evidence of both parties suggesting that the shared care arrangement has been an abject failure for the following reasons:
(a)The parties agree that the strict terms of paragraph 2 (week about care) of the Heads of Agreement have broken down. The father asserts he was abiding by X’s wishes in attempting to implement a “9/5” arrangement and by not following the terms agreed upon by the parties. Arguably, he also failed to abide by paragraph 11 of the Heads of Agreement by this conduct. He was wrong to not discuss any proposed variation with the mother to obtain her consent. Failing her agreement, the father could have filed an application seeking relief from the Court. He did not do so;
(b)Only the mother implemented the “MyFamilyWizard” Parenting App to assist the parties in their communication as per paragraph 3 of the Heads of Agreement. The father alleges he had trouble downloading the App on his telephone. Nearly two years later, the parties have been unable to agree a Parenting App to assist in their communication;
(c)The father only enrolled in the parenting course D Program in early 2024 as per paragraph 4 of the Heads of Agreement. He was required to do so within 21 days;
(d)The parties have not organised psychological treatment for the children as they had agreed as per paragraph 6 of the Heads of Agreement;
(e)The father attended only one session with Dr H who was to assist the parties to improve their communication and reducing their conflict and to work towards providing the children with a “safe and supportive environment.” The co-parenting counselling never happened as set out in paragraph 7 of the Heads of Agreement;
(f)The parties came into dispute in early 2024 about interstate travel even though it was clearly foreshadowed in paragraph 8 of the Heads of Agreement;
(g)The parties allege that the other has continued to discuss the care arrangements with and denigrate the other to the children in breach of paragraph 9 of the Heads of Agreement;
(h)The co-parenting relationship between the parties could be described as “high conflict” and each view the other through a lens of suspicion; and
(i)The parties do not trust one other, and each allege that the other has “weaponised” the children in these proceedings. The mother asserts that the father has acted in a way to alienate X from her and the maternal family. The father asserts that the mother has prioritised her relationship with Mr B and has refused to accept the children’s stated wishes.
Whilst I am not able to make findings about parental influence at this interim stage, I am concerned to place any emphasis on the children’s wishes where they have been placed in the middle of a parental dispute and are acutely aware of this litigation. In my view, a high degree of caution should be applied in reliance upon any stated wish of the children in the current circumstances.
For all those reasons, I do not consider at this interim hearing that a return to a shared care arrangement is in the children’s best interests.
It is well accepted that the Court is not bound by the proposals of the parties.[57] The authorities emphasise that the role of the Court in making a best interests determination may from time to time require that Judge to look beyond the proposals not in an “unfettered manner” but in the context of the evidence in the proceedings as a whole.[58]
[57] U v U (2002) 211 CLR 238, [80]
[58] Kearney & McMaster [2024] FedCFamC1A 2, [17]
In assessing the children’s living arrangements pending the production of the Family Report, I consider that the children should have an opportunity spend an uninterrupted period in the care of their mother during the forthcoming school holidays before spending a smaller block period with the father at the end of the second week. It is the mother’s relationship with the children which as been impacted the most by the disruptions of the past six weeks and in my view an extended period is required for the children resume a normal relationship with their mother. Parity of school holiday time is not appropriate for these holidays. Thereafter, and in balancing the need for the children to have stability whilst maintaining a relationship with both parents, I consider that the orders set out at the commencement of these Reasons are in the children’s best interests.
The Court remains very concerned about the capacity and willingness of the father to support the children’s relationship with the mother and the level of influence that the father has over both children, and particularly X. I am unable to find at this interim stage whether such influence is an unintended by-product of the father’s distress at the end of the relationship or a deliberate campaign on his behalf as the mother alleges. The father concedes that he has been emotionally distressed by the party’s separation and the commencement of the mother’s new relationship.[59] He only commenced psychological assistance in early 2024 and has had three sessions with Mr G. The father’s professional relationship with Mr G is in its infancy.
[59] See the Outline of Case Document of Mr Moneas filed 8 April 2024 at paragraph 15.
Had it not been for the orders promoted by the mother for alternate weekend time and the submissions made by the Independent Children’s Lawyer in relation to the children’s need to spend meaningful time with the father, the Court would have considered a different care configuration at this interim stage. I accept that care needs to be taken in addressing X’s time with the father as submitted by the Independent Children’s Lawyer lest it have a deleterious impact on his relationship with the mother. The speed in which X has developed an apparently negative attitude to his mother since early 2024 is highly alarming. Why this is so remains a matter of conjecture. Both parents have an overarching responsibility to support the children’s relationship with the other parent.
During the next tranche of the proceedings, I consider that it is in the children’s best interests for X and Y to be collected by the mother from the Court Childrens Services and to remain in her care until 24 April 2024, in the second week of the April school holidays. This will allow an uninterrupted block of time for the children to settle into her care and spend time with her without the demands of school and external influences. If there is any difficulty with handover to implement the terms of this order today, then I will give the mother liberty to relist on short notice by way of joint correspondence to my Chambers. The father offered week about care commencing with the mother on Friday 12 April 2024 and submitted that he, as X’s father, was confident that X would comply. The Court has accepted his reassurance in crafting the orders made this day and has not made an order for a Recovery Order as sought by the mother.
Given my ruling below in relation to the psychiatric report of the father, I do not propose to make a moratorium for three weeks as sought by the mother. I consider that the period provided for in these orders is in the children’s best interests. The children will then spend a smaller uninterrupted period with the father for the balance of the school holidays before returning to commence for the new school term.
Upon the school term commencing and pending further order I consider it in the best interests of the children that they live primarily with the mother and spend substantial time with the father for three consecutive nights per fortnight. The mother promotes alternate weekends from Friday to Sunday. I consider that the handovers should wherever possible occur at the children’s school and in the absence of the other parent. I consider that the children’s best interests are served by having a primary home base with one parent and spending substantial time in the care of the other.
For the reasons provided herein, the Court prefers the mother as the primary parent at this stage. I consider that such an arrangement combined with school holiday time is meaningful time as prescribed in the Act. “Meaningful” is a qualitative and not a strictly quantitative adjective. It is not necessary that the relationship in question be optimal.[60]
[60] Mazorski & Albright [2007] FamCA 52; McCall & Clark [2009] FamCAFC 92; Holding & Neville [2023]
I should also record that the time spending has been specifically structured to enable the children to be with the mother on the Mother’s Day weekend. The children will enjoy the Orthodox Easter weekend with their father.
Psychiatric Report of the Father
I decline to make an order as sought by the mother that the father undergo a psychiatric report from Dr J and further, that the father’s time with the children be contingent upon its provision and/recommendations. The order is not supported by the Independent Children’s Lawyer. The father has recently commenced attending upon Mr G clinical psychologist. I consider that a report from a treating practitioner is likely to be of more help to the Court than a one-off appointment with a non-treating psychiatrist. It may also be useful for Family Consultant Ms C to speak with Mr G as part of the Family Report but I leave that to her professional discretion.
Injunction in relation to Mr B
During submissions, the father’s counsel conceded that the father accepted on the available evidence, that Mr B did not pose a risk to the children. Despite this significant concession, the father still sought a mandatory injunction restraining the mother from permitting any contact or communication between the children and the mother’s partner, Mr B at any time that the children are in her care. The proposed order is supported by the Independent Children’s Lawyer.
Through her counsel, the mother invited the Court to make an order that she would be personally present on any occasion that the children and Mr B come into contact. The mother is in a relationship with Mr B but does not live with him. Mr B is also the mother’s landlord.
I propose to adopt the order promoted by the mother.
Whilst not pleaded I will proceed on the assumption that the injunctive relief is sought pursuant to section 68B of the Act. The Court has held that orders pursuant to section 68B of the Act are informed by the best interests test but not the paramountcy principle.[61]
[61] Hedlund& Hedlund [2021] FedCFamC1A 84; Flanagan & Handcock [2000] FamCA 150;
I consider that on the evidence before the Court and considering the concession made by the father that Mr B does not pose a risk to the children, that the injunction offered by the mother is appropriate for the welfare of the children.
Family Therapy/Psychological treatment of the children
The Court is invited to make an order by consent in terms of paragraph 2 of the draft Minute of Order.[62]
[62] See ‘Exhibit I1’.
I decline to make that order in the absence of a better understanding as to what the therapy or psychological treatment is to be directed to, who will undertake it, what documents are to be provided and why it is required.
At present, I am of the view that the best outcome for these children is to remove them from the epicentre of the parental dispute and to allow a period of time for them to resume normal sibling and parental relations pending production of the Family Report.
For all the above Reasons, the Court makes the Orders as set out at the commencement of this Judgment.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 11 April 2024
FedCFamC2F 1646.
EJK & TSL [2006] FamCA 730; Bennett & Bennett [2001] FamCA 462.
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