Sachin & Sachin (No 2)
[2024] FedCFamC2F 51
•23 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sachin & Sachin (No 2) [2024] FedCFamC2F 51
File number(s): MLC 10441 of 2020 Judgment of: JUDGE BURT Date of judgment: 23 January 2024 Catchwords: FAMILY LAW – Parenting – where the trial judge declined to make final orders after four day final hearing – interim orders made – unacceptable risk – three children aged 14, 11 and nine – middle child with Autism Spectrum Disorder – mother primary carer of the children – children exposed to mother’s strongly formed views of the father – history of high conflict changeovers – mother alleging history of serious family violence perpetrated by the father – no findings of family violence – held – interim change of residence to father – facilitated handover by Court Children’s Services – sole parental responsibility to the father – moratorium of time with mother for a period of three months, thereafter, supervised time – family therapy – adjourned for a period of six months. Legislation: Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 65DAA
Cases cited: Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 67 Fam LR 92; (2017) 91 ALJR 402; (2017) 341 ALR 179; (2017) 259 CLR 662
Grella & Jamieson [2017] FamCAFC 21
In the Marriage of Hall [1979] FamCA 73; (1979) FLC 90-713; (1979) 5 Fam LR 609
Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092, (2022) 65 Fam LR 288
Johnson & Page [2007] FamCA 1235; (2007) FLC 93-344
Sachin & Sachin [2023] FedCFamC2F 1337
Masson v Parsons [2019] HCA 21; (2019) 59 Fam LR 503; (2019) 368 ALR 583; (2019) 266 CLR 554
Mazorski & Albright [2007] FamCA 520; (2008) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405; (2009) 41 Fam LR 483
Oberlin & Infeld [2021] FamCAFC 66; (2021) FLC 94-017; (2021) 63 Fam LR 88
Potter & Potter [2007] FamCA 350; (2007) FLC 93-326; (2007) 37 Fam LR 208
Scott & Scott [1994] FamCA 12; (1994) FLC 92-457; (1994) 17 Fam LR 420
Division: Division 2 Family Law Number of paragraphs: 252 Date of hearing: 26 and 27 October 2023; 10 November 2023 Heard at: Dandenong Delivered at: Melbourne Counsel for the Applicant: Mr Gates Solicitor for the Applicant: Bentleys Barristers and Solicitors The Respondent: In person Counsel for the Independent Children's Lawyer: Ms Villella Solicitor for the Independent Children's Lawyer: Trapski Family Law ORDERS
MLC 10441 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SACHIN
Applicant
AND: MS SACHIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURT
DATE OF ORDER:
23 JANUARY 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged save for the appointment of the independent children’s lawyer.
2.All extant applications be adjourned to 29 July 2024 at 9.30am at Suburb G for mention.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Live with
3.The children X born in 2009, Z born in 2012 and Y born in 2014 (collectively, “the children”) live with the father.
THE COURT ORDERS THAT:
Facilitated handover
4.The mother is directed to leave the Court precinct immediately.
5.Pursuant to s.65L of the Family Law Act 1975 (Cth) (“the Act”) IT IS REQUESTED THAT a Court Child Expert be available to meet with the children to:
(a)facilitate the children’s change of residence in accordance with these orders;
(b)explain the orders to the children;
(c)provide assistance, in accordance with his/her professional expertise and opinion, to the parties and the children with respect to the children’s change of residence; and
(d)provide a brief memorandum pursuant to s.11F of the Act to the Chambers of Judge Burt by email to … within 14 days of the facilitated handover as to the outcome of the handover and any matters of relevance for the Court to note. That memorandum will be held on the Court file and released to the parties upon receipt, unless otherwise directed.
6.The independent children’s lawyer meet with the children at the facilitated handover, to assist in explaining the orders to the children.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Parental responsibility
7.The father have sole parental responsibility for the children provided that:
(a)the father shall notify the mother in writing of his intention to make a long-term decision for the children, not less than 14 days prior to making such a decision;
(b)the mother advise the father in writing of her views with respect to the issue within seven days of receipt from the father;
(c)the father is to consider the mother’s response (if any) when making his decision; and
(d)the father to advise the mother in writing of his decision once made.
Communication with medical professionals
8.Within seven days of these orders, the mother provide the father in writing with a list of all medical professionals upon whom the children have attended for the last six months, including but not limited to:
(a)Ms H;
(b)Ms J;
(c)Dr K;
(d)Dr L;
(e)Dr M; and
(f)Dr N.
9.Within 28 days of the mother’s compliance with Order 8 herein, the father contact each of the medical professionals identified by the mother in order to ascertain whether and when each professional considers that the children or any of them should attend upon that professional.
10.Having communicated with each medical professional in accordance with Order 9 herein, the father shall:
(a)in the event that he considers that it is not in the best interests of the children, or any of them, to attend upon a medical professional pursuant to the view expressed by that professional, he shall forthwith consult with the independent children’s lawyer; and
(b)notify the mother via OurFamilyWizard within seven days of each appointment attended by the children, or any of them, with any of the medical professionals.
Supervision and spend time with the mother
11.The parties do all acts and things required to register with O Contact Centre, or any other agreed supervision service (“the supervision service”) within 14 days of these orders.
12.On a date to be identified by the supervision service in consultation with the parties and no less than three months after these orders, the children spend time with the mother supervised by the supervision service as follows:
(a)once per week for a period of no less than three hours at times and venues as agreed between the parties and the supervision service;
(b)changeover to be determined by the supervision service in consultation with the parties; and
(c)the father pay the initial costs associated with the supervision service until those costs reach $1,000 with the costs to be paid by the mother thereafter including the cost associated with the report pursuant to Order 11 herein.
13.Pending the commencement of the time pursuant to Order 12 herein, the children have no contact or communication with the mother.
14.The mother obtain a report from the supervision service at the conclusion of no less than eight periods of time spent with the children and such report to be filed at least 14 days prior to the adjourned date specified in Order 2 herein.
Medical
15.In the event the mother attends upon a psychologist, the mother provide the psychologist with the following:
(a)a copy of these Orders and reasons for judgment delivered today;
(b)a copy of the family report prepared by Ms P dated 7 November 2022;
(c)a copy of the reasons for judgment delivered by his Honour Judge McGinn on 18 October 2023; and
(d)copies of the affidavits of Ms C filed on 10 May 2022 and 24 November 2022.
16.The father engage forthwith with Z’s treating paediatrician, Dr K, and follow all recommendations of Dr K.
17.Within 14 days of these orders, the mother do all things and sign all documents required to remove herself as the NDIS nominee for Z and nominate the father in her place.
Family therapy
18.The father and children to attend upon Ms C for the purpose of family therapy and to assist with the transition of the children into the father’s care, at such times, duration and frequencies as recommended by Ms C with the cost to be borne by the father AND IT IS REQUESTED THAT Ms C conduct the therapy face to face.
Communication between the parents
19.The parents communicate by the parenting application OurFamilyWizard only in relation to the care and welfare of the children and the father bear the cost of using this application, or otherwise use a free parenting application as agreed between the parties.
20.Each parent shall keep each other informed of their current address, email and telephone number, and inform the other parent of any change within 48 hours of change.
21.The father keep the mother informed via OurFamilyWizard of any significant injury or illness experienced by the children or any of them.
Miscellaneous
22.If one or more of the children, while in the father’s care, runs away from the care of the father to the mother (or to a location of which the mother is otherwise aware):
(a)the mother forthwith contact the father to inform him that the child/ren have arrived in her care or at the relevant location; and
(b)the mother forthwith return the child/ren to the father at Suburb B Police Station.
23.The mother, her servants and agents, be and are hereby restrained from attending at any school that the children attend.
24.Without admitting necessity for same, each party, by themselves, their servants and/or agents be restrained from denigrating, abusing, insulting or belittling the other party or his/her extended family to or in the presence and/or hearing of the children.
Airport watch list
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
25.The father and his servants and agents be restrained from removing or attempting to remove X born in 2009, Z born in 2012 and Y born in 2014, or any of them, from the Commonwealth of Australia,
26.The mother and her servants and agents be restrained from removing or attempting to remove X born in 2009, Z born in 2012 and Y born in 2014, or any of them, from the Commonwealth of Australia,
27.X born in 2009, Z born in 2012 and Y born in 2014, or any of them, be restrained from leaving the Commonwealth of Australia.
THE COURT REQUESTS THAT:
28.The Marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories take all necessary steps to give effect to these orders, including all things necessary to include X born in 2009, Z born in 2012 and Y born in 2014 on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain X, Z and Y on the airport watch list until further order of the court .
Updated family report
THE COURT ORDERS THAT:
29.Pursuant to s.62G(2) of the Act, the parties and the children attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 12 July 2024 AND IT IS REQUESTED THAT Ms P prepare the family report, if available.
30.The family report address:
(a)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Act;
(c)the impact upon the children and upon their relationship with the mother if the Court made orders as sought by the father;
(d)the impact upon the children and upon their relationship with the father if the Court made orders as sought by the mother;
(e)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the children.
31.Each party do all things necessary to ensure the children attend upon to the Family Consultant pursuant to s.62G(3A), unless otherwise determined by the Court Child Expert that s.62G(3B) applies.
32.The parties and the children attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
33.The Family Consultant be at liberty to inspect any material filed by the parties, and:
(a)the family report dated 9 November 2022;
(b)the report from the Department of Families, Fairness and Housing dated 19 February 2021;
(c)the reasons for judgment delivered by his Honour Judge McGinn on 18 October 2023;
(d)the reasons for judgment delivered by her Honour Judge Burt on 23 January 2024; and
(e)any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent or the independent children’s lawyer.
34.Upon the family report being provided to the Court, the Court release the report and provide a copy to each party (or if represented, the party’s lawyer) and to any independent children’s lawyer in the proceedings.
35.Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
36.Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.
37.Pursuant to s.65DA(2) of the Act, 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 Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A.Pursuant to s.62B of the Act, information about courses, programs and services to help with adjusting to the consequences of these orders are set out in Attachment A.
B.At the date on which a copy of the family report is provided to any of those identified above, it may not have been admitted into evidence and may be untested and if admitted would only form one part of the evidence in the proceedings.
C.If in any proceedings there are allegations of family violence and the provisions of s.102NA of the Act apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s.102NA of the Family Law Act 1975 (Cth) applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
G.Section 121 of the Act provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
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 BURT:
INTRODUCTION
These parenting proceedings concern three children: X, born in 2009 and aged 14, Z, born in 2012 and aged 11, and Y, born in 2014 and aged nine. All of the children live with the mother. None of the children have spent time with the father since April 2023.
The primary dispute between the parties at the start of the trial was whether and how the time spent between the children and their father should resume. The parties’ positions changed significantly during the trial because the mother’s evidence increased the concerns of the father and the independent children’s lawyer about the risks experienced by the children in her care. By the end of the trial, the main issue was whether the children should be placed with the father or remain with the mother.
This was a difficult case in which I have had to balance the benefits to the children of remaining in their current home with the parent who has been their primary carer for their entire lives, with the risks arising from the mother’s strongly held, sincere but (in my assessment) misguided beliefs about the father. That decision was complicated by the needs of Z, who has been diagnosed with Autistic Spectrum Disorder (“ASD”) and whose relationship with the father is particularly difficult.
I have nonetheless concluded that the children should move to the care of the father on an interim basis and that their time and communication with the mother should be suspended for a period of three months. In my assessment, the children are at present at an unacceptable risk of harm primarily because of their ongoing exposure to the mother’s view that the father is a violent and dangerous person. The reasons for that assessment are set out in more detail below.
POSITIONS OF THE PARTIES
The applicant father, Mr Sachin, proposed at the start of the trial that for four weeks from the date of my orders, X and Y live with him and have no time or communication with the mother. During that period, he suggested that Z remain in the care of the mother and spend regular time with him.
By the end of the trial, the father sought final orders providing for all three children to live with him and to have no contact or communication with the mother for 120 days from the date of the orders. Thereafter, he proposes that the children have weekly professionally supervised time with the mother until the start of Term 1, 2025. At that point, and subject to “a satisfactory observational report” from the supervision service, he proposes a gradually increasing regime of unsupervised time progressing to alternate weekends and half of the school holidays.
The mother, Ms Sachin, did not file material in accordance with trial directions. As a result, it was unclear at the start of the trial what orders she sought. During the course of the trial, it became clear that she sought orders for sole parental responsibility and that the children spend no time with the father. This position was reflected in her proposed final orders which provided for the father to send cards, letters and gifts but spend no time with the children unless any of the children expressed a wish in writing to the father to spend time or communicate with him.
In her case outline, the independent children’s lawyer urged the Court to finalise the matter and to ensure that the children’s time with the father resumed. She reserved her position in relation to final orders depending on the findings of the Court in relation to family violence. At the end of the trial, the independent children’s lawyer proposed interim orders for the children to live with the father and have no contact or communication with the mother for three months, followed by professionally supervised time. The independent children’s lawyer seeks that the matter be adjourned to a further hearing in eight months’ time.
The detailed orders sought by each party as at 10 November 2023 are set out in Annexure “A” to these reasons, noting that Counsel for the father indicated at the end of his submissions that the father now proposed arrangements for Z in line with paragraph 7 of his minute rather than paragraphs 4 to 6.
BACKGROUND AND PROCEDURAL HISTORY
The parties agree that they began living together in 2006 and they married in 2008.
The father concedes that the mother was the primary carer of the children and that he worked full-time for all but short periods during the marriage.
The parties agree that concerns about Z began when he was about 14 months old, when his behaviour and speech regressed. He was diagnosed with Autistic Spectrum Disorder at around this time.
The father says that the relationship became difficult in 2016 and that the mother took the children to stay in a women’s refuge for four weeks in mid-2016. The mother says that this was the point at which the parties separated on a final basis. The father says that he offered to move out of the former family home so that the mother and children could move back in, which they did in mid-2016. He says that he continued to spend significant time at the former family home whilst the parties explored the possibility of reconciliation. The father says that final separation occurred in May 2017.
The father deposes to an informal agreement with the mother which saw the children spending time with him in a two-week cycle, namely from Friday to Sunday in week one and overnight on Wednesday in week two. The mother says that this arrangement was in place only from 2019 onwards and that the children spent shorter periods of overnight time with the father from 2017 to 2019. Nothing turns on this dispute as it is agreed that the children spent regular overnight time for about two years before any reports were made to the Department of Families, Fairness and Housing (“DFFH”). The father says the parties also agreed that the children would spend two weeks of the school holidays with him but that the mother did not comply with this agreement.
The father says that he notified the mother in 2019 that he was about to start living with his new partner, Ms Q. He says that the mother began at this point to send him abusive text messages.
The s.67Z response prepared by DFFH dated 19 February 2021 indicates that the first report was made in August 2019, alleging that the father had perpetrated family violence to the mother during their relationship and had since separation sent her abusive messages.
Further reports to DFFH in February 2020 and June 2020 alleged that the father had used inappropriate physical discipline on the children. During the investigation that followed the report in February 2020, X and Z were interviewed. X did not allege that the father had hit him but complained of the father shouting. Z said the father hit him on the bottom, head and “[…]” (which the report suggests and the mother confirms was how Z referred to his penis). The response indicates that the father conceded that he had “smacked” all of the children, had most recently smacked Y in late 2019 but had not smacked X or Z in years. No further action was taken by DFFH.
On 6 July 2020, the father wrote to the mother indicating that he would issue court proceedings unless agreement could be reached about the children’s time with him.
In mid-2020, the mother applied for a family violence intervention order and on that date an interim intervention order was made.
The father says that the mother suspended all time and communication between the children and him on or about 31 August 2020.
The father issued proceedings in this Court on 25 September 2020.
At a hearing on 1 February 2021, interim orders were made by consent providing for the children to spend time with the father supervised by O Contact Services and for telephone or video calls to take place on Sunday and Wednesday afternoons.
Supervised time did not commence until 20 June 2021, over four months after it was ordered. The father alleges that the mother’s conduct was responsible for that delay.
On 4 October 2021, orders were made for the parties and children to attend reportable family therapy to be conducted by Ms C.
On 21 April 2022, orders were made for the children to spend unsupervised time with the father from 1pm to 3pm on alternate Sundays. Initially, Z did not attend, but he began to attend on 25 September 2022.
The father complains that the mother frequently behaved poorly at changeover particularly on 3 July 2022 and on 25 September 2022. The mother denies doing so.
The father deposes that on 3 July 2022, he received an email from the mother one hour prior to changeover with detailed instructions, including photographs, as to how changeover at McDonalds would occur. He says that when he attended McDonalds for changeover, he could not initially see the children from the entrance but saw them when he walked around a corner of the restaurant. The father says that he greeted the children only, collected them and did not communicate with the mother. The father was interviewed by the police in mid-2022 and charged with a contravention of an intervention order listing the mother as an affected family member, by coming within 5 metres of her. The father says that the mother reported this alleged breach to the police approximately one week after the changeover. The Court understands that the police withdrew this charge in late 2022.
On 28 November 2022, consent orders were made providing for X and Y to spend time with the father fortnightly on four occasions, with further orders of the Court providing for time each alternate weekend from Friday to Monday. Those orders also suspended Z’s time with the father save that Z was to be permitted, if he wished, to attend for time with X and Y in December 2022, but not for the periods of overnight time from January 2023 onwards. The orders provided for X and Y to continue to attend family therapy with Ms C. Following the incident during Z’s attendance on Ms C which is discussed elsewhere in these reasons, the orders did not provide for Z to attend further upon Ms C. Instead, the orders provided for Z to attend non-reportable individual therapy with a psychologist to be nominated by the independent children’s lawyer, and for Ms C’s work with Z to be suspended until both the child psychologist and Ms C considered that it could resume.
Difficulties arose at changeover on 23 December 2022 when the mother says that Z wanted to spend time with the father but the father would not allow him to attend with the other children. The mother says that the father told her that he was not ready for Z to attend and then asked X and Y if they were coming with him. I adopt the inference drawn by the judicial officer who considered the father’s contravention application (“the contravention judge”), namely that “the children [X] and [Y] refused to go with their father and the mother did nothing more to encourage them to go with their father in circumstances where the father was under an obligation to have [Z] with him under [the orders of November 2022]”. After communication between the parties’ solicitors, time eventually took place between X and Y and the father later that day. The father’s solicitors also indicated to the mother that the father did not consider it in Z’s best interests to spend more than a short period time with him “until he has received support from a mental health professional”.
There was a further changeover on 6 January 2023 in respect of which both parents allege that the other behaved poorly. That incident is discussed later in these reasons.
Despite his qualms about Z’s behaviour, the father took all three children with him for time on 20 January 2023. The next day the father took them for a swim at a local park. Following a dispute with Y over water toys, Z ran away from the father. The father was unable to find him and contacted the police and the mother. The father deposes that the police initiated a search for Z, and at around 5:30pm, the police found Z at the mother’s home (some 50 minutes after he ran away from the father) and called the father to inform him accordingly. The mother says that Z made his own way back to the her home at around 5:40pm and the she advised the father to that effect at around 6:00pm. Z has not spent time with the father since that date.
On 3 February 2023, the father went to the school attended by Z and Y to collect Y for weekend time. He says that Z attacked him with a large stick. I adopt the findings of the contravention judge who found that the father acted appropriately, followed the directions of the principal and did not, as the mother alleges, squeeze Z or use Z’s hand to punch Z. The father did manage to collect Y and arrange for X to be collected so that time could take place that weekend.
In early 2023, the father applied for an interim family violence intervention order which was made in his favour.
X and Y spent time with the father on the weekends of 3 March 2023 and 17 March 2023.
X and Y spent time with the father on the weekend of 1 April 2023. The father says that during that weekend, and with Y’s consent, he cut about two inches off the ends of Y’s hair because there was a knot which he was unable to remove with a brush. The mother describes this event as the source of ongoing trauma for Y.
None of the children have spent time with the father since the weekend of 1 April 2023.
The father alleges that the mother and her acquaintance obstructed his attempts to effect changeover on 14 April 2023. He deposes in his affidavit filed on 4 October 2023 to further unsuccessful attempts to collect X and Y from various locations including school, McDonalds and Suburb B police station but says that on each occasion the children refused to come with him. Those attempted changeovers are discussed elsewhere in these reasons.
The father issued a contravention application on 1 June 2023. That application was heard on 19 September and 16 October 2023. The findings resulting from the contravention application are discussed later in these reasons.
The final hearing in respect of parenting took place before me on 25, 26 and 27 October and 10 November 2023.
On the morning of 25 October 2023, Counsel for the mother made an oral application on his own behalf and that of his instructing solicitor for permission to withdraw from the proceedings. He said that the mother had made it clear that she did not wish to be represented by him or his instructor. He did not explain the reasons for the mother’s decision, and I did not ask him to do so.
Counsel for the father indicated at the start of the final hearing that orders had been made bifurcating property and parenting matters. Scrutiny of the court file indicates that no such orders have in fact been made.
Counsel for the mother then indicated that the mother had asked him to seek an adjournment on her behalf before withdrawing from the proceedings. I gave permission for that application to be made orally and heard submissions from all Counsel. I then dismissed the application for an adjournment and gave ex tempore reasons in that regard.
Having done so, I asked Counsel for the mother if it was still her preference to proceed unrepresented, noting the implications of the order pursuant to s.102NA of the Act that had been made on 21 October 2022. He confirmed that he had advised her of the options that would be available to her if she represented herself. I then gave permission to Counsel to withdraw.
I stood the matter down to enable the mother to consult with the duty lawyer. I then reminded the mother that she would be unable personally to cross-examine the father and I advised the mother of the process involved for the final hearing. My associates provided her with a copy of s.60CC of the Act which I explained contained the criteria that I would apply to my decision.
During the course of the trial, the mother made two further oral applications for an adjournment. I heard submissions from the mother and the other parties in relation to both applications. I gave ex tempore reasons for the dismissal of both applications.
MATERIAL RELIED UPON
At the start of the trial, I asked the mother to indicate what documents she relied upon, noting that she had not filed a trial affidavit pursuant to my orders made on 28 November 2022 and 13 February 2023. The mother sought leave to rely upon a number of previous affidavits. Initially, the father opposed that application but then consented on the basis that he, too, should be permitted to rely on material filed for previous hearings.
The father relied upon the following documents:
(a)his case outline filed on 18 October 2023;
(b)his further amended initiating application filed on 4 October 2023;
(c)his trial affidavit filed on 31 October 2022;
(d)his updating affidavit filed on 4 October 2023;
(e)paragraphs 5 to 95 of his affidavit filed on 19 March 2021;
(f)paragraphs 4 to 20 of his affidavit filed on 2 June 2021, including annexure S-1;
(g)paragraphs 14 to 26 of his affidavit filed on 19 April 2022 including annexure S-1;
(h)his affidavit filed on 6 June 2023 in support of his contravention application;
(i)the affidavit of Ms Q, partner, filed on 31 October 2022;
(j)the affidavit of Dr R, psychiatrist, filed on 6 September 2021, annexing a psychiatric assessment of the mother dated 25 August 2021 and of the father dated 24 August 2021 (“the reports of Dr R”);
(k)the affidavit of Ms C, family therapist, filed on 10 May 2022, annexing a family therapy report dated 19 April 2022 (“the first family therapy report”);
(l)the affidavit of Ms C, family therapist, filed on 24 November 2022, annexing a family therapy report dated 21 November 2022 (“the second family therapy report”);
(m)the affidavit of Ms S, professional supervisor, filed on 31 July 2023, annexing an observational report for the period between 20 June 2021 and 26 June 2022 (“the observational report”);
(n)the affidavit of Dr M, paediatrician, filed on 6 October 2023, annexing a medical report in respect of Z dated 25 September 2023 (“Z’s medical report”)
(o)the family report prepared by Court Child Expert Ms P dated 7 November 2022 (“the family report”); and
(p)the s.67Z response prepared by DFFJ dated 19 February 2021.
The mother sought and was given leave to rely upon:
(a)her affidavit filed on 29 January 2021;
(b)her affidavit filed at 10:27am on 1 June 2021;
(c)her affidavit filed on 14 April 2022; and
(d)her affidavit filed on 22 August 2023 in response to the father’s contravention application.
The independent children’s lawyer relied upon the following documents:
(a)her case outline filed on 20 October 2023;
(b)the Dr R reports;
(c)the observational report;
(d)the family report;
(e)the first family therapy report; and
(f)the second family therapy report.
EVIDENTIARY ISSUES
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
Portions of the hearing took place via Microsoft Teams. Although there were some disruptions resulting from the loss of sound or image from time to time, I am satisfied that no evidence was lost.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The father gave his evidence in a calm and reflective fashion. My assessment of him was the same as that of Ms P who noted that he “presented as thoughtful and genuine”. There was no sign of anger on his part towards the mother in spite of his allegations against her. In fact, he appeared to go to some effort to avoid directing blame at her.
The father’s evidence in cross-examination was consistent with his filed material. It was not wholly consistent with all third-party documents, for example in relation to the admission recorded in the s.67Z response that he had smacked the children, which he said was inaccurate. His evidence in relation to family violence was, however, consistent with the account which he gave to Ms P. He presented for the most part as a reliable historian.
The father’s answers were at some points a little circuitous, for example when asked what he would do if Y begged to speak to the mother during the four-week moratorium on communication which he proposed at that time. He impressed as frank and open. For example, he made appropriate admissions about the difficulties he had experienced with the behaviour of the children during time. He was readily able to make admissions against interest, for example, that it would have been beneficial for him to speak to Z’s paediatrician but that he had not yet done so.
The mother said repeatedly during her evidence and submissions that her behaviour is affected by Post Traumatic Stress Disorder (“PTSD”). The basis on which she was diagnosed with this condition by Dr R is discussed later in these reasons. Neither the contents of Dr R’s report nor any evidence adduced by the mother explained the connection between this condition and the mother’s presentation in Court, which included laughter at inappropriate moments, and an apparent difficulty in answering the questions put to her rather than embarking on an explanation of unrelated issues.
Whilst I cannot be satisfied on the evidence before me that the mother’s presentation was the result of PTSD, I take judicial notice of the fact that trauma, regardless of its source, can present in different ways in different people and that it is possible that the mother’s presentation in Court was affected by the stress of representing herself as well as her mental health challenges.
I do not therefore attach weight to the mother’s demeanour in terms of assessing her credibility. Rather, I will consider the extent to which her evidence is reliable in the context of the other evidence before me.
There are significant internal inconsistencies in the mother’s affidavit evidence. For example, in her affidavit filed on 1 June 2021, she says that she keeps comprehensive records of all phone calls between the children and the father, but in her affidavit filed on 14 April 2022 she says provides the children with “requisite privacy”. She was unable to provide any convincing explanation for this discrepancy when it was put to her in cross-examination.
There are also innumerable inconsistencies between the mother’s evidence and other material before me. It is particularly difficult to reconcile her account of the incident on 6 January 2023 in her affidavit of 22 August 2023 with the video and audio recordings discussed elsewhere in these reasons. Equally striking is her insistence that both Ms C and Ms S have filed affidavits containing untruthful information. The extent to which her account of the father’s attendance at her home in early 2020 has shifted over time is discussed elsewhere in these reasons.
In my assessment, the mother tends to reject any information which does not align with her view of the father as a dangerous and violent person, or which suggests that the children’s allegations against the father are not reliable. She is equally prone to exaggerating and at times inventing information which supports that view. Her desire to persuade the Court that the father has persecuted her and the children is so powerful that it overwhelms her ability to give accurate and reliable evidence. The weight which I can attach to her evidence is accordingly diluted.
Ms Q
Ms Q is the father’s partner and began living with him in or around late 2019. The father relied on her affidavit filed on 31 October 2022. She attended for cross-examination on 26 October 2023.
In her affidavit of 29 January 2021, the mother accuses Ms Q of pinching the children to control them. In her evidence before me, she accused Ms Q of colluding with the father to set her up by the manner in which she made a video recording of the changeover on 6 January 2023. The mother did not put any of these allegations to Ms Q in cross-examination.
Ms Q presented as a calm and measured witness. Her evidence was not successfully challenged in cross-examination with respect to any relevant issues.
Ms Q was also interviewed by Ms P. I accept and agree with her assessment of Ms Q as demonstrating thoughtfulness about the children’s experience and her role.
Dr M
Dr M is a consultant paediatrician. He was instructed by the independent children’s lawyer to conduct a paediatric assessment of Z. His report dated 25 September 2023 was annexed to his affidavit filed on 6 October 2023. Dr M was not required to attend for cross-examination and his evidence is therefore unchallenged.
Dr M consults at the same clinic as Dr K, who is Z’s treating paediatrician. Dr K asked Dr M to prepare a medicolegal report incorporating clinical information provided by her to Dr M.
For the purposes of his assessment, Dr M saw X and Y as well as Z and also spoke over the telephone with Ms C.
In his report Dr M emphasises that although Z has experienced the typical areas of difficulty common amongst children who have an ASD diagnosis, such as social communication, inflexibility and differences in sensory perception, the diagnosis itself does not capture the “breadth and complexity” of Z’s personality, abilities, and preferences.
Dr M was reluctant to attempt to answer the question posed by the independent children’s lawyer as to Z’s “level of functioning” noting that the “levels” of autism set out in the current DSM-5 are sensitive to factors other than purely clinical assessment, such as the funding criteria of the NDIS.
Dr M does not consider that Z’s diagnosis has been the primary cause of difficulties in his relationship with his father. Instead, he opines that:
…the significance of [Z]’s autistic makeup, for the question of his contact with his father, is that his autism exacerbates the serious emotional and relationship difficulties arising from the circumstance of parental separation, with exposure to parental conflict.
Dr M goes on to endorse Ms P’s view that Z’s presentation is linked to his experience of autism, particularly fixed, binary thinking. He notes that the primary question – and one on which he is unable to comment – is “what has led [Z] to develop such negative views of his father, and to display such relentlessly hostile behaviours”.
Dr R
Dr R conducted psychiatric assessments of both parents. His reports, dated 24 August 2021 in respect of the father, and 25 August 2021 in respect of the mother, are annexed to his affidavit filed on 6 September 2021. He attended for cross-examination by Microsoft Teams on 27 October 2023.
In relation to the mother, Dr R considered that the symptoms described by the mother including flashbacks, intrusive memories, nightmares and “freeze responses” were consistent with a diagnosis of PTSD. He notes that the mother has no prior psychiatric history and no current symptoms of any other psychiatric disorder. He opines that regular time spent by the children with the father might prolong the mother’s symptoms and suggests that the mother should receive counselling.
I asked Dr R whether his diagnosis of the mother would alter if I did not accept her allegations in relation to violence by the father. He said that in that case he would consider that she has an anxiety disorder and possibly a depressive disorder, which might not be linked to traumatic events. He noted also that some people with a history of childhood trauma can develop PTSD later in life.
In relation to the father, Dr R opines that the father has no current psychiatric disorder. He notes what he considers to be “a marked degree of superficiality” in the father when describing his own childhood and his relationship with the mother. Dr R considers the father’s denial of the mother’s allegations of violence to be “flat” and lack detail, describing him as giving “the impression of being elusive”. He expresses suspicion that the father was not “altogether truthful” in his account of the conflict between the parties.
In cross-examination for the father, Dr R conceded that his assessment of the father did not involve any forensic analysis of risk or of the mother’s allegations of family violence. His observations of the father were not consistent with my own observations of the father’s response to questions put to him by Counsel for the independent children’s lawyer. Dr R did not have access to all of the evidence before me. In particular, he did not have the benefit of the mother’s oral evidence or the recordings of changeover on 6 January 2023.
For all of those reasons, and while I accept Dr R’s opinion that the father has no current psychiatric disorder, I attach no weight to his assessment of the father’s general veracity in relation to the mother’s allegations.
Ms C
Ms C provided reportable family therapy to the children and parents. Her report dated 21 November 2022, incorporating where relevant information from her earlier report dated 19 April 2022, is annexed to her affidavit filed on 24 November 2022. She attended for cross‑examination by Microsoft Teams on 27 October 2023.
Between May 2022 and November 2022, Ms C saw the father on 11 occasions (four with the mother, five with the children and two individually), the mother on four occasions (with an individual discussion with the mother preceding each joint discussion) and the children on five occasions, all of which also included the father.
Ms C said that during the course of therapy, the father’s experience (and her assessment) was that his relationship with X and Y had significantly improved. In answer to questions from the mother, she explained that X had been able to share his concerns with the father and observe the father listening to them and taking them seriously.
Ms C noted significant difficulty in Z’s sessions with the father, describing them as “fraught and not supportive of repair to that relationship” and noting that on 25 October 2022, Z physically attacked the father during a session.
Ms C noted that whilst the father had engaged positively and constructively with therapy, the mother repeatedly expressed no confidence in it. She reports the mother as saying on 20 July 2022 that the children had “moved backwards… the children are feeling constantly rejected by [the father].” She summarises the many concerns expressed by the mother about therapy, and notes that she presented as “scornful” towards the father.
At the end of her report, Ms C opines that:
Based on the information provided for this reportable family therapy and my observations and assessments, the children [X], [Z] and [Y] will benefit from a meaningful relationship with their father as much as with their mother.
Until [the mother] can reach a more settled and nuanced appreciation of [the father’s] capacity as a parent however, it is unlikely that she will support progressively increased time for the children with their father.
[The father] has demonstrated considerable willingness to comply with the expectations of the Court and ... he has been responsive to interventions and recommendations.
More than [the mother], [the father] has utilised the resource of a family therapy approach.
During her oral evidence, Ms C explained that she saw the mother, Z, the father and Ms Q for a further session on 23 November 2022. She said that Z agreed to come into the room where the father and Ms Q were waiting but then started to become angry and swear. She said that he picked up her phone and threatened to throw it if he was not allowed to return to the mother. She said that the father spoke to him calmly and asked him to sit down and talk with them. Z continued to swear and did in fact throw Ms C’s phone on the ground. Ms C said she then took Z back to the mother but Z continued to become heightened. After a brief conversation with the mother, Ms C suggested that the mother and Z leave. She said that during that conversation the mother criticised her for not having a safety plan and accused her of lying to the Court.
The mother alleged during her own evidence under cross-examination that Ms C had lied about a number of events, including that X had told Ms C that the mother had shown him a photograph of the father hitting him over the head with an object, or that Z had told Ms C that the mother had told him that the father had threatened to kill her.
In her cross-examination of Ms C, the mother asked why the children had not been given letters from the father which Ms C had told the mother he would write. Ms C explained that therapy had progressed to the point where the father was able to tell the children directly the information that he had put in the letters. The mother also asked why she had not been provided with the educational material about child development which Ms C had provided to the father and Ms C accepted readily that this was an oversight on her part.
The mother raised a number of other issues during her cross-examination of Ms C, for example that she had not warned the mother that Ms Q would be present on 23 November 2022. However, she did not put to Ms C that her reports were inaccurate, or that she had lied to the Court or the parties. In the absence of any cross-examination on that topic, I attach no weight to the mother’s allegations in that regard.
In my assessment, Ms C gave accurate and reliable evidence about the therapy which she had provided for the children and the parents. Her approach was as carefully considered and impartial as the Court would expect from such an experienced family therapist.
In answer to a question from me, Ms C said that she would be willing to continue to work with Z and the other children as long as there was a shared understanding and cooperative approach from both parents.
The Family Consultant – Ms P
Ms P prepared a family report dated 7 November 2022 and attended on 27 October 2023 for cross-examination which took place via Microsoft Teams.
Ms P’s observations and evaluations in her report are discussed elsewhere in these reasons. In that report she recommends that the children remain in the mother’s primary care and recommends that there be no time with the father if I find that he represents an unacceptable risk. If I find that he does not represent an unacceptable risk she recommends that family therapy continue and that the children’s time with the father progress to four nights per fortnight.
Ms P’s recommendations altered and developed during the course of her oral evidence. Before attending Court, she had read the affidavits of both parties in the contravention proceedings, the reasons of the contravention judge, the father’s affidavit of 4 October 2023 and the report of Dr M.
At the end of her evidence, and in answer to questions from me, Ms P emphasised that she was very worried about these children, saying that after meeting them she felt disturbed and uncomfortable, and concerned about the potential for Z in particular to “become incredibly violent when he gets older”. I share that concern.
The Court is under no obligation to accept the recommendations of a Family Consultant. Whilst the Court will usually attach significant weight to the evaluation of the Family Consultant, the Consultant does not have the same opportunity as the judge to observe the witnesses or to weigh and test the evidence.[1] However, in this case, the evaluation and observations of Ms P were consistent with my own. Neither her opinions nor the basis for them were successfully challenged in cross-examination. I attach significant weight to her evidence.
[1] In the Marriage of Hall [1979] FamCA 73 at [24], cited with approval in Andrew & Delaine [2009] FamCAFC 182.
PARENTING PROCEEDINGS – LEGAL PRINCIPLES
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children.
Section 60B of the Act sets out the objects and principles of Pt VII. The focus of the objects is on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.[2] My decision is guided by those objects and principles.
[2] Masson v Parsons [2019] HCA 21 at [8].
In deciding whether to make a particular parenting order in relation to the children, I must regard the best interests of X, Z and Y as the paramount consideration.[3] Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children's best interests. The primary considerations set out in s.60CC(2) of the Act are, as follows:
·the benefit to the children of having a meaningful relationship with both of their parents; and
·the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[3] Family Law Act 1975 (Cth) s 60CA.
In balancing these considerations, I am required to give greater weight to the need to protect X, Z and Y from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[4] It is convenient therefore to address that consideration first.
PRIMARY CONSIDERATIONS
The need to protect X, Z, and Y from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[4] Family Law Act 1975 (Cth) s 60CC(2)(b).
Family violence allegedly perpetrated by the father
The mother alleges that the father perpetrated family violence towards her and towards the children throughout the relationship. The father denies those allegations.
The mother’s failure to file a trial affidavit, and my decision to permit her to rely on material filed earlier in these proceedings, means that her allegations are spread over four affidavits and the husband’s responsive material over five affidavits, many of which contain material not relevant to the matters requiring adjudication. My task in synthesising the evidence of the parties was made significantly more difficult as a result.
Although the father’s evidence is unchallenged, it is necessary to evaluate the mother’s allegations for two reasons: firstly, to assess whether any aspects of the evidence of the father are improbable or incredible and should be rejected for that or some other reason,[5] and, secondly because those allegations are the basis on which the mother asserts that the children should spend no time with the father. Helpfully, the father was cross-examined by Counsel for the independent children’s lawyer about the most serious allegations of family violence made by the mother.
[5] Scott & Scott [1994] FamCA 12.
Allegations that the father perpetrated family violence during the relationship
The mother makes a series of allegations in this regard in her affidavit filed on 29 January 2021, namely that the father controlled her friendships, prevented her from leaving the family home, and damaged her property including her mobile phone. She alleges further that he forced her to engage in sexual activity including ejaculating on her whilst restraining her and would make her watch pornographic material.
The father denies all of these allegations save that on one occasion during an argument he lost his temper and hit the wall with an open palm.
The mother alleges specifically that the father assaulted her on the following occasions:
(a)In 2006, she says that he hit her on the side of her head and ruptured her eardrum. The father said in cross-examination that he did not hit her and could not remember if she had ruptured her eardrum in some other manner at this time;
(b)In 2009, she says that the father punched her on the left arm while she was holding X with sufficient force that the father broke his wrist and required surgery. The father denied that he was violent and says that he broke his wrist during a fall;
(c)She alleges that on a number of occasions in 2010 he assaulted her by kicking and spitting on her and put his hands around her throat and neck. The father denied in cross‑examination that he had done so; and
(d)In 2011 she says that he hit X across the face with an object. The father denied in cross‑examination that he had done so.
The mother alleges that in mid-2016, during an argument about whether Z should sleep in the parental bed, the father attacked the mother as she lay in bed between Z and Y, slammed her head and body repeatedly into the bed and said, “I am going to murder you, you fucking bitch”. In cross-examination, the father said that he and the mother did have a conversation on that date about co-sleeping but denied that he used or threatened violence against her.
The mother also alleges that the father behaved violently towards third parties, including threatening a stranger with a weapon in 2004 because he looked at the mother, making threats against the maternal grandmother, and punching a man in a shopping centre in Sydney, for which she gives no date.
There is no material before the Court which corroborates any of the allegations of the mother. In particular, there is no record of police attending any incidents said to be linked to family violence. The s.67Z response from DFFH dated 19 February 2021 confirms that the father has no record of contacting mental health services, and no criminal history with Victoria Police.
It is by no means unusual for there to be no corroborative evidence of family violence. By its very nature, it generally occurs in the absence of witnesses and often goes unreported. In this case, however, the mother told Ms P that she had “spoken to others about what was happening” between her and the father. The mother did not challenge Ms P in cross-examination about this evidence. She neither adduced any evidence from any third parties to whom she had spoken about the alleged family violence, nor did she explain her failure to do so. The evidence does not allow me to decide whether the mother’s statement to Ms P was inaccurate, or whether she failed to obtain evidence from those third parties for some reason. In either case, the absence of third-party evidence is more significant in this case than in many others because of Ms P’s unchallenged evidence about the mother’s statement.
There is nothing inherently incredible or improbable about the father’s denial of the mother’s allegations with respect to family violence during the relationship. There is no third-party evidence which contradicts the father’s unchallenged evidence in this regard nor is there, in my assessment, any other basis on which that evidence should be rejected. In those circumstances I make no findings as to the allegations of family violence before separation.
Allegations that the father perpetrated family violence after separation
The mother says in her affidavit filed on 29 January 2022 that in 2018 X told her that the father had “shoved him”. There is no reference to this allegation in the s.67Z response from DFFH. The first report to DFFH was made in August 2019, and contains no allegations of physical abuse by the father to the mother or children since separation.
The mother alleges in her affidavit filed on 29 January 2021 that on an unspecified date the father smacked Y for being too loud and that as a result Y refused to attend school during term 1 2020 unless the mother attended with him. In her affidavit filed on 14 April 2022, she says that this incident occurred in late 2019 and refers to the father “slapping” rather than smacking Y. The father denies that he hit Y on this occasion.
12.The children to attend upon the Melbourne Registry of this Court at a time and date to be advised where a Family Consultant and the Independent Children's Lawyer will explain the Orders to the children, after which time the children will leave in the care of the Father.
13.If one or more of the children, while in the Father's care, runs away to the Mother (or she is aware of their whereabouts):
(a)The Mother forthwith contact the Father to inform him that the child/ren have arrived in her care; and
(b)The Mother forthwith return the child/ren to the Father, within two (2) hours of the child/ren arriving in her care, at Suburb B Police Station.
14.The parents communicate by the parenting application OurFamilyWizard only in relation to the care and welfare of the children and the Father to bear the cost of using this application, or otherwise use a free parenting application by agreement.
15.Pursuant to section 62G of the Family Law Act 1975, there be an updated Family Report prepared by Child Court Expert Ms PP (if possible).
16.The matter be adjourned for a period of 8 months for an Interim Defended Hearing.
17.Pursuant to Sections 65DA(2) and 62B the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
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