Saller & Danell
[2023] FedCFamC1F 122
•7 March 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Saller & Danell [2023] FedCFamC1F 122
File number: SYC 575 of 2015 Judgment of: BRASCH J Date of judgment: 7 March 2023 Catchwords: FAMILY LAW – PARENTING – Where final parenting orders made in 2017 – Where father found to have engaged in serious acts of family violence to the mother and sexualised conduct towards the children – Where father previously found to be an unacceptable risk of harm to the children -– Where orders made in 2017 for mother to have sole parental responsibility – Where children see little of the father between 2017 to present - Where children clear in their views about wanting supervised time with the father – Where children clear in their views about not wanting regular time with the father – Where father made children uncomfortable during supervised time - Where orders made for limited supervised time
FAMILY LAW – PRACTICE AND PROCEDURE – Where father filed a Notice of Discontinuance – Where the mother and Independent Children’s Lawyer were prepared to proceed on an undefended basis – Where the father filed new material on the eve of trial –– Where matter proceeded on submissions
Legislation: Family Law Act 1975 (Cth) Part VII, ss 4AB(2),60B, 60CA, 60CC, 60CC(2), 60CC(2)(b), 60CC(2A), 60CC(3), 61DA, 65D(1), 65DAB Cases cited: Cotton & Cotton (1983) FLC 91-330
G & C [2006] FamCA 994
Isles & Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69; [1988] HCA 68
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Saller & Danell [2017] FamCA 161
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
WK v SR (1997) FLC 92-787
Division: Division 1 First Instance Number of paragraphs: 152 Date of hearing: 15 February 2023 Place: Sydney Counsel for the Applicant: Mr Friedlander Solicitor for the Applicant: Sharah & Associates Solicitors And Conveyancers The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Messner Solicitor for the Independent Children's Lawyer: Legal Aid NSW Sydney Central Family Law ORDERS
SYC 575 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DANELL
Applicant
AND: MR SALLER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BRASCH J
DATE OF ORDER:
7 MARCH 2023
IT IS NOTED THAT ON 15 FEBRUARY 2023 THE COURT PRONOUNCED THE FOLLOWING ORDERS MADE BY CONSENT:
1.All previous parenting orders in relation to the children, B, born 2007 (“B”), and C, born 2010 (“C”) (collectively “the children”) be discharged.
Decision making
2.The mother have sole parental responsibility for the children for all long term decisions being:
(a)the children’s education (both current and future);
(b)the children’s religious and cultural upbringing;
(c)the children’s health;
(d)the children’s names; and
(e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
3.In the event the mother exercises such major long term decision making she is to advise the father in writing, using the email method referred to in this order.
4.Each parent has day to day decision making when a child or the children are in their care.
Live with and time spending
5.The children live with the mother.
6.The child:
(a)B spend time with the father in accordance with B’s wishes, or at any other time as agreed between the parties in writing, using the dedicated email addresses referred to in this order;
(b)C, upon turning 15 years of age, will spend time with the father in accordance with C’s wishes, or at any other time as agreed between the parties in writing, using the dedicated email addresses referred to in this order.
Restraints
7.The father is restrained from:
(a)doing anything to obtain information from the children that would suggest
where the children are living; and
(b)taking photos or videos of either of the children in full or partial state of undress.
8.Each party is restrained from:
(a)denigrating the other, or any member of the other's family, to or in the presence or hearing of the children;
(b)discussing these proceedings, or any of the issues raised in these proceedings, with the children or in their presence or hearing; and
(c)using physical discipline on either of the children.
Dedicated email address
9.Each party shall forthwith set up a dedicated email address for the purpose of communicating with each other in relation to parenting matters only and shall forthwith advise the other party of their email address.
10.For the purpose of communication between the mother and father, the parties are to ensure their communications are courteous, civil, respectful, and limited to parenting issues or issues involving the children.
Dispute Resolution
11.In the event of any dispute in the future in relation to a major long-term issue concerning either of the children, the parties shall attend a family dispute resolution service to attempt to resolve that issue by agreement before commencing further Court proceedings, except in circumstances of urgency.
THE COURT FURTHER ORDERS THAT:
Time with C
12.Until the child C turns the age of 15 years, she will spend supervised time with the father at any time agreed by the parties in writing, using the dedicated email addresses referred to in this order, and failing agreement as follows:
(a)the first Sunday in December;
(b)the first Sunday in the same month as Good Friday;
(c)the first Sunday in June; and
(d)the first Sunday in September.
13.The time referred to in Order 12 above shall occur for four hours.
14.For the purpose of facilitating Order 12 above:
(a)the parties shall engage J Organisation (“J Organisation”) to conduct the supervised visits;
(b)the father shall meet all associated costs with the supervised visits; and
(c)the mother will meet all costs associated with obtaining any reports from J Organisation.
Restraints
15.The father is restrained from doing anything to obtain information from the children that would suggest where the children are attending school.
Information
16.Within 14 days following receipt of a school report for either of the children, the mother is to provide the father with her written summary of the information contained in that school report using the email method referred to in this order.
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
BRASCH J:
INTRODUCTION
On 16 March 2017, Deputy Chief Justice McClelland handed down reasons and made final orders with respect to the children B then aged eight (“B”) and C then aged six (“C”) (collectively “the children”) (Saller & Danell [2017] FamCA 161 “the 2017 Reasons”).
The findings of Deputy Chief Justice McClelland include that:
(a)the father has engaged in serious acts of family violence and sexualised conduct towards the children;
(b)there is an unacceptable risk of the children being subjected to, or exposed to both physical and psychological harm when they are in the father’s care;
(c)the children have been made subjects in a photo taken by the father that constitutes “child abuse material”;
(d)“the nature of the father’s engagement with his daughters is at times, inappropriate, sexualised and blurs the boundaries, and therefore raises very serious concerns that, in the father care, the children will be exposed to an unacceptable risk in terms of s 60CC(2)(b)”;
(e)he had been, at least on one occasion “profoundly disrespectful and sexually intrusive of the mother. As such, the conduct constituted “sexually abusive behaviour” as referred to in s 4AB(2) of the Act and in the circumstances that I have outlined, constituted a serious act of family violence”;
(f)“the risk that I am most concerned about is the father using the children as subjects to produce “child abuse material”. While the father has denied that he will engage in such conduct in the future, the fact that he has failed to acknowledge that the photographs raised any boundary issues and has shown himself to be a person who can physically intrude on another person, and lack empathy for another human being, in my view, increases that risk. In all the circumstances, I find that there is an unacceptable risk that the children will be exposed or subjected to harm, as contemplated by s 60CC(2)(b), whilst in the father’s care”; and
(g)by way of summary, having regard to the photographs taken by the father of his naked children, the nature of the father’s relationship with the children and the fact that he has engaged in acts of family violence against the mother, I find that there is an unacceptable risk of the children being subjected to, or exposed to both physical and psychological harm when they are in the father’s care.
That said, his Honour also recognised “positive aspects in respect to the father’s relationship with the children and these positive aspects are confirmed in a number of [J Organisation] [supervised contact] reports” (for example, see 2017 Reasons at [244]-[247] and [252]).
His Honour ordered the mother have sole parental responsibility, the children live with her and the children have supervised time with the father, eventually graduating to unsupervised time on alternate weekends and an overnight in the “off week”, plus half school holidays.
The matter came before the Court again upon the mother filing an Initiating Application on 18 November 2019, where, amongst other orders, the mother sought to suspend the orders relating to unsupervised time. On 7 July 2020, orders were made by consent that suspended the 2017 orders made for unsupervised time with the father. Orders were made for the children to spend supervised time with the father for a period of three hours on various Sundays (Order 5(f) of the Minute of Interim Order made 7 July 2020).
In these current proceedings, two expert reports have been prepared by Ms AB.
The children are now 15 and 12 years of age, B having been born in 2007 and C born in 2010.
The applicant mother is Ms Danell, born 1971. The father is Mr Saller born 1963.
The parties commenced cohabitation in 2005. On 24 January 2015, the parties separated on a final basis.
The 2017 Reasons provided a detailed background of the parties. Given the narrow range of issues in dispute, it is not necessary for me to repeat that background.
After the proceedings commenced anew, Ms AB said this in her Child Inclusive Conference Report dated 25 June 2021 (“the first report” or “Exhibit 1”) at [3]-[4]:
…The children did not spend time with [Mr Saller] according to these [2017] Orders. Since 2017, the children have spent time with him only once; [in early] 2021 for three hours at a nominated McDonalds under supervision provided by [Ms AC], [AD Services].
... An AVO was issued against [Mr Saller in mid-2020], initially protecting [Ms Danell] and the children, after an incident when [Mr Saller], seemingly unprovoked, behaved and made threats at his workplace to such an extent that prompted management to be concerned about [Ms Danell’s] safety and they made contact with the police.
By the time of her Short Form Report – Children’s Wishes and Views dated 3 November 2022 (“the second report” or “Exhibit 2”) Ms AB recorded that it was the father’s estimate the children had seen him “for thirteen hours over a 5 ½ year period” (Exhibit 2, paragraph 16). In submissions before me, the father updated that to 16 hours in five years. Exhibit 5 contains reports from four supervised visits: two in 2021 and two in 2022. I do not need to find precisely how much time over which period of time; all I say is it has been minimal.
Procedural background
The matter first came before me on 13 April 2022 and I set it down for a two day trial commencing 22 November 2022. The parties then jointly approached Chambers to vacate the trial dates so they could attend mediation. I did so, but the mediation was unsuccessful. I listed the matter for a two day trial initially on 14 and 15 February 2023, then 15 February 2023 with a further date to be fixed.
On 25 January 2023, the father’s solicitor filed a Notice of Ceasing to Act and a Notice of Discontinuance. At trial, the father confirmed that the Notice of Discontinuance was filed on his instructions.
On 6 February 2023, the father filed a Notice of Address for Service.
Close to 4.30 pm on 14 February 2023, being the eve of the new trial dates, the father filed a Response to Final Orders, Affidavit, Notice of Child Abuse, Family Violence or Risk, and, a Genuine Steps Certificate.
When the matter came before me on the next morning, the mother’s Counsel and Counsel for the Independent Children’s Lawyer (“the ICL”) indicated that the father’s very late material had taken them by surprise and both had prepared on the basis the matter would proceed undefended.
Given the father was self-represented I determined not to engage with the ICL’s submissions that he had no standing to be heard due to the Notice of Discontinuance. However, for Reasons given at the time, I did not allow the father to rely upon his affidavit and some other material, which had been filed so very late and contrary to my filing directions. That said, for the Reasons also given at the time, I did not give the mother leave to rely upon her affidavit which had also been filed contrary to the Trial Directions.
Material
As a consequence of my rulings about the parties’ material, the material before me was the:
(a)Mother’s Initiating Application filed 19 December 2019;
(b)Child Inclusive Conference Report by Ms AB dated 25 June 2021 (Exhibit 1);
(c)Short Form Report – Children’s Wishes and Views by Ms AB dated 3 November 2022 (Exhibit 2);
(d)Five Exhibits, which included the two reports by Ms AB; and
(e)I accepted the father’s Response, albeit out of time, to better understand the orders he sought.
The mother also had a Minute of Order and both she and the ICL had a Case Outline. I had the benefit of the 2017 Reasons and Order.
No one gave Ms AB notice she was required for cross-examination. The matter proceeded by way of submissions.
Issues in dispute
On the morning of trial, I made various orders by consent, including: sole parental responsibility for the mother; that the children live with her; B spend time with the father as she wishes or as the parties agree; various communication orders; and restraints. I have added those orders to the orders at the commencement of these reasons so the parties have one document containing all orders.
With respect to the order about B’s wishes, the father was clear that he understood B’s wishes could be that she did not want to see the father at all, that she would only see him if supervised with C, or other permutations. He also agreed that 15 was the age at which C should have the same arrangement as B.
By reference to the parties’ proposed orders, the following issues remained in dispute:
C and time
(a)Whether C’s time with her father be supervised or not. The mother said supervision. The father said unsupervised;
(b)What ought be the frequency and duration of any such time, whether supervised or not. I pause to observe that the father agreed that if I made orders for supervision, then he agreed with the mother’s proposal for time on the first Sunday of four specific months. The father’s time proposal was one graduating to alternate weekends with C;
Changeovers
(c)What ought be the changeover arrangements. This did not arise on the mother’s proposal for supervision, but the father said McDonalds Suburb AE on his proposal for time. If I was against the mother on supervision, she said McDonald’s City F;
Communication
(d)Whether the children ought communicate with the father, or not. The mother said not. The father sought private video time with the children twice a week for 20 minutes;
(e)What ought be the form of communication between the parties. The mother proposed the use of a dedicated email address, which I made by consent. The father’s orders were more expansive in terms of parental communication;
Restraints
(f)Whether the father be enjoined, or not, from doing anything to obtain information about where the children go to school. The mother sought such a restraint, which the father opposed;
(g)Whether the father be enjoined from consuming alcohol 12 hours prior to seeing the children. Few if any submissions of substance were made about this.
Information
(h)Whether the mother ought provide the father with a summary of the children’s school reports. The mother proposed this. Conversely, the father wanted to be actively involved in school matters;
(i)Whether the parent not with the children ought be told of medical emergencies and illness. The father sought this and the mother resisted it. The father also sought details of the children’s treating practitioners and any hospitals attended, along with copies of any medical reports;
The mother did not press her proposed orders 12 and 13 given a sole parental responsibility order had been agreed. The father did not pursue his proposed Orders, 8, 17 or 18.3, which respectively concerned additional time as agreed between the parties, the provision of residential addresses to each other, and, an order for the parents’ conduct at changeovers.
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 65D(1) of the Act provides that this court may make such parenting orders as it thinks proper, subject to ss 61DA (equal shared parental responsibility) and 65DAB (re parenting plans and thus irrelevant here). Section 60B of the Act sets out the objects and principles of Part VII as follows:
The objects are to ensure that the best interests of children are met by:
•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; and
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted at [8] that the focus of the objects was 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”.
Parental responsibility
The parties are agreed that the mother ought continue to have sole parental responsibility with respect to the children. I have already made that order by consent.
That means I am not mandated to follow s 61DA of the Act which would otherwise require I consider equal time, and significant and substantial time. In short, my consideration of what orders for time and communication is “at large”, albeit conditioned by the relevant considerations in Part VII of the Act.
Best interests of the child
Section 60CA of the Act provides that “[i]n deciding whether to make a particular parenting order in relation to the children, a court must regard the best interests of the children as the paramount consideration”.
The best interests of a child are to be determined by an examination of the considerations set out in s 60CC of the Act. In Tibb & Sheean (2018) 58 Fam LR 351 at [74]–[78], the Full Court made clear that while the court must “consider” each of the primary and additional considerations in s 60CC, express discussion is not necessary. The relevant considerations are determined by the way in which the parties presented their cases.
I turn then to the best interests of the children.
The primary considerations set out in s 60CC(2) of the Act are as follows:
•the benefit to the child of having a meaningful relationship with both of the child’s parents; and
•the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court give greater weight to s 60CC(2)(b).
Section 60CC(2)(a): a meaningful relationship
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held at [169]:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
In Loddington Cronin J further added at [173] that an assessment of the benefit to the child must be made according to “the peculiar facts of what the parents are offering”.
In Cotton & Cotton (1983) FLC 91-330 (“Cotton”), Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
… that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
In McCall & Clark (2009) FLC 93-405 (“McCall”) at 83,476, the Full Court said at [122]:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents will be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
In this matter, I have already made orders by consent with respect to B’s time with the father. Given her age and views, they were entirely appropriate orders and consistent with B’s best interests.
The children clearly have a meaningful relationship with their mother. Their relationship with their father is one that has been considerably limited since the 2017 Reasons.
Yet, both parties are agreed that C have some form of relationship with her father. The issue in dispute is what time arrangements with the father, and under what conditions (if any), are in C’s best interests.
Section 60CC(2)(b): protection from harm
The second primary consideration in determining a child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Full Court in Isles & Nelissen (2022) 65 Fam LR 288 (“Isles”) summarised the authorities on unacceptable risk since M v M (1988) 166 CLR 69 (“M v M”). The Full Court said that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.
I have already extracted some of the Deputy Chief Justice’s findings at the start of these reasons.
It is not for me to look behind those reasons and findings wherein his Honour found the father posed an unacceptable risk to the children. Those findings have been made. I will not entertain the father’s submission that his Honour “is wrong”; this is not an Appeal.
Moving to these current proceedings, it is of considerable concern that in mid-2020, work colleagues of the father reported to the police that the father said to his line manager, “I have no money, no house, I may as well find out where she lives bash her door down and slit her throat” (Exhibit 3, p.2). In a later interview with the police, he is reported as saying “I didn’t say I would chop her head off, I said I wold slit her throat” and that he “knows people who can find it [the mother’s address] for him”. Later, the father said he was just venting. (Exhibit 3, p.2).
Police contacted the mother who identified she was terrified of the father. She told police that she feared if the father found out her address “he may carry out the threats”. Exhibit 3 also reveals that the mother had been regularly receiving messages from third parties on behalf of the father.
The police stipulated that the whereabouts of the mother not to be disclosed to anyone. The police detained the father at Suburb AF Police Station and applied for an Apprehended Domestic Violence Order (“ADVO”).
As the father consented to the ADVO on a without admissions basis, I will not positively find he did what is alleged. Nevertheless, the mother was still contacted by the police and what I do find is that those allegations could only have heighted the mother’s anxieties about the father and her need for their whereabouts to be secured from the father or anyone in his orbit.
The Provisional ADVO dated mid-2020 and Final ADVO dated late 2020 (Exhibit 4) restrained the father from stalking or assaulting the mother and children, and, from approaching or trying to find them. The final order expired in late 2022.
Exhibit 5 sets out four supervised time reports. At times, the children are laughing and enjoying themselves with the father, however in each visit, the children experienced the father as asking them too many questions and/or doing or saying things that made them uncomfortable.
For example, the father asked B to take off her jacket at one point, which she did not want to. This may seem innocuous at first blush, but it is against a backdrop where McClelland DCJ found the father engaged in sexualised conduct towards the children, had inappropriate sexualised boundaries with the children and produced child abuse material of which the children were the subjects.
The first Family Report produced in these proceedings said this:
…With regard [to] him suggesting that [B] take off her jacket, [Mr Saller] said; “I wanted to see [B]. My thinking was, make yourself more comfortable. I was talking and thinking, “this is my daughter…is she having periods, is she developing breasts?’”…
(Exhibit 1, paragraph 14)
B reported to Ms AB that:
... [Mr Saller] whispered a secret to her that made her feel uncomfortable. She said he hugged her in such a way that he pulled her T-shirt over shoulders. She said she was not sure whether he did this on purpose. She said he persistently looked at her around the breast area, so she pulled her jacket closely around her torso; she wondered whether she should have worn a different T-shirt. She said that when [Mr Saller] suggested that she take off her jacket, she felt very uncomfortable...
(Exhibit 1, paragraph 29)
This is not the mother putting ideas in B’s head as the father contends (for example the second report at paragraph 11); rather, this is B’s own perceptions.
In one of the visits, the father put his hands on C’s shoulders too close to her neck. That made C uncomfortable, as did the father wrestling with C. That too is C’s reality, not the mother putting things in her head.
At a visit, the father continued to hug B even though she had previously asked a supervisor to tell the father that she did not want to. The report indicates the supervisor told the father, but he did not respect B’s wishes in that regard. That was a misstep by the father.
In other parts of the reports, the father also failed to complement B about her hair when she asked; instead he responded about himself. C had to haggle and plead with her father to take some of her property from her former bedroom. These were missed opportunities to meet with B and C on their levels.
The father told the children a number of times that the supervised time was not his fault or the children’s. He asked them questions which would have revealed where they were. He told B he had seen her on the internet and told them he knew they had been at a particular club in City F. None of that gave the children any comfort. These are children who are at pains to keep their whereabouts from the father.
The father also told the children that not seeing them was worse than losing his mother. He spoke about Jeffrey Dahmer. He told the children he left his job to care for them. He asked the children if he was nice. He told them supervision cost him $700. None of this was appropriate or child focused.
Unsurprisingly, the father had to be re-directed by the supervisors a number of times in various parts of the reports.
Indeed, in two supervision reports, the children and supervisor adopted a safety phrase or signal to indicate to the supervisor that they were uncomfortable. The children should be free from such encumbrances.
At one visit, the supervisor ended the visit 20 minutes early as it had ceased to be a positive experience for the children. Nevertheless, the father’s conduct in chasing the children and questioning then lead to the supervisor telling the father she would call the police if the father persisted with his conduct and words. That really speaks to the father pursuing what he wanted, without focus on what the children actually needed. It must have been uncomfortable, at the least, for the children.
Ms AB opined:
…Some aspects of [Mr Saller’s] behaviour was unusual and unsettling, for instance his, suggestion to [B] to take off her jacket, and also his reflection during the interview about why he asked this. It appears that [Mr Saller] has difficulty understanding and respecting the needs of the children. He did not seem to appreciate the importance to his now adolescent and prepubescent daughters for clear and appropriate personal and sexual boundaries with their father.
(Exhibit 1, paragraph 42)
I accept Ms AB’s opinion. It accords with what I have found above.
The father’s conduct in these reports gives me no confidence that the father would respect the children’s physical and information boundaries if time were unsupervised. The father’s questioning of the children about their location also gives me no confidence he would respect their very keen desire that the father not know where they live.
Ultimately, after Ms AB set out the various risks posed for these children, she concluded:
The greatest stress that [B] and [C] identified would appear to be the ongoing requirement that they keep details of their accommodation, school and personal information private from [Mr Saller]. They identify supervision as a way of mitigating against this problem. In relation to parenting arrangements, the greatest issue would appear to be feeling worried that things might somehow go wrong pressured by [Mr Saller] and, on the few occasions they have spent together, experiencing his questioning and some comments as being intrusive.
(Exhibit 2, paragraph 48)
Balancing the primary considerations
Both parties propose C have a relationship with the father. However, I must also consider protecting the children from unacceptable risks of harm.
When balancing these two considerations, I infer the mother says the balance swings in favour of protection from harms. I also infer that father would say the balance favours the meaningful relationship.
I am not prepared to positively find the matters contained in Ms AB’s reports or Exhibits (the jacket, the whispering to B, B feel the father was looking at her breasts, hands on C’s shoulder, wrestling and unwanted hugs) were family abuse or inappropriate sexualized conduct constituting an unacceptable risk of harm. In M v M at [76], the Full Court cautioned against positive findings of sexual abuse “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw”. The reference to Briginshaw has been overtaken by s 140 of the Evidence Act. Nevertheless, the principle remains apt. Isles also provides a detailed discussion of the exactitude required for positive findings of sexual abuse.Deputy Chief Justice McClelland had the benefit of particularised evidence that was tested, and was thus able to make the kinds of positive findings he did, mindful of what was said in M v M.
As the matter proceeded before me by submissions I have not had the benefit of that testing of evidence. I am therefore not prepared to make positive findings of sexual abuse or sexualised conduct. However, I take those matters into account from the children’s perspective when I consider the relevant s 60CC(3) factors.
It remains though that the findings of McClelland DCJ with respect to unacceptable risk endure. I have no evidence before me that the father has done anything to address the issues and concerns found by His Honour – at best, the father has “considered whether he should seek psychological help from someone on a professional level” and has read some self-help psychology books to prepare himself for all court outcomes (Exhibit 2, paragraph 11). He also had three therapy session with Mr AG “and the focus was on his preparation to see [B] and [C]” (Exhibit 2, paragraph 14). There is nothing in the evidence before me that those sessions concerned the father learning to respect appropriate body boundaries or any of the unacceptable risks found in the 2017 Reasons.
On the strength of McClelland DCJ’s findings and the lack of evidence about what the father has actually done to address those deficits, the balance squarely remains on protection from harm.
SECTION 60CC(3) - ADDITIONAL CONSIDERATIONS
The court must have regard to each of the “additional considerations” under s 60CC(3) of the Act, separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine the child's best interests. I set these out in turn below.
(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
In the first report at paragraph 24, B “presented as a thoughtful teenager who spoke carefully about her views and sensitively about her parents and her feelings about spending time with her father”.
She expressed these views at [30]-[32]:
When asked specifically about spending time again with [Mr Saller], [B] said that she does not wish to see him at the moment, or ever on a regular basis, such as once a week. [B] said that if she wishes to see her father she will do so, but she is not sure when that might be. [B] said she will talk to her mother if she wishes to see her father; she said she is confident that her mother would organise her to see him if she asks. [B] said she thinks her mother wants her to have a relationship with her father.
[B] seemed not to appreciate the history of her parent’s relationship or information from the Court proceeding or judgement of 2017.
[B] said that keeping personal details private from her father is stressful and difficult. She opined that changing surnames may be a solution to this problem.
It was Ms AB’s opinion that “[B] will most likely benefit from the trust and personal agency afforded to her by respecting her wishes”.
In the second report at paragraph 33, B said “her view about spending time with her father had not changed and that she is prepared to see him again as determined by her and that she not be required to see him in a set pattern of arrangements such as weekly or monthly”. B also said:
... that [C] wants to spend time with Dad more than she does. She said [C] does not want to spend time with Dad by herself and she ([B]) also does not want this for [C]. [B] said she is happy to see Dad with [C] whenever [C] wants to.
(Exhibit 2, paragraph 38)
In the second report, B’s views were described as “consistent, authentic, well considered, and should be taken as a reflection of how she truly wishes the parenting arrangements to proceed” (Exhibit 2, paragraph 52).
Ultimately, the parties consented to orders that give expression to B’s wishes and her best interests.
C
In the first report by Ms AB, C “presented as thoughtful, articulate and a child with a wide vocabulary. She opened the interview by asking that the report not identify where she lives or goes to school. [C] generally spoke easily and confidently” (Exhibit 1, paragraphs 34-35).
At paragraphs 37-38, C is recorded as saying:
... when she saw her father again in February, she felt “really happy” and she loves her father; “It is a different kind of love than if we’ve seen each other all along”. She said she thought it was unusual that her father wanted to show her and [B] old photographs. She said she was aware of [B] feeling uncomfortable with her father. [C] said she feels the same way as [B] and does; not wanting to spend time with her father in any particular pattern. [C] agreed when asked, that, if she wants to see her father, she will let her mother know.
... She said; “It would be good to be able to see him and say ‘Hi’ on the way to school and he could come and watch things at school so I wouldn’t be scared at all”. ...
(Exhibit 1, paragraphs 37-38)
It was Ms AB’s opinion in the first report that C’s wishes also be respected with no formalised parenting arrangement. It was also Ms AB’s opinion that:
[B] and [C’s] wishes are a genuine reflection of how they feel about spending time with their father.
(Exhibit 1, paragraph 48)
I accept that to be so; on the evidence before me the children are bright and articulate young people.
In the second report C said, “she understood the interview to be about Dad wanting her and [B] to spend time with him in a regular pattern. She said she does not want to feel forced into a pattern like this” (Exhibit 2, paragraph 41).
C added that on the first visit with their father since the first report “Dad sometimes talked about how often he wanted to see her and [B]. She said he wants to pick them up from school like he used to and as [C] said this, she noted that she does not think this would ever be possible” (Exhibit 2, paragraph 42).
The second report at paragraph 46 summarised a discussion between Ms AB, the mother and C about spending supervised time with the father four times a year around special occasions: Christmas, Easter, the father’s birthday and Fathers’ Day. C was open to this. C has also given her father a clear heads up as to the kind of activities she would enjoy (Exhibit 2, paragraph 46).
Both children identified supervision was the way to keep information private from Mr Saller and to give them comfort.
Conversely, Ms AB said this of the father’s proposal:
[Mr Saller’s] proposal that the children spend time with him regularly each alternate weekend and half the school holidays, does not line up with the children’s wishes, their wishes reflecting their experiences, aligned with and supported by [Ms Danell].
(Exhibit 2, paragraph 61)
I put considerable weight on the children’s views, especially B who has a maturity to be able to spend time with the father as she wishes, or not. The discussion with C about four supervised visits a year is a proposal she embraced. It is one that keeps a link to her father, but in an environment where she would feel safe.
Both children did not favour anything like the father’s proposal and were united in their views about the need for supervision.
In the circumstances of this matter, I place considerable weight on the children’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);
The children clearly have a loving, supportive and meaningful relationship with their mother. However, the children’s relationship with their father has been limited for many years.
It was Ms AB’s assessment in the first report that:
[B’s] ambivalence about how she feels about her father, her desire to not hurt his feelings, and loving memories of him, suggest that her relationship with him is not severed and she may wish to revisit seeing him when she is older.
[C] impressed as a thoughtful child who loves her parents and has strong mixed feelings about her father and why she has not seen him in recent years. She seems to be carrying a considerable load of anxiety for her age, as reflected in her worries about revealing information about where she lives, lest her father finds out, and her mother’s health. [C] seems to yearn for normality in which she can be freed from taking care not to reveal details about herself.
(Exhibit 1, paragraphs 40-41)
It does the mother great credit that she has not caused (advertently or inadvertently) the severing of the children’s relationship with their father and has quarantined her views and feelings about the father from them. For B, Ms AB indicates because the relationship is not severed she may wish to re-acquaint herself with her father in the future; that will be a matter for B as she matures.
As for C, the assessment clearly indicates she wishes to be relieved of the burden of keeping her personal details from the father. However, the orders proposed by the father would see C not having the protection of supervision and that burden being placed upon her on a regular basis. It should not be for the child to regulate this information on the very regular basis proposed by the father. The father also proposes school be used for change overs, which itself would reveal identifying factors about the children that they are at pains to avoid him knowing.
In the second report, this was said of C:
[C] impressed as a warm, caring child who remains particularly concerned about the requirements/need/obligation to keep information confidential from [Mr Saller], and nervous about his intention if he had such information. This is an ongoing burden that is inordinately onerous on a child of [B’s] age.
(Exhibit 2, paragraph 55)
On the evidence before me, the father is focused on what he wants and desires and does not hear nor understand what the children need for and from a relationship with him.
(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
Consideration of this matter is somewhat constrained because the father’s opportunities to participate in decision making and to spend time with the children have been, appropriately, governed by the 2017 Order.
The father however did not take advantage of the orders made for time with the children in the 2017 Order. C, as extracted above, does not understand why she had not seen him for so long. To absent himself from the children, even if the 2017 Order was not to his liking, is not a child focused approach on the part of the father.
(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;
There is no evidence before me whether the father pays child support or not. Nothing can therefore turn on this.
(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; (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The father’s proposal for C would be a significant change for her and one neither sibling seeks nor is comfortable with. That is not to say their wishes govern the outcome, but are illustrative of the change sought by the father.
I also consider imposing the father’s proposed parenting regime on C, a proposal which she herself eschews, has the real potential to compromise the parenting of the unchallenged residential parent – the mother.
It is also my determination that allowing unsupervised time between C and the father would be a change that exposes C to an even great burden of maintaining secrecy over where she lives and goes to school. Placing an even greater burden on C is a change with which she is plainly uncomfortable and I consider not in her best interests.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
This consideration does not arise on the evidence before me. The father lives in City AH. I do not know where the mother and children reside. What I know is this:
[B] said it is too hard to see Dad often seemingly referring to the amount of time it takes to prepare and the rendezvous locations far from their home.
(Exhibit 2, paragraph 37)
All I can say is that the mother is prepared to travel to facilitate C spending time with the father four times a year. I have no idea about the travel involved if the father’s orders were made for alternate weekend time.
(f) the capacity of: (i) each of the child's parents, to provide for the needs of the child, including emotional and intellectual needs; (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;
On the strength of the Family Report, I have no doubt and accept the mother has the capacity to provide for the needs of the children, including the emotional and intellectual needs. The father must accept that to be so given he consented to orders that the children live with the mother.
That said, Ms AB’s first report said this at [16]:
[Ms Danell] said she is “scared” of [Mr Saller]. She required reassurance that all information from the interview related to her personal life, accommodation and employment, and identifying information related to the children, such as their schools, could remain confidential from [Mr Saller]. [Ms Danell] stated that, if such details were known to [Mr Saller], she would feel unsafe to the extent that she would feel the need to relocate from their home and the children’s schools to ensure anonymity once again from him. [Ms Danell] said that she has been treated for anxiety and prescribed numerous psycho-medication for such. She said that for the past 18 months, her mental health has improved significantly, the medication almost fully reduced to nil. She related her poor mental health to the relationship with [Mr Saller] and his behaviour towards the children, and her fear of him potentially taking revenge on her for him not having seen the children.
(Exhibit 1, paragraph 16)
In circumstances where the mother is the unchallenged residential parent, and is really the only parent the children have known for many years, it cannot be in the children’s best interest that her capacity to care and parent is compromised by the father knowing their whereabouts – which is what would likely occur if I ordered school as a changeover location as the father seeks or the information orders he seeks about their schooling.
I am not convinced that the father can provide for the children’s needs and accept the opinion of Ms AB in her first report at [43]:
It is concerning that [Mr Saller] generally attributed no responsibility to his own behaviour for the outcomes in the relationships with [Ms Danell] and the children. Of specific concern is that, under the current gaze of the Court, already having the benefit of the findings in Justice McClelland’s judgment, in the context of Court ordered supervision, [Mr Saller] whispered a secret to [B], and otherwise did not seem to behave in a way which was appropriate to the children’s ages; such as the dynamic of the children sitting on his knee and arguably an objectifying/ sexualised aspect to his interactions with [B]; interactions which were uncomfortable for her. This type of behaviour appears to be in line with [Ms Danell’s] concerns about [Mr Saller].
(Exhibit 1, paragraph 43)
In the second report, this was said by B of the first visit the children had with their father since the first report:
he spent time asking her questions about why she does not see him more often, and said things like he loves Mum very much. [B] said she therefore felt uncomfortable and anxious during the picnic.
(Exhibit 2, paragraph 34)
Of the second visit since the first report, B said:
She said at one point Dad went on a rant about not being able to do normal Dad stuff with her and [C]. She said [Mr Saller] was preparing lunch in the kitchen and he spoke in a sort of rhetorical way, as if to himself, but wanted her and [C] to hear him. ... [B] said that these types of comments she thinks were made so that she and [C] would feel sad for him; she said he told them that his life has been pretty unfortunate. [B] also said that she told Dad how she had gone to the beach with a friend and got dumped but he seemed focussed on which beach she went to rather than the fact of her getting dumped. [B] said she felt she was being grilled and that Dad wants to know information rather than talking about topics of interest to them. [B] said she enjoyed [Mr Saller] showing her pictures of when he had been travelling when he was younger.
[B] said spending time with [Mr Saller] on the last two occasions was not as worrisome as the previous time they saw him, noting that previously she had not seen [Mr Saller] for four years. She said, nevertheless, she does not feel able to look at him that much when talking, in case he does something weird. She said the main thing she would ask of Dad is that he stop asking questions and bringing up things from the past that make her and [C] sad so that she feels she has to justify reasons about whether or not she sees him, then does not see him for another year, and the cycle just keeps happening.
(Exhibit 2, paragraphs 35-36)
Whilst I have not found that the jacket issue, the whispering, B’s perception that the father looked at her breasts, putting his hands on C’s shoulders close to her neck, the wrestling and unwanted hugs constitute family violence or abuse as defined in the Act, they do not speak well at all to the father’s capacity to provide for the needs of the children – indeed, he conducted himself in a manner that caused both children to feel uncomfortable at different times.
The father’s comments to Ms AB about the children having periods and breast development offer support for the father’s lack of appropriate boundaries.
Further, in the second report of Ms AB at paragraph 43, C said she “wanted to take some other things, such as a statue which was hers, but Dad told her that he wanted to keep it because it was special to him”. C had to haggle with the father about her possessions. As already indicated, that was an opportunity for the father to do something that would be special to C as opposed to prioritising his own adult wants. It is similar to the first report when the children reported:
…She [B] gave the example of memories of a Christmas past, when [Mr Saller] told her that seeing him was her and [C’s] Christmas present; she and [C] would have liked to receive presents. She compared this similarly to seeing him in February when he gave her and [C] little […] broaches that he said he received free from his workplace two years prior.
(Exhibit 1, paragraph 28)
I have already set out a summary of the supervised visits between the children and father. The father’s comments and actions in those reports give me no confidence that appropriate physical and privacy boundaries would be maintained by the father if C’s time with her father was unsupervised. I am also not satisfied that the father could prioritise the children’s needs over his own.
(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;
On the evidence before me, this consideration does not arise.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
Not applicable.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child's parents;
The mother is plainly a responsible parent. I say that because it is clear on Ms AB’s reports and is the implication of the father’s proposal and then consenting to orders that the children live with the mother.
As for the father, McClelland DCJ observed this about him in his 2017 Reasons at [273]:
…As I have indicated, however, I am concerned about the nature of the father’s relationship with the children and, specifically, his conduct in nurturing a “specialness” in his relationship with “his girls.” That conduct has the potential to impact upon the children’s emotional development in circumstances where they may not continue to satisfy the expectations associated with maintaining such a relationship.
That attitude was in evidence before me when the father made impassioned submissions about ‘fighting for my girls for 8 years’ and that despite the Notice of Discontinuance, he decided to ‘renew’ his ‘fight for my children today’. That is undoubtedly true for the father’s mindset and motivations, but I must consider the children’s best interests. The children do not share, seek or want the “special relationship” that he seeks.
On the back of the 2017 Reasons, that the father conducted himself in a way that made the children uncomfortable, even when being supervised, does him no credit. It does not speak well to his attitude to the children.
There is no evidence before me that the father has come to terms with or sought to deal with the findings in the 2017 Reasons and his actions and conduct which constituted an unacceptable risk to the children.
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
Findings of family violence were made in 2017.
Since then, a further ADVO was brought and made naming the father as the respondent in 2020. This matter was not agitated by the mother but arose from the father’s work colleagues being concerned with the father’s comments about the mother. A final order was made in late 2020 for two years by consent and without admissions.
As such, I have already found that I cannot positively find the husband did as alleged. However, I have also found that the effect on the mother when told by the police of these allegations caused her to be very anxious and in fear.
The findings of serious family violence in the 2017 Reasons remain on foot, and I have no evidence that the father has sought to engage with those findings and take steps to rehabilitate himself.
I have also found that it is not in the best interests of the children to compromise or run the risk of compromising the capacities of the unchallenged residential parent if time was unsupervised.
(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;
I have no doubt that the father will be disappointed by these Reasons and my orders, but that is a product of the Court’s focus on the best interests of the children, not his wishes and desires.
(m) any other fact or circumstance that the court thinks is relevant.
The father placed much reliance on what Ms AB said in her second report at [60]:
Regarding supervision, it is not foreseeable that either [B], in her own right or as accompanying [C], or [C] would be open to spending time with [Mr Saller] not under supervision. It is suggested that a pathway towards a reduction in supervision would be the children having stress free and nonintrusive experiences of spending time with [Mr Saller].
However, if that paragraph is read in the context of the whole report the reduction in supervision does not concern getting rid of it in favour of non-supervised time, but reducing the frequency of supervised visits. For example, it is Ms AB’s ultimate recommendation that:
It is suggested consideration be given to [C] spending time with [Mr Saller] on four occasions each year, roughly spread among the special occasions of Easter, [Mr Saller’s] birthday, Father’s Day, and Christmas.
(Exhibit 2, paragraphs 69)
Clearly Ms AB is speaking to reducing the frequency of supervised time orders.
I turn now to the specific issues in dispute.
TIME AND COMMUNICATION ARRANGEMENTS
I have already determined to give considerable weight to the children’s view about what kind of time they would be comfortable with. For B, that is a consent order where the parent’s respect her views. For C, she is clear she does not see pickups from school as possible, that she is burdened to keep her whereabouts from the father, and, where the girls seek the protection of supervision. C also had moments where she felt uncomfortable with the father’s words and actions, even when supervised.
I have also found the father lacks parenting capacity when the children perceive he encroaches on their boundaries, does not respect their privacy and does not put their desires before his own. That he does not recognise that highlights the point.
Further, I have found it is not in the best interests of these children to make orders of the kind sought by the father which would have the real potential to compromise the parenting capacities of the unchallenged residential parent. On the evidence before me, the mother has done a sterling job in keeping the children quarantined from the parental history and her anxieties about the father. But that does not mean she should be placed in an elevated level of apprehension if C was having unsupervised time with her father.
On the strength of the supervised contact reports and McClelland DCJ’s findings, I have no confidence that the father would be able to contain himself in a way that would give the children comfort. He is very much focused on what he wants, not what the children need. Indeed, I find that the father’s proposed orders would not be healthy, worthwhile or advantageous for C (Loddington).
The father submitted on-going communications would be “important for my daughters” - except they do not want that. I am also concerned that video communications with privacy would add an extra burden on the children to ensure their background or comments did not reveal their whereabouts. There would also be no restraints on what the father could say.
For all of those reasons, I do not accept that the father’s proposed orders for time and communications are in the children’s best interests. For the same reasons, I am more than comfortably satisfied that the orders proposed by the ICL and mother balance the desirability of a meaningful relationship between the father and children, and, one that protects them from harm and the father’s parenting incapacities.
Thus, I will make the orders proposed by the ICL and mother for time and communication. The flipside is I have determined the father’s proposals for time, communication and changeovers are not orders in the children’s best interests.
Given I will make orders for supervised time, the father’s orders with respect to changeovers at a particular McDonald’s therefore do not arise.
REMAINING ISSUES IN DISPUTE
I turn now to the balance of the specific issues in dispute and consider each in turn.
Restraints: Two issues require determination:
(a)Whether the father be enjoined, or not, from doing anything to obtain information about where the children go to school. The mother sought such a restraint, which the father opposed;
(b)Whether the father be enjoined from consuming alcohol 12 hours prior to seeing the children. Few if any submissions of substance were made about this.
The children are at pains to keep their whereabouts from their father. Keeping that hidden from him is described as their biggest stressor. C has also spoken about the father picking them up from school as “not possible”. I place considerable weight on the children’s views and need to be relieved from the burdens of their whereabouts becoming known. They need to feel safe. I have also found that it would not be in the children’s best interests to make orders, which may have the effect of compromising the parenting of the unchallenged residential parent – an order whereby the father knew their whereabouts has precisely that potential.
I will therefore make the injunction sought by the mother restraining the father from doing anything to obtain information from the children about where the children go to school.
That said, the father will be updated about the children’s schooling through the mother providing the father with her written summary of the information contained in a school report within 14 days following receipt of that school report for either of the children. I give my reasons for that below.
I am not prepared to make the order sought by the mother with respect to alcohol. There is no evidence before me that that is an unacceptable risk factor. Further, supervised time, which I have ordered, is a protective factor should there be any concerns about the presentation of the father.
Information: two issues arise here:
(a)Whether the mother ought provide the father with a summary of the children’s school reports. The mother proposed this. Conversely, the father wanted to be actively involved in school matters;
(b)Whether the parent not with the children ought be told of medical emergencies and illness. The father sought this and the mother resisted it. The father also sought details of the children’s treating practitioners and any hospitals attended, along with copies of any medical reports
School information: In circumstances where I have made an order that the mother have sole parental responsibility, I am satisfied the mother should send a summary of the reports to the father. I do so because on one hand it protects the identity of the school and thus the children’s location, but on the other, gives the father information about the children so he can keep appraised of their progress and have something to talk to either or both of the children when either or both spend time with him.
Medical information: The mother has sole parental responsibility; that is agreed. I will not mandate that she give the medical information sought by the father. I will not do so because it may reveal the children’s whereabouts. I will also not do so as I have no evidence before me that these children would feel at-ease or in any way comfortable with their father knowing their personal medical information. To the contrary, the children are already anxious and uncomfortable about some of the father’s conduct when it comes to their own space and boundaries; I will not risk adding to their anxiety and feelings of discomfort by ordering the father to have and be able to access their personal health information. B is at an age where she should expect some privacy in her health dealings. C too is almost in her teens where she would have or be developing similar expectations.
For all of these reasons, I make the Orders at the start of these Reasons.
I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 7 March 2023
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