Sarto and Sarto
[2018] FCCA 1040
•27 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SARTO & SARTO | [2018] FCCA 1040 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – intractable disputes between parents – family violence allegations. |
| Legislation: Family Law Act 1975, ss.11F, 60B, 60CA, 60CC, 61DA, 65DAA,65DAC & 65DAE. |
| Cases cited: McCall & Clark (2009) 41 Fam LR 483 |
| Applicant: | MS SARTO |
| Respondent: | MR SARTO |
| File Number: | ADC 4542 of 2015 |
| Judgment of: | Judge Cole |
| Hearing dates: | 9, 10 and 11 August 2017, 27 November 2017and 22 January 2018 |
| Date of Last Submission: | 22 January 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 27 April 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Mr Clarke of Clarke Hemmerling Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr D Childs |
| Solicitors for the Independent Children's Lawyer: | Legal Services Commission of South Australia |
ORDERS
That the children [X] born on 2012 and [Y] born on 2013 live with the mother.
That the mother have sole parental responsibility for the said children with respect to the said children’s education including the choice of the said children’s school.
That the said children spend time with the father as follows:
(a)for a period of four (4) months each Saturday from 11:00am until 3:00pm, commencing Saturday 12 May 2018;
(b)thereafter for a period of four (4) months each weekend namely on each alternate Saturday from 10:00am until 5:00pm and each intervening Sunday from 10:00am until 5:00pm;
(c)subject to paragraph 15 of this Order thereafter for a period of three (3) months each alternate weekend from 10:00am Saturday until 12:00noon Sunday;
(d)thereafter for a period of two (2) months each alternate weekend from 10:00am Saturday until 5:00pm Sunday;
(e)thereafter for a period of two (2) months each alternate weekend from 5:00pm Friday until 5:00pm Sunday;
(f)thereafter for a period of two (2) months each alternate weekend from 5:00pm Friday until 5:00pm Sunday and every other Thursday from the conclusion of school until 7:00pm;
(g)thereafter for a period of two (2) months each alternate weekend from the conclusion of school Friday until the commencement of school Monday, and every other Thursday from the conclusion of school until 7:00pm;
(h)in the first school term holidays following the commencement of alternate weekend time from Friday to Sunday pursuant to paragraph (3)(e) hereof:
(i)the first week of the school term holidays from the conclusion of school until 5:00pm on the middle Saturday of the school term holidays;
(ii)for the Christmas school holidays, pending the said children reaching the age of eight (8) years, on a week-about basis with the father to have the first week of the holidays and each alternate week thereafter save and except as set out in this Order;
(i)in 2018 and each alternate year thereafter from 3:00pm Christmas Day until 5:00pm on 26 December provided that the said children are in the mother’s care from 5:00pm Christmas Eve until 3:00pm Christmas Day;
(j)in 2019 and each alternate year thereafter from 5:00pm Christmas Eve to 3:00pm Christmas Day provided that the said children are in the mother’s care from 3:00pm Christmas Day until 5:00pm on 26 December; and
(k)on Father’s Day from 10:00am until 5:00pm provided the said children are in the mother’s care on Mother’s Day from 10:00am until 5:00pm.
That handover of the said children for their time with the father shall take place at the Town A Children’s Contact Centre with the parties to take all steps necessary to enrol in the said Service forthwith.
That in the event of the handover service being unavailable handovers shall occur inside the Town B police station.
That commencing in 2019 handovers of the said children for the time with the father take place at the said children’s school and such handovers not taking place at the said children’s school take place inside the Town B police station.
That the parties keep each other advised of a current mobile telephone contact number only to be used to communicate in relation to matters referred to in this Order or any other significant issues concerning the said children.
That each party inform the other of any significant illness or injury suffered by either of the said children whilst in their care.
That as and from the commencement of the school year in 2019, the mother keep the father informed of the details of the said children’s current school.
That as and from the commencement of the school year in 2019, the father is hereby authorised to obtain at his cost directly from the school copies of school newsletters, reports, photographs and any other material to which the parents are normally entitled.
That as and from the commencement of the school year in 2019, the father is hereby authorised to attend any school functions, events or interviews to which parents are normally invited provided that the father gives the mother at least forty-eight (48) hours’ notice of his intention to attend.
That the parties take all steps necessary to attend upon Ms J at Relationships Australia to address inter alia issues such as parental alienation, provision of support to the alienated parent, anger management if appropriate and the provision of support to the said children as referred to in paragraph 150 of the family report of Ms K published on 3 April 2017 (“the report”).
That liberty is granted to the parties to provide Ms J with a copy of the report.
That in the event that Ms J considers it is not appropriate for her to address the issue of the father’s anger management skills, the father shall attend upon either Mr T or Mr A or such person as they may refer him to address his anger management skills.
That the commencement of overnight time with the said children shall be subject to the father completing:
(a)the Kids are First post separation parenting program and providing evidence of completion to the mother; and
(b)his attendance upon Ms J, Mr T or Mr A to address his anger management skills and providing the mother with a copy of the certificate of completion or a written report evidencing the same.
That the parties use as and by way of a communication book, the Relationships Australia MyMob app to communicate in respect of issues concerning the welfare of the said children.
That each party be restrained and injunctions are hereby granted restraining each of them from:
(a)permitting the said children to consult any counsellor, psychologist, psychiatrist, therapist or mental health practitioner without the prior written consent of the other;
(b)assaulting, harassing, abusing, threatening or intimidating the other or permitting anyone else to do so;
(c)denigrating each other in the presence of or within the hearing of, the said children or permitting any other person else to do so;
(d)consuming alcohol to excess or any illicit substance for twenty-four (24) hours prior to or during any period of time the said children are in their care;
(e)physically disciplining the said children;
(f)photographing or recording the said children other than in the usual social circumstances; and
(g)discussing these proceedings with or in the presence of the said children or permitting any third person to do so, including any discussion whatsoever on social media.
That the appointment of the Independent Children's Lawyer be hereby discharged.
The proceedings in respect of children’s issues be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Sarto & Sarto is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4542 of 2015
| MS SARTO |
Applicant
And
| MR SARTO |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern children’s and financial issues.
The proceedings were bifurcated by agreement when issues arose with the mother’s failure to comply with parenting orders made by this Court.
These Reasons are in respect of the children’s issues only with the financial issues remaining pending before the Court for a subsequent hearing.
This is the mother’s application for parenting orders in respect of the parties’ two children. The mother seeks that the children live with her and the father have indefinite supervised time with the children in a secure location.
The father seeks that the children live with him and spend time with the mother each alternate weekend, on Christmas Day and Mother’s Day and such other times as agreed in writing between the parties.
The mother is self-represented and has not complied with orders made for the management of the hearing of this matter. I will refer to this later in these Reasons.
Background
The parties were in a relationship from 2006, married in 2007 and separated on 29 November 2015.
There are two children of the relationship namely [X] born on 2012 and [Y] born on 2013.
The children have been in the primary care of the mother since separation. It would appear that given the father’s full-time work commitments during the parties’ relationship, the mother has been the primary caregiver of the children.
Orders have been made in this Court in respect of the father’s time with the children. Orders were made by consent to move his time with the children away from the Children’s Contact Service with the time to be supervised. The mother did not comply. The issue of her compliance became such that the trial was listed as a matter of priority to enable consideration of all options including the removal of the children from the mother’s care.
Without admission the father has agreed to spend time with the children at the Kids Connect program of the Children’s Contact Service every alternate Saturday from 2:00pm until 4:15pm.
The proceedings were listed for trial on 9, 10 and 11 August 2017. A further trial day was allocated on 27 November 2017. Written submissions were finally obtained on 22 January 2018.
The mother has for some time been self-represented and was without legal representation at trial. I have endeavoured to address the relevant points from her documents, evidence and submissions in so far as they weigh on my decision. If they have not been addressed then it is because they are either not supported by evidence, are irrelevant or relate to material that the mother sought to refer to without leave after her case had closed.
The Independent Children's Lawyer has noted that the mother in her written submissions has on a number of occasions mentioned matters that were not the subject of evidence at trial including matters that she says she has become aware of since the conclusion of the trial. There was no application to reopen the hearing. I have accepted his submission that any matters that were not canvassed at trial should accordingly not be taken into account.
The evidence
The mother relies on:
a)her Initiating Application filed on 4 December 2015;
b)what would appear to be the affidavits that she has filed with this Court being affidavits filed in December 2015, 26 April 2016, 23 May 2016, 26 November 2016, 2 March 2017, 14 June 2017, and on 20 July 2017 (three affidavits) together with her oral evidence.
The mother gave evidence and was cross-examined.
The mother was self-represented at the trial and in those circumstances some leeway was given in respect of her reliance on a melange of evidence.
Her ability to comply with the guidelines set down by the Court was the subject of comment by the Independent Children’s Lawyer and I will refer to that shortly.
The father relies on:
a)his Response filed on 5 April 2016, and
b)his trial affidavit filed on 31 January 2017.
The father gave evidence and was cross-examined.
The Independent Children's Lawyer refers to:
a)the affidavits of Ms S filed on 2 March 2017 and 6 April 2017;
b)the Family Report of Ms K dated 2 April 2017; and
c)the reports of the Town A Children’s Contact Centre filed on 12 December 2016.
Independent Children's Lawyer’s preliminary observations
Counsel for the Independent Children’s Lawyer in his closing submissions whilst acknowledging the mother was self-represented noted that:
The court makes its decision on the basis of the evidence before it at Trial. Each party chooses what evidence to place before the Court and what matters are canvassed during cross examination of the other party and witnesses. The Court cannot have regard to matters which were not the subject of evidence before it at Trial.[1]
[1] See Independent Children's Lawyer’s written submissions.
Counsel further submitted that:
The focus of closing submissions should be to evaluate the evidence and submit to the Court what the Court should make of the evidence before it, including what findings (if any) and orders should be made having regard to the evidence and the relevant law. Closing submissions are not an opportunity for a party to endeavour to place further evidence before the Court. Unfortunately the mother in her written submissions has on a number of occasions mentioned matters not the subject of evidence at Trial, including matters she says she has become aware of since the conclusion of the Trial. The Court should disregard those matters.[2]
[2] Ibid.
As previously noted I accept the submissions of the Independent Children’s Lawyer on this issue.
The matter came back before me on 7 February 2018 in respect of financial issues. The mother having received a copy of the Independent Children’s Lawyer’s closing submissions, made no application to reopen. In the circumstances I accept that where her written submissions refer to matters outside of the evidence given at trial, they will not be taken into account.
The mother’s evidence
The Independent Children’s Lawyer submits that the mother was a very poor witness. There are numerous inconsistencies between various written statements provided by her over time, between written statements and oral testimony and also within her oral testimony. I accept that submission.
Whilst acknowledging the mother was self-represented, I accept that on a number of occasions the mother’s train of thought and reasons for focus of questions asked by her was difficult to follow. At times the asking of a question did not provide an answer but instead provoked a long statement about an unrelated issue that did not assist me.
I note and accept the observation of the Independent Children’s Lawyer that the mother was able despite significant allegations of family violence made by her against the father and expressed alleged fear of him (to the extent that the address where she resided would not be disclosed nor was the children’s school) to confidently cross-examine the father (albeit whilst in the confines of the Court).
Her demeanour and tone were confident and at times aggressive. It was clear in the course of her questioning the father about where he lived that she was aware that he was living with his mother at that time of the proceedings and furthermore was aware that the house had been placed on the market for sale having either driven past the property or arranged for another person to do so. I further note that she refers to this again in her closing submissions which suggests that she is following the father’s situation very closely whilst categorising her house and the children’s school as location sensitive (to use her words).[3]
[3] See mother’s written submissions, 86.
The mother’s cross-examination went for over a day concluding when the trial resumed in November 2017.
She referred often to other evidence that she claimed to have obtained and in particular made a number of references to recordings that she had taken without the knowledge or consent of the other parties which she claimed supported her case. She was advised that she should as a matter of urgency obtain legal advice about recording people’s conversations without their consent. I am not aware as to whether that advice was obtained. I did however flag my concern in respect of the impact that this conduct could have on her children.
Throughout the proceedings the mother was supported by the maternal grandmother. The behaviour of the maternal grandmother from time to time verged on disruptive. There was no evidence to suggest that she was a moderating influence at any time. On one occasion in the course of these proceedings she had to be asked to leave the Court.
There remains in my mind significant concerns about:
a)The ability of the mother to act in a child focused way and to promote her daughters’ relationship with the paternal side of their family on anything other than her terms as they may exist from time to time; and
b)The involvement of the children in these proceedings by the mother and the maternal grandmother.
The father’s evidence
The Independent Children's Lawyer submits that the father gave evidence to the best of his ability. That is not to say that he came through the process unscathed. He noted that the father was less than proactive in attending to matters that he might otherwise be given his application was for primary care of the children.
He also noted that there are a number of issues in respect of his frankness and engagement with the proceedings including:
a)His delay in enrolling in the Kids are First parenting course, noting it was ordered on 15 December 2016 and yet on 27 November 2017 his evidence was that he had enrolled only eight weeks before and was due to attend in December 2017;
b)The withholding until trial of information regarding his previous involvement with a psychologist and a psychiatrist, (which I will refer to when considering the capacity of the parents);
c)His lack of frankness with the report writer, Ms K about police involvement in his relationship with his former partner Ms A;
d)His having lived with his mother at her Town C home since April 2017 with no current plans to move out; and
e)His having significant debt, a lack of stable employment, and not being able to afford to pay child support, his evidence being that he had fractured his wrist at work about four weeks previously.
I also note my concerns about the explanations given by him for:
a)His behaviour when he made an abusive telephone call to the mother’s previous solicitors;
b)His behaviour at the s.11F Child Dispute Conference as reported by Family Consultant Ms E;
c)His compliance with the drug testing requests which I will refer to later;
d)His refusal to undertake a hair follicle test until the trial had concluded; and
e)The suggestions that he too was recording his interaction with the mother (and I note the reference to this by the report writer).
A significant part of the concern relates to what appeared to be a refusal to undertake certain actions (some of which are referred to above) because it was demanded of him by the mother.
The Kids are First parenting course is an obvious example. The order was made in 2016 and at the conclusion of 2017 had still not been completed. In his evidence he was clear that he was a good father and did not see the point. There was only reluctant acknowledgement that it may add to his skill set for parenting his daughters and a strong motivation to not be seen as acknowledging any inadequacy on his part as a parent.
In addition there is the anger management course sought by the mother. In a situation where the parties have been engaged in conflict since before they separated and where there a number of concerns about the mother’s compliance with Court orders there did not appear to be any acknowledgement that the father was attempting to set up a pattern of time with his children in difficult circumstances and that an anger management course may go some way to assisting him and more importantly the children.
The s.11F child dispute conference and the phone call to the mother’s solicitors are two flags that I would point to in support of this issue. The mother has shown a capacity to make things very difficult for the father and in circumstances where matters may not settle as quickly as could be hoped a course such as this could add to the father’s capacity to be there for his daughters.
My comments above are because the evidence of the father and the mother, in many ways demonstrated a pattern seen unfortunately too often in this Court where the parties have focused entirely on the dysfunctional relationship between each other to the detriment of the children. Neither the mother nor the father can be particularly proud of their performance in this Court.
The report writer
Ms K gave her evidence in a measured and thoughtful way. The Independent Children's Lawyer submits that the Court should give significant weight to her evidence and I accept that submission.
In view of the mother’s allegations it should be noted that in the course of the family report, the father conceded that:
a)He had been caught with 10 ecstasy pills and a small quantity of methamphetamine at the age of 19/20 years old and while he noted it was for his own use, he had been caught passing the substances to a friend and he was charged with intent to sell. His criminal charge prompted him to feel fear about possible imprisonment and remorse about his lifestyle. After the charge he focused on employment in particular.
b)He had rung the mother’s solicitor in an “angry” manner due to learning about the Caveat placed on the family home. He suggested he had not told the solicitor to “watch her back” (that is, a threat), rather that he had commented “I’ve got to keep watching my fucking back”. He indicated a sense of remorse about this.[4]
c)He also indicated a sense of remorse about his presentation at the s.11F child dispute conference. He suggested he had felt (and continued to feel, in relation to his current interview) frustrated that the process focussed on the allegations rather than on the children… He considered that since the s.11F conference he had felt an increased sense of support from his current relationship, had moved out of an empty house (family home)” and was attempting to “understand” the process better.
[4] See father’s affidavit filed on 31 January 2017, 97.
The Independent Children's Lawyer notes a number of observations from the report of Ms K including:
a)The mother conceding she had told the children on one occasion “mummy doesn’t have the money because daddy won’t give us any”;
b)The mother and the maternal grandmother openly talking about their worries relating to the safety of the days’ arrangements in front of the children at the start of the day of the interviews with Ms K;
c)The mother conceding the children may have been aware of her feelings in relation to the father;[5]
d)The father’s behaviour during the observed interaction with the children showing significant restraint in the face of the children’s comments, demonstrating a capacity to control his behaviour and the capacity to place the emotional needs of the children above his own;[6]
e)Both children’s interaction with both parties in a positive manner absent of overt demonstrations of fear;[7]
f)The reporting of the children’s interviews and observation of their interactions with the father combined with the report from the Children’s Contact Centre which suggested the children enjoyed engagement with their father whilst at the same time noting they were at the very least exposed to inappropriate conversation by the mother and at worst deliberately influenced as to their perspective regarding the father;[8]
g)The children’s effect during the disclosures of the father’s reported behaviour (being forthright and unambiguous comments directed to him about his alleged behaviour) which did not indicate any fear or reservation in respect of the father;[9]
h)The concern expressed by the report writer that the mother following two separate Orders has withheld the children not allowing them to spend time with the father basing her fears on what might occur rather than on concerns that appear to be based on reality;[10]
i)The children’s reports of the father’s behaviour appeared to be disproportionate to the actual experiences (for example, the incident where the mother alleges one of the children was rammed by a wheelie bin operated by the father) which appears to have been informed by the children’s mother and appear to be issues that in the absence of the mother’s influence, would not be matters on which the children would comment;[11] and
j)The contribution by both parties to the current dispute which is marked by extremely high and mutual animosity and distrust.
[5] See family report of Ms K dated 2 April 2017, 47.
[6] Ibid, 137.
[7] Ibid, 140.
[8] Ibid, 141.
[9] Ibid, 142.
[10] Ibid, 144.
[11] Ibid, 145.
The Independent Children's Lawyer notes the mother during her cross-examination of Ms K did not challenge her observations referred to above or her substantive recommendations.
He also notes that Ms K indicated there were no indications the father may harm or kill the children.
Ms K’s evidence that the father’s time with the children should be built up to be a shorter block with the intervening week than one longer block (particularly whilst the children were younger) was noted.
Furthermore, Ms K’s evidence was that she had not considered a change of primary care of the children to the father at this stage as it was “a serious risk removing the children” (that is, from their mother).
The law
The relevant legislation is contained in Part VII of the Family Law Act 1975 (“the Act”).
Section 60B of the Act sets out the objects of Part VII and the principles which underlie those objects. The objects are addressed in the considerations the Court must have regard to in s.60CC of the Act.
Section 60B(2) of the Act provides that:
The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):
(a)children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)the parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act states that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out how a Court determines what is in the children’s best interests and points to a consideration of the matters set out in sub‑ss.(2) and (3) (per s.60CC(1) of the Act).
Those matters will be addressed in these Reasons.
Should I decide that there be equal shared parental responsibility then I must, pursuant to the provisions of s.65DAA of the Act, consider whether in these circumstances these children should spend “equal time” or “substantial and significant time” with each of their parents.
These considerations include whether such an order would be:
a)in the best interests of the children; and
b)whether the children spending equal time with each of their parents is reasonably practicable (see s.65DAA(1)(a) and (b)).
I will refer to these matters later in these Reasons.
Section 60CC primary considerations
(2)(a) The benefit to the child having a meaningful relationship with both of the child’s parents
It is not apparent in the case of either party that there is no benefit to the children having a meaningful relationship with both of the children’s parents set out above.
They cannot however, agree on how that should be conducted;
The Full Court in McCall & Clark (2009) 41 Fam LR 483[12] noted with approval the decision of Brown J in Mazorski & Albright (2007) 37 Fam LR 518 concluding that:
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective not a strictly quantitative one. [13]
[12] McCall & Clark (2009) 41 Fam LR 483, 115.
[13] Mazorski & Albright (2007) 37 Fam LR 518, 26.
The Full Court went on to conclude in McCall & Clark that:
The Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents.[14]
[14] McCall & Clark (2009) 41 Fam LR 483, 118.
The primary difficulty for the Court is how the children can undertake a meaningful relationship in the context of a lack of child focused behaviour by either parent.
The Independent Children's Lawyer submits:
The parties have an appalling, highly conflictual and distrustful relationship with each other including no ability to effectively communicate or co-parent on any issue. Each party makes numerous allegations against the other. Over time both parties have made recordings of the other.[15]
[15] See Independent Children's Lawyer’s written submissions.
It is difficult to accept that the children are not aware of the actions of their parents and take steps to avoid being embroiled in the parent’s short-sighted war.
I acknowledge the provisions of s.60CC(2A) of the Act that require me when applying the considerations set out in sub-s.(2), to give greater weight to the considerations set out in sub-s.(2)(b).
(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Each party raises allegations against the other. The allegations include:
a)The mother alleging the father had knocked [X] over with a wheelie bin (allegedly in 2015);
b)The father alleging the children came to him with bruising on them and alleging the maternal grandmother had caused the same;
c)The mother being critical of the father posting pictures of the children and their bruising to an acquaintance in the (country omitted), seeking advice in respect of the bruising that he alleged to have observed;
d)The mother alleging incidents of “post-separation family violence” including the father making a shotgun gesture towards her from his vehicle (which is denied by the father); and
e)Each party alleging physical violence when the mother entered upon the father’s workplace (being the family business).
The mother further alleges that the father had people residing as tenants in the former matrimonial home. These people were she submits, undesirables that should not be there and their association with the father reflects on him. The father denies he had tenants in the property and does not accept the mother’s allegations. The evidence I consider does not support the conclusion sought by the mother.
She is critical of the father for not disclosing his attendance on a psychiatrist and makes the broad statement that most of his family have had some sort of diagnosed psychiatric illness. The evidence does not support the conclusion sought by the mother.
The mother is critical of the father sending photos of his children to a friend in the (country omitted) when he was concerned that the children had been physically disciplined by the maternal grandmother. While I consider that his actions may be questionable, I am also concerned that the mother and the maternal grandmother may have exacerbated the incident to one where the children’s trauma may have been increased by the ongoing actions of the mother.
I have not addressed all of the allegations raised by the mother. This is because I consider that the evidence does not support the conclusions that she asked me to draw from the facts as she sees them.
She talks of the father making a shotgun action at her whilst her car was at the lights. This is denied by the father. She talks of the father’s family stalking her and finding her when she had to attend hospital for treatment. I have difficulty concluding that this in fact occurred.
The mother talks of incidents that occurred when the parties were separating. Whilst I accept that there is a concern that both parties behaved extremely badly, I do not consider the evidence supports a conclusion that this should rest solely at the feet of the father.
In addition, it needs to be noted that since these proceedings began in 2016 the mother has strongly resisted the father being able to build his time with the children in an appropriate and sensible fashion.
Her view is clear that she considers the father poses a risk to the children. In accordance with that view she has not complied with orders made by this Court that would enable the father to transition with the children from the Children’s Contact Service to some supervised arrangement that occurred outside of that Service.
The father was prepared to accept that supervision on the basis that it enabled time to move on from the Contact Service. That was not sufficient for the mother.
Whilst there is never any excuse for bad behaviour, the context in which the father has had to strive to spend time with his daughters must be acknowledged. It is in that context that a frustrated response may then be seen by the mother as something far more sinister.
The report writer captured it in the family report where she said:
The Family Consultant wondered whether the mother recast the molehills (of the father’s alleged substance abuse, “bikie” associations, and unsuitable supervisors) as treacherous mountains so that they became her rationale for safety concerns that were insurmountable. It appeared that she remained concerned as to what might occur, rather than act on concerns that appear based in reality (or on information that has been deemed reliable and by the Court to be based on truth).[16]
[16] See family report of Ms K, 144.
The Independent Children's Lawyer raises concerns about a number of inconsistencies in the mother’s evidence in relation to allegations of family violence. He draws attention to the fact that despite her allegations the mother chose to travel with the father to (country omitted).
He also notes it is significant that the mother permitted the father to spend time with the children on 19 and 22 January 2016 after alleging that on 17 January 2016 the father made the action of a shotgun gesture towards her from his vehicle (an allegation which is denied by the father).
Furthermore he notes the mother’s demeanour when cross-examining the father. He notes that in that regard the mother seemed able, despite significant allegations of family violence made by her against the father and an expressed alleged fear of him, to confidently cross-examine the father without any signs of fear or distress. He further notes that during that process the communication and interaction of the parties could best be described as cold and critical.
He also notes that she chose not to cross-examine and challenge him on a number of her family violence allegations preferring instead to cross-examine on other topics.
Allegations of substance abuse
The mother has consistently alleged that the father has issues with abuse of illicit substances and continues to maintain the position that the father has failed to comply with drug tests and has failed to be honest with the Court in respect of his consumption and abuse of illicit substances.
To that end I made an order on 27 November 2017 that the parties provide a schedule of drug tests undertaken by the father on or before 3 December 2017 with the schedule to be provided by the Independent Children's Lawyer.
The order was made on the basis that there should be a paper trail of the requests made and the time within which the drug test was completed, together with a copy of the result. For reasons which are not explained, it appears that this could not be agreed and the Independent Children’s Lawyer subsequently provided a schedule in the course of his closing submissions. Neither party sought to address this at the time and that schedule is as follows:
REQUESTED
TESTED
RESULT
Order 14.12.15
(w/in 48 hours)
18.12.15
Negative
05.01.16
-
Negative
15.01.16 (father’s solicitor’s)
15.01.16
Negative
06.06.16
15.06.16
Negative
10.01.17 (ICL)
11.01.17
Negative
01.03.17 (ICL)
-
-
29.03.17 (ICL)
29.03.17
Negative
The mother submits that the schedule does not include all of the tests that were requested. Since the commencement of proceedings she submits six tests have been requested, two have been refused by the father, another two were produced outside of the accepted and requested deadline, and two of the tests had levels of creatinine so low they are not accepted as a reliable human urine test and standard report writing includes notations that recognise this.
The mother has no qualifications in toxicology and her opinion in respect of the creatinine level of the father’s urine is not accepted. The low creatinine level at best indicates that further testing may be required.
The mother is critical of the father not undertaking the drug tests within 48 hours and pressed for a hair follicle test for a significant part of the proceedings. The father initially rejected this proposal however on receipt of evidence from the mother that this may go some way to resolving the issue agreed to consider it (which was not a commitment to do it) at the conclusion of the trial.
Pursuant to orders made on 27 November 2017 the father had leave to file an affidavit annexing the hair follicle test within 14 days. This was done by affidavit filed on 20 December 2017 annexing the results of a hair follicle test undertaken on 16 November 2017. The test result is negative for all substances tested other than codeine which the father says is as a result of him being on pain medication since he crushed/injured his hand at work.
Neither party has sought to address this information further. The mother continues to maintain her position despite the results, which save for pain medication did not show positive for any illicit substances.
Whilst there may be some criticism of the results of the testing undertaken on 18 December 2015, on an unspecified date after the request of 5 January 2016, and on 15 June 2016, all of which were outside of the 48 hour timeframe, there is no viable evidence to which I can refer to criticise the results of the testing undertaken on 15 January 2016, 11 January 2017 or 29 March 2017 (save for the reference to creatinine levels above).
Furthermore, whilst there are some concerns in respect of the father having a haircut, it would appear that a 3.9cm hair sample was provided for the purposes of the hair follicle test which produced negative results for all substances other than the codeine. The results are significant in this context.
The mother made much of the fact that she resided in a property that had in her terms, location sensitivity. This meant that she was not prepared to disclose the address.
The same evidence was given in respect of the children’s school which she deemed to be location sensitive. She provided nothing to support her evidence that the police actively supported this conclusion.
The report writer noted that:
The mother maintains that the father exerted coercive controlling violence against her, described his behaviour as unpredictable and that he had limited control over his actions; she struggled, however, to describe his controlling behaviours in detail.[17]
[17] See family report, 135.
She went on to note:
… in the experience of the Family Consultant, coercive controlling perpetrators tend to demonstrate a consistent external locus of control and responsibility in relation to areas of problematic functioning when invited to discuss them. However, during his interview Mr Sarto acknowledged his past substance abuse in a reflective manner, acknowledged his behaviour during both the 11 F conference and towards the mother’s solicitor, and expressed remorse for his behaviour and acknowledged other aspects of his behaviour (for example, threatening to take the children from their mother during the parties’ relationship) which had the potential to cast him in a negative light before the Court.[18]
[18] Ibid.
Further, the report writer noted further concerns in respect of the father’s behaviour including:
The Police report indicated mutual verbal conflict with his sister in 2003, the threat to hit someone with a baseball bat in 2008.
She also noted that he has not been transparent about the police attendance recently with his current partner.
She went on however to say:
It may be that the conflict between the parties may be better described as situational – couple violence; this would suggest that Mr Sarto (and Ms Sarto, if the Court considered Mr Sarto’s reports of her behaviour to have some merit) had difficulty managing conflicted situations without resorting to aggressive behaviour. Also, the Police information suggested that both parties may contribute to the conflict.
Situational-couple violence differs from coercive-controlling violence in that there is no power imbalance, with one partner in exerting controlling and threatening behaviours to induce fear and intimidation in the other as a way to maintain the power differential. Situational-violence, rather, emerges in the context of conflict, and escalates into aggression; this can be mutually contributed to, and chronic.”
I accept the report writer’s view on this issue. I note the report writer further commented:
… the father’s behaviour during the observed interaction with the children showed significant restraint in the face of the children’s comments, which indicated both the capacity to control his behaviour and the capacity to place the emotional needs of the children above his own. These observations of the father did not seem consistent with the mother’s reports of him.[21]
[21] Ibid, 137.
I am unable on the evidence presented by the mother, to make any finding of family violence or post separation family violence as portrayed by her. I accept that any violence that may have occurred, did so in the context of the breakdown of the parties’ relationship and their subsequent separation.
I accept that the parties have had and continue to have an atrocious relationship to which it appears unfortunately that the children have been exposed.
Any views expressed by the child and any factors (such as the child's maturity or level of understanding)
The children the subject of these proceedings are [X] born on 2012 who will be aged 6 this year and [Y] born on 2013 who will be aged 5 this year.
I do not consider taking into account their maturity or level of understanding of this age that any weight can be given to their views. I do however note the report writer’s observations of the children’s interaction with their father and those of the contact service.
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 evidence would support a conclusion that the children have a close and positive relationship with each of their parents. Albeit they have had less opportunity to explore that with their father.
The positive interactions between the children and their father observed by Ms K and in the Children’s Contact Service report support this conclusion.
Ms K notes that:
Mr Sarto was teary when he was informed that the observation would be occurring as planned but was able to compose himself before meeting the children. When he entered [Y] was noted to call out “Yay!” ran over giggling and hugged him, holding her body close to his. [X] looked at their reunion from a distance, with eyes wide. She indicated “Mum said “don’t give you any love””, and when asked by the father to clarify she responded that “Poppa said “no, coz you are Mr Sarto””. [Y] then informed her father “you always have to be our Daddy”, to which Mr Sarto responded in the affirmative and he and [Y] exchanged a high-5.[22]
[22] See family report, 122.
Further, she notes both girls sat on the father’s lap as he asked how they were. [Y] then reported, “You hurt my sister and chucked her in the bin”.[23]
[23] Ibid, 123.
In the family report, “both [X] and [Y] were noted to then engage the father in animated conversation, responding to his questions about their dresses or activities they had engaged in.[24] The report documents the children raising issues such as this on a number of occasions and the father successfully diverting them.
[24] Ibid, 124.
It should be noted that this is in the context of concerns that arise about the children being exposed to negative comments about the father from their mother and her apparent lack of concern in respect of this.
In addition there is the mother’s penchant for recording interaction with the children amongst other things. The mother is reported as having conceded the children may have been aware of her feelings in relation to the father.[25]
[25] Ibid, 47.
I will discuss that further when considering the capacity of the parents.
The mother appears to now have a relationship with a Mr L. She did not disclose this to Ms K and produced no evidence from him at the trial. Her failure to provide that information is a significant omission.
I cannot comment on the role the maternal grandmother may play however I do have concerns in respect of the maternal grandmother and her role remains an open question.
the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child
The mother was critical of the father for missing periods of time with the children.
She was even critical of the father refusing to see the children at the Children’s Contact Service sooner rather than later following her failure to comply with the previous orders of the Court. The submission is extraordinary and does not reflect well upon the mother.
I have extreme difficulty with the submission in the context of the mother refusing to follow Court orders made after due consideration being given to her submissions.
The father’s opportunity to make decisions about major long-term issues, spend time with the children or to communicate with the children has been severely restricted by the mother’s conduct since the parties separated.
(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
The mother raises concerns about the father’s willingness to provide for his children following the parties’ separation.
There is no dispute that the amount of maintenance paid for the children following the party’s separation has been if anything nominal.
The mother would argue that the father has wasted significant money on his extravagant lifestyle of overseas and interstate holidays amongst other things. She alleges that $176,000 was taken out of the parties’ joint account, a new motor vehicle was purchased and the family business was restructured in an effort to hide assets. The evidence provided during the course of the proceedings in respect of children’s issues did not support this and I have difficulty accepting this submission on the evidence before me.
The fact remains however that the father has paid little or no child support and it must be noted that he has failed to fulfil his obligations to maintain the children.
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The mother’s proposal is for the father to have supervised time with the children indefinitely.
This is not accepted by the report writer or the Independent Children's Lawyer and is of course opposed by the father. I agree with the report writer on this matter.
The father on the other hand proposes there be an order that the children live with him. This is in the context where there is no dispute that the mother has been the primary carer for the children.
It is not clear from the father’s documents as to how this transition would be managed.
The Independent Children's Lawyer submits there is the potential for significant negative effects on children if the children were to be removed from the mother’s care and placed in the father’s primary care. He acknowledges however, in this statement that there is the potential for significant negative effects on the children if the relationship with the father is not positively promoted and facilitated by the mother.
He notes the concerns about the father’s ability or capacity to appropriately address the likely emotional effects on the children if they were to live with him.
He notes that the report writer does not support at this stage a change to the children’s primary living arrangements and in all of the circumstances neither does the Independent Children's Lawyer. I agree with that submission.
The Independent Children's Lawyer has no significant concerns about the effect of the children moving from supervised to unsupervised time with the father. He is confident the children will be safe and enjoy the time with father. Concerns remain however about the adverse effect of such an arrangement on the mother and her capacity to shield the children from her feelings.
It is the Independent Children's Lawyer’s view that the mother may benefit from obtaining some assistance to help her manage with her own emotions and to assist her to facilitate the children’s time with the father as it will be of assistance to her and will ultimately be in the best interests of the children. I accept that submission.
The children’s time with their father should progress in an orderly and appropriate fashion having regard to the recommendations of the report writer.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent
The practical difficulty and expense of the children spending time was not an issue that was canvassed in any significant way by either party.
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The Independent Children's Lawyer submits that the parties have an appalling relationship. He is correct.
The mother’s case is that the father is violent, has anger management issues and may kill the children if he has unsupervised time with them. The father’s response is that he acknowledges some past inappropriate behaviour but denies most allegations. At the same time, strong concerns are raised about the behaviour of the mother including but not limited to her failure to comply with Court orders and her involvement of the children in the proceedings.
The father in the course of these proceedings, has amongst other things behaved badly at the s.11F child dispute conference where he had to be put on notice that his aggressive attitude during the interview would not be tolerated. When the family consultant attempted to explain the developmental needs of the children, he became dismissive and argumentative. He demonstrated no insight into the impact of his variously proposed care arrangements on the children. He abruptly ended the interview saying he had enough of this and walked out of the interview room.
I must note however that Ms E, the report writer for the child dispute conference noted neither party appeared child focused in their discussions. That concern remains today in respect of both parties.
The father also behaved badly when he telephoned the mother’s solicitors office. His explanation for that incident does not appear to be particularly forthcoming. It should also be noted that doing things such as taking a hair follicle test earlier in these proceedings would have gone some way to having removed any issues in respect of his consumption of illicit substances from the table.
At the same time, he has maintained his desire to see his children and spend time with them in spite of the frequent obstacles that have been placed in his way by the mother.
His interaction with the children during the process of the family report and his continuing attendance at Kids Connect to maintain the link of contact with the children is significant.
It is the view of the Independent Children's Lawyer that the children are not at an unacceptable risk of abuse in the father’s care as a result of any anger issue of his. I accept that submission.
I do not expect however that the mother’s behaviour will ameliorate overnight and I consider that in trying circumstances an anger management course for the father to ensure that such behaviour does not resurface may assist.
The mother refers to amongst other things the father’s text message in April 2016 where he said, “I would like to thank everybody for being there for me and hoping everything works out for everyone goodbye”. The father provided his explanation for the same namely that he was leaving his previous friendship circle behind.
The father as previously noted had not disclosed he had consulted a psychologist on a number of occasions from December 2016 and had consulted psychiatrist Dr P on 8 February 2017. A report from Dr P dated 9 February 2017 was produced by the father at trial and is in evidence before the Court.
In that report Dr P stated the father had previously developed depressive disorder with prominent anxiety, during the clinical interview he was not depressed or anxious, and there was no need to institute psychotropic medication and no need for specific psychiatric follow-up. The father’s evidence was that he had not consulted anyone since.
It is notable that neither party sought for Dr P to be called to give evidence.
It is also notable as is apparent from the report that the father obtained assistance when he felt he needed it.
I do not accept that it is appropriate in those circumstances to order the father to undertake any further assessment or be required to continue with psychiatric or psychological appointments. The evidence does not support a conclusion that that action is warranted.
The mother has maintained her rage over the breakdown of the relationship and the subsequent separation.
The Independent Children's Lawyer submits that from the mother’s written submissions, her attitude towards and views of the father have not been ameliorated in any way as a result of the trial process. She also appears to have gained no comfort from the evidence of Ms K. I accept that submission.
My concern in respect of the mother’s capacity to provide for the needs of the children centres around her fixation on her rigid concerns about the father in his parenting capacity and her latching on to any evidence she may garner to support her position. The report writer’s comments in respect of mountains and molehills resonate in this respect.
I note the report writer when addressing the mother’s behaviour stated:
… many aspects of her and the children’s behaviour rather tended to indicate alienating behaviour. For example, the children’s reports of the father’s behaviour are disproportionate to their actual experiences, in light of repeated confirmations that they [sic] comments have been informed by their mother. Furthermore, incidents (for example, that involving the wheelie bin) appear to have been emphasised and exaggerated and the children’s reports of other aspects of the parties’ dispute (particularly the financial dispute) are unlikely issues that they would have an independent interest in or awareness of. To sum, the Family Consultant considered that in the absence of the mother’s influence it is unlikely that the children would be making these comments about the father, certainly, the observed interactions suggested they enjoy a positive and attuned relationship with him.[26]
Furthermore, research into parental alienating behaviours notes consistencies with Ms Sarto’s behaviour, particularly in relation to her lack of flexibility (for example, in relation to the dying paternal grandfather and ongoing withholding) and her apparent lack of support for the children’s ongoing relationship with their father.[27]
[26] Ibid, 145.
[27] Ibid, 146.
It is clear from the evidence that she has exposed the children to negative comments about the father from time to time. (I include reference to the Children’s Contact Centre report and the family report when making this comment). Her reaction when challenged on this matter gave me no confidence that she had any appreciation of how wrong it was to involve the children in this way.
The mother unilaterally arranged counselling for the children, when it would appear on the evidence before me that the primary causes for concern lie with the mother and father. She then at the counselling session raised concerns about the father in the vicinity of the children and remained present whilst the counsellor and the children spoke.
She then took the children to another counsellor in March 2017 and failed to advise Ms K, the report writer, about this when she spoke to the mother in late March 2017.
There are significant concerns about the ability of the mother to shield the children from her own feelings and her concerns about the father. Those concerns extend to the maternal grandmother having observed her in the back of the Court through the course of these proceedings.
The position that the father must never know her address, never know what kindergarten or school the children attend and never know the details of any medical practitioner upon whom the children attend is a matter for some concern. At the very least it requires the children to keep a secret from their father.
There is also a concern that having been unable to reach agreement with the father, it has been left for the Court to make orders in respect of the father’s time. Her failure to comply with orders in the past has not I consider been in the best interests of the children. The Independent Children's Lawyer submits that following her compliance with the father spending time at the Kids Connect program at the Town A Children’s Contact Centre, he has some confidence that she will comply with the Court orders.
The Independent Children's Lawyer submits however that the mother needs to be aware that she must comply with any orders of the Court, that breaches will not be tolerated, and the breaches can have serious consequences including the potential for significant changes to parenting orders including the removal of the children from the mother. That submission has significant weight.
(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
These two little girls are still relatively young. Their mother has been their primary carer since birth.
The change sought by the father which would involve the removal of the children from the mother at this stage is not warranted.
The question of their removal has come about as a result of the mother’s conduct and her failure to comply with orders of this Court, some of which were made by consent.
Her conduct including videoing the children, involving them in these proceedings and not shielding the children from her feelings against the father has caused me to look at the parenting arrangements carefully however at this stage, I accept the submissions of the report writer and the Independent Children's Lawyer and would not make the changes sought by the father.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
The issue of aboriginality is not a matter that has relevance in these proceedings.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
There are concerns in respect of both parents in these proceedings. The father has not done all that he could have to assist him in prosecuting his case for time with the children and subsequently his case for the children to live with him.
At the same time, he appears to have shown an ability to progress through the course of these proceedings and his interaction with the children during the process for the family report is noted.
The mother has maintained firm and fixed views of the father and has been unable to provide any constructive or child focused approach in this matter, being convinced that the father is capable of no more than supervised time.
She submits that she has consistently tried to allow a meaningful relationship between the children and their father that is risk-free however says that this has become increasingly hard due to violent and abusive behaviour and threats from the father both pre-and post-separation.
At the same time she acknowledges that she has been unable to obtain an intervention order because there has been no recent abuse. This does not sit with her evidence of her close association with the Police and her evidence that they have classified her residence and the children’s school as location sensitive.
This is a position that has been apparent since the parties separated in 2015. There remains some doubt that the incidents complained of being unable to form the basis of an intervention order prior to this submission being made.
(j)any family violence involving the child or a member of the child's family
The issues of family violence have been addressed at length in these Reasons.
I have accepted the view of the report writer that any family violence that may have occurred was situational.
I have also noted that despite the significant constraints placed upon the father there has been no incidents of significance for some time.
I have noted that the mother continues to point to these past events as evidence to support her concerns.
In addition, she seeks that the Court makes an intervention order in terms of the Order made on 14 December 2015 that the father be restrained from approaching within 200m of any school, place of residence or employment of the mother or other place occupied by the mother, except where otherwise permitted by the Orders.
The order was not sought in her documents. The order was not sought at trial. The Independent Children's Lawyer does not support an order and the father has not had the opportunity to address the order. I do not consider it appropriate that such an order be made.
(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
The toxic nature of the relationship between the parties is such that I have concerns as to whether any order I make be least likely to lead to the institution of proceedings in relation to the children
I refer again to the family report where the report writer stated:
Both parents have acted in a misguided manner. The father’s presentation at 11 F and towards the solicitor was concerning, and both parties confirmed tendency to “record” the other’s behaviour during the relationship and afterwards is bizarre. They have both contributed to the current dispute that is marked by extremely high mutual enmity and distrust; Ms E’s comment that “the full gamut of possible allegations and counter allegations would emerge throughout the course of this matter” appears to have been prophetic.[28]
[28] See family report, 149.
Consideration of this topic has particular relevance when considering whether or not an order should be made for equal shared parental responsibility.
The parties would accept that there has been family violence however each blames the other.
In those circumstances the presumption of equal shared parental responsibility is rebutted.
At the same time, there is a raft of concerns that arise should the mother be granted sole parental responsibility for the children.
I am not prepared to put that power into her hands on the evidence before me.
I accept the submission of the Independent Children's Lawyer that it would be appropriate to provide the mother with sole parental responsibility in respect of the children’s education, due to the complete inability of the parties to communicate in a civil and respectful way.
Equal shared parental responsibility requires the parents to consult each other in relation to the decision to be made about any issue and make a genuine effort to come to a joint decision about that issue (s.65DAC of the Act).
It is acknowledged that there is no need to consult on issues that are not major long-term issues (s.65DAE of the Act).
For reasons which are set out above, I have no confidence on whether these parties would be able to consult on what day of the week it was.
Section 61DA(4) of the Act states:
The presumption may be rebutted by evidence that satisfy the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
I do not think it would be in the best interests of the children for the parents to have equal shared parental responsibility, requiring them to make a genuine bona fides effort to negotiate with each other as I consider that they are incapable of this.
In so saying, I consider this to some degree is a failure of them to meet their obligations to their children.
I therefore consider that each save and except for the issue of the children’s education should retain parental responsibility for the children in their own right pursuant to the provisions of the Act.
I also am of the view that each party should attend a course to support them in modifying their behaviour and dealing with that of the other parent in an effort not to have to return to this Court in respect of children’s issues.
The Independent Children's Lawyer sets out a pathway for the father’s time to increase. I would take a slower approach as the parties need to pull this back from the edge of what could be a traumatic childhood for their daughters, involving significant and possible difficult change.
The understanding of, and the practical difficulties associated with long term supervision in a Children’s Contact Centre has been addressed in a number of decisions (Moose v Moose (2008) FLC 93-375, Champness v Hanson (2009) FLC 93-407). There might be cogent reasons to justify such a step (Gorman v Huffman 2016 FAMCAFC 1740) they have not been made out in this matter.
Conclusion
The Independent Children's Lawyer submits that this is a difficult case.
The Independent Children's Lawyer’s view is:
a)There is the potential for a significant negative effect on the children of any change in their primary care. In addition there are concerns about the father’s capacity to be an effective primary carer of the children.
b)The children should have a meaningful relationship with both of the parents.
c)There is no need for a psychiatric assessment of the father or for him to undertake further psychiatric or psychological counselling, and anger management course or counselling, or ongoing drug testing.
d)The father should complete the Kids are First parenting course.
e)There is no need for any further supervision of the father’s time with the children noting the mother’s proposal that supervision continue indefinitely.
f)The courts have for a long time expressed the general undesirability of final orders for indefinite ongoing supervision. Reference is made to the decision of Jones J in Bronson v May (No.2) [2017] FCCA 2317 particularly at paragraphs 49 to 53 where Jones J refers to the decisions of the Full Court of the Family Court in Moose & Moose [2007] FamCA 714, Slater & Light [2013] FamCAFC 4 and Marsden & Winch [2012] FamCA 557.
g)The father does not pose an unacceptable risk of abuse to the children if he is to spend unsupervised time with the children.
h)The children should therefore spend time in the father’s care and unsupervised basis with such time to be initially for short periods and gradually increase.
i)The mother’s willingness and ability to comply with an order for unsupervised time remains a concern however, it is noted that she has recently complied with orders in respect of the Kids Connect playgroup.
j)Family focused intervention as recommended by Ms K is not supported by the Independent Children's Lawyer.
k)Whilst the mother has not disclosed the children’s school address, the Independent Children's Lawyer promotes that this in fact occur as time progresses to enable handovers to occur at school thereby reducing the need for the parties to come into contact with each other.
Save that, I consider it would be appropriate for the father to obtain some counselling/guidance on how he should interact with the mother in an effort to avoid the necessity to re-attend this Court and would include an anger management program in that category and I accept that the mother should in turn attend a course to support her in her dealings with the father, I accept the submissions of the Independent Children's Lawyer.
To that end I would suggest that the reference to Ms J at Relationships Australia would be a good start with Ms J being at liberty to refer the parties to the supplementary courses.
In addition I consider it is time that the parties started communicating about the children and require them to make arrangements to commence using the communications app promoted by Relationships Australia known as MyMob.
The father’s time is currently progressing at the children’s playgroup at the Children’s Contact Centre. The parties will need to extract themselves from that program and I therefore order time in accordance with these orders commencing in two weeks’ time on Saturday 12 May 2018.
I would also give the mother some time to adjust in the hope it will prevent further litigation and order she disclose the children’s school in 2019.
I would therefore make the orders set out at the commencement of these Reasons.
I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of Judge Cole
Date: 27 April 2018
[19] Ibid, 136.
[20] Ibid.
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