Sayles & Worman
[2022] FedCFamC1F 81
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sayles & Worman [2022] FedCFamC1F 81
File number(s): SYC 7118 of 2016 Judgment of: BENNETT J Date of judgment: 21 February 2022 Catchwords: FAMILY LAW – PARENTING – long running parenting proceedings – high parental conflict coupled with parents’ respective limitations – where the children’s need for stability, predictability and the continued opportunity to engage in appropriate support during an important and vulnerable stage of their lives and development is crucial – where father did not participate in the proceedings at final hearing – where final orders made for mother to have sole parental responsibility.
FAMILY LAW – PRACTICE & PROCEDURE – where it was originally considered that final hearing must proceed as a full attended hearing but consequent on father’s lack of participation, matter proceeded by MSTeams.
Legislation: Family Law Act 1975 (Cth)
Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth)
Cases cited: Doyle and Doyle (1992) FLC 81,947
R & R: Children's Wishes [2000] FamCA 43
Division: Division 1 First Instance Number of paragraphs: 85 Date of hearing: 17 January 2022 Place: Melbourne (via MS Teams) Counsel for the Applicant: No appearance Counsel for the Respondent: Mr Blackah Solicitor for the Respondent: Fay Rose Legal Counsel for the Intervener: Mr Fermanis Solicitor for the Intervener: Phillip A Wilkins & Associates ORDERS
SYC 7118 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SAYLES
Applicant
AND: MS WORMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
17 JANUARY 2022
THE COURT ORDERS THAT:
1.All prior parenting orders are discharged.
2.The mother shall have sole parental responsibility for the children X Sayles born in 2008 and Y Sayles Worman born in 2011 (“the children”).
3.The children shall live with the mother.
4.The children shall spend no time and have no communication with the father, save as otherwise agreed to by the mother in writing, with the mother to initiate any such time or communication.
5.Pursuant to section 68B of the Family Law Act 1975 (Cth), the father Mr Sayles born in 1980, is restrained from and not permitted to knowingly contact, approach or attempt to contact or approach the mother or children or either of the children in any way, including through another person.
6.Order 5 contains injunctions made for the personal protection of the mother and the children, and section 68C of the Family Law Act 1975 applies so that the father may be arrested by a police officer without warrant in certain circumstances.
7.X Sayles born in 2008 and Y Sayles Worman born in 2011 are permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to the said children. The mother shall be the only person with ‘parental responsibility’ of the said children for the purposes of applying for, and being issued with, an Australian passport for the said children.
8.The mother shall engage with her mental health practitioners if required or as recommended by any medication practitioner the mother may attend upon.
9.The mother shall ensure the children continue to engage with their mental health practitioners and follow all reasonable recommendations and requests as made by such mental health practitioners.
10.The mother shall be authorised to change the name of the child X Sayles born in 2008 to X Sayles Worman with the Registry of Births, Deaths and Marriages and with any other body or institution holding records or enrolments in respect of the child.
11.The Registrar of Births Deaths and Marriages is directed to register the name of the child X Sayles born in 2008 in the following form: X Sayles Worman.
12.The father have seven (7) days from the publication of these reasons to seek to vary or set aside these orders or as he may be advised.
IT IS DIRECTED:
13.That all exhibits in this proceeding remain on the Court file.
14.All subpoenaed material be returned to the provider producing same at the expiration of the appeal period.
IT IS FURTHER ORDERED THAT:
15.Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
16.Otherwise all extant applications be and are hereby dismissed and this matter be removed from the docket of the Honourable Justice Bennett.
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 the pseudonym Sayles & Worman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
INTRODUCTION
By his Amended Initiating Application filed 27 March 2020 the father seeks final orders for sole parental responsibility in respect of the children X who is 13 years old and Y who is nearly 11 years old. The father seeks that the children spend time with the mother subject to her undertaking a psychiatric and mental health assessment. The mother opposes the father’s application and seeks orders by way of a joint minute of order as between the ICL and the mother[1] that the mother have sole parental responsibility and that the children live with her. The mother’s orders sought seek that the father have no time or communication with the children and to restrain the father pursuant to s68B of the Act.
[1] Exhibit “S1”.
The father has not engaged in these proceedings since participating in the Family Dispute Resolution Conference on 29 July 2021. The last occasion upon which the father attended Court before me was in person on 17 February 2021. The father has not filed a document with the court since his affidavit of 12 August 2021, save for a Notice of Ceasing to Act which was filed on his behalf by his former solicitors on 24 October 2021. The father has written to the court saying that he will not participate. The mother seeks leave to proceed with her application for sole parental responsibility on an unopposed basis. Her application is supported by the independent children’s lawyer. These reasons provide the context within which I am satisfied that it is in the best interests of the children to make orders as sought by the mother and the independent children’s lawyer. Because the participating parties altered the orders they sought at the final hearing, I have provided that the father has seven (7) days from the publication of these reasons to seek to vary or set aside the orders.
BACKGROUND
The father is about to turn 42 years of age and resides at D Street, Suburb C New South Wales 53. The mother is 31 years old and resides at G Street, Suburb H, New South Wales. The father is employed as a tradesman and the mother as a health professional. The parents commenced their relationship in September 2007. X was born in 2008. The parents separated in September 2010. In 2011 Y was born.
On 25 July 2011 the Federal Magistrates Court (as it was then known) made final parenting and property orders. The parenting orders permitted the father to spend four nights every four weeks with X and to have telephone contact with X for one hour every other night. The orders made no provision for the father to spent time or have contact with Y nor did the father much an application for same.
In July 2015 X ceased spending time with the father.
In February 2016 an ADVO was made by consent on a final basis for the protection of the Mother against the father.
In June 2017 the mother was diagnosed with Bi-Polar disorder and severe depression. The mother was admitted to E Hospital following an incident in which she cut her wrists with scissors in May 2017.
On 17 July 2018 Judge Monahan made final orders by consent which provided, inter alia, for the mother to have sole parental responsibility for the children and for the children to live with her. On 11 August 2018 the children spent supervised time with the father at J Services in Suburb K, New South Wales. Prior to 11 August 2018 the father had not spent time with X since June 2015. Y had not spent any time with the father prior.
On 12 September 2018 Judge Monahan made parenting orders by consent which, inter alia, discharged prior parenting orders, ordered that the mother have sole parental responsibility in respect of the children and addressed the time X was to spend with the father during school holidays. The orders also restrained the father from consuming alcohol or illicit drugs and ordered the father to submit to random supervised drug screens. On 13 September 2018 Judge Monahan made further orders for the father to spend time with the children to gradually increase from supervised to unsupervised time.
On 23 September 2018 Y made a disclosure to the mother indicating she had seen the paternal grandfather’s penis. In early October 2018 the mother reported Y’s statement to the Department of Communities and Justice (the Department). The mother stopped complying with the Order made 12 September 2018 insofar as it provided time between the children and the paternal grandfather.
On 11 October 2018 the father submitted to a urine analysis at the request of the mother’s solicitors which returned a negative (clean) result.
On 21 October 2018 X disclosed to the mother that the paternal grandfather had “tickled his groin” and in early November 2018 the mother took X to the police to make a report.
A request was made on 19 November 2018 by the mother’s solicitors for the father to submit to a drug screen. The father complied and returned a negative (clean) result.
On 4 December 2018 X disclosed to the mother that the paternal grandfather revealed his penis to the children while bathing them. When the mother asked Y where the paternal grandfather touched her she replied “my private parts”. On 5 December 2018 X described to the mother the paternal grandfather’s “boner”. The mother reported the statement to the Department.
The father failed or otherwise neglected to respond to the request of the mother’s solicitors to undergo a urine drug screen on 17 December 2018, 24 January 2019 and 20 February 2019.
On 21 February 2019 an incident occurred while the mother was driving whereby X released a baby in a capsule after being told not to. X vented to his father and the mother claims the father further incited X’s anger with comments such as “you live in a prison”, “you have to be positive around negative people” and “you don’t have to live with Mum, I will sort it”. On 27 February 2019 the parents engaged in an email exchange regarding the incident in which the mother claims the father referred to her as a “fucking cunt”, said that her home was a prison and she treated “X like shit”.
On 6 April 2019 the mother suspended the father’s time with the children after the father failed to comply with orders requiring him to undertake a urine analysis. On 8 April 2019 the father provided a negative (clean) urine analysis.
The mother claims that on 6 July 2019 Y said she wished she did not know her father and that the father is not nice to her.
When X returned to the mother’s care on 8 July 2019 he reported the father had told him he could “chose to live with him when [he is] 12” and that the mother “lie[s] and play[s] tricks”.
On 29 August 2019 Judge Monahan J made interim parenting orders altering the father’s time with Y.
On 2 September 2019 X reported to the mother having spent time with the paternal grandfather in violation of the restraining order that was in place.
The father reported to police on 22 October 2019 that the mother had struck X around his head. The mother denies the allegation.
The mother relocated to Canberra with the children on 2 December 2019 having accepted a summer internship in the ACT.
On 14 November 2019 X picked up a knife and threatened to stab Y and himself.
The father notified the mother on 27 December 2019 that he would not be returning X to the mother’s care. The mother attended upon the changeover point at Suburb F McDonalds but the father failed to attend. The mother made numerous failed attempts to contact the father. The father notably retained X during the height of the bushfire emergency on the South Coast.
On 27 December 2019 the father made a complaint to the Department in relation to the alleged disclosure by X that the mother had struck him around the head and that the mother does not provide adequate food for the children. The allegations did not reach the Joint Investigation Response Team – NSW level.
On 7 January 2020 Judge Morley ordered that the father deliver X to the mother. On 8 January 2020 the father complied.
On 22 January 2020 an Interim Family Violence Order was made restraining the father from contacting the mother on means other than the Cozi Family App.
On 16 February 2020 there was a text message exchange between the father and X. The mother discovered a note containing what she understood to be the father’s contact number in X’s belongings.
On 2 March 2020 the children recommenced their schooling at Suburb L in New South Wales.
On 4 March 2020 following an Autism Diagnostic Observation Schedule (ADOS) Assessment Y was diagnosed with Post Traumatic Stress Disorder (PTSD) with complex trauma. Y was also flagged as potentially suffering from Attention Deficit/Hyperactivity Disorder (ADHD).
On 27 March 2020 the father filed an Amended Initiating Application seeking orders that the children live with him.
The father retained X for a second time in contravention of parenting orders on 13 April 2020. On 15 April 2020 Judge Monahan ordered X’s return to the mother and suspended the children’s time and communication with the father. X was returned to the mother’s care on 16 April 2020.
On 18 April 2020 X ran away from where he was living with the mother. The mother contacted police and X returned after an hour. The mother discovered a message X had sent to the father informing him prior to running away that he was “about to leave”. The mother considered that there may have been more messages that were deleted by X at the father’s behest. Subsequently, the mother discovered on X’s iPad more messages exchanged between the father and X about running away.
On 7 July 2020 the mother reported that X had chased Y with a knife. X had also expressed suicidal ideations.
On 1 August 2020 X reported wanting to “shank” someone to protect himself.
On 27 August 2020 X commenced attending upon the Child and Adolescent Mental Health Service (CAMHS) and was subsequently, on 7 September 2020, diagnosed with Complex PTSD for which he commenced to receive treatment.
On 21 September 2020 Y was diagnosed with Attention Deficit Disorder (ADD) and prescribed medication by her paediatrician.
In October 2020 the mother caused Y’s name to be formally changed on her birth certificate to Y Sayles Worman.
On 23 December 2020 the mother was informed that the parental grandfather allegedly made threats against her life. On 26 December 2020 Victoria Police issued the paternal grandfather with a provisional Apprehended Domestic Violence Order (ADVO).
On 24 April 2021 X ran away from the mother’s home whilst in the care of a babysitter. The police were called and he was returned to the mother’s care later that evening on 24 April 2021.
Family Dispute Resolution was convened by Registrar Weidmann on 29 July 2021. The matter was unable to resolve and remained listed for trial before me commencing on 17 January 2022 to determine the mother’s application to proceed on an undefended basis.
PROCEDURAL FAIRNESS
Immediately following the conclusion of the Family Dispute Resolution Conference convened by Registrar Weidmann on 29 July 2021 the matter was adjourned to a mention before me. At the mention I vacated the final hearing dates set down for 23 August 2021 and directed that the matter proceed as a face to face hearing in the Sydney Registry of the Court on 17 January 2021. The father failed or otherwise neglected to attend the mention but was represented by Mr Coorey of Counsel.
On 13 December 2021 an email was received by my Chambers from the father and copied to the other parties. In the email, which was later marked exhibit ‘ICL-1’, the father indicated an intention to no longer pursue his application, stating:
It is with great sadness that my only logical option is to revoke my application on the grounds that not one of you involved have the best interests of X and Y at heart.
In light of the father’s email and at the request of the independent children’s lawyer the matter was listed before me for further case management on 17 December 2021. An MSTeams link to attend the hearing was sent to the parties, including to the father’s address from which the email on 13 December 2021 had emanated. Orders were made on 17 December 2021 in the absence of the father that the matter remained listed for final hearing to proceed as an application not opposed by the father. I made an order that if the father wished to participate he was to attend court on the adjourned date, 14 January 2022. My Order of 17 December 2021 was emailed by my Chambers to the father on 22 December 2021. On the same day the Order was uploaded to the Commonwealth Courts’ portal to which the father has access. There was no appearance by or on behalf of the father on the adjourned date. The mother now seeks that the matter proceed to a final determination of the parenting issues on an undefended basis.
I am satisfied that the father has been accorded procedural fairness and given every opportunity to participate in these parenting proceedings including today in relation to the mother’s application and today’s hearing.
The mother and the independent children’s lawyer both sought that the matter proceed electronically rather than face to face. I am satisfied that it is appropriate to accede to the parties’ request. To do otherwise would require that the final hearing be adjourned yet again and it is difficult to say when the matter could be accommodated.
I am satisfied that the mother should have leave to proceed with her application for final orders on an unopposed basis. At the hearing I reserved liberty to the father to subsequently vary or set aside an order within 7 days of my reasons for decision being published. These are those reasons.
THE HEARING
At the hearing the mother attended court electronically and was represented by Mr Blackah of counsel. Mr Fermanis appeared as Counsel for the independent children’s lawyer. The father was not in attendance. Counsel for the mother together with the independent children’s lawyer submitted a joint minute of order which I marked exhibit “S1”. By way of summary the joint minute of orders sought that the mother have sole parental responsibility, that the children live with the mother and the father have no time or communication with the children.
The mother sought further orders which were neither supported nor opposed by the independent children’s lawyer that she be able to change X’s name from X Sayles to X Worman. In discussion, the mother and the independent children’s lawyer reached a compromise whereby the father’s family name “Sayles” would become a middle name for X. Y’s family name is “Worman - Sayles”.
The mother and the independent children’s lawyer jointly submitted an amended minute of order which amended orders 4, 10 and 11 in so far as it permitted time and communication between the children and the father as initiated by the mother or otherwise agreed in writing and permitted the children’s names to be changed in the terms of paragraph [50] above.
RELEVANT LAW – PARENTING ISSUES
These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to the children, I must regard the children’s best interests as the paramount consideration.
Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the children are met’ by:
(a)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
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
These objects may be regarded as the core values of the legislation.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a 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)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 65D of the Act provides that, subject to some associated provisions to which I will come later in these reasons, the Court can make such parenting orders as it thinks is proper.
DETERMINING THE CHILDREN’S BEST INTERESTS
In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in s 60CC of the Act.
The primary considerations are described as follows:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
with greater weight to be given to the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[2]
[2] Family Law Act 1975 (Cth) s 60CC(2)(b).
The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. They include, “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”.[3] It is only necessary to consider those which are relevant to this case. I propose to have regard to the relevant additional considerations in the context of evaluating the primary considerations, namely, ascertaining the benefit that may flow for the children in having a meaningful relationship with both parents and what is necessary to ensure that they are protected from harm and exposure to abuse, neglect or family violence. Finally s 60CC(3)(m) of the Act requires me to take into account ‘any other fact or circumstance that the Court thinks is relevant’. This ensures that the infinite variety of individual children’s circumstances can be addressed.[4]
[3] Ibid s 60CC(3)(a).
[4] B & B: Family Law Reform Act (1997) FLC 92-755.
BURDEN OF PROOF
Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
FAMILY REPORTS
There have been the following family reports and assessments:
(a)First Family Report by Ms B dated 27 October 2017;
(b)Update Family Report by Ms B dated 25 February 2020; and
(c)Second Update Family Report by Ms B dated 4 June 2021.
In the most recent reportable assessment the report writer concludes:
81. The Family Consultant has completed three Family Reports concerning this family during the course of these legal proceedings and unfortunately, the parents’ cases and proposals remain strongly polarised. They continue to make competing claims that the other presents a risk of harm towards the children and as noted multiple times previously, the children have felt the full force of their dysfunctional relationship. Ms Worman claims that Mr Sayles presents an unacceptable risk of harm to the children, mainly X, by way of perpetrating psychologically abusive and counter-parenting behaviour. Ms Worman also claims that the paternal grandfather presents a potential risk of sexual harm to the children and that he threatened to kill her. Mr Sayles, on the other hand, claims that Ms Worman presents a risk of harm to the children by way of her abusive behaviour, an artefact of her mental health and personality problems.
82. X and Y have been exposed to conflict between their parents, and considerable intergenerational dysfunction and conflict in their extended families. This has been discussed in detail in the previous Family Reports, but this continuing situation is concerning because X and Y’s exposure to this has potentially taken an enormous emotional toll on them, and as each new conflict erupts, their vulnerability to anxiety, stress and other forms of psychological injury increases. Unfortunately, neither parent appears to have always managed to exercise caution and protect the children from negative information about their other parent and extended family members. In circumstances whereby the children are reintroduced to Mr Sayles, there would be a risk that X and Y would continue to be further embroiled in conflict and familial dysfunction because Mr Sayles would be brought directly back into their mother’s world.
83. The family violence allegations have been discussed in the previous Family Reports prepared by this Family Consultant, and this remains an extremely important determination by the Court. It seems important to comment on the claims made by Ms Worman at this time, however, not least because they would be considered high risk and potentially lethal. Specifically, Ms Worman alleges that the paternal grandfather threatened to obtain a firearm and shoot her, and Mr Sayles goaded or ‘egged him on’. Ms Worman has also provided updated information concerning X’s behaviour and it is important that this also be considered in context of the family violence allegations she makes. This is because some of the information provided by Ms Worman would lend further weight to her claims about Mr Sayles.
84. Ms Worman has portrayed Mr Sayles as powerfully present in X’s life, although by all accounts, X has spent minimal time in his father’s care. Whilst this may seem understandably mystifying, the reality is that in context of coercive controlling family violence, the insidious and complex nature of a perpetrator’s conduct ensures their presence is felt, even with the limitation of infrequent contact and time spent with their children. This is because they possess an arsenal of psychologically abusive tactics which include, for example, overtly or indirectly and subtly teaching or communicating to one’s children a negative and disrespectful outlook of their mother, which sets the tone and an attitude that eclipses any constructive messages they receive about her. It is relatively commonplace for children or young people who receive these kind of messages to begin to model abusive behaviour. This may include, for example, describing one’s mother in a disparaging manner and even commencing to be verbally and physically abusive of her. This behaviour tends to occur more commonly in older male children and adolescents, who identify strongly with adult males and may perceive this behaviour is necessary as the perpetrator’s champion. Of significance, there are messages sent between Mr Sayles and X included in some of the material before the Court, which would potentially be considered emotionally manipulative, not conducive to productive co-parenting and undermining of Ms Worman.
85. Mr Sayles, on the other hand, continues to vigorously deny the allegations of family violence, and he made many comments in interview which would suggest he perceives being accused of this an abomination. Mr Sayles has presented himself as a protective father, and it is understandable that he would have strong feelings about Ms Worman’ alleged abusive behaviour. In circumstances whereby the Court determines Ms Worman has perpetrated child abuse, Mr Sayles is to be commended for ensuring X’s safety because, as noted in the previous Family Reports, child abuse poses significant risks of psychological and physical injury to children and an array of concerning psychosocial problems.
86. The allegations concerning risks to the children’s physical and psychological wellbeing have been discussed in detail in the previous Family Reports and the information provided by the parents during this Family Report assessment generally echoed the concerns they have made previously. Mr Sayles claimed during his recent interview that during the Easter 2020 holidays, X repeated a disclosure concerning Ms Worman allegedly abusing him. This reportedly caused Mr Sayles to notify the State child protection authority and the police, and he withheld X in his care a second time, prompting this Court to make a recovery order for X’s return to Ms Worman. Mr Sayles claims that X’s allegations of abuse were not appropriately investigated, however, due to jurisdiction issues between the New South Wales and Australian Capital Territory child protection authorities. Ms Worman, on the other hand, claims that she was interviewed for “three hours” concerning Mr Sayles’s allegations, and that X was reportedly also subjected to further interview.
87. Ms Worman continues to categorically reject Mr Sayles’s claim that she abuses the children. She has acknowledged throughout these proceedings that she has struggled with parenting the children at times, but from Ms Worman’ perspective, being a single parent of two children with complex needs is not an easy task, and she has made every effort to strengthen her parental capacity in difficult circumstances. Ms Worman acknowledged previously that she slapped X, but she claims that this has been in context of X acting out and defending herself from his assaults. Ms Worman asserts that she usually disciplines the children by way of removing privileges and time-outs. She noted that she has completed parenting programs and engaged in targeted therapeutic programs which support and promote one’s parenting capacity. It is Ms Worman’ strenuous assertion that when she is not “dealing with spot fires” created by Mr Sayles and his alleged inciting disrespectful and inappropriate behaviour in X, she experiences parenting the children considerably easier.
88. It seems important to note that Mr Sayles pointed out that there have been multiple Risk of Significant Harm (ROSH) Reports made to the New South Wales State child protection authority concerning Ms Worman’ alleged abuse of the children, and there have also been reports made concerning Mr Sayles. Whilst ROSH reports capture immensely important information about potential risks to children and they are a necessary and vital tool in child protection matters, caution is sometimes necessary when considering the information contained in such reports, at least in context of family law proceedings. This is because it is unfortunately relatively commonplace for parents and/or their family members and friends to make ROSH reports as a means of propelling their case and influencing family law proceedings.
89. Mr Sayles reiterated his concern about Ms Worman’ mental health during this assessment. It is his view that Ms Worman’ history of mental health problems, including periods of suicidal ideation, is potentially driving her alleged abuse of the children and the culprit concerning their challenging behaviour. He was unable to interpret the events that have occurred since these legal proceedings commenced other than being caused by Ms Worman’ poor mental health. Mr Sayles vehemently denies that he has behaved in a manner which would have an untoward effect on the children and their mother’s mental health.
90. The Family Consultant has discussed Ms Worman’ mental health in detail in the previous Family Report and there does not appear to be any significant development concerning this at this time, save Ms Worman reportedly continuing to attend upon her Psychologist, and she and the children engaged in structural family therapy for a period. Ms Worman reported feeling well within herself and she continues to impress as having a sound understanding of her diagnoses and management of same. The Family Consultant reiterates that it would be important that any information concerning Ms Worman’ mental health history is considered in context of her alleged experience of coercive controlling family violence and her complex family of origin experience, which would both place her at a heightened risk of psychological injury and experiencing psychosocial problems. This is because victims of family violence, including those who experience a decimation of their liberty, understandably often experience deficits in their mental health, including Post Traumatic Stress Disorder (PTSD) and other forms of serious psychological injury. When a perpetrator continues to wield control over their former partner post separation, for example, by way of using children as weapons of control and withholding them in their care, this can have an overwhelming and negative impact and further compound a victim/survivor’s emotional and psychological difficulties.
91. It would also be important to note that perpetrators are generally quick to point out perceived faults in victim/survivor’s, which is often concerning their fragile emotional state and poor mental health. The reality is that mental health and personality problems observed in victim survivors are frequently directly linked to the perpetrator’s abusive behaviour. As noted in the previous Family Reports, the coercive controlling family violence allegations and the impact that this potentially continues to have on Ms Worman’ mental health would be an extremely important determination by the Court. It is not in X and Y’s best interests for their mother and primary carer to experience further stress, and it may be that away from the entrenched conflict and Mr Sayles’s possible counter-parenting and marginalising behaviour, Ms Worman’ mental health would continue to improve and her parental capacity significantly boosted.
92. The allegations concerning drug and alcohol misuse have been discussed in detail in the previous Family Reports. During interview, Ms Worman commented that Mr Sayles is potentially misusing illegal substances. She acknowledged that she does not have any evidence to support such a claim and complained that Mr Sayles has not completed drug testing as ordered. Mr Sayles continues to strenuously deny that he uses illegal substances. As noted in the previous Family Reports, whether or not Mr Sayles poses risks to the children by way of illegal substance misuse would be an important matter for the Court’s determination. It is difficult to disagree with Ms Worman, however, that Mr Sayles not having adhered to the Court Orders and completing drug tests is unfortunate and unhelpful to the Court, and provides no assurance that he does not misuse illegal substances.
93. Y has expressed the view to briefly spend time with Mr Sayles prior to the commencement of any time that X spends with him. It is possible that Y has missed Mr Sayles and opportunities to spend time with him, and she may not feel comfortable expressing such a view to Ms Worman because she is cognisant of her mother’s strong, negative view of Mr Sayles. On the other hand, Y does not have the foundations of an attachment relationship with Mr Sayles and the reality is, she does not know him deeply. Children aged six to 12 years have multiple important development tasks, such as mastering social skills, learning to express themselves appropriately, and being accepted as part of a group becomes important. For Y, who has not experienced living in a nuclear family, it makes sense that she would perhaps develop grandiose ideas and beliefs about having a father and a ‘full family’, and this would be particularly so if she has friends who are living with both of their parents. It cannot be discounted that Y’s expressed view about time with Mr Sayles is related to the ideas and beliefs she has developed about ‘traditional’ families, and it may not necessarily mean that she truly desires time with Mr Sayles. Either way, Y is ten years of age and the Court would not typically place significant weight on her views.
94. It is difficult to know what to make of X’s comments in interview. He identified that were he reintroduced to Mr Sayles, concern for his wellbeing would potentially be mitigated because he is maturing and developing, and capable of communicating any concerns or worries to a trusted adult, for example, “Nan”, should this be necessary. Whilst on the one hand, this is an impressive comment that indicates X is fortunately developing good capacity for self-protective behaviour. On the other hand, this potentially demonstrates that X anticipates a possible stressful situation erupting, to the extent that he has given consideration to how he would manage this in the future. This is concerning, not least because X is a child and it is not X’s responsibility to manage Mr Sayles’s possible behaviour. X was also able to identify that he has experienced stress and angst since these legal proceedings commenced and his reintroduction to Mr Sayles occurred. His comments indicate that he is cognisant that such stress would potentially continue were time to recommence, a scenario he understandably wishes to avoid. Although X will shortly commence his ascent through adolescence, it is suggested that minimal weight be placed on his views, given the concerns raised in this assessment.
95. This is a complex matter and what has emerged from this Family Report is that X’s and Y’s need for stability, predictability and the continued opportunity to engage in appropriate support during an important and vulnerable stage of their lives and development is crucial. According to Ms Worman and the children, they are engaged in therapy and enjoy robust relationships with their clinicians, and Ms Worman reports a notable improvement in X’s behaviour since time and communication with Mr Sayles ceased, which is a pleasing development. It is the Family Consultant’s view that a Court Order which would potentially compromise Ms Worman’ functioning and parenting would be highly undesirable and not in the best interests of X and Y.
96. What has unfolded during these legal proceedings is that the opportunity to have a relationship with Mr Sayles has not augured well for X and Y, and the adverse impact of imposing this on Ms Worman personally and as the children’s other parent, has had an adverse impact on her emotional wellbeing. Mr Sayles’s proposal that the children live with him is assessed as not in the children’s best interests, given the concerns raised about him during these legal proceedings. Further, that Mr Sayles has withheld X from Ms Worman on two occasions provides no assurance that he would be capable of facilitating and supporting the children’s relationships with their mother. Mr Sayles’s fulltime care of the children is also untested and it is possible that this task would be frequently delegated to the paternal grandmother.
97. In summary, the reality is that the relationship between X, Y and their father, irrespective of how much time or the consistency of that time, and whether either parent has engaged in a manner which would cause dissent in the children’s relationships with their other parent, has not developed in a positive manner since these legal proceedings commenced, and this is immensely concerning. X’s and Y’s distress and mental health problems, coupled with Ms Worman’ experience of maternal stress by way of attempting to facilitate the children’s relationship with Mr Sayles, and Mr Sayles’s concerning behaviour and his lack of insight into this, perhaps attests to the negative aspects of the children continuing to have a relationship with him. Ms Worman’ wellbeing is fundamental to the children’s wellbeing and ultimately, their upbringing. If the Court accepts the information provided by Ms Worman, the current arrangement whereby the children have no contact with Mr Sayles, has resulted in her functioning better as a person and a parent, and the children have benefited from this. It would be possible that any progress made would be compromised were she required to attempt to co-parent with Mr Sayles again. It is possible that the Court may need to consider that the resultant psychological damage to X and Y by way of their reintroduction to Mr Sayles may be grave, and they would be vulnerable to losing strength in their connection Ms Worman, the person who has always been their primary source of love, nurturing and guidance.
98. X has shared positive comments about his father during these legal proceedings, and he has seemingly experienced time at the paternal residence as positive, save the stress caused by way of having been retained in Mr Sayles’s care and the subsequent child protection investigations and multiple police checks this has prompted. In terms of the impact on the children were Court Orders made that they have no further contact with Mr Sayles, X would be vulnerable to potential feelings of grief and loss because of his lost relationship with Mr Sayles, Y less so, because she does not have the same foundations of a relationship with her father. It would be important therefore that Ms Worman ensure that X’s therapist is aware of any such development and that therapy is tailored to support same. X and Y having no further contact with Mr Sayles would also potentially have a detrimental impact on their sense of self and identity, and, as Aboriginal children, it would be of immense importance that Ms Worman assures X and Y continue to have access to information, knowledge and opportunities to immerse themselves in their maternal and paternal Aboriginal culture. Ms Worman has indicated that she would accept the children maintaining identity contact with Mr Sayles and should the Court make an order for no time, it seems important that some mechanism for maintenance of the children’s paternal identity be maintained.
The family report writer recommends:
·That Ms Worman have sole parental responsibility of the children.
·That X and Y live with Ms Worman.
·That X and Y spend no time with Mr Sayles.
No party sought to cross examine the family report writer. I accept her evidence and give it weight.
DETERMINING THE CHILD’S BEST INTERESTS
This case does raise issues of family violence for determination. The mother made many allegations of coercive controlling family violence perpetrated by the father, including physical, verbal and psychological violence as well as forms of intimidation. The mother considers there to be a risk of the children being exposed to family violence whilst in the father’s care.
The father’s allegations against the mother are that the mother is psychologically and emotionally abusive towards the children in the way she prevents the children from having a relationship with the father. The father’s allegations also include that the mother physically abuses the children and does not adequately feed them.
In determining what is in a child’s best interests the Court must consider, amongst other factors, any views expressed by a child and any other factors that the Court thinks are relevant to the weight to be accorded to a child’s views[5].
[5] Family Law Act 1975 (Cth) s 60CC(3)(a).
The requirement to focus on a child’s views, as opposed to wishes, means that I have regard to a child’s perceptions and inclinations without requiring the Family Consultant or Independent Children’s Lawyer to make specific enquiries or elicit the child’s ultimate preference or wish. This is consistent with the reference in the Revised Explanatory Memorandum that consideration of the children’s views will:- [6]
…allow for a decision to be made in consultation with the child without the child having to make a decision or express a ‘wish’ as to which parent he or she is to live or spend time with.[7]
[6] Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth).
[7] Ibid [56].
However, consideration of a child’s views does not exclude consideration of a child’s wishes. Once a child's views are ascertained, the Court is required to consider them in concert with the primary considerations and such of the other additional considerations relevant to the child's welfare. This process is described by the Full Court in R & R: Children's Wishes [2000] FamCA 43 at [42] quoted Doyle and Doyle (1992) FLC 81,947 at as follows:-
[42] … the court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.
[54] … There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.
The Court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court by a family consultant[8] or other expert or appropriately qualified person retained by the parties or through the Independent Children’s Lawyer[9] and I do so.
[8] Family Law Act 1975 (Cth) ss 60CD(2)(a), 62G(2) and 62G(3A), the last provision of which generally requires the person giving the report to ascertain the child’s views and include them in the report.
[9] Family Law Act 1975 (Cth) ss 60CD(2)(b), 62G(2) and 68LA(5)(b), the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the court.
In this case the children say that they would like to see the father but Y, in particular, seeks only a short period at the commencement of the father’s time with X. Both the mother and the Independent Children’s Lawyer acknowledge the children’s views but submit that, in all the circumstances of the case, neither of the children’s statements should be accorded weight and orders should not be made consistently with the children’s views. It is a complex family dynamic in which there are strong indications that exposing the children to the father and undermines the mother’s parenting of the children. That is contrary to the children’s best interests. The three assessments of Ms B ultimately support the outcome which excludes the father from the lives of the children for the foreseeable future and I accept that it is an appropriate outcome.
I have considered the nature of the children’s relationship with each of the parents[10] and other persons inclusive of grandparents and other relatives. A continuation of the current arrangement mean that the children will have no face to face time with the paternal side of their family. They will learn of the paternal family from X’s communications with the father. The Independent Children’s Lawyer did not formulate a mechanism for maintenance of the children’s paternal identity. However, it is not a matter pressed by the father.
[10] Family Law Act 1975 (Cth) s 60CC(3)(b).
In determining what is in the best interests of the children, I need to consider the capacity of the parent or of any other person to provide for the needs of the children, including emotional and intellectual needs[11]. Both parents are challenged.
[11] Family Law Act 1975 (Cth) s 60CC(3)(f).
The mother has a mental illness diagnosis. She completed a Dialectical Behaviour Therapy course on 4 July 2019. It was a course of 18 months’ duration. The mother has engaged in enhanced cognitive behavioural therapy with a psychologist and is on medication.
The father has decided not to pursue these proceedings. The impact of that decision is that he will not be spending face to face time with the children. The father has forgone the opportunity to participate in making decisions about major long-term issues in relation to the children.[12]
[12] Family Law Act 1975 (Cth) s 60CC(3)(c).
The children are reliant upon the mother for their financial support. The current assessment of child support is $240 a month. The mother deposes to receiving no child support from the father and the father being in arrears of around $5,000 as at 27 July 2021.[13] At the time of hearing the mother had last received child support in November 2021 in the amount of $33 paid from the child support agency.[14]
[13] Affidavit of the mother affirmed 27 July 2021.
[14] Ibid s 60CC(ca).
On one level the outcome of these proceedings will not bring significant changes for the children.[15] X and Y will continue to be cared for by the mother. The children will have no face to face time with the father. On another level the children may grieve over the finality of the situation. I take into account the report writer’s comments in this regard.
[15] Ibid s 60CC(3)(d).
I consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of [the child] and the parents[16]. Both parents identify as Aboriginal but neither have raised any cultural considerations in the course of proceedings.
[16] Ibid s 60CC(3)(g).
I have discussed family violence orders earlier in these reasons.[17] This final order does not impact on the operation of the family violence orders.
[17] Ibid ss 60CC(3)(j) and (k).
I am satisfied that it is preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to X and Y.[18] Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. However, litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively. Parents and children are readily distracted by litigation. Ideally courts should make parenting orders that minimise the prospects of future litigation.
[18] Ibid s 60CC(3)(l).
PARENTAL RESPONSIBILITY
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[19] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
…issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
[19] Ibid s 61B.
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[20] The concept of shared parental responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[21] and to ‘make a genuine effort to come to a joint decision about that issue’.[22] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared.
[20] Ibid s 65DAC(2).
[21] Ibid s 65DAC(3)(a).
[22] Ibid s 65DAC(3)(b).
In this case, and taking all of the above considerations into account, I am satisfied that the parents are unable to work together to make joint decisions for the children’s long term welfare. Any requirement that the mother consult with the father about an issue would, I am satisfied, lead to undue delay in decision making or no decision being made at all. That would be contrary to the children’s best interests, it is appropriate that the mother have sole parental responsibility for the children.
CONCLUSION
This matter has been before the court for a long time. The three assessments by the child court expert, dating from 2017 up until 2021, provide a valuable longitudinal assessment. In long running cases, families sometimes evolve in a positive sense and parents develop skills and gain insights which allow them to parent the children more effectively and positively than previously. This was not such a case. I accept the assessment of the child court expert in her most recent report that X’s and Y’s need for stability, predictability and the continued opportunity to engage in appropriate support during an important and vulnerable stage of their lives and development is crucial. Given the undermining and corrosive impact of the father’s attitude on X’s relationship with the mother, I am not satisfied that the benefit, and indeed enjoyment, which either child would experience by being in relationship with the father, outweighs the negative impact of the children’s’ relationship with the mother who is their primary carer.
For the above reasons, I make orders as sought by the mother and Independent Children’s Lawyer. I am satisfied that this outcome is in the children’s’ best interests.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 21 February 2022
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