SEDGLEY & CHARTON

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEDGLEY & CHARTON

[2020] FCCA 3227

Catchwords:
FAMILY LAW – Interim hearing – where the mother seeks sole parental responsibility on an interim basis – where the mother contends that the children are at risk of harm in the father’s care due to his mental health functioning and suicidal ideation – whether the father’s time with the children should be supervised – where the father contends that his relationship with the children is in jeopardy and that time should not be supervised.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CC, 65DA, 65L

Cases cited:

Goode & Goode [2006] FamCA 1346

SS & HH [2010] FamCAFC 13

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Applicant:

MS SEDGLEY

Respondent:

MR CHARTON

File Number:

SYC 4446 of 2020

Judgment of:

Judge M Neville

Hearing date:

23 October 2020

Date of Last Submission:

23 October 2020

Delivered at:

Sydney

Delivered on:

26 October 2020

REPRESENTATION

Counsel for the Applicant:

Mr Macpherson

Solicitors for the Applicant:

M&K Lawyers

Counsel for the Respondent:

Mr Gould

Solicitors for the Respondent:

Unified Lawyers

THE COURT ORDERS THAT:

The mother shall have sole parental responsibility for the children X born in 2012 and Y born in 2018.
The children shall live with the mother.
The time spent by the children with the father shall be supervised
B Contact Centre shall be appointed as the supervisor of the time spent by the children with the father and further that the parties sign all such documents as are required to appoint B Contact Centre as the supervisors.
The father shall bear all costs of appointing and time spent by B Contact Centre supervising the time between the children and the father.
The children shall spend supervised time with the father at the following times:
(a)Sunday each alternate weekend from 9.30am to 12.30pm;
(b)Thursday of each week from 3.30pm to 6.30pm (with the husband to be responsible for the children’s dinner on those occasions); and
(c)On special occasions as agreed in writing by the parents.
The father shall not contact the mother by any means except in the case of an emergency or regarding the children when they are in his care.
The father forthwith shall cease to send flowers and/or other gifts to the mother.
Each party shall notify the other as soon as possible, and in any event, within 2 hours of any serious injury or illness suffered by the children whilst with that party.
Each party shall notify the other of any change to their address and/or landline and/or mobile number and/or their email address, no later than 48 hours of any such change occurring.
Pursuant to section 68L of the Family Law Act 1975 (Cth), an Independent Children’s Lawyer be appointed for the children X born in 2012 and Y born in 2018 and Legal Aid NSW is requested to provide such representation.
The parties provide to Legal Aid NSW forthwith all documents thus far filed in these proceedings by that party together with all existing orders and copies of any relevant reports.
Leave is granted to the Independent Children’s Lawyer to issue more than 5 subpoenas.
The matter be adjourned to 10 December 2020 at 11.30am for Callover.
Parties and legal representatives are to attend by telephone on the adjourned date, using the following dial in details:
(a)Dial in number: ...
(b)Guest Passcode: ...
Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Sedgley & Charton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4446 of 2020

MS SEDGLEY

Applicant

And

MR CHARTON

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

Introduction

X, aged eight years, and Y, aged two and a half years, are the children of the applicant mother, Ms Sedgley (“the mother”), and the respondent father, Mr Charton (“the father”).
X and Y’s parents are in dispute about interim parenting arrangements for the children, specifically the time that the children should spend with the father and whether that time should be supervised and how parental responsibility should be held on an interim basis.
An interim hearing was conducted on 23 October 2020. Given that judgment was delivered the following Monday, reasons were given orally. These written reasons have, therefore, been corrected from the transcript.

Background

The parents started to live together in 2006. They separated in 2007. They reunited in 2011 and were married in 2016. They separated on a final basis on 14 June 2019. X (also known as X) was born in 2012, and Y was born in 2018.
Throughout the course of the relationship, the father was in the armed forces and was deployed to Country C on several occasions between 2010 and 2013 and to Country D between 2014 and 2015. He was medically discharged from the armed forces in 2020 with a retrospective date of 2016.
Following the parties’ separation in June 2019, the children lived with the mother and spent regular time unsupervised with the father. This continued until May 2020, when the mother took the decision to cease time between the children and the father.
The mother commenced these proceedings on 6 July 2020, filing an initiating application, affidavit and notice of risk. The father filed his response, affidavit and notice of risk on 3 August 2020.
On 8 September 2020 and by consent, orders were made in chambers appointing Mr E as a single expert to prepare a family report.
The matter was listed for first return on 16 September 2020, and on that date it was set down for interim hearing. The orders of 16 September 2020 noted that the mother consented to facilitating communication between the children and the father each Tuesday, Wednesday and Thursday between 6 pm and 6.30 pm through either Skype or WhatsApp.
The parties attended on Mr E on 21 September 2020. Mr E saw each of the parents as well as X. His report was prepared on 19 October 2020 and was released by Court order on 20 October 2020. The interim hearing occurred on 23 October 2020.

The Law

An interim hearing is an abridged process with a curtailed scope of inquiry. As was observed in Goode & Goode, the Full Court said that the procedure for making interim parenting orders will continue to be an abridged process where the scope of inquiry is significantly curtailed. Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.
The Court also looks to the less contentious matters such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children and the parties’ respective proposals for the future. The Court must regard the best interests of the child as paramount in deciding what interim parenting order to make.
In Goode & Goode, the Full Court identified the importance of following the legislative pathway at an interim stage notwithstanding that the Court “will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child”.
The Full Court set out the approach to be taken as follows, and that is to identify the parties’ competing proposals, to identify the issues in dispute in the interim hearing, to identify any agreed or uncontested facts, to consider the relevant section 60CC and, if possible, make findings about them and to consider whether or not the presumption of equal shared parental responsibility applies on an interim basis and, if it does or does not, to follow the legislative pathway according to what order for parental responsibility, if any, is made.
In interim proceedings, this Court frequently grapples with evidence relied upon by the parties where there are little, if any, agreed facts and where almost everything is in dispute. This is particularly so where one or both parties contend that the other has engaged in behaviour that may place a child at risk. Routinely, such contentions are vigorously and robustly denied by the other party. Having regard to the manner in which interim applications are to proceed, this can create a challenge for the Court deciding on parenting arrangements on an interim basis.
The authorities are clear that the Court cannot simply set aside competing allegations as to risk as being impossible to resolve on an interim basis. The Court is required to grapple with an assessment of risk even where there are little agreed facts and almost everything is in dispute.
In relation to dealing with allegations of family violence or contentions that a child may be at risk of harm in the care of a parent at an interim stage, the majority of the Full Court observed in SS & HH that “apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative, then, to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue”.

The Competing Applications

By amended minute of order tendered at the commencement of the interim hearing, the mother seeks:
a)That she hold sole parental responsibility for the children;
b)That the children live with her;
c)That they spend supervised time with the father each alternate Sunday from 9.30 am until 12.30 pm and each Thursday from 3.30pm until 6.30 pm;
d)An order pursuant to section 65L of the Family Law Act 1975 (Cth) (‘Family Law Act’) that a family consultant supervise compliance with the parenting orders and report back to the Court from time to time;
e)That the father disclose the details of his treating practitioners and any documents outlining his mental health treatment plan, that he comply with the directions and recommendations of his treating practitioners and that he execute an irrevocable authority allowing the mother to obtain copies of all medical reports; and
f)A restraint on the father from sending flowers and/or gifts to her.
By his response to application in a case, the father seeks that:
a)The parents hold equal shared parental responsibility for the children;
b)The children live with the mother;
c)The children spend time with him
i)each Monday, Wednesday, Thursday and Friday from after school or 9 am if not a school day until 6 pm;
ii)on the weekend:
(i)in week 1 of a two-weekly cycle from 9 am Saturday until 9 am Sunday; and
(ii)in week 2 of a two-weekly cycle from 5 pm Saturday until the commencement of school Monday or 6 pm if not a school day;
iii)on Father’s Day;
iv)the father’s birthday;
v)each child’s birthday; and
vi)Christmastime;
d)the children communicate with each parent in accordance with their wishes;
e)in the event that a parent is unable to spend time with or care for the children for a period of more than 12 hours, then the other parent shall have first option to care for the children
f)the exchange of information between the parents about the children.
All of the orders proposed by the father for time between himself and the children are for unsupervised time.

The Parties’ Evidence

In support of her application, the mother relied upon the following documents:
a)Her application in a case filed 7 July 2020;
b)Her affidavit filed 6 July 2020;
c)Her affidavit filed 10 September 2020;
d)A tender bundle comprising of:
i)an email from the father to her, copied to the parties’ legal representatives, sent at 10.30 pm on 10 August 2020;
ii)an email from the father to the mother, sent on 19 August 2020 at 2.28 am, which was admitted over objection by the father;
iii)an email from the father to the mother, copied to the parties’ legal representatives, sent at 12.34 am on 8 September 2020;
iv)an email from B Contact Centre regarding intake procedures, sent on 20 October 2020; and
The mother also tendered her minute of order that she sought at interim hearing.
For his part, the father relied upon the following documents:
a)His response to application in a case filed 3 August 2020;
b)Notice of risk, filed 3 August 2020;
c)His affidavit filed 3 August 2020
d)His affidavit filed 23 October 2020; and
e)A tender bundle comprising:
i)A transcript of proceedings on 16 September 2020;
ii)A document entitled “X “F” Peoples Boy, What NAIDOC Means to Me”;
iii)Certificates of Aboriginality for the father and for Y; and
iv)A medical certificate of Dr G, dated 20 October 2020.
In addition, the father tendered the report of Dr H, consultant psychiatrist, dated 16 July 2020.
The Court admitted as an exhibit on its own motion the expert report of Mr E, dated 19 October 2020.
I observe that in the current COVID-19 climate where the filing of court documents more often occurs electronically, the affidavit of the father sworn 23 October 2020 was transmitted in a form that made paragraphs 6, 10 and 11 difficult to read. Trying to adjust, pragmatically, to the fact that that hearing was conducted by telephone late on a Friday afternoon and not in person, counsel for the father read onto the record those parts of the affidavit that could not be read with ease on the copy that was transmitted to the Court and to the other parties, as follows:
a)Paragraph 6:
“I have read the report of Mr E in response thereto respond as follows, noting that this affidavit seeks to deal; with only the most notable issues of the report.”
b)Paragraph 10
“Paragraph 45- I deny the reason Mr E states in his report about why time ceased between myself and the children. Ms Sedgley unilaterally stopped time between the children and myself when she complained that I was too late to collect them. This is not what was discussed during our three interviews or factually correct. He failed to report the Monday night before time ceased that when I was driving X home from sports training and she was contacting X rather than me. This caused X great emotional pain and turmoil.”
c)Paragraph 11
“Mr E did not state in his report that X was seeing a psychologist even though I stated this fact to him. X has been seeing his treating psychologist (Mr J, K Psychology Centre) for 12 months.”

The Competing Contentions

The mother contends that it is important that the children have an ongoing relationship with their father. She considers that time between the children and the father is beneficial to and important for the children. She also contends, however, that the benefit to the children of having a meaningful relationship with the father must yield to a need to keep the children safe.
It is the mother’s position that the father’s mental health functioning, including a history of suicidal ideation, places the children at risk of harm in his care. By reference to the report of Mr E, she contends that the evidence adduced by the father is presently insufficient to establish that he is appropriately attending to his mental health. In the circumstances, she contends that the risk to the children, as has been identified not only in the evidence but in the report of Mr E, can be mitigated by time being supervised on an interim basis.
For his part, the father contends that his relationship with the children is in jeopardy. Prior to May of 2020, he was seeing the children regularly with the mother’s cooperation and on an unsupervised basis. At the end of May 2020, on his case, this ceased abruptly, unnecessarily, and she took advantage of the COVID-19 pandemic to unilaterally cease his time with the children.
Whilst the father accepts he contends, historically, he has had some difficulties with his mental health, that history is informative but is not determinative. He contends that there have been no changes in any risk factors since May 2020 to warrant the mother’s decision to cease the children’s time with him. The father contends that the mother has conflated the risks between the dynamic of the adult relationship and risk to the children. As I understand his position, he has never and would never harm the children, and they are a protective factor for him.
Insofar as the father has had any mental health difficulties, he provided the reports of psychiatrists Dr L of 21 December 2019 and Dr M of 6 January 2020 as well as the notes of his voluntary admission to N Hospital in late 2019 as evidence of his mental health history and functioning, and he otherwise relied upon the medical certificate of Dr G prepared on 20 October 2020.

Concessions, agreed facts and matters that can be established on an interim basis

Although we are at an interim stage of proceedings, the following matters appear to be uncontroversial as between the parties or otherwise on the evidence.
X and Y are Aboriginal children. They derive their Aboriginality through their father, who is also an Aboriginal man, as well as through their maternal great-grandfather.
Since separation, the children have lived in their mother’s primary care. Until 25 May 2020, the children spent regular unsupervised time with the father. In or around January 2020, the father provided care to the children at the mother’s home for one night overnight whilst the mother took a break. It appears thereafter that until 25 May 2020, the children spent regular daytime time with the father but no further overnight time.
As a result of the father’s active service, he has been diagnosed with post-traumatic stress disorder (‘PTSD’). He has attended upon Dr L in 2018 and Dr M in late 2019 for assessment, not treatment, in relation to applications for workplace compensation.
In late 2019, the father was voluntarily admitted to the N Hospital. He had a principal diagnosis of post-traumatic stress disorder and major depression. There were associated diagnoses of past substance misuse and other physical injury diagnoses.
The parties agreed to appoint Mr E, a single expert, to prepare a family report. The parties attended upon Mr E on 21 September 2020, and, in addition to interviewing the parties, Mr E also interviewed X in the course of preparing his report.

Determining the children’s best interests

At an interim stage, it is clear that in determining the children’s best interests, the Court considers those matters at section 60CC that are relevant to the dispute. The primary considerations at section 60CC are the benefit to the children of having a meaningful relationship with each parent and the need to protect the children from physical or psychological harm, from being exposed to abuse, neglect or family violence.
The Family Law Act is clear that of the two primary considerations, the Court is to give greater weight to the need to protect the children.
In addition to the primary considerations, I consider that the following factors set out at section 60CC(3) are relevant to the present dispute:
a)Any views expressed by the children and the weight to be given to them;
b)Capacity of the parents to provide for the needs of the children;
c)The children’s right to enjoy their Aboriginal culture and the likely impact that any proposed parenting order will have on that right; and
d)Any family violence involving the children or a member of the children’s family.

Turning then to a consideration of each.

Meaningful relationship

The term “meaningful relationship” has been interpreted as one that is important, valuable and significant to a child. It is a qualitative rather than a strictly quantitative concept (see Mazorski & Albright).
In McCall & Clark, the Full Court expressed preference for a prospective approach when undertaking the inquiry into the benefit to the child of having a meaningful relationship with both parents, saying that the Court should consider and weigh the evidence as at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure that the particular child has a meaningful relationship with both parents.
There is no dispute between the parties that X and Y each have a meaningful relationship with the father and that there is a benefit to each child in that relationship continuing. The real dispute is how best to frame orders to ensure that X’s meaningful relationship is facilitated on an interim basis.

The need to protect the children

This is a significant issue in dispute between the parents, and I place significant weight upon this factor in determining X and Y’s best interests.
As noted earlier, it is not controversial that up until 25 May 2020, the father was spending regular unsupervised time with the children. The mother ceased facilitating time between the children and the father at that time. She formed the view that the father’s suicidal ideation, or the expression of it, was increasing and that he had made a threat to seriously harm and/or kill the children’s maternal grandfather.
In her affidavit filed 6 July 2020, the mother outlines the matters that caused her to be concerned that the father had suicidal ideation. She annexed a series of text messages sent to her by the father throughout the period 23 August 2019 to June 2020 in which she contends the father expressed an intention and/or a plan to kill himself. The messages include expressions of the following:
a)the father telling the mother that he had tried to drive his car into a tree at 180 kilometres in or around late 2019;
b)the father writing:
You will never hear or see me again after tonight. I will give you what you want. Goodbye, Ms Sedgley. Keep my boys safe –
to which there were attached photographs of medication and what is clearly an image of the father holding a gun under his chin in late 2019;
c)express threats to come to the mother’s house and kick the door in if she did not answer in late 2019;
d)informing the mother that he has had seven sleeping tablets, so there is a fair chance that she will not see him or hear from him again or for a while, that she will receive a copy of his will identifying what it is that will happen with his assets and with a further text stating:
Goodbye, Ms Sedgley. I do love you –
sent in late 2019;
e)a message sent in or around late 2019 stating:
I’m not playing games any more. You have awoken the devil in me –
and about two minutes later another text saying:
See you in five minutes –
and shortly thereafter a further text saying:
I would have given you the world, but you just wanted to play games and fuck me over;
f)a message sent in mid 2020 stating:
I will be killing myself tonight.
The mother gave evidence that other than in mid 2020, when she received messages as described above, she would attend the father’s house to ensure that he was all right and that he had not harmed himself.
For his part, the father contends that on one of the mother’s attendances at his home, the mother supplied him with medication and goaded him to take the step to end his own life. In her affidavit, the mother gives evidence that she was distressed by receiving messages such as those described and that she has said to the father words to the effect of, “You want me dead as well as yourself,” and, “If you want to kill yourself, just do it.”
In his affidavit filed 3 August 2020, the father gives evidence as follows:
I have never once harmed the children or Ms Sedgley. I have at times sent messages to Ms Sedgley that I regret, and it has been in the heat of the moment. Ms Sedgley has also sent similar text messages and/or emails. I have no feelings of anger towards Ms Sedgley.
Whilst his evidence in this regard is not specifically in response to any particular paragraph of the mother’s affidavit, I infer that it relates, in part, to the messages I have outlined above.
In relation to the messages that the father contends the mother has sent to him, which are similar in nature to those that he has apparently sent to her, having had the benefit of reading the father’s affidavit and looking at the text messages that he relies upon in that regard, I do not consider that the text messages sent by the mother to father are in the same nature, nor do they carry the same threats, as those sent by the father to the mother.
As I understand the father’s evidence, he does not deny sending the messages to which I have made reference. They are disturbing messages to read. To the extent the father’s position is that these messages were sent in the heat of the moment, this causes me to be concerned as to his capacity to self-regulate his actions in the event that he is feeling or is overcome by strong emotion. If he is unable to do this in his dealings with the mother, it causes me concern as to his capacity to self-regulate his actions when spending time with or caring for the children.
It is, with respect, also difficult to reconcile the father’s evidence that he holds no feelings of anger towards the mother with the text messages that are in evidence as annexed to the mother’s affidavit. Whilst those messages appear at times to be an expression of the father’s feelings of love for the mother and the children and sorrow over the loss of relationship, those messages are interspersed with other messages that are expressly threatening and that otherwise blame the mother for the father’s feelings of suicidality and frustration.
It is not controversial that the mother continued to facilitate unsupervised time between the children and the father following the receipt of the messages I have described. In interview with Mr E, she is reported to have said that she tried to support the father by trying to understand his difficulties, that she attended counselling with him and that she has avoided contacting NSW Police or seeking apprehended violence orders or intervention orders but that in June 2020, she reached a point of no return.
The mother gave affidavit evidence that on 1 June 2020, the father sent her three emails which she understood to be a threat to her father’s life. The emails were annexed to her affidavit and read as follows
Email 1
Time: Mon, 1 Jun at 1.29pm
Subject: Your father
Ms Sedgley,
I’m sorry about your father, I always like him and enjoyed his company…
I remember taking him into the football dressing sheds in City O when we watched the game, how happy he was when a player shook his hand and said G’day P…. Your dad was beaming… and if we were still on good terms I would have been happy to take him to live games..
Unfortunately he needs to understand his place in society, that his words have an effect and for every action the [sic] are consequences… In some cases a simple apology and in some a violent final conclusion…
I understand and appreciate that he was just trying to protect/defend his daughter for which I admire and respect, but at the same time… he could/should of chosen his words more carefully therefore sometimes a different lesson is required.
He should think back to his speech at our wedding and what he said about you going to the cross and why you were/are very safe…..
Unfortunately, he wither misspoke or forgot… Unfortunately what is done is done and the future will now play out as a demonstration that respect must be shown and all times…
I have always admired and respected your father… On this case… It wasn’t reciprocated…
I’m sorry but the wheels are in motion and it will be as it will be…
Suburb Q is a very dangerous area… And accidents happen…
Email 2
Time: Mon, 1 Jun at 2.08pm
Subject: Fw: Your father
I didn’t no start this…
He sent me the messages from your mother’s account.
Why can you just ask him to apologise for threatening me??
Of course I don’t want any of this…
The last thing I ever want to go is hurt you or your family……
What was his motivation for threatening me??? Why haven’t you asked him that??
I love you more than anything and want nothing more than to have you in me arms when I feel asleep and when I wake up…..
I want us back…
Can’t you see that????
What more do I have to show you that…
It literally kills me not having you in my life… Kills… I have told you nothing but 1000% of the truth… I can’t force you to believe me…
Read what he actually wrote to me in those messages……
What do you want from me????
I just want you, I will do ANYTHING to have you back in my life…
Email 3
Time: Mon, 1 June at 3.55pm
Subject: You rang the police
All bets are off!!!!!!
Again, your choice and YOU will now have to take full responsibility..
You could have just asked your father to apologise which is exactly what I ask for….
In his affidavit material, the father makes no denial of having sent the three emails on 1 June 2020.
It is clear from the emails that the father requires an apology be made by the mother’s father, that is, the children’s maternal grandfather. It is also clear from reading the emails that the father considers that an apology is not going to be forthcoming.
The first email sent by the father contains, to my mind, a clear threat that where an apology is not forthcoming, the consequence may be a “violent final conclusion”. The first email also contains, in my view, a veiled threat by reference to Suburb Q being a dangerous suburb in which accidents happen.
Having given careful consideration to the nature, tone and content of those three emails, I accept that it was reasonable for the mother to construe them as a threat to her father’s safety at the hands of the father. Having regard to the father’s military background, I do not consider that the threat would have been considered an empty one.
In more recent times, the father has continued to send emails to the mother. On 10 August 2020, the father sent an email to the mother in which he describes an account of events occurring whilst he was deployed overseas. He recounts events occurring throughout the parties’ relationship. He signs off with the words:
You win. You will never see or hear from me again. I’m leaving Sydney at the end of the month. Goodbye, Ms Sedgley. Take care of our beautiful boys. You have always been the love of my life, my peace and my home. I’m sorry that I broke my promise.
Whilst that email foreshadows that the father is leaving Sydney, having regard to the totality of the evidence at this interim stage, I find that I cannot rule out the possibility that it was, in fact, an expression of suicidal ideation on his behalf. I observe that I do not find that that was the case, but, rather, I cannot rule it out as a possibility.
On 19 August 2020, an email was sent from the father’s email address to the mother’s email address. I observe that during the interim hearing, through his counsel, the father denied sending that email and denied any knowledge of it. The email reads:
You blocked me on Yahoo. Wow –
and otherwise attached a funeral insurance policy form, a picture of Y and a quote by Margaret Thatcher that reads:
You may have to fight a battle more than once to win it.
It was submitted for the mother that that email caused her to be anxious and fearful. Given the content of it, the fact that it has come from the same email account used by the father to communicate with the mother in the past and given that it contains a picture of Y, irrespective of whether the father did, in fact, send the email, I consider the mother’s reaction to it is reasonable in all of the circumstances.
On 8 September 2020, the father again emailed the mother, informing her, amongst other things, that a cybersecurity company had been going through all of his social media since he got out of hospital in late 2019. I pause to note that having regard to the father’s history of armed service and the apparent high-level work that he undertook in terms of intelligence, I do not find it unreasonable to consider that there had been some external monitoring of his social media at or around that time.
In any event, in the email of 8 September 2020, the father writes that it was reasonable for him not to have added the mother as a Facebook friend throughout their relationship due to his concerns for her personal safety. He attached to that email some screenshots of threatening messages he had received through his Facebook account. The screenshots contained imagery of weapons, motorbikes, explicitly threatening messages with vile language and a muscular man working out at a gymnasium. The email was sent to the mother at 12.34 am.
Whilst I infer from the text of the email written by the father that what he wanted to do was to inform the mother that he had at all times been trying to attend to her personal safety and to protect her from the threats that he faced through (if I have understood correctly) the course of his work, it is difficult to understand what he had hoped to communicate or achieve by sending to the mother what can only be described as threatening and menacing imagery. To the extent that it was submitted for the mother that this email has given rise to fear and anxiety in her, I consider that to be a reasonable response by her.
Through his counsel, the father contended that it is important not to conflate the adult dispute with the children’s safety. It was contended that the parties have had a very difficult relationship dynamic and that whilst the father has certainly had his issues and that these issues may have found expression in poor communication with the mother, this does not give rise to a risk to the children.
The father contends that notwithstanding the communication of June 2020 or the email messages sent in August and September 2020 (noting the father’s dispute as to the email of 19 August 2020) the mother continued to facilitate unsupervised time between the children and himself.
I do not accept that the mother’s actions in this regard would allow me to safely conclude that she had no concerns at all for the children’s safety with the father. As I understand Mr E’s account of the matters reported by the mother in interview, the mother endeavoured to manage the risks that she considered arose from what was described as the father’s volatility and mental health difficulties and aggression by acceding to the father’s requests for time with the children.
I also pause to observe that irrespective of the decisions that parties may have come to in and of their own accord, the matter is now before the Court, and whether or not a court faced with the information that has been adduced on affidavit in these proceedings would have made the same decision as the mother is a matter that arises for consideration.
It appears, to my mind, that notwithstanding the fact that the mother facilitated unsupervised time between the father and the children up to May 2020, it is reasonable that she would construe the emails of 1 June 2020 as a threat to her own father’s safety.
On the basis of the evidence available to me at this interim stage, untested as it is. I consider that it is reasonable for the mother to have formed the view that the emails of 1 June 2020 represented an escalation of risk at that time insofar as the threat made by the father in those emails went beyond a threat to his own safety or the mother’s safety and radiated out to members of the mother’s extended family.
I have already expressed concern that the father has been unable to self-regulate his actions and refrain from sending disturbing messages to the mother at times when his emotion appears to be heightened. I emphasise that the evidence does not cause me to consider that in a rational and calm state of mind, the father would do anything to harm the children. It is abundantly evident from the evidence before me that he loves the children, and he very much desires relationship and connection with them. If, however, the children were to be in his unsupervised care and if his emotion was to become heightened, I am concerned that the father may lack the capacity to regulate his actions and to refrain from doing things that may place the children directly or indirectly in harm’s way.
I consider that there is some support for these concerns in Mr E’s report. Mr E opined that there is risk to the children and that the risk is multifaceted. He identified the risks as being an emotional risk in the event that the father continues to struggle with his post-traumatic stress disorder and a further risk that the father’s emotional state may give rise to physical risk to the children.
In his report, Mr E observed that in his view, the father viewed the children as an extension of himself and this made it less likely that the father would do anything to be physically abusive to the children. Mr E did not consider that there was any indication that the father would set about to harm the children as punishment of the mother or to save the children from being with the mother.
Mr E observed that the parties live and have lived in fairly close proximity and that this has been relatively uneventful to date. I understand these observations to be somewhat protective factors, from Mr E’s perspective. However, notwithstanding those protective factors, Mr E considered that the risk was present, and it was a multifaceted one.
Mr E recommended that the risk could be managed, contained and mitigated by facilitating time between the father and the children on a supervised basis for a period of two to three months. It is also clear from Mr E’s report that that preliminary step of supervised time be taken in conjunction with a mandatory consideration that the father avail himself of ongoing psychological support and treatment.
At this point in time and on the basis of the evidence available to me at this interim stage, I am unaware as to how the father is managing his psychological health beyond attendance at his GP.
As noted earlier, the father tendered a medical certificate prepared by his GP, Dr G, on 20 October 2020. Dr G’s certificate sets out that he sees the father monthly to check on his psychological wellbeing and that post discharge from N Hospital, there was discussion of a mental health treatment plan.
According to Dr G, the father records his depression rating scale score on a daily basis and averages about 28 and rates higher during periods when he is not in contact with his sons X and Y. He identifies that the father keeps a detailed pain and sleep journal and that any issues in relation to the father’s ongoing issues are discussed either in session or otherwise by text message.
There is no evidence given by Dr G of the father’s current medication schedule. I am unaware as to what medications, if any, are presently prescribed to the father, and I am unaware of any detail of the father’s mental health treatment plan.
The report of Dr L that was in evidence before me made a number of recommendations. Those recommendations included specialised treatment and ongoing monitoring and assessment, psychotherapy and possibly pharmacology. The report of Dr M recommended psychotherapy with a CBT modality.
As was pointed out in the material filed on behalf of the father, the reports were not prepared to assess the father’s parenting capacity but, rather, were prepared in the context of the father having some form of work-related compensation claim. The reports are intended to identify his capacity and fitness for work.
Whilst recognising the fact that the reports were prepared for a purpose other than parenting proceedings, I consider that the recommendations made by each of Dr L and Dr M are validly made.

There is little evidence of what, if anything, the father has done to implement the recommendations of Dr L and Dr M insofar as each of those practitioners made recommendations as to psychotherapy. I understand from both the father’s and the mother’s evidence that the father has attended for some form of therapy with a psychologist or psychologists from the R Counselling Service. There is, however, no report from any psychologist that the father has attended upon from that service as to his engagement with the therapy nor his progress with that therapy nor the duration of the therapy or the goals that he is working towards.
It was pointed out in the father’s affidavit of 23 October 2020 that Mr E had not paid regard to the documents annexed to the father’s first affidavit from his admission to the N Hospital in late 2019. The father had annexed to his first affidavit the notes of N Hospital in relation to his attendance there as a voluntary inpatient.
The discharge summary annexed to the father’s affidavit indicated that at the time of discharge, the father’s mood had improved and that the father had expressed interest in “trauma-focused therapy”. The discharge summary prepared by N Hospital recommended trial of another SSRI, being a mood-adjusting medication. However, I am unaware whether or not the father is presently prescribed any mood-adjusting medication from a medical practitioner. The father gives evidence that he presently takes Endone for pain management but that he takes no other medication.
The discharge summary from N Hospital also included a risk assessment on discharge. That risk assessment identified suicide, self-harm, self-neglect, exploitation, aggression and risk changeability as being low risk at the time of discharge. This was a matter that was adverted to in the father’s affidavit of 23 October 2020. I observe, however, that it is clear from the risk assessment that it measured for short-term risk. The discharge summary predates, by only two months, the messages that were sent to the mother in late 2019 as have already been discussed in these reasons.
It was submitted for the father that he has had historical difficulties with his mental health and that his past behaviour may be informative but is not determinative of the outcome of this application. Whilst I accept that this is the case, I consider that there is a need to protect both X and Y from the potential for physical or psychological harm arising from exposure to abuse, neglect or family violence.
As noted already, the risk that I envisage arises in this regard is the potential that if the father was to find himself in a state of heightened emotion, if he was to find himself grappling with strong or difficult feelings, and if the children were in his unsupervised care, he may lack the capacity to self-regulate his actions, and the consequences to the children may be exposure to the father in a dysregulated state and/or the risk, as was identified by Mr E, that at a time when the father was unable to self-regulate his actions, the children may become subject to physical harm.
In the event that the father is to spend unsupervised time with the children, I consider that the risk is unacceptable. The evidence does, however, lead me to the conclusion that the risk can be mitigated if the father’s time with the children is supervised.

Views of the children

In terms of the other section 60CC factors that arise for consideration, one of the matters that the Court is entitled to take into consideration is the views of the children and the weight that should be given to those views.
As noted, Mr E interviewed X throughout the course of the preparation of the family report. X is presently of an age where his views can be ascertained. Y is presently of an age where he is too young for his views to be ascertained and/or given any weight in the proceedings.
X was described by Mr E as being “ambivalent” about his father but clearly wanting to see him. X expressed that his father’s absence made him unhappy, that he was hopeful that he would see his father again, and he is reported to have told Mr E that he did want to see his father but didn’t want his father to be sick in the head any more. From X’s perspective, it would appear that X was aware of the circumstances of the parents’ separation and fights.
X was reported to have expressed to be wanting to see his father but uncertain about what the future would bring.
Significantly, to my mind, X conveyed some apprehension about seeing his father and was unsure about how his father would react and what his parents would do if they were together. X wanted his father to be more gentle with both him and Y, commenting that his father used to be very angry and that his parents used to fight.
As was observed by Mr E, and I consider that there is force in the observation, regardless as to how the father or, indeed, the mother may view the parenting dispute, it is important to emphasise that notwithstanding the father’s view that he has never and would never hurt his children, X does love him, but X is apprehensive and has been frightened of his father.
Whilst I observe that X is still relatively young, I take into account X’s views in determining the present application.

Capacity of the parents to provide for the needs of the children

In terms of the capacity of each parent to provide for the needs of the children, I observe, as noted, that I consider that I do not have sufficient evidence before me at this point in time as to how it is that the father is attending to his mental health, and this makes it difficult for me to ascertain his capacity to provide care to the children on an unsupervised basis.

The children’s Aboriginal heritage

I observe, also, that both of the children are Aboriginal children. They derive their Aboriginality through their father and also through their maternal grandfather. One of the things that the court is required to take into consideration is the children’s right to enjoy their Aboriginal culture and the likely impact that any proposed parenting order will have on that right.
The father gave some evidence as to how it is that he facilitates the children’s access to their Aboriginal culture. The mother’s affidavit was largely silent on that issue.
It is clear that the children are engaged with NAIDOC Week and a number of Aboriginal-based activities. They have the opportunity to access their Aboriginal culture through a variety of channels, as I understand the evidence at this point in time. Their Aboriginality is important. It is important that they have the right to enjoy their Aboriginal culture. However, I consider that their safety must yield to the need to ensure that they maintain connection with their Aboriginality.

Family Violence

The other issue that I consider relevant to the parenting dispute is the issue of family violence. As I understand the father’s position, he has never harmed the mother or the children. He gives affidavit evidence to that effect. As I also understand the father’s evidence, whilst he accepts that he has sent messages which have been messages that he regrets sending, it is not apparent to me that he considers those messages were in any way abusive or aggressive. In addition, the father contends that to the extent that he has sent messages to the mother that were regrettable, that the mother has also sent messages of a similar vein to him.
Family violence is defined at section 4AB of the Family Law Act to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. It is clear from subsection (2) of that definition that family violence is not limited to physical assault, but it can include intentionally damaging or destroying property, doing or saying things which give rise to an apprehension of fear that a person or another person will become harmed or will undergo some form of abusive or aggressive behaviour.
As noted, I consider that the emails that were sent on 1 June 2020 by the father to the mother contained an express and a veiled threat to the safety of the mother’s father. I consider that those emails fall within the definition of family violence.
In addition to those matters, I note that on attendance with Dr L, the father is reported to have said that he becomes angry easily, and this can result in throwing or breaking things in the home.
To the extent that the mother has received messages indicative of the father intending to harm himself and blaming the mother for it, I consider that those are matters which are likely to lead to her being frightened and/or threatened and that those messages that may have given rise to her feeling coerced into trying to placate or manage the father’s strong emotions so as not to trigger any adverse reaction in him.

Determination

Turning then to the issues that arise for consideration on this interim application, and the first of those is whether or not the father’s time with the children should be supervised.
For the reasons given at this interim stage, I am satisfied that it is necessary to protect the children from exposure to physical or psychological harm arising from exposure to abuse, neglect or family violence.
For the reasons given, the evidence has led me to the conclusion that that risk may be mitigated by supervision of the father’s time. It appears to me that B Contact Centre is a service that can appropriately supervise the father’s time. And for the reasons given, I consider that the orders made for time between the father and the children should be supervised.
I further consider that the orders proposed by the mother, that is, that there be time each alternate Sunday from 9.30 am till 12.30 pm and each Thursday from 3.30 pm to 6.30 pm is sufficient time to ensure that the children may maintain a relationship with the father whilst providing for their safety.
Accordingly, in relation to the time that the children should spend with the father, I make orders in accordance with the minute of order proposed by the mother at orders 2, 3, 4 and 5 of that minute of order. I consider that it is appropriate in the circumstances that the father meet the costs of the supervised time between himself and the children.
Insofar as the mother seeks orders that, pursuant to section 65L of the Family Law Act that compliance with the orders be supervised as far as practicable by S Family Services or family consultant, I am not presently minded to make such an order. As was raised in the course of discussion throughout the interim hearing, the resources of the Child Dispute Services section of the Federal Circuit Court and the Family Court are limited and do not extend to undertaking such a role. Insofar as it was observed or proposed that S Family Services would be an appropriate organisation to undertake such role, it was not controversial that such a service would come at a cost to both of the parties.
It appears to me that at this point in time, the issue in relation to time between Y, X and the father is not one that relates to compliance but, rather, one which has required some form of interim determination as to what risks arise and how they might best be managed. Accordingly, I do not consider it necessary at this point in time that the order appointing a person to oversee compliance with the order pursuant to section 65L of the Family Law Act be made.
Insofar as the mother proposes orders that the father’s legal representatives provide the names of all treating practitioners, including details of the father’s mental health treatment plan, and that the father comply with all directions and recommendations made, including the provision of a written irrevocable authority to each such practitioner so as to enable her to obtain copies of all medical reports, I consider, and it was not controversial, that orders should be made requiring each of the parties to forward to the other’s legal representative the details of all treating practitioners and to provide copies of any documents outlining a mental health treatment and/or mental health care plan.
I further consider that it is appropriate to make orders, and it was not controversial from the mother’s perspective, that each party comply with all directions and recommendations made by their treating practitioners.
At this point in time, I am not minded to make an order for the provision of a written irrevocable authority to each such practitioner so as to enable each party to obtain copies of all medical records in relation to the other party.
It is clear that both the mother and the father have had a difficult history. It is clear that both of them are struggling to maintain good mental health at this point in time. The therapeutic relationship that exists between a patient and a psychologist, psychiatrist or counsellor is one that has or should have at its foundation a basis of trust.
To the extent that each parent obtains assistance from mental health practitioners, one of the things that I consider important to that therapeutic relationship is the fact that each of the parents may communicate honestly and directly with the mental health practitioner. I consider at this point in time that irrevocable authority to enable each parent to obtain the records of the other would undermine the trust and confidence that each of them has in the medical practitioners or the mental health practitioners with whom they are engaged.
I accept, allow for and expect that in the course of these parenting proceedings, subpoenas will issue for the records of each party’s mental health and/or medical practitioners. It is, of course, however, the case that if and when a subpoena issues and if and when documents are issued, arguments can be raised by each party at that point in time as to whether or not access ought be granted to the records, and the Court may at that point in time step in to make a determination as to whether or not the children’s interests outweigh the benefit to each of the parties to maintaining that confidential therapeutic relationship.
For those reasons, whilst I will make orders requiring each party to disclose their treating practitioners and details of mental health plans and requiring them to comply with directions and recommendations of treating practitioners, I am not minded at this point in time to make an order that they provide to their practitioners irrevocable authorities for the access to records.
In terms of the competing contentions as to how parental responsibility is to be held, the father seeks an order for equal shared parental responsibility. The mother seeks an order that she hold sole parental responsibility. The Family Law Act provides that the presumption of equal shared parental responsibility applies on an interim basis unless the court considers that it is inappropriate for it to apply.
As noted earlier in these reasons, I consider that the evidence indicates that some of the actions taken by the father in his communication with the mother and matters reported to Dr L in the course of interview fall within the definition of family violence.
In his report, Mr E, at paragraph 90, observed that it will be important to manage the relationship between the parents as it is likely that transitional difficulties and conflict at transition will almost directly negatively impact upon the children and that given the history of the relationship as assessed by Mr E and his concerns regarding family violence, that the mother should not have to be exposed to conflict, potential threat, possible manipulation, intimidation or coercion.
Mr E also considered that there needed to be containment around the mother and the father’s relationship, that boundaries needed to be respected as well as there being an acknowledgment that aspects of the history were poor, problems have escalated and that neither had been well contained in that regard and that the relationship had at times been ambiguous and unhelpful in the extreme.
It appears at least on an interim basis that those matters are made out in terms of the relationship dynamic between the parents on each party’s case. It would appear that each has found that the dynamic is difficult, unhelpful and unproductive.
An order for equal shared parental responsibility would require the parties to consult, liaise and make a genuine effort and endeavour to reach agreement on parenting issues in relation to the children.
I consider at this point in time that it is not in the children’s best interests that their parents hold equal shared parental responsibility because I consider that it is likely to bring Mr Charton and Ms Sedgley into regular communication with each other at a time when I consider tensions are likely to run high and trust between them is likely to run low. For the reasons given, where I consider that the father has been unable to self-regulate his actions at time of heightened emotions, I consider that an order for equal shared parental responsibility is likely to get in the way of effective decisions being taken on behalf of the children in a timely fashion.
Accordingly, on an interim basis, I consider that the mother should hold sole parental responsibility for the children, although I observe that this should not be read as any indication that that is an order that the Court would make on a final basis without a full hearing on the merits of the case.
In relation, then, to the balance of the orders sought by the mother, I consider it is appropriate to make orders requiring the father not to contact the mother other than in the case of an emergency or regarding the children whilst they are in his care. I consider that to the extent that the father may be sending flowers and/or gifts to the mother, that that should cease forthwith.
In relation to the orders that were proposed by the father, having determined that supervised time should occur, as has been proposed by the mother, to the extent that there is going to be time on a regular basis, and that is each alternate Sunday as well as each Thursday afternoon, I consider that that time should be sufficient to make provision for special occasion time unless the parties reach some other form of written agreement between them for occasions such as Christmas and/or birthdays. To the extent that the parties may reach some other form of agreement in relation to time on special occasions, I will indicate that that time will need to be supervised, and I will make orders to that effect.
To the extent that the father sought any other orders, I do not consider that it is necessary or in the children’s best interests that there be orders for communication between the children and each parent, as had been proposed by the father, and note that the parents may facilitate communication between the children and the other parent in accordance with whatever agreement the parents may reach.
I do not consider in the circumstances that it is appropriate or in the children’s best interests to make an order that in the event that one parent is unable to care for the children for more than a period of 12 hours, that the other has the first option to care for the children. I do consider it is appropriate to make orders, as sought by the father, that each party notify the other as soon as possible and in any event within two hours of any serious injury or illness suffered by the children whilst with that party.
I consider that it is appropriate that each party keep the other informed of any change to their address and/or landline and/or mobile number and/or email address. However, I consider that four hours after any change is too restrictive and that the time for notification should be within 48 hours of any change occurring. I do not consider that it is necessary or in the children’s best interests to make the balance of orders sought by the father.

I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Judge M Neville

Associate:

Date: 27 November 2020

[2020] FCCA 3227

26 October 2020

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