Sedgley & Charton (No 2)
[2024] FedCFamC1F 610
•12 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sedgley & Charton (No 2) [2024] FedCFamC1F 610
File number(s): SYC 4446 of 2020 Judgment of: JARRETT J Date of judgment: 12 September 2024 Catchwords: FAMILY LAW – PARENTING – Where children have at worst no relationship and at best ambivalent relationship with respondent – Where children exposed to negative views of respondent in applicant’s care – Where respondent does not have capacity to meet children’s needs – Where respondent sought change of residence – Children to live with applicant and spend supervised time with respondent graduating to unsupervised Legislation: Family Law Act 1975 (Cth) Part VII, s 102NA(2) Division: Division 1 First Instance Number of paragraphs: 44 Date of hearing: 26 August 2024 Place: [Sydney] Counsel for the Applicant: Mr McPherson Solicitor for the Applicant: Bridges Lawyers Solicitor for the Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Ms Hayward Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
SYC 4446 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SEDGLEY
Applicant
AND: MR CHARTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
12 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders in relation to X born in 2012 and Y born in 2018 are discharged.
2.The applicant have sole decision making responsibilities about all major long-term issues in relation to X and Y including but not limited to:
(a)education (both current and future);
(b)religious upbringing;
(c)health;
(d)name;
(e)international travel;
(f)living arrangements (to the extent that they impact the facilitation of the children living with each parent); and
(g)indigenous and cultural issues.
3.The children shall live with the applicant from the date of these orders.
4.The children shall spend time with the respondent:
(a)from the commencement of these orders until 1 September 2025, each alternate Saturday on a supervised basis by V Contact Centre, or such other supervised contact service as may be agreed between the parties in writing and for the purposes of this order:
(i)the children’s time with the respondent shall occur at such times, and for the maximum period of time period, that can be accommodated by the service on each alternate Saturday;
(ii)the parties shall forthwith do all such things that are necessary to complete any intake process required by the contact service for supervised time to commence pursuant to this order; and
(iii)the respondent shall meet the cost of the supervision of such time.
(b)from 2 September 2025:
(i)during the school terms, on each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday;
(ii)during the school holiday period in September/October 2025 (as applicable to the school attended by the children:
A.during the first week of the holiday, from 9.00 am on Wednesday to 5.00 pm on Friday; and
B.during the second week of the holiday, from 9.00am on Monday to 5.00pm on 7.
(c)during the Christmas school holiday period in December 2025/January 2026 (as applicable to the school attended by the children):
(i)during each second week of the holiday which time commences from the commencement of the earliest school holiday period for the children, from 9.00 am on Monday to 5.00 pm on Friday; and
(ii)all time during the period of Christmas Eve, Christmas Day and Boxing Day is suspended.
(d)from 1 February 2026:
(i)during school terms, on each alternate weekend from the conclusion of school on Friday (or 3pm in the event of a non-school day) until 6pm on Sunday; and
(ii)during school holiday periods (as applicable to the school attended by the children):
A.for the first half of each school holiday period in odd numbered years; and
B.in the second half of each school holidays period in even numbered years.
(iii)On Father’s Day, in the event that the children are not already spending time with the respondent pursuant to these orders, from the conclusion of school on Friday immediately prior to Father’s Day (or 3pm in the event of a non-school days) until 6pm on Father’s Day.
5.Notwithstanding orders 4(b), 4(c) and 4(d) hereof, the children shall spend time with their parents during the Christmas period as agreed between them in writing but failing agreement as follows:
(a)with the applicant from 3pm on Christmas Eve until 6pm on Boxing Day in odd numbered years; and
(b)with the respondent from 3pm on Christmas Eve until 6pm on Boxing Day in even numbered years.
6.For the purpose of orders 4(b)(ii), 4(c)(i) and 4(d)(ii):
(a)the school holiday period commences at the conclusion of school on the last required day of attendance in that term;
(b)the school holiday period concludes at the commencement of the first day of school for the next term; and
(c)the halfway point of the school holiday periods shall be 12pm on the middle Saturday of the period.
7.For the purpose of these orders, changeovers are to occur at school where changeover coincides with the commencement or conclusion of a school day.
8.Changeovers that do not coincide with the commencement or conclusion of a school day shall occur at a venue nominated by the supervising agency until completion of the father exercising supervised time and thereafter shall occur at McDonald’s Restaurant in suburb W between the nominee of the mother and the father unless otherwise agreed between the parties in writing.
9.The parents shall download and shall communicate through Our Family Wizard (“OFW”) app.
10.Each parent shall pay for their own subscription fee of the OFW.
11.The parents shall communicate via the OFW in relation to the child’s education, illness, medical advice, activities, parenting arrangements and other information directly related to the long-term care and welfare of the child.
12.From 1 September 2024, the mother shall do all things to facilitate the children’s own communication with the father by telephone or by way of Face Time on not less than two occasions each week, on days and times to be agreed but failing agreement, between 6pm and 7pm on Tuesday and Thursday.
13.The parties are restrained from:
(a)denigrating the other parent, members of the other parent’s family or household in the presence of hearing of the children and shall remove the children from the presence or hearing of any third party who does so;
(b)discussing these proceedings, allegations raised in these proceedings or documents prepared or produced for the primarily purpose of these proceedings with or in presence or hearing of the children unless:
(i)in accordance with the direction or recommendation of any therapeutic practitioner engaged by the parties pursuant to these orders;
(ii)to facilitate court ordered appointments or meetings with the Independent Children’s Lawyer;
(iii)as is reasonably necessary to facilitate compliance with these orders.
(c)Posting any information or documents on social media in relation to allegations raised in these proceedings or denigrating the other parent.
14.The applicant shall do all such things as are necessary to authorise the respondent to receive a copy directly from the school the children attends of all information and documents (at his own expense) ordinarily made available to parents of children attending the school, including but not limited to school reports, newsletters, photo order forms, invitations to events and functions, test results, invitations to parent teacher interviews, and notification in the event the children are removed from the school for the purpose of emergency medical care or assessment such that the respondent have the opportunity to attend such school event.
15.Within 72 hours from the date of these orders, the respondent provide to the applicant in writing particulars as to his mobile telephone number and email address and advise the mother of any change to those particulars within 24 hours of such change.
16.Within two months of the date of these orders, the respondent shall advise the applicant in writing of his current residential address and shall thereafter advise the applicant in writing within 24 hours of any change to that residential address, including particulars of any new residential address.
17.In the event the children suffer an illness or medical emergency that requires medical attention whilst in either parent’s care, that parent will as soon as practicable:
(a)advise the other parent of the nature of the children’s condition including any diagnosis, treatment and prognosis;
(b)advise the other parent the full name and contact details for any health care practitioner or facility the children may attend upon for assessment or treatment;
(c)authorise the health care practitioner or facility to contact the other parent in relation to the children’s diagnosis, treatment and prognosis and provide to the practitioner or facility the other parent’s contact telephone number and email address to facilitate the same.
18.In the event the children should be admitted to hospital, each parent shall be at liberty to visit with the children in hospital regardless of whether the children would ordinarily live with the other parent at that time.
19.A copy of these orders be provided to the principal of any school attended by the children.
20.The Amended Application in a Proceeding filed 17 May 2023 and the Application in a Proceeding filed 18 May 2023 are dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
This case concerns competing applications for orders pursuant to Part VII of the Family Law Act 1975 (Cth) with respect to the parties’ two children, X, now aged 11 and Y aged 6.
Section 102NA(2) of the Family Law Act 1975 (Cth) was engaged on the facts in this application. Consequently, the respondent was unable to cross-examine the applicant personally. Despite understanding that, the respondent had no legal representation and chose to represent himself. More than that, despite directions to do so, the respondent filed no evidence, affidavit or otherwise.
The evidence before me consists of the applicant’s affidavit of evidence in chief, filed on 23 July 2024, the answers she gave in cross-examination by counsel for the independent children’s lawyer, an affidavit by her adoptive mother, Ms Z, filed on 23 July 2024 and the evidence Ms Z gave in cross-examination by the respondent, a report pursuant to s 62G of the Family Law Act 1975 (Cth) authored by Mr BB, psychologist, and four exhibits tendered during the trial. The parties decided they did not need to cross-examine Mr BB.
On the Friday before the trial commenced the applicant filed a minute of proposed orders. The independent children’s lawyer agrees with those orders. The respondent did not file any minute of any order he proposed. His position was a mystery until I asked him his attitude towards the orders sought by the applicant about halfway through the trial. At that point he told me he was seeking an order for the children to live with him immediately, that they spend supervised time with their mother and that he have sole parental responsibility for all decisions for them. That was somewhat surprising given that he told Mr BB that following any period of supervision that might be ordered, the children should spend at least significant and substantial time with him, and ideally more, although that idea was not explored in any detail.
Before setting out the applicant’s proposal in more detail, an understanding of how the parties and the children have arrived here is useful.
BACKGROUND
The following background is extracted from the report of Mr BB dated 2024. I have chosen to record the background facts in this way because what Mr BB has set out appears to be the most comprehensive recitation of the facts in any of the material before me. He records what the applicant told him by way of background and what the respondent told him. Neither party took issue with Mr BB’s recitation of those matters. The respondent has no evidence before me and without recourse to Mr BB’s narrative, the respondent’s case is without a factual substratum. The applicant’s affidavit evidence too, is not as fulsome as what she said to Mr BB. The parties were interviewed by Mr BB on two occasions in mid-July 2024 and then again in mid-August 2024.
Mr BB records:
2. The mother, [Ms Sedgley] (born [in] 1985 and now aged 38 years), and the father, [Mr Charton] (born [in] 1975 and now aged 48 years), commenced living together in […] 2005 when the mother was aged 19 years and the father was aged 30 years. In July 2007 they ceased their relationship. The father went to [Region CC] for work and the mother went to [City DD] travelling and working and they remained in contact. In […] 2009 the father [served] in the [armed forces] and was in [Country C] from […] 2010 to […] 2011. The mother returned to Australia and the parents resumed living together on a full time basis from […] 2011.
3. There were significant stressors in the relationship. The father has had several periods of employment with the armed forces. He advised that he was deployed overseas [in] 2004 […] 2005, […] 2007 [,] 2010 [,] 2011, […] 2012 [,] 2014 [and] 2015. He also advised that there were additional occasions but that he cannot disclose specifics as the information remains classified.
4. Shortly after the father was working overseas in […] 2012, the father’s son from a previous relationship, [Mr EE] (born [in] 1997 and then aged 14 years […]) came to live with the mother ([Ms Sedgley]). [Mr EE] had previously spent time with the parents during some but not all school holidays. The mother ([Ms Sedgley]) described [Mr EE] positively and noted that when he lived with her he was doing well and playing [sport].
5. The period around the birth of [X] in […] 2012 was reported as being very difficult by both parents. The delivery and recovery were difficult and the father had planned to be present but did not return to Australia for [some] months. The father also noted that it was a particularly difficult time for him personally and professionally due to the death of a […] colleague. The mother reports that she has moved on from this and the father continues to report that it continues to be a significant source of distress for him.
6. The parents’ relationship was not smooth. In 2013 the parents together and separately attended upon a psychologist […]. In […] 2013 the father commenced seeing [a different] psychologist […] through [R Counselling]. [In] 2013 the parents [also] attended […] couples counselling […] through [R Counselling].
7. In […] 2014 [Mr EE] left and returned to live with his biological mother in [Suburb FF]. He was then aged 16 years […]. The mother reports that this was because [Mr EE] felt the father did not have a connection with him. [X] was [a toddler] at that time and the mother reports that both she and [X] had a close positive relationship with [Mr EE] but that the father did not. The mother advised that she later became aware that shortly after returning to [Suburb FF], [Mr EE] again left and stayed with the paternal grandmother […]. She reports that [Mr EE] became involved with illegal drugs and then moved to [Region HH] where his illegal drug involvement continued.
8. The parents married [in] 2016.
9. In […] 2016 the father ceased working with the armed forces […]. He subsequently obtained various paid work on a contracting basis. The father advised that in 2018 his discharge from the armed forces was backdated with a separation date of […] 2016 and he subsequently received entitlements on that basis.
10. In […] 2017, [Mr EE] was incarcerated following various drug related charges. The mother advised that this further increased the strain on the parents’ relationship as the father refused to have any communication with [Mr EE] at that time and the father would also not allow the mother or children to have any contact with [Mr EE]. The mother advised that after the parent’s separated when [Mr EE] was [incarcerated], the mother did take the children to visit him but the father continued to refuse to have any contact with [Mr EE] until he was released from prison on parole.
11. [In] 2018 [Y] was born. The mother was on maternity leave from […] 2018 until […] 2019.
12. In […] 2018 the father commenced working with [a government department].
13. The mother reports that from […] 2018 she noticed a significant change in the father’s mood and behaviour and there was a significant deterioration in the parents’ relationship.
14. The father stated that in […] 2018 his direct manager, [Ms GG], and other colleagues informally diagnosed the father with Post Traumatic Stress Disorder, and that at that time he was not aware that he was “unravelling” but within a week he had contacted [R Counselling] and arranged to see a psychologist.
15. The father also advised that in […] 2018 he noticed that [X] was behaving in an inappropriate manner (responding to a reasonable request from the mother with anger) and the father recognised that this behaviour was similar to the way that the father had been behaving. The father advised that he felt enormous guilt regarding this and that this has been a recurring theme for him and remains a “trigger” for his Post Traumatic Stress Disorder.
16. It is common ground that a family trip to [Country JJ] in […] 2018 was characterised by considerable tension. The mother was upset that the father was communicating with [Ms GG] for several hours each day rather than spending time with her and the children.
17. At interview [Ms GG] advised that the father and [Ms GG]’s friendship had developed into physical affection [in] 2019. [Ms GG] advised that this was awkward as she was still the father’s direct supervisor at that time. [Ms GG] stated that the difficulty was largely resolved when the father went off work on extended […] leave and then in [late] 2019 [Ms GG] accepted a redundancy offer and left the organisation.
18. [In] 2019 the parents separated. [X] was aged six years […] and [Y] was aged [1 year]. It is common ground that the mother had seen communication between the father and [Ms GG] which the mother believed indicated a relationship and the mother asked the father to leave. The mother reports that the father denied any romantic relationship and blamed the mother for not understanding the father’s mental health difficulties and abandoning him.
19. At separation the children remained with the mother in the former matrimonial home and the father moved out. The details of the father’s whereabouts are disputed with the mother asserting that the father stayed at the [Suburb KK] unit with [Ms GG], and the father asserting he stayed at a property in [LL Street] and then after leaving hospital in […] 2019 at his current home at [MM Street], [Suburb OO].
20. The father advised that he met his current partner, [Ms GG], when the father commenced work with [a government department] in […] 2018 and that their friendship had become romantic prior to his hospitalisation in […] 2019 and the relationship increased following his discharge from hospital […]. In […] 2020, the father advised the Single Expert Report Writer, [Mr E], that his relationship with [Ms GG] had become romantic in […] 2019.
21. There is some disagreement about the precise parenting arrangements following separation but it appears that the children spent time with the father at the matrimonial home for two to four hours several times each week including sporadic overnights when the mother was working away.
22. Shortly after the parents separated the mother saw [a] psychologist, […] for three sessions and [X] commenced seeing [a] psychologist […] through [R Counselling]. [X]’s sessions continued until […] 2020.
23. The mother reports that commencing […] 2019 the parents jointly saw [an R Counselling] psychologist […] on three occasions, during which the father completed a Risk Assessment document admitting to having thoughts of harming other people [and himself]. The mother reports she also completed a Risk Assessment document admitting to not feeling safe because she did not know what the father was going to do. During this period the father continued to deny that he was in a romantic relationship with [Ms GG].
24. The mother reported that it had been very difficult for her trying to support the father and deal with his deteriorating mental health including multiple threats of self harm. She reports that [in] 2019 she was contacted by [Ms GG] who advised her that [Ms GG] and the father were living together in a committed relationship and that [Ms GG] was worried about the father’s mental health and safety. At that time the father was denying to the mother any romantic relationship the father had with [Ms GG].
25. The mother advised that she went to [Ms GG]’s apartment at [Suburb KK] and confronted the father pleading with him to go to hospital and that she eventually got him to agree to stay the night with a friend. The mother advised that whilst at the friend’s home, the father then sent the mother a photograph of himself [holding a weapon] and a photograph of medication the father was threatening to take to end his own life. The mother was subsequently able to get the father to agree to go to hospital and suggested he stay at the mother’s house for the few days until his admission to hospital.
26. The father was admitted to [N Hospital] [in] 2019 and was discharged upon his own request […]. The mother reports that following discharge the father continued to struggle and that [later in] 2019 he [committed self-harm]. The father reports that with the help and support of [Ms GG], he has managed his mental health well since discharging himself from hospital in […] 2019.
27. The father advised that he has not undertaken any paid work since 2019 but that he has continued to [volunteer his expertise] to [the] Courts [...]. He described himself as “[having expertise in a specific area]” and advised that [in] 2024 he provided [...] advice [to the Courts].
28. The father advised that in early 2020 he saw a psychologist on one occasion. He could not recall details of who he saw. This is the only health care practitioner he has seen since discharging himself from hospital in […] 2019.
29. [In] 2020 the mother attended the father’s home against the father’s instructions and entered his building without permission. There was an altercation. Each parent accuses the other of being the aggressor. This event later became the subject of an Apprehended Domestic Violence Order (ADVO) and criminal proceedings against the father.
30. The mother reports that around this time she had decided that there was no prospect of the parents ever reconciling and that she needed to put clear boundaries in place and to limit her contact with the father as she had lost all confidence in him. She reports that the father continued to message her with threats of self harm.
31. [In] 2020 the children were in the care of the father at the mother’s home while the mother stayed with the maternal grandparents to have a break. Following this the children continued to spend time with the father on several days each week in accordance with an informal schedule.
32. [Later in] 2020 the mother recommenced counselling with [a] psychologist from [R Counselling] […] and this continued until […] 2023.
33. The father asserts that due to the Covid 19 restrictions from […] 2020 he cared for the children between three and six days each week from 9.00am to 5.00pm and that the parents enjoyed a good coparenting relationship. The mother reports that [for some months in] 2020 the children spent several hours with the father several days each week on a fixed schedule.
34. The mother reports that [in] 2020 the father emailed the mother threatening the life of the maternal grandfather. The mother reports she was increasingly alarmed about the father’s mental health and the safety of the children and her family and that she contacted the police about those concerns and subsequently unilaterally stopped the children from spending time with the father.
35. On 6 July 2020 an Initiating Application was filed by the mother.
36. [In] 2020 the father completed an online [parenting] program.
37. [Later in] 2020 the father completed [another] online [parenting] course […].
38. On 19 October 2020 a Single Expert Report was completed by psychologist, [Mr E], and was released to the parties the following day.
39. On 26 October 2020 Interim Court Orders were made inter alia that the mother have sole parental responsibility, the children live with the mother, and the children spend time with the father supervised by [B Contact Centre].
40. The supervision by [B Contact Centre] did not commence with each parent blaming the other for this.
41. On 23 November 2020 the father filed a Notice of Appeal regarding the 26 October 2020 Orders.
42. In […] 2021 [X] commenced seeing [a] psychologist […] and then [later] in […] 2021 commenced seeing [another] psychologist […] from [NN Counselling]. Sessions […] continued until […] 2023.
43. [In] 2021 the mother attended the police and made a statement alleging the father had assaulted her [in] 2020. An Interim Apprehended Domestic Violence order was put in place and the father was charged with various offences.
44. On 16 April 2021 the father’s appeal of 23 November 2020 was dismissed.
45. The mother reports she remained concerned about the father’s mental health and functioning. She reports that [in] 2021 the father sent [Y] (who was then aged three years) a book titled “[erotic literature]” by […].
46. In […] 2021 the mother and children relocated to live with the maternal grandparents in their […] home at [Suburb Q].
47. In […] 2021 [Mr EE] was released from gaol […] and was paroled to live with the father.
48. The mother reports that she saw [Mr EE] after his release but was somewhat uncomfortable as [Mr EE] was developing a relationship with [Ms GG] and [Ms GG]’s youngest child, so the mother did not continue to see him. The father advised that [Mr EE] now lives in [Suburb PP] and that they now have a good relationship.
49. The father advised that [in] 2021 he was arrested in front of [Y]. The father advised that he was at a local park and saw the mother and [Y] who were coincidentally attending a party but they did not see him. He left the area without approaching or making contact and then five minutes later he was surrounded by […] police cars and was arrested […] in the park. The father advised that he later became aware that the lady running the party saw the father and told the mother who subsequently rang Triple 0. The father advised he subsequently received a letter of apology from the police (not sighted by the Report Writer). It is not known how the father’s arrest could have been witnessed by [Y] if the father had earlier left the area.
50. [In] 2021 the parents agreed that the supervision would be provided by [QQ Contact Centre]. This also did not occur and again each parent holds the other responsible for this.
51. After some time the parents agreed to try a third supervising agency. It is agreed that the father wrote to the mother’s solicitor requesting names of alternative supervising agencies. The mother advises that the father was provided with details of several additional supervising options (as well as one of the two options which had already been tried). The father advises that the mother’s solicitor only provided the same two supervising options which had previously been tried. It is common ground that no supervision has ever occurred. Each parent continues to blame the other for this.
52. The mother advised that in […] 2023 the father sent her a text message including reference to [a recording]. The mother advised that she was terrified and made a formal statement to police as the father was in breach of the 2021 ADVO.
53. [In] 2023 the charges against the father resulting from a confrontation between the parents at the father’s home [in] 2020 were heard and dismissed. The mother asserts that the ADVO originally from […] 2021 and later varied was not dismissed and the father asserts that it was.
54. In early 2024 the parents finalised their financial settlement.
55. The mother reports that in […] 2024 she was subpoenaed to attend Court in relation to the father allegedly breaching the 2021 ADVO in […] 2023. The mother advised that she attended Court but that the father did not and asserted that the father had deliberately avoided being served including lying about his identity resulting in the police doing substituted service.
56. [I]n [mid-]2024 a Final ADVO was issued until […] 2026 with standard orders 1ABC and 6AC (the father not to approach or contact the mother in any way unless the contact is through a lawyer or as ordered by this or another Court about contact with the children).
57. The children have not spent time with the father in over four years. The mother maintains that this is because the father has refused to organise and participate in the supervised contact. The father maintains that he remains willing and able to participate in supervision but that this remains up to the mother to arrange as it has been the mother who has stopped the previously arranged supervision from proceeding. The parents agree that there is currently no supervising agency involved and no arrangements in place for any supervision to occur.
THE APPLICANT’S PROPOSAL
In general terms, the applicant proposes orders whereby:
(a)she has sole decision making responsibilities for the children;
(b)the children live with her;
(c)the children spend supervised time with the respondent each alternate Saturday until 1 September 2025;
(d)from 2 September 2025, the children spend time with the father:
(i)during the school terms, on each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday;
(ii)during the school holiday period in September/October 2025:
A.during the first week of the holiday, from 9.00 am on Wednesday to 5.00 pm on Friday; and
B.during the second week of the holiday, from 9.00am on Monday to 5.00pm on Friday;
(ii)during the Christmas school holiday period in December 2025/January 2026:
A.during each second week of the holiday which time commences from the commencement of the earliest school holiday period for the children, from 9.00 am on Monday to 5.00 pm on Friday; with
B.all time during the period of Christmas Eve, Christmas Day and Boxing Day is suspended.
(b)from 1 February 2026, the children shall spend time with the father:
(i)during school terms, on each alternate weekend from the conclusion of school on Friday (or 3pm in the event of a non-school day) until 6pm on Sunday; and
(ii)during school holiday periods:
A.for the first half of each school holiday period in odd numbered years; and
B.in the second half of each school holidays period in even numbered years.
She proposes a range of other orders that deals with time between the children on special occasions and other more mundane issues.
The independent children’s lawyer agrees with these proposals.
As I have already observed, the respondent seeks an order for the children to immediately live with him and that they have supervised time with the applicant. He argues that support for his position is to be found in Mr BB’s report.
CONSIDERATION
Counsel for the applicant and counsel for the independent children’s lawyer both seemed to argue that the need for supervised time between the children and the respondent arose not primarily because the respondent presented a risk of harm to the children, but rather to meet a need for “refamiliarisation” between them. Neither X nor Y has spent any time with the respondent since 2020 when X was 7 years of age and Y was 2 years of age. Indeed, counsel for the independent children’s lawyer accepted that insofar as Y was concerned the term “refamiliarisation” was probably inapt because of Y’s age when time with the respondent last occurred.
The evidence of the applicant and the evidence of Mr BB as to what the respondent told him about his mental health demonstrates that there was a need for the respondent to bring evidence to the court to show that the children would be safe in the event that they were permitted unsupervised time with him. He has not done so. The best evidence I have is what the respondent told Mr BB. He had been diagnosed with Post Traumatic Stress Disorder. The respondent told Mr BB that he has “chronic pain, anxiety, post traumatic growth and depression”. He told Mr BB that he takes prescription medication and has done so daily, more or less, for some years.
The episode described by the applicant occurring in 2019 that lead to the respondent’s hospitalisation is particularly concerning. As Mr BB observes, the respondent does not appear to have sought any significant mental health assistance since that admission in 2019.
Nonetheless, despite the evidence about the history of the respondent’s mental health and the family violence he has perpetrated upon the applicant (amongst other things, in the form of threats of self-harm and the like), neither the applicant nor the independent children’s lawyer argue that these risks mean that the children should never have unsupervised time with the respondent. Rather, they suggest a period of supervised time to ensure that the children respond well and that they are otherwise safe. Thereafter they might enjoy unsupervised time with the respondent.
This approach is reasonable according to Mr BB, although it should be recorded at this point that Mr BB recommends a series of supervised visits between the children and the respondent and then a further expert’s report. Neither party, nor the independent children’s lawyer seriously contended for such an approach.
The impression I formed from the submissions made for the applicant and the independent children’s lawyer was that the primary purpose of supervision was “refamiliarisation” or “reunification”.
But the risk are not all one-sided. Mr BB points out that there is a risk in the applicant’s household that the children will be exposed to the applicant’s negative views of the respondent. He records that subpoenaed material from the children’s psychologist shows that the applicant has openly shared her views with the children including that the respondent had an affair, he has mental health problems, he threatened to kill the maternal grandfather, and that the children have not seen the respondent because he chose not to comply with court orders regarding supervision.
I accept that this risk exists in the applicant’s household. She has clearly exposed the children to her views in an unfiltered way. According to the evidence of Mr BB, that has caused X in particular, difficulties in his relationship with the respondent.
They are also exposed to arguments and poor behaviour between the applicant and her father. X apparently told his psychologist that it was like watching his parents fight when they were together. He describes the fights as scary and he describes the applicant as swearing and “losing it”.
Mr BB spoke to the children. He recorded that Y had no memory of the applicant living in the family unit. He points out that Y’s views are formed by the information given to him by the applicant.
He described X’s relationship with his father has an “ambivalent relationship”, although Mr BB records that X appeared keen to find out how the respondent was going. According to Mr BB, X loves and misses the respondent but he is simultaneously disappointed and frustrated that the respondent has not undertaken the court ordered supervision which would have facilitated the children seeing their father. X accepts the applicant’s view that the respondent is to blame for the supervised time not occurring. This is symptomatic of the damage done by the applicant to X’s relationship with the respondent.
X told Mr BB that when he saw his father he wanted there to be supervision for a while and then if that went okay, he would want supervision to end. He would thereafter spend time with the respondent unsupervised and then, when he was older, he would make up his own mind. When Mr BB asked X why he thought supervision was necessary at all, ultimately X said that it had been a long time since he had seen the respondent and that Y did not even remember him that much. He thought that supervision would help them to get to know him a bit. Mr BB notes also record, however, that X’s treating psychologist recorded that X said he was scared that the respondent might hurt him or Y or the applicant.
Mr BB summarised X’s wishes as follows:
139.[X] is very clearly expressing a strong desire that his views be considered in any future Court Orders. [X] wants to see his father but he wants this to progress slowly and he wants an element of control about whether or not arrangements progress beyond an initial period of supervision.
Mr BB concluded that Y’s views reflect what he has been told overheard in the presence of the applicant. Mr BB thought that whilst the information imparted by the applicant was not positive, it was also not extreme and Y’s views aligned with those of the applicant’s, namely that the children should have a relationship with the respondent but initially at least, there should be a period of supervision.
Whilst it is important to take into account the views of the children and especially those of X, in doing so, I also take account of the fact that they have been formed in circumstances where they have not spent any time with the respondent for some four years or so and they have been influenced in their views by the matters to which they have been exposed in the applicant’s household.
The children have strong relationships with each other and it is clear from Mr BB’s observations that X sees himself as Y’s protector. Y reciprocates by trusting X and looking up to him. Both boys have strong positive relationships with the applicant. She has been their primary carer for the entirety of their lives. Both children also have close and positive relationships with the maternal grandmother, Ms Z, although it seems that X is inappropriately aware of tensions that exist between the applicant and her mother from time to time.
The children have no relationships with their extended paternal family.
It is of some significance, I think, that despite there being orders for supervised time to occur between the children and the respondent in place since October 2020, time has never occurred. This is as much of an indictment on the applicant as it is the respondent. Some time and energy was devoted in the applicant’s material to demonstrating that it was the respondent who was responsible for this time not occurring but, it was open to either party to bring the matter back to court on a contravention application so as to have the impasse addressed. There is no evidence that either party took such steps, although the issues seem to have been ineffectively raised by one or other of the parties occasionally. It seems that both were simply content for the children’s relationships with the respondent to suffer through their ambivalence to compliance with the court’s orders. This reflects poorly on both parties and underscores their inability to place their interpersonal conflict behind the best interests of their children.
Notwithstanding that, it is uncontroversial, that on significant occasions such as the children’s birthdays, Christmas and NAIDOC week, the respondent has arranged for gifts or messages to be delivered to the children and that on other significant occasions such as Father’s Day, Anzac Day, NAIDOC week and the respondent’s birthday, the applicant arranges for the children to provide gifts or messages to the respondent.
The applicant and the independent children’s lawyer accept that X and Y will probably benefit from a relationship with the respondent. That must be so, given the orders sought by them. Certainly, Mr BB was of the view that the children would benefit from a relationship with the respondent. He sets out in his report the long-term benefits for the children of having good relationships with each of their parents, even though they are separated. I accept his evidence about these matters.
There is no evidence before me that would allow me to find that the respondent has the capacity to meet the psychological or emotional needs of these children should they move to live primarily with him. He offers no evidence as to how he would address the children’s needs that will inevitably arise because their relationships with the applicant will be restricted and compromised. Whilst I accept that it is probably the case that he will be able to care for them effectively in a physical sense – he will be able to feed, clothe and house them, beyond that it is difficult to conclude that he has the capacity to meet their more nuanced needs. He certainly leads no evidence of his plans for the children and their care in his household.
The applicant has heritage from Country RR and Country SS. She was raised by adoptive parents who were from Country RR and indigenous Australian. The respondent has indigenous Australian heritage. I am satisfied on the evidence that the applicant has taken steps to ensure that the children are well aware of their heritage and have permission to explore it. X’s observations to Mr BB about these matters speak to that. I am also satisfied that the respondent will promote the children’s cultural heritage and in particular their indigenous Australian heritage when they are with him.
CONCLUSIONS
The applicant’s proposal, if implemented, would bring a range of benefits to these children. First, it promotes the safety of the children because it ensures that time between them and the respondent occurs in a controlled way. That is important because of the uncertainties that surround the respondent’s mental health. Second, it will allow the children to re-establish and develop their relationship with the respondent in a way with which they will be comfortable and is consistent with, at least X’s views. Third, the applicant’s proposal would see a continuation of the children’s relationship with their primary caregiver and a continuation of what, in my view, is the high-quality care she provides for these children. Fourth, the reinstatement and development of their relationships with the respondent in a safe way, will permit them to take advantage of all that the respondent has to offer them. Over time, they will reap the benefits of having a relationship with both of their parents is explained by Mr BB.
The applicant’s proposal is not without some disadvantages and in that respect Mr BB points out that the children are likely to initially experience anxiety about the arrangements but nonetheless are likely to cope. Mr BB thought that if the supervision continued smoothly and regularly, the children’s confidence should gradually increase and their initial anxiety gradually decrease. Further, Mr BB opined that unsupervised time, without a period of supervised time preceding it, would cause the children to become extremely anxious and unsettled and there is a substantial risk that long-term improvements in their relationship with the father and extended paternal family would be damaged. I accept Mr BB’s opinions about these matters.
The respondent’s proposal, if implemented, would bring about wholesale change for these children. They would be removed from the care of their primary caregiver, somebody who has looked after them all of their lives. They would go into the care of a person with whom, at worst, they have no relationship (at least in Y’s case) and at best they have an ambivalent relationship (in X’s case). It is not difficult to envisage that that ambivalent relationship might soon sour as a result of X’s inability to draw upon the resources of the applicant as he is accustomed to doing. According to Mr BB’s evidence, implementation of the respondent’s proposal would likely “cause them significant emotional strain and they would require substantial professional support to assist them to manage such a change”. The respondent gives no evidence about his plans to assist children to manage such a change.
The respondent argued that if his proposal was implemented, it would remove the children from the risk of harm represented by the way in which the applicant has involved them in the parental conflict. It is right to observe that Mr BB expresses a concern that the applicant has not adequately protected children from the adult conflict and this has had a negative impact on, at the very least, X’s emotional health and functioning. This is a significant matter. I take it into account and accept the validity of the respondent’s submission on this point.
The applicant’s proposal for the arrangement and conditions of time between the children and the respondent, supported by the independent children’s lawyer, carries more benefits for the children than does the respondent’s proposal. The respondent’s proposal carries with it many detriments for these children and in particular, the difficulties for them that would be associated with removal from their primary caregiver and the restriction of their primary relationships with her. I do not think that the risks that exist in the applicant’s household as I have discussed above are so great as to mean that the children should live primarily with the respondent.
During the course of submissions, the respondent was insistent that Mr BB had recommended that there be a change in residence for the children. But a fair reading of Mr BB’s report demonstrates that he makes no such recommendations. Indeed, his recommendations are far more consistent with the orders sought by the applicant. The paragraphs identified by the respondent in the course of his submissions said to support a change of residence are the paragraphs in which Mr BB has identified risks in the mother’s household. But beyond recognising those risks they advance nowhere towards a recommendation that the children should live with the respondent.
The applicant has had sole parental responsibility for these children since interim orders were made in 2020. The co-parenting relationship between the applicant and respondent is, on the evidence, fraught. I accept the independent children’s lawyer’s submission that it is unlikely that the parties have the ability to communicate in the manner necessary for shared decision making to occur.
Moreover, the respondent makes no complaints about the long-term decision-making in which the applicant has engaged for the children. In the circumstances, I am of the view that the children’s best interests demand a continuation of the present arrangements namely that the mother has sole parental responsibility for major long-term decisions for them.
ORDERS
For the foregoing reasons, I have concluded that the orders proposed by the applicant are in the best interests of these children. Whilst they differ in the length of time over which the supervised time is to happen compared to the recommendations of Mr BB, his recommendations are open-ended and are dependent upon subsequent review. The applicant’s proposals have the benefit of certainty about them.
No submissions were addressed to any particular aspect of the orders proposed by the applicant and I consider that each of them are appropriate. There will be orders in those terms.
Finally, and to complete the record in the proceeding, the court file shows that there are two outstanding applications in a proceeding both filed by the respondent. The first is an Amended Application in a Proceeding filed on 17 May 2023. The second is an Application in a Proceeding filed on 18 May 2023. Both sought interlocutory parenting orders which are superseded by the making of these final orders. Both applications will be dismissed.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 12 September 2024
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