Shamon & Shamon (No 9)
[2023] FedCFamC1F 586
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shamon & Shamon (No 9) [2023] FedCFamC1F 586
File number(s): SYC 2375 of 2021 Judgment of: CHRISTIE J Date of judgment: 13 July 2023 Catchwords: FAMILY LAW – CHILDREN – EX TEMPORE – INTERIM PARENTING ORDERS - Family therapy orders – Application for unsupervised time – Unacceptable risk - Where the older children have expressed that they do not want to see their father – Older children not being forced to undertake family therapy – The maturity and age of the child determining the weight given to their position - Where there are allegations of family violence by the father against the mother and children – Where the expert’s evidence cannot be tested at an interim hearing – Where the trial judge does not follow the Independent Children’s Lawyer’s Minutes of Order – Where the ADVO has been discharged – Where supervision may be protecting a positive relationship between the parent and child – Where the father has engaged a psychologist – Where the psychologist has written an affidavit on behalf of the parent – Where the treating psychologist has not had access to the evidence available to the court – Where evidence about father’s conduct in repeatedly attending at mother’s home uninvited is relevant – Where the relationship between parent and child is positive but unsupervised time is not indicated – Assessment of unacceptable risk at interim hearing – Where interim unsupervised time is unsuitable due to potential unknown outcomes at final hearing Legislation: Family Law Act 1975 (Cth) ss 60CC, 60CG Cases cited: Eaby & Speelman (2015) FLC 93-654
Goode and Goode (2006) FLC 93-286
Marvel & Marvel (2010) 43 Fam LR 34
Division: Division 1 First Instance Number of paragraphs: 100 Date of hearing: 12 July 2023 Place: Sydney Counsel for the Applicant: Mr Schonell Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Mr Harper Solicitor for the Respondent: Lawbridge Legal And Mediation Services Counsel for the Independent Children's Lawyer: Ms Shea Solicitor for the Independent Children's Lawyer: Steiner Legal Pty Ltd ORDERS
SYC 2375 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SHAMON
Applicant
AND: MS SHAMON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
13 JULY 2023
THE COURT ORDERS THAT:
1.The parties forthwith do all acts and things necessary to engage and thereafter attend upon Ms ZZ ("the family therapist").
2.Within 14 days from the date of these Orders, the parties shall do all acts and things to jointly instruct the family therapist, with the father to provide a draft joint instruction letter to the mother within 7 days, and the mother to provide any comments within a further 7 days.
3.For the purposes of instructing the family therapist, the parties agree that:
(a)The purposes of the Family Therapy is to:
(i)Support X born 2007 and Y born 2010 to re-establish their relationships with the father;
(ii)Assist the mother, father, X and Y with the skills necessary to achieve clause 3.1.1; and
(iii)Identify and recommend any other assistance that X and Y or the mother and father may need to achieve clause 3.1.1.
(b)The family therapist is at liberty to speak with:
(i)Any current treating professional providing assistance to the children or parents.
(ii)Any current educational professional engaged with the children.
(iii)The independent children's lawyer ("ICL").
(c)For the purpose of providing the therapy the family therapist may:
(i)Meet with any of the parents or children (including if the family therapist deems it useful Z born 2018) individually;
(ii)Meet with any of the children together; or
(iii)Meet with either of the parents and any of the children together.
4.For the purposes of implementing the family therapy, the parties agree that:
(a)The ICL shall provide the family therapist with a copy of the report by Dr RR released 23 June 2023 noting that the report has not been tested by cross examination and contains asserted facts and opinions which the parents may dispute and which in any event may not ultimately be accepted by the Court.
(b)The parents shall do all acts and things necessary to attend upon all appointments nominated by the family therapist.
(c)The mother shall do all acts and things necessary to ensure that X and Y attend the initial appointment with the family therapist and thereafter the mother is to ensure that Y attends all appoints and the mother encourages X to similarly attend.
(d)The father will be responsible for the cost of the family therapist in the first instance, with the mother to provide the father with funds referrable to half the therapy fees incurred at the time of receipt of funds by way of final order.
(e)The Family Therapy be non-reportable save to the extent that the family therapist be at liberty to provide the following information to the ICL upon request from the ICL:
(i)Whether the parents, X and Y have attended all scheduled appointments.
(ii)The dates of the scheduled appointments both attended and missed.
(iii)Whether further family therapy is likely to assist in promoting the aims of the family therapy set out in clause 3.1.1.
5.The father be granted leave to provide Dr AB (his current treating psychologist) with a copy of the report by Dr RR released 23 June 2023 noting that the report has not been tested by cross examination and contains asserted facts and opinions which the parents may dispute and which in any event may not ultimately be accepted by the Court.
6.The final parenting and property proceedings are listed for trial for 7 days commencing 4 April 2024.
7.The matter is listed for case management at 9.30 am on 1 February 2024.
8.The application in a proceeding is otherwise 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an Application in a Proceeding, seeking parenting orders in respect of the three children, Z (born 2018), X born 2007, and Y, born 2010. The applicant is the children’s father.
The respondent is the children’s mother.
The children have an Independent Children’s Lawyer (“ICL”).
The parties are awaiting a final hearing of their respective parenting applications and various interim orders have been made to provide for the children’s arrangements until the final hearing can be heard and determined.
BACKGROUND
The parents separated on 30 June 2020. Parenting proceedings were commenced by the father on 21 June 2021.
The first orders governing the children’s arrangements were made on 9 September 2021. Those orders provided that the three children live with the mother. Order 2 provided for the children to spend time with the father during school term as follows:
2.Commencing from the first Friday, following the date of these orders, unless otherwise agreed between the parties in writing, the children shall spend time with the father as follows:
2.1Each Tuesday from the commencement of school (or 8:30 am should the children not attend school that day) to the commencement of school on Wednesday (or 8:30am should the children not attend school that day), and each week thereafter;
2.2Each alternate Friday from the conclusion of school (or 3:30pm, should the children not attend school that day) to the commencement of school on Monday (or 8:30 am should the children not attend school that day), and each alternate weekend thereafter;
2.3Each other alternate Wednesday from the conclusion of school (or 3:30pmshould the children not attend school that day) to 7:30 pm, and each other alternate week thereafter.
Order 3 provided for time in school holidays and read as follows:
3.Notwithstanding anything else contained in these orders, the children shall spend time with each parent for 50% of the children’s school holiday periods, as agreed between the parties in writing, but failing agreement, as follows:
3.1With the Mother for the first half of each period in odd-numbered years and in the second half of each even numbered year; and
3.2With the Father for the first half of each period in even numbered years, and in the second half of each odd-numbered year.
(As per the original)
Order 4 provided definitions for implementation of Order 3. Order 6 provided for time on special occasions. Order 7 provided for changeover. Orders 9 and 10 dealt with Skype communication. Order 23 allowed for the attendance of both parents at school and extra‑curricular activities.
On 19 May 2022, the matter came before me on the father’s application for a recovery order, and the mother’s application for suspension of the orders of 9 September 2021. Following a defended hearing I made orders dismissing the father’s application for a recovery order and suspending the operation of Orders 2, 3, 4, 6, 7, 9, 10 and 23 of the orders made 9 September 2021.
In place of the orders for time, I made the following orders:
3.Within seven days of the date of these orders, [Ms Shamon] (“the mother’) and the father, (“parents”) are to do all acts and things, and sign all documents necessary to register for supervised time with an agency (“the supervise contact agency”) agreed between them in writing, and, failing agreement, as nominated by the Independent Children’s Lawyer, (“the ICL”).
4.Subject to order 5 below, [X] (born […] 2007), (“[X]”), [Y], (born […] 2010) (“[Y]”) and [Z], (born […] 2018) (“[Z]’) (“the children”) have supervised contact with the father for two hours each week on dates, and times number nominated by the supervised contact agency.
5.The attendance of [X] and/or [Y], for the time, in accordance with Order 4 above shall be subject to their views.
Since the making of the orders of 19 May 2022, the father has continued to have supervised time with Z. Neither X nor Y have spent time with the father.
On 16 December 2021, an order was made appointing, Dr RR as the single expert child, and adolescent forensic psychiatrist in this matter.
On 6 October 2022, the father filed an Application in a Proceeding seeking to vary the existing interim parenting orders.
The father’s interim parenting application has not proceeded in circumstances where the single expert report was anticipated.
The parties and the children met with the single expert in October 2022.
On 3 January 2023, the single expert produced an expert report which was forwarded to the Court for release to the parties. The report indicated that it was divided into two sections, comprising the principal report and an addendum. Addendum A was accompanied by a second document, labelled appendix 1 and appendix 2. The accompanying letter indicated Addendum A and appendices one and two were intended only to be seen by the court, and not by the parties to the litigation. As I was the judge managing the matter and likely to be the judge hearing the matter on a final basis, I referred the issue of release of that report to another judge, without reading, either the primary report or the addendum or appendices.
On 30 March 2023 Rees J made orders as follows:
1.That the parties communicate with the single expert, by way of joint letter drafted by the Independent Children’s Lawyer (“the ICL”) and signed by the parties and their lawyers to request that the single expert meet with the children to explain that she is not able to provide information to the judge alone, and following the meeting with the children, the single expert give consideration to re-issuing a report which contains details of the children’s views, age, maturity, and any matters which relate to the weight to be attached to those views – which report may be provided to all parties in the parenting proceedings.
On 20 June 2023 Dr RR prepared a further report after having again met with the children. That report was dated 20 June 2023 and was released to the parties on 23 June 2023. In circumstances where Dr RR’s report is now available in whole, the father’s interim application to change the existing parenting arrangements comes before the court.
The father relies on the following documents:
(a)Case outline filed 11 July 2023;
(b)Application in a Proceeding filed on 19 October 2022;
(c)Further Amended Response to Initiating Application filed on 29 December 2022;
(d)Affidavit of the father filed on 10 October 2022;
(e)Affidavit of the father filed on 10 July 2023;
(f)Affidavit of Ms AC filed on 15 November 2022; and
(g)Tender bundle, comprising of supervised contact reports filed on 11 July 2023.
The mother relies on the following documents:
(a)Case outline filed on 11 July 2023;
(b)Response to Application in a Proceeding filed on 24 November 2022;
(c)Affidavit of the mother filed on 24 November 2022; and
(d)Affidavit of the mother filed on 11 July 2023.
I have before me the report of Dr RR released 23 June 2023.
THE LAW
These are interim proceedings governed by Part VII of the Family Law Act 1975 (Cth) (“The Act”).
The guiding principle in this abridged proceeding remains the requirement that all orders must be made having regard to the children’s best interests as the paramount consideration.
In order to determine what orders will be in the best interests of these children I must have regard to the available evidence about their needs, views, relationships with their parents and any risk issues which present.
In weighing the two primary considerations (the benefit of a meaningful relationship with both of the children’s parents and the need to protect children from harm which comes from being exposed to abuse or family violence) I must give precedence to the latter.
The Act provides that in deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration. In order to determine what parenting orders will be in the best interests of the child regard is to be had to those matters in s 60CC of the Act which are applicable to the specific circumstances of these children. It is important to understand that s 60CC of the Act is divided into two parts - primary considerations and additional considerations. The primary considerations are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Importantly, pursuant to subsection (2A), in applying the considerations set out in subsection (2) the court is to give greater weight to the considerations set out in paragraph (2)(b). That is, that of the two considerations the need to protect a child from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence takes precedence.
Section 60CG of the Act requires the Court to consider the risk of family violence:
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
The procedure to be followed in this interim parenting hearing is that set out by the Full Court in the matter of Goode and Goode (2006) FLC 93-286:
81. In making interim decisions 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. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even if the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In an interlocutory parenting matter such as this, the fact that findings may not be possible does not mean that evidence which raises questions of risk be dismissed because no finding is yet available. In Marvel & Marvel (2010) 43 Fam LR 348 (cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), their Honours observed at [122]-[123]:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88]In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
[100]The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than 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.
CONSIDERATION
I turn to consider the competing proposals. The father’s application comes in three parts: he abandoned his application that I reinstate Orders 2, 3, 4, 6, 7, 9, 10 and 23 of the orders of 9 September 2021 in respect of Z and adopted as his primary position a graduated regime for reintroduction of unsupervised time with Z or in the alternative, orders in accordance with the ICL’s position with the addition of overnight time in October 2023. The final part of his application deals with family therapy.
The mother seeks that the father’s application as regards time with Z be dismissed. The mother consents to orders for family therapy for Y and X.
The ICL supports the orders for the children to commence family therapy. The independent children’s lawyer, otherwise takes a cautious position in respect of the father’s application and seeks orders that Z’s time become unsupervised and increase in increments, such that it reaches day only supervised time once a week. If overnight time is to be considered the ICL submits that ought to be in 2024.
The following relevant matters are agreed or uncontested in the context of these interim proceedings:
(a)Z and the father have a loving relationship.
(b)Z enjoys supervised time with the father.
(c)The father has a capacity to be an appropriate parent.
(d)Supervised time between the father and Z has occurred for a period in excess of 12 months.
(e)Neither X nor Y have participated in supervised time whilst the supervised time order has been in place.
(f)The ADVO which was previously in place has been discharged.
(g)The father’s appeal against the conviction for breach of ADVO was successful.
(h)The parties have agreed in principle to the older children participating in family therapy.
Helpfully, all of the parties approached the hearing of this interim application by posing the question: what has changed since the orders of May 2022 such as would result in a different outcome?
Unsupervised Time
The father’s application seeks unsupervised time with Z. He relies on the documents which are contained in his tender bundle being AD Contact Centre reports from June 2022 to June 2023. Collectively those reports suggest that Z enjoys her time with her father. The reports do not suggest that the father speaks to Z in the way the older children have reported that he spoke to them after separation. The difficulty that I have is that at an interim stage of the proceedings, I am unable to determine whether or not the father, if unsupervised, would speak to Z in the manner in which it is alleged he has spoken to the older two children. I cannot at this stage be satisfied that it is not the very act of supervision, which is shielding Z from this potential harm.
In that regard I have taken into consideration the children’s comment to the single expert discussed below (at [70]) whereby they formed the view that their father would be better behaved in the presence of a third party.
Another relevant matter is whether the father’s interactions with Ms AC are likely to have addressed the risk issues present when the orders were made in May 2022 as the father submits. The report is limited in so far as it can only address the period between the orders and September 2022 which was the last session before the report was completed.
Ms AC noted: “Based on my observations and experiences of [Mr Shamon], I have formed the view that he is genuine, positively intentioned, and willing to work on himself, and to put his children first”. This observation is positive but it must be noted that Ms AC gives her evidence as a treater and does not have access to the breadth of material which has informed the single expert report.
In addition, as the submissions on behalf of the ICL highlighted, Ms AC recorded the father as having raised with her a concern that the children’s rejection of him was as a consequence of what he described as alienating behaviour on the part of the mother. Counsel for the ICL raised a concern that this observation on the part of the father suggests that at least at that time, he had not reflected on the role that he had likely played in the estrangement with his older two children. Hopefully, as more time has passed, the father has indeed reflected on his role, but the evidence of Ms AC does not permit me to understand the extent of the father’s acknowledgement.
It appears from Ms AC’s report and the supervised contact reports that the father is actively trying to implement some of the strategies he has discussed with Ms AC in particular around discussing emotions with Z.
What Ms AC’s report cannot address (without the father raising it with her as an issue) is the concern that he may deliberately or inadvertently use the time with the children as a means to persuade them of his position in the litigation and/or of the disadvantages of living with their mother.
During the supervised contact visit which occurred in December 2022, the father and Z were playing outside when the paternal grandmother (Ms AE) came outside and spoke to the supervisor. It is axiomatic that if the supervisor was present then Z was present. The report records, the following:
[Ms AE] came outside and asked me if [X] and [Y] had informed me that they didn’t want to attend the visit today. I said yes this has been the case every week. She said that women these days are not good. She then added that a lot of men are also not good, and that everyone should put their children’s well-being first and not get divorced.
The report does not record the supervisor saying anything to either the father or paternal grandmother about her comments. This is precisely the type of discussion in the presence of children which supervision is designed to prevent.
The reports contain instances where if Z refers to her mother’s home as “home” the father and his family correct her. Again, these type of comments are unhelpful. But there is no indication of whether this has been raised with the father. The father has told Z during supervised time that she will be sleeping at his home soon and again there is no indication this has been the subject of comment by the supervisors.
These issues do not have the same significance as the much more serious issues which the older children have raised with their mother and the single expert. The ICL submitted that Z may not be at the same risk of her father’s opprobrium because her age may make it less likely that she will be embroiled in the adult issues.
The supervised contact reports contain many references to the father buying gifts for Z and ordering take away food for the visit and sending food home to Y and X with Z. There are also references to the father attending at the mother’s home, offering to send cupcakes to school and the like.
This has concerning overtones of the older children’s complaints that the father is trying to influence the children’s opinion of him by use of material items. It is more significant in this case because of the financial issues between the parties.
The relationship between Z and the father appears warm and affectionate. It is plain Z enjoys her time and the father’s interactions with her are, in the main, child focused and appropriate.
One of the factors which supports the supervision being lifted is Z’s upset when the short periods of time she has with her father come to an end. The evidence is that particularly this year she has been withdrawn and sometimes upset when she is told time is coming to an end. The father has managed this upset appropriately.
If there were evidence that this factor was having an impact on Z’s relationship with her father then I would have to give serious consideration to removing the requirement for supervision. I note, however, that the periods of time proposed by the ICL unsupervised are not extensive (certainly not initially) and so this particular issue would not be resolved by the removal of supervision unless I was minded to increase the time in the way the father suggests.
I cannot see any evidence to suggest that the supervision per se has had any impact on the relationship between father and child. Albeit I accept that it limits the amount of time they can spend together and to some extent limits the activities to which the father’s counsel referred such as, for example, putting her to bed.
Given how positive Z’s experiences have been on the whole the removal of supervision appears on the one hand logical but as previously stated the presence of the supervisor is protective in so far as an independent third party acts as a bar to the father conducting himself in an unrestrained manner. The father’s conduct, discussed elsewhere in these reasons, in repeatedly attending upon the mother’s home uninvited and unannounced does not give me confidence that he is aware of the effect of his conduct on his former partner and the children. This is the type of lack of insight that his previous treating psychologist Dr AF remarked upon to Dr RR using the terms: “pushing his agenda onto the children”.
The mother’s evidence records that the father has attended at her home, but not at her invitation. The mother has requested independently and via her solicitors that the father not attend at her home uninvited, or without prior notice. The father has chosen to ignore the request. In ignoring the request, the father has caused his older children to be exposed to conflict between he and the mother and it would appear to be consistent with the single expert’s opinion likely have caused anxiety to his two older children.
The mother’s affidavit records the father as having attended her home on 14 and 28 February 2023, 12 March 2023, 3 April 2023, 29 and 31 May 2023 and 18 and 25 June 2023. On the occasions where the father has attended at the mother’s home he has generally endeavoured to make contact with the older two children and has brought them money or food.
Until recently neither of the older children had agreed to see the father when he had attended at their home, I will return to the more recent visit later in these reasons. On each occasion the father appears to have been to have brought with him food or gifts for the children including money. The effect of the father attending upon the home has been that their mother has on each occasion, asked the older two children whether or not, they want to speak with their father and has been required to pass on their message, indicating that they do not wish to see him.
On 29 May 2023, the father attended at the home, wanting to speak with X. The mother sets out the conversation in her affidavit with Y as follows:
[Y] [X], please don’t go alone, are you stupid? Mum, why are you letting her to do it?
Me:[Y], it’s up to [X]. She’s old enough to make her own decision. If she wants to, I will be nearby.
On that occasion, X spoke to the father. The father was asking her questions about, whether or not she had received unwelcome attention from an uncle. It is not plain that the father made concrete the nature of his concern. The mother asked him for specific details when he first raised the issue and the father did not provide them. It later became plain, the father had been reading X’s text messages and had misinterpreted a message between X and a friend in which her friend had confided in X that the friend had been the target of unwelcome attention from an uncle. It is a matter of concern to the mother (and to the Court) that the father has been reading the children’s text messages as, at X and Y’s ages, they should have some privacy (an issue which the mother had previously raised in these proceedings). It is plain that during that encounter on 29 May 2023, the father endeavoured to approach Y to give her money and the father and Y had a conversation as set out in the mother’s affidavit:
[Mr Shamon]: come give me a hug.
[Y]:I don’t want to.
[Mr Shamon]: It’s been a year and you’re not speaking to me.
[Y]:You’re not being a good father.
[Mr Shamon]: You’re not being fair you defend your mum over me.
[Y]:I don’t wanna talk about it I don’t want you to be mean or rude or for you to pressure me.
[Mr Shamon]: Do you want me to be the man or the woman?
The mother says that when she spoke to the children later in the evening X was crying and Y was endeavouring to comfort her.
Because of the way in which the affidavits were filed, I have not had the benefit of the father giving evidence in reply in respect of this conversation. Although, I note that he filed an affidavit in which he could have set out the conversations he had with the children. I cannot for that reason necessarily accept as a matter of fact that the conversation occurred as I have set them out in this judgement but I do need to take into account the fact that they may have occurred in the manner that is set out and I do need to take into account that if in due course there were a finding that they occurred in this manner, that would have been anxiety provoking for the children having regard to the conclusions of the single expert.
It is not controversial that the father again attended at the mother’s home two days later on 31 May 2023.The children asked the mother, who was about to take a shower, if she could answer the door, and the mother agreed to do so and had a conversation with the father. The father said he had returned in order to provide evidence of the harassment he was concerned about. The mother asked if he would be able to show it to her rather than to X and the father declined. The mother asked the father to leave, but he remained at the home. When the father did not leave, the mother opened the door again, and asked the father again if he would show her the evidence that their child had been harassed. It was at that stage that the father showed the mother the text messages between X and her friend.
On the father’s part, I accept that he may have been genuinely mistaken, and upon reading the text message exchange between his daughter and her friend believed that his daughter may have been the subject of unwelcome attention and wanted to make sure she was protected. Even if this is the case, however, the manner in which he approached the issue was entirely inappropriate and caused anxiety and distress to X and to the mother. The way in which the father handled this issue speaks to his lack of insight about the factors which are preventing the re-establishment of his relationship with his older children.
Throughout this period the father was legally represented. It was confirmed that no correspondence was sent raising this issue with the lawyers for the mother so that the issue might have been dealt with as between the adults.
In considering the father’s application, and that of the ICL that the supervision of time be lifted, it is important to understand the nature of the risk which supervision is designed to ameliorate. I accept the submission of the ICL that there is no evidence contained in the supervision reports for the last 12 months, which would support the conclusion that the father lacks a capacity to engage with Z in a child focused manner. To the contrary, the reports show a child focussed interaction. The activities are appropriate. Their interactions are appropriate. The manner in which the child-led play takes place is appropriate. I accept the submission of the ICL that there is no evidence in the supervision reports for the last 12 months that the father has engaged in conduct which has been physically abusive to Z.
The concern which arose at the time of the making of orders for supervised time, arose in a context where material including more objective material such as the children’s notes and their comments to counsellors, made plain that the father was speaking to the children in a manner, which was derogatory as regards to their mother and the extended maternal family. In addition, it was alleged by the children that the father was spending money on the children in a manner designed to convince them that they should live primarily with him. Those accounts came from the children and are referred to by the children in their discussions with the single expert.
X reported to the single expert that :
Her father had made it harder for them, to adjust to life post-separation by, for example, only allowing them to wear clothing that he bought for them while they were at his home, or not allowing them to take their devices with them to their mother’s home.
Further, X reported that
She wanted him [the father] to put her needs above his own. Since the separation, she stated that her father did not prioritise their well-being; he was more interested in winning the court case. She believed that if he really cared about them, he would help them financially. Instead, he only spent money on them if he wanted something in return.
At a later point in the interview; she stated that her father was a good father before the separation and said, “I just want my old dad back”. She felt that her father was fixated on the court case. She stated that being at her father’s place was mentally draining and anxiety provoking, as he always had an angle and was putting pressure on her to say that she wanted to live with him.
The single expert also met with Y, who told the single expert that she would not feel safe spending time with her father as he may snap. She said he interrogated them about why they did not visit him, or made comments in passing for example, speaking about her cousins and saying they love their dad. She said that sometimes they would be watching television and he would stop the program midway to interrogate them or lecture them about why they should listen to him. She stated that if he snapped in this way, he ruined the rest of the day unless they apologised to him.
I accept the submission of the ICL that Z may be somewhat protected from the experience, which X and Y have reported, by her age. At her age Z is less likely to understand that the father’s gifts and attention may be calculated.
The parties are currently involved in financial proceedings and are at issue about how the children’s school fees will be met. As I understand the evidence the mother has continued to pay 50% of the school fees, but the father has not contributed the other 50% and in the circumstances, the children’s continued attendance at their school is in jeopardy. Given the ages of the two older children this is unfortunate.
When the two older children met with the single expert in April 2023, she asked them how they would feel if they happen to bump into their father. The report records they responded that “they would feel anxious. However, they stated that if there were other people around, their father would be nice to them, but if they were alone, he would use the opportunity to pressurise them to do what he wanted them to do.”
Having other people around is at the heart of supervision. Based on the experiences of the older two children it is possible that Z’s experience is being enhanced by the presence of a professional supervisor.
It is important that I pay proper attention to the views of older children. X and Y have been consistent in the views which they have expressed to third parties concerning time with their father. The matters that X and Y have raised cause concern about the father’s capacity to understand the impact of his actions on the children. If I accede to the father’s application to remove the requirement for supervision, it must follow that there is a risk that Z will be subject to pressure from her father albeit that I accept that given her age, the way in which this pressure is applied may be different. This is not the same as making a finding that the father has placed pressure on the older two children, but the fact that I cannot make a finding at this stage of the proceedings does not mean that I am precluded from considering the possibility that the father has indeed engaged in the conduct of which the children complain.
It is necessary to understand the final relief sought by the mother and the father in these proceedings. When the father met with the single expert in October 2022 he told the single expert that the children should be with him as he was able to protect them and provide them with a good home in which they would be much more comfortable than the small two bedroom apartment they were residing in at the time of the assessment. As an alternative, he proposed that if they were to be a 50/50 living arrangement, then each party pays for 50 per cent of the children’s expenses. The father filed a fourth amended response to initiating application on 29 December 2022. In that application he seeks equal shared parental responsibility and that the children live with their parents in a week about arrangement. At the time the father filed this application, he did not have the benefit of the single expert report, however, this remains his final application as at the date of this interim application. It is plain from that document that the father will be seeking an arrangement, which includes unsupervised time.
The mother’s current application for final orders is that dated 28 February 2022 in which she seeks:
1. That the Mother have sole parental responsibility for the Children.
2. That the Children live with the Mother, unless spending time with the Father, in accordance with these orders, or as otherwise agreed upon by the parties in writing.
3.During the Children’s, school term and commencing from the first Monday, following the date of these orders, the Children shall spend time with the Father in a fortnightly cycle as follows:
a. Week 1: From the conclusion of school on Friday (or 3:30PM should a child or the children not attend school that day) to 6:30PMon Sunday, and each alternate weekend thereafter, and
b. Week 2: from 8:30AM on Wednesday to the commencement of school on Friday (8:30AMshould a child or the Children not attend school that day).
(As per the original)
If these orders were made they would effectively provide that all children are with the father two days per week.
The mother has not amended since the orders of 19 May 2022 and accordingly I am cautious about treating her current final orders as being the definitive word on her relief. They are certainly at odds with the orders she is currently seeking on an interim basis.
She told the single expert:
In terms of living arrangements, she stated that she wanted the children to have their father in their life. She knew the girls loved their father and that they also wanted him in their lives, but not if he continued his current behaviour… She said, “It’s not my life, it’s their life.” She proposed that the children live with her, but spend two days per week with their father, for example, on a Wednesday and one weekend day.
One of the matters which I have to consider is whether or not there is a possibility at final hearing that the orders I make will be orders either for no time or for a continuation of supervised time. There is some force in the submission that no party currently seeks that order but I must evaluate the evidence and am not bound by the parties’ proposals if the evidence suggests a different outcome may be in the best interests of the children – certainly the mother’s current interim position resists any orders for unsupervised time. If orders for supervised time are a possibility, then the withdrawal of supervision at this stage of the proceedings may not be wise having regard to the interests of Z. Not only will there be no independent adult able to record what is said during the time, but Z may experience distress at having her unsupervised time increased and then at a later date decreased.
The single expert said, at on the final page of her report, “If the allegations regarding the psychological and physical abuse perpetrated by the father towards the two older girls, are found to be true, supervised visits, maybe indicated in the first instance.” There has not been the opportunity to cross examine the single expert about what is meant by that recommendation.
Those allegations include (as recorded by the single expert) X stated that:
She did not feel safe when he [the father] lost his temper. She said he had always had a really bad temper, but not as bad as she had seen on some occasions since the separation. She referred to the incident that occurred in April 2022 after her father discovered that she had spoken to her maternal aunt against his wishes. During this incident, she reported that during this incident, her father had punched holes in the wall and had pulled her by her hair.
I accept the father denies these allegations however, as I set out in my reasons for judgment in support of the 19 May 2022 orders:
The mother took [X] to [Dr DD], General Practitioner, [in] April 2022. During that appointment, [X] spoke to [Dr DD] about the events that took place [in] April 2022. [Dr DD] provided the mother with a report following the consultation which the mother annexed to her affidavit. [Dr DD’s] letter dated 28 April 2022 reads as follows:
[X’s] mother has requested a brief letter outlining her recent visit.
[X] presented to see me [in] April 2022 with her mother. Her symptoms at the time were a sore scalp, feeling highly anxious and fearful. She stated she was staying with her father who became angry and she told me she felt acutely anxious and fearful of him. I examined her and she had a tender occiput and scalp and seemed slightly withdrawn and nervous but willing to converse with me. She was encouraged to see her psychologist for further assistance.
(As per the original)
I have also had regard to X’s comments to the psychologist Mr OO as set out in the reasons for judgment of 19 May 2022 at [24]. I accept that the child X has made reports to her mother and independently to the doctor and the psychologist. I cannot ignore that evidence.
The father submitted that the mother’s delay in actioning family therapy spoke to her failure to promote the children’s relationship with him. He may in due course be correct in that submission but at this stage there is also evidence to suggest that the mother has acted in ways which are consistent with the maintenance of the children’s relationship with their father including supporting X to speak to him when he attended at her home uninvited in May 2023, seeking that the children spend time with him in her application (notwithstanding their current views) and facilitating Z’s attendance for supervised visits.
Between the mother’s current position, the cautions in the single expert report and the significant contested serious issues of fact I cannot be confident that the mother or the ICL will not seek supervision at final hearing or that the evidence itself may cause the court to raise that possibility with the parties.
These are interim proceedings in which it can be challenging to make findings of fact in respect of contested issues. However, what X reported, if ultimately accepted is family violence perpetrated by a parent against a child.
It is also necessary to touch on the mother’s allegations of family violence which she says has been perpetrated by the father towards her. I accept that since the matter was last before the court the previous ADVO has been discharged and the conviction for breach overturned. That is not the same as a finding by this court that the events which founded the complaint did not occur. I anticipate that when this matter is listed for final hearing both parties will give evidence about the incident/s set out in the mother’s affidavit material filed to date and the court will be required to make a determination. So, while I agree that the successful appeal and discharge of the ADVO are relevant they are not determinative of the factual matters nor were they central to the risks identified in May 2022 – they were but one part of a complicated and conflictual dynamic.
It is important to understand the nature of the allegations in order to identify the risk they pose to the children (and in particular to Z) and to evaluate the extent to which the various proposals mitigate any identified risk. I am not satisfied that modest unsupervised time should be in effect trialled on an interim basis having regard to the concerns raised above.
I appreciate this will be difficult for the father who has, as his counsel and the ICL submitted, taken positive and proactive steps and engaged in extensive supervised time which has been to the benefit of Z. The continuation of supervision is designed (among other things) to protect his relationship with Z until the evidence about physical and psychological risk can be tested at a final hearing.
Family therapy
In her affidavit, the mother annexes a letter dated 15 November 2022 from her solicitors to the solicitors acting for the father that letter reads in part:
2. The children participated in a meeting with the independent children’s lawyer on 8 November 2022, in relation to Family Therapy. Subsequently, the children have expressed to our client that they are willing to participate in Family Therapy. In the absence of the Expert’s report, our client will consent to the children engaging with the Family Therapist. Our client will not bear the (financial) cost of the children engaging in Family Therapy.
Please have your client nominate three family therapists along with their CVs for our client’s consideration. In the event the Expert’s recommendation (i.e. ‘No Time’) are not conducive to Family Therapy our client will not facilitate the engagement of family therapy and will seek to relist the matter.
(As per the original)
Since that time the mother has nominated Ms ZZ (the family therapist) and all parties agree that Ms ZZ will be appointed.
Unfortunately family therapy has not commenced. This is understandable since the parties have remained at issue about how it would be funded. The father proposed funding in the first instance subject to later reimbursement by correspondence in April this year. The mother’s Minute of Order adopted that concession and I intend to order accordingly.
The parties remained at issue about some of the wording of the proposed orders relating to the following:
(a)Reportability;
(b)Involvement of Z; and
(c)Attendance of X.
The mother sought that the family therapy be reportable and the father and ICL sought that it be non-reportable. There is no guidance on this issue from the single expert report. The mother was not firmly wedded to her position. The ICL cogently argued that the children’s experience with anxiety arising out of their views being made known in the single expert report process spoke strongly against the therapy being reportable. I agree. The parties are in broad agreement that the family therapist will be able to comment on attendance and utility and I will make those orders.
The mother sought that Z be involved in the family therapy. The father opposed her involvement. The purpose of the therapy is squarely to address the breakdown in the relationship between the older two children and their father. That is not to say that the family therapist may not touch on other matters impacting on family dynamics and relationships but the key reason for engagement of Ms ZZ is the relationship between the older two children and their father, recognising that Z’s relationship with the father is a good and positive one. In my view the orders which I am making will not take away the therapist’s discretion to involve Z if appropriate but otherwise accept that her involvement would not appear to be necessary on the available evidence.
The final issue related to X’s attendance at family therapy and the wording of the provisions which create a legal obligation on the mother to facilitate her attendance. The father wanted the mother’s obligation to facilitate X’s attendance to be absolute. The mother said she wanted the orders to oblige her to use her best endeavours. The ICL was supportive of the order being expressed in less than absolute terms.
X is in Year 10, she will be 16 years old later this year. The single expert describes her as appearing more mature than her stated age. It is important as a consequence, as the ICL submitted, to pay proper regard to her views. This is all the more so in circumstances where the single expert has recorded that it was plain from assessment that both X and Y “love their father very much and miss the times they spent together prior to separation.” Against this background I have concluded it would be wrong to require the mother to in effect force a 15 year old to engage in therapy against her will. It is my hope that the history that X has with the father will motivate her to embrace the process. Her involuntary attendance on the other hand may well do further harm.
Other issues
The ICL sought an order, by oral application at the interim hearing, that the father undertake a “Taking Responsibility” course to assist him in his interactions with the children and his former spouse. There is merit in the submission. I take the view that courses such as this are best undertaken on a voluntary basis by parents who accept that the content is relevant to them and their family. I will not make an order but leave it to the father to determine whether he undertakes the course.
The ICL also raised the father’s continued attendance with his psychologist and Ms AC as a condition of the ICL’s proposal that time become unsupervised. For the reasons discussed above such a condition is unnecessary. However, the father should continue to attend on those treaters if he believes it is of value to him or the children or both.
As foreshadowed I intend to allocate final hearing dates for both the parenting and property aspects of this matter. The matter will be listed for final hearing for 7 days commencing 4 April 2024. I accept that the parties submitted it may be completed in five days but given the number of parties and issues I have treated that as aspirational.
I will list the matter for case management on 1 February 2024. At this stage it should be that the issue which is to be heard by another judge will have been determined and I will be in a position to make directions for filing of material for trial. All parties should attend on that day with draft directions.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 13 July 2023
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