Shelbourne & Shelbourne
[2023] FedCFamC1F 373
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shelbourne & Shelbourne [2023] FedCFamC1F 373
File number(s): SYC 4897 of 2017 Judgment of: CURRAN J Date of judgment: 25 May 2023 Catchwords: FAMILY LAW – CHILDREN – parental responsibility – presumption of equal shared parental responsibility – where a non-biological parent seeks orders for parental responsibility – where a non-biological parent seeks live with orders – where the non-biological parent stepfather is the father of the children’s half siblings - best interests of the child– family violence – where the father alleges the mother hit the children – where the mother denies the allegations - whether the mother poses an unacceptable risk of physical or psychological harm to the children– whether there should be a requirement for the mother to undertake ongoing mental health treatment - interim order – where there is a lack of parental cooperation and communication – long term supervision – whether time spent with the mother should be supervised – whether supervision will be by lay supervision or professional supervision Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 61DA(2), 61DA(4), 64B, 65C, 65D, 65D(2), 65DAA, 65DAC Cases cited: Aldridge & Keaton [2009] FamCAFC 106
Bant & Clayton [2019] FamCAFC 198
Bielen v Kozman [2022] FedCFamC1A 221
Britt & Britt [2017] FamCAFC 27
Isles & Nelissen [2022] FedCFamC1A 97
Norton v Landell [2015] FamCA 125
Rice & Asplund (1979) FLC90-725
Division: Division 1 First Instance Number of paragraphs: 259 Date of hearing: 7-9 and 13-14 March 2023 Place: Sydney Counsel for the Applicant: Mr Rosic Solicitor for the Applicant: Manning Lawyers Counsel for the First Respondent: Mr Hegedus Solicitor for the First Respondent: Vaikom Law The Second Respondent: Litigant in person (Did not appear) Solicitor Advocate for the Independent Children's Lawyer: Ms Karagiannis Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 4897 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SHELBOURNE
Applicant
AND: MS SHELBOURNE
First Respondent
MR B
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CURRAN J
DATE OF ORDER:
25 MAY 2023
THE COURT ORDERS THAT:
1.That all previous parenting orders be and are hereby discharged.
Live With
2.That the children D born 2009, C born 2009, E born 2013 and F born 2016 ('the children') shall live with the Applicant Father.
Parental Responsibility
3.The Applicant Father shall have sole parental responsibility for the children subject to the Applicant Father consulting with the Mother in writing as set out in Order 4.
4.Before the Applicant Father makes any major long term decision concerning the care, welfare and development of the children, he shall notify the mother by email of his proposal and give her at least 7 days to respond and shall consider her views in any decision he makes.
5.As far as practicable, the parents are to limit their communication with each other to issues related to the care and welfare of the children, and for such communication to occur via the OurFamilyWizard application, unless in circumstances of emergency.
Second Respondent Father's Application
6.The Response to Final orders filed by the second respondent father Mr B on 11 November 2020 is dismissed.
Mother's ongoing treatment
7.Within 28 days of the date of these order the mother is to obtain a referral from her treating medical practitioner to undertake treatment from Ms FF, or other forensic psychologist with experience in anger management as may be recommended by Dr X.
8.The mother shall undertake such treatments as recommended by her treating psychologist or other therapist as may be recommended to address the issues relevant to the management and treatment of the mother's capacity for impulsive violence and anger management.
9.The costs of the treatment shall be the responsibility of the mother.
Father's counselling
10.Within 28 days of the date of these orders, the father shall attend upon his treating medical practitioner to obtain a referral to undertake treatment with a clinical psychologist who specialises in children and parenting as recommended by Dr X.
11.The father shall undertake such treatment as recommended by his treating psychologist as may be recommended to improve his communication and co-parenting with the mother.
Expert Reports from Mother's treater
12.Within 7 days of the making of these orders, the Independent Children's Lawyer is to write to Ms FF (or any other treating forensic psychologist with experience in anger management nominated by the Mother) and provide her with the following information and documents:
(a)A copy of these Orders;
(b)Any Judgment of Justice Curran delivered subsequent to the hearing in March 2023;
(c)COPS Entry dated 25 October 2021;
(d)The reports of Dr X dated 2018 and 2021.
13.Ms FF (or any other treating practitioner nominated by the Mother) is requested to prepare a report for the ICL in three months, six months and twelve months from the date of the making of these orders that addresses the following:
(a)The documents read by the treating psychologist (including any additional documents provided by the Independent Children's Lawyer) for the purposes of treatment or preparation of these reports;
(b)A description of the treatment carried out or recommended (including the dates of each attendance);
(c)Expressions of opinion limited to the reasons for carrying out or recommending the treatment and the consequences of the treatment, including a prognosis;
(d)Issues of concern raised by Dr X in his reports in relation to the Mother's behaviour and considered by the treating practitioner;
(e)The treatment/assistance provided to the Mother as to how to deal with this behaviour;
(f)The Mother's insight and ability to recognise the triggers for this behaviour;
(g)The Mother's ability to manage this behaviour as a result of her engagement; and
(h)Any strategies provided to and implemented by the Mother to manage this behaviour in the future.
14.Upon completion of the reports provided for in Order 13, the Independent Children's Lawyer shall provide a copy of this report to the Mother (or to her solicitor if she is represented) and the Applicant Father (or his solicitor if he is represented) within 3 days of receiving it.
15.Within 3 days of the making of these Orders, the Mother shall provide all necessary authorities and consents to Ms FF (and any other treating practitioner she may engage in while these proceedings are on foot) to permit them to contact the Independent Children's Lawyer to advise of any cancelled appointment, mental health deteriorations or suspensions of the Mother's attendance.
16.The ICL has liberty to re-list the matter on short notice.
Spend Time With
17.Pending further order, from the date of these orders the children shall spend time with the Mother, and subject to an undertaking in an appropriate form being provided by the supervisors to the ICL, as follows:
(a)Each alternate Saturday and Sunday (commencing the first Saturday after the date of the Orders and thereafter alternate weekends) from 9:00am until 5:00pm with this time to be supervised by a lay supervisor as set out in Order 20 or as agreed by the parents in writing;
(b)Each Wednesday from 3:30pm until 7:30pm with this time to be supervised by a lay supervisor as set out in Order 20 or as agreed by the parents in writing.
Special Occasions
18.Pending further order, the children spend time with the mother on the following special occasions:
(a)At Christmas:
(i)In 2023 and each alternate year thereafter from 9.00am until 7.00pm on Christmas Eve (24 December) and from 3.00pm until 7.00pm on Christmas Day with the mother; and
(ii)In 2024 and each alternate year thereafter from 9.00am until 3pm on Christmas Day (25 December) and from 9.00am until 7.00pm on Boxing Day with the mother.
(b)On each of the children's birthdays, all of the children spend time with the mother from 3.00 pm to 7.00 pm if it falls on a school day and from 12 pm to 5 pm on a non-school day;
(c)In the event that the children are not already in the mother's care, on the mother's birthday from 9.00am to 7.00pm if such day falls on a non-school day or from afterschool or 3.00pm to 7.00pm if such day falls on a school day;
(d)In the event that the children are not already in the mother's care, on Mother's Day from 9.00am until 7.00pm on Mother's Day;
(e)In the event that the children are not already in the mother's care, each year, with the mother on the third Thursday in November (being Thanksgiving Day) from after school or 3pm until 7pm;
(f)The children shall be in the care of the mother on 31 October from after school or 3.00pm until 7.00pm or if a non-school day 9.00am until 7.00pm in 2023 and each alternate year thereafter;
(g)Such other times as agreed between the parties in writing.
19.The mother’s time with the children will be suspended on the following occasions:
(a)In the event that the children are not already in the father's care, on the father's birthday from 9.00am to 7.00pm if such day falls on a non-school day or from after school or 3.00pm to 7.00pm if such day falls on a school day;
(b)In the event that the children are not already in the father's care, on Father's Day from 9.00am until 7.00pm on father's day; and
(c)For the purpose of the Applicant spending block time with the children, during the first 3 weeks of January in each year, provided that their time with the mother is made up as agreed between the parties.
Supervision
20.Pending further order:
(a)the children's time with the mother pursuant to Orders 17 and 18 is to be supervised by Ms U, Ms V, or by persons agreed between the parties subject to their filing of an undertaking in terms provided by the ICL, or in the absence of such agreement by a professional recognised supervision service as proposed by the mother; and
(b)Prior to the supervision occurring, the supervisor shall be provided by the ICL with a copy of these orders, a short summary prepared by the ICL of the observations and recommendations of Dr X.
Changeover
21.That wherever possible, changeover is to occur at the children's respective schools;
22.That except as provided for above, when changeover is to occur on a day when the children do not attend school, changeover is to occur by the mother collecting the children from the father's residence at the commencement of time and the father collecting the children from Suburb RR McDonalds at the conclusion of time.
Communication
23.That the children shall communicate with the mother as agreed and failing agreement as follows:-
(a)By electronic communication (either telephone, FaceTime or Skype) each Tuesday and each Saturday at 6.30pm for not less than 10 minutes;
(b)That both parties shall:
(i)Assist the children to initiate the call to the other parent at the appointed time;
(ii)Ensure that the children are available, that the children are in a location with adequate telephone / internet service and that the device is sufficiently charged to enable a call of not less than 10 minutes duration; and
(iii)Ensure that the children are given sufficient privacy to communicate with the other parent.
Children's Schooling and Extra Curricular Activities
24.These Orders act as authority for the Mother to obtain all school reports, access to any electronic parent school portals, newsletters and any other information and/or documents routinely provided to parents.
25.That the parties shall ensure that the children attend all agreed extracurricular and sporting activities in which the children are involved during the periods when the children are in their respective care.
26.That both parties shall be entitled to attend all school, sports and extra-curricular activities and events for the children that occur during the time the children are in their care.
Medical
27.That each parent shall notify the other as soon as reasonably practical in the event of a serious illness, medical emergency or hospitalisation of any of the children, as well as details of any medical practitioner, specialist or hospital attended upon, and any medication prescribed so that both parents may be fully involved in the treatment and recovery of the children.
28.That each parent shall keep the other informed of all specialist medical and dental and / or psychological appointments for any of the children with the parenting making the appointment to notify the other parent of the details of the appointment, at least 48 hours prior to the scheduled time of the appointment.
29.Leave is provided to the parties, their legal representatives and the ICL to provide a copy of the reports of Dr X, these orders and judgment to any therapist the applicant father engages with and any therapist the applicant father engages the children with.
30.That in the event that the children are not in attendance at school on a day when changeover is to occur, the parent whose care the children are in are to:
(a)Notify the other parent via OurFamilyWizard by no later than 9 am, and
(b)Except in the case of emergency, ensure that the children are made available at changeover.
Restraints/Injunctions
31.That the parents shall not denigrate the other parent to, or in the presence of the hearing of the children, and shall use their best endeavours to ensure that any third party does not so denigrate the other parent;
32.That the parents, either personally or by their agents, be and are hereby restrained by injunction from using physical discipline upon the children.
33.That the parties be hereby restrained from assaulting, molesting, harassing, threatening or abusing the other and the children;
34.That the parties be and are hereby restrained by themselves, their servants and / or agents from:
(a)Recording, videoing and/or photographing the other parent without their prior consent;
(b)Except as provided by these orders, distributing, publishing or facilitating any third party to view any video or audio recordings that they have made to date with respect to the other parent;
(c)Discussing these proceedings or any issues or documents, issues or allegations raised in these proceedings with the children and / or showing the children and / or any of them any document and / or exhibit arising from these proceedings and are to use their best endeavours to ensure that no other person does so; and
(d)Changing the names of any of the children.
Overseas Travel
35.That pursuant to s 65Y the parties be at liberty to remove the children from the Commonwealth of Australia for holidays for such period as is agreed in writing, and in default of agreement during such periods as the children are in their care pursuant to these orders, subject to the following conditions:
(a)Each parent is to give the other parent not less than 6 weeks written notice of their intention to travel overseas, such notice to include details of location of proposed travel and dates;
(b)That not less than 28 days prior to departure, the travelling parent to provide the other parent with a copy of the children's itinerary evidencing all flights and accommodation bookings;
(c)That any overseas travel pursuant to these orders be limited to countries that at the time of travel have a level 1 classification from DFAT.
Children's Passports
36.That the father shall retain the children's passports.
37.That within 14 days of a request from either parent, each parent is to do all acts and sign all necessary consents to cause a valid Australian and/or US passport (or renewal of same) to issue with respect to the children.
Next Court Event
38.The matter be listed for mention at 9:30am on 30 May 2024 before Justice Curran limited to directions if necessary in respect of the discrete issues of the mother's time with the children and whether the mother's time is to continue to be supervised.
39.Leave is granted to the ICL to issue subpoenas as she sees necessary.
Costs
40.The parties are to each pay half of the costs of the Single Expert.
41.The parties are to each pay half of the costs of the Independent Children's Lawyer in the sum of $8,345 each within 3 months of the date of the orders unless their liability to contribute towards these costs is waived. In the event that a party wishes to apply for a waiver they shall do so within 7 days of the date of these orders.
NOTATION:
A.It is noted that there is an ongoing duty of disclosure as provided for in Rule 6.01 and 6.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 of all information relevant to the proceeding.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shelbourne & Shelbourne has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CURRAN J:
INTRODUCTION
These proceedings concern the best interests of four children, C born 2009 and D born 2009, twins aged 13 years old at the time of the hearing, E born 2013, aged nine years old at the time of the hearing, and F born 2016, aged seven years old at the time of the hearing ("the children").
C and D are the children of the first respondent, Ms Shelbourne (the mother) and the second respondent, Mr B (the second respondent father). The mother and the second respondent father married in 2007 and separated in 2012. The second respondent father resides in the United States.
The applicant father, Mr Shelbourne (the father), and the mother met in or about mid-2012 and commenced a relationship soon thereafter. In early 2013, the mother, C, and D and moved to Australia to live with the father.
E and F are the children of the father and the mother. The father and the mother married in early 2013 and separated on a final basis in or about April 2017.
The children currently all live with the father.
LITIGATION HISTORY
Following separation and again following the commencement of the current proceedings the children variously spent time with their mother unsupervised and supervised both by lay and professional supervisors. A factual summary of the events leading to separation and up to September 2017 is contained in the judgment of Rees J delivered on 25 September 2017.
On 20 February 2019, final orders were made by Gill J by consent between the father and the mother. These orders provided for the children to live with the father and spend time with the mother in stages, where the time spent increased in line with her attendance on her therapist, culminating in 5 nights per fortnight. These orders were silent as to parental responsibility.
The father filed an initiating application commencing further family law proceedings on 21 September 2020. An Independent Children's Lawyer ("ICL") was appointed in orders made by a Judicial Registrar on 21 October 2020.
On 26 October 2020, the second respondent father filed an Application in a Proceeding seeking a recovery order for C and D to be returned to the mother.
On 29 October 2020, a Senior Registrar (as he then was) made orders at interim hearing for the second respondent father to be joined and for the mother's time with the children on Saturdays, Sundays and Wednesday afternoons to be supervised by G Group.
On 11 November 2020, the second respondent father filed his Response to Final Orders, seeking that C and D live with him in the United States.
On 13 April 2021, a Senior Judicial Registrar made interim orders by consent that the mother spend time with the children supervised by a lay supervisor upon their execution of an undertaking and with 7 days written notice to the father. Dr X was appointed as the single expert witness by consent.
On 15 September 2021, the Senior Judicial Registrar made interim orders that the applicant father have sole parental responsibility for the children, that the children live with him and that the mother spend time with the children supervised by G Group or such other professional supervision agency nominated by the ICL.
In mid-October 2021 the father, the mother and the children attended upon Dr X to participate in the single expert report interviews.
On 24 January 2022, the single expert report of Dr X dated 6 November 2021 was released to the parties and their legal representatives.
The final trial proceeded in Sydney on 7-9 March 2023 and 13-14 March 2023, and judgment was reserved.
ISSUES
The issues in dispute between the parties and accepted in submissions as the ambit of the dispute are as follows:
(1)whether there should be equal shared parental responsibility or sole parental responsibility;
(2)whether the mother poses an unacceptable risk of harm to the children as contended by the father, and if so how it can be ameliorated;
(3)whether the father poses an unacceptable risk of harm to the children as contended by the mother, and if so how it can be ameliorated;
(4)whether the children should continue to live primarily with the father or move to an equal time arrangement as sought by the mother;
(5)if not equal time, what time the children should spend with the mother;
(6)whether the time the children spend with the mother continue to be supervised, and if so, for what period, and if so whether that supervised time should be by a professional agency or by lay supervisors, and if so, if and when that time can cease being supervised time;
(7)should the spend time with orders be interim or final;
(8)what, if any, treatment and management of the mother's mental health issue should occur; and
(9)what, if any, ongoing counselling by the father should occur.
Other matters to be determined were identified as:
(10)The application made by Mr B;
(11)The payment of supervisors costs if professional not lay;
(12)The payment of Dr X fees; and
(13)The payment of ICL costs.
ORDERS SOUGHT BY THE PARTIES
Applicant Father
At trial, the father sought that he have sole parental responsibility for the children, that the children live with him, and that the children spend professionally supervised time with the mother for a period of 2 years, then supervised by a lay supervisor for a further period of 2 years. The father also sought a series of orders requiring the mother to attend upon a psychiatrist and for the mother to provide the ICL with psychiatric reports prior to commencing lay supervision and unsupervised time with the children. Ultimately, the father's orders as set out in his case outline (Exhibit 1) propose that the time spent will, subject to certain things occurring, eventually move to being unsupervised in four years' time.
First Respondent Mother
As to C and D (the twins), the mother initially sought that the she and the second respondent father have equal shared parental responsibility, that the twins live with her and spend time with the second respondent as agreed, that the twins may spend time with the father, if requested, once per month during daytime hours.
As to E and F, initially the mother sought that she and the applicant father have shared parental responsibility, that the children live with her and spend substantial and significant time with the father for seven nights per fortnight.
On the morning of the second day of trial the mother amended the orders she sought, seeking orders for equal shared parental responsibility with the father for all of the children and for the children to reside with her but spend, in effect equal time with her and the father.
At the end of the trial the mother was seeking her orders be implemented after an unspecified period of interim orders, of supervised time, to enable the mother to seek treatment as recommended by Dr X and Ms FF (discussed below).
Second Respondent Father
The second respondent, in his Response to Final Orders filed 11 November 2020, sought orders for C and D to live with him in the United States, to communicate with their siblings, and spend time with the mother when she is in the United States for no less than 4 weeks per year.
The second respondent did not engage in the proceedings after September 2021. He did not appear.
Independent Children's Lawyer
The ICL sought orders for the father to have sole parental responsibility, for the children to continue living with the father and spend more time with the mother, but supervised.
At the conclusion of the evidence the ICL sought that interim orders be made in relation to the spend time with issue in order to address the lacuna that had become apparent in the evidence, being the absence of evidence that the mother had successfully addressed by treatment the issue her treating psychologist referred to as "Ms Shelbourne's anger outbursts" arising from childhood trauma of her father's death when she was young.[1]
[1]Affidavit of Ms FF filed 3 November 2022, page 11.
The Second Respondent's Case
The second respondent, Mr B, is the biological father of the twins, C and D. He has taken no part in the proceedings since 2021 and did not appear at the trial. He had filed a Response seeking orders that the boys live with him in the United States which is a significant change in their lives involving removing them from both the mother and father, their school, their home, and their younger brothers.
The uncontested evidence is that Mr B has had minimal involvement in the lives of the boys since they moved to Australia in 2012. He has spent time with them on one occasion over a seven day period when the mother took the boys to the United States on holiday in early 2020. He has spoken to the twins as facilitated by the mother and the maternal grandmother via FaceTime.
The opinion of both the Child Inclusive Conference memorandum author Ms OO and the Single Expert Dr X, is that the relationship was relatively new and developing positively and the boys are deriving benefit from the relationship.
The mother's evidence is that she has and will continue to facilitate time between Mr B and the twins. I accept that the mother will continue to do so.
I find based on the evidence referred to in this judgment that the twins have a close relationship to their younger brothers, and note the close relationship they have with their step-father, whom they consider as a parent, and their mother. Mr B's proposal to remove the children from their mother, step-father and siblings is an extraordinary one in circumstances where the children have spent less than one week in the last 10 years with him. It shows no insight into the impact of such a move on the twins. The move would be significant. I note the ages of the twins now and the fact that at age 13 they have the capacity to, and have, communicated with Mr B electronically. I note the wishes of the twins not to live in the US and give significant weight to those wishes. I find that the proposed move would not be in the best interests of the twins, or of E and F.
The father's evidence is that he will facilitate the boys communicating with the second respondent father if they so desire, although he has not facilitated the time to date. He acknowledges Mr B is the biological father of the twins. The father reported to Ms OO that he would like to have communication with Mr B and share information about the twins. Ms OO reported that Mr B "indicated he is currently uninterested in communicating with [Mr Shelbourne]."[2] Given Mr B's indication, I do not find any basis to criticise the father for the lack of facilitation of communication.
[2] Child Inclusive Conference Memorandum to Court of Ms OO dated 1 February 2021, paragraph 20.
No party made submissions in support of the orders sought by Mr B.
For the reasons set out above the application is refused and dismissed.
MATERIAL RELIED UPON
Applicant Father
The Applicant relied on the following documents:
(a)Third Amended Initiating Application filed 23 February 2022;
(b)Affidavit of Mr Shelbourne filed 3 November 2022;
(c)Affidavit of Mr MM Shelbourne filed 6 March 2023 ; and
(d)Affidavit of Ms SS filed 22 September 2020.
First Respondent Mother
The First Respondent relied upon the following documents:
(a)Affidavit of Ms Shelbourne filed 4 November 2022;
(b)Affidavit of Ms UU filed 31 August 2021;
(c)Affidavit of Ms U filed 20 October 2020;
(d)Affidavit of Mr H filed 18 October 2020;
(e)Affidavit of Ms V filed 2 July 2018;
(f)Affidavit of Ms P filed 3 November 2022;
(g)Affidavit of Mr S filed 27 June 2018;
(h)Affidavit of Ms R filed 7 November 2018;
(i)Affidavit of Dr W filed 29 January 2019; and
(j)Affidavit of Dr FF filed 4 November 2022.
Independent Children's Lawyer
The ICL relied on the following documents:
(a)Report of Single Expert Doctor Dr X dated 6 November 2021; and
(b)Child Inclusive Conference Memorandum dated 28 January 2021.
Expert Evidence
Evidence of the Family Consultant
A Child Inclusive Conference Memorandum, prepared by Family Consultant Ms OO dated 28 January 2021, recorded the father's report that the children reported to him that the mother hits them and the mother's report that the father smacks the children. She also noted the mother's belief he is controlling the children and "influencing the children against her."[3]
[3] Child Inclusive Conference Memorandum to Court of Ms OO dated 1 February 2021, paragraph 9.
The mother denied the allegations of ever hitting or slapping the children. Ms OO interviewed the children by electronic means. She noted that the three older children's account of the mother's behaviour was "consistent" and they spoke about "who [Ms Shelbourne] allegedly harmed and how [Ms Shelbourne] allegedly harmed them".[4] She reported the older boys wanted to spend time with their mother, but wished it to be supervised.
[4] Child Inclusive Conference Memorandum to Court of Ms OO dated 1 February 2021, paragraph 52.
Evidence of the Single Expert - Dr X
Dr X had prepared a report dated 6 November 2021. He had previously prepared a report in 2018 prior to the final consent orders made in 2019. The Independent Children's Lawyer in her case outline relied only on the 2021 report. In oral submissions at the conclusion of the trial the ICL sought to rely on both reports, with the 2018 report for background. The mother opposed that course and submitted that at that time in the proceedings (at final submissions) it would be prejudicial to her case as she would have contested aspects of the evidence had it been relied upon earlier. The evidence of events that pre-dated the 2019 orders was not relied upon by the mother or the father. The question arose as to whether the 2018 report's contents are relevant and should be admitted.
Ms FF, the mother's psychologist, identified relevant background to her involvement with the mother in her report dated 31 October 2022 but was provided with and referred only to the 2018 report of Dr X.
As identified in Britt & Britt [2017] FamCAFC 27 "for evidence to be relevant it must be capable of bearing upon the existence of a fact in issue in the proceedings. If the evidence is incapable of establishing the fact in issue then, in reality, there is no issue and the evidence is not relevant" and "Thus, evidence that is probative, even slightly probative, is admissible because it could rationally affect the determination of an issue. For it to be inadmissible it must lack any probative value."[5]
[5]Britt & Britt [2017] FamCAFC 27 at paragraphs 42 and 31.
In this case the background as recorded by Dr X has relevance, even if that relevance is limited to background. The difficulty that presents in this case is the possible prejudice to the mother as asserted by her counsel given the manner in which the trial proceeded.
The 2021 report of Dr X, although described as an updating report, is comprehensive and can be read and understood without reference to the earlier 2018 report. The issues for determination in this case relate to the events post the 2019 orders. I find that the report is admissible but accept the mother's submission that admitting the earlier report into evidence at that late stage could prejudice the mother and place her in a position where she lacked the opportunity to test that evidence. I therefore disallowed the tender of the report but note reference was made to the report by Ms FF in her evidence, relied upon by the mother.
Dr X's 2021 report opined that the boys should spend more time with their mother, but that it should be supervised due to the risk of psychological and physical harm she posed to the boys. He noted the three older boys expressed wishes for supervision and the youngest F did not express a view by reason of his young age. Dr X maintained his view about risk and the need for supervision after cross examination.
Evidence of the mother's psychologist Ms FF
The mother relied upon a report of her treating psychologist who she consulted between April and October 2022. The mother was referred to Ms FF by Dr VV on the recommendation of Dr X, to address the mother's acknowledged anger management issues. Ms FF said she was aware of an allegation that the mother had slapped one of the children but not of other reports the children had made of the mother hitting them. Ms FF's opinion was that the mother had made progress in her treatment, but that the mother required ongoing therapy to address the underlying issues that led to her anger outbursts and the time frame for that ongoing therapy was uncertain, but not short.
Evidence of the mother's 2019 psychologist Dr WW
The ICL tendered into evidence, without objection, two short letters from Dr WW, clinical psychologist dated 28 March 2019 and 23 September 2019 (Exhibit 15). The evidence of Dr WW was that the mother had attended all scheduled appointments, had engaged well in therapy, and "developed more active problem solving skills and self-care, which has reduced her reactivity and therefore made it unlikely that she would act in an aggressive or violent manner." It was Dr WW's opinion at that time that the mother had learned and was implementing appropriate anger management strategies and that she did not believe she needed further therapy at that time.
APPLICABLE LEGAL PRINCIPLES
Orders in respect of children are informed under Part VII of the Family Law Act 1975 (Cth) ("the Act"). The meaning of a parenting order is defined at s 64B.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Part VII. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
The Act applies a rebuttable presumption that a child's best interests are served by an order allocating equal shared parental responsibility for the child to the parents pursuant to s 61DA. Parental responsibility is defined at s 61B. The presumption does not apply in certain circumstances if there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence according to s 61DA(2). Pursuant to s 61DA(4), the presumption may be rebutted if the Court is satisfied that it would not be in the child's best interests for the parents to have equal shared parental responsibility.
In the event an order is made allocating equal shared parental responsibility, the Court must consider whether it is in the best interests of, and practicable for, the children to live in an equal time arrangement, or alternatively consider substantial and significant time with the other parent pursuant to s 65DAA.
If the presumption does not apply or is rebutted, the manner and allocation of parental responsibility is determined by consideration of the child's best interests.
The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in family violence.
In this case, for the reasons that follow, I find that the presumption is rebutted and determine that it is in the children's best interests for the father to have sole parental responsibility.
PARENTAL RESPONSIBILITY
Should an order be made for equal shared parental responsibility?
It is not in contest that the family has been exposed to family violence in the past. The three older boys report their memory of family violence to Ms OO. There was an AVO taken out in 2017. The boys reported being hit by their mother to their father, Ms OO and Dr X. C reported being hit by the mother to Ms SS. Given that family violence history, the presumption of equal shared parental responsibility is inapplicable pursuant to s 61DA(2), and accordingly the allocation of parental responsibility is determined by a consideration of the child's best interests.
The mother maintained her application for an order for equal shared parental responsibility. Parties who have equal shared parental responsibility are required to make a genuine effort to consult and come to a joint decision pursuant to s 65DAC.
The mother complained that the father had not consulted her or included her in decision making citing the twins' high school enrolment as illustrative of his lack of consultation.
The father enrolled the boys in XX School. There is no evidence that he consulted the mother prior to making that decision. On 19 November 2021, the father's lawyer had caused to be sent to the mother's then lawyer a letter that said "I advise my client has made an application to enrol the children in to [XX School] in light of your client obtaining employment […]."[6] The letter went on to raise the issues of provision of a visa grant notice.
[6] Father’s affidavit filed 3 November 2022 page 98.
In a text exchange between the mother and the father on 20 November 2021, the mother said "however, you need to communicate which school and consult with me" and "I'll provide them to the school once you consult with me and disclose what school that is…We can provide them when needed and will do so."[7]
[7] Father’s affidavit filed 3 November 2022 page 105.
There was no evidence that the mother had not received the email on 19 November 2021. In any event she knew of the school choice directly from the father by 23 November 2021 by way of text message.[8] The text exchange on 20 November 2021, which does not reflect well on either parent and their capacity or willingness to communicate, does not support the mother's complaint that she did not know which school.
[8] Father’s affidavit filed 3 November 2022 page 107.
There is however no evidence of the father consulting with the mother, as he was required to do pursuant to order 2 of the orders made on 15 September 2021 (amended on 20 September 2021). In circumstances where the parties, on their own evidence, do not communicate other than by text or through lawyers, if there was evidence of consultation occurring I expect it would have been included. I accept the mother's evidence that she was not consulted by the father.
Additionally the mother complains that the enrolment of C at YY School in early 2019 was scheduled on a night she was to spend time with the boys, and as it finished late, it required the mother to take the other boys out late at 7.45pm, to collect C. There is no evidence of communication between the parents or any consultation prior to that enrolment.
The father complains that the mother is incapable of communicating with him and cited an example in November 2021 where he asked for records, visas and birth certificates and rather than receiving what was requested was met with queries as to why it was required.[9]
[9] Father’s affidavit filed 3 November 2022 page 104-108.
Additionally the father was also critical of the mother for not providing a Medicare card for the boys when he requested it. I accept the evidence that he could simply have applied for and obtained a Medicare card. Equally the mother could have sought one and provided it. This is another example of the lack of capacity to communicate and co-parent.
The mother said in evidence that she proposed that changeover occur at school as there would not be opportunities for conflict.[10] The mother also gave evidence that she would not talk with the father on the telephone due to the conflict between them.
[10] Transcript 9 March 2023, p.269 lines 11-14.
The communication between the parents is one of high conflict and rigidity. Ms OO records a "fractured relationship complicated by ongoing allegations of family violence and allegations about each other harming the children" and observes there is a limited co-parenting relationship between them. Dr X also records observations of poor communication and non-existent co‑parenting.
Neither parent has engaged in ongoing counselling or professional assistance that was recommended to improve their co-parenting relationship. The father's evidence was that he did not understand that to be Dr X's recommendation. As a witness, I find the father well understood the issues and it is unlikely that he did not understand that recommendation. It seems more likely that, like his failure to take steps to obtain a Medicare card, he simply did not prioritise it.
Equally, the mother has done little to address the co-parenting conflict post the 2019 orders. As reported by Ms FF the mother engaged in therapy and courses undertaken in 2017 and 2019, including attendance upon Dr WW, but this was focussed on anger management. There is no evidence of an improvement in the co-parenting relationship since the 2019 orders were made and I make that finding.
There is no evidence that either parent has been able to change their behaviour toward the other.
Dr X reported that it is his opinion that the father has "the upper hand" and that he presented "as more assertive, to the point that at various stages he presented as rather righteous, indignant and dismissive of the mother."[11] Equally, whilst the mother expressed frustration about the progressive loss of time with her children over the preceding 12 months, "she felt the responsibility for it lay with [Mr Shelbourne] and not anyone else."[12]
[11] Expert Report of Dr X dated 6 November 2021, page 15.
[12] Expert Report of Dr X dated 6 November 2021, page 27.
The examples above illustrate the parties cannot and do not communicate with each other, have made no effort to address this, and are incapable of consultation and making a genuine effort to come to a joint decision. The evidence supports a finding that both parents have acted in ways that are rigid and usually display an inability and unwillingness to communicate effectively, and I make that finding.
In these circumstances there is no option other than to allocate parental responsibilities for the children exclusively to one party, and that should be the parent with whom the children primarily reside, the father. This will be subject to the father being required to advise the mother of decisions and consider her views before a decision is made.
The father is required to advise the mother of any major decisions at least 7 days prior. There is a positive obligation on him to do so. I will order the father to attend psychological counselling course as recommended by Dr X focused on improving his communication with the mother. The historical lack of consultation and communication is worrying, but I expect that with the counselling the father advised the ICL in cross examination he was willing to undertake, he will develop and implement strategies to improve his communication with the mother about matters relevant to the children. This can only serve to improve the co-parenting relationship and be a positive example for the children.
The mother proposed through her counsel that the parties communicate through a parenting app namely OurFamilyWizard. This was not opposed by the father. I will order that communication in relation to the children occurs through this means.
Despite their poor communication with each other there was no evidence that either parent failed to encourage the boys' communication with the other parent at reasonable times. The father gave evidence during cross examination that he bought the twins their own mobile phone, using which they are free to contact the mother, the second respondent father and the maternal grandmother as they wish.[13] This it seems is one aspect that the parties are not in conflict about and accordingly the communication orders sought by the mother are appropriate.
[13] Transcript 7 March 2023, p. 39 line 34 and p. 40 lines 1-2.
Making a parenting order for a non-parent
There was a reference by counsel for the mother to an incapacity to order sole parental responsibility to a non-biological parent but counsel for the mother did not "seek to engage in that".[14] However for the sake of completeness I address this issue below.
[14] Transcript 14 March 2023, p.408 line 45 to p.409 line 1.
There is a two-step approach in making parenting orders for a non-parent. It must be determined whether the non-parent is a person concerned with the care, welfare and development of the child according to s 65C, then if so, the court must consider what orders are in the best interests of the child.[15] There is no hierarchy of applicants. Once a person is declared to be concerned with the care, welfare and development of the child, it is open to the court to make parenting orders that apply to them under s 65D, including orders for parental responsibility. The relevant consideration is then the best interests of the child.
[15] Aldridge & Keaton [2009] FamCAFC 106 at [83].
The father is not a biological parent of C and D, however I find that the father is a person who is concerned with the care welfare and development of C and D pursuant to s 65C. I make the orders sought by the ICL in respect of sole parental responsibility to the father for C, D, E and F.
BEST INTEREST OF THE CHILDREN – PRIMARY CONSIDERATIONS
I am required to balance the benefit to the children of having a meaningful relationship with both of their parents and the need to protect them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. In balancing these considerations I must give greater weight to the need to protect C, D, E and F from harm pursuant to s 60CC(2A).
Meaningful relationship
The children are closely bonded to the father. The observations by both Ms OO and Dr X were positive and reported only positive remarks by the children about their father. The observations of the interactions between the father and the boys were also supportive of a finding that they have a meaningful relationship with him. Their relationship is valuable and significant to them. C and D are not his biological children but they consider him to be a parent. I find that all four of the children have meaningful relationship with the father.
The children report many positive things about their mother and enjoy time with her. They have enjoyed and continue to enjoy a meaningful relationship with her. Photographs tendered in evidence verify the children enjoying many happy and active times with the mother undertaking many activities together and enjoying their time with her, including during a holiday to the US.
There is no dispute by the father that the children derive benefit from the meaningful relationship they have with their mother.
The complex aspect of this case arises in circumstances where, notwithstanding the meaningful relationship they have with their mother, the three older children reported to multiple sources that the mother's behaviour has been the cause of concern for them. It is also the case that each of the boys have a more ambivalent relationship with their mother.
Risk of harm - alleged by the mother
The mother reported that the children had been physically disciplined and were being emotionally harmed in the father's care and that he is controlling of the children and influencing them against her.
The mother's case seemed to be multifaceted and it alleged:
(a)a risk of psychological harm that the father is influencing the children or pressuring the children to express views;
(b)a risk of psychological harm arising from the father fabricating or exaggerating (or both) complaints to remove the mother from the children's lives; and
(c)a risk of physical harm from the father's physical punishment of the children, although the risk seemed to relate to the report of the boys made during supervision of the use by the father of a wooden spoon to discipline the children.
The mother reports, inter alia, that:
(a)The children are being influenced by the father's extreme religious views and expressing discriminatory opinions such as "Boys can't have husbands",[16] and "we are not going to [Mr AF's] anymore because [Mr Shelbourne] says they are Muslims";[17]
(b)In mid-2020, C expressed suicidal ideation in saying "I want to be dead, don't want to be sent to my room at [Mr Shelbourne's] any longer";[18]
(c)E and F's school reported that their attendance during semester one of 2021 was of significant concern;[19] and
(d)The father has attempted to frustrate the mother spending time with the children in an attempt to influence them from her or alienate them.[20]
[16] Mother’s affidavit filed 4 November 2022, paragraphs 90 and 259.
[17] Mother’s affidavit filed 4 November 2022, paragraphs 93 and 262.
[18] Mother’s affidavit filed 4 November 2022, paragraphs 92 and 261.
[19] Mother’s affidavit filed 4 November 2022, paragraphs 94, 138.8 and p. 46 paragraph 250.8.
[20] Mother’s affidavit filed 4 November 2022, paragraphs 221, 277(b) and 283.
It was the mother's case that the father fabricated complaints on the part of the boys in order to, in effect, remove them from the mother's life. The proposition of fabrication was put squarely to the father multiple times in his cross examination. The proposition of exaggeration was also put to the father. He denied both.
Notwithstanding these complaints, the mother sought final orders for equal time and equal shared parental responsibility.
Does time between the children and their father pose a risk to the children?
There is no doubt that the father has had what Dr X referred to as an "eagle eye for any failings “in relation to perceived issues that have arisen with the mother.[21] An example is the response of the father to the incident where the mother took C away from the school without the lay supervisor. The mother did not see this as a significant issue as she was only gone for 10 minutes. I accept that there was an obvious breach of an order and that the mother minimised this issue. C, it was observed by Dr X, similarly did not see this as a "big deal."[22]
[21] Transcript 13 March 2023, p.350 line 3.
[22] Transcript 13 March 2023, p.362 lines 26-27.
The facts of that incident were, that on 9 May 2021 the children started spending time with the mother supervised by lay supervisors. Only two weeks later on 23 May 2021, the father alleged that the mother was alone with C at the shops near his school, in breach of the orders for supervision. The evidence that she was is uncontroversial. The supervisor Ms UU collected the children from the father with the mother. The mother was told C would be at YY School until 8pm and went to the shop with C without the supervisor present to obtain food for C. There was no explanation as to why the mother did not go to the shops with the supervisor and the boys as required. This was in circumstances where the mother had previously been spending time supervised pursuant to orders of this court and must have understood her obligations and that of the supervisor at that time. This, as I said above, was in breach of the orders.
The father's response was to unilaterally suspended the mother's time and file an application in a proceeding seeking professionally supervised time, with the mother to be solely responsible for payment of the fees.
Having an "eagle eye" to compliance with the orders, while possibly showing a rigidity in his approach to the parenting issues, does not in isolation pose a risk to the boys or display an intent to influence the boys away from their mother as alleged by the mother. I am satisfied that despite the father's somewhat rigid approach, he has a willingness to facilitate the boys spending time, provided that time is safe.
Are the children at risk of physical harm in the care of the father as alleged by the mother?
The mother obliquely raised a concern about the father's physical punishment of the boys. The mother's counsel cross examined the father about him hitting the boys with a wooden spoon. The father accepted he did "tap" F and E on the hand by way of discipline. This was not of concern to Dr X who opined it probably fell within "an acceptable limit, but not necessarily preferred."[23] The mother's evidence was the father took a strong viewpoint on physically disciplining the children and referred to the biblical quote "spare the rod, spoil the child" in support of her concern.
[23] Transcript 13 March 2023, p. 352 line 20-21.
In support of this finding, the maternal grandmother in cross examination gave evidence of her observations of the father hitting the boys,[24] smacking E over his back one day and threatening D often asking him "would you like to go for a walk and I will give you a proper smack."[25]
[24] Transcript 9 March 2023, p.312, line 15-30.
[25] Transcript 9 March 2023, p.312 line 34.
The three older boys told Ms OO that the father would send them to their rooms typically as punishment and made no reference to physical punishment.
The father agreed in cross examination that he had used a wooden spoon in the manner in which it was contended. This admission puts into context the conversation the mother reported (and recorded by the supervision notes) of the boys comments about the wooden spoon. The contention that the father's discipline amounts to a risk of physical harm to the children is not supported on the evidence.
The evidence does not support a conclusion that the boys are at risk of physical harm in the care of the father. I do not accept that the physical punishment the children have experienced from their father exposes them to unacceptable risk of harm.
An order has been in place prohibiting both parents from physical disciplining of the children and I will continue that order. I note it was sought by the ICL as well as both the mother and father.
Is the father fabricating complaints allegedly reported by the boys?
The mother contended at multiple times during the trial that the father was fabricating the reports by the boys. Even when challenged about the inherent unlikelihood of a fabrication by the father in circumstances where the boys had made similar reports to Ms OO, and again almost a year later to Dr X, the mother was steadfast in her view that the allegations were fabricated or were due to the boys being under the influence of the father. The mother said that they were "potentially being either coached as to what to say at those meetings, or that they are saying what they think [Mr Shelbourne] might want them to …say."[26]
[26] Transcript 9 March 2023, p.256 lines 41-44.
The evidence strongly supports a finding that C, D, and E all expressed concerns about the mother's anger and hitting them and that they have reported these worries to a number of adults, not just their father, beginning with C's report in August 2020, then being expressed to Ms OO in January 2021 and Dr X in October 2021.
I do not find that the father has fabricated complaints made by the boys.
Is the father is influencing or alienating the boys?
The mother alleged that the boys were being "alienated" or influenced against her by the father. C, E, and F all reported that they enjoyed their time with their mother, and indeed C stayed over with his mother one evening in accordance with his wishes. C expressed to Ms OO that he "looks forward to spending time with his mother with the supervisor" and said "he does not want to sleep at his mother's house". [27] E stated he "misses sleeping over at his mother's house" and "feels excited about seeing his mother and said he would like to spend more time with his mother if she did not hit him."[28]
[27] Child Inclusive Conference Memorandum to Court of Ms OO dated 1 February 2021, paragraph 47.
[28] Child Inclusive Conference Memorandum to Court of Ms OO dated 1 February 2021, paragraphs 29 and 38.
The fact that the boys are able to articulate that they would like more time with their mother, albeit supervised, is an indicator that was persuasive for Dr X in concluding that the father is not influencing or alienating the boys. I accept that opinion and the reasoning. Dr X stated that there is a spectrum of behaviours from actively and deliberately undermining the relationship and the other end of the spectrum, where he concluded the father fell, being behaviours of "just not supporting the relationship with the other parent… but sometimes he takes a few cheap shots as well."[29] The evidence, for example as to the communication between the parties, supports the finding that the father is not as supportive as he could be, but is not influencing the boys away from their mother.
[29] Transcript 13 March 2023, p. 358 lines 39-46.
Dr X considered the mother's view that the boys have been pressured into their opinions about her by their father. He maintained his view that the degree that the boys each expressed both the negatives and the positives about their mother, and in somewhat different terms from each other, indicated that their views were less likely to be rehearsed than they were to be genuine. I accept that opinion and find that the views expressed by the boys are their own and should be given weight given their ages, maturity and intelligence.
I find that the father could be more supportive of the relationship between the boys and their mother and accordingly order the father to attend counselling to address improving his communication and co-parenting with the mother. I note the father stated in evidence his willingness to undertake the same. I do not find on the evidence that the father has attempted to alienate or influence the boys as alleged by the mother.
Risk of harm - alleged by the father
The father alleged that the children reported incidences of verbal, emotional and physical abuse during the mother's time commencing shortly after the making of the consent orders from around 28 March 2019, including but not limited to:
(a)The mother calling the applicant father a 'paedophile' and 'psychopath' in the presence of the children;[30]
(b)The mother threatening to kill the children;[31]
(c)The mother hitting the children in the face, on the head, and on the back;[32]
(d)The children being exposed to family violence between the mother and her then partner, Mr Waters; [33]
(e)The mother telling the children and other authorities that the applicant father has no rights or say over C or D as he is not their father;[34] and
(f)The mother calling the children names such as 'shitheads', 'fucking arseholes', 'psychopaths'.[35]
[30] Father’s affidavit filed 3 November 2022, paragraph 25.
[31] Father’s affidavit filed 3 November 2022, paragraph 32.
[32] Father’s affidavit filed 3 November 2022, paragraphs 22, 35, 36, 37 and 50.
[33] Father’s affidavit filed 3 November 2022, paragraphs 39, 40, 43, 45, 49, 51, 53 and 54.
[34] Father’s affidavit filed 3 November 2022, paragraphs 25 and 29.
[35] Father’s affidavit filed 3 November 2022, paragraphs 31, 32 and 27.
The father's case is that the harm from exposure to the mother's explosive outbursts and exposure to family violence is such that supervision should be long term to ameliorate the risk. The mother denied the allegations or that her behaviour constituted a risk.
Does time between the children and their mother pose an unacceptable risk of harm to the children?
The nature of the asserted risk is a risk of psychological harm, although the father also asserted a risk of physical harm. I find for the reasons discussed below that time between the children and the mother does pose an unacceptable risk of psychological and physical harm to the children.
It is not in contest that the mother had in the past had anger issues which were described as "explosive outbursts." It was contended by the mother's counsel that this was an emotional risk not a physical risk. The mother's counsel submitted that the risk was not such to outweigh the benefit of spending limited unsupervised time with the mother:
"Well, your Honour, without downplaying the extent that there's a risk to the children from the mother's volatility, it's submitted that it's an emotional risk. It's not a physical risk. There's no evidence that the alleged outbursts have resulted in physical injury to the children. I'm sorry. I'm not downplaying the risk of an emotional risk, but just in terms that the way your Honour characterises it. And so in terms of whether your Honour is in a position to allow an order that might contemplate some very limited unsupervised time, I think, your Honour could look at the history and the nature of whatever your findings may be on those facts and determine that the risk is not such to outweigh the benefit to spending that very limited amount of unsupervised time with the mother."[36]
[36] Transcript, 14 March 2023, p. 418 lines 30-39.
In understanding the risk of psychological harm the key issue was whether the mother had addressed and changed in respect of her previously reported explosive outbursts and temper, if so what is the extent of the change and what is the possibility of the mother again subjecting the boys to the behaviour. This is the question of assessment of risk in this case.
The mother's treating psychologist and her witness in the proceedings was Ms FF. The mother saw Ms FF after being referred by Dr VV to assist her with "anger management issues" and "anger problems that had emerged in the context of her relationship."[37] Ms FF had seen 12 or 13 videos pertaining to arguments that had occurred between the parties in the company of the children that pre-dated the previous consent orders. She identified that she understood the allegations in the past were that the mother had hit and threatened the father in the presence of the children and had threatened to kill herself in the presence of the children, and had threatened to kill F. Ms FF was aware of an allegation that one of the children had made complaint that the mother had slapped them but was unaware of the multiple reports made by the children.
[37] Transcript, 9 March 2023, p. 292 lines 21-23.
Ms FF had been provided with Dr X's earlier 2018 report. Unfortunately Ms FF had not had access to the 2021 report of Dr X, or the court documents due to some apparent confusion about her email address at a time when the mother was unrepresented. There is no suggestion that this was a deliberate attempt by the mother to conceal this information. Ms FF had access to background material and the earlier report of Dr X as well as the mother's own reports that:
"she admitted or accepted that she argued in front of her children, she accepted that in the past she had hit her husband, in the past she had threatened suicide, and in the past she had threatened to kill herself and one of the children. Do you accept that you said all of those things?---Yes"[38]
[38] Transcript 9 March 2023, p.301 lines 1-6.
It was the uncontroversial and accepted opinion of Ms FF that the mother had anger problems which developed from the death of her father when she was a child, that the mother required continuing therapy and the time required for the therapy would "not be short". The opinion was that the mother had anger problems and required continuing therapy in the future to address these issues.
Ms FF reviewed a significant amount of material, videos and earlier reports. She opined that the underlying mechanism contributing to the mother's reported problems with anger and her angry outbursts "are complex and are attributable to the long term effects of her father's [death]"[39] and further complicated by the mother's experience with post-natal depression. Ms FF said that the mother does not display borderline personality disorder traits. She opined that "the depression and anxious attachment pattern appear to have combined, with the resultant relationship problems and angry outbursts."[40]
[39] Affidavit of Ms FF filed 3 November 2022, page 12.
[40] Affidavit of Ms FF filed 3 November 2022, page 12.
Ms FF identified that Ms Shelbourne has undertaken several interventions for anger problems as well as cognitive behaviour therapy. Ms FF's report said that Ms Shelbourne has made "excellent progress in treatment" and that she is "happy to continue therapeutic engagement with her."[41]
[41] Affidavit of Ms FF filed 3 November 2022, page 16.
Ms FF at paragraph 6.3 of her report said "[Ms Shelbourne] has now processed many of her previously unresolved childhood issues through therapy, and it would be anticipated that this would result in an attenuation of her previous anger problems."[42] In the witness box she was asked to elaborate on her comment. She gave oral evidence that the therapy the mother had sought had not, in fact resulted in "an attenuation of the explosive anger":
"that's why I feel that all the anger management that she did, and the CBT that she did, didn't result in an attenuation of that explosive anger. You need to get to the - the basic cause - or the root cause of the problem before the person can move on from that, and that's what therapy was aimed at. ….the process, if taken to completion - so your evidence is that the therapy needs to continue before it can be taken to that completion - or therapy?---That's true."[43]
[42] Affidavit of Ms FF filed 3 November 2022, page 16.
[43] Transcript 9 March 2023, p. 302 lines 20-30.
As indicated above, Ms FF confirmed that the mother required more therapy to address the angry outbursts and anger issues. This opinion, about the need for further therapy to address the anger issues, is at one with that of the single expert Dr X that "there still appears to remain a concerning level of impulsivity… (she) needs further counselling with a forensic psychologist with experience in anger management."[44]
[44] Expert Report of Dr X dated 6 November 2021, page 52.
The issue as identified by Dr X and Ms FF is, as the mother's counsel put it "the extent that there's a risk to the children from the mother's volatility."[45]
[45] Transcript 14 March 2023, p.418 lines 30-33.
The opinion of Ms FF was not the subject of challenge and I accept her evidence. I accept and find that the risk of harm posed to the children by the mother in having ongoing outbursts, without successful treatment, is ongoing. I accept Ms FF's evidence that the mother has improved with treatment with her, and her expectation is that she will continue to address the issues and improve with further work.
Although Ms FF concluded that the mother, with treatment and therapy, would improve, she was unable to put a timeframe on when that would occur.
The single expert psychiatrist Dr X stated that the risk of harm from the mother's untreated mental health issues is ongoing. In particular, Dr X noted that the allegation of slapping on the face was "by and large regarded as a more impulsive and direct attack on a child than something that has the - an echo of a sort of disciplinary slap or smack…”[46] It is that impulsivity and the concern expressed by the boys that supports a finding that such conduct constitutes an unacceptable risk. He was firm in his opinion and commented in oral evidence that "her capacity to arc up is - or at least back then was quite substantial" and the supervision is "necessary."[47] I accept this opinion for the reasons set out below.
[46] Transcript 13 March 2023, p.331 lines 1-3.
[47] Transcript 13 March 2023, p. 355 lines 1-3.
Dr X identifies a number of wonderful parenting traits of the mother from which the boys derive benefit. However he concludes, and I accept his opinion, that there is no evidence that she has resolved the underlying issue that had led to the outbursts and anger displayed. This opinion is also supported by the opinion of Ms FF, referred to above.
Both the single expert and the mother's treating psychologist considered that the mother's capacity for impulsive violence would continue.[48] Both concluded that the therapeutic interventions that the mother has pursued, and then ceased due to financial constraints, may assist the mother to manage the behaviours, but that there currently remained a risk of a repeat of the behaviour and that the mother needs further assistance from a forensic clinical psychologist with experience in anger management because there remained a concerning level of impulsivity.[49]
[48] Expert Report of Dr X dated 6 November 2021, page 54.
[49] Expert Report of Dr X dated 6 November 2021, page 52.
It is these expert opinions about the future risk to the boys, when considered against the background of the mother's past conduct that enlivens the predictive exercise necessary to consider and reach a conclusion about whether there exists unacceptable risk. As stated in Isles & Nelissen [2022] FedCFamC1A 97:
"The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm."[50]
[50] Isles & Nelissen [2022] FedCFamC1A 97 at paragraph 138.
Mother's conduct as reported by the children of hitting them, denied by the mother
C made a report of the mother hitting him to Ms SS in mid-2020.
C, D, and E reported to Ms OO in January 2021 detail of the mother's conduct toward them and all three reported the mother hitting them and hitting the other boys.
E reported to Ms OO that he "misses sleep overs" at his mother's house and would like to spend more time with his mother "if she did not hit him."[51]
[51] Child Inclusive Conference Memorandum to Court of Ms OO dated 1 February 2021, paragraph 38 and 39.
Similar reports were made by the three older boys to Dr X when he saw them in October 2021, over nine months after they saw and made reports to Ms OO.
Report of being hit made by C to Ms SS 18 August 2020
The mother maintained her view that Ms SS's evidence was false and was concocted to support the father.
Ms SS gave evidence in her affidavit filed 22 September 2020. She was required for cross examination and gave evidence that while employed at the school she had a conversation with C where he said he was too scared to say anything to his mother because he was scared that "Mum would slap me across the face." Her evidence was that she asked "Does that happen often?" and he said "Yes, all the time." This conversation occurred in mid-2020.[52] This conversation occurred possibly a year after Ms SS had, she said, returned from maternity leave, which is when she first met the family. It was suggested that the friendly nature of Ms SS's relationship with the father would cause me to have some reservation about her evidence. I am not so persuaded. Ms SS was a frank and impressive witness who appeared to me to be doing her best to accurately give evidence. She readily conceded some matters put by the mother's counsel such as the telephone being handed to Ms UU by her during the 2021 incident with C and that she said to the father the mother had said she was going to the shops to get lunch for C.
[52] Affidavit of Ms SS file 18 September 2020, paragraph 5.
In respect of the August 2020 conversation, Ms SS's evidence is that she was sufficiently concerned about the disclosure made by C at that time that she reported it to her employer, who appropriately reported it to the Department of Communities and Justice. Ms SS explained that she had worked in the "early childhood sector."[53] I accept her evidence about what C said to her and what she did.
[53] Transcript 8 March 2023, p. 174 line 35
It was submitted that such a conversation in a reception area is implausible. C was attending the school three times each week. He saw Ms SS, who worked in the afternoons, regularly, and the evidence suggests that he is an intelligent and articulate child. For these reasons I do not find that the circumstances of the disclosure are implausible.
Mother's conduct as reported by the children of exposing them to family violence
They children reported to Ms OO in January 2021 that they had been exposed to family violence. D reported that "he remembers a time when his mother punched his father" and "his mother used to get very angry and hit his siblings on the face when they spent overnight time with her."[54] D's reported memory of family violence is corroborated by the mother's own report of the history she gave to Ms FF. D reported that "mainly [C], [E] and [F] were hit and he was hit once." E reported that the mother used to hit him, C and F "for no reason" and he would like to spend more time with his mother "if she did not hit him."[55] C reported that his mother hit them with an open hand and they were "usually hit on the head."[56] C said he likes seeing his mother and looks forward to spending time with his mother with the supervisor.[57]
[54] Child Inclusive Conference Memorandum to Court of Ms OO dated 1 February 2021, paragraph 28.
[55] Child Inclusive Conference Memorandum to Court of Ms OO dated 1 February 2021, paragraph 39.
[56] Child Inclusive Conference Memorandum to Court of Ms OO dated 1 February 2021, paragraph 46.
[57] Child Inclusive Conference Memorandum to Court of Ms OO dated 1 February 2021, paragraph 47.
Ms OO report said "the older three children's account of Ms Shelbourne's behaviour toward all the children is consistent. The older three children spoke about “who [Ms Shelbourne] allegedly harmed and how [Ms Shelbourne] allegedly harmed them." She opined that if the time was "unsupervised the children would be at risk of physical and emotional harm….It is also likely the children would be stressed if they were to have unsupervised time with their mother."[58]
[58] Child Inclusive Conference Memorandum to Court of Ms OO dated 1 February 2021, paragraph 54.
Dr X saw the children in October 2021.
D reported to Dr X that it was "good seeing his mother every two weeks and he did not want that to change." He reported good memories of having gone camping with his mother and Mr Waters. There were a number of comments made unprompted including that:
"He told me unprompted that he thought that maybe [Mr Waters] got drunk, and he remembered [Mr Waters] and his mother fighting. He also thought [Mr Waters] might have driven erratically but he did not seem to have anything specific to say about that. He then elaborated unprompted on several specific criticisms of his mother. He said that she had slapped [C] across the face on two occasions he could remember, and he thought that she might have slapped one of the other boys across their face on another occasion as well…He seemed to be reluctant to describe positive attributes to his mother but he said she can be happy. He then seemed to describe that she maybe gets angry because [Mr Waters] was around."[59]
[59] Expert Report of Dr X dated 6 November 2021, page 37.
The evidence demonstrates that the boys did report concerns of being exposed to family violence to both their father and Dr X. The ICL contended, correctly in my view, that the boys complaints, if found to be true, of the children of being slapped on the face and hit on the head, falls squarely within the definition of family violence in the Act. The court is mandated to protect the children from family violence. I agree with the submission. I accept the reports were made by the boys and find that the boys were exposed to family violence in the circumstances they reported.
The mother denies ever having hit the children and denied each of the allegations. The mother's contention was that the father had fabricated many allegations (or had exaggerated them) in an attempt to actively frustrate the orders and interrupt the mother spending overnight time with the children.
It was put to the father multiple times that he had exaggerated or fabricated the boys' allegations that their mother had hit them. The father denied the proposition on each occasion.
Dr X noted what C had reported to Ms OO about his mother getting angry at them prior to supervision being reintroduced, and that she had slapped them around the head.
Similarly Dr X reported E's concerns which, despite his younger age, was accepted by Dr X as authentic. When asked whether their mother had hit any of them E told Dr X that:
"she had hit all of them except [D], and that she used to slap them on the face. He remembered being hit once across the cheek and he said it hurt. He pointed out this was before the supervisors were there. However she has not done anything like that since the supervisors have been there. He added that he would like to see her more often but he wants a supervisor to be present."[60]
[60] Expert Report of Dr X dated 6 November 2021, page 40.
As detailed further in this judgment Dr X stated that some of D's comments in relation to his mother were unprompted, leading him to consider that that D was more susceptible than his brothers to being influenced by his father. This was explored in cross examination but Dr X maintained his view that the boys' reports, including D's reports of family violence, were authentic. Dr X explained during his cross examination why he formed that view as set out below and I found his reasoning and conclusion persuasive.
Dr X agreed that D was less nuanced and possibly more open to the influence of his father, however Dr X did not agree with the proposition that the reports were either false or exaggerated. He accepted them as authentic and under cross examination explained that was because they were consistent in the report to him as to the Ms OO nine months earlier, had not increased in intensity over time, and that they were able to speak of both positives and negatives of their mother.
Dr X reported "the three older boys talked about their mother being prone to getting angry quite easily, but in somewhat different terms which suggested that this was largely their own view and experience. It did not have a rehearsed quality."[61]
[61] Expert Report of Dr X dated 6 November 2021, page 48.
The children's expressions to Dr X and Ms OO are balanced with both positives and negatives of the mother. They equally have expressed that they wish to spend time with their mother, but with supervision as a protection from her becoming angry or hitting them. They could not articulate the reason time stopped and supervision commenced again to Dr X, which also supports a finding that the father has not discussed the court matter with them and I make that finding.
It was put by the mother's counsel that the photographic diary tendered at Exhibit 19 demonstrated that the boys reports were not true. I accept that, at the times of the photographs being taken while in their mother's care, the children appeared to be happy spending time with their mother. This is undoubtedly true, and is supported by the observations of Ms OO and Dr X and of the boys own positive remarks about their relationship with their mother. I do not, however, find that these photographs, although some taken on the same day as a number of the alleged reports by the boys, assist me to make a finding that the reports were false. There is simply no way to know what time the photos were taken in the context of the alleged reports made by the boys.
Accordingly, I find that supervision is necessary to ameliorate the risk. I order that it be lay supervision and that supervision should be ongoing until there is evidence that the mother has addressed the issue of her impulsive violence and anger management.
I note two of the proposed lay supervisors Ms V and Ms U were in court and heard the evidence of Dr X. I will order that the report of Dr X and Ms FF, and these reasons be provided to any supervisors and that an appropriate undertaking is provided by any potential supervisor.
The mother should clearly understand that she and her supervisors must comply strictly with their obligations, failing which long term professional supervision would be the only alternative, despite the cost. On balance, the mother having the capacity to pay for necessary therapeutic treatment to address her anger issues, and hence the risk issue identified, is in the best interests of the boys and may decrease the time that supervision continues to be required.
It is important that the mother commits to fully engaging with appropriate therapy to address the issues identified by Ms FF, to address her identified anger management and explosive outbursts. Accordingly, I will order that the mother should engage with Ms FF for such therapy or with a psychologist who specialises in anger management.
Spend time with
The father sought alternate Saturdays and each Wednesday and special days.
The Mother sought, in effect equal time and half holidays plus special days. The mother proffered as explanation for the time that it in effect was what was in place under the previous orders. It was not. There was never an equal time arrangement, it was a live with the father and spend time increasing to a 5/9 with the mother.
The ICL sought that the children would spend time with the mother in stages as follows:
(a)For a period of 14 weeks: each second Sunday from 10am until 6pm with professional supervision and each Wednesday from 3:30pm until 7:30pm with lay supervision.
(b)14 weeks from the date of these orders and after the receipt of a report from the mother's treating practitioner: each second Sunday from 10am until 6pm with a lay supervisor and each Wednesday from 3:30pm until 7:30pm unsupervised.
(c)28 weeks from the date of these orders: every second weekend from Saturday 5pm until Sunday 5pm and each Wednesday from 3:30pm until 7:30pm.
Should time increase and if so in what way?
The evidence supports a finding that the boys expressed a wish or an openness to increasing time in the future. Those wishes were recorded by Dr X in late 2021, some 18 months ago. There was no evidence before me that the boys have changed their view about that.
C was open to the frequency of visit increasing and that there could be more visits for birthdays and special occasions.[72]
[72] Expert Report of Dr X dated 6 November 2021, page 74.
E expressed that he missed his mother and wanted to see her more often and that he would like more time with the mother.[73]
[73] Transcript 13 March 2023, p.330 lines 1-2.
D reported that, whilst he likes seeing his mother again, he would not want frequency of visits to be increased.[74]
[74] Expert Report of Dr X dated 6 November 2021, page 47.
Again, F was the youngest and was around five years of age when Dr X saw him. Dr X did not press him given his age which was appropriate.
The prospect of increasing the mother's time was put to the father's counsel in submissions in the following exchange:
"HER HONOUR: Yes. But hearing from [Dr X] about the inadequacy of the current arrangements in - and that was paragraph 54 - page 54, I think that he said there's that tension between the need to protect the children - and these are my words, not his, but the adequacy of the time with the mother, meeting their needs and properly fostering that relationship.
MR ROSIC: I wouldn't be heard against your Honour considering that additional afternoon time. As we discussed earlier, extracurricular activities take a backseat to time with the parents. So whilst I've got to advance my client's case, the best interests of the children are paramount in these proceedings."[75]
[75] Transcript 14 March 2023, p. 399 lines 3-12.
Dr X expressed that the time they were spending was "somewhat disproportionate to the risk of the situation".[76] I agree. The evidence is that but for the volatility and outburst the boys derive benefit from the time they have with their mother. The supervision reports are a record of time that is beneficial, warm and loving between the boys and their mother.
[76] Expert Report of Dr X dated 6 November 2021, page 50.
Noting Dr X’s opinion as to the disproportionality of the time, the boys' wishes, the concession of counsel for the father, and the importance of maintaining the boys' meaningful relationship with the mother I find that the limited time the boys are spending is, as Dr X opined, somewhat disproportionate to the risk and the time should be increased.
Should an order be made for equal time?
Dr X did not support an equal time arrangement as sought by the mother and was of the view that the twins "would likely engineer a flight for all four to [Mr Shelbourne's] house."[77] That risk is a consideration that I take into account. It is important for the boys that the increase in time is gradual and is able to be implemented without issue.
[77] Expert Report of Dr X dated 6 November 2021, page 53.
Dr X opined that orders for shared care must be determined on an examination of the parent's capacity to "exercise maturity, to manage conflict between them appropriately", and in the circumstances of these parties shared care would be inappropriate. He recommended at that time the boys spend one full day every second weekend and an afternoon once a week with the mother.[78] The boys are now older and the recommendation for one full day has been in place for a significant period since late 2021. The increased time I order is proportionate to the risk, appropriate given the ages of the boys and will provide the quality of substantial time over a whole weekend for activities in a more normalised way, albeit supervised. Counsel for the father accepted he could not be heard against additional afternoon time and I can see no basis not to increase the weekend time in light of that concession. For all of these reasons such an increase is in my view appropriate and in the boys' best interests.
[78] Expert Report of Dr X dated 6 November 2021, page 54.
It is the case that the communication and co-operation is so poor that managing conflict between the parents is a consideration that is also relevant to the time with orders. The mother in oral evidence stated that her reasons for seeking collection and return from school was to avoid the opportunity for conflict and there is merit in her approach.
The ICL proposed moving to overnight time in 28 weeks which is a little over six months.
There is merit to this proposal, but for the reasons outlined below, I will consider making such an order in the event the mother's therapist has provided updates at the intervals the ICL proposed.
The ICL proposes that the mother obtain a report as to the progress of the mother's therapy in three months, and a further update in six months. She also seeks liberty to relist on short notice. I will make these orders as sought by the ICL.
The fact is, that if the mother's therapy is progressing well and the treatment managing her outbursts is effective, that will be apparent to the ICL through the reports proposed. If there is a positive change in the area that has been identified as being the cause of the unacceptable risk which is the mother's potential volatility, then the primary consideration of the boys' meaningful relationship and orders that are in their best interests may support an increase in time and removal of supervision. This is because there are significant benefits for the boys in spending time with their mother. Dr X opined that the mother in his view had "better parenting skills than their father in most areas" with the exception being her poor anger management.[79] Dr X also concluded that the children's interactions with the mother were more "cognitively enriched" than that which was observed between the children and the father, which he commented on being "predominantly at a physical and behavioural level".[80] Importantly the single expert also opined that "lifting supervision and extension to overnight could be considered when the therapist feels she has achieved therapy goals."[81] The views of the boys of wanting more time with their mother is also important. For these reasons the increase in time as proposed by the ICL is something to be considered at the conclusion of therapy.
[79] Expert Report of Dr X dated 6 November 2021, page 51.
[80] Expert Report of Dr X dated 6 November 2021, page 48.
[81] Expert Report of Dr X dated 6 November 2021, page 54.
Special days orders
It is appropriate that the boys spend special time with each of their parents and that this is in the boy's best interests. The boys mentioned special days to the single expert and spending more time with their mother as something they would like in the future. The days are significant and important and do not expose the boys to risk as the times will be subject to the supervision orders unless they are varied. I propose to make the orders for special days as sought by the mother. Appropriately, no submission was made opposing special days. The father also sought orders for the boys to spend time with their mother on special days.
Further, the father sought an order that the children spend time with him during the first 3 weeks in January, presumably for the purposes of holidays and the like. In my view, this is an appropriate order to make, provided that make-up time is provided to the mother.
BEST INTERESTS OF THE CHILDREN – ADDITIONAL CONSIDERATIONS
60CC(3)(a) - any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
C and D are now 13. They expressed their views to Dr X as set out his 2021 report. There was no evidence that their views had changed.
C reported to Dr X that he did not want visits to happen more often and in response to a question about any change he would not change anything about his current time but he added "not for now" and explained "possibly next year they could see her more often and maybe they could have an extra visit for their birthdays."[82]
[82] Expert Report of Dr X dated 6 November 2021, page 32.
Dr X noted that C reported to Ms OO about his mother getting angry at them prior to supervision being reintroduced, and that she had slapped them around the head. Despite this, he liked seeing his mother and he looked forward to spending time with her in the presence of a supervisor, basically because then she would not get angry at them and hit them. Dr X opined that C is a boy "capable of quite nuanced views" and was open to the frequency of visits increasing sometime in the next 12 months.[83]
[83] Expert Report of Dr X dated 6 November 2021, page 47.
In relation to D, Dr X reported that:
"[D] seems to have the most ambivalent relationship with his mother. He would not attend nearly a half of the supervised visits between the end of January and the end of April 2021. He complained to both the Family Consultant and myself about his mother mouthing negativity at him behind the supervisor's back as well as her slapping the other boys, and upsetting interactions between his mother and [Mr Waters]. He also added that he would like her to be nice more often. Although he quite likes seeing his mother again now, he did not want the frequency of the visits to be increased."[84]
[84] Expert Report of Dr X dated 6 November 2021, page 47.
D's views were carefully considered in light of Dr X's opinion that D was "more likely to be susceptible to influence of his father" however importantly D's views were accepted by Dr X as authentic. I accept that conclusion for the reasons set out herein.
E told Dr X he had missed his mother and that he "would like to see her more often than every two weeks."[85] When asked whether their mother had hit any of them, E told Dr X:
"that she had hit all of them except [D], and that she used to slap them on the face. He remembered being hit once across the cheek and he said it hurt. He pointed out this was before the supervisors were there. However she has not done anything like that since the supervisors have been there. He added that he would like to see her more often but he wants a supervisor to be present."
[85] Expert Report of Dr X dated 6 November 2021, page 40.
Dr X noted that E "presented as warm, confidently assertive and quite articulate. He expressed some quite nuanced views to me, including that [D] did not miss their mother as much as the rest of his other brothers did. He is a bright boy who is doing well at school."[86]
[86] Expert Report of Dr X dated 6 November 2021, page 47.
That description of him being nuanced and articulate forms the basis for also giving his expressed views weight, despite him being younger than the twins.
As for F, Dr X recorded that "he was able to talk about activities with both of his parents in quite a contented way and he could not remember any negative things about either of them. He is probably quite a bright child." Dr X records that he did not press F due to his age, but indicates that F "articulated quite clear reasons for liking both of his parents." There is no evidence that this view has changed.
60CC(3)(b) - the nature of relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child)
In the view of Dr X, all of the boys have a supportive and positive relationship with the father and relate warmly to him. He observed their interaction with him was "predominantly at a physical and behavioural level" but he noted that the interactions "was not as cognitively enriched as that which I observed with their mother.”[87] He found that the father was attuned to the boys and the boys were spontaneously affectionate with him. He also observed the positive nature of their relationship with their mother.
[87] Expert Report of Dr X dated 6 November 2021, page 48.
Dr X opined the "three older boys articulate quite clearly a more ambivalent relationship with their mother, essentially wishing she was nicer on a consistent basis but being fearful of angry outbursts."[88] There is evidence that C and E have a close relationship with their mother and they both expressed a desire to see her, and in E's case see her more often, albeit supervised.
[88] Expert Report of Dr X dated 6 November 2021, page 48.
F was then and remains younger, as discussed above, has a positive engagement with both parents.
60CC(3)(c) - the extent to which each of the child's parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child, and to spend time and communicate with the child.
Each parent seeks the opportunity to participate in decision making and spend time, and have both taken every opportunity to spend time and communicate with the boys. As referred to above, however, communication between them is fraught.
60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The mother pays child support for the children as assessed. To her credit the mother has continued to pay child support and the costs of professional supervision, which are significant, on her modest income. The evidence of Ms FF is that the mother told her she was that she ceased attending upon her psychologist because she could not afford it. I accept that is the reason why the mother ceased her attendance.
The father has continued to provide for the boys, including through his parents meeting the private school fees of the four boys of $50,000 per year.
The mother's evidence is that she ceased receiving US child support previously of $600US per month but that she had previously received it. The matter of the child support paid by Mr B is not clear on the evidence that was before this court.
60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or person (including grandparent or other relative of the child) with whom he or she has been living
The children will remain living with their father.
The orders require the children to spend increased time with the mother supervised by a lay supervision arrangement, if one is available. This will enable the mother to spend longer period of time with the boys while she addresses the anger issues identified.
There will not be a significant change for the children unless and until the mother successfully addresses the issue identified in the evidence of her treating psychologist and addresses her explosive anger outbursts. If the mother fails to address the issue of risk to the boys that arises because she has not addressed her explosive outbursts, then the supervision will remain ongoing for the period as sought by the father. If the mother successfully addresses the issues, she will have the opportunity to attend this court to specifically address the issue of risk to the boys in spending time with the mother on an unsupervised basis.
60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
There is and has been significant expense in having the children's time with their mother professionally supervised. Unfortunately it seems the mother was the author of that situation after she breached the lay supervision orders in mid-2021 at the YY School event with C. The fact of lay supervision being required for the next 12 months will reduce the expense for the mother in paying for professional supervision and should enable the mother to afford the therapy she requires. The supervisors are those nominated by the mother, or otherwise agreed, provided they file an undertaking with the court. There are no other practical difficulties in spending time.
Both parties depose to having limited financial circumstances. The mother's income is $90,000 but her expenses including child support and supervision costs are significant. The father's income was modest but he has assets with equity.
60CC(3)(f) the capacity of each of the child's parents and any other person to provide for the needs of the child including emotional and intellectual needs
Each parent has capacity to provide for the needs of the four children.
60CC(3)(j) & (k) any family violence involving a child or a member of the child's family; and if a family violence order applies, or has applied, to the child or a member of the child's family - any relevant inferences that can be drawn from the order taking into account the following: the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter.
The mother has engaged in family violence in respect of the children. This conduct has been denied by her. The boys' reports, for the reasons referred to above, are to be preferred over the mother's denials.
As referred to above, the mother was dishonest in her report to Dr X about the incident of family violence between herself and Mr Waters. Victims of family violence have complex and difficult circumstances to respond to. The fact that the mother ended the relationship at the time of the incident reported in Exhibit 20 is commendable, but I find on the balance of probabilities that the reports made by the boys of their exposure to incidents of family violence occurred as they reported.
60CC(3)(m) any other fact or circumstance the court thinks is relevant
Final Orders with long term supervision or further interim orders?
It was only in final submissions that I was urged by the ICL to consider making interim orders. It was said:
"that the therapist is unable to monitor her own client's behaviour and to recommend a safe progression to the next stage of supervision, so the court needs to do that, and the only way that that can be done is with interim orders, in my respectful submission."[89]
[89] Transcript 14 March 2023, p.378 lines 45 to p.388 line 1.
The father sought in effect long term supervision orders, for a cumulative period of four years. When pressed as to his position on the making of interim orders, the father's counsel submitted that the court should deal with the issues of parental responsibility and live with as final orders and leave only the issue of spending time with as an interim determination.[90]
[90] Transcript 14 March 2023, p.385 lines 32-35.
The mother was generally supportive of the orders proposed by the ICL.[91]
[91] Transcript 14 March 2023, p.402 line 38.
Caution must be applied in making long term supervision orders for the reasons set out in Bielen & Kozman (2022) FLC94-123 and as observed in Norton v Landell [2015] FamCA 125 each case must be decided on its own facts. Considerations including the cost, the artificiality of the arrangement and the impact on the meaningful relationship between the children and the parent subject to supervision are relevant considerations. These children have been the subject of litigation since 2017 and the 2019 final orders were in effect only a short period before the matter was recommenced. The parents can only be described as being in high conflict.
The mother has had periods of representation, but has been largely unrepresented until the final hearing and the limited grant pursuant to s 102NA. It remains inexplicable that the affidavit evidence she relied on failed to address the progress of her own anger management therapy as it is inextricably linked to the question of risk to the boys of both physical and psychological harm. It was only apparent from the time of Ms FF's cross examination that she was of the view that the mother required further professional assistance to address her explosive outbursts and that it had not yet been addressed. It however it is also clear that, importantly, the mother's volatility is, according to the experts, capable of being addressed. Indeed as referred to above the mother did engage and complete anger treatment with Dr WW in 2019 satisfactorily.
If this was a case where the evidence was that further treatment would not address the behaviour that is the cause of the risk, then a long term supervision order could be appropriate. In this case the lacuna in the evidence is what time frame would be necessary to address the behaviours to eliminate the risk, or remove the need for the supervision if it is no longer proportionate to the risk of harm. The evidence is that, with assistance, the mother's insight and control of her volatility could be improved to the point where the risk of harm is no longer an unacceptable risk.
The ICL submitted at the conclusion of the evidence that in determining the best interests of these boys an interim determination of the necessity of supervision orders would enable treatment and professional assistance of the mother to address these issues.
That best evidence that may be available after a further interim determination must be carefully weighed against the benefit to the boys of having this matter finally resolved once and for all, in as much as parenting proceedings can ever be final.
The impact on the boys of potentially long term supervision orders must also be carefully weighed in determining orders that are in the boys' best interests. I accept the submission made by the mother's counsel that orders for long term supervision is undesirable.[92] This is another basis upon which it is advanced that an interim orders for the mother's time is in the best interests of the boys
[92] Bant & Clayton [2019] FamCAFC 198 at paragraph 53.
The litigious history of the matter, the number of applications made, the fact that this is the second final hearing in this court, all support a conclusion that it is better for a final determination to be made with orders requiring the parties to engage in the therapeutic and educational supports recommended by the experts.
While final orders will end the litigation, those orders are capable of change. Parenting orders could be varied, provided the mother is able to demonstrate a sufficient change in circumstances since the orders were made to warrant their review and variation as set out in s 65D(2). This would be within the bounds discussed in Rice & Asplund (1979) FLC90-725.
However the fact that the boys have a meaningful relationship with their mother that may be negatively impacted by long term supervision, lends toward an interim determination on the question of supervision. Dr X was in favour of an interim order to enable oversight of the mother's efforts. The ICL was in favour of an interim order for those reasons.
There is obviously merit in the finalisation of a matter, but orders that are least likely to lead to the institution of further proceedings is a factor to be considered. In the absence of an interim order about supervision, a further application by the mother after a period of therapy addressing anger management and volatility could be seen to be likely. To have the matter listed before me, knowing the background, to address the limited issue of ongoing supervision and moving to overnight time, is, in my view, the order that will least likely lead to further proceedings. That is, if the mother has addressed the issue, whether by consent or otherwise, the supervision requirement may be removed. If the mother fails to address this aspect the orders for supervision are framed until further order.
On careful consideration of the matters referred to above, interim orders in so far as supervision of and the mother' time, on an ongoing basis, are in the best interests of the children.
FINAL PARENTING ORDERS
For the reasons set out in this judgment, I consider it to be in the children's best interests to make the following parenting orders on a final basis:
(1)The Applicant Father shall have sole parental responsibility for the children D born 2009, C born 2009, E born 2013 and F born 2016 ('the children'), subject to the Applicant Father consulting with the Mother in writing as follows:
(a)Before the Applicant Father makes any major long term decision concerning the care, welfare and development of the children, he shall notify the mother by email of his proposal and give her at least 7 days to respond and take her views into account.
(2)The children shall live with the father.
(3)The children shall spend time with the mother, until further order, as specified in the orders.
(4)The second respondent father's response is dismissed.
(5)All other outstanding applications are dismissed.
INTERIM PARENTING ORDERS
For the reasons set out in this judgment above, primarily the consideration of the importance of the children maintaining a meaningful relationship with the mother and the views held by the children, I consider it to be in the children's best interest to make interim orders as to the children spending time with the mother and the supervision of such time.
ANCILLARY MATTERS
Payment of Dr X’s fees
The parties sought that the other meet the costs of Dr X's fees. As directed each filed an updating financial statement in relation to the issue of costs.
Rule 7.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that unless the parties agree otherwise, or the court otherwise orders the parties (but not the ICL) are equally liable to pay a single expert witness's reasonable fees and expenses incurred in preparing a report.
Both parties have income and equity in their properties. The father has significantly more equity than the mother, but has the cost of the four children with reasonably modest child support and currently none from Mr B. Both parties earn income to support themselves and the children and both provide support to the children. The mother will no longer have the cost of professional supervision.
After consideration of the respective financial positions of the parties I can see no persuasive reason to depart from the usual rule in the context of this case.
Payment of Independent Children's Lawyer costs.
The ICL has made an application for her costs to be met by the parties. For the reasons as referred to above I order that the parties will each pay one half of the ICL's costs as sought.
I certify that the preceding two hundred and fifty-nine (259) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 25 May 2023
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