Silver & Pilot
[2022] FedCFamC1F 438
Federal Circuit and Family Court of Australia
(DIVISION 1)
Silver & Pilot [2022] FedCFamC1F 438
File number(s): MLC 10303 of 2018 Judgment of: BENNETT J Date of judgment: 8 June 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – where father exercises mechanism to bring matter back before the court urgently on alleged noncompliance by mother with parenting orders.
FAMILY LAW – PARENTING – where mother refuses to comply with orders for contact of 5 year old twins with the father – where mother takes children to undisclosed safe house – where father seeks recovery order and mother seeks an adjournment for short service.
FAMILY LAW – PARENTING – where mother’s unilateral actions have afforded her more than adequate opportunity to prepare her case – where mother has not applied for variation of parenting order – where adjournment granted on basis that father would see children extensively pending adjournment.
FAMILY LAW – PARENTING – where state welfare authority has yet to complete investigations but, thus far, has no concerns about children in case of father but identifies that, the children are likely to suffer emotional abuse in the care of the mother.
FAMILY LAW – PARENTING – where independent children’s lawyer is requested to apply for extension of assistance to have both parents psychiatrically assessed.
FAMILY LAW – PRACTICE & PROCEDURE – where reasons for decision are to be sent to Magistrates Court where mother has made an application for an Intervention Order.
FAMILY LAW – JURISDICTION – where this Order is inconsistent with an existing interim Intervention Order – where this Order is to have priority
Legislation: Family Law Act 1975 (Cth) ss 60CC, 68P Division: Division 1 First Instance Number of paragraphs: 70 Date of hearing: 8 June 2022 Place: Melbourne (via Ms Teams) Counsel for the Applicant: Mr Jackson Solicitor for the Applicant: Heinz Law Counsel for the Respondent: Ms Foong Solicitor for the Respondent: Matrix Legal Independent Children’s Lawyer Sarah Lia Family Lawyer ORDERS
MLC 10303 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SILVER
Applicant
AND: MS PILOT
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BENNETT J
DATE OF ORDER:
8 June 2022
THE COURT ORDERS THAT:
1.Paragraphs 3, 4, 5 and 6 of the Order dated 19 October 2020 be suspended and otherwise those orders remain in full force and effect.
2.This matter be adjourned for interim hearing on 21 July 2022 at 9:00 am by electronic means (“the adjourned date”).
3.The Child Court Expert be the first witness on the adjourned date AND IT IS REQUESTED that he/she be available to be cross-examined at 9:00 am.
4.At 4:00pm on 8 June 2022, the mother present the children Y and X both born 2017 (“the children”) for changeover to the father at Location Q, Suburb O.
5.By 4:00pm on 17 June 2022, the mother make file and serve a Response and any interim relief sought together with any evidence that she seeks to rely upon, including an up to date report from the mother’s psychologist, Ms R and an up to date report from the children’s therapist / counsellor, Ms T.
6.By not later than 4:00pm on 24 June 2022, the father file and serve any reply and evidence in response to the mother’s material.
7.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and children Y and X both born 2017 (“the children”) attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert and for that purpose:
(a)Part 1 of the event will occur by video, using Microsoft Teams, on 27 June 2022, with:
(i)the Applicant father to attend at 9.00am; and
(ii)the Respondent mother to attend at 10.30am; and
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
(b)Part 2 of the event will occur in person at the Melbourne Registry of the Court on 1 July 2022 with specific details of the attendance of the parties and the children on that date will be provided at Part 1 of the event;
(c)Each party do all things necessary to ensure the children attend upon the Court Child Expert pursuant to s 62G(3A), unless otherwise determined by the Court Child Expert that s 62G(3B) applies.
(d)Not later than 4.00 pm on 15 June 2022 the parties must provide their contact telephone numbers and email addresses to …@fcfcoa.gov.au
(e)Such report to be released by not later than 14 July 2022 or 4 days after the publication of the s67ZW response.
8.A place be reserved in the child-minding section of the Court for the children and it be maintained for them throughout the day;
9.For the purpose of the Child Impact Report in this matter the Court Child Expert be and is hereby authorised to have reference to all documents filed in these proceedings as well as to any documents produced on subpoenae and released for inspection by all parties and any documents provided by the independent children’s lawyer.
10.The Court Child Expert provide a written report to the Court and the report deal with the following matters:-
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(d)the impact of the issues/dispute before the Court on the children; and
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the children.
11.Upon completion, the Child Impact Report be provided to the Chambers of Justice Bennett for release to the parties, including by way of order made in Chambers.
12.By not later than 18 July 2022 each parent provide a minute of the orders sought by him or her on the adjourned date.
13.By 20 July 2022 the Independent Children’s Lawyer provide the parties and the Court with a memorandum of her preliminary view of what orders should be made on the adjourned date.
14.Commencing 8 June 2022 and until further order, the children spend time with the father each week from the conclusion of kindergarten on Wednesdays (or 1:30pm on a non-kindergarten day) until the commencement of kindergarten on Mondays (or 9:00am on a non-kindergarten day) SAVE THAT on 8 June 2022 such time will commence in line with paragraph 13 above.
15.Commencing 13 June 2022 and until further Order, the children spend time with the mother each week from the conclusion of kindergarten on Mondays (or 1:30pm on a non-kindergarten day) until the commencement of kindergarten on Wednesdays (or 9:00am on a non-kindergarten day).
16.For the purpose of Orders 14 and 15 above, changeovers occur at the children’s kindergarten AND FURTHER, if the children or either of them are ill or it is a non-kindergarten day, changeover occur at the front entrance to the children’s kindergarten.
17.For the purpose of the children’s time with the Mother pursuant to Order 11 above, the mother do all acts and things necessary to ensure that the children reside at the residence of the maternal grandparents, Ms U and Mr V, namely at W Street, Z Town VIC.
18.A Recovery Order be issued pursuant to Section 67Q of the Family Law Act 1975 addressed to the Marshal of the Court, of all officers of the Australian Federal Police and all officers of the State and Territory police services and until further order:
(a)The Recovery Order lie in the Registry and not be activated unless or until there is an allegation of non-compliance with this Order insofar as the father’s time with the children is concerned and then upon further order of the court (which order may be made ex-parte).
(b)The persons to whom this Recovery Order is addressed are authorised and directed to find, recover and deliver the children Y and X both born 2017 to the father, namely MR SILVER, or a person nominated by him in writing, and for that purpose to stop and search any vehicle, vessel or aircraft and enter and search any premises or place in which there is or was a reasonable cause to believe that the children (or either of them) may be found.
(c)Once the Recovery Order is executed, the mother, her servants or agents, be and are hereby be restrained from again removing or causing the removal of the children (or either of them) from the care of the father, and upon any breach of this injunction the person to whom this Recovery Order is addressed be and are hereby authorised and directed to arrest the mother without a warrant to bring her back before the Court and to deliver the children to the father.
19.The parties ensure that the children attend kindergarten as enrolled at all times whilst the children are in their care.
20.The independent children’s lawyer cause a sealed copy of this Order to be served on the Proper Officer of the kindergarten at which the children attend, such service to be by electronic means.
21.Neither parent attend the children’s kindergarten when the children are in the care of the other parent, save for the purpose of completing changeover as required by this Order.
22.The parents be restrained from using any form of physical discipline on the children (or either of them).
23.The parents be restrained from taking the children (or either of them) to any police station for the purpose of the children (or either of them) making any statements or complaints in relation to the other parent.
24.The father be at liberty to arrange for the children to receive vaccinations against COVID-19 and influenza whilst the children are in his care provided that both COVID‑19 and influenza vaccinations occur and are not administered to the children on the same date.
25.The independent children’s lawyer forthwith issue a subpoena to Victoria Police seeking records from the SOCIT Unit, including all notes relating to the parties and the children and copies of any statements and audio and/or visual recordings.
26.The independent children’s lawyer forthwith issue a subpoena to Ms R, psychologist, for all notes in relation to the mother.
27.The independent children’s lawyer forthwith issue a subpoena to Ms T for all notes in relation to her involvement with the parties and/or the children.
28.The independent children’s lawyer forthwith apply to Victoria Legal Aid for an extension of funding (if available) for the purpose of each party being psychiatrically assessed AND IT IS REQUESTED that Victoria Legal Aid give favorable consideration to this application for an extension of funding consistently with the view of the Department of Families, Fairness and Housing that a psychiatric assessment of the mother is in all respects necessary but cannot be funded by the Department unless a protection application is taken in relation to the children or the Department becomes a party to these proceedings.
29.In the event that the independent children’s lawyer is able to obtain the said extension of funding in line with the preceding paragraph the parents each participate in psychiatric assessments with a psychiatrist nominated by the independent children’s lawyer.
30.In the event that the independent children’s lawyer is unable to obtain funding, the issue of the parties’ attendance for psychiatric assessment be reconsidered on the adjourned date.
31.Pursuant to section 68Q of the Family Law Act to the extent that this Order is inconsistent with an existing Family Violence Order, this Order prevails and the Family Violence Order is invalid to the extent of the inconsistency.
32.The Court will provide written reasons relating to this Order in due course.
33.The evidence of Ms AA, court co-located worker from the Department of Families Fairness and Housing, be transcribed and such transcript be provided to the parties and to Ms AA.
IT IS DIRECTED:
34.That a Registrar of this Court provide under cover of letter to a Registrar of the Magistrates’ Court in City N in Re: Case Number … to be placed with that Court file and brought to the attention of the presiding magistrate the following:
(a)a sealed copy of this Order:
(b)my reasons for decision of this day;
(c)transcript of the evidence of Ms AA given this day;
(d)the last two family reports;
NOTING THAT Case Number … has a listing on 23 June 2023.
35.That the minute of orders as amended be marked Exhibit “A” and remain on the Court file
IT IS FURTHER ORDERED THAT:
36.Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
AND IT IS NOTED BY THE COURT THAT:
A.The maternal grandparents are assisting the mother with changeover to occur on 8 June 2022, which was effected during the hearing.
B.The father use his best endeavours to arrange the vaccinations referred to herein on a Friday afternoon subject to availability of appointments.
C.In the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.
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 Silver & Pilot has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BENNETT J:
These proceedings concern the twins Y and X who are both 5 years old and in respect of whom I made final parenting orders on 19 October 2020. Today I have made further orders on an urgent interim application brought by the father, following the mother’s withholding of the twins from spending time with the father since 13 May 2022. I have granted the mother’s oral application for an adjournment and altered the parenting arrangements in the meantime consistently with what, I am satisfied, is the best interests of the boys. I said that I would deliver my reasons subsequently. These are those reasons.
It is necessary to recite some history to give context to the mother’s application for an adjournment and to explain the basis on which the parenting arrangements have been altered.
The final orders made on 19 October 2020 provided, inter alia:-
2.The parents have equal shared parental responsibility for [Y] and [X] both born […] 2017.
3. The children live with the Mother.
4. The children spend time with the Father as follows:
…
(e)for the 2020/21 long Summer holidays and subject to subparagraph 4(d) paragraphs 4(a) and 4(b) will continue save that the time in 4(b) will commence at 4.00p on the Wednesday instead of 4.00pm Thursday and conclude at 4.00pm Friday.
(f)From end of childcare/kinder/school until 6.30pm or from 12.00noon until 4.00pm if a non-school day, if the children are not already in the care of the father on;
(i) The children’s birthday.
(ii) The father’s birthday.
(iii) From 5.00pm on the Saturday of Father’s Day weekend until 5.00pm Father’s Day.
(g)Weekend and mid-week time is suspended during school holidays commencing 2021:
(i) Until the children commence school for a period of 5 nights and one weekend during the gazetted school term holidays being 9.00am Monday to 9.00am Saturday of the first week and 4.00pm Friday to 4.00m Sunday of the last weekend;
(ii) Upon the children commencing school the first half of the school holidays in even-numbered years commencing from the conclusion of school on the last day of school until midday on the first middle day of the holidays and the second half in odd-numbered years commencing from midday on the first middle day of the holidays until the commencement of school in the new term;
(iii) On a week about basis during the long summer holidays for the 2021/2 and 2022/3 long Summer holidays and thereafter the first half in 2023/4 and each alternate year thereafter and the second in 2024/5 and each alternate year thereafter, the holidays deemed to commence at midday Boxing Day.
(h)At such other times as may be agreed between the parties in writing in advance.
[…]
14. The children shall attend [BB Kindergarten].
[…]
17.The parents shall notify the other by email immediately upon any appointment being made for the children or either of them for any health professional, hospital, clinic or other like facility.
IT IS ORDERED BY THE COURT:
18.In the event of alleged non-compliance with this order, any contravention or related application filed prior to 1 February 2024 may be listed before Her Honour, Justice Bennett, within four working days of being filed, such hearing to be for directions for the immediate reinstatement of the parenting proceedings into Her Honour’s list and the appointment of an Independent Children's Lawyer and as the Applicant and Respondent may be advised. If Her Honour is not reasonably available the matter be listed as soon as practicable before the Senior Registrar.
…
20.The appointment of the Independent Children’s Lawyer be discharged and a request be made for the reappointment of the Independent Children’s Lawyer in the event of further proceedings.
The Initiating Application before me today was filed by the father on 30 May 2022. The father seeks, inter alia, interlocutory orders for an urgent listing, interim sole parental responsibility, that the children live with him and spend such time with the mother and under such conditions as the court deems appropriate. He seeks pursuant to s69ZW of the Family Law Act 1975 (Cth) (“the Act”) that the Department of Families, Fairness and Housing (“the Department”) provide an update of notifications received by it and investigations and or assessments in relation to the twins since final orders were made on 19 October 2020.
The father is nearly 48 years old, he is a self-employed tradesperson and resides at Suburb CC in Victoria. The mother is 47 years old, a student and owns her home at DD Street, Suburb EE, a property at which she and the children were residing until approximately 13 May 2022.
The father last saw the children on 6 May 2022.
The father deposes, and it was not the subject of any contradictory comment by counsel for the mother, that on Thursday 12 May 2022 the father was due to spend time with the twins. He was waiting for the mother to advise him of the location of the changeover. However, very shortly before he was due to collect the boys, he received an email from the mother notifying him that the children would not be made available. The text of the email appears later in these reasons (see [18] below), it is sufficient to note that the mother stated that the children would not be handed over to spend time with the father “until further notice” together with largely non-specific allegations including that the boys had made a “request to [the mother] … for protection from harm being done to them by you.”.
The evidence in support of the father’s application is set out in the father’s affidavit sworn or affirmed on 27 May 2022. That affidavit was filed without a wet signature and the father confirmed today, on oath, before me that the contents is true and correct.
The father has not seen the children since 6 May 2022.
No response or cross application nor any evidence was filed by or on behalf of the mother.
On 18 May 2022 the father was contacted by a child protection worker from the Department and informed that the mother had made allegations that he hit and bashed the children. He denied the allegations. On 20 May 2022 the father was informed by the same child protection worker that the Department “has received numerous reports and on occasion up to three times per week in relation to the children”. The father was informed that the mother and the children “are collectively engaged with six different services including [NN Services]”. The father deposes that he is concerned that the mother “has again embarked on a pattern of behaviour in which she has taken the children to various professionals, medical and otherwise, in an endeavour to try to obtain expert evidence to support her renewed unfounded allegations against me”.
The proceedings in which I made final orders on 19 October 2021 included serious allegations by the mother that the father had mistreated the children. There were several family reports and assessments prepared for the finalised proceedings. In the s.62G(2) report by Family Consultant Ms B dated 8 May 2020, Ms B evaluated:
97. [Ms Pilot] has made extensive and troubling allegations in relation to [Mr Silver] being a perpetrator of family violence during their relationship and claims that he has exposed [Y] and [X] to abuse during their spend time arrangements whereby they have sustained bruising and possibly been sexually abused. These allegations have appeared to escalate over time and have increased in severity the longer this matter remains in the family court. It is also noted that no concerns were raised in relation to [Y] and [X] or the sexual assault claims in [Mr Silver’s] initial IVO application in 2018.
98. [Ms Pilot] has obtained support for her claims in relation to [Mr Silver] being a perpetrator of serious family violence from two of his ex-partners which on one hand, if accurate, indicates that [Mr Silver] may be a significant risk to [Y] and [X]. One of these partners ([Ms G]), [Mr Silver] was in a relationship over 20 years ago and the other ([Ms K’s]) character is in question given the nature of her two prior child sexual abuse charges and the fact that she was charged with stabbing [Mr Silver] in the chest in 2014 with a kitchen knife.
99. However, the likelihood that [Ms Pilot] has actively pursued [Mr Silver’s] ex-partners to support her campaign against him highlights some concern in relation to her behaviour and possibly speaks to some troubling personality vulnerabilities that have been highlighted by both [Dr F] and [Dr GG] in their reports.
100. [Ms Pilot] has appeared relentless with her allegations in relation to [Mr Silver] to services such as DHHS, Police and health services. She has been aggressive and hostile in her approach at times and has been labelled as “manipulative” in terms of getting the desired outcome of ceasing [Mr Silver’s] contact with the children. It has been said that she has provided inconsistent allegations and versions of events to services and the timeline of her allegations are curious, with her allegations regarding sexual assault from [Mr Silver] being raised two days following him lodging family law proceedings. Also, her claim that the twins were allegedly drugged by [Mr Silver] at his first visit with them was unusual given that her concerns were not brought to the attention of health professionals until a few days following the twins returning to her care.
101. [Ms Pilot’s] behaviour in relation to this incident was highly unusual and warrants further exploration. The subpoena material suggests that [Ms Pilot] took the children to the General Practitioner (GP) who did not identify any concerns in relation to [Y] and [X’s] presentation. [Ms Pilot] then appeared to contact the Ambulance who attended and also informed her that the children did not appear substance affected. [Ms Pilot] then attended [FF Health Service] who also reiterated what the GP and the Ambulance staff had already informed her, that the children did not present with any signs of loss of consciousness. However, [Ms Pilot] did not accept this and appeared to demand that they receive a toxicology test to which [Dr HH] at [FF Health Service] refused. This led to [Ms Pilot] becoming heightened and verbally abusive to [Dr HH] and appearing to attempt to manipulate the situation in order to obtain these tests.
102. It appears that [Ms Pilot] has taken the twins to multiple medical appointments and professionals, taken photos, obtained video evidence yet has not been successful in obtaining any evidence that either the Police or DHHS has been able to utilise in relation to her claims against [Mr Silver]. Instead, she has been criticised by DHHS who have substantiated harm against her in their most recent report (released 10/03/2020) due to concerns that she is putting the children’s emotional and psychological wellbeing at risk with her behaviour.
103. [Ms Pilot’s] pattern of behaviour with the ongoing allegations against [Mr Silver] could be perceived as amplified hypervigilance in the context of significant family violence concerns and her view that Mr Silver presents as a major risk to [Y] and [X], particularly given their increased vulnerability as ex-29 week premature twins. If this is the case, then [Ms Pilot’s] behaviour could be viewed as that of a family violence victim and despairing mother who is determined to protect her vulnerable children from intense danger.
104. Alternatively, [Ms Pilot’s] behaviour could be viewed through a mental health lens - an individual who has experienced a significant trauma with the difficult birth of the twins combined with her personality vulnerabilities whereby she has accepted her version of reality as the correct one. The concern with [Ms Pilot] potential “fixed” version of events is that if it continues, it may create further risk to [Y] and [X] in her care. If she continues to feel that no one is listening to her and that [Y] and [X] are in danger in the care of [Mr Silver,] then this could increase the risk for them with her behaviour in trying to keep them safe. This may mean ongoing endless trips to medical professionals in an attempt to gain further evidence or possible a more troubling outcome if these fears become delusional.
105. It is also likely that if she is holding a “fixed” position, [Ms Pilot’s] mental health may deteriorate further if [Y] and [X] continue spending regular time with their father for the foreseeable future. It is expected that this would be very challenging for [Ms Pilot] to manage long term. This is demonstrated with the over reliance on the maternal grandparents to support with the changeovers which places them in a difficult positon and is not appropriate going forward.
106. It has been noted by multiple professionals that [Ms Pilot] has difficulty taking on the advice and perspective of others. This was observed during the interviews whereby she became defensive when the writer attempted to provide some feedback on managing the separation from the twins. [Ms Pilot’s] behaviour appeared manipulative at times during interview in the way she attempted to portray herself as a highly cooperative co-parent, however it appears that she has been quite the opposite with her behaviour of deliberately leaving out important information in relation to the twins and making unilateral decisions in regarding their care such as enrolling them in childcare without the consent or knowledge of [Mr Silver].
..
114.If it is determined that [Mr Silver] is not considered to be a risk on the grounds of family violence and [Ms Pilot] cannot support the children’s relationship with him as they move through this developmental stage, then her behaviour is obstructive and needs to cease.
115.If she continues this behaviour, consideration needs to be given to whether she is the best parent to have primary care of [Y] and [X]. Once [Y] and [X] have moved through this developmental stage they could begin to resist and refuse a relationship with their father and this would likely be encouraged by [Ms Pilot].
116.In summary, this is a highly complex matter involving two very vulnerable twins covering multiple risk domains. There are numerous affidavits that have been submitted in support of each parent’s narrative and the dispute is entrenched. This matter will require the court to carry out a testing of the evidence in order to ascertain the level of risk that [Mr Silver] poses to [Y] and [X] as it is unable to be categorically determined in the scope of this assessment.
Dr F’s report was dated 2 March 2020 and before the Court. It contained the following:
MENTAL STATE EXAMINATION
[…]
Despite her continuing avalanche of allegations against [Mr Silver], it appears that [Ms Pilot] has on occasion continued to seek him out a relationship with nonetheless. Her account of [Mr Silver] was unrelentingly critical and it was readily evident that she holds him with considerable grievance and enmity being the most constant feature of her presentation throughout the interview. In addition she was inclined to minimise aspects of her earlier traumatic history, overall, her presentation as consistent with someone of considerable vulnerability with suggestions of a core unstable personality style, and enmeshed relationship with the children with what appear to be frequent discussions and direct questioning of them, using language which would not appears in keeping with their development and young age.
OPINION
[…]
3. Beyond [Ms Pilot’s] initially pleasant, clam and settled appearance and presentation, her narrative was unrelentingly critical of [Mr Silver] in regard to his relationship with her and the children. She raises a series of damning allegations against him, similar to [Ms K] and [Ms G]. If those allegations are found to have a significant basis in fact then it would not be appropriate for [Mr Silver’s] contact with the children to continue. On the other hand, it has been noted however that the allegations raised by [Ms Pilot] have not been substantiated and there have been concerns expressed by a number of health professionals in regard to her presentation.
4. Similarly I was left with significant reservations as to [Ms Pilot’s] account and whilst she may well be reacting to the severe abuse which she alleges directed towards her by [Mr Silver], in the alternative her account was accompanied by a distinct sense of malice directed towards him. Escalating and increasing allegations in my experience made by one party against the mother in the absence of evidence point to disturbance of the party making the allegations in regard to their personality functioning and/or mental health. Such behaviours also call into question that parent’s ability to support the children’s relationship with the other parent.
Dr F’s diagnosis for the mother was:
·Adjustment Disorder with Anxious Mood; and
·Borderline Personality Traits.
Following publication of the first report of Ms B, the mother did not adhere to her allegations of mistreatment against the father. She indicated that she would permit the father to spend unsupervised time with the children and that she would remain living in close proximity to the father. There was no explanation for the mother’s change of heart and, I think it is fair to say, some scepticism that any consensual resolution may later come unstuck. The father refers to some relevant extracts from my reasons for decision of 3 August 2020 published in case neutral citation [2020] FamCA 691. Otherwise, in referring to the mother’s change of position, I stated:
4. In the mother’s material and up until this morning, the mother has sought to restrict the children’s time with the father based on her experience of the father as a perpetrator of family violence. Her allegations against the father extend beyond severe family violence and verbal abuse, coercive and controlling behaviour, to include:
(a) rape of her;
(b) smothering her with a pillow to her face;
(c) smothering her by sitting on her face when she was asleep;
(d) getting someone else to rape her (which she posits might have led to the conception of [Y] and [X]);
(e) drugging the children or one of them;
(f) sexual abuse of the children or one of them;
(g) bruising the children;
(h) raising his fist to the children;
(i) killing pets of intimate partners;
(j) torturing pets of intimate partners;
(k) killing animals;
(l) treating the children like pets;
(m) threatening to shoot the mother.
5. The mother’s new position was made known to me only this morning but her case outline which contains it as annexure A of “orders sought by the respondent mother” was attempted to be filed on Friday. It was apparently quarantined by the Court’s IT network and was only received by Chambers this morning. [Mr OO], counsel for the mother, conceded that his understanding is that his client’s new position was only adopted as of last week when the outline was filed. Therefore, it is not a situation where the mother has held this new position some time ago and merely not communicated it to any other party.
A further s 62G(2) report was ordered, essentially to assess whether the mother would actually be able to support the twin boys having a meaningful relationship with the father. The second report is dated 29 September 2020. In the second report Ms B evaluated:-
60. This is an updated family report regarding the parenting arrangements for 3 year old identical twins, [Y] and [X]. The parents are in dispute regarding primary care of the twins and parental responsibility. The twins live primarily with their mother and currently spend from Friday to Sunday with their father each weekend.
61. This updated report was completed shortly after the family report dated 6/05/09. Therefore the issues remain for the most part, unchanged. The most significant issue of concern from the writer’s perspective was the parent’s capacity to co-parent going forward and whether [Ms Pilot] could ever fully support the children having a relationship with their father.
62. [Ms Pilot’s] behaviour of changing her position immediately prior to trial and suddenly agreeing for [Y] and [X] to spend unsupervised time with their father was troubling. This was mostly due to the seriousness of her allegations of family violence in her relationship with [Mr Silver], coupled with the allegations of two of [Mr Silver’s] ex-partners that she had obtained in supporting affidavits for these proceedings. Notwithstanding her allegations of harm to [Y] and [X] in [Mr Silver’s] care. [Ms Pilot] appeared to have gone to significant effort to procure this evidence to support her position and it seemed highly unlikely that she would change her position in the face of such concerning allegations towards the end of the matter.
63. [Ms Pilot’s] explanation for this is that it took her time to accept that [Y] and [X] will have a relationship with their father and therefore, she is attempting to come to terms with this herself, despite her experiences of him. However, it is unusual that a parent who has been so concerned with the children’s safety could come to this decision without a testing of the evidence. Despite [Ms Pilot’s] view that she is working towards accepting [Y] and [X’s] relationship with their father, there are still concerns that her intentions are insincere and that she may attempt to restrict and control the children’s relationship with their father in the future once litigation has been finalised.
64. Whilst it is unlikely that this co-parenting dynamic will ever be ideal, fortunately, [Ms Pilot] appears to have made some positive changes in the short time between the initial family report and this update. As was discussed in the previous report, it is still felt that a significant issue in this matter is [Ms Pilot’s] background of trauma. It his highly possible that [Ms Pilot] has experienced and may continue to experience post-traumatic stress as a result of having two extremely premature infants in the Neonatal Intensive care unit for an extended period of time. This experience of living daily being concerned about life and death appears to have contributed in a significant way to her hypervigilance of the twins in terms of their relationship with [Mr Silver].
65. [Ms Pilot] has engaged in personal therapy which both she and her therapist reported to be progressing well. She discussed themes of working to understand her triggers and to understand normal behaviours of children from separated families in order for her to not overreact when she observes behavioural changes when the children have been at their fathers. She stated that she values the children’s relationship with [Mr Silver] and that she can see that they love him. [Ms Pilot] was also able to acknowledge the loss for [Y] and [X] if their relationship ceased with their father now or in the future.
66. Although she was reluctant, [Ms Pilot] agreed to communicate with [Mr Silver] via email along with the communication book for the children’s day to day needs. This was viewed as a positive step in terms of progressing the communication between the parents as [Mr Silver] articulated that he would appreciate important information in real time rather than waiting multiple days for a response from [Ms Pilot].
67. The children identify [Ms Pilot] as their primary parent. Due to their experiences of trauma from their difficult start to life, [Y] and [X] would have identified [Ms Pilot] as the main person to support them in dealing with distress from ongoing medical interventions. Changing the primary residence, despite their close relationship with their father, is likely to cause incredible distress to [Y] and [X] and is not expected to be in their best interests as vulnerable children.
68. It is essential that [Y] and [X] experience as much stability in their care giving arrangement as possible. Given the high level of communication that would be required for a shared care arrangement to be successful for [Y] and [X]; shared care between these parents is contraindicated at this time. If shared care did occur, it is expected that the parents would need to parallel parent in each home which would not be in [Y] and [X’s] best interests. Therefore, the children require a primary residence and to spend overnight time at the other parents home.
69. Given the seriousness of the allegations raised in relation to [Mr Silver] by [Ms Pilot], it is anticipated that sending [Y] and [X] to spend time with their father could cause some level of emotional dysregulation for [Ms Pilot]. Whilst she articulated that she is attempting to support the relationship between [Mr Silver] and the children, she continues to stand by her allegations in relation to the family violence she experienced during their relationship. Therefore, learning to manage her own emotional response to [Y] and [X] spending time with [Mr Silver] will likely be an ongoing issue for [Ms Pilot] that she will require support to manage.
70. [Y] and [X] would benefit if [Ms Pilot] continued to receive support from her therapist, [Ms R]. [Ms Pilot] was also supportive of [Mr Silver] being included in his own sessions with [Ms T] (Infant Mental Health clinician) with [Y] and [X] and felt that this would be useful for all involved. [Ms Pilot] has completed the Circle of Security parenting program three times and feels that it has been incredibly helpful for her parenting. It would be beneficial if [Mr Silver] could also attend this program in order for the parents to provide a more consistent approach to parenting the children that is in line with their developmental needs.
By May of this year the children were spending 5 out of each 14 nights in the care of the father. The children spent time with the father each alternate weekend from 4pm Thursday until 9:00 a.m. Monday and each alternate Thursday from the conclusion of School (or 4pm if non-school/kinder day) until 9 am (or the commencement of school or kinder) on Friday. This regime was as provided in the final order made 19 October 2020. The parents were residing approximately 15 minutes’ drive from each other’s residence. The last period of the children spending time with the father concluded on 6 May 2022.
As indicated, the mother sent the father an email on 13 May 2022 informing him that the children would not be made available. The mother’s email read as follows:-
In relation to the handover this afternoon and hereafter, one of my legal responsibilities (sic) to protect the children from harm. In response to the cumulative and escalating disclosures from [Y] and [X] and request from them to me for protection from harm being done to them by you, of them being hurt, hit and specific statement of fear that a recent act that caused one of them not to breathe will occur again at the scheduled contact, I am placed in a position now to have to act protectively and I will not be presenting the children for this handover or until further notice.
I urge you please to seek support ASAP to learn and understand to manage your actions towards the children so this situation can be rectified and contact can be resumed.
I will make an application to the court if I have to, but it is not my desire.
The father has had no communication with the twins since 6 May 2022 and it is not known whether or how the mother has explained the absence of the father to the twins.
The father’s solicitors were unable to serve the mother personally with the father’s Application Initiating Proceedings. The process server reported that the mother’s home was unattended. Eventually, documents were left with the maternal grandparents some days ago.
On 3 June 2022 the father was served with an Interim Intervention Order which had been granted the day prior on an ex parte application brought by the mother in the Magistrates’ Court in City N. The mother’s complaint traverses the whole of the parents’ relationship and is inconsistent with the mother’s statements in 2020, through her counsel, that she no longer believed that the father posed a risk to the children. The tone of, and lack of specifics in, the mother’s complaint is concerning and will likely be material considered by the Court Child Expert.
Today, the mother attends court represented by Counsel but without any responding material or affidavit evidence. The mother seeks an adjournment of some weeks so that she may prepare answering material. She bases her adjournment application on the fact that she has had inadequate time to prepare documentation.
I do not accept that the mother has had inadequate time to prepare documentation either herself or by retaining lawyers. The mother acted unilaterally in refusing to make the children available to the father on 12 May 2022. She had, at least since that date, time to compose an application and order her evidence in support of the application. Her correspondence to the father of 12 May 2022 contemplates an application being made by her. Instead of making an application to this Court, in which there has been filed a plethora of affidavits and which has a number of expert reports, the mother made application to the Magistrates Court for an Intervention Order. That Intervention Order was granted on an interim basis and the proceedings return to the Magistrates Court on 23 June 2022. These reasons should necessarily be before the Magistrates Court on the next date and I will make provision for that to occur.
I will grant the mother’s application for an adjournment of the matter to enable her to have her solicitors (only recently retained) prepare documentation but I have made orders about when the children are to reside with the father pending the further hearing.
The court was very much assisted by having the participation of the independent children’s lawyer who previously held that role in earlier proceedings. Ms Sarah Lia appeared on her own behalf and displayed a sound recollection and understanding of the matter.
The co-located worker from the Department was also available to participate in the hearing and to inform the court of the Department’s involvement with the family and its assessment to date. I have made an order for a s 69ZW report to be published at a date which the co-located Departmental worker said was a reasonable time frame. The co-located worker is Ms AA.
Ms AA informed the court of the following matters (and in what follows I have lifted large parts of the information from the transcript of Ms AA’s evidence so much of it is in her words) to which I have added my emphasis:
(a)The case is currently in investigation phase. What that means is it has moved from our intake. They’re – it’s now allocated to an investigation team which have been out to see the family and have been following up with the relevant professionals.
…
(b)At the moment on the allegations that have been made against [Mr Silver] and the concerns in relation to [Ms Pilot] – our department substantiated emotional harm to the children going back to 25 May [2022]. Substantiated emotional harm, as distinct from abuse, is on the basis of likely to cause harm rather than intentional emotional abuse. [Ms Pilot] was assessed as responsible for harm in that assessment by the department. And that was on the basis of her attempts to – what was assessed at the time – attempts to gather evidence against [Mr Silver]. Limited insight into her own mental health and the impact this has on the children’s health and development.
(c)The Department is concerned about the mother recording the children and asking the children questions including leading questions in an endeavour to obtain evidence against the father. It is to be noted that in earlier proceedings (documented by the Department in its s67ZW report dated 10 March 2020) the mother had recorded the children. It was clarified the mother had on at least one occasion recorded the children again.
(d)Ms AA quoted from her notes “the mother continues to attempt to gather evidence against the father by engaging health professionals and using cameras to record the children.” However, “Following on from that, at this point in time, the department has been unable to substantiate the concerns relating to family violence and the concerns relating to allegations of harm caused by the – by [Mr Silver] towards the children.”
(e)Significantly, the Department’s report of 10 March 2020 recorded that “Child Protection have substantiated harm based on the likelihood of emotional and psychological harm to [Y] and [X] in the care of their mother, [Ms Pilot]. Harm has been substantiated on the basis that [Y] and [X] continue to be exposed to unnecessary medical examinations and discussions around [Ms Pilot’s] concerns regarding their father [Mr Silver]. It is assessed that [Y] and [X] are not currently at an unacceptable level of risk in [Ms Pilot’s] care and as such a Protection application has not been made”.
(f)On the basis of what has been reported and gathered so far through interviews, information from professionals and observations – what I’m seeing on our records is that no disclosures have been made by the children to Child Protection, nor any injuries cited. In conversations with Mr Silver, he has spoken to Child Protection about previous physical discipline of the children that he has implemented and conversations have been had around appropriateness or inappropriateness of that, rather. But in terms of alleged – I think there was a recent allegation of strangulation – that certainly has not been confirmed in any substantial way.
(g)The most recent professionals meeting which occurred on 3 June – there’s certainly an acknowledgement that both parents present as very credible and as concerned about the wellbeing of the children. And the department is, as is often in these cases, struggling to – I suppose – place or assess the risk as it currently stands in the care of either parent given the conflicts and the allegations. But on the basis of evidence gathered by Child Protection at this point in time, the concerns have not been substantiated against Mr Silver. The investigation is ongoing, though. And the department is currently working with the family in that voluntary space.
(h)The information provided by a family violence support worker makes an observation, again, in that professionals meeting from 3 June that the children are presenting as quite settled and happy. The question is then raised: is that attributed to the fact that they haven’t been disrupted and had time with Mr Silver? That has not been determined, but it is one of the professionals putting that forward as a possible hypothesis for the way the children are presenting at the moment.
(i)After speaking with the Team Manager, Ms JJ, Ms AA confirmed that “at this point in time, [the Department] hold no concerns for the children in – in the care of [Mr Silver] and would be supportive of the children spending whatever period of time the court sees fit with him. The Department does intend to visit the children whilst they’re with [Mr Silver] and make observations of their interactions. There was – I couldn’t get a commitment that that would occur in the next week as that would depend on other workloads and whatnot, but, certainly, that is the intention of the Department prior to any case closure being considered. So that’s in terms of the time with [Mr Silver]. The Department would certainly be – would welcome and be supportive of an independent mental health assessment of [Ms Pilot].”
(j)It is of “particular concern” that the mother changes services for herself and the children. In particular, “community supports which were involved back in 2020 are no longer involved and there is now a new set of professionals.
(k)There is some concern that Ms Pilot changes professionals when she does not receive the response that she was hoping for. In terms of the recordings, the s67Z as mentioned earlier, does make reference to previous recordings. The team manager currently advises that there are new recordings. There is a voice recording on or around 14 May which has also been transcribed and provided to our department. She couldn’t, with any confidence, say that there are other recordings. But there are suggestions that – there are suggestions that Ms Pilot has cameras installed in the house and possibly in her vehicle to record the children, as well. But on or around 14 May of this year is the last known recording that the department has on their record.”
(l)There have been 10 notifications to Victoria Police SOCIT which has now closed its file. The children were most recently interviewed by SOCIT in City KK the notes to which Ms AA referred included the statement “On every occasion the boys have been spoken to, there is nothing – no injuries. They indicate they’re happy to see their father. They have disclosed being hit by Mum as well as Dad.”
(m)Ms AA read from SOCIT notes as follows:
“There have been 10 jobs that have come through SOCIT involving the family. SOCIT have the recording from 13th of the 5th. [X] was taken to [LL Town] Police Station. There is limited information about any specific offending by the father. Responses by the boys are along the lines of, “I don’t know. I don’t remember.” There have been no injuries on the children. The children were also interviewed in [City KK].” Further “On every occasion they’ve been spoken to, there’s nothing. Reality is that the children are unable to detail anything that could indicate a date. Even the recording lacked any detail needed to corroborate what they said in the absence of injuries. Around the boys sexualised behaviour, there is not a lot to go on to move forward with anything on that basis. Each time the job has come through. …it has been investigated by a different member. On all 10 different times, there have been no grounds to continue. During the most interview – …with SOCIT, the boys disclosed that their mum hit them. The children have trouble providing days and times. SOCIT does not discount the mother’s evidence, but it is a factor. With all 10 jobs, there have been similar allegations. Sexualised behaviour has not been a common theme – may be occurring in one. This is not coming to our attention time and time again. Leading questions impact the investigation, and what SOCIT can do, for example, on the recording, when the children mention a “smack in the face,” they are asked by [Ms Pilot], “Is that when your glasses got broken.” While this is a natural thing for a parent to say, police are trained and question carefully so as not to lead. When [X] was spoken to about the recent allegations, he gave an impression it was historic. The kids have been spoken to a number of times and nothing has been disclosed. It is not a matter for police to – with respect to whether time with one parent should be supervised. If the children repeat their disclosures to a credible professional, it is different threshold to disclosures made to [Ms Pilot], but not necessarily to the point where police would prosecute. Coaching happens. Not saying it is a case here, but if the children clam up or can’t specify, then we can’t prove without reasonable doubt that something has occurred. Pleased to hear that [Ms Pilot] will be provided with a personal safety device, interim intervention order will give 21 days. If nothing has been substantiated, [Mr Silver] is going to seek time with the children.
Ms AA did not give sworn evidence. There seemed little point because Ms AA does not have personal knowledge of the matter. Her statements are hearsay. However, in these proceedings I can have regard to hearsay by virtue of s 69ZT of the Act. I give Ms AA’s statements, information and evidence considerable weight.
The matter will be adjourned to 21 July 2022 which is the first practicable date on which to bring the matter back to court having regard to the s 67ZW report to be received from the Department.
Currently, the Department have no concerns about the boys being exposed to physical abuse or psychological harm in the care of the father. The Department assess the mother as being a source of likely emotional harm to the children, as described above.
I am informed that a child protection worker has actually seen the children. The Department have assessed that Y and X are not currently at an unacceptable level of risk in the mother’s care to an extent that the Department would be impelled to make a protection application in relation to the boys. The Department is satisfied that, at this stage, the family are working with the Department voluntarily. However, that does not mean that the boys’ best interests are served by remaining in the mother’s primary care at this stage. The magnitude of harm of which the Department must be satisfied before it will bring a protection application differs in application from the principle which applies to my determination, being that the best interests of the children is the paramount consideration. Arguably, where the Department is satisfied that the family is engaging voluntarily, it is indicative that the Department are satisfied that there are protective concerns of some seriousness to be addressed.
Based on the father’s uncontested evidence, I am satisfied that the mother’s unilateral actions and, the consequences which flow therefrom, require the court’s urgent attention:
·to protect the children;
·to enable appropriate evidence to be obtained as soon as practicable;
·to allocate hearing time for a principled determination of interim issues, on evidence, as expeditiously as possible in accordance with the children’s best interests.
In determining what is in the children’s best interests I must consider the benefit of them having a meaningful relationship with both parents. It appears that the children have a meaningful relationship with both parents. The more vexed issue, and the consideration which is to be accorded more weight than what benefits flow from meaningful relationships, is to determine even at this early interim stage what is required to protect the twins from physical or psychological harm and from being subjected to abuse, neglect or family violence. Here, the mother makes extensive allegations of family violence in another court in the context of her application for an Intervention Order. However, she has not made application to this court nor provided evidence today. This is in spite of her having notified the father in writing on 12 May 2022 that she would take proceedings if necessary.
In the Magistrates Court in City N, the mother alleges historical family violence by the father directed to herself and the boys and that she and the boys will be subject to family violence in the future unless the father is restrained under state family violence legislation. In this court, the father alleges that the mother’s recent unilateral actions, including withholding the children from him, impact negatively on the children and, I infer, are abusive. There is some support for the father’s contention, vis a vis emotional harm, from the Department although I note that the Department’s investigations are not finalised. The orders which I have made require the mother’s evidence in this court to be filed promptly. That includes the evidence of relevant health professional and allied health professionals. In addition the independent children’s lawyer is tasked with securing production of documents on subpoena. One such subpoena is to be directed to “MM Clinic” in City N to which the mother took the twins (or one of them) over the objection of the father for psychological assessment.
Apart from awaiting the Department’s s 69ZW response, I have ordered that the family be assessed for a Child Impact Report pursuant to s 62G(2) of the Act to be available on the adjourned date. The Child Impact Report is a child focused preliminary assessment which:
·provide insight into the children’s views, needs and experiences;
·offer screening, identification and preliminary assessment of risk issues and other factors relevant for the children and family; and
·provide guidance to parents and the court about the needs and well-being of children to support the court’s determination in relation to ongoing parenting arrangements on the adjourned date.
The Child Court Expert who prepares the Child Impact Report will have access to all evidence and the plethora of previous social science reports.
The Child Court Expert who prepares the Child Impact Report is required for cross examination on the adjourned date. It will not be cross examination at large. Cross examination will be confined to interim issues. Each party should anticipate that each will be given not more than 15-20 minutes to cross examine.
I have put the parties on notice that the cross examination of the Child Court Expert will, if possible, be dealt with immediately the matter commences at 10.00 a.m. Accordingly, each practitioner/party must ensure that they have provided each other party and the court (my associate …@fcfcoa.gov.au ) with a concisely drawn minute of the order sought by him/her well prior to the commencement of the hearing. The independent children’s lawyer should, in turn, inform the Child Court Expert of the competing proposals (by providing the minutes or otherwise) prior to the commencement of the hearing.
Section 60CC(3) of the Act sets out the additional considerations which the court may have regard to in a determination of the children’s best interests.
The boys are young but I nonetheless have regard to their views. The evidence of SOCIT, through Ms AA, is that the children are “happy to see their father”. I also have regard to the observations of the children as being settled in the care of the mother which is indicative of a reasonable and beneficial relationship between the children and the mother.
The children have previously been assessed as being primarily attached to the mother. They have been assessed as having a good relationship with the father. The father has had significantly more time with the children now than he had with the children at the time of the last family consultant assessment in September 2020. However, I accept that the boys’ relationship with the mother would be such that they cannot be separated from her indefinitely or for extended periods without some adverse reaction.
I am satisfied that the father has taken the opportunity to spend time with the children as provided for in the final orders and to participate in making major long-term decisions about them. The mother is yet to answer the father’s allegations that the mother has failed or neglected to include him in long-term decision making. The parties have been unable to agree on vaccination of the children although it was said on behalf of the mother that it was the timing of the vaccinations and whether vaccinations for flu and Covid should be given separately that were an issue rather than the vaccinations themselves.
There was no complaint by the mother that the father has failed to meet his child support obligations.
I have regard to the fact that a drastic change in the children’s circumstances will be unsettling for the children. Accordingly, time with the father should be interspersed with regular and predictable time with the mother.
I am required to consider 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. Prior to 13 May 2022 the parents lived within 15 minutes drive of one another. The mother is now in a safe house and her whereabouts are unknown. Significantly, the whereabouts of the children is not known although I understand that the Department considered that it has some means of contacting the mother. The mother owns her own home but refuses to reside there with the children until the property has been assessed for “safety”. The mother informed the court, through her counsel, that she will reside in the home of the maternal grandparents at such time as she had the children between now and the adjourned date.
Parenting capacity is a matter which will be able to be comprehensively assessed only at the final hearing. Experts in the previous proceedings concluded that the mother’s capacity to parent the boys was negatively impacted by her vengeful feelings towards, and accusations about, the father. Dr F’s diagnosis of the mother as having Adjustment Disorder with Anxious Mood and Borderline Personality Traits is a matter which will require evidence from the mother’s treating health professionals in and since 2020 to give evidence of what treatment the mother has sought, received and to what result.
In a more immediate sense, I note that the mother has unilaterally removed the children from their home and is accommodating them in a safe house. Whether the mother was justified in doing so will be a matter of evidence to be assessed, with all other evidence, at the final hearing. In the meantime, it is not known whether the mother and boys are the only occupants of the safe house facility. The home in which the boys lived until 13 May 2022 is owned by the mother, and is empty. She refuses to return to her home until it has been checked for “safety”. Counsel for the mother informed the court that, henceforth, when the boys are in the care of the mother, she and the boys will reside with her parents at the address which appears in the orders. I acknowledge that the boys are likely to be more familiar with the maternal grandparents’ home than they were initially with the safe house. However the mother’s concession in this regard, begs the question - why did the mother take the extreme action of entering a safe house when the mid-way point of herself and the boys living with her parents was, presumably, available to her? I cannot determine today whether the mother’s relocation of the boys to a safe house was reasonable and proportionate or whether she entered that arrangement in order to avoid scrutiny and to give credence to her allegations against the father.
The mother also ceased taking the twins to BB Kindergarten where they are enrolled to attend each Monday, Wednesday and Friday. This is in spite of paragraph [14] of the Order made 19 October 2020 requiring them to attend. The father deposes that the mother has said that the children are absent from kindergarten due to ill health. If that is correct, the mother will need to adduce evidence of their illness.
In sum, by reason of the mother’s unilateral actions, the boys are dislocated from their familiar home, kindergarten and, of course, their father.
The court will be best placed to assess the respective capacity of each parent to provide for the needs of the children, including emotional and intellectual needs, at the final hearing when the evidence of the mother and father can be tested and the evidence of the several experts is before the court (and can also be tested).
In due course, the court will also assess how each parent has demonstrated his/her attitude to the children, and to the responsibilities of parenthood. The parents have equal shared parental responsibility for the boys. The father has stated that the mother “takes long periods to respond” to proposals in relation to the children in about every day and mundane issues including swimming lessons (where the father has a damn), the boys attendance on an optometrist, scheduling health appointments, outcome of health appointments, choice of school for 2023 and vaccination of the children including, but not limited to, COVID 19 and influenza vaccinations. The subtext is that consultation delayed is consultation denied which is inconsistent with the parties sharing parental responsibility for the children.
I note that the father will endeavour to have the boys vaccinated for COVID 19 and influenza. It would be pleasing if, prior to the adjourned date, the parents are also able to agree upon the specifics of:
(a)what school the children will attend next year; and
(b)when and with whom the boys will commence swimming lessons.
Of course, I have regard to any family violence involving the children or a member of the children’s family. The Department have, thus far, assessed that the mother is the cause of any likely emotional harm. The Department does not regard the father as a source of physical or emotional harm.
As far as the interim Intervention Order is concerned, I am satisfied that this court is well placed to determine care arrangements for the children. Accordingly, I respectfully suggest that, if any order is made by the Magistrates’ Court in City N on 23 June 2022, that order be expressed to be subject to any order made under the Family Law Act 1975 in proceedings MLC10303/2018
I note that the above considerations are applied on the largely uncontested evidence of the father. There was no application to cross examine the father. Counsel for the mother did not seek to adduce oral evidence from her client. If the mother desired whatever evidence she may have to be taken into account today, she should have had it ready for the father and for the court because she unilaterally ceased the father’s time with the children on 13 May 2022, a considerable time ago, without any notice to the father. The father’s enforcement proceedings could hardly have come as a shock to the mother given the relisting mechanism available to the parties under paragraph 18 of the final parenting order.
I am satisfied that the children should be reunited with the father as quickly as possible. The mother has arrange to have her mother deliver the children to the father at a nominated changeover point this afternoon.
I am satisfied that the children should be returned to their familiar surrounds. The mother should ensure that the children live in her home or her parents’ home whilst they are in her care between now and the adjourned date. I do not consider that it is in the best interests of the boys to live in a safe house which is an address none is permitted to disclose. Generally, the children should not be forced to keep their address secret from their father because to do so is likely to give rise to each boy apprehending the father as someone who cannot be trusted, should be feared and from whom secrets must kept. The father should not as the boys where the safe house is but the boys should return to familiar surrounds. The mother has the protection of an Intervention Order prohibiting the father from approaching her home.
The parents should ensure the children recommence attendance at BB Kindergarten where they are enrolled to attend each Monday, Wednesday and Friday.
On the evidence before me, including the social science reports of 2020, I have concerns about the mother’s mental health. It appears that episodically, she brings the children into harm by becoming preoccupied with proving a case against the father based on him as a perpetrator of family violence. It may be that the mother does this episodically or it may be that it takes her two years to gather a new set of practitioners between whom she can circulate her allegations. Of course, there may be another explanation. All of the circumstances I can contemplate have serious implications for the children. I am of the view that the mother, and therefore the father and the mother, should be psychiatrically assessed as soon as practicable.
I am satisfied that the children should spend extra time with the father. Amongst other things, this will give the mother an uninterrupted and generous time in which to prepare her case for this court, with or without legal representation.
The final parenting order provides for the children to spend time with the father for five out of 14 nights which are taken in two blocks (not consecutive). I am satisfied that more than five nights away from the mother is too much for the boys for whom she has been the primary carer and would be their primary attachment figure. However, five consecutive nights is an arrangement from which, in my opinion, the boys will benefit if it is interspersed with not less than two nights in the mother’s care. I am satisfied that it is in the interests of the boys to effectively double the father’s time with the boys as an interim measure. I stress that this is an interim arrangement which will be reviewed on the adjourned date in light of all evidence then available.
I consider that the interim parenting arrangement will assist the father and boys to consolidate their relationship after the disruption of the last 3 to 4 weeks. The Department will visit the boys in the father’s care. The assessment for the Child Impact Report will be undertaken. Both parents will be scrutinised.
I expect there may be hiccups and all may not go smoothly with the interim regime. However, on the basis that there could possibly be a change in primary residence of the boys, it is of benefit to the boys to extend their time in the father’s care at this point. Any change in primary care on an interim basis would be because the best interest of the boys requires such a change before a final hearing. If the court was so satisfied on the adjourned date, there would likely not be time for a gradual transition.
I am satisfied that the interim orders set out at the commencement of these reasons are consistent with the best interests of X and Y. On the evidence before me, I am satisfied that this interim order does not expose any person to an unacceptable risk of family violence.
This is a proceeding in which I make orders within the meaning of s 68P(1) of the Act which applies in circumstances where:
(a) a court:
(i)makes a parenting order that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; or
(ii)makes a recovery order (as defined in section 67Q) or any other order under this Act that expressly or impliedly requires or authorises a person to spend time with a child; or
(iii)grants an injunction under section 68B or 114 that expressly or impliedly requires or authorises a person to spend time with a child; and
(b)the order made or injunction granted is inconsistent with an existing family violence order.
If an order is made that is inconsistent with an existing family violence order (as this interim parenting order is) the court is required to identify the inconsistency, give a detailed explanation of how the contact provided for by the order is to take place and explain the order, its purpose and the parties’ obligations under the order to all relevant persons (s 68P(2)). In my view, the inconsistency between the Intervention Order and this interim parenting order are self-evident, appreciated by all parties and were effectively traversed in the submissions made by the parties. No party contended that the father should be prohibited from coming into contact with the boys, as provided in the Intervention Order provides.
The extant Intervention Order is, itself, an interim order. As indicated above, I respectfully suggest that, if any order is made by the Magistrates’ Court in City N on 23 June 2022, that such order be expressed to be subject to any order made under the Family Law Act 1975 in proceedings MLC10303/2018.
This order need not be explained to the children. It is not in their best interests to do so.
To the extent of the inconsistency, which is significant, the Family Court this Order is to take precedence over the Intervention Order.
Lastly, I have made the direction to provide documents to the Department and Magistrates Court in City N, noting the proceedings are next returnable on 23 June 2022.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett delivered on 8 June 2022. Associate:
Dated: 22 June 2022