Snow & Curran (No 2)
[2023] FedCFamC1F 1120
•24 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Snow & Curran (No 2) [2023] FedCFamC1F 1120
File number(s): BRC 10843 of 2021 Judgment of: BAUMANN J Date of judgment: 24 November 2023 Catchwords: FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION- Where the Senior Judicial Registrar made interim Orders for the children to spend supervised time with the father - Orders made for the children to spend unsupervised time with the father Legislation: Family Law Act 1975 (Cth) ss 60CC Cases cited: Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Division: Division 1 First Instance Number of paragraphs: 44 Date of last submission/s: 29 November 2023 Date of hearing: 20 November 2023 Place: Brisbane Solicitor for the Applicant: Ms Kannemeyer Counsel for the Respondent: Ms Gajic-Pavlica Solicitor for the Respondent: Power Legal Solicitor for the Independent Children's Lawyer: Lyrene Wiid Lawyer & Migration Agent
Table of Corrections 3 May 2024 Date of Judgment has been corrected to show “24 November 2023” ORDERS
BRC 10843 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SNOW
Applicant
AND: MS CURRAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
24 NOVEMBER 2023
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the Independent Children’s Lawyer produce and circulate a draft interim order in accordance with the Reasons for Judgment delivered on 24 November 2023.
2.That these proceedings be adjourned for further submissions at 11.00am on 30 November 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
3.That the parties and the Independent Children’s Lawyer have leave to appear by telephone on 30 November 2023 by using the Microsoft Teams conferencing system as follows:
(a)They shall click the below link (if accessing this Order electronically) to join the Microsoft Teams conferencing system, by 10.55am on 30 November 2023; or
(b)They shall each telephone … by 10.55am on 30 November 2023;
(c)They shall each then enter the pass code …; and
(d)Hold the line until the Court is ready to connect and proceed with the matter.
ORDERS
BRC 10843 of 2021 BETWEEN: MR SNOW
Applicant
AND: MS CURRAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
29 NOVEMBER 2023
THE COURT ORDERS THAT:
UPON APPLICATION MADE TO THE COURT IN CHAMBERS
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That all previous parenting Orders be discharged.
2.That the parents have equal shared parental responsibility for the children, X born 2012 and Y born 2014 (collectively “the children”) in respect of every aspect of the parenting and development of the children, including but not limited to:
(a)the children’s education;
(b)the children’s religious and cultural upbringing;
(c)the children’s health; and
(d)changes to the children’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
3.That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision.
4.That notwithstanding the provisions of Order 2 herein:
(a)the mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her; and
(b)the father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.
Living arrangements
5.That the children live with the mother.
6.That the children spend time with the father as agreed between the parents in writing, but failing agreement as follows:
(a)From 9.00am on 9 December 2023 until 5.00pm on 13 December 2023;
(b)From 9.00am Boxing Day until 5.00pm on 27 December 2023;
(c)On X’s birthday 2024 from 1.00pm to 7.00pm;
(d)From 9.00am on 5 January 2024 until 5.00pm on 12 January 2024;
(e)For term one (1) 2024 commencing 26 January 2024 and each alternate weekend thereafter, from after school or 3:00pm Friday until 5.00pm Sunday or 5.00pm Monday should Monday be a public holiday;
(f)For the first half of the Queensland gazetted Easter school holidays, being from after school or 3.00pm on 28 March 2024 until 5.00pm on 6 April 2024;
(g)For term two (2) 2024 commencing after school or 3.00pm on 19 April 2024 until before school or 9.00am Monday and each alternate weekend thereafter;
(h)For the second half of the Queensland gazetted June/July school holidays being from 3.00pm on 30 June 2024 until 5.00pm on 29 June 2024;
(i)For term three (3) 2024 commencing after school or 3.00pm on 20 July 2024 until before school or 9.00am Monday and each alternate weekend thereafter.
7.That the children communicate with the father by phone/Skype/Facetime at 6.00pm each Wednesday and 6.00pm each Sunday that the children are not otherwise spending with the father, and in relation to such communication:
(a)the father to initiate the call to the mother’s mobile phone;
(b)the mother shall ensure the children participate in the call;
(c)the children are to have privacy during the call; and
(d)should the father’s call go answered, the mother shall initiate the call to the father for the purpose of the children talking to the father prior to 7.00pm on the said night. Should the children be unavailable for the call, the mother shall initiate the call to the father at 6.00pm the next night.
8.That changeovers not occurring at the children’s school/s shall occur at McDonald’s, Suburb C.
9.That the children remain attending their current schools except for 2024 in which X shall attend B School.
10.That from the commencement of the 2024 school year, the mother email the father within twenty four (24) hours if one or both of the children are absent from school, and the reason for that absence.
11.That the parents be restrained from:
(a)denigrating the other parent in the presence or hearing of the children, or allowing the children to be present whilst others are doing so; and
(b)discussing these proceedings, the consent of any of the Court documents with or in the presence or hearing of the children or allowing the children to be present when others are doing so.
12.That the parents shall do all necessary acts and things forthwith to facilitate the children to engage upon a psychologist at D Psychology at City E or another psychologist for non-reportable counselling as agreed between the parents in writing, and in that respect:
(a)the father provide the following documents to the children’s psychologist, and provide the mother proof of service:
(i)Child impact report prepared by Ms F dated 1 February 2022;
(ii)Family report prepared by Ms G dated 1 July 2022;
(iii)Reasons for Judgment delivered by the Honourable Justice Baumann on 24 November 2023; and
(iv)Any updated family report that may be prepared.
(b)the parents are to equally share the costs of the children’s psychologist;
(c)neither parent be present during the children’s psychologist sessions, unless requested by the psychologist; and
(d)each parent be at liberty to engage with the children’s psychologist in accordance with the psychologist’s recommendations.
13.That neither parent shall physically discipline the children.
14.That the father not lay down with or sleep in bed with the children.
Procedural orders
15.That after the release of the updated family report and by no later than 4.00pm on 19 April 2024, each party file and serve an affidavit setting out:
(a)how the current parenting arrangements have progressed; and
(b)their respective orders sought on a final basis.
16.That the Case Management Hearing listed 30 November 2023 be vacated.
17.That the Compliance and Readiness Hearing listed 23 February 2024 be vacated.
18.That these proceedings be adjourned for Case Management Hearing at 9.30am on 3 May 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
19.That the Independent Children’s Lawyer be at liberty to apply.
IT IS NOTED:
A.That the proceedings will return before the Court for Case Management Hearing before Justice Baumann on 3 May 2024, at which time it is anticipated:
a.the parties will have received the updated family report;
b.the parties will have identified the orders they contend be made on a final basis; and
c.the Court will consider listing the proceedings for Final Hearing.
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 Snow & Curran has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
The parents of two girls, X, born 2012, now aged 11 years and Y, born 2014, now aged nine years, have been the focus of their parent’s conflict since separation in January 2019. The latest event in the litigation pathway is a Review Application filed by the father, Mr Snow (aged 48 years) against orders made by a Senior Judicial Registrar on 19 October 2023. Those orders provided for the children to spend daytime visits with the father, supervised by a family member. The review application is opposed by the mother, Ms Curran (aged 51 years).
When The Review Application first came before me on 13 November 2023, it was apparent that the intention of the Senior Judicial Registrar’s orders had not been put into effect by that time. That was essentially because of an asserted failure by the father to have the appointed supervisor to execute an undertaking and also some issues about the availability of the supervisor having arisen. With some encouragement from the bench, I made consent orders on 13 November 2023 (effectively directed by me) permitting the supervised time to commence each alternate Saturday and Sunday between 9.00 am until 5.00 pm.
The Review Application was then adjourned for hearing to 20 November 2023 for submissions, which did occur. What follows are the Reasons for my decision to make orders different to those made by the Senior Judicial Registrar. I make it clear that I have not read the Reasons of the Senior Judicial Registrar, as this is not an appeal but a hearing de novo. As both parents were legally represented, the father by his solicitor, Ms Kannemeyer, and the mother by her counsel Ms Gajic-Pavlica they understood that a Review Application is a hearing de novo. And the hearing proceeded on that basis of the approach to be adopted for any interim hearing of a parenting matter, guided by the Full Court decisions such as Goode & Goode (2006) FLC 93-286 and Banks & Banks (2015) FLC 93-637.
Each party relied upon the affidavit set out in their respective case outline documents filed before the hearing conducted by the Senior Judicial Registrar – the father’s case outline, filed 7 October 2023; the mother’s case outline, filed 12 October 2023. Those case outlines provided a summary of their respective arguments – supplemented by the additional material and oral arguments. I also had the benefit of oral submissions from the Independent Children’s Lawyer, Ms Wiid, who filed a case outline on 15 November 2023.
The Independent Children’s lawyer principally relied upon the family report of Ms G – arising from interviews and observations conducted on 2 June 2022 and published on 1 July 2022. That is nearly 18 months ago. Sensibly, the Senior Judicial Registrar ordered an updated family report, an order which all parties say should remain and it is likely that a family report will be available, hopefully sometime after April 2024. As a result, the interim decision I am required to make is likely to apply for the next six months or so or even longer, if not disturbed prior to the final hearing, which is now not likely to occur until the second half of 2024.
COMPETING INTERIM PROPOSALS
The father contends primarily that it is in the best interests of the children that “equal time” regime be ordered, clearly without the constraints of supervision. The mother presses for the Application for Review to be dismissed, such that the orders for supervised time shall continue. The Independent Children’s Lawyer submitted that supervision is not necessary.
SHORT BACKGROUND
It is helpful to provide some short background to this matter for context. At the time of the parties cohabitation in 2009 (having met online) the mother was the primary carer of a daughter, H, born in 2009 and clearly only a baby at the time.
The father assumed the role of psychological father to H throughout the relationship. H, now aged 14 years, does not have a relationship with her biological father. Although at some stage of the proceedings Mr Snow sought orders to spend time with H, he no longer seeks such orders. The parents separated in January 2019, when X was seven years of age and Y was four years of age. Difficulties in the parties arranging agreed time between the father and the children occurred with the parents exhibiting levels of anger, disrespect and lack of trust.
The father eventually filed an Application for parenting orders on 17 August 2021, by which date all time between the children and their father had ceased. The mother says that was necessary because of serious allegations of sexual abuse being made by H against the father.
The evidence suggests that H made allegations to a counsellor in mid-2021 (for the first time) disclosing that in late 2020 (which is after separation and when the father was spending time with her), the father had grabbed her breasts while in a swimming pool, while she was wearing a bikini and that the father would regularly crawl into her bed and hold her in a strong way resulting in her being unable to move, which had been happening since she was aged 10 years of age. H expressed to her counsellor that the father “will keep touching the girls”, meaning her younger siblings.
These disclosures by H have been the subject of an interview pursuant to section 93A, which has been produced to the Court. However, I note that the alleged pool incident occurred in a public setting; that the father denies vehemently that any inappropriate touching occurred (which I infer could mean that unintended contact could have occurred whilst playing the pool); and that despite investigations by the police and the Department, no actions have been taken against the father; that the allegations so far as they represent an allegation that the father touched the child, H, for sexual gratification and the like, has not been substantiated in any manner by anyone.
Orders for supervised visits with the father, taking an understandable cautious approach at that time, were made in September 2021. Relevantly, after the publication of the family report where the report writer recommended the children commence unsupervised time, the parents entered into interim parenting orders by consent on 23 August 2022, which, inter alia, provided for graduating increases in the unsupervised time X and Y would spend with their father, such that from 24 February 2023, the children were to spend time with the father each alternate weekend from 9.00am on Saturday until 5.00pm on Sunday and some special occasions. No holiday time was ordered to occur – X being of school age at the time.
In the context of these orders and the fact that they seem to be operating well, when the matter came before a Compliance and Readiness Hearing Judge in December 2022, he was comfortable in listing the matter for a final hearing in Division 2 before a judge to commence in October 2023. In mid-2023, the mother again, unilaterally, ceased complying with the orders of the Court because, she says, of new disclosures made by the children, which I will deal with shortly. After the mother ceased time in mid-2023, the father filed an Application in a Proceeding seeking a suite of orders, including an urgent trial (it was already listed at that time for a trial in four months’ time); appointment of an Independent Children's Lawyer (which occurred, ultimately); and recommencement of time with him under the orders for unsupervised time, then, in case.
The Application in a Proceeding (“AIP”) came before the trial judge on 2 August 2023 when her Honour transferred the matter to Division 1 but did not deal with the AIP. The mother had not, at that time, filed any Response to the father’s Application in a Proceeding. However, the Division 2 judge decided that the mother was running a case now that the children, X and Y, are at a risk of sexual abuse as a result of disclosures made by X. The proceedings, as I say, were then transferred to Division 1, which removed the opportunity for this matter to have a trial in October 2022. As I have already indicated, this has caused a delay of what could be in the order of 12 months. That is quite regrettable.
The competing positions arising from the father’s Application in a Proceeding (which the mother did not formally respond to until 15 September 2023) came before a Judicial Registrar on 28 August 2023. As the transcript of the hearing before me demonstrates, I regarded this interim order as very insignificant.
Both parties were legally represented, and the orders by consent were made before the mother had filed a Response to the Application in a Proceeding. The orders relevantly provided that:
2.The father spend time with the children [Y] born […] 2014 and [X] born […] 2012 from 9.00am until 5.00pm on:
(a) Friday 1 September 2023;
(b) Sunday 3 September 2023;
(c)Both Saturday and Sunday of each alternate weekend commencing 16 September 2023.
(As per original)
Furthermore, the order provided that the father will not lie down or get into the children’s beds with the children during time they spend in his care.
Clearly from the order, no supervision for daytime visits with the father was ordered, although, as I say, there was a restraint about lying in the bed with the children. Interestingly and curiously, somewhat, the mother’s Response to the Application in a Proceeding filed 15 September 2023 after the Orders of 28 August 2023 sought the following orders (clearly opposing the father’s application for equal time), namely:
1.That the children live with the Mother;
2.The father spend time with the children [Y] born […] 2014 and [X] born […] 2012 from 9.00am until 5.00pm on: Saturday and Sunday of week 1 and week 2 in a fortnight, and each alternate fortnight thereafter commencing 20 October 2023.
3.The father will not lie down or get into the children’s beds with the children during time they spend in his care.
4.That the child [Y] born […] 2014 and [Y] born […] 2012 attend upon psychologists at [J Psychology, Suburb C] and that the Mother and The Father equally contribute to the out of pocket expenses of the children attending on Psychologists at [J Psychology].
(As per original)
Again, it is significant, in my view, and at that stage, the mother was not raising a concern such that she was seeking orders for supervised time. At some stage during the hearing before me when I raised this curiosity, I was told that I should see the consent order made before the Judicial Registrar on 28 August 2023 as a “holding order”. It makes no sense to me, however, that if there is a “holding order for unsupervised time” that there should, therefore, be any argument about supervision at some later stage unless some new evidence arose. As I say, it follows logically, unless the mother is acting disingenuously, that even at 13 September 2023 (despite what her legal representatives represented to the Division 2 judge on 2 August 2023), the mother could not have seriously been concerned about the children spending unsupervised time with the father (at least during the day).
I say “unless acting disingenuously” because in submissions made by the father’s solicitor to me, she points to the concerns raised by Ms G about the mother’s presentation and the opinion she expresses about the mother’s capacity to support the father’s relationship with the girls. This is certainly a triable issue. The mother is clearly on notice, both from the report of Ms G and the father embracing a desire for, at least, equal time, that her role as the primary (almost exclusive parent) is under some challenge by the father. It follows from the history that, consistent with authority, I caused the parties’ submissions to be focused on what has changed from the consent position on 28 August 2023 to escalate the risk to the children, being such that in their father’s unsupervised care, he presents a risk.
This focus identifies the competing primary considerations in section 60CC(2), of which the Court must, of course, give greater weight to 60CC(2)(b). Frankly, when the children had expressed a wish to spend time with their father to Ms G (although they did express concerns about his yelling and perhaps his physical disciplining), most of the additional considerations prescribed under section 60CC(3) need little analysis at this time. I do acknowledge there is a clear difference in parenting styles between the mother and father apparent from all the data before me. The disputes as to property issues did not help and clearly have raised their head, as the material I soon refer to make clear. This has made some of the post-separation relationship and potential trust quite problematic. I cannot ignore the potential influence that H’s attitude to the father could well be having on the capacity for X and Y to engage with their father. These triable issues, as well as how the mother navigates support for H (and her views about the father) and the need to support X and Y’s right to a meaningful relationship with their father (if it is safe) will be further assessed at the time of the updated family report and a focus of any final hearing.
WHAT HAS HAPPENED SINCE AUGUST 2023
The mother contends that the risk the father presents to the children requiring supervision, again, arises from the following:
(a)The section 93A interviews of X, in particular, which was conducted are in mid-2023. The tape is before the Court. That discussion with X commenced at 4.41 pm and ceased at 5.47 pm. It was a long discussion undertaken by highly experienced police investigators (see Exhibit 1).
(b)The Department’s opinions (see Exhibit 2).
(c)Particularly having viewed the subpoenaed notes from the counselling sessions conducted by Ms K of the organisation, “[J Psychology]” (Exhibit 4).
The father contends that:
(a)Nothing inappropriate has occurred after orders for time, being unsupervised, remained in August 2022, and then, in part, confirmed by the consent orders of 28 August 2023. He says all matters raised by the children have innocent explanations.
(b)The mother is, he claims, manipulating, coaching, influencing or otherwise encouraging the children to make untrue comments about him and/or is “fabricating” allegations. Clearly, these are very serious allegations which could not in any way be found to exist without proper testing of all the evidence.
(c)The father is most concerned about the children’s school attendances. In fact, as his solicitor submitted, one of the major reasons he seeks an equal time arrangement is that at least the children will go to school half of the time with him.
DISCUSSION
The absence of evidence before me and aware of the limitations to making findings of disputed facts (which, of course, does not mean I am entitled to ignore concerns raised, even if the evidence at this stage does not appear strong), I deal with the core concerns as follows.
Police Interview
The interview of X, which as I say goes for some one hour, begins with this, almost, immediate discussion.
Police: Tell me what you’ve come here to talk to me about, [X].
[X]: I’ve come here to talk about my father being abusive and sexually touching me while my mum and there’s no supervisors around.
Police: Tell me everything about your dad being abusive and sexually touching you when your mum and supervisors aren’t around.
I do not propose in these Reasons delivered ex tempore to record large slabs of this section 93A interview. What I can say, however, is that it is clear that X was very much prepared for the beginning of the interview to make allegations against the father. Of course, I do not know at this stage what other discussions have taken place with X before she commenced the interview with the police. However, even accepting that that could have occurred (but may not have occurred), the nature of the allegations are vague, without precision and, at the very least, allegations of touching which could have an innocent and unintended intent. More than that, however, the comments made by X to police have a flavour of being highly negative of the father, and protective of Y who, she said, had been the subject of physical abuse by the father.
The Independent Children's Lawyer’s submission, having also read and viewed the section 93A interview, was that there was nothing in that interview that would cause a concern of unacceptable risk. That, of course, not surprisingly, was the position adopted by Ms Kannemeyer on behalf of the father. Ms Gajic-Pavlica of Counsel for the mother was less certain about that, but could not, on the face of the interview and what the child said, press for a much stronger view at this stage. I accept when children are interviewed, even by experienced police officers, it would be a daunting experience. I accept that they may well be more easily examined by someone with whom they have a close and therapeutic relationship.
Department Notes
In that regard, I now turn, after dealing with the department’s notes, to the very extensive counselling notes I was invited specifically by the mother’s Counsel, to read. It being, more than anything, the new information that she says has caused her to persist with an application that time be supervised. The records produced at this stage reveal a report was received on 7 June 2023. The heavily redacted records identifies concerns of “[Mr Snow] had been yelling at the children”; physical contact on Y resulting in a hand print from alleged smacking; that the father “came into [X’s] bedroom twice and laid with her and put his hands under her privates”. The note records and confirms awareness of the early allegations related to H, which the Department noted, “were deemed not sexual and not an offen[c]e”, before further recording that:
The information from the notifier was difficult to decipher and work through as there was lots of information [redacted]. The most concerning information provided was around the smack to [Y] leaving a hand mark and the allegations that [Mr Snow] touched [X’s] privates.
The information around the touching of the privates was vague and lacked detail and specification [redacted]. The veracity of the information is difficult to assess [redacted]. The information will be screened as a CCR at this time, but provided to QPS should the police speak to [X] or [Y] and deem that the allegations have a basis, an investigation and assessment should be considered but at this time [redacted] there is insufficient evidence to warrant a child protection notification.
(As per original)
The current evidence of the QPS did not take any action after the section 93A interviews and as a result, the Department has not investigated the matter further. It does not appear as if the father has ever been investigated by or interviewed by either the department or the police.
Although I accept authorities like the police and the Department have onerous statutory obligations that they must fulfil, their investigative powers are extensive and directed to a different threshold test they are required to apply. I accept that the police are required to consider whether there is sufficient evidence to launch a prosecution. The Department are exercising a child protective overview. However, the Court is not entitled to ignore that both the department and the police have taken no action to proceed further on the evidence available to them.
Counselling notes
The counsellor who appears to have been preparing notes is the same person who has previously offered therapeutic support to H. It is not possible to be sure whether the background facts and narrative she has received has been informed by any other person other than the mother and the children. There is, for example, no evidence that she has had the benefit of the background data collected in this matter for the court proceedings. Furthermore, although I have looked at the notes tendered, there are large gaps and I cannot be satisfied that every note has been produced. There is no information as to why there is, in one case, an absence of any notes for almost 12 months. Accepting these possible limitations of the notes marked Exhibit 4, they highlight these most significant issues, in my view, at this stage:
(a)The first consultation note of November 2021 shows that that was a joint consultation with X and Y. They were consulted together, and at least part of the note says that the children shared with the counsellor that: “father has cheated and stolen from [X] and family”. This concerning comment so early post-separation has likely come from a parent to the child and is of such a nature it is reasonable to infer the mother made the comment, or it was overheard by children if the mother was having an adult conversation with somebody. Concerns about the mother’s ability to regulate her negative comments about the father are raised, but not yet tested, in the family report.
(b)In interviews in November 2021, Y complained about the mother yelling when she is naughty; X said she was looking forward to seeing the father at L Contact Centre and felt he “won’t hurt me” there.
(c)In December 2021, Y is recorded as making a comment about the father putting his hand on her “bum” when sleeping. How she could possibly know that is what occurred is not clear. It needs to be remembered how young Y was at the time. X describes some concerns at school, including that she “pushed a girl off a chair” and felt “everybody was against her”. She is recorded as saying she “believes the father has touched [Y] on their bum”, but the basis of her belief is not known.
(d)X shared in February 2022 views, she says, the father told her about his own abusive father and childhood. X, never having known her paternal grandfather. She was aware of Court proceedings. Y expressed that she felt very fine at visits with the father and that he often accompanied those visits with presents.
(e)By March 2022, X described the father as “good” and “nice to her”, as did Y.
(f)In May 2022, Y expressed her visit with the father was “pretty good”. X expressed concerns about Y being “allowed to get her own way” and that visits with father “were getting better”. She did, however, make some negative comments about the father, including:
(i)He burns cigarettes out on kids.
(ii)Father cheated on mother and is mean to her.
(iii)Has told the father “that he can’t sleep in bed with me”.
(g)Four months later in September 2022, X was sharing her perspective of getting into fights at school; being punched at school by another girl; H being mean to her, kicking and punching her; saying that she has her own bed at the father’s home; and expressed concerns about her mother’s financial position as the father doesn’t pay child support, which is not “fair”. Again, how this child knew this information, even if true, is troubling. Y said things were nice at her dad’s home and that she likes being at both Mum and Dad’s.
(h)No notes are provided between September 2022 until August 2023, when X now is recorded as saying that:
(i)The father smacked Y on a butt cheek and left a mark.
(ii)She had been hiding from the father when he came to see her at school (noting this is a time when the mother had unilaterally ceased all time between the children and the father).
(iii)The father is speaking badly about the mother
(iv)That the father had them “kicked out of the house and he moved in”.
(v)The father brought heated blankets a few weeks ago, but that he had “touched her private parts by saying that he was feeling the warm under the blanket”
(vi)The father would tell her “she was sexy in clothes”.
(vii)The father came into her bed “and held her with his arm around her, touching her breast”.
(i)Again, I remind myself of the age of the child. It is noted that this consultation occurred after the mother had unilaterally stopped all time with the father before she consented to the children spending unsupervised time with the father on 28 August 2023. seemingly, because she was unaware of the allegations, that is, at the time she consented the order, these allegations had never been mentioned to her by her children. That is the mother’s case.
(j)The last notes are of a consultation in August 2023. I do not see the need to as closely record in these reasons what the children said, but I have read the note. I was concerned that Y expressed the father had been stalking them. It is not clear who “them” was, and the notes further include:
(i)Y said the father is not “kind” anymore. This is at a time when she had not seen the father for, at least, two months.
(ii)X confirmed that she had been suspended from school and was not able to go to camp. X said the father “fat shamed” her into weight loss.
(iii)The father “tried to run her mother over at [M Shopping Centre] when she was with a client at work”. Again, how possibly could the child know anything about these facts other than from the mother or someone on behalf of the mother is unclear.
The difficulty in trying to make some sense of these notes is that there is no context provided. They are merely comments made. I do not criticise Ms K for that. Her role is not to gather evidence for the Court, but to provide therapeutic support to the children. But I do note that, clearly and increasingly, the children have made negative comments about the father about – and about adult issues, which would fit as a narrative also expressed by the mother in her material. Alarmingly, the negative comments have increased when the mother ceased time and was the only likely person speaking to the children. The difficulties that X experiences at school, as I will next refer to, may, to some extent contribute to, the irregular school attendance that the notes reveal.
Even if I accept – which on an interim basis I am almost bound to do – that the mother did not know about some of the comments recorded by the children’s counsellor when she consented to the orders of 28 August 2023 (with the benefit of legal advice) I am sufficiently concerned about a number of comments made by the children that could only have come from the mother and that the father’s conduct towards the mother and more generally the family. In these circumstances, other comments made by the children may – I do not say have – at least been shaped by the children’s perception of their mother’s anger, and distress and her disappointment.
It is fair to record that if, at a trial, when properly tested, the court was to find the mother has continued to involve the children in adult issues and negative comments about the father in the way that at least some of these notes suggest. Then the father’s view that the mother presents as an unacceptable risk of emotional harm to the children may well be established. At this stage, of course, I make no such finding.
School Records
I have considered the data provided about school absences and the child’s current School policy of non-attendance for sickness (Exhibit 6) and although the numbers of non‑attendance/absences seem high, without further context I cannot confidently accept the father’s submission that the only way these children will go to school in the future is if they live with him at least 50 per cent of the school term.
CONCLUSION
I have carefully considered the current available evidence with the limitations that are apparent in any truncated hearing where no findings should be made unless absolutely clear. However, I have formed the view that I can not accept that the children are at risk in spending unsupervised time with the father including, in my view, overnight time, provided some conditions that I intend to impose are complied with as follows, and I ask that the Independent Children’s Lawyer make a note of these conditions:
(a)The father shall not lie with or sleep in a bed with the children. Although I accept many children enjoy and seek out a cuddle with a parent, for girls of this age, the father should not do so and expose himself to further allegations by allowing physical contact on a bed to occur.
(b)Neither parent shall physically discipline the children.
I have considered whether I should make an order that the parents not yell at the children but, in my view, that would be difficult to interpret and then enforce. A child may feel that the tone or volume of a parent’s voice is yelling where it may not be. I should say that in this regard, I had at one stage an attempted tender of a photograph which, having looked at it, was of such poor quality that it did not establish a mark at all. I was told that the photograph had been taken by H. Why the mother, who sought to tender the document would try to introduce that evidence in that way might be a matter for another day. However, I ruled then and confirm now that, in my view, the evidence – because of its lack of quality – had hardly any probative value and was, to some degree, so prejudicial that its admissibility was excluded.
I am, however, prepared to accept from all the evidence that the father may have smacked Y. There is no evidence before me at this stage that this is a repeated behaviour. He should find ways and use other strategies for managing child behaviour other than physical. Both parents are reported by the children to raise their voices or yell. The parents need to better understand that, when they do so, it makes their children feel sad. If they need to undertake or obtain further assistance to help control their emotions or reactions, they should seek out such assistance and guidance.
When the new school year starts and as the children will remain living with the mother on an interim basis until the trial, I will order the mother is to email the father if the children or one of them does not attend school and the reason for that non-attendance.
The father is encouraged to engage with the school authorities, not so as to “gather evidence” but rather to see how he might better support X in particular to see the benefits of attending school and getting on better with people and her peers. Her behavioural issues, at least at some level, could cause her to be excluded from the sort of benefits of social interaction that school is designated to offer. It will also have an adverse effect on her self esteem if she is unable to feel happier at school.
The level of poor and ineffective communication, in my assessment, makes an equal time order contraindicative at this time and not in the children’s best interests. The children have not spent any substantial block time with their father since separation, and as I will discuss, I intend to make orders which are in the children’s best interests to remedy that lack of meaningful block time. If the orders I make are sought by either parent to be undermined and if they learned nothing from the objective and independent assessment of the current evidence as set out in these reasons then, sadly, by the time we reach a final hearing, likely to be in the second half of next year, the options for further parenting arrangements might have to be less inclusive so as to spare these two delightful little girls the emotional pain of managing their parents’ unrestrained at times conflict and dysfunction as co-parents.
FORM OF ORDER
Based on these reasons and my view at this stage of the evidence, I propose to make interim orders subject to hearing further submissions from the parties as I have earlier indicated on Thursday, 30 November at 11 am. At this stage, subject to those submissions, I intend to order at least:
(a)That the parties have, on an interim basis, equal shared parental responsibility. In my view, both parties should be involved in major long-term decisions for their children. Notwithstanding their poor communication, the limited number of major decisions they need to make should be able to be negotiated by these parties acting sensibly. I do not wish to exclude one parent or the other with the control that an order for sole parental responsibility brings with it. By the time we reach a final trial, that situation might be different;
(b)I will provide an order for the children to live with the mother and continue to attend their current schools or, as I understand is likely to occur next year with X, for her to attend the B School, which is a campus across the road from her current primary school. That seems to at least allow many of her peers at primary school to follow her to the B School which would be beneficial for her; and
(c)Immediately commencing and for the balance of this school term, the children shall spend time with the father each alternate weekend from 9 am Saturday to 5 pm Sunday. I will hear submissions at a later stage on an appropriate changeover location when changeover does not occur at the children’s school.
(d)Over the Christmas school period, I propose to order time with the father around the Christmas Eve/Christmas Day/Boxing Day period shared in some way with the mother appropriately.
Again, I would encourage the parties to discuss that matter before they return to the court next week. I also propose to order a block of four nights for the children to spend with the father in the first half of the Christmas school holidays and a block of seven nights in the second half of the Christmas school holidays with the father, if he is available. The children are to be returned to the mother’s home at least a week before school restarts so that she can prepare them for their new school year. For the first term of the 2024 school year, the children shall spend alternate weekends with the father from after school Friday until 5 pm Sunday extended to 5 pm Monday if Monday is a public holiday.
The children will spend the first half of the end of term 1 school holidays (Easter school holidays). From the commencement of term 2, 2024 school term, the children’s time with the father shall increase to after school Friday to before school Monday each alternate weekend. I would expect if an updated report is available after Easter 2024 that the matter will benefit from a further case management hearing before a Registrar before it may proceed to be listed for a trial. Provision at least for X’s birthday and Mother’s Day in May 2024 should be considered and incorporated into current interim orders.
I have indicated conditions I intend to impose earlier in these Reasons, together with fairly standard restraints which have been made previously agreed to, particularly against the parents speaking to the children about adult issues or court matters and making derogatory or hurtful comments about the other parent to or in the presence of the children.
I am concerned that if the children are to attend any therapeutic counselling, that it be someone new (no criticism is intended to be made of Ms K - but she commenced as counsellor for H which is entirely appropriate if that is what the mother decides). That next counsellor should have the benefit clearly of:
(a)these reasons,
(b)the family report; and
(c)the continued input from both the mother and the father who should, unless otherwise appropriate, meet the costs of the counsellor for their children.
Whether they are candidates for a mental health plan is a matter for a general practitioner to prescribe and not for the court to order.
I accept that an order to incorporate this provision for the counselling will need careful drafting. It is not clear whether telephone time has been a problem in the past. If it is, there should be a specific order. My view would be that at least the children should speak to the father when living with the mother each Wednesday and each non-contact Sunday, however, I am flexible about what might work best for the children in view of their other commitments. As indicated at the commencement of these reasons, I will ask the independent children’s lawyer, who I note today is represented by an agent, to do her best to produce and circulate a draft interim order in accordance with these reasons. I will otherwise list the matter for further submissions at 11 o’clock on 30 November 2024 with all parties having leave to appear electronically.
ADDITIONALLY
On 30 November 2024, after taking further submissions on a draft order circulated (as directed) by the Independent Children’s Lawyer, I made the interim orders which appear at the commencement of these Reasons.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 20 December 2023
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