Sokoloff & Sokoloff
[2024] FedCFamC1F 509
•31 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sokoloff & Sokoloff [2024] FedCFamC1F 509
File number: MLC 8362 of 2021 Judgment of: HARTNETT J Date of judgment: 31 July 2024 Catchwords: FAMILY LAW – PARENTING – Where the father seeks sole parental responsibility – Where the mother seeks equal shared parental responsibility – Where the Court finds the mother does not have any desire to support the children’s relationship with the father – Where the father seeks a change of residence order – Where a change of residence order is made – Where there is family violence – Where the parties have a highly conflictual co-parenting relationship – Where there is parental alienation – Where the children’s best interests are promoted by a moratorium on their time with the mother – Where the father’s evidence is preferred – The father to have sole parental responsibility – The children to live with the father – The children to have no contact with the mother for 12 weeks – Changeover of the children to be enacted at the Melbourne Registry with attendance by the ICL and a Family Consultant. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 65AA, 65DAA, 65Y, 67Z, 68Q, 68P
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.04
Cases cited: Blinko & Blinko [2015] FamCAFC 146
CDJ v VAJ [1998] HCA 76
Goode & Goode (2006) FLC 93-286
Isles & Nelissen (2022) 65 Fam LR 288
M v M (1988) 166 CLR 69
Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92
Mulvany & Lane (2009) FLC 93-404
Potter and Potter (2007) FLC 93-326
Re C and B (Children) (Care Order: Future Harm) [2001] 1 FLR 611
Russell & Close [1993] FamCA 62
ZP v PS (1994) 181 CLR 639
Division: Division 1 First Instance Number of paragraphs: 391 Date of last submissions: 15 April 2024 Date of hearing: 20 – 24 November 2023; 27 November 2023; 29 February 2024 – 1 March 2024 Place: Melbourne Counsel for the Applicant: Ms Dellidis Solicitor for the Applicant: Aston Legal Group Counsel for the Respondent: Ms Taylor Solicitor for the Respondent: Robinson Gill Counsel for the Independent Children's Lawyer: Mr James Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 8362 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SOKOLOFF
Applicant
AND: MS SOKOLOFF
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
31 JULY 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The father have sole parental responsibility for decisions regarding the long-term care, welfare and development of X born 2012 and Y born 2014 (collectively known as “the children”) including determining:
(a)any medical or health issue; and
(b)any allied health issue, including psychological or psychiatric treatment or counselling.
3.The father inform the mother in writing of any decision he has made regarding the long term care, welfare and development of the children as soon as practicable upon making such decision.
4.The children live with the father from 11.00am this day.
5.Changeover is to be effected at the Court Children’s Service of the Commonwealth Courts Building as directed by the Director of Court Children’s Services (Victoria) in consultation with the Independent Children’s Lawyer (“the ICL”). At changeover, the ICL and/or counsel for the ICL and a Family Consultant shall be in attendance.
6.The mother after delivery of judgment shall forthwith leave the Commonwealth Courts Building, and not return to within 500 metres of the Commonwealth Courts building for a period of 24 hours, and the children shall remain in the care of the Court Children’s Service, and the mother shall not further interact with the children.
7.The father shall attend upon the Court Children’s Service as directed by the Family Consultant and follow the instructions of the ICL and Court staff.
8.Prior to changeover being effected the ICL and/or counsel for the ICL shall explain to the children in the presence of the Family Consultant the Orders as made by the Court.
9.There is liberty to the Family Consultant to obtain the services of MSS Security and/or Victoria Police to assist in the handover of the children from the mother to the father.
10.The father is to forthwith engage Ms B, psychologist, or such other psychologist as recommended by the ICL at the father’s expense, to provide therapeutic support to the children as may be agreed between the father and Ms B, or other psychologist, to assist with:
(a)the transition of the children into the father’s care;
(b)supporting the children with respect to compliance with these Orders; and
(c)to provide reportable therapeutic support, with such therapy to continue for a period not exceeding twelve (12) months and the costs of same to be met by the father.
11.For a period of twelve (12) weeks (“contact moratorium period”) from the making of these orders, the mother, her servants and/or agents be and are hereby restrained from spending time or communicating with the children by any means, including mail, telephone, email, text message or social media.
12.Upon compliance with, and upon the conclusion of the contact moratorium period, the children shall spend supervised time with the mother. Such supervision shall be by C Family Services or like supervision provider as selected by the father, and as paid for by the parties equally. Such supervised time is to occur for a period of eight (8) weeks for up to four hours each Sunday (“supervision period”).
13.After the completion of the supervision period in accordance with Order 12, and for a period of eight (8) weeks, the children shall spend time with the mother each alternate weekend from 6.00pm Thursday to the commencement of school, or 9.00am on Monday, unless the Monday is a public holiday in which case such time shall extend to before school, or 9.00am on Tuesday.
14.Thereafter the children shall spend time with the mother each alternate week, including during school term holidays, from the conclusion of school on Monday (or 3.30pm if a non-school day) until the conclusion of school the following Monday (or 3.30pm if a non-school day).
15.Such further or other time spent with between the children and the mother shall be as agreed between the parties in writing.
16.During the contact moratorium and supervision periods:
(a)in the event the children contact or communicate with the mother, the mother shall not respond to such contact or communication and shall report such contact or communication to the father via email within 24 hours of her receiving it;
(b)in the event the children attend upon the mother at her home, or any other location save as explicitly outlined in these Orders, the mother shall report the same to the father and shall do all things necessary to facilitate the children’s return to the father;
(c)the mother shall be at liberty to contact the children’s school in a manner approved by the school but not to include the mother’s personal attendance at the school to obtain updates in relation to the academic progress of the children, and the mother shall be at liberty to provide a copy of these parenting orders to the children’s school as authority for same and the mother shall otherwise be restrained from contacting or personally attending upon the children’s school;
(d)the mother shall be restrained by injunction from:
(i)attending at, or being within, 200 metres of the residential address of the father, the residential address of the father’s parents, or any premises at which the children are living or temporarily staying; and
(ii)attending at, or being within, 200 metres of any venue where the children are undertaking extracurricular activities, including the children’s sports club.
(e)the father have sole discretion to:
(i)restrict the children’s access to telephones and electronic devices;
(ii)determine the children’s attendance at school and extra-curricular activities;
(iii)enlist the assistance of Dr D and/or Dr E, to provide him with advice or support regarding the formulation of a safety plan and devising risk minimisation strategies with respect to the children, at the Father’s expense;
(iv)enlist assistance of his mother, father, brother, sister-in-law with his care of the children and operation of these Orders; and
(v)be at liberty to travel interstate on a holiday with the children during the moratorium period.
17.For the purposes of the supervision period:
(a)the parties share equally in the cost of supervision;
(b)the times on Sunday be as agreed between the parties in writing, in consultation with C Family Services,
(c)changeovers take place at a venue to be agreed between the parties in writing in consultation with C Family Services; and
(d)each party comply with all lawful directions of C Family Services including submitting application forms in a timely manner.
18.At all times the children are in her care, the mother, her servants, and agents be and are hereby restrained from:
(a)causing the children to attend upon any medical practitioner except in the event of a medical emergency;
(b)causing the children to attend upon any psychologist, therapist or counsellor without the express written consent of the father;
(c)denigrating the father and members of his family in the presence or hearing of either child, or allowing them to remain in the presence of anyone so doing;
(d)discussing these proceedings and the allegations in these proceedings in the presence or hearing of either child, or allowing the children or either of them to remain in the presence of anyone so doing;
(e)permitting the children to view any material filed or tendered in these proceedings;
(f)permitting the children to hear, attend with, or be present at, any appointment for the mother with a counsellor, therapist, psychologist or medical practitioner; and
(g)directing, authorising or permitting another person to do the things prohibited in the aforementioned sub-paragraphs.
19.Each parent, their servants or agents, aside from as provided by these orders, be and are hereby restrained from:
(a)abusing, insulting, belittling, rebuking, stalking or otherwise denigrating the other parent, or allowing any other person to do so in the presence and/or hearing of the children or either of them;
(b)discussing these proceedings or the contents of any court-related documents filed in or intended for use in these proceedings with or in the hearing of the children or either of them, or with or in the hearing of the public, or allowing any other person to do so;
(c)allowing either of the children to attend with, or be present at any appointment for the parent with a counsellor, psychologist or general practitioner;
(d)permitting either child to view any material filed or tendered in these proceedings; and physically disciplining the children or either of them; and
(e)leaving the children in the sole care of an adult unknown to the other parent unless agreed between the parents in writing.
Special Occasions
20.From 1 December 2024, notwithstanding any other order to the contrary, the children spend time with each parent on special occasions as follows:
(a)for Christmas:
(i)in 2024 and even numbered years thereafter, with the father from 4.00pm Christmas Eve until 4.00pm Christmas Day in 2024 and with the mother from 4.00pm Christmas Day until 4.00pm Boxing Day; and
(ii)in 2025 and odd numbered years thereafter, with the mother from 4.00pm Christmas Eve until 4.00pm Christmas Day in 2024 and with the father from 4.00pm Christmas Day until 4.00pm Boxing Day.
(b)on the children’s birthday, with the parent in whose care they are not already in, from the conclusion of school, or 4.00pm if a non-school day, until 8.00pm;
(c)on each of the parent’s birthday from the conclusion of school, or 10.00am if a non-school day, until 8.00pm;
(d)during Easter as follows:
(i)in 2025 and odd numbered years thereafter, with the mother from 4.00pm Easter Thursday until 4.00pm Easter Saturday and with the father from 4.00pm Easter Saturday until 4.00pm Easter Monday; and
(ii)in 2026 and even numbered years thereafter, with the father from 4.00pm Easter Thursday until 4.00pm Easter Saturday and with the mother from 4.00pm Easter Saturday until 4.00pm Easter Monday;
(e)with the father from 10.00am on the Saturday immediately preceding Father’s Day until the commencement of school on Monday following Father’s Day;
(f)with the mother from 10.00am on the Saturday immediately preceding Mother’s Day until the commencement of school on Monday following Mother’s Day; and
(g)at any other time as agreed between the parties in writing.
Long Summer Holidays
21.From the long summer holidays commencing in 2024, on a week-about arrangement commencing as follows:
(a)in 2024 and 2026 with the father from the conclusion of school for a period of seven (7) consecutive nights;
(b)in 2025 with the mother from the conclusion of school for a period of seven (7) consecutive nights; and
(c)as may otherwise be agreed between the parties in writing.
22.From the long summer holidays commencing in 2027, the week-about arrangements be suspended, and the children live with each of the father and the mother as follows:
(a)in 2027 from 4.00pm on the middle day until the recommencement of school, and each alternate year thereafter, with the father;
(b)in 2028 from 4.00pm on the last day of school until 4.00pm on the middle day, and each alternate year thereafter with the father; and
(c)otherwise with the mother; and/or
(d)as may otherwise be agreed between the parties in writing.
23.For the purpose of these orders, all long summer holidays shall be the holiday period as published by the school (which includes the school website) the child attends and include pupil free days falling either side of such holiday period.
24.Where one of the children has a longer school holiday period than the other child, the school holiday period will be calculated based on the longer school holiday period.
Changeovers
25.Save as otherwise provided in these Orders, changeovers take place as follows:
(a)at the children’s school on school days; and
(b)on non-school days, at the mother’s residence at the commencement of the children’s time with her and at the father’s residence at the conclusion of their time with the mother.
26.The father is at liberty to have his parents or either of them assist him in the operation of these Orders.
Information and Communication
27.The parents keep each other informed in writing of:
(a)Their current residential addresses and contact telephone numbers, including mobile phone numbers at least seven (7) days prior to the change where practicable and otherwise, as soon as possible after the change.
28.Each parent communicate with the other regarding the children and the operation of these Orders:
(a)by utilising the AppClose communication App;
(b)by text message in the event of an emergency; and
(c)as may otherwise be agreed between the parties in writing.
29.In the event of an emergency, the parents may communicate by text message or telephone.
Medical
30.The parents keep each other informed in writing of:
(a)all serious illnesses and/or injuries sustained by the children or either of them whilst in their respective care requiring medical attention and notify the other parent of the name and contact details for the treating medical practitioner as soon as practicable; and
(b)details of all medication prescribed to and administered to the children or either of them in the 24 hours prior to all changeovers, and in the event prescription medication is to be administered to the children or either of them during the other parent’s time with the children, the medication be exchanged at changeover together with instructions as to timing and dosage.
31.Save as otherwise provided in these orders, each parent:
(a)be at liberty to communicate with any medical or health practitioner and allied health professional upon whom the children attend; and
(b)be at liberty to receive all reports prepared by any medical or health practitioner and allied health professional upon whom the children attend.
Education
32.The mother forthwith do all acts and things required to ensure the father is listed as the emergency contact for the children at their respective schools;
33.Save as otherwise provided in these orders, each parent be at liberty to:
(a)communicate with the children’s schools;
(b)attend for separate parent-teacher interviews and special school events to which parents are normally invited such as such as concerts, sports days, graduation or like events;
(c)receive all notices, school reports, applications for photographs and like information normally provided to parents;
(d)access all school-based Apps to which parents are ordinarily provided access; and
(e)each parent do all things to ensure both parents are named as emergency contacts on the children’s school enrolment forms.
Travel and Passports
34.Pursuant to s 65Y of the Family Law Act 1975 (Cth) (the “Act”), each parent be at liberty to travel outside of Australia with the children during any period the children are in their care in accordance with these Orders, for the purposes of a holiday, provided that:
(a)The travelling parent provides 30 days’ written notice of their intention to travel, together with an itinerary, a copy of return flights, the addresses where the children will be staying and a contact telephone number upon which the travelling parent and the children may be reached; and
(b)Any travel does not unreasonably interfere with the other party’s time with the children and if so, that any missed time with the children be made up upon their return from travel.
35.Each parent do all such acts and things necessary to obtain an Australian passport for each of the children at their equal expense.
36.The father retain in his possession X’s passport and the mother retain in her possession Y’s passport and each parent provide to the travelling parent the relevant passport at least seven (7) days prior to travel and return same within seven (7) days of returning to Australia.
Dissemination
37.The father have leave to provide a sealed copy of these Orders and any Reasons for Judgment to:
(a)any medical, health or allied health practitioner upon whom the children may attend;
(b)Dr D;
(c)Dr E; and
(d)Dr F.
38.The father have leave to provide copies of the filed affidavits of Dr F and Dr D and a sealed copy of these Orders and any Reasons for Judgment to:
(a)Ms B; and
(b)any other medical professional engaged by the father for reportable counselling or therapy;
39.The father have leave to provide a sealed copy of these Orders to:
(a)the Registrar of the Magistrates Court of Victoria at … or …;
(b)the Commissioner of Victoria Police;
(c)the Department of Families, Fairness and Housing, Child Protection Service;
(d)the Principal of the children’s school; and
(e)C Family Services.
Inconsistency With Intervention Order
40.Pursuant to ss 68Q and 68P of the Act, the Court declares that, to the extent that any of these orders conflict with the extant Intervention Order against the father in favour of the mother (No. …) or any extension of the Intervention Order, then the Intervention Order is invalid to the extent of the conflict.
Independent Children’s Lawyer
41.The order appointing the Independent Children’s Lawyer be discharged seven (7) days after the making of these Orders.
42.All extant applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sokoloff & Sokoloff has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
PRELIMINARY
This matter is one where each of the parties sought final parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of their two children X born 2012 and Y born 2014 (“the children”). The parenting orders’ trial occupied a period of eight days. The competing property applications of the parties that were earlier before the Court concluded with consent orders being made on a final basis on 22 March 2022.
An Independent Children’s Lawyer (“the ICL”) joined the proceeding by orders made on 20 September 2022.
On 3 May 2023, orders were made transferring the proceedings from the Federal Circuit and Family Court of Australia (Division 2) to the Federal Circuit and Family Court of Australia (Division 1) (“the Court”).
The issues in dispute between the parties in respect of the care of, and responsibility for, their children, were extensive. They included competing parental responsibility orders; live with orders; spend time and communication orders; and other matters as detailed below.
During the course of the proceeding, the mother abandoned the unacceptable risk aspect of her case and shifted to a proposal for the father to spend substantial and significant time with the children in a five nights a fortnight school term arrangement, together with special occasion and school holiday time.
The hearing predated the amendments made to Part VII of the Act which commenced to operate on 6 May 2024.
ORDERS SOUGHT
The father sought final orders relevantly, that: he have sole parental responsibility for the children; the children live with him; the mother attend upon the Melbourne Registry to effect changeover of the children to the father’s care; there be a three month contact moratorium upon the mother’s time and contact with the children; after the moratorium period the children spend supervised time (engaging C Family Services) with the mother for a period of three months with the mother to pay the costs; upon conclusion of the supervision period and for a further period of three months the children spend time with the mother each alternate weekend from the conclusion of school Thursday until the commencement of school Monday; upon conclusion of the weekend period and thereafter the children spend time with the mother each alternate week from the commencement of school on Monday until the commencement of school the following Monday; special occasion time; and school holiday time. The father further sought to have sole discretion to: restrict the children’s electronic devices; determine the children’s attendance upon school and extracurricular activities; and to enlist the assistance of Dr D and/or Dr E to provide him with advice and/ or support regarding the formulation of a safety plan for the children and the devising of risk minimisation strategies with respect to the children. The father sought orders that he be permitted to engage Ms B (psychologist) to provide therapeutic support to the children; and otherwise, relevantly - for changeover to occur at the children’s school or the parties homes; each party be at liberty to travel with the children outside Australia; the father to retain X’s passport and the mother to retain Y’s passport; pursuant to ss 68Q and 68P of the Act the Court declare to the extent that any of the orders as sought by him conflict with the then extant Intervention Order (the IVO) against the father in favour of the mother, or any extension of the IVO, then the IVO is invalid to the extent of the conflict. The father sought non-denigration and other injunctive relief against the mother together with permission to provide to designated persons a copy of the Court Orders and judgment.
In the event the Court did not accede to the father’s proposal for the children’s living arrangements, the father proposed, in his written closing submissions, that he would accept proposed Orders 6 (school term holidays), 7 (week about during long summer holidays commencing 2024) and 11 (changeovers for school term holidays save that the reference to 5.00pm should be for consistency 4.00pm) of the final orders as sought by the mother.
The mother sought final orders, relevantly that: the parents have equal shared parental responsibility for the children; the children live with the mother; Y spend time with the father in week one from the conclusion of school Thursday until the commencement of school Monday and in week two from the conclusion of school Thursday until the commencement of school Friday; X spend time with the father from the conclusion of school Thursday until the commencement of school on Monday in every alternate week; X spend time with the father commencing Term 3, 2024 in week one from the conclusion of school Thursday until the commencement of school Monday, in week two from the conclusion of school Thursday until the commencement of school Friday; the children communicate with the father each Tuesday when the children are not in the father’s care by telephone between 8.00pm and 8.30pm; special occasion time; equal school holiday time; changeover to occur at the children’s school or otherwise at the mother’s residence at the commencement of the children’s time with her and at the father’s residence at the conclusion of their time with the mother; the father to be at liberty to have his parents or either of them assist him in the operation of these orders; the parties and children attend upon Ms B for family therapy at their equal expense; both parties ensure X’s attendance upon G Mental Health Service; each parent be at liberty to travel outside of Australia with the children during any period the children are in their care; each parent do all such things necessary to obtain an Australian passport for each of the children at their equal expense; and the father retain in his possession X’s passport and the mother retain in her possession Y’s passport.
The orders sought by the father were consented to by the Independent Children’s Lawyer (“the ICL”) save for the following notable differences and/or additions:
·The contact moratorium period between the mother and the children be for a period of 12 weeks from the making of final orders.
·The mother’s supervised time be for a period of four weeks, with time to become unsupervised and increase thereafter in a fortnightly cycle in week one from 6.00pm on Thursday to the commencement of school on Monday and in week two from 6.00pm Wednesday to the commencement of school on Thursday followed ultimately by a week about regime of the children living with each of their parents.
·Injunction/non-denigration order restraining both parents.
·The children spend time with the father on each of the paternal grandparents’ birthdays from after school until 8.30pm on a school day or from 10.00am until 6.30pm on a non‑school day.
·After the commencement of time with the mother the children communicate with each parent by telephone, Skype and/or FaceTime two days per week when the children are not in the parent’s care with the residing parent to facilitate such time.
MATERIAL RELIED UPON
The father relied on:
(1)Further Amended Application for Final Orders filed 8 November 2023;
(2)his trial affidavit filed 8 November 2023;
(3)affidavit of Mr H, the paternal grandfather, filed 9 November 2023;
(4)affidavit of Dr E, the father’s psychologist, filed 15 November 2023;
(5)Supervised Time Reports of C Family Services dated December 2021, January 2022, September 2022, February 2023 and November 2023;
(6)Reports and letters from Dr D filed 17 November 2023; and
(7)Written submissions filed 15 April 2024.
The mother relied on:
(1)Amended Response to Final Orders filed 26 April 2023;
(2)her trial affidavit filed 15 November 2023;
(3)affidavit of Ms J, the mother’s older sister, filed 15 November 2023;
(4)affidavit of Ms L, the mother’s friend, filed 15 November 2023;
(5)affidavit of Ms K, the mother’s friend, filed 15 November 2023;
(6)affidavit of Dr M, consultant clinical psychologist, filed 17 November 2023; and
(7)Written submissions filed 28 March 2024.
The ICL relied on:
(1)Department of Health and Human Services s 67Z Response dated 18 October 2021;
(2)affidavits of Ms N filed 13 January 2022, 1 March 2022 and 12 September 2022;
(3)affidavit of Dr D filed 5 September 2022;
(4)affidavits of Dr F filed 16 September 2022, and 7 July 2023;
(5)reports of Dr D dated 16 December 2022, 17 February 2022, 21 March 2023, 27 March 2023, 31 May 2023, 10 August 2023 and 2 September 2023;
(6)C Family Services Report on Supervised Handovers dated February 2023;
(7)affidavit of Mr P filed 16 November 2023; and
(8)Written submissions filed 15 March 2024.
Both the father and ICL relied upon the Family Report of Dr F dated 1 March 2022 annexed to her affidavit filed 16 September 2022 and Updated Family Report dated 11 April 2023 annexed to her affidavit filed 7 July 2023.
RELEVANT FACTUAL FINDINGS
The father was born in 1978 in Australia. He was aged 45 years at the time of trial. He resides in a rental premises in Suburb O and works part-time as a manager. The father was diagnosed with depression in 2023 and obtained treatment in respect of that diagnosis. The father is otherwise in good health. He has re-partnered but does not live with his partner.
The mother was born in 1984 in Country Q. She was aged 39 years at the time of trial. The mother resides in a rental property in Suburb R and works part-time as a co-ordinator of a sports facility. The mother experienced trauma during the parties’ relationship. She is otherwise in good health and has re-partnered. She and her partner spend some overnight time together each week in the mother’s home, which is the primary residence of the children.
The parties first met in early 2009, when the husband was on a business trip in Country Q. The mother relocated to Australia and commenced cohabitation with the father in mid-2009.
The parties married in 2011.
In 2012, the child X was born. X was aged 11 years at the time of trial and had completed her primary school years. She commenced secondary school in early 2024.
In or around mid-2012, the mother became a permanent resident of Australia.
In 2014, the child Y was born. Y was aged nine years at the time of trial and was enrolled at primary school.
In late 2017, the parties purchased the former matrimonial home at T Street, Suburb U (“the former matrimonial home”).
In early 2018, the parties moved into the newly constructed former matrimonial home.
In early 2021 at 1.30am, the father assaulted the mother. He and the mother had attended a work-related function, being a party on the prior evening. The father told the mother at the party he was not happy within their marriage and felt that she was turning the children against him. Upon arrival at the party, the father said words to the mother to the effect of “you fucking bitch, you have turned the kids against me”.[1] The mother spoke with the father’s colleague about the father’s behaviour toward her and the children, and her concern the father was unwell. The father’s colleague stated in reply “you guys just need a holiday”.[2] The mother and father arrived home late after the party. The mother went upstairs to the ensuite bathroom, the father followed her. The mother made various and partially inconsistent allegations to, at their most serious, allege that thereafter all the following occurred: the father lunged at the mother hitting her hard twice over the head with an open fist. The father then pushed the mother causing her to fall into the towel rack. The father then grabbed the mother by the throat, choked her and held her up over the ground. The father then dropped the mother to the floor, grabbed her hair and threw her back into the ensuite. He stated, “if you take the kids to [Country Q] I will kill you…it’s women like you who make men do what they do”.[3] The mother further alleged that she had grazes and swelling. It appeared to her that some blood vessels had burst. The mother asserted that she sustained bruising to various parts of her body. The father made some admissions in respect of the mother’s allegations, but denied others, notably that he had choked her.
[1] Mother’s affidavit filed 15 November 2023, paragraph 71.
[2] Mother’s affidavit filed 15 November 2023, paragraph 72.
[3] Mother’s affidavit filed 15 November 2023, paragraph 77.
The mother made differing claims as to what next occurred. She conceded however that the parties remained in their bedroom arguing for some hours and until about 5.00am. She then, as I find it, voluntarily left the bedroom. The mother was not coerced or forced to remain in the bedroom as suggested by her. The mother, having exited her bedroom, walked down the staircase before entering X’s bedroom where she went to sleep in X’s bed. The children were in their respective beds and not, as asserted by the mother at various times, at the top of the staircase near the parents’ bedroom, or at the bottom of the staircase awaiting her at 5.00am. The mother subsequently began crying loudly. X was awake, was frightened, and remained silent as she heard her father coming down the stairs. The father entered the bedroom and stated to the mother words to the effect of “stop crying, you could have cried while in the bathroom” and said to X “this is what your mum does to make me look like a bad father” and “see what your mum makes me do”.[4]
[4] Mother’s affidavit filed 15 November 2023, paragraph 80.
In the days following the father’s assault upon the mother, the parties remained in the home and carried out their everyday activities. The mother said of this time that she was ‘trying to keep it as normal as possible for the children’.
One week later, the father texted the mother “I thought you would have changed after last week”, referring to the incident of the previous week.[5] He stated, “As another warning, don’t call my parents into this and if you try to turn it on with the kids today, I repeat it will be the LAST THING YOU EVER DO!”.[6]
[5] Mother’s affidavit filed 15 November 2023, paragraph 83.
[6] Mother’s affidavit filed 15 November 2023, paragraph 83.
On the following day, the mother attended the Suburb O Police Station to report the assault. The mother made a statement to the police. The police informed the mother they were intending to charge the father in respect of the alleged violent assault, and that he would be served with a Family Violence Safety Notice. The police told the mother to collect the children from school. When the mother attended upon the school, the paternal grandparents were in attendance. They were there because they understood there to have been some disagreement between the parties, as conveyed by the father to them but only vaguely so, and they were concerned about the children’s collection from school. The paternal grandfather asked the mother what had happened and said words to the effect of, as stated by the mother “he hasn’t hit you has he?”.[7] The paternal grandfather, whose evidence I prefer, stated that he said “Did he hit you, did he?”.[8] The grandfather put his arm around the mother in a comforting way, which the mother described as an unwanted firm grip being placed by the grandfather on her upper arm which she had to forcibly remove. The mother received a call from the police advising the Safety Notice had been served on the father. The mother returned home with the children.
[7] Mother’s affidavit filed 15 November 2023, paragraph 87.
[8] Transcript 21 November 2023, p.54 line 21.
The paternal grandfather attended upon the home and spoke with the mother. He stated to her, as conceded by him, “what have you done [Ms Sokoloff]; he’s locked up”.[9] I accept that the grandfather did not say further, as asserted by the mother, “he didn’t do it”.[10] I accept the grandfather’s evidence in response to a question put in cross-examination to him that he did not utter those words; “...how could I say that?” he responded, when it was put to him.[11] The grandfather acknowledged he was unaware of the circumstances of the parties’ conflict and what occurred on the preceding night. He knew only that the parties had being having some difficulties in their relationship, and that his son was distressed and stressed, suffering from what was later diagnosed as depression. His concern, and that of his wife, was predominantly for the children, and they did their best to support the children’s parents in their care of the children. The grandfather left the home. The mother and children then stayed at a friend’s house later that night due to the mother’s fear of remaining in the home.
[9] Transcript 21 November 2023, p.54 lines 30-31.
[10] Mother’s affidavit filed 15 November 2023, paragraph 87.
[11] Transcript 21 November 2023, p.54 line 35.
The father was charged with offences.
On that date, the parties separated on a final basis after the Family Violence Safety Notice required the father, amongst other things, to vacate the former matrimonial home and precluded him from contacting the mother, approaching her, communicating with her, or having any other person do so. The children were also listed on the Family Violence Safety Notice and the prohibitions extended to them.
The mother gave conflicting versions of the early 2021 assault in her two police statements of early 2021 and mid-2021. She alleged in cross-examination that her general practitioner saw bruising to her throat when she attended for an examination of her injuries in early 2021. The doctor’s records did not support that allegation.
After separation, the mother engaged with various agencies including family violence organisations; an organisation for therapeutic trauma counselling; a domestic violence service (for a safety plan); personal support counselling which came later in time; V Counselling; the DFFH; and, within these organisations, many caseworkers and counsellors. She also sought the assistance of psychologists to engage in therapeutic trauma counselling which remained ongoing to the time of trial. Despite this extensive input, it was the mother’s evidence in November 2023, that the proceeding and family therapy as conducted by Dr D had worked against her “to heal”.[12]
[12] Transcript 22 November 2023, p.117 line 14.
The mother was requested by police to pack a bag of clothes for the father. She did so, and the paternal grandfather made arrangements with her to collect the bag from her home. When the grandfather attended at the mother’s home, the mother was present with a friend, Ms S. The mother had sent the children to the next-door neighbour. Ms S explained her role to the grandfather to be one of protection of the mother against him. There was no need for her presence or aggravation. The grandfather has never presented as a risk to the mother and indeed the mother had sought out his counsel and assistance with the children throughout the parties’ relationship. The grandfather left the home, unable to see the children. He and the paternal grandmother did not see the children thereafter until November 2022, despite their initial requests of the mother that they be permitted to spend a little time with them, and despite their close involvement in their lives to that point.
In mid-2021, a summons was issued against the father for charges arising from the early 2021 assault.
In mid-2021, the DFFH Child Protection (“Child Protection”) received a report regarding the safety and wellbeing of the children in the care of their father. The mother also attended further upon the police to report alleged significant violence as directed against her by the father since the birth of the children including but not limited to, verbal abuse, physical incidents, financial control, and coercive control. The father admitted to the police the physical incident which occurred in early 2021, as described by him, was “a stupid mistake” and indicated that he was willing to engage in relationship counselling and a men’s behaviour change programme.[13]
[13] Section 67Z Response dated 18 October 2021, p.1.
Later that month, an interim Intervention Order (“IVO”) was made against the father with the mother and the children listed as affected family members. The father consented to the order without admission.
On 27 July 2021, the father commenced proceedings in the then Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia) in respect of parenting and property matters.
In August 2021, the children commenced court ordered telephone contact with the father. Between that time and November 2022, the phone calls occurred twice weekly. Initially, the children were “talkative and responsive” as conceded by the mother, in their communication with the father.[14] Those phone calls were of a duration of approximately 18 minutes each. Over time the phone calls deteriorated in content and length such that the children eventually became unresponsive, and ultimately X discontinued the calls.
[14] Transcript 23 November 2023, p.204 line 1.
In late 2021, Child Protection received a further report regarding the safety and wellbeing of the children in the care of their father. The father had not seen the children or had any contact with them since early 2021, some five and a half months earlier. The reported concerns were in relation to the children being exposed to ongoing family violence perpetrated by the father toward the mother and the children, directly and indirectly during cohabitation.
In late 2021, Child Protection completed a first home visit to the family residence to interview the mother and the children in relation to the reported protective concerns. The home environment was spotless, hygienic and no hazards were noted. The children had their own rooms, which were clean with age-appropriate toys.
A few days later, the mother initiated counselling for the children at V Counselling. She arranged for ten individual sessions for each child. The goals of that counselling were for the children to process family violence experiences; to establish a sense of safety; and to challenge unhelpful beliefs.
On 18 October 2021, a s 67Z of the Act Response was released by the DFFH. It was reported, relevantly, that:
Child Protection hold concerns the interviews with [X] and [Y] had aspects of coaching present by [Ms Sokoloff], as observed by the children disclosing the same incidents of [Mr Sokoloff’s] abuse as [Ms Sokoloff], the children using similar phrases to [Ms Sokoloff], and the children not requiring time to think when answering questions. Child Protection understand [X] and [Y] are at an age where they are impressionable and vulnerable, and the Family Court process can be difficult. Child Protection assess the children will have been exposed to incidents within the household, however, do not believe the children are at significant risk of harm when with [Mr Sokoloff].[15]
That report recommended that the children spend supervised time with the father, with the recommendation being rejected by the mother.
[15] Section 67Z Response dated 18 October 2021, p.5.
On 4 November 2021, orders were made for the children to spend a period of three hours of supervised time with the father each Saturday as supervised by C Family Services.
In November 2021, the children commenced spending supervised time with the father. They had not seen him for a period of almost seven months. Professional supervised time through C Family Services occurred thereafter for a period of approximately ten months, being until September 2022 when some 40 weeks of supervised time had been completed.
Between November 2021 and early February 2022, the supervised time spent between the children and the father went reasonably, with ‘glimmers of repair of the relationship between the children and their father’. On the first visit, X was smiling and sitting across from her father, describing her new home as recently rented by the mother. In January 2022, X described her father as weird in the context of him providing them with sweet foods as opposed to healthy foods. She told Mr P (“the supervisor”) that the father usually gave them healthy food. She indicated that she not anxious about the weird niceness of her father, or anxious or perturbed about the food provided. At around this time, the children’s time with the father was slowly improving. The children were reported to chat a little more; there was “lots of eye contact when they listened to or chatted with the father”.[16] The father spoke more to the supervisor, not wanting to impose himself on the children. He preferred to give them space. Regardless of how the time proceeded however, the feedback from the children to the mother and the supervisor was that the father was fake and just pretending in front of the supervisor.
[16] Annexure MN-1 to the Affidavit of Ms N filed 13 January 2022, p.17.
In early 2022, the father pleaded guilty to a charge (relating to pushing the mother, pulling her hair such that there was a probability of injury occurring, and causing bruising and grazing to the mother). The police withdrew the other charges. The first charge was upheld and the father was found guilty without conviction and fined.
By February 2022, the supervisor reported that the children would no longer play or engage with the father in any way. They refused the food offered by the father. This behaviour continued through March 2022. Y was taking direction from X by refusing to eat following her disapproving gaze and ceasing to play frisbee with the father when observed by X. Y had more eye contact with his father than X. The mother described the deterioration in the children’s responses to their father as them being wary and retreating from a man who was not behaving as their father did. She described this as the children’s defence mechanism, a concept not supported by the expert evidence.
On 2 March 2022, interim orders were made by consent, providing for both the mother and the father to attend upon separate clinicians to address individual needs as identified by Dr F, the family consultant upon whom the parties and children had attended.
On 3 March 2022, the mother, in response to her assertions as to the children’s distress in spending supervised time with the father, and by reference to the supervisor’s reports, asked of Dr F whether such supervised time should continue. In the mother’s view, the children did not want to attend, and they should not attend. Dr F replied that the supervised time should continue with no increase in the periods of time. It was her view that to suspend, stop or pause the visits would “likely bolster [the children’s] views”.[17] At the same time, a second expert, Dr D, was engaging in family therapy with the family. It was his view, that a suspension of time would result in a serious risk of the children becoming completely estranged from the father. Both experts agreed that to mitigate future alienation of the children from their father, the supervised visits should continue.
[17] Transcript 23 November 2023, p.221 line 31.
On 30 March 2022, orders were made by consent appointing Dr D to engage with the family for reportable family therapy “directed at repairing and enhancing the children’s relationship with the father”.[18]
[18] Mother’s affidavit filed 15 November 2023, paragraph 118.
On 31 March 2022, the mother commenced to see Dr W (“Dr W”) who became the general practitioner to her and the children. Dr W referred the mother to Dr Z (“Dr Z”), psychologist, and trauma counsellor. The mother commenced her attendance upon Dr Z in April 2022.
In July 2022, Dr Z, the mother’s psychologist, wrote to the referring general practitioner, Dr W, and without having had any contact with the father and/or the children described, on the history as provided to him by the mother, that the process the mother was being put through was predictably violent and that the children were being used by the father as weapons.
By July 2022, the children had attended at V Counselling for counselling for a period of some nine months. The counsellor at V Counselling, Ms AA (“Ms AA”), recommended that the children’s counselling at that agency be ‘paused’ because the children were attending upon Dr D. The counsellor stated “[X] continues to experience stuckness (sic) regarding her feelings and thoughts about visits with her father. This prevents movement towards acceptance”.[19] She made clear to the mother her rationale for pausing the counselling. Despite this, as set out hereafter, the mother constantly sought the children’s return to that counselling, which did not have as its purpose the amelioration of the children’s resistance to spending time with the father. The mother persisted in her approaches on the basis that Dr D was “not listening” to her and the children.[20]
[19] Transcript 23 November 2023, p.226 lines 26-27.
[20] Transcript 23 November 2023, p.226 line 22.
On 23 August 2022, Dr D received a letter from the parties’ solicitors which included questions relating to his report of 10 August 2022. Dr D responded to these questions with an email on 2 September 2022. He recommended that the father’s time with the children progress to unsupervised time in a more normalised setting, such as the father’s home, with such time to span the course of an entire day (10.00am until 5.00pm). Dr D also suggested it would be helpful if these visits could be adjusted via therapy sessions rather than awaiting further interim orders. The mother was not swayed.
By 20 September 2022, the mother was putting to the Court that supervised visits were not in the children’s best interests and should be stopped immediately. The then most recent C Family Services Report of September 2022 had described a further deterioration in the children and father’s interaction with each other. The children, during visits, refused all food, snacks and water. They provided no verbal ‘yes’ or ‘no’ in response to their father’s queries and would respond with a shake or nod of their head, or shrug of their shoulders. X would often cry. Y would, however, let the father do things for him out of sight of X and was less inclined to look to her for guidance when undertaking activities in her presence. Despite the children’s rejection, the father remained very patient, providing lots of encouragement for the children, and praising both.
Dr D again recommended that the children spend time with the father for longer periods, and to enable those periods to be more normalised, again advised professional supervision should be phased out. He added however, that any necessary supervision could occur in the presence of the paternal grandparents. The mother was adamant that the children should spend no time with the father, but she was supportive of the children having six weeks of intensive therapy with Dr D. This might have suggested that the mother had confidence in Dr D, but she did not, and ultimately she worked to undermine his input.
On 20 September 2022, orders were made suspending the supervised time between the children and the father and seeking the appointment of an Independent Children’s Lawyer.
On 21 September 2022, the father filed an Application for Review of the orders suspending his supervised time with the children.
On 27 September 2022, Dr Z provided a report to the mother’s general practitioner that the Court processes resulted in “…another period of very high anxiety and fear” for the mother.[21] The mother had told him, which he appeared to accept, that the Court system was being used by the husband to break her and to force the children to see more of their father than they already were.
[21] Transcript 23 November 2023, p.233 lines 22-23.
In October 2022, and in the waiting room during a family therapy session with Dr D, X scratched her arm. Under cross examination, Dr D described the marks as “extremely superficial redness on [X’s] arm”.[22] The mother described this as “self-harm”.[23] This action was in the context of Dr D having challenged X in therapy by questioning whether she was, in fact, upset. He was considering whether X was simply ‘acting out’ in her refusing behaviours, rather than suffering from a serious mental health issue. X described to her mother not feeling heard or understood in therapy. She considered herself to be forced and threatened with punishment to adopt that which was the purpose of the therapy, which was a reunification with her father.
[22] Transcript 29 February 2024, p.325 line 16.
[23] Transcript 23 November 2023, p.236 line 46.
On the same day, and following the family therapy session with Dr D, the mother sent an urgent email to V Counselling seeking an urgent appointment for X. The mother claimed Dr D was not listening to X and the mother asserted that X needed to sort through her feelings with Ms AA. The mother told X of these actions carried out by her and drove X to V Counselling but was unable to secure an appointment until a few days later.
The following day, X did not attend school at the mother’s determination. She withheld X for a week citing as the reason ‘[X’s] observed levels of distress’.
The following day, the mother took X to her general practitioner who recommended that a cream be placed on her arm. Dr W made no referral of X and did not diagnose any mental health crisis.
A few days later, the mother and X had a conjoint meeting with Ms AA at V Counselling.
On 11 November 2022, upon the hearing of the Review Application, and with a further nearly two-month period in which the children had spent no time with the father, orders were made by consent discharging the orders made on 20 September 2022 and providing for the children to spend time with the father each alternate Saturday from 10.00am to 2.00pm, with such time to again be supervised, but by the paternal grandparents. Changeovers between the mother and the grandparents were to be professionally supervised and to occur at McDonalds, and the children were to continue to attend upon their counsellor, Ms AA, and as arranged by the mother. Orders also provided for the father to engage with Ms AA and to receive information regarding the children’s counselling with her.
On 11 November 2022, following the making of the consent orders, the mother sent an email to V Counselling which said, relevantly, “[X] is still refusing, and has continued to scratch her arm. This is catastrophic. What is happening? As she is being ignored. She keeps being ignored and forced”.[24] Thereafter, the mother went to V Counselling to see Ms AA in person. These actions of the mother were undermining of the consent orders that she had just agreed to and it is clear that the mother was opposed to X’s time with the father resuming. Ms AA advised the mother that she could help the children and herself at an emotional and psychological level by offering the children reassurance and by explaining to them that they will be okay during the visits. In Ms AA’s opinion, as relayed to the mother, the mother engaging in that way would lead to an increased sense of safety for the children, and a decrease in their level of resistance. Ms AA did not see the children on that occasion and did not wish to. The mother continued to seek for V Counselling’s services to remain available to the children.
[24] Transcript 23 November 2023, p.243 lines 31-33.
On 14 November 2022, the mother took the children to Dr W who saw them in the presence of the mother. The mother described being “extremely concerned” at the children’s distress in having to see their father, and about Dr D’s processes in family therapy.[25]
[25] Transcript 23 November 2023, p.247 line 19.
On 19 November 2022, the children recommenced time with the father during a supervised visit with the paternal grandparents in attendance at the father’s home for a period of four hours. The children did not acknowledge either of the paternal grandparents. The paternal grandparents drove the children to the father’s home where there was resistance, and then reluctance exhibited by both children in respect of their entry into the home. Whilst the children ultimately did enter the home, they refused to move into the living area. X began to sob loudly, whilst Y had the hood from his jumper covering most of his face. Both remained at the entry of the house for the duration of the visit. X continued sobbing.
On 21 November 2022, Dr D recommended that Y spend time with the father each week for six hours and that X spend time with the father for a period of four hours per fortnight in accordance with the arrangements contained in the November orders. The parties agreed to this proposal. It was Dr D’s opinion that a path of insistence and persistence should be followed.
X was always at changeover when Y was placed in the care of his grandparents and when he was returned by them to the care of the mother. At those times, and in the presence of the supervisor, mother and X, Y would cry, be upset, on occasion as described by the mother ‘fall into her arms’ and then ‘open up’ about the dreadful time he had with his father. Y made false allegations of being forced, pushed and/or pulled by the paternal grandparents and his father.
On 24 November 2022, the mother attended upon Dr W to further complain about Dr D.
On 26 November 2022, Y spent time with the father. Y attended the father’s home with the paternal grandparents and spent a period of six hours with his father, and as supervised by the paternal grandparents. Y remained inside the home but by the front door for most of the time. He engaged with the father, in contrast to his non-engagement in the previous week when X was present. Y coloured in with the paternal grandfather, ate lunch as provided by his father when his father and grandparents ate lunch, and played with a Nerf gun and Nintendo. At changeover, Y again ran into the mother’s arms and said the paternal grandmother had tried to drag him through the front door into the house. That was a fabrication.
On 3 December 2022, the children attended the father’s home for a period of four hours. Upon the paternal grandparents collecting them, both children appeared to be in an upset mood, with X sobbing. When the paternal grandparents and children arrived at the father’s home, X did not leave the grandparents car. She remained in the car for the duration of the period and the paternal grandmother remained with her, ensuring her safety, and remaining calm and encouraging. Y played in the front yard. The decision was made by Dr D and agreed to by the father to pause X’s weekend time with him, as it was evident she was impacting Y’s time with the father.
In December 2022, the mother advised the children’s school principal of the views of her family in Country Q (in written form) as to the family violence suffered by the mother and children and the perceived (by the family) consequences in respect of same. It was unclear why the mother adopted this course or what purpose she thought it served. The mother had earlier herself informed the principal of her allegations and interpretation of the parties’ marriage and separation including making a shameful allegation that the paternal grandparents had sought to bribe her to have the criminal charges against the father dropped.
On 10 December 2022, Y attended upon the father’s home for his weekly time spent with his father. Y showed a willingness to engage with his father and paternal grandparents, but at other times would regress back to sitting at the front door with his hood on.
In December 2022, the mother again sought counselling for the children at V Counselling. That request was declined.
On 15 December 2022, the father called the children (per Order 4 of the Orders made 4 November 2021, with such Order being reinstated by Consent Orders made 11 November 2022) Y answered the phone. Y did not wish to speak to the father and passed the phone to X. X and Y did not respond to the father.
On 16 December 2022, Dr D recommended Y continue to see his father each weekend for a period of up to eight hours per visit. He recommended X’s time with the father be ‘paused’ in order for the father to ‘concentrate on reconnecting with [Y]’. He stated that Y was more amenable to the reunification and was influenced by X’s continuing distress and resistance. In his view, the strategy was to recalibrate more fully with the younger of the children, and then concentrate on helping X early in the new year.
On 17 December 2022, Y attended the father’s home to celebrate Christmas and other family events. Y still preferred to stay at the front door. Y spent time, however, with the larger paternal family including his two male cousins of similar age. As per usual, the father took very detailed notes of this visit, and ultimately all these detailed notes taken by him throughout the supervision period were provided to the mother and not accepted by her. The mother said in cross-examination when challenged as to her non acceptance of the notes “I have a contrary view of events”.[26] This was despite the mother not being present at the visits and the notes depicting in precise detail the mostly low, but also the high, points of interaction between the father and the children.
[26] Transcript 23 November 2023, p.259 line 13.
In the visits described below, Y’s ongoing estrangement from his father whilst remaining present in the home is evident as is the father’s ability to be patient, inventive and persist.
On 26 December 2022, Y attended the father’s home with the paternal grandparents. Y took longer than normal to get out of the car and walk to the house, and he sat inside by the front door once again. The father played a video game with Y for an hour. The father then went to prepare Christmas lunch which Y refused to eat. The father resumed playing a video game with Y, who did not want to move from just inside the front door. The father gave Y two presents, but he did not open them.
On 30 December 2022, Y attended the father’s home with the paternal grandfather. The father then drove Y and the paternal grandfather to a shopping centre to watch a movie. Upon arriving at the shopping centre, Y refused to get out of the car. The father lifted Y out of the car and walked approximately ten metres with him toward the shopping centre at which point Y refused to walk any further. After 20 minutes of standing in the same spot, the father decided to drive Y and the paternal grandfather back to the father’s home. At the father’s home, Y again refused to get out of the car until the paternal grandfather asked him firmly. Y walked to the house and sat inside next to the door, again refusing to move or to eat. The father then played a video game with Y for about an hour and a half. The father tried once more to get Y to eat. Y refused again. The father then opened a laser tag set with Y who assisted the father in setting it up.
In January 2023, the mother again approached V Counselling seeking counselling for the children to resume. The mother made allegations that Dr D was making harmful comments to the children, and again asserted the children’s lack of desire to attend upon visits with their father. Ms AA declined the mother’s request saying counselling at V Counselling would only reinforce for the children their resistance, and that it was not appropriate for such counselling to occur outside the therapy being provided by Dr D.
On 7 January 2023, Y attended the father’s home with the paternal grandparents. The paternal grandmother assisted Y in getting him to walk to the front door of the house where he sat on the floor just inside the front door. Y did not move, speak or eat for an hour. The father then played a game with Y for about 50 minutes. Y refused to eat any lunch despite the father bringing him a sandwich. Y’s aunt and two of his cousins came to visit, with Y again refusing to move from where he was seated inside the front door, and again refusing to eat. Y’s cousins began playing a video game in the living room and Y adjusted his position such that he could watch them play, but the father could not get Y to join in with the game. Y instead repeatedly tapped a box next to where he was sitting, and once more refused to speak when the father asked him what he was doing. Y briefly played with a remote-control car that his two cousins were also playing with. After his cousins left, Y played a video game with the father for about an hour and a half.
On 14 January 2023, Y attended the father’s home with the paternal grandparents. Y would not walk to the front door until the paternal grandmother assisted him, at which point he sat on the floor next to the front door. The father played a video game with Y for an hour before the father went to prepare lunch. Y played the video game while the father was preparing lunch, but stopped when the father came to check on him. Y then refused to eat the pizza that the father had prepared him, and refused to open any Christmas presents which the father had bought him. The father resumed playing a video game with Y for about one hour. The father then offered Y some cake which the paternal grandmother had prepared, but Y again refused to eat. For the final hour of the visit, the father and Y played a video game together.
On 21 January 2023, Y attended the father’s home with the paternal grandparents. Upon their arrival, the father drove them to a museum to see an exhibition. Y refused to get out of the car and hit the paternal grandmother on her hand and arm when she lifted him out of the car. After an hour of Y refusing to walk or move, the father drove Y and the paternal grandparents to a café for lunch. The father purchased Y an egg and bacon brioche roll but Y refused to eat it. The father then drove Y and the paternal grandparents to a park. Y refused to get out of the car. The father drove Y and the paternal grandparents to an ice cream shop. Y refused to eat the ice cream that the father purchased for him. The father then drove Y and the paternal grandparents back to his home, where Y entered the home and sat on the floor next to the front door. Y remained there until the end of the visit.
In late January 2023, the mother brought the children to V Counselling to see Ms AA. Ms AA again refused to see them and made clear to the mother that she should not bring the children to that service.
On 28 January 2023, Y attended the father’s home with the paternal grandparents. The father greeted them at the car and drove them to the residence of Y’s uncle and aunt. Y refused to get out of the car for 15 minutes, and then sat on a retaining wall beside the driveway. Y refused to eat any snacks offered to him, and then wandered around the lawn watching his uncle prune trees. The father played a game with Y using a water pistol which Y seemed to enjoy. Y then partook in kicking a soccer ball with his cousins for about 20 minutes. Y refused to eat lunch when it was offered to him. The father drove the paternal grandparents and Y back to the father’s home at approximately 1.30pm. The paternal grandfather led Y to the front door after he refused to walk himself. The father sat with Y on the floor next to the front door and they built a chess board together for the remainder of the visit.
On 4 and 11 February 2023, Y attended the father’s home with the paternal grandparents. The visits proceeded in the same vein as the earlier visits. Essentially, Y refused to engage.
On 10 February 2023, the mother made further complaints to V Counselling about the behaviour of the paternal grandparents and the distress of the children.
On 24 February 2023, the mother advised Ms AA at V Counselling that the father remained an unchanged man who continued to display abusive behaviour aimed at his children.
On 27 February 2023, Dr Z provided a further report to the mother’s general practitioner saying that he had completed 19 sessions with the mother, but any progress had ceased because “…[the mother] and, in my opinion, the children now find themselves in an actively abusive and controlling situation again”.[27] He referred to the mother having indicated to him that the father’s behaviour had escalated since separation and that the father was using the Court to “make all our lives miserable”.[28]
[27] Transcript 23 November 2023, p.272 lines 11-12.
[28] Transcript 23 November 2023, p.272 line 28.
On 11 March 2023, the paternal grandparents drove Y to a park to play with his cousins. His father was at the park as it was a period of supervised time. Y left the car of his own volition and proceeded to play with his cousins. Y appeared to be happy although he tried to hide his smile with his arm and cover his mouth. Y had a good day at the park and engaged in the games played to some extent, including playing with his father.
On 18 March 2023, Y has another relatively successful visit of eight hours with his father.
On 21 March 2023, Dr D recommended consideration of Y’s time with the father to include an overnight visit. He also recommended that X begin to have four-hour visits with her father at a time that did not overlap with Y’s time spent with his father.
On 31 March 2023, Dr D recommended the introduction of an overnight stay for Y with two full days on the weekend either side. He further made recommendations as to how the mother ought to manage X’s mental health. At around this time Y’s 8-hour weekly visits with his father were progressing well.
On 20 April 2023, interim orders were made by consent, relevantly, providing for Y to spend time with the father not overnight but each Saturday from 10.00am to 6.00pm and each Thursday from 5.30pm to 8.00pm, as supervised by the paternal grandparents or either of them, with the father to be at liberty to attend sports training. Further, for the child X to spend time with the father each Sunday from 2.00pm to 6.00pm as supervised by the paternal grandparents or either of them. Provision was made for telephone communication. The assistance of a professional supervisor from C Family Services at the mother’s sole cost was limited to changeovers between the mother and the grandparents on Saturday mornings. Various restraints were imposed on both parties and both parties were permitted to attend various school events. An order was made pursuant to ss 68Q and 68P of the Family Law Act 1975 (Cth) with a declaration that, to the extent that any of the Orders made conflicted with an extant Family Violence Intervention Order, then the Family Violence Intervention Order was invalid but only to the extent of the conflict.
Following the making of the above orders, Y continued to engage in his time with the father and derive considerable benefit from it. By 27 May 2023, the father reported that Y had spoken continuously, was playful, walked in and out of the house on his own, and walked upstairs for the first time on that visit. He appeared to be in a very happy mood in the father’s household. He had also in that time commenced spending the two and a half hours of time with his father on a Thursday, successfully.
Once able, the father commenced to attend the sports training nights to support Y despite the mother’s expressed fear of the father, and X’s distress at having to see him. On each of the occasions the father was at the sports ground, so too was X, the mother and, on occasion, the mother’s partner.
On 23 April 2023, X spent a period of four hours of supervised time with the father for the first time in four and a half months. When the paternal grandparents arrived at changeover, X appeared to be upset and was making crying sounds, which continued after she got into the grandparents’ car, and throughout the drive to the father’s house. X was resistant to leaving the car. After being assisted by the paternal grandmother, X left the car and entered the father’s house, remaining inside near the front door. The father tried to comfort X by bringing her one of her cushion toys. X remained upset, making crying noises, with no tears. The time spent was not successful, and difficult, with X continuing to make crying noises. Upon re-entering the paternal grandparents’ car to return to the changeover location, X stopped crying and remained quiet on the drive back. X alighted from the grandparents’ car without speaking to them and proceeded toward the supervisor, appearing to him to be not crying nor visibly upset. At the changeover, X told the supervisor in a frightened state, that she had not wished to leave the car upon arrival at the father’s home but that the paternal grandmother removed her from the car by pulling her arm. This was a fabrication. X did not say to the supervisor that she had scratched her arm.
X then proceeded to leave the changeover point with the mother and whilst they were walking toward the car, X said her arm hurt and she could not lift it. X wound up her sleeve to show her mother where she had been scraping and picking at her arm with her fingernails. The mother then immediately took photographs of X’s arm. She also, after arriving at the car and placing X in it, telephoned the supervisor to advise him that X had self-harmed by scratching her arm. The mother then drove X immediately to the general practitioner’s clinic, but it was closed. Upon arriving home at approximately 6.30pm, the mother took a second set of photographs of X’s arm and, again, she took a further set of photographs in the morning, taking three sets of photographs within a 24-hour period. The mother then emailed these photographs to the general practitioner.
On 24 April 2023, the mother made a call at 8.00am to Dr W seeking an appointment in respect of X’s scratched arm. The mother and X subsequently attended upon an appointment with the general practitioner who noted in her medical notes that X “scratches her skin on her forearm when stressed. Noted today mild. She does not want to go to her dad’s house”.[29] Dr W made no diagnosis or referral in respect of any crisis mental health issue.
[29] Transcript 23 November 2024, p.294 lines 10-11.
On 30 April 2023, X spent time with the father. X scratched her arm, scraped at her skin with her fingernails, and refused to spend time with the father thereafter. X had complained during the visit that the father and the paternal grandparents “kept watching [her]…hurting [herself]” and that she “felt afraid”.[30]
[30] Transcript 1 March 2024, p.376 line 45 to p.377 line 1.
On 1 May 2023, the mother took X to attend upon her general practitioner and the mother made complaint about time spent between X and the father.
In mid-2023, a final IVO was made against the father with the mother listed as the affected family member. The children were removed from the order. The final IVO was made by consent of the father without admission and was due to expire in mid-2024. The mother did not consent to the order and claimed she had not appreciated that she needed to be in attendance at court to ensure the children’s remaining on the order and/or to obtain an order after a contested hearing.
On 14 May 2023, X refused to get out of the car during a scheduled spend time visit with the father.
In May 2023, the mother took X to attend upon her general practitioner. X told the general practitioner that she was dissatisfied with the spend time arrangements with her father and that she feared the father.
On 28 May 2023, X refused to get out of the car during a scheduled spend time visit with the father. The mother told the contact supervisor that X had been crying uncontrollably and threatening to kill herself. Three days later, on 31 May 2023, Dr D indicated that he would see X and consider her circumstances and stated that the mother should call triple zero if X’s situation escalated. The mother then took X to her general practitioner again, and obtained a letter addressed “to whom it may concern” which referred to the inappropriateness of X not having anyone to support her.[31]
[31] Transcript 1 March 2024, p.377 line 27.
On 31 May 2023, Dr D provided an update to the parties. Dr D reported that the mother had conveyed that X was now making statements around suicide and that he would consult with X individually at the next session. The mother was advised to take X to her doctor or contact triple zero if the risk profile increased. Dr D further reported that the father was reporting marked improvement in Y’s time with him. The mother was still opposed to the introduction of overnight time for Y.
In June 2023, the mother commenced therapy with her psychologist Dr M. The mother attended 13 sessions with Dr M up to the time of the commencement of the trial.
In June 2023, X, for the third time, refused to get out of the car during a scheduled spend time visit with the father. The mother subsequently took X to the Emergency Department. She described X’s increasing distress, and claimed that she had been self-harming. X had no visible scratches on her arms and the mother showed photos of scratches on X’s arms from April 2023. Notes from the hospital described X as calm and compliant, and stated that she exhibited no acute medical problem.
Between June and 24 October 2023, X spent no time with the father as she steadfastly refused to exit the mother’s car.
On 1 July 2023, Y commenced overnight time with the father on each weekend. This was at the further recommendation of Dr D. The father observed Y to be highly engaged, talking and eating well. The overnight and other times spent by Y with the father proceeded very enjoyably for the child and the father for the following nearly four months. Despite time spent between Y and the father proceeding well, the mother repeatedly withheld Y from school throughout July, August and September, citing (in emails sent to Y’s school) that Y was “not coming in because he was so distraught upon his return” from visits with his father.[32] In particular, Y spent time with the father on:
(a)15 July 2023 to 16 July 2023, and was then absent from school on 17 July 2023;
(b)20 July 2023, and was then absent from school on 21 July 2023;
(c)22 July 2023 to 23 July 2023, and was then absent from school on 24 July 2023;
(d)29 July 2023 and 30 July 2023, and was then absent from school on 31 July 2023;
(e)12 August 2023 to 13 August 2023, and was then absent from school on 14 August 2023.
(f)2 September 2023 to 3 September 2023, and was then absent from school on 4 September 2023; and
(g)9 September 2023 and 10 September 2023, and was then absent from school on 12 September 2023.
[32] Transcript 1 March 2024, p.379 lines 2-3.
In mid-2023, the father commenced working at home for 20 hours a week to make himself more available to the children.
Ms L (“Ms L”) is the mother’s friend and former neighbour.
Ms L was not cross-examined, and her evidence was unchallenged. Overall, I gave it little weight. It was evidence as derived mostly from the history as provided to her by the mother.
Ms L expressed various critical opinions about the father and Dr D. She had never interacted with the father and accepted without question the mother’s entirely negative version of her marriage. She expressed grave concern for the children’s time with the father, accepting the mother and children’s adverse descriptions. Ms L strongly disapproved of Dr D questioning Y to see if there was any ‘truth’ to Y’s assertions to his mother, her friends, and the supervisor, that his time with his father was terrible.
Evidence of Ms K, the mother’s friend
Ms K (“Ms K”) is a friend of the mother, and her children are friends of the children in this proceeding. Both Ms K’s children play at the same sports club as X and Y where the mother is a coach and involved as a parent volunteer. The mother’s partner is also a coach at that club.
Ms K was not cross-examined, and her evidence is unchallenged. I accept it. Some of her evidence I have given little weight to where her views are formed solely based on a history as provided to her by the mother. or where they are an opinion, she is not qualified to give.
Ms K observed the mother to be a “very committed mother” who had “done her upmost to ensure that the children have a normal and happy life”.[145] Ms K stated the mother has a close and loving relationship with the children and “is always getting involved with them and their activities.”[146] Ms K described the mother to be “hands on” and “always be trying to help the children to grow and develop.”[147]
[145] Affidavit of Ms K filed 15 November 2023, paragraph 7.
[146] Affidavit of Ms K filed 15 November 2023, paragraph 7.
[147] Affidavit of Ms K filed 15 November 2023, paragraph 7.
Ms K deposed both children are bubbly, vibrant children when they are playing with her children and interacting with her. She described X as chatty, talkative, intelligent and engaging well with adults. She described Y as a “bit of a joker”, always trying to make people laugh, playful and rambunctious.[148]
[148] Affidavit of Ms K filed 15 November 2023, paragraph 10.
Ms K deposed the only time when the mother appeared anxious and timid was on evenings when the father attended sports training. During this time, she observed the mother to be “on edge, hyper vigilant and visibly anxious” and gave evidence that the mother had stated to Ms K “she feels that he is watching her and that she is still fearful of him”.[149] I observe that the mother is not required to be at the training on those nights.
[149] Affidavit of Ms K filed 15 November 2023, paragraph 21.
CONSIDERATION
The father, at the commencement of the trial, sought an equal shared parental responsibility order for the children. As the evidence unfolded however, and the mother’s behaviours became more exposed, behaviours which were detrimental to the children and which were evidence of an inability and unwillingness to co-parent, the father changed his position and sought parenting orders for sole parental responsibility for the children to him. The ICL supported the approach of the father.
The mother sought final parenting orders for equal shared parental responsibility for the children, however with such decision-making as undertaken by the parents to include the parents’ attendance upon Ms B in the event of no agreement being reached between them, as well as, amongst other things, including “Changes to the children’s living arrangements which might make it significantly more difficult for the child to spend time with either parent”.[150] It was difficult to understand quite what this meant, but certainly it signified a potential, if not anticipated, dispute between the parents, which went to the very core of the matter, being their inability to arrive at a joint decision in the advancement of the children’s best interests. More fundamentally, the mother continues to fear the father and feel fearful for the children’s safety in his care. That is a contraindicator to a shared care arrangement as submitted by senior counsel for the father.
[150] Mother’s Response to Initiating Application filed 26 April 2023, p.2.
Given the father’s admission that he assaulted the mother, s 61DA(2) of the Act provides that the issue of parental responsibility can be determined on a consideration of what is in the best interests of the children without a presumptive starting point. Given the evidence in this matter, I have concluded that the highly conflictual relationship between the parties precludes joint decision-making that would advance the children’s best interests. Indeed, the lack of possibility for the parties to effectively co-parent was referred to by Dr F in her oral evidence before the Court. She described it as a “fantasy”.[151] In her view, it was in the children’s best interests for the father to have sole parental responsibility for them. That is a view with which I concur, informed by the significant and helpful expert evidence received in the proceeding and by the evidence given by each of the parties. The father is rational in his approach. The mother is impulsive and driven by her desire to sever the relationship between X and the father, and not support the relationship between Y and the father. Whilst the mother consented to orders, she acted to undermine them, and to undermine the input of Dr D whom she was clear in her evidence, she considered to be intimidating and unethical. Her response to him spoke volumes. She did not want to hear what he said if it challenged her views, or that of the children, and she did not want the therapeutic intervention he provided to re-unite the children with their father. She has encouraged X’s ‘acting out’ behaviours. Her unilateral referring of the children to various agencies and medical professionals was, as described by Dr D, systems abuse with its purpose being to support, and gain evidence, around her narrative about the father. I find it not probable that the parents will effectively consult each other in relation to long term decisions in respect of the children and nor will there be, by the mother, any genuine effort made to come to a joint decision. The father must have sole parental responsibility to best advance the children’s interests.
[151] Transcript 8 January 2024, p.398 line 35.
Primary Considerations
Section 60CC(2)(a) the benefit of the child of having a meaningful relationship with both of the child’s parents
I find it is of benefit for the children to have a meaningful relationship with both of their parents. Whilst both of their parents stated that to be their respective positions, the mother made her position conditional at the commencement of the trial, stating that although she sought orders to achieve that outcome, she wished them to be operational only “..once it is safe to do so and at a pace which just does not further jeopardise the children’s health having regard to their reluctance and resistance to spend meaningful time with the father”.[152] By the conclusion of the trial the mother had removed the condition, but her evidence, and the series of events which occurred after November 2023, left me with little confidence that the mother truly accepted that it would be of benefit for the children to have a meaningful relationship with their father. It is probable that she does not.
[152] Mother’s outline of case document filed 17 November 2023, p.4.
The children have a meaningful relationship with the mother. They have a close and loving bond. Despite great obstruction by the mother, Y has been able to forge a meaningful relationship with the father. The child X, however, continues to be estranged from her father and continues to refuse to spend time with him. Her relationship with her mother is enmeshed. In this approach, contrary to the mother’s assertions that she encourages the child/parent relationship between both children and the father, X is supported by the mother who rewards her for her alignment with the mother.
It was the evidence of Dr D and Dr F that the only way for the children to obtain and maintain a meaningful relationship with the father was for the children to move into the father’s sole care for a period and effect a moratorium in respect to their contact with the mother. Both were of the view that if such action did not occur, it would be highly probable that X will never have a relationship with the father, and the progress of Y and the father’s relationship could be undermined.
Dr F emphasised the importance of the children having a meaningful relationship with their father. She claimed that if the father were to remain absent from the children’s lives, the children were more likely to develop serious psychiatric problems, experience relational issues and engage in drug and alcohol abuse.
Dr D gave evidence that if the children’s relationship with the father was severed, the children would lose contact with the entire paternal family at a crucial stage in their lives where they are developing their sense of individuality and identity; they would experience inappropriate modelled behaviour leading to a belief their behaviour is dictated solely by their stated expressed wishes without consequence; and they would undergo adverse symptomology in the development of personal relationships that would lead to unhealthy relational traits that carried through to adulthood.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, exposed to, abuse, neglect or family violence
The mother made extensive allegations of family violence as committed by the father. The mother summarised her allegations at [32] of her trial affidavit as follows:
Throughout my relationship, I was subject to ongoing emotional, verbal and psychological abuse by [Mr Sokoloff]. I was also subject to control and financial control. The family violence experienced by me was witnessed by the children. The children were likewise subjected to ongoing emotional, verbal and psychological abuse, and on occasion physical abuse. I was subject to physical abuse on one occasion, being the assault that resulted in separation.
The father took issue with many of the allegations of family violence as made by the mother. He conceded however, that he physically assaulted the mother in April 2021, and that some of his behaviours were unacceptable and destructive toward the end of the relationship and during the Covid years. Those unacceptable behaviours included nasty text messages to the mother, controlling behaviour, and verbal and emotional abuse of the mother. The father indicated some remorse as to these matters in his affidavit evidence where he said:
I will never make excuses for any of my behaviour while [Ms Sokoloff] and my marriage was falling apart. I could have handled myself in a measured and calm manner.[153]
[153] Father’s affidavit filed 8 November 2023, paragraph 27.
Additional to the above, I take account of the risk assessment of Dr F in respect of the father and the mother as appears earlier in these reasons, and of the significant concerns expressed by Dr F regarding the father in her Family Report of 2022. Clearly at that time, there was a need to protect the children that no longer exists.
By reference to the breadth of the mother’s allegations, I find however, that the father did not behave in a violent and controlling manner ‘throughout the marriage’ as claimed by the mother. I refer to the following three paragraphs.
Upon the parties’ cohabitation in Australia, the mother obtained a job and her salary went into an account in her own name. The father already had an account in his name into which his salary went. They had access to their own accounts and the monies of the other where necessary.
In 2010, the father bought the mother a motor vehicle; in 2011, they married and holidayed in Country Q and another country. The father purchased the mother the family pet. In 2012, X was born, and the mother remained at home as the primary caregiver to the child. The parties undertook two renovations to their home. In 2014, the parties purchased a bigger family car. They also engaged landscapers to landscape around their home, and Y was born. In 2015, they went overseas to celebrate the maternal grandfather’s sixtieth birthday. In 2016, they sold their first home before they commenced to rent in 2017 and purchase a new home in 2018. Throughout all those years, the family was productive and engaged with each other. The purchase of the new home in 2018 required the parties to take out a significantly larger mortgage which needed to be sustained from the husband’s sole income. The mother complained that after the earlier busy and collaborative years, she was suddenly excluded from major decisions which was revised by her throughout the litigation to be an assertion of financial control against the father throughout the entirety of the parties’ cohabitation. In 2019, the parties purchased a third car, being a further upgraded car for the mother to drive. The parties were struggling financially however, and they contemplated an early sale of the newly acquired former matrimonial home. The father became stressed. Many of the abusive text messages from the father to the mother were about money. The necessity for the father to work from home during the Covid-19 pandemic in 2020 from a study adjoining the children’s playroom, also led to abusive text messages to the mother about the noise made by the children. He mentioned divorce. There is no doubt that the father’s capacity to cope with the failing marriage, the children, and tolerate stress, significantly deteriorated and the mother withstood the worst of that. The father vented his frustration grossly, to the mother.
The mother asserted the children were also subject to ongoing forms of abuse throughout the parties’ relationship. Following separation, and the commencement of this proceeding, the s 67Z of the Act response by the DFFH in October 2021, shed some light on the children’s experiences in the home, with it being noted that “neither [X] or [Y] disclosed any threats made by [Mr Sokoloff] to either themselves or [Ms Sokoloff]”.[154] Nor was it reported that X was subjected to any physical chastisement as suggested. This latter matter was not surprising given the mother’s evidence in the proceeding that the father favoured X. Otherwise, the DFFH response referred to the mother’s coaching of the children as set out in [43] above.
[154] Section 67Z Response dated 18 October 2021, p.5.
At the commencement of the trial, the mother maintained that the father continued to pose a risk to the children because of his minimisation of historical family violence. She challenged the father’s empathy and insight, relied on the expression of the children’s purported wishes, and sought that supervised time between the children and their father continue; that the father undergo a further risk assessment; and eventually that there be unsupervised time between the children and their father limited to two nights per fortnight and modest holiday time.
During the trial, the mother abandoned her position that the father continued to pose a risk to the children due to his minimisation of historical family violence. The mother did not appear in all probability to have changed her view of the father however, rather there was before the Court overwhelming evidence to support the children’s ongoing relationship with the father. The mother proposed both children live with the father five nights a fortnight, half school holidays and special occasions without condition or restraint.
It was submitted by counsel for the ICL that any risk the father may have posed to the children at the time of separation is likely to have been ameliorated. I agree with this submission. Since separation, the father has completed the Men’s Behaviour Change Program, Caring Dad’s Program, Post Separation Parenting Program and has attended individual counselling with his psychologist Dr E and with his earlier psychologist, Ms EE, extensively. He has conscientiously and extensively engaged in family therapy with Dr D. Furthermore, in the three years since the parties separated, the father has not acted in any way to cause legitimate concern to the mother.
Senior counsel for the father submitted the only discernible risk of harm to the children, derives from their mother’s behaviours. That is, the profound psychological disturbance of X will continue if the estrangement from her father continues, or in Y’s case, re-emerges. Dr F similarly, in oral evidence, stated that keeping the children in their current situation would be more harmful than imposing a moratorium given, as they move into adulthood, they would be more susceptible to psychological illness, relationship difficult and drug and alcohol abuse.
There is a risk, given X’s recent hospitalisation and claimed mental health issues, that she may act upon her threats of self-harm if the father’s proposal is ordered. However, Dr D gave evidence that a moratorium could potentially resolve further escalation of X’s behaviours, and a mapped-out safety plan may mitigate such risks. It was his evidence that absent the moratorium, there is no prospect of X having a relationship with her father.
There is, on the expert evidence, a real risk of psychological harm in leaving the children in the primary care of their mother. The children have engaged in impression management, as evidenced by the two expert witnesses, in particular demonstrating overt behaviour of being teary, distressed, fearful and apprehensive regarding the father when knowingly being observed by assessors, however exhibiting no such distressing behaviours when being observed. They have aligned themselves with the mother at considerable psychological cost.
Additional Considerations
Section 60CC(3)(a) any views expressed by the child
I conclude that no weight should be placed on the expressed views of both children. Their views are therefore in no way determinative of the disposition of this proceeding. As submitted by counsel for the ICL, it is abundantly clear that the mother’s views appear to have strongly influenced the children’s understanding of their father, and the mother has contributed to shaping the children’s views about their father through exposure to her own anxiety and skewed perceptions. This position is supported by Dr D. Dr F expressed it as difficult to give much weight to the children’s wishes as they had been heavily influenced by the mother.
Dr F further opined that if orders were made subject to X’s wishes, it would inevitably result in her being completely alienated from her father. Further, she would be raised in an environment where her behaviour was modelled and endorsed.
Y has consistently told his mother, her partner (X’s sports coach), and the mother’s friends and relatives that he does not wish to go to his father’s home and that he does not feel safe in the presence of his father. Y has not been able to express any positive views about his father to his mother or her friends or associates or relatives since separation. X’s views as expressed are strongly indicative of an enmeshed relationship with her mother and a significant alienation from the father. Whilst the mother accepted in cross-examination that Y had lied to her and her friends, relatives, and associates, and that she was relieved he was safe to enjoy himself at his father’s home, that evidence came after viewing compelling evidence of Y being happy and engaged with his father and grandparents. Despite her concession, the mother thereafter continued to agitate with any agency she could involve, that the children were not safe in the father’s care. The mother’s rejection of the very detailed notes of the father, and some photographs provided by him, going to Y’s increasing enjoyment of his time spent with his father was extraordinary in the context of Y’s bizarre descriptions to his mother over a very lengthy period which included that he did not eat, did not go to the toilet, and did not move from the front door.
X reported to DFFH that she was scared of the father. She claimed the father hit both her and Y and that she had witnessed the father choking and threatening to kill the mother repeatedly. This latter allegation was a new allegation as made by X, and not supported by the mother’s sworn evidence in the proceeding. Nor does the Court find such allegation to be proven. No reliance can be placed on any expression of X’s views.
Section 60CC(3)(b) the nature of the relationship of the child with each of the child’s parents and other persons
It is not in dispute the children love the mother and the mother loves the children. The mother has been the children’s primary carer. She deposed to spending time with the children in nature, baking Country Q goods, watching movies, and participating in sports. The children enjoy all these activities and are well supported by the mother in their engagement.
Both Y and X have a close relationship with one another. Together they enjoy playing video games, building Lego and doing sports.
The major issue in this proceeding is the nature of the relationship between the children and the mother in the context of the children’s rejection of the father over a long period of time. It was both the view of Dr F and Dr D that the children aligned with the mother and adopted her views of the father and that both children, X to a greater extent, have an enmeshed relationship with the mother. These things have precluded the necessary advancement of the children’s relationship with the father.
Dr D, in oral evidence before the Court, stated the mother gave the children more approval, attention, love and support when they reported allegations against the father. Dr D stated the mother had been “argumentative, guarded and inclined to assume the most critical narrative in relation to the children’s father. She even impugned, and made serious allegations, against the paternal grandparents, as well as other members of the paternal family.”[155]
[155] Annexure DD-5 to the Affidavit of Dr D filed 17 November 2023, paragraph 2.
At the commencement of supervised time with the father in November 2021, both children warmed to their father and there was evidence of some slight repair of the relationship between the children and their father, however this soon deteriorated. Both children realised they were not permitted by the mother to have a relationship with their father or the paternal family, both of whom they had a fundamentally loving relationship with prior to the parties’ separation.
Y has had the opportunity to recover and advance his relationship with the father and the paternal family, albeit that has been fragile at times, such as when he refused to spend time with them in October 2023. Time between Y and his father and grandparents however resumed and has been happy and beneficial to Y. It includes overnight and holiday time, and interaction with his paternal uncle, aunt, and cousins.
During the commencement of supervised time with the supervisor, X was engaging with the father and making good progress. As the visits continued, X’s engagement slowly ceased, with no explanation. The supervised (by the grandparents) visits with the father were unsuccessful. The telephone communications were also unsuccessful. The father does not attempt to collect X from school, in the absence of a moratorium. Nevertheless, the father is confident that with counselling assistance as provided by Ms B, he will be able to regain his relationship with X while continuing his relationship with Y. The loss of this relationship has been difficult for the father to reconcile as he had a close bond with X prior to the parties’ separation. It has also been difficult for the paternal grandparents to confront, as they too had a close relationship with X.
Section 60CC(3)(c)-(ca) the parents opportunity to participate in decision making, spend time and communicate with the child and the fulfilment of the parent’s obligations to maintain the children
The evidence of the parties demonstrated that since this proceeding commenced, the acrimony and ineffectual communication between the parties has precluded an opportunity to engage in joint decision making. Particularly, in relation to issues of medical and counselling treatment. The father has had no real opportunity to participate in decision making, save for when orders have been made by the Court. The father was required to obtain orders of the Court to be able to see and speak to his children following separation. His ability to spend time with them, and communicate with them, continues to be adversely impacted by the mother’s approach as described above in these reasons.
The father has fulfilled his obligations to maintain the children.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances
Both children are doing well at school. Y has done particularly well in writing and reading and has strong creative thinking and critical thinking abilities. Y is an energetic child, well-liked by all his teachers and peers at school. X is a confident girl and has excelled in writing and visual arts. X has been described as driven and mature for her age. Both children have been well supported by the mother in their academic and sporting pursuits. The father does not seek to change their schooling nor sports participation and wishes for their regular attendance at school in the long term.
The ICL and father’s proposed change in the circumstances of the children, being that they do not see their mother for a three month or 12 week period, and then see her for a limited supervised period, before the children commence spending equal time with each of their parents, is a notable change for the children. The likely effect of that change will be more traumatic for X than Y, although Y is likely to be impacted negatively by X’s responses.
Dr F and Dr D supported a moratorium period whilst acknowledging its likely effects upon the children. Dr F considered that a moratorium would be confusing for Y and could result in a rupture to Y’s relationship with the mother, who has been his primary carer his entire life. Dr D considered that a moratorium could potentially result in a further escalation in relation to X’s conduct which included threats of self-harm, and engender real psychological harm for her.
Despite these considerations, both experts considered a moratorium to be in the children’s best interests and I note in this context, there was no evidentiary support for a separation of the siblings in this process. Dr F opined “the first several days are likely to be extremely challenging, however, once the children are able to recognise that their father’s behaviour is not threatening in the way they have been influenced to believe, they will be able to slowly start repairing the serious rupture that has occurred. Their mother can be introduced back into a shared care arrangement once meaningful gains are made…”.[156] Dr D contemplated controls that could be in place to mitigate any escalation in X’s conduct including a mapped-out safety plan. Both experts considered supportive counselling would be required throughout the relevant period.
[156] Updated Family Report of Dr F dated 11 April 2023, paragraph 89.
Senior counsel for the father submitted to intervene by imposing a moratorium, and then re‑introducing the mother to the children, is the last opportunity to salvage any prospect of X having a relationship with her father.
I find that in the making of a moratorium order, the father will be a suitable and supportive figure in the children’s lives. The father has made appropriate arrangements in his home and his working arrangements which will allow him to effectively care for the children. Whilst there may be a risk of X’s regression in the father’s care, such risks may be mitigated by effective therapeutic support through the children’s psychologist Ms B. The father further will have the assistance of the paternal grandparents to assist with the children’s transition into his care. It is acknowledged that the children may experience distress in being separated from their mother during this period, however such change in circumstances are in the children’s best interests in developing a meaningful relationship with their father considering the mother’s reluctance to promote same. If the mother’s proposition for ‘slower time’ is granted, there is risk the same issues as raised at trial will arise and further litigation will ensue. It is in the best interests of the children that a contact moratorium period between the children and the mother is ordered.
Section 60CC(3)(f) the capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
I find that both parents have the capacity to provide for the physical and intellectual needs of the children. As do the paternal grandparents. The father’s capacity to provide for the psychological and emotional needs of the children currently exceeds that of the mother for the reasons as outlined elsewhere.
Section 60CC(3)(i) the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Senior counsel for the father submitted the mother’s conduct has had the effect of amplifying the perception that the father and his parents posed a risk to the children, and further undermined the interventions of Dr D. I agree with that submission and that the mother’s conduct has reinforced X’s ‘acting out’ behaviour, and perpetuated Y’s needs to lie about his time with the father. This has, it was submitted, and I conclude, prohibited the children’s capacity to have an open acceptance of the Court’s orders for the children to spend time with their father.
The mother is critical of the father for not attempting to collect X from school on a Thursday as provided for in Orders made 27 November 2023. It is not disputed that the father has made no attempts to collect X from school or the mother’s residence or make any alternate arrangements to spend time with X. I accept that the father’s decision to not attempt to collect X from school since the commencement of the 2024 school year is an insightful decision which does not embroil the school or contaminate X’s education environment with the family law conflict, in the absence of final orders.
Otherwise, it is common ground X has run away whilst in the father’s care. When the mother delivered X to the father’s residence during the 2023/2024 long summer holidays, the father was not able to persuade X to spend time with him without the assistance of the mother. The mother made meaningful efforts to facilitate the time, which included staying in the father’s home for two hours at one changeover. On another occasion, the mother invited the father to sit in her car with X and herself, during which time she and the father adopted a united front in trying to persuade X to spend time with the father. Despite the mother’s best attempts since the conclusion of the final hearing, X continues to refuse to spend any time with the father. Given X’s enmeshed relationship with the mother, and the mother’s behaviours, including systems abuse, over a three year period, directed to reinforcing for X that the father was not safe, this is hardly surprising. What is needed now is an ability for the father to control the future therapeutic counselling for X, coupled with a transition of the children into his care for a moratorium period.
I find that the mother’s attitude towards the children and to the responsibilities of parenthood has remained obstructive and problematic. Whilst she deposes to facilitating the children to spend time and communicate with the father, I find it is the conduct of the mother in acceding to the children’s wishes, in particular X, that has caused a rupture to the relationship between the children and the father. The mother did experience Post Traumatic Stress Disorder due to the family violence she experienced during the parties’ relationship, and I do not underestimate that. But it, coupled with her personality as described by Dr F in her risk assessment of the mother, has affected her attitudes as a parent, where she has not been able to promote the best interests of the children whose responses to the father are so very disproportionate (as referred to by the expert witnesses).
I find that the father’s attitude towards the children and to the responsibilities of parenthood are measured and reflective in light of the children’s reluctance to spend time with him. He has remained focussed and reasonable, and his parents and he have succeeded, with the expert input of Dr D, to bring about enormous positive change for Y.
Section 60CC(3)(j) and (k) family violence
This matter is canvassed extensively in these reasons above.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to further litigation in relation to the child
Counsel for the ICL submitted that unless the more drastic step of a moratorium is taken to implement the orders as sought by both the father and the ICL, as supported by the recommendations of the family consultant and family therapist, the current regime and orders proposed by the mother “are doomed to fail and lead to the institution of further proceedings”.[157] The evidence supports that accurate submission.
[157] Independent Children’s Lawyer’s written closing submissions filed 15 March 2024, paragraph 37.
The father proposes that no further family therapy as sought by the mother is ordered, given ongoing family therapy with the mother is likely to expose the children to their mother’s negative beliefs about the father and undermine any orders for a moratorium. I agree with that submission of senior counsel for the father. There has already been extensive therapeutic intervention in the life of this family, and I accept that any further intervention needs to be undergone without the mother’s input, and that same may lead to a cessation of litigation.
Conclusion
The Court shall make orders as proposed by the ICL and the father. I have considered the slight differences in their position in the orders which are made this day.
The father did not consider final orders for ongoing telephone communication to be of benefit to the children. He considered it is likely to be experienced by the children as a forum in which they would feel pressured to perform and demonstrate their dislike or rejection of their father. That view is very much supported by the evidence. No orders shall be made for telephone time once the children are spending equal time with each of their parents. There shall be no interference in the children’s living with the other parent and no undermining of it. If there is something that is urgent or particularly beneficial to convey, the parties can negotiate that matter.
To intervene, as urged by the father, the ICL, and the two single experts, by imposing a moratorium and then re-introducing the mother to the children, is in reality the last opportunity to salvage any prospect of X having a relationship with her father. This option also carries with it risks that are referred to in the expert evidence. The risks of leaving the children in the mother’s care are also referred to in the expert evidence.
Whilst there is a risk of X giving effect to her threats of self-harm if the father’s proposal is ordered, there is equally the same risk if X is ‘forced’ to spend time with her father in accordance with the orders as sought by the mother.
Dr F’s evidence was that therapeutic support for the family during the moratorium period would be important. That is abundantly clear on the evidence. The ICL identified Ms B, psychologist, as an appropriate person to provide such support. The father proposed that Ms B be solely engaged by him, at his expense, for reportable therapeutic support for the children targeted during the moratorium and supervision periods to maximise the effect of such orders. That course should be adopted, with the mother not part of that process.
The father sought to be released from his implied undertaking, and rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) so that he may provide a copy of the Court’s Reasons for Judgment to the children’s schools and any medical or allied health practitioner the children attend; and a copy of the single experts’ reports to Ms B and any other person engaged to provide counselling or therapy for the children. The special feature justifying the release of the reasons or the reports to these professionals involved with or treating the children, would be to assist in the provision of support or therapy, in the hope that it might enhance the prospects of success by having any additional information to be found in the documents.[158] In my view, that is appropriate in respect of the medical and allied health practitioners upon whom the children may attend; the DFFH; and the Victorian Police. However, only the Orders need to be provided to the children’s schools. There is no need for a copy of the Reasons to be provided to them, there being in my view no current special feature justifying the release of the Reasons for Judgment.
[158] Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020.
I certify that the preceding three hundred and ninety-one (391) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 31 July 2024
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