Swan & Swan (No 2)
[2023] FedCFamC1F 1086
•16 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Swan & Swan (No 2) [2023] FedCFamC1F 1086
File number(s): MLC 6388 of 2020 Judgment of: JOHNS J Date of judgment: 16 November 2023 Catchwords: FAMILY LAW – CHILDREN – best interests – where both parties seek sole parental responsibility – where the children currently live with the mother – where the children have not seen the father since separation – where the mother has strongly held views about the father – where the mother makes significant allegations of family violence – where allegations are unsubstantiated – where the children have been exposed to the mother’s views of the father – where the evidence suggests the mother poses a psychological and emotional risk to the children – where the father does not pose a risk to the children – ordered the father have sole parental responsibility and the children live with him – moratorium on time with the mother until June 2024 – where brief summary of reasons have been provided to assist the ICL in explaining the orders to the children – where reserved judgement is pending Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), (2A) & (3) Division: Division 1 First Instance Number of paragraphs: 23 Date of last submission/s: 16 November 2023 Date of hearing: 30 & 31 August 2023, 4 – 7 September 2023, 8 – 10 November 2023, & 16 November 2023 Place: Melbourne Counsel for the Applicant: Ms Malik Solicitor for the Applicant: Buscombe Family Law Counsel for the Respondent: Mr Kiernan Solicitor for the Respondent: Heinz Law Counsel for the Independent Children's Lawyer: Ms Tiernan Solicitor for the Independent Children's Lawyer: Inclusive Family Law & Mediation ORDERS
MLC 6388 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SWAN
Applicant
AND: MR SWAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
16 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Father have sole parental responsibility for the children X born 2014 and Y born 2017 (“the children”).
2.The children live with the Father AND IT IS DIRECTED that the Father attend upon Court Child Services this day and collect the children from Court Child Services.
3.The Mother, her servants and agents, forthwith leave the Court and environment of the Federal Circuit and Family Court of Australia and vicinity of 305 William Street, Melbourne, and thereafter this day do not remain within 500 meters of 305 William Street, Melbourne.
4.The Father is to forthwith make arrangements for the children to:
(a)Engage in play therapy to be conducted by a qualified play therapist;
(b)Engage with, and participate in therapy with, a paediatric psychiatrist; and
(c)Engage with, and participate in therapy with a child psychologist (it being noted that it is intended that each child should have their own independent psychologist).
(collectively, “the children’s treatment team”)
and the Father be responsible for the costs associated with the children’s attendance upon the children’s treatment team or any of them.
5.Until 1 June 2024, the children are not to spend time or communicate with the Mother except pursuant to Order 6(a) of these Orders.
6.From 1 June 2024, the children shall spend time and communicate with the Mother:
(a)By way of letters, cards and gifts which may be sent via the Father, on each of the children’s birthdays, Christmas, and Easter.
(b)Upon the children having engaged with at least two of the therapeutic professionals provided for in Order 4 herein for a period of no less than three (3) months, the children shall spend time with the Mother on six occasions per calendar year, supervised by an additional family therapist who is engaged by the Father in consultation with the children’s treatment team, at such times and durations as can be accommodated by that family therapist, with the Mother to meet the costs of same.
7.Except as otherwise provided within these Orders, the Mother, her servants and agents, be and are hereby restrained from:
(a)Spending time with and communicating with the children, or either of them, by any means, including mail, telephone, email, text message or social media;
(b)Approaching within 100 metres of the Father’s residence; and
(c)Approaching within 100 metres of the children’s school.
8.The Father be at liberty to provide a copy of these orders to the children’s medical practitioners and/or school.
9.That should further allegations be made by the Mother as to the Father and children in these proceedings, such as would otherwise trigger an intervention by a mandatory reporter, the Father is at liberty to provide a copy of the Orders and the final judgment from these proceedings to any of the following:
(a)Victoria Police;
(b)The children’s school;
(c)Medical and allied health practitioners engaged in treating the Father or the children or either of them; and
(d)DFFH.
10.That pursuant to s 68P and s 68Q of the Family Law Act 1975 (Cth) (“the Act”) insofar as this Order is inconsistent with an existing family violence order, this Order is to take precedence and shall prevail.
11.The appointment of the ICL be and is hereby discharged with effect from 1 June 2024.
12.The Counsel for the ICL meet with the children following the making of these orders to inform and explain to the children the orders made.
13.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
14.That 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Swan & Swan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
This matter comes before the Court upon the parties’ competing parenting applications. I am mindful of the time of day and the need to ensure that the children the subject of the proceedings are appropriately attended to given that they have been in the Court’s child-minding room for a long time today. For that reason, I do not propose to provide lengthy oral reasons for judgment. What I intend to do is to provide a brief summary of reasons and make orders such that they are able to be communicated to the children in an appropriate manner and thereafter implemented.
As with all parenting cases, I have regard to the objects and principles underlying the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) relating to children as set out in section 60B of the Act. I also note that with all parenting decisions, the paramount consideration when making a parenting order is the best interests of the children (s 60CA).
In determining what is in the children’s best interests, I have regard to both the primary and additional considerations as set out in section 60CC(2) and (3) of the Act. In particular, I have regard to those primary considerations in this matter. That is, the need for the children to have the opportunity of a meaningful relationship with both parents, and further, the need for the children to be protected from harm arising from abuse. As is required under the Act, the need to protect the children from harm is to be afforded greater weight in accordance with section 60CC(2A).
The central issues in this case are two-fold. Firstly, the opportunity of the children to have a meaningful relationship with both parents and, secondly, the need to protect them from physical, psychological, and emotional harm. It is clear from the evidence that I have heard from the parties and the experts being Ms B, Psychologist, and Ms C, Family Consultant, that the children the subject of these proceedings have not had an opportunity of having a meaningful relationship with their father since the time of the parties’ separation.
That has occurred notwithstanding orders made over the course of the proceedings which have been designed and framed so as to provide the children with an opportunity of a reintroduction to their father. There have been orders made for the preparation for supervised time which have not been complied with by the mother. Additionally, there has been three sets of orders in relation to family therapy. None of those orders have been successful. That this is so, is in large part as a result of the choices made by the mother in terms of cooperating with the implementation of those orders.
As to the need to protect the children from harm, these proceedings commenced with allegations made by the mother that the father has been a perpetrator of family violence.
By late 2020, some eight months after separation, allegations had been raised by the mother that the father had been a perpetrator of sexual abuse of the parties’ children, particularly X. Over the course of the proceedings, the allegations raised by the mother have escalated both in terms of their seriousness and as to the range of people to whom allegations had been made; reports have been made to a series of agencies. Detailed submissions have been made today as to the range and extent of the allegations and the inconsistences and contradictory nature of some of those allegations.
I had the opportunity of observing the VARE tape. I have had the opportunity of observing the father give his evidence and be cross-examined in relation to those matters. I have also had the opportunity to consider the evidence of both experts as to their assessment of the allegations. Having regard to all of those factors, I am not persuaded that the father poses a risk to the children. That view is supported by the fact that the mother has shifted her position insofar as she asked the Court to make orders that ultimately conclude in the father having unsupervised time with the children.
Submissions have been made as to the risk the mother poses to the children. The risk identified is that she has caused, and will continue to cause them, psychological and emotional harm. The children have been exposed to the mother’s ideas and beliefs as to their father since the parties’ separation. Their world view of the father is shaped by those beliefs and views of the mother.
The mother’s role was to protect the children from harm. As the matter stands, many of the views that the children currently hold of the paternal family have been fanned by the mother’s beliefs. The mother has promoted ideas that the father has abused them, which have expanded in the children’s mind over the course of time.
This is evidenced by the disclosures that continue to be made by the children, notwithstanding the fact that the children have not had any meaningful time with the father since separation in early 2020, when the children were then aged five and two. The evidence of the experts, and particularly that of Ms B, is that there ought to have been a lessening of the children’s fear about their father with the passage of time; I am satisfied that this has not occurred is because the mother has not protected them from her views.
I have heard submissions today, which I accept, about the failings of the mother to appropriately engage the children with therapists to support and assist them in relation to these matters.
I am satisfied that the mother has not appropriately engaged with therapists to provide the children with that support. The evidence is that there has been a range of professionals attended upon by the children over the period since the parties separated, but there has not been consistency in terms of engagement with appropriate therapies.
As to the position that the Court should take, the options are stark. Either, the children remain in the care of their mother; the reality of that approach would mean that the prospect of them ever having a meaningful relationship with the father is remote. The alternative is that there be a change of residence and that they live with the father, as is sought by the father and the Independent Children's Lawyer.
The experts have identified risks both ways. The evidence of the experts is that the children's prospects and prognosis if they remain in the care of the mother is grim. They will have long‑term difficulties in the formation and maintenance of relationships. Their world view of what is the truth of how relationships are to be conducted and managed will be impacted by the mother's approach to relationships. The evidence of Ms B is that the children's resilience will be diminished.
Ms C observed the potential enmeshment and the beginnings of an enmeshment between X and her mother which will impact her capacity to form relationships into the future.
In addition to those issues, if the children remain with the mother, I am satisfied that their poor school attendance is likely to continue. The evidence before the Court is that their attendance has been poor over the course of X’s school life. The evidence of Ms C is that the impact of poor school attendance is two-fold: there are clear impacts to their educational progress, but importantly, also to their social development.
If I am minded to change the children's residence to that of the father, there are also risks. Clearly, there will be trauma to the children. It is a dramatic shift in their world, and the Court recognises this. Both Ms B and Ms C were very clear about the immediate trauma likely to be suffered by the children. It will be challenging. Nonetheless, both experts considered that there was some prospect of an improvement for the children in their long-term situation if such change is made. Both considered that if change is to be made it should occur as soon as possible.
I am satisfied that the children will have an opportunity to observe healthy adult relationships as is provided in the household of the father and Ms D with the support of the paternal grandmother. They will also have positive role modelling.
They will have opportunity to engage with schools and therapists. The evidence of both the father and Ms D gives the Court confidence that they will promote and support the children's wellbeing in terms of engagement with school and therapeutic interventions. Their evidence was that they have already reached out and made inquiries about those supports.
I am also confident that the father has the capacity to and will follow advice and recommendations of therapists. That view is bolstered having regard to the manner in which he approached family therapy most recently with Ms B when she provided feedback to him as to how to best engage with the children. He adopted her recommendations willingly and enthusiastically.
I am satisfied that the father has shown commitment to the children. The fact that he has persisted with this application over many years supports that view. I am satisfied that he has demonstrated insight as to the children's needs and is child focused. Again, that view is bolstered having regard to the evidence of Ms D as to the manner in which he has engaged with her children and sought to promote their best interests, noting the evidence given as to his approach to managing and supporting Ms D's eldest child, E, and his learning disorder.
Having regard to all of those matters, I make the following orders having been satisfied that they are in the children's best interests.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 16 November 2023
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