Swan & Swan (No 3)
[2023] FedCFamC1F 1095
•14 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Swan & Swan (No 3) [2023] FedCFamC1F 1095
File number(s): MLC 6388 of 2021 Judgment of: JOHNS J Date of judgment: 14 December 2023 Catchwords: FAMILY LAW – CHILDREN – Magellan – best interests – parental responsibility – live with – parental alienation – where both parents seek sole parental responsibility and for the children to live with them – where the children have not seen the father for three years since separation – where the mother has made significant and escalating allegations of physical and sexual abuse perpetrated by the father, against her and the children – where the allegations are largely unsubstantiated – where there are inconsistencies between the allegations – where there have been three failed attempts at family therapy – where the expert has observed the commencement of an enmeshed relationship between the mother and daughter – where the mother is unable to support a relationship between the children and the father – where the evidence supports a finding that the mother poses an unacceptable risk of psychological and emotional harm to the children – where the father does not pose an unacceptable risk of harm – where orders made for the father to have sole parental responsibility and children live with him – moratorium on mother’s time for six months – supervised time with mother to resume thereafter Legislation: Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) ss. 4, 4AB, 60B(1) & (2), 60CA, 60CC(2), (2A) & (3), 60CG, 61DA, 65DAA
Cases cited: Baghti & Baghti & Ors [2015] FamCaFC 71
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Champness & Hanson (2009) FLC 93-407
Fitzwater & Fitzwater (2019) 60 Fam LR 212
Isles & Nelissen [2022] FedCFamC1A 97
M & M (1988) 166 CLR-69
Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Mulvany & Lane (2009) FLC 93-404
Slater & Light [2013] FamCAFC 4
Division: Division 1 First Instance Number of paragraphs: 422 Date of last submission/s: 16 November 2023 Date of hearing: 30 – 31 August 2023, 4 – 7 September 2023, 8 – 10 & 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 2021 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
ON 16 NOVEMBER 2023 THE COURT ORDERED 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 metres 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 birthday, 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 to be 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.The 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).
REASONS FOR JUDGMENT
INRODUCTION
The applicant mother, Ms Swan and the respondent father, Mr Swan are parents to two children, X, aged nine years and Y, aged six years.
The parties commenced cohabitation in either 2009 or 2010, married in 2016, and separated in February 2020.
There is a long history of allegations by the mother against the father, including that she and the children have been victims of family violence at the hands of the father, and that the child X has been sexually abused by him. As a result of those allegations, save for brief periods in the context of family therapy, neither X nor Y have spent any time with the father since the parties’ separation.
Whilst the mother’s allegations against the father loomed large throughout the proceedings, those allegations are largely unsubstantiated. The mother contends that the children are at risk in the father’s care and that, as a result, she should have sole parental responsibility and they should continue to live with her. Notwithstanding that position, during closing submissions it was submitted on her behalf that the father should have time with the children, initially supervised, and subject to confirmation of the children’s readiness, such time progress to unsupervised and gradually increasing, culminating in alternate weekends from 10 am Saturday to 6 pm Sunday, one half of term holidays and week about during the long summer holiday period.
The father denies the mother’s allegations as to him being a perpetrator of family violence or sexual abuse. It is his case that since the time of the parties’ separation the mother has failed to support his relationship with the children, and indeed has actively undermined that relationship. The father contends that the mother has engaged in a course of conduct designed to alienate him from the children’s lives. It is his case that the mother is incapable of facilitating a meaningful relationship between the children and him.
As a result of those matters, the father seeks orders that he have sole parental responsibility for the children and that they live with him. Further, to enable the children to settle into their new living arrangements, the father proposes that the children should not spend any time with the mother for a period of six months. Thereafter, the father proposes that the children commence spending time with the mother under professional supervision.
The Independent Children’s Lawyer (“ICL”) supports the father’s position.
The parties have engaged with a range of experts during the proceedings to address future parenting arrangements. Attempts have been made at family therapy with Mr F, Family Consultant, and Ms B, Psychologist. The parties’ attempts at family therapy have failed, largely due to the mother’s inability to support and facilitate such therapeutic intervention. The parties have also attended upon a Family Consultant, Ms C, for the preparation of a Magellan Family Report.
Both Ms B and Ms C gave evidence at the final hearing. Both agreed that in an ideal world, the least disruptive option for the children would be for them to remain living with the mother and for them to commence having a relationship with the father. However, such an option is not realistic in the circumstances of this case for the reasons set out below. The task facing the Court, which was acknowledged by both Ms C and Ms B, is a choice between the “least-worst” option, that is the least damaging of the options for the children. That description is apt given that whichever course is taken, there are significant risks associated, particularly so, given the mother’s staunch resistance to acknowledging and accepting the benefits to the children of having a relationship with the father.
At the conclusion of the hearing, I determined that the children’s best interests will be met by orders that:-
·The children live with the father;
·The father have sole parental responsibility for the children; and
·There be a moratorium of six months on the children spending time with the mother, and thereafter them spending time with the mother under professional supervision.
On 16 November 2023 I made final orders (as set out at the commencement of this judgment) to that effect in accordance with the proposals of the ICL and the father. At the time those orders were made, I gave brief ex-tempore reasons for judgment and indicated that I would provide more detailed written reasons for judgment. These are those reasons.
THE PARTIES
The mother is aged 36 years. She lives at Town G with the children and her “friend”, Mr H. Throughout the proceedings, the mother maintained that she is not romantically involved with Mr H and that she has not re-partnered. The father challenges that position. I will address the mother’s relationship with Mr H later in this judgment.
In her trial affidavit, the mother deposes that she is a full-time homemaker. She confirmed during her oral evidence that from time to time, she does undertake casual employment with Mr H’s employer.
The father is aged 41 years. He lives in Town J with his partner, Ms D and her children, E, aged 13 years and K, aged 10 years.
The father is engaged in full-time employment as a technician, albeit that he has recently been promoted to the position of manager.
The father sustained multiple injuries in an accident which occurred in 2007.
The parties provide very differing accounts as to the long-term effects of those injuries upon the father’s functioning. In his trial affidavit, the father deposes that he suffered from medical episodes as well as memory loss due to his injury and that he was prescribed medication to assist him in reducing medical episodes. He deposes that he has not had an episode since about 2020.[1] In contrast, the mother contends that the father required significant care during the relationship, including assistance in showering and dressing.[2] I will address those issues later in the judgment.
[1] Father’s trial affidavit filed 11 October 2022, paragraph 76.
[2] Mother’s trial affidavit filed 5 September 2022, paragraph 16.
The parties commenced cohabitation in about 2009. Final separation occurred in February 2020.
X was born in 2014 and is aged nine years. At the time of hearing, X attended L School where she is in year four. Y was born in 2017 and is aged six years. He was in Foundation year at L School at the time of trial.
DOCUMENTS RELIED UPON
The mother relied upon the following documents:-
(a)Outline of Case document filed 18 August 2023;
(b)Amended Application for Final Orders filed 5 September 2022;
(c)Affidavit of the mother filed 30 June 2022;
(d)Trial affidavit of the mother filed 5 September 2022;
(e)Affidavit of the mother filed 18 August 2023;
(f)Affidavit of Dr M filed 21 September 2022;
(g)Affidavit of Ms N filed 5 October 2022;
(h)Notice of Risk filed 19 June 2020 and 27 April 2021;
(i)Affidavit of Mr P filed 10 February 2021;
(j)Magellan Family Report dated 8 August 2022;
(k)Section 69ZW Response dated 15 August 2023;
(l)Magellan report dated 22 July 2021;
(m)Section 67Z Response dated 3 July 2020;
(n)Section 11F assessment dated 27 November 2020; and
(o)Documents tendered during the course of proceedings, being Exhibits M1 to M4 inclusive.
The father relied upon the following documents:-
(a)Outline of Case document filed 14 August 2023;
(b)Further Amended Response to Application for Final Orders filed 14 August 2023;
(c)Trial affidavit of the father filed 11 October 2022;
(d)Affidavit of the father filed 14 August 2023;
(e)Affidavit of Ms D filed 11 October 2022;
(f)Affidavit of Ms Q filed 12 October 2022;
(g)Affidavit of Mr R filed 19 October 2022;
(h)Affidavit of Ms S filed 5 December 2022;
(i)Affidavit of Mr P filed 10 February 2021;
(j)Magellan Family Report dated 8 August 2022;
(k)Affidavit of Mr F filed 2 February 2023;
(l)Affidavits of Ms B filed 15 August 2023 and 3 November 2023; and
(m)Documents tendered during the course of the proceedings, being Exhibits F1 to F20 inclusive.
The Independent Children’s Lawyer relied upon the following documents:-
(a)Outline of Case document filed 17 August 2023;
(b)Magellan Family Report dated 8 August 2022;
(c)Affidavit of Mr P filed 10 February 2021;
(d)Magellan report dated 22 July 2021;
(e)Child Dispute Conference Memorandum dated 27 November 2020;
(f)Affidavit of Mr F filed 3 February 2023;
(g)Affidavit of Ms B filed 16 August 2023;
(h)Affidavit of Ms B filed 3 November 2023; and
(i)Documents tendered during the course of the hearing, being Exhibits ICL1 to ICL37 inclusive.
ORDERS SOUGHT
The mother sought orders in the terms of the Minute of Proposed Order tendered 16 November 2023 (Exhibit M4), which provide as follows:
1.That the Applicant mother have sole parental responsibility for the children [X] born […] 2014 and [Y] born […] 2017 (the children) subject to the following:
(a)except in the case of emergency, the Mother shall provide the Father with at least 14 days notice, of any major long-term issues arising in relation to the children by email to his designated email address;
(b)The Mother shall invite the father to express views and any proposal he wishes to put forward to the mother, within 7 days;
(c) the Mother shall genuinely consider any response of the Father; and
(d)the Mother shall advise the Father in writing, as soon as practicable, of the decision taken.
(e)In the event of significant dispute as to choice of school, the parties shall attend a mediation to occur by shuttle or similar dispute resolution service prior to the Mother making any decision in accordance with subparagraph (d) herein.
2.That the children live with the mother.
3.That the father spend time with the children supervised by either [Ms T] or the [U Contact Centre] (“the Contact Centre”) as such times as nominated by either [Ms T] or the Contact Centre, (“collectively the supervising Contact Centre”) and that each party
(a)contact the supervising Contact Service within 7 days and request an appointment for assessment for suitability for supervised contact;
(b)attend for assessment at the times and places appointed by the supervising Contact Service;
(c)attend with any appointments made by the supervising Contact Service for supervised contact;
(d)ensure that the children attend any appointments made by the supervising Contact Service for supervised contact;
(e)comply with all reasonable rules of the supervising Contact Service; and
(f)comply with all reasonable requests or directions of the staff of the supervising Contact Service.
4.After the assessment intake procedure and the parties are accepted by the supervising Contact Service as suitable for the service to facilitate supervised contact, the Father is to have contact with the children at times nominated by the supervising Contact Service and such contact is to occur at the Contact Centre or in [City V] Region as agreed with [Ms T].
5.Spend time periods under order 3 is to be supervised by staff nominated by the manager of the Contact Centre or staff nominated by [Ms T] and the Father is to pay the reasonable fees for the supervision on each occasion.
6.The Mother deliver the children to and collect the children from the supervising Contact Service at the times specified by the service and on each occasion promptly leave the building and the vicinity, unless requested to remain by a staff member of the supervising Contact Service.
7.After 10 sessions the father request a supervision report from the professional supervisor and should such report confirm that the children (or either of them) are ready to spend time with the father without supervision the children spend time with the father as follows; (sic)
(a)For a 2 hour block each alternate Saturday for 3 months between 11am and 1pm; and
(b)thereafter for a 4 hour block each alternate Saturday for 3 months, between 11am and 3pm; and
(c)thereafter for a 6 hour block each alternate Saturday for 3 months, between 11am and 5pm; and
(d)thereafter for a 8 hour block each alternate Saturday, between 10am and 6pm and the father is at liberty to take the children to his residence during this time; and
(e)Thereafter for a one month period each alternate Saturday from 10am to Sunday 10am; and
(f)Thereafter each alternate weekend from 10am Saturday to 6pm on Sunday and by telephone on Monday evenings at 5:00pm with the father to supply the children with a phone.
(g)Such further or other times as may be agreed between the parties in writing.
8.Upon the children spending time with the father pursuant to order 7(f) herein the children spend time with each parent as follows:
(a)During each of the first, second and third term school holidays with the father from close of school until 5:30 pm on the mid-Saturday and with the mother at all other times.
(b)During the long summer school holidays on a week about basis commencing on the last day of the school term and subject to special occasions referred to below with the father to have the first week and the mother having the last week of the school holiday period.
(c)Such further or other times as may be agreed between the parties in writing.
9.The children spend time with each parent on special occasions as follows:
(a)In the event the children are spending only daytime with the father pursuant to order 7(a)-(d) herein the children spend time with:
(i) the father on Christmas Day in 2024 from 10am to 5pm;
(ii) the father on Father's Day from 9am to 5pm; and
(iii) the mother at all other times.
(b)Upon the children commencing overnight time with the father pursuant to order 7(e) herein the children spend time with:
(i) the father:
1.From 1:00pm on the Saturday immediately prior to Father’s Day to 5:30pm on Father’s Day;
2.In even numbered years from 2pm on Christmas Eve to 2:00pm on Christmas Day; and
3.In odd numbered years from 2pm on Christmas Day to 2:00pm on Boxing Day.
(ii) The mother:
1.From 1:00pm on the Saturday immediately prior to Mother’s Day to 5:30pm on Mother’s Day
2.In odd numbered years from 2pm on Christmas Eve to 2:00pm on Christmas Day; and
3.In even numbered years from 2pm on Christmas Day to 2:00pm on Boxing Day.
(c)For dinner on the children’s birthdays from 4:00pm to 7:00pm with the parent who does not have the care of the children.
(d)By telephone on each of the parents’ birthday (in the event the children are not in that parent’s care) from 5pm to 6pm.
10.Changeover occur at the park in [Town W].
11.That the mother ensure that the children continue to attend upon their respective psychologists, for a minimum of monthly appointments if this can be accommodated by the psychologists and in the event monthly appointments cannot be offered, as frequently as recommended by the psychologists and such engagement continue for as long as recommended by the psychologist.
12.That the mother continue to attend upon her psychologist for a minimum of monthly appointments if this can be accommodated by the psychologist and in the event monthly appointments cannot be offered, as frequently as recommended by the psychologist and such engagement continue for as long as recommended by the psychologist.
13.The name of [X] be changed [in spelling].
14.The applicant mother apply to the Victorian Registry of Births, Deaths and Marriages to register the change of the children’s names, in accordance with order 13 Herein and do all such acts and things and sign all such documents as may be required to give effect to that registration AND IT IS REQUESTED THAT the Victorian Registrar of Births Deaths and Marriages Registration Act 1996 (VIC) on the basis (sic) that the Court approves the change of name.
15.In the event that [Y] is diagnosed with Autism, the father enrol and undertake [an] online course […] by [Z Psychology] ([…]), at his expense and provide a certificate of completion to the solicitors for the mother and the ICL.
16.Save as in the case of an emergency the parties will communicate with each other via the “Talking Parents” app and the parties will ensure that the communications are:
(a) respectful; and
(b) strictly child focused.
17.Each party advise the other party of any significant illness, injury or medical condition affecting the child or either of them while in that party’s care within 24 hours save that, in the case of emergency, such advice be given immediately, and each party be at liberty to:
(a) Visit the child in the event of any hospitalisation;
(b) Attend all medical appointments; and
18.Communicate with any treatment medical or allied health practitioner and each party do all such acts and things and sign all such documents (if any) that may be necessary to authorise such communication with the other party including direct access to the child’s medical records.
19.That each parent is to inform the other of any medications prescribed for the child by a Registered Medical Practitioner from time to time and provide the medication and appropriate instructions as to dosage and administration at the time of any changeover.
20.Without admitting the necessity for same, each party be and is hereby restrained by themselves, their servants and/or agents from denigrating the other party, or any member of the other party’s family, to or in the presence, hearing or sight of the child or permitted any third party from doing so.
General Non-Specific Issues
21.Each parent be at liberty to provide a copy of these Orders to Services Australia (Child Support Agency), any school, medical practitioner, treating professional and/or support service that the children attend upon or are engaged with.
22.That the Father and Mother do all such acts and things and sign all such documents to request and authorise any school at which the child attends from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitations for parent/teacher interviews and other information relating to the child’s education to both parents at the expense of the requesting parent.
23.Upon the father commencing time in accordance with Order 7(d), he is at liberty to attend all parent teach (sic) interviews, functions and extra-curricular activities to which parents are ordinarily invited.
24.That the parties do all acts and things to ensure that both parents names and contact details are placed on the child’s school email and contact list and as the child’s emergency contacts.
25.The parties will notify each other within 24 hours of any change to their residential address, telephone number or email address.
The father sought orders in the terms of the Minute of Proposed Order tendered 16 November 2023 (Exhibit F20), which provide as follows:-
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.
3.That the Father attend upon Court Child Services this day and collect the children from Court Child Services.
4.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 metres of 305 William Street, Melbourne.
5.The Father use his best endeavours to forthwith make arrangements for the children to:
(a) Participate in play therapy with a qualified play therapist;
(b) Participate in therapy with a paediatric psychiatrist; and
(c)Participate in therapy with a child psychologist (it being noted that it is intended that each child should have their own independent psychologists).
6.The Father be responsible for the costs associated with the children’s attendances(s) upon the practitioners referred to in Order 6 above.
7.Until 1 June 2024, the children are not to spend time or communicate with the Mother except pursuant to Order 8 of these Orders.
8.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 to be engaged by the Father in consultation with the children’s treatment team at such times and durations as can be accommodated by the family therapist, with the Mother to meet the costs of same.
9.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.
10.The Father be at liberty to provide a copy of these orders and the judgment to the children’s general medical practitioner, paediatric psychiatrist, psychologists, play therapist and the children’s school.
11.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.
12.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.
13.The appointment of the ICL be and is hereby discharged.
14.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.
The ICL sought orders in the terms of the Proposed Minute tendered 16 November 2023 (Exhibit ICL34).
The orders sought by the father and the ICL are in identical terms.
LEGAL PRINCIPLES
Section 60B(1) of the Family Law Act 1975 (Cth) ("the Act") sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child's best interests):-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order, the best interests of the child is the paramount consideration (s 60CA of the Act). Section 60CC(2) and (3) of the Act set out the primary and additional considerations the Court must have regard to in determining what is in a child's best interests. The Court must give greater weight to the need to protect the child from physical or psychological harm from being exposed to abuse, neglect or family violence (s 60CC(2)(b) and s 60CC(2A))). Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order or for any of those considerations to be afforded greater weight than others. Ultimately, the weight to be given to each of the considerations will depend upon the unique circumstances of each case.
“Abuse” in relation to a child is defined in s 4 of the Act and means:-
(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
“Family violence” is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of that person’s family or causes a family member to be fearful. Such behaviour may include (but is not limited to) an assault, a sexual assault, stalking, repeated derogatory taunts, intentionally damaging or destroying property, unreasonably denying a family member financial autonomy or withholding financial support, preventing a family member from making or keeping connections with his family or friends or unlawfully depriving the family member of his or her liberty.
In considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interests as the paramount consideration, ensure that the order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence. The Court may include in orders any safeguards that it considers necessary for the safety of those affected by the order (s 60CG).
As to the manner in which the Court is to take the s 60CC considerations into account, May and Thackray JJ stated in Mulvany & Lane (2009) FLC 93-404 at [76]-[77] as follows:-
It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in Original)
There is a presumption that it is in a child's best interests for parents to have equal shared parental responsibility (s 61DA of the Act). The presumption relates to the allocation of parental responsibility, not the time a child is to spend with either parent. For the reasons set out below, I am satisfied that it is not in the best interests of the children for the parties to have equal shared parental responsibility, and that the father should have sole parental responsibility for making decisions regarding the children’s long-term care, welfare and development.
If there is an order for equal shared parental responsibility, the Court is then obliged to consider whether it would be in the children’s best interests and reasonably practicable for them to spend equal time or substantial and significant time with each parent (s 65DAA of the Act). Given my decision that the father should have sole parental responsibility, s 65DAA considerations do not apply.
What is the Court’s approach to allegations of sexual abuse?
The fact that a case involves allegations of sexual abuse does not alter the Court’s paramount obligation to determine what is in a child’s best interests and to make orders that will promote that child’s best interests. That this is so was confirmed by the High Court in M & M (1988) 166 CLR-69 (“M & M”) per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ (at 76) as follows:-
…[T]he resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance of or rejection of the allegation of sexual abuse on the balance or probabilities.
The High Court noted at page 77 that:-
…[T]here will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring…and assess the magnitude of that risk.
The High Court then considered how to define the magnitude of risk and concluded that the test was best expressed by saying that the Court will not grant custody or access (as it then was) if it would expose a child to “an unacceptable risk” of abuse.
In Isles & Nelissen [2022] FedCFamC1A 97 the Full Court reviewed the jurisprudence in relation to the assessment of risk in parenting matters and particularly in relation to the standard of proof required when assessing the future risk of harm. At [50] to [51] the Full Court noted:-
[50]In Fitzwater, Austin J rejected the proposition that a finding of unacceptable risk needs to be made according to the civil standard of proof, saying:
132.Having eschewed the need for any positive factual finding that the father had sexually abused the eldest child, the mother’s case was instead that the evidence was still sufficiently persuasive to establish the risk of sexual abuse posed by the father to the children, and furthermore, that the magnitude of the risk was unacceptably high, such that it could only be attenuated by the imposition of the children’s permanent supervision when spending time with the father. The trial judge properly understood that to be the nature of the mother’s case, as is evident from the reasons for judgment (at [1], [31], [60], [497], [501]). Consequently, the mother and the trial judge were entirely focussed on what the evidence implied was the risk of harm to the children in the future; not what probably did or did not happen in the past.
133.In civil proceedings, s 140(1) of the Evidence Act provides the “case of a party” must be found proven if the court is satisfied of its proof on the balance of probabilities. For that purpose, the “case of a party” is defined (in the Dictionary to the Evidence Act) to mean “the facts in issue in respect of which the party bears the legal burden of proof”. The substantive law determines where the legal burden of proof falls in respect of facts in issue.
134.It must be borne in mind that proceedings in respect of children under Part VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at 76 ; ZP v PS (1994) 181 CLR 639 at 647). The paramount consideration in Part VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at 188-189). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at 231).
135.The conclusion reached by a court in Part VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”)).
136. In Malec, Brennan and Dawson JJ said (at 639-640):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
and Deane, Gaudron and McHugh JJ said (at 643):
…The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring…
137.The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald & Karrington (2016) FLC 93-726 at [60]; Bant & Clayton (2015) 53 Fam LR 621 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
140.It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No.2) (2009) FLC 93-422 at [56]-[61]; Johnson and Page at [68], [71], [76], [77]).
141.Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the “access” order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father’s appeal was dismissed because the possibility of the child’s past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child’s future sexual abuse.
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
[51]We agree with and adopt that commentary as being a correct statement of the law.
The Full Court confirmed that the determination of evidence on the balance of probabilities is a separate and distinct step to a consideration as to whether an unacceptable risk is demonstrated. At [83] and [85] it stated:-
[83]Though both are evidence-based, the primary judge correctly approached the two separate questions without conflation: on the one hand, whether or not allegations of abuse are proven on the balance of probabilities; and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the frank allegations of abuse.
…
[85]The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.
Hence, having regard to that statement, the task before the Court is two-fold:-
·First, an assessment as to whether the allegations of abuse are established on the balance of probabilities; and
·Second, whether looking to the future, there is an unacceptable risk of harm to the children, regardless of any findings made in relation to the allegations of abuse. That assessment will involve a consideration of where, on the continuum of chance between remote possibility and highly possible, the risk for these children lies and whether “the risk [is] so potent it cannot be tolerated: it is unacceptable” (per Austin J in Fitzwater & Fitzwater (2019) 60 Fam LR 212 at [139]).
The second predictive step is an evidence-based conclusion which will inform the assessment of what is in the children’s best interests.
In determining the parenting dispute, I am not required to make findings on every factual dispute raised by the parties (Baghti & Baghti & Ors [2015] FamCaFC 71). The paramount issue for the Court is to determine what orders are in the best interests of the children in the circumstances of the case; in the process of that determination, the Court cannot be diverted by the supposed need to arrive at a definitive conclusion as to each and every factual dispute.
ISSUES
The issues that emerge from the parties’ evidence include:-
·Has the father committed family violence against the mother and/or the children?
·Has the father sexually abused X?
·Does the father pose an unacceptable risk of harm to the children?
·Has the mother sought to alienate the father or undermine the father’s relationship with the children?
·Does the mother pose a risk of psychological and/or emotional harm to the children?
·If either parent poses a risk of harm to the children, what arrangements should be made for their care, including what, if any, time should be spent with the other parent?
THE EVIDENCE
In determining the matter, the relevant standard of proof is the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:-
(a)The nature of the cause of action or defence; and
(b)The nature of the subject-matter of the proceeding; and
(c)The gravity of the matters alleged.
I have read all documents upon which the parties have relied and the exhibits that were tendered during the hearing.
In what follows, statements of fact constitute findings of fact. In determining the matter, I have considered all of the evidence and had the benefit of observing the appearance and the demeanour of the father, the mother and those witnesses who were required for cross‑examination. I have carefully considered the matter and in making findings to the requisite standard, I have had regard to all the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.
THE MOTHER’S EVIDENCE
The mother was cross-examined by Counsel for the father and Counsel for the ICL over five days. I found her to be an unimpressive witness whose evidence was at times unreliable, and in relation to some matters, plainly untruthful. The mother’s account of some events was unbelievable or implausible. Much of the mother’s evidence of events was marked by contradictions and inconsistency.
Throughout her oral evidence, the mother displayed a fixed and negative view of the father.
The mother demonstrated little capacity to reflect on her own role in the parental dispute. She presented as blameless in the conflict with the father. Further, she demonstrated little insight as to the impact of her behaviours on the children, particularly with respect to their exposure to her attitude towards and view of the father.
There were many instances where the mother’s oral evidence conflicted with her earlier reports of events to family violence workers. There were clear inconsistencies between the mother’s oral evidence and her reports of alleged family violence by the father to police, health care workers and mental health care practitioners. Indeed, it emerged from the material presented to the mother during the course of cross-examination that the mother’s allegations as to the father’s violent behaviour became more extreme with the passage of time, such that many of the allegations reported by her to AA Domestic Violence Service in 2022, almost two years after the parties’ separation, including her contention that the father had cut her with razor blades,[3] were not matters raised by her in her affidavits filed in these proceedings in the months following the parties’ separation.[4] Indeed, the mother’s allegation that the father had cut her with razor blades, which on any view is an allegation of extreme violence, was not raised by her at all in her trial affidavits relied upon in the proceedings.
[3] Exhibit ICL30, p. 9.
[4] Exhibit ICL36 and ICL37.
Mother’s sexual abuse history
Similarly, the mother’s account of her own history of abuse varied, depending upon which source was relied upon. For example, in her second affidavit filed in the proceedings, the mother denied the father’s allegation that she had a traumatic childhood.[5] The mother provided a like account to Mr P during his assessment of her in January 2021.[6] Yet, the notes produced by BB Services record the mother’s reported history as follows:
[The mother] has a sexual abuse history perpetrated by [relatives] from a very young age (4yrs old – went on for 2yrs). [The mother] was not believed by her mother when she disclosed. [The mother] was also [sexually assaulted] when she was 14 […]. [The mother] has not received any therapeutic support regarding this.[7]
[5] Exhibit ICL37, paragraph 44.
[6] Affidavit of Mr P filed 10 February 2021, p. 37, paragraphs 15 – 16.
[7] Exhibit ICL33, p. 48.
In a referral prepared by her then treating Doctor, Dr CC in mid-2017, he records the mother’s report that:
[She] was [sexually assaulted] at the age of 13 […], and was sexually abused at the age of 2 along with her sister. The police havn’t (sic) been involved in either case. The abuse at the age of 2 was from the partner of [her] mum…[8]
[8] Exhibit F15.
The mother was cross-examined about her reports to agencies that she had been sexually abused as a child. During her oral evidence, the mother confirmed that she had been abused, but denied that her maternal grandfather was the perpetrator; rather, she alleged that it was a former partner of her mother who had abused her. However, during her oral evidence the mother admitted that she had no recollection of the abuse by her mother’s former partner but that her older sister had “assumed” that she was abused.
The mother also confirmed during her oral evidence that she had been sexually assaulted as a teenager but maintained that the details recorded by BB Services were not accurate. The mother could provide no plausible explanation for the inconsistencies in her personal history as between her first affidavit, the report of Mr P, the records of BB Services and letter of Dr CC. The mother was the reporter of all information recorded in those documents.
Mother’s suspension from the DD Volunteer Service
Another example of the mother’s lack of candour arose in relation to her suspension from the DD Volunteer Service. Following the parties’ separation, the father returned to DD Volunteer Service equipment and clothing the mother had left at the home. In early 2020, the father was interviewed by a member of the DD Volunteer Service in relation to the property he had returned that was alleged to have been removed by the mother and retained by her (Exhibit ICL2). Following that interview, the mother was charged with offences, including acting dishonestly by removing from the DD Volunteer Service and retaining in her possession without permission, equipment. She was also charged with acting dishonestly by appropriating without permission, clothing items (Exhibit ICL3). As a result of those charges the mother was suspended from the DD Volunteer Service with effect in mid-2020.
On their face, those matters have no relevance to the current proceedings. However, the mother raised these matters in the first affidavit filed in these proceedings, alleging that the father was spreading lies about her. At [21] of her affidavit filed 18 June 2020 (Exhibit ICL36) the mother deposed as follows:-
…The husband has been spreading lies around the area about me. For example, when I left the [DD Volunteer Service] in [early] 2020, I forgot that I had [pieces of equipment] in my bag. I informed [the DD Volunteer Service] that I would return them when I could get to the house as my bag was there but the husband had already handed them in and told the [DD Volunteer Service] I had stolen them. The matter is being investigated and until then I have been stood down.
The mother raised that issue again in her second filed affidavit, being the affidavit filed 10 September 2020 (Exhibit ICL37) where at [58] she deposed:-
[Early] this year, [the father] contacted the [DD Volunteer Service] stating I had stolen them. I was investigated with no charges being made against me as it could be seen that [the father] was trying to incriminate me due to his malice towards me. [The father] also alleged I had stolen [clothing items] and fraudulently used a [DD Volunteer Service] logo for my “own profit”.
I am satisfied, having regard to the evidence adduced as to the father’s interview by the DD Volunteer Service and the charges laid against the mother by the DD Volunteer Service in relation to these matters, that the father did not act in malice. Rather, those records establish, contrary to her sworn evidence, that the mother was charged with offences of dishonesty in relation to DD Volunteer Service property and was suspended from the DD Volunteer Service due to that conduct. Only when challenged during cross-examination did the mother concede those matters.
Mother’s relationship with Mr H
Throughout these proceedings, the mother has maintained that Mr H, the person with whom she has lived since separation, is not her domestic partner and that she is not in a relationship with him. In her trial affidavit, the mother confirms that she and the children live in a three‑bedroom dwelling with Mr H. She deposes that she and the children each have their own bedroom and that Mr H sleeps “on a futon in the living room”. As to the nature of their relationship, the mother deposes as follows:-
123.[Mr H] is a close friend and support to me; he helped me when I left the father.
124.After I left [the father], we told people that we were in a relationship, so as to try to get the father to leave me alone. Centrelink and my support services knew that we were not actually together. Shortly after that, in around [early to mid] 2020, we did try a relationship. However, I was not ready to be in a relationship. Since then, we have been best friends.
The father has contended throughout the proceedings that the mother and Mr H are in a relationship. In support of that contention, the father relied upon Facebook posts of both the mother and Mr H. On the mother’s Facebook page, she posted:-
Well this just happened [Mr H] asked me to marry him […] I couldn’t be any more happier! I’m glad we found each other![9]
[9] Exhibit F4.
Following that post were photographs of what appears to be an engagement ring on her finger (Exhibit F4).
Mr H also posted about his relationship with the mother on his Facebook page. One such post is a photograph of a tattoo which includes both of their names.[10]
[10] Ibid.
Accompanying the photo of the tattoo are pictures of Mr H and the mother together, as well as an individual photograph of the mother. Above the photographs described, Mr H has posted “Love this girl forever” (Exhibit F4).
The father also relied on a further post by Mr H, who was with the mother at an event venue. The post reads:-
All aboard with my wifey to be! Toot toot[11]
[11] Ibid.
Following that post were photographs of the mother and Mr H (Exhibit F4).
The mother was cross-examined in relation to these matters. She could provide no plausible explanation as to why her name was tattooed onto Mr H.
As to the Facebook posts, the mother stated during cross-examination that those posts had been made in an endeavour to communicate to the father that her relationship with him was over, as she had commenced a relationship with Mr H. The difficulty with that proposition is that later in her evidence the mother stated that she had blocked the father from accessing her Facebook page. As a result, the father could not view the material posted by the mother in relation to her relationship with Mr H.
Given the mother’s allegations as to the father’s propensity for violence, her actions, in my view are more likely to have inflamed the situation rather than diffuse any upset or anger felt by the father following the parties’ separation. The mother could provide no plausible explanation for her Facebook posts, Mr H’s tattoo or the circumstances around her cohabitation with Mr H.
Those issues were compounded by the mother’s representations to the support agencies attended by her as to the nature of her relationship with Mr H. The notes of AA Domestic Violence Service in relation to the mother’s attendances note Mr H to be the mother’s partner during numerous attendances by the mother, for example in mid-2021 the notes record:-
[The mother] states she and her partner [Mr H] try to make [X] feel safe…[12]
[12] Exhibit ICL31, p. 3.
Further, at her attendance at the AA Domestic Violence Service in early 2022 the mother disclosed “family violence perpetrated by [Mr H] (current partner/PERP)” to EE Family Service in early 2022 (Exhibit ICL30).
Similarly, at her first intake session at BB Services, the mother is noted to have “new partner [Mr H] (38)” (Exhibit ICL19).
Again, the mother could provide no credible explanation as to why the agencies attended by her recorded that Mr H was her partner.
The father’s contentions as to the mother’s relationship with Mr H have been squarely raised by him in his affidavit material. That the mother did not call Mr H, who is a member of her household even if not her partner, to give evidence in the proceedings, is in my view a significant omission in her case. The mother’s evidence as to her relationship with Mr H was unbelievable; the mother’s concession that her name was tattooed into Mr H’s skin whilst maintaining that they were not in a relationship is nonsensical.
In my view, the evidence adduced before the Court overwhelmingly supports the view that Mr H is the mother’s partner. That the mother maintained her position that they were not in a relationship during cross-examination in the face of that evidence reflects poorly on the mother’s credit.
The mother demonstrated little capacity to reflect upon her evidence or to make concessions, where appropriate.
As a result of the above matters, I have grave reservations as to the weight to be attached to the mother’s evidence, and where it conflicts with the evidence of the father, I prefer his account of events.
THE MOTHER’S WITNESSES
Dr M
Dr M is a Counselling Psychologist who has consulted with X on four occasions. Her report in relation to those attendances, dated 15 September 2022, is annexed to her affidavit filed 21 September 2022.
Dr M was required for cross-examination. During her oral evidence, Dr M confirmed that she had not consulted with X since April 2022. She also confirmed during her oral evidence that, in fact, she had attended upon X for only three sessions and not four as indicated in her report.
Dr M confirmed that during those sessions X did not engage “overly well” with her. She also confirmed that the decision for X to have a break in therapy was instigated by the mother.
Dr M also confirmed that the description of the treatment provided to X in the second paragraph of her report was not conducted by her, but rather is a summary of the notes of Ms FF, the Psychologist who previously attended upon X, and who did not give evidence in the proceedings. Dr M confirmed that she could not attest to the accuracy of those statements, including the assessment of X’s symptoms and their impact on her wellbeing.
Having regard to the few sessions Dr M conducted with X, her evidence that X did not engage well with her, and that the section of her report relating to X’s treatment and symptoms draws upon the notes of another Psychologist who has not given evidence in the proceedings, I am satisfied that little weight can attach to Dr M’s report.
Ms N
Ms N is a Psychologist Senior Clinician who has consulted with the child Y. Ms N prepared a report in relation to her treatment of Y. That report is dated 16 September 2022 and is annexed to Ms N’s affidavit filed 5 October 2022. Ms N was not required to attend for cross‑examination and as such, her evidence is unchallenged.
Ms N confirms that she first consulted with Y in July 2021 when he was aged four years. She states in her report that in total, at the time of that report, Y had attended five sessions. In addition, Ms N reported that 11 appointments had been booked and subsequently cancelled and that three further appointments were booked for Y that he did not attend. Further, of the five sessions attended by Y, only three were face-to-face, with the remaining two sessions conducted by telephone; as a result, those sessions were primarily sessions with the mother.
Ms N reported that whilst Y engaged well with her during the few sessions she had with him face-to-face, the therapy was not effective due to his infrequent attendance. Ms N confirmed that due to the short length of time she has spent with Y, she can provide no diagnosis.
Ms N observed that Y responds with “caution and fear whenever his father is mentioned” and further that he seeks the mother’s permission and reassurance when attempting to speak on the matter of his father.
I accept Ms N’s unchallenged evidence.
Ms GG
Although the mother identified the affidavit of Ms GG, filed 5 September 2022 in her Case Outline as a document relied upon in the proceedings, Counsel for the mother confirmed during her opening that that witness was not available for cross-examination and that the document was not relied upon. Accordingly, that affidavit has not been read.
THE FATHER’S EVIDENCE
The father impressed as a considered, gentle and simple man. At times he struggled to find words in response to questions asked; he readily acknowledged those difficulties during the course of his evidence. Nonetheless, he impressed as a truthful witness who was prepared to and did make concessions where appropriate.
The father denied all allegations raised by the mother that he was a perpetrator of family violence or that he had abused the children. Many of the allegations made by the mother to agencies were not allegations contained in her trial affidavit material and were not put to the father. Accordingly, no weight can attach to those matters.
As to the allegations that were raised by the mother in these proceedings, the father was steadfast in his denial of violent or abusive behaviour directed towards the mother or the children.
Where specific allegations were put to him, the father was able to provide context as to the events alleged and did make concessions as to his own conduct during such events. For example, as to the dispute that occurred between the parties in mid-2016 where the mother alleges that the father threw the housekeys, the mother alleges that the father “dropped his left shoulder and thrust it into [her] left upper chest area”.[13] During cross-examination, the father admitted that there was an argument between the parties in the kitchen area of the home. However, he alleges that it was he who was a victim of the mother’s aggressive verbal abuse and that he pushed past the mother in an endeavour to remove himself from the dispute. He denies the allegation that he dropped his left shoulder into the mother’s chest. The father’s evidence in relation to that event was detailed and plausible and I accept his account of that altercation.
[13] Exhibit F1.
Contrary to the mother’s allegations, throughout his oral evidence the father was a calm and passive witness. He appeared bemused and dumbfounded by many of the mother’s allegations.
The father presented as a truthful witness who did his best to honestly answer questions asked. He was able to make concessions where appropriate. He presented as considered and reflective, insightful, and focussed on the needs of the children.
THE FATHER’S WITNESSES
Ms D
Ms D is the father’s partner. Ms D affirmed an affidavit in support of the father’s application filed 11 October 2022.
Ms D is aged 42 years, is employed in the service industry and is the mother to two children who live with her, E aged 13 and K, aged 10 years. Ms D met the parties when the mother arranged for her to provide a service to the father. Ms D treated the father for pain associated with his injuries.
The father commenced living at the home of Ms D in mid-2020. They commenced a relationship in mid-2021.
Ms D deposes that since the father commenced living at her home there have been improvements in his health; he has lost considerable weight and has increased his muscle tone. Ms D deposes that the father is no longer reliant on pain medication.
Ms D deposes that the father is quiet and calm in the home, that he cooks with the children and helps them with their homework. She deposes that her children respect the father and look up to him. Further, Ms D deposes that the father is helpful around the home and contributes financially towards the family’s living expenses.
As to the mother’s allegations that the father abuses alcohol, Ms D deposes that since living with the father, she has not seen him consume more than two beers in one sitting and that she has not seen him drink alcohol to excess. She confirmed that she does not hold any concerns as to the level of alcohol consumed by the father.
Further, as to the allegations that the father has committed acts of family violence against the mother and the children, Ms D deposes that she has not witnessed the father act in a manner that is abusive or violent. She does not hold any concerns about the father’s conduct or behaviour in her home and does not consider him a risk to her or the children.
Ms D confirmed her support for the father’s application that the children live with them.
Ms D was cross-examined by both Counsel for the mother and Counsel for the ICL. She presented as an open and thoughtful witness throughout the cross-examination.
Ms D demonstrated significant insight as to the impact of the proceedings on the children as well as her own children. She confirmed that her own children were aware that the father had children that he was not permitted to see. She described the situation as “my children living with the ghosts of [the father]’s children”.
Ms D confirmed that she had undertaken preparation for the possibility that the father’s children would live with or spend time at her home. Beds have been set up for the children and she has made enquiries of the schools attended by her children as to the availability of places for the children.
Ms D was cross-examined as to how her family would adapt to the presence of the father’s children, particularly given the likely resistance by them to a move to the father’s care. Ms D acknowledged the likely significant impact of the arrival of the children in her household. Ms D confirmed that the family was likely to require the intervention and support of psychologists and that she and the father would need to maintain close connection with the children’s schools.
Ms D confirmed that the father is an important part of her family unit. She described that the family do things together and that her children respect the father. She confirmed her view that the father has provided valuable support and care for her children. For example, she noted that her son E has difficulties with reading. For his most recent birthday, the father purchased E a model car for them to work on together. The condition the father placed on the gift was that before it could be driven, E was required to read the instruction manual. Ms D viewed the father’s approach as positive encouragement to E, noting that he read the manual willingly and he and the father worked together on the car. It was submitted by Counsel for the ICL, and I accept, that that evidence indicates the thoughtful and creative approach adopted by the father in caring for and supporting E.
That example was given by Ms D unprompted. Ms D impressed as being child-focussed and insightful as to her children’s needs. She conceded that her daughter who had experienced bullying in the past has expressed concern as to what would occur if X is a bully. Ms D’s evidence was that she responded to K that they will deal with that situation if it arises. She acknowledged that she cannot predict what it will be like if X becomes a member of her household, as she hasn’t seen X for approximately four years.
When questioned by Counsel for the ICL as to her understanding of X’s presentation, Ms D acknowledged that she appears hostile. Ms D confirmed her awareness of the allegations made that the father has abused the children and confirmed that she does not believe those allegations to be true. However, she conceded that X believes those allegations, and would probably be distressed and confused if placed in the father’s care.
Ms D also confirmed that she and the father have support from the children’s school, mental health services, the paternal grandmother, her own parents, and a network of friends in their town.
Ms D impressed as a considered and thoughtful witness. She gave specific and detailed examples as to how her family manages conflict, specific examples of how the father engages with her children, and as to what preparations have been made in the event the children are placed in the father’s care.
I accept the evidence of Ms D.
Ms Q
Ms Q is the father’s mother, the children’s paternal grandmother. She filed an affidavit on 12 October 2022 in support of the father’s application. Ms Q was not required for cross‑examination. Accordingly, her evidence is unchallenged.
Ms Q deposes as to her history as a carer over a period of more than 15 years. She deposes that she has cared for a number of children during that period.
Ms Q deposes that she cared for the children from the time of their birth. She deposes that she had a close relationship with X, in particular.
Ms Q deposes as to her observations of the father as “a great support to [the mother]”. She describes him as a “hands-on dad” with the children.
Ms Q deposes that she provided support to the mother during medical treatment, and also following the birth of the children.
Ms Q deposes that she never saw the father harm the children.
Ms Q deposes as to her close relationship with X prior to the parties’ separation. She observed X to be a caring, loving, and compassionate child who used to love staying with her. Ms Q deposes as to activities they enjoyed together including reading, crafts, and baking. She deposes that X would also read books to her via Facetime. Ms Q also deposes that she had a loving relationship with Y whom she described as “sweet and cuddly”.
Ms Q deposes as to occasions when the mother would call her, often late at night and express her concern that she was “turning into her mother”. On one occasion, Ms Q deposes that the mother told her she had grabbed X and proceeded to hold her against the wall.
Regarding the concerns raised by the mother as to the father’s functioning, Ms Q confirmed that following the accident, the father did have issues with excessive alcohol consumption. However, Ms Q deposed that she had not observed those issues for more than 10 years.
Further, Ms Q confirmed that she had never witnessed the father act in a manner that was abusive or violent and that she did not hold concerns as to the father’s conduct or behaviour. She observed the father to be a calm and patient man. That evidence accords with my observation of the father’s demeanour when giving his evidence.
Ms Q confirmed her support for the father’s application that the children live with him. She also confirmed her preparedness to support the father’s time with the children.
I accept the unchallenged evidence of Ms Q.
Mr R
Mr R is a Clinical Psychologist who has been treating the father since early 2021. Mr R affirmed an affidavit in the proceedings filed 19 October 2022. Annexed to that affidavit is a report of Mr R dated 12 October 2022 in relation to his assessment and treatment of the father. Mr R was not required for cross-examination. Accordingly, his evidence is unchallenged.
In his report, Mr R confirms that he has had 14 appointments with the father between 2021 and 2022. He confirms that some of those appointments were also attended by the father’s partner, Ms D.
Mr R confirmed that upon initial presentation, the father had symptoms consistent with major depressive disorder with anxious distress. It is Mr R’s assessment that those symptoms are closely connected to the breakdown of the parties’ relationship and the father’s separation from his two children. He also reports that the father’s symptoms are impacted by the ongoing court proceedings and multiple investigations undertaken by Victoria Police. Accordingly, it is Mr R’s assessment that the father’s current mental health concerns can be described as situational or reactive in nature. It was Mr R’s assessment that the resolution of the father’s symptoms will significantly depend upon the resolution of the court proceedings and the finalisation of any police investigations.
I accept the unchallenged evidence of Mr R.
Ms S
Ms S is a Neuropsychologist who has provided assessments of the father. Her first assessment was conducted in 2018 and is contained in her letter to the father’s treating doctor, Dr HH dated 19 October 2018 (Exhibit M3). Ms S undertook a review of the father in October 2022 and that assessment, dated 23 November 2022 is annexed to her affidavit filed 5 December 2022.
Ms S was not required for cross-examination. Accordingly, there is no challenge to her evidence or assessment of the father as contained in her affidavit.
Ms S conducted a range of assessments of the father as detailed in her report.
Ms S assessed the father’s functioning as follows:-
[The father’s] results were consistent within and between tests and formal embedded measures of authenticity indicated satisfactory effort. His results are interpreted as representative of his current level of cognitive functioning.
[The father’s] neuropsychological profile on this occasion was similar to his previous pattern and remains one of relatively strong visuospatial abilities, now improved to lie in the Superior range. On this review, the improvements in his performances across all cognitive domains were substantial. Whilst people often benefit from test-retest inflation of scores, four years is long enough for this to be of little concern. There remain some mild reductions in the domains of attention and executive functioning but [the father] reported that cognitive difficulties are not interfering with his daily functioning or his work.[14]
[14] Affidavit of Ms S filed 5 December 2022, annexure MS-1.
There was no challenge to that evidence, which I accept in its entirety.
EXPERT WITNESSES
Mr P
Mr P is a Clinical Psychologist engaged by the Independent Children’s Lawyer to undertake a psychological assessment and evaluation of the mother and the father. His assessments of the parties dated 3 February 2021 in relation to the father, and 14 January 2021 in relation to the mother, are annexed to his affidavit filed 10 February 2021. Mr P was not required for cross‑examination and his assessment of each of the parties is therefore unchallenged.
In relation to the father, Mr P undertook a comprehensive assessment of the father’s risk of sexual offending and violence. Mr P concluded that the father returned “minimal attributes relevant to sexual recidivism”. He further noted the father has no formal sexual offence history or current criminal charges and concluded that the father’s risk for sexual recidivism is estimated to fall within the “low” range.[15]
[15] Affidavit of Mr P filed 10 February 2021, p. 28, paragraph 52.
Mr P’s assessment of the mother was similarly unremarkable, save that his record of the mother’s report of her family history is at odds with disclosures made by her to family violence agencies and the Court during her oral evidence.
Mr P’s evidence was not challenged. His assessment of the parties was conducted some two‑and-a-half years before the commencement of the trial. Since his reports were prepared, the parties have engaged with Ms B, Psychologist, Mr F, Family Consultant and Ms C, Court Child Expert. Given that more recent evidence, I am satisfied that Mr P’s assessment is of limited assistance to the Court.
Mr F
Pursuant to orders made by consent on 8 August 2022, the parties attended upon Mr F for the purposes of reportable therapeutic counselling. Notation B to those orders states that the purpose of the counselling is to “re-establish the relationship between the children and the father”.
Mr F’s report in relation to that counselling is dated 1 February 2023 and is annexed to his affidavit filed 2 February 2023.
In that report, Mr F details the material read, and confirms that he conducted Zoom interviews with the father and his partner, and with the mother separately in August, September and October 2022. Further, he conducted face-to-face interviews with the mother and the children together and separately on 31 October 2022.
Notwithstanding the content of the orders made by consent, Mr F reports that engagement with the mother was complicated as she did not appear to understand the role of family therapy or that the intent of the therapy was to re-establish the relationship between the father and the children. Mr F reports that he attempted to explain the orders to the mother, who became distressed. It was his observation that the mother was “resistant to the children being involved”.[16]
[16] Affidavit of Mr F filed 2 February 2023, annexure MF-1, paragraph 4.
In relation to his session with the children, Mr F reports as follows:-
In a session with the children alone it became clearly evident that [X]…was highly resistant to any suggestion that she see [the father]. It was also clear that [Y] was less resistant. [Y’s] suggestion that he would see his father saw [X] become significantly verbally distressed with [Y] and she was observed to argue the pint (sic) and suggest to the writer that he was not aware of what he was saying. [Y] responded calmly suggesting he knew exactly what he was saying.[17]
[17] Ibid paragraph 16.
Mr F also observed X to be anxious and defensive and reported that her rejection of the father was “palpable”. Mr F considered that it was open to interpretation as to why X responded in this manner.
Mr F confirmed that he spoke with the children about it being alright to want different things. He confirmed that Y remained resolute in his view and rejected X’s proposition that he did not know what he was saying.[18]
[18] Ibid paragraph 18.
Following that session, Mr F reports that the mother telephoned him to inform him that Y had misunderstood what was said, that he was confused, and that he was currently distressed. Mr F reports that he could hear a child crying in the background and in the circumstances, suggested to the mother that she end the call so that she could attend to him. The mother was invited to contact Mr F at another time.[19]
[19] Ibid paragraph 19.
In conclusion, Mr F noted that it appeared to be the view of the mother that having attended upon him once, she considered that she had met her obligations under the orders and may not return. Mr F noted the unresolved issues between the parties as to their conflicting allegations against the other, and confirmed that a testing of the evidence may be required before any further therapeutic interventions were undertaken.[20]
[20] Affidavit of Mr F filed 2 February 2023, annexure MF-1, paragraphs 23-24.
Mr F holds a tertiary qualification and conducts a practice as a private Family Consultant. There was no challenge to his training, qualifications or expertise and he was not required for cross-examination. Accordingly, I accept his unchallenged evidence as to his interactions and observations and assessment of the parties and the children.
Ms B
Ms B is a Psychologist and Social Worker. She has experience as a Counsellor with the Court and also as a Family Dispute Resolution Practitioner. She has more than 30 years’ experience in psychology and social work, particularly in relation to family and child issues, and 20 years’ experience in assessment and report writing in family law disputes. There was no challenge to Ms B’s professional qualifications.
On 6 February 2023 orders were made by consent for the parties to attend upon Ms B for reportable family therapy.
Order 2 of those orders required the parties to comply with all reasonable directions and recommendations of Ms B. In addition, orders were made for the mother to obtain a mental health care plan from her general medical practitioner and obtain a referral for her to attend upon a psychologist for therapeutic support, including to provide her with support in her participation in family therapy.
Pursuant to those orders, Ms B consulted with the parties and Ms D, and conducted interviews and observations of the mother and the children between March and July 2023. Ms B’s report in relation to her therapeutic interventions dated 7 August 2023 is annexed to her affidavit filed 15 August 2023.
As to the mother’s presentation, Ms B reported as follows:-
[The mother] appears to be totally fixed on the children not having any contact with their father at this stage of their lives. She believes it is just too traumatic for them and [Y] is currently having counselling for trauma, as well as treatment for other issues and possible Autism Spectrum Disorder. [The mother] at one point said she would not have had any problems with [the father] seeing the children if it had not been for the allegations of sexual abuse. This was somewhat confusing as one point [the mother] said the whole story of the sexual abuse allegations did not come out until about 8 months after the separation, but despite this there had been no contact between [the father] and the children during that time. [The mother] believes the children did not have a very positive relationship with their father and that he yelled at them constantly and had “beaten them til they were black and blue” which was a response to the allegations of sexual assault which did not appear to have caused any injury and were likely to have limited impact on the children given their ages, the lack of moral concept particularly for [Y] who was still a toddler and selective memories of children around his age, and for [X] who would have still been under 6 years old.[21]
[21] Affidavit of Ms B filed 15 August 2023, annexure MB-2, paragraph 15.
I accept that the children do not currently have a close relationship with the father. I also accept that X is fearful of the father.
The evidence of the experts is that the children refer to the father by his first name. The mother’s evidence is that this has been the case since a period of weeks following the parties’ separation. Given that the children were aged only six years and two years at the time of separation, that this has occurred must squarely be the responsibility of the mother. Even more concerning than the children’s adoption of the first name when referring to their father, is the fact that the children have been referring to Mr H as “Dad” since shortly following the parties’ separation. I am satisfied that the mother’s conduct in either encouraging or facilitating the adoption by the children of those names, has served to further diminish the father’s position in the children’s lives.
The evidence of the father and the unchallenged evidence of Ms Q, the paternal grandmother, is that prior to the parties’ separation the children shared close and loving relationships with both parents.
The unchallenged evidence of the paternal grandmother, which I accept, is that the father was a “hands-on” father who was actively involved in the children’s care. Further, Ms Q deposes that she too was actively involved in the care of the children and in supporting the mother following their births. I accept that unchallenged evidence.
(c) the extent to which each of the child's parent has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The father has not spent time with the children since the parties’ separation. He has actively sought time with the children since the commencement of the proceedings in June 2020.
To that end, the father sought the assistance of Ms T at the family contact service who confirmed her willingness to assist the family. The father submitted his application to that service in late 2020. The mother never submitted her application to the service and as a result the parties’ application was removed from the waitlist (Exhibit ICL6).
On 1 December 2020, orders were made by consent requiring both parties to enrol in a supervised contact service to join its waitlist. The mother confirmed during her oral evidence that she had not complied with that order.
A series of orders have also been made to enable a reestablishment of the father’s relationship with the children through family therapy. On 9 February 2022, orders were made by consent for the parties to commence family therapy at VV Family Services, City JJ or such other service as nominated by the Independent Children’s Lawyer. Family therapy did not proceed in accordance with those orders.
As a result, further orders were made by consent on 8 August 2022 that the children and the parents attend upon Mr F for the purposes of family therapy. Mr F recorded in his report annexed to his affidavit filed 2 February 2023 that the mother was resistant to the children being involved in family therapy, and that despite the orders made by consent, the mother was not prepared to have the children interact with the father due to her perceived unacceptable level of risk.[68] Mr F assessed that the mother “was invested in ensuring that no time between [the father] and the children occurs”.[69] That evidence, which I accept, was not the subject of challenge.
[68] Affidavit of Mr F filed 2 February 2023, annexure MF-1, paragraph 22.
[69] Ibid, paragraph 24
Further orders were made for the parties to engage in family therapy on 6 February 2023. That therapy was to occur with Ms B. As noted earlier, the mother was again resistant to family therapy occurring and there was no attempt to reintroduce the children to the father in the sessions conducted pursuant to those orders. At [15] of her first report Ms B observed that:-
[The mother] appears to be totally fixed on the children not having any contact with their father at this stage of their lives.[70]
[70] Affidavit of Ms B filed 15 August 2023, annexure MB-2, paragraph 15.
When Ms B raised with the mother the prospect of her seeing the children with the father, Ms B reports the mother did not agree to this occurring, stating that the children would be traumatised by the process. Shortly following that discussion, the mother informed Ms B that she had made a notification to the Department of Families, Fairness and Housing (“DFFH”) in respect of the matter.[71] As a result, the children spent no time with the father in that setting.
[71] Ibid paragraph 17.
Orders were again made for family therapy on 6 September 2023. Whilst the children had two sessions with the father, the opportunity for further interaction with therapeutic support was thwarted as a result of the undermining of the therapeutic relationship between the children and Ms B, which appears to have occurred between the first and second sessions, when information was shared with the children regarding court processes.
I accept that the father has persisted with his application to spend time with the children or have them live with him notwithstanding the barriers placed in his path arising from the allegations raised against him in the course of these proceedings.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child;
No submissions were made by either the mother, the father or the ICL in relation to this consideration.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
It was submitted on behalf of the mother, and I accept, that the children will be traumatised upon the transition to the father’s care. It is a significant shift in their world; they will live with the father and his partner in circumstances where, until now, he has been presented to the children as a person to fear who has perpetrated physical and sexual abuse against them.
Both Ms B and Ms C agreed that the proposed transition would be difficult for the children. Nonetheless, both agreed that if the children remained in their current situation, their prospects were grim; it was their view, which I accept, that the children are currently living in traumatic circumstances. Further, both agreed that there was a prospect of greater stability, improved resilience, the opportunity of having relationships with both parents and the opportunity to establish healthy relationships with family and others if they move to the father’s care. I accept that evidence.
I note that even the experts engaged in this matter experienced challenges and difficulties in their interactions with the mother. For example, the mother’s response to the proposals by Ms B that the children have joint sessions with the father, was her reports to DFFH in relation to those proposed therapeutic interventions. Given that history, I am satisfied that there is little prospect that the children will ever be able to restore their relationship with the father if they remain in the mother’s care.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The father lives in Town J. He is engaged in full-time employment there. The mother lives in Town G, which is approximately two hours’ drive from the father’s home. The mother’s evidence is that she has casual employment. She also indicated a desire to resume more regular employment at the conclusion of these proceedings.
The father will be principally responsible for the support of the children upon the transition to his care. He is unlikely to receive anything more than modest support from the mother. In those circumstances I am satisfied that it is appropriate that the mother meet the costs of any supervised time with the children.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
toprovide for the needs of the child, including emotional and intellectual needs;
The mother has been the sole caregiver for the children over the past three-and-a-half years. I am satisfied that the mother has failed to appropriately support the children’s emotional and intellectual needs since separation.
The children have attended upon numerous counsellors over that period and had to repeat their history of alleged trauma at the hands of the father to each of those therapists. When those therapists have sought to have individual appointments with the children, particularly X, the children have discontinued with those therapists. This was the position with Ms RR, Dr M, Ms FF, Ms N, Ms TT and Ms WW. I am satisfied that the children have had little opportunity to consistently engage with a therapist in the aftermath of the parties’ separation.
Ms B assessed the situation as follows:-
[The mother] has now been the primary caregiver for the children for the past 3 years, and it appears that almost her whole being is centred on the children and seeking appropriate care and treatment for them. It was put to [the mother] that the intensity of the trauma seemed puzzling given the children had not had any contact of any description since the separation. This was especially in light of the intensity of treatment, which should have had significant effects in terms of reducing any trauma over that time frame. As previously stated [the mother] saw the traumatic experiences as being “burnt into their brains”, but whatever their experiences any treatment organised by [the mother] needs to ensure that the children are not having relived experiences, or that going over and over the incidents is not placing the children at risk of being retraumatised and reinforcing the narrative that their father is totally bad and unable to offer the children anything in terms of positive experiences or relationships.[72]
[72] Affidavit of Ms B filed 15 August 2023, annexure MB-2, paragraph 19.
The father also called into question the mother’s failure to ensure the children’s regular school attendance. X’s Semester 1 Report from L School for 2021 records that she had a total of more than 25 days absent from school during that period (Exhibit ICL11). In Semester 1 of 2022, a total of more than 15 days were recorded as absent for X for that period (Exhibit ICL13).
The evidence before the Court is that the children’s attendance at school has been inconsistent, such that teachers have commented upon it in their assessments. For example, in her Semester 2 Report for 2021 X’s art teacher commented as follows:-[73]
Due to [X’s] frequent absences, she has missed vital information and understandings of art projects being taught. Therefore, she does not always get projects finished. It is important for [X] to attend school regularly so that she can make progress in the area of Art.
[73] Exhibit ICL12.
In the same school report, X’s language teacher commented as follows:
[X] also needs to improve her attendance, as her frequent absences have left gaps in her knowledge and skills.
Similarly, X’s regular attendance at counselling has not been facilitated by the mother. She is noted to have routinely cancelled appointments and changed practitioners, which has resulted in the children not having developed a supportive therapeutic relationship with counsellors and has served to reinforce the narrative that the father poses a threat as the children. For example, in relation to BB Services, the notes produced indicate sporadic engagement by the mother with that service between early 2020 and late 2020. The notes record missed appointments on two occasions, a cancelled appointment on one occasion, and further cancelled appointments in the following month. The note for that appointment states as follows:-
Text sent to [the mother]…reminding her of the session scheduled for 2.45pm. The writer asked if [the mother] was free for the session. So far no response has been received. The writer will discuss closing the file next week and encourage [the mother] to reengage when she is able to make the time and space required for the dyadic processes of the RCP.[74]
[74] Exhibit ICL19.
A similar picture emerges in relation to the therapy arranged for X with Ms XX, Counsellor. She reported to the ICL as to her attempts to engage with X, noting that X and the mother attended the first appointment in mid-2023, that the second appointment in mid-2023 was cancelled by the mother, the third appointment scheduled for mid-2023 was not attended and the fourth appointment scheduled for mid-2023 was also cancelled by the mother. As a result of the failure of the mother to present X for those appointments, Ms XX was unable to provide any report as to X’s wellbeing (Exhibit ICL20).
Y’s therapy has also been inconsistent. Ms YY, Psychologist, reported to the ICL that sessions with her were placed on hold as the children had been getting unwell, there were lots of appointments occurring and this was a means to reducing the cancellation fees being billed (Exhibit ICL21). As a result, Y has had little therapeutic intervention to support him.
The mother’s evidence in relation to her failure to ensure the children’s attendance at school and upon their therapists was unimpressive. She demonstrated little insight as to the impact upon the children of them failing to attend school regularly. Further, she was not attuned to the potential damage caused to the children by having to present to different therapists and re‑tell their story.
The mother staunchly defended her role in the disintegration of the children’s relationship with the father. From her perspective she is blameless. However, the mother’s evidence as to how Y became aware of what had occurred during the Court proceedings does not support that position. The mother contends that Y must have overheard a telephone conversation between she and the maternal grandmother, whilst the children were in her care during the first part of the hearing, which concluded on 6 September 2023. Yet, when Y attended upon the first session with Ms B, he made no mention of what had occurred during the proceedings. It was only after that session, which Ms B reported to the mother had gone well, that Y presented to the second session in a distressed state, repeating matters that had occurred during the Court hearing. The mother’s explanation that Y had overheard a conversation on speaker phone some six weeks earlier and prior to the first session does not accord with his behaviour during the first session with Ms B.
Having regard to the evidence of Ms B in relation to Y’s presentation at the second session, I am satisfied on the balance of probabilities that he has been informed of Court events between the two sessions; the most likely source of that information was the mother. Accordingly, I am satisfied that the children have been exposed to information in relation to Court processes whilst in the care of the mother, and that she has failed to appropriately protect them.
Having regard to the above matters, I am satisfied that the mother has failed to meet the children’s emotional and intellectual needs.
The father’s capacity to meet the needs of the children is untested. However, I have regard to the unchallenged evidence of the paternal grandmother as to the father’s care of the children in the period prior to separation. I also have regard to the evidence of Ms B, who assessed the father as a committed parent who has demonstrated a willingness to attend to all of the children’s needs.
Although the father has a medical condition, there was no challenge to his physical capacity to attend to the children’s needs. During his oral evidence, the father had clearly considered the needs of the children in the event of them being placed in his care. He confirmed his commitment to providing the children with appropriate therapeutic supports, and had identified potential providers of that support. The father had also considered which school the children would attend and his partner, Ms D, gave evidence as to her enquiries of that school to ensure the availability of places for the children.
Ms B assessed the father’s partner as a practical and well-resourced woman who would be able to support the father in ensuring that the children’s needs were met. I accept that evidence.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The father has sought to be reunited with the children since the time of the parties’ separation in 2020. He has shown dedication and commitment to the children, has engaged in family therapy as required, undertaken parenting courses and done all that he could to restore his relationship with the children. Having regard to those matters, I am satisfied that he has demonstrated a positive attitude to his responsibilities as a parent.
Whilst I have no doubt that the mother loves the children and is devoted to their care, her fixed and negative views of the father, and her strong desire to excise him from the children’s life, indicates that she has a poor understanding of her responsibilities as a parent.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
These matters are not relevant to the issues in dispute.
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family -- any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
I have addressed the issues with respect to allegations of family violence earlier in the judgment.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children;
These proceedings have been on foot since June 2020. The children have been exposed to numerous professionals over that period and have had to repeat their story to each of them. As a result, the narrative that they are victims of abuse at the hands of the father has been repeated and reinforced to them, to their detriment.
Given my findings that the father does not pose a risk of harm to the children and having regard to the long history of the litigation in this Court, I am satisfied that it is preferable to make orders that would be least likely to lead to further litigation.
(m) any other fact or circumstance that the court thinks is relevant.
There are no other relevant facts or circumstances.
CONCLUSION
The first matter to be determined is the question of the allocation of parental responsibility. The father sought orders for sole parental responsibility which was supported by the Independent Children’s Lawyer. The mother also sought orders for sole parental responsibility.
The evidence before the Court is that the parties have only been able to communicate with each other through their lawyers. There is a high level of distrust between the mother and the father, largely due to the very serious allegations of abuse and violence levelled against the father by the mother. Having regard to those matters, I am satisfied that it would not be in the children’s best interests if the parties were to have equal shared parental responsibility; I am satisfied that there is little prospect of the parties being able to communicate with each other effectively in relation to any decision necessary for the children’s long-term care, welfare and development.
Given my earlier findings that the father does not pose a risk of harm to the children, but that the mother does pose a risk of psychological and emotional harm to the children, I am satisfied that their best interests will be served by an order that the father have sole parental responsibility for making decisions regarding their long-term care, welfare and development.
Having regard to my findings as to the risk to the children of psychological and emotional harm in the mother’s care, I am also satisfied that it is in the children’s best interests that they live with the father. The evidence of both Ms B and Ms C identified significant risks to the children if they remain in the mother’s care, both with respect to the loss of a connection with their paternal family and also in relation to their capacity to form and maintain relationships. Further, both experts support the view that the children will have the opportunity for a settled life, where their emotional, psychological and intellectual needs are met in the father’s care.
The mother has maintained a narrative that the father is a perpetrator of violence and abuse; those allegations have escalated and amplified through the course of these proceedings, and I am satisfied that the children have been exposed to the mother’s beliefs. I am satisfied that by moving to the father’s care the children will be removed from the mother’s influence and belief system, and the children will therefore be unburdened. They will have the opportunity to live in a settled environment where they will be able to attend school regularly and have appropriate therapeutic supports.
In light of the concerns expressed by Ms B and Ms C as to the strength of the mother’s views and her seeming inability to contain them, I am satisfied that there should be a moratorium on the children’s time with the mother to ensure that they are not exposed to those views.
The children require intensive therapeutic support. Ms B has recommended that the children engage in play therapy and have the support of psychologists in the transition to the father’s care. They need to settle into their new routines before time with the mother can be contemplated. Having regard to that evidence, I am satisfied that a period of six months’ moratorium is appropriate to ensure that those supports are able to be implemented.
Thereafter, I am satisfied that the mother’s time with the children should be supervised by a professional contact centre or agency where practicable. I am satisfied that given the mother’s intransigence in terms of her view of the father, that supervision of her time with the children is necessary. The evidence of both Ms B and Ms C, which I accept, is that the children must be protected from the mother’s fixed views of the father.
Ordinarily, the Court is reluctant to make orders for long-term supervision, although it can and should do so if it is determined that such orders are in the children’s best interest. The Full Court has cautioned against making such orders in the absence of a review mechanism (see Champness & Hanson (2009) FLC 93-407; Slater & Light [2013] FamCAFC 4). Those decisions confirm that it is desirable that where orders are made for long-term supervision, there should be some opportunity for the party the subject of that supervision to have a mechanism for seeking to remove the supervision requirement.
Whilst I have regard to those authorities, the mother in this instance has demonstrated little insight or awareness as to the impact of her behaviour upon the children. As a consequence, I am satisfied that the mother’s behaviour has had a devastating impact upon the children and their relationship with the father. The evidence of Ms B is that the mother’s position is unlikely to shift until such time as she has engaged in appropriate therapeutic intervention. Accordingly, I am satisfied, having regard to that evidence that it is appropriate that I make orders for long‑term supervision.
From the children’s perspective, it is to be hoped that the mother reflects on her conduct in the aftermath of the parties’ separation, that she engages in appropriate therapeutic interventions such that in the future she may be in a position to seek unsupervised time with the children.
Ms B recommended that the mother’s time be limited to six occasions per year, and in addition, the mother be permitted to provide the children with letters, cards and gifts on their birthdays, at Christmas and Easter. Orders in those terms will ensure that the children are able to maintain a connection and relationship with the mother in a supported setting. Having regard to my findings in relation to the mother’s behaviour and the risks posed to the children by her belief system, I am satisfied that orders in those terms are appropriate and in the children’s best interest.
I am also satisfied that it is in the children’s best interests that the mother be restrained from spending time or communicating with the children, other than as provided by the orders. I will also restrain her from approaching the father’s residence or the children’s school. Those orders will ensure that the children’s opportunity for a stable and settled life in the father’s care is not disrupted by the mother.
The father sought orders that he be permitted to provide a copy of the final orders and judgment to Victoria Police, the children’s school, the children's treating health practitioners and the Department of Families, Fairness and Housing in the event that further allegations are made by the mother against the father. Given the history of this matter and the mother’s repeated allegations raised against the father, I am satisfied that an order in those terms is in the children’s best interests.
The mother sought orders that the spelling of the child X’s name be changed. The ICL opposed that application. Counsel for the ICL submitted that there was no basis for changing X’s name. The mother adduced no evidence to contradict the ICL's position. In the circumstances, given the apparent connection between the name given to X at her birth and her parents, I am not persuaded that it would not be in X’s best interests to change that name.
I certify that the preceding four hundred and twenty-two (422) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 14 December 2023
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