Tarok & Kardan (No 5)
[2024] FedCFamC1F 853
•12 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tarok & Kardan (No 5) [2024] FedCFamC1F 853
File number: SYC 7133 of 2021 Judgment of: MCGUIRE J Date of judgment: 12 December 2024 Catchwords: FAMILY LAW – PARENTING – Application by mother that children live with her, that she have sole responsibility for the long-term decision-making for the children and the father spend conditional supervised time with the children – Application opposed by the father – Orders that children live with the mother and that she have sole parental responsibility for long-term decision-making in respect of medical issues for the children – The parents otherwise share joint parental responsibility for the long-term decision-making for the children – Father to initially spend supervised time with the children gradually transitioning to unsupervised time Legislation: Family Law Act 1975 (Cth) ss 60 and 60CC Division: Division 1 First Instance Number of paragraphs: 122 Date of last submissions: 20 September 2024 Date of hearing: 17, 18 and 19 September 2024 Place: Melbourne delivered Hobart Counsel for the Applicant: Mr Stapleton Solicitor for the Applicant: Dorter Family Lawyers & Mediators Counsel for the Respondent: Mr Dura SC Solicitor for the Respondent: Somerville Legal Counsel for the Independent Children’s Lawyer: Ms Stolier Solicitor for the Independent Children’s Lawyer: Brian Samuel & Associates ORDERS
SYC 7133 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TAROK
Applicant
AND: MR KARDAN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
12 DECEMBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders in respect of the children X born 2008, and Y born 2011 and Z born 2016 be discharged.
2.Ms Tarok (“the mother”) have sole parental responsibility for long-term decision‑making in respect of medical issues for the children X, Y, and Z such to include the children’s attendance on any psychologist, counsellor or therapist.
3.Otherwise, the parents have joint parental responsibility for long-term decisions in respect of the children X, Y, and Z.
4.In respect of medical matters, and except in the case of an emergency, the mother prudently keep Mr Kardan (“the father”) advised of any significant decisions required to be made in respect of the children or any of them in relation to medical issues.
5.The mother, Ms Tarok, born 1976 and the father, Mr Kardan born 1974 and their servants and/or agents be and are hereby restrained by injunction, irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of X born 2008, and Y born 2011 and Z born 2016 or any of them from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the children X, Y and Z on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s name on the Watchlist for a period of five (5) years from the date of these orders (or until the children X and Y each turn 18 years of age) or until the Court orders its removal, whichever occurs first.
6.The parents or either of them have leave to bring an application to this Court on short notice in respect of the removal of the children X, Y, and Z from the Commonwealth of Australia and the consequent suspension of the Airport Watchlist Order.
7.The children X, Y, and Z live with the mother.
8.Within seven (7) days of the date of these orders each of the parties attend for application and/or interview with AA Contact Service (or such other supervision service recommended by the Independent Children’s Lawyer) so as to engage that service for supervision of the children’s time with the father pursuant to these orders.
9.For a period of four (4) fortnightly occasions the children spend time with the father on Saturday afternoons from 2.00pm until 6.00 with such time to be supervised by AA Contact Service (or otherwise as directed by the Independent Children’s Lawyer) with the father to be responsible for the payment of the supervision costs.
10.Upon the completion of the time contemplated by order 9 herein the children spend time with the father each alternative Saturday from 10.00am to 7.00pm for a period of eight (8) occasions to commence on the second Saturday from the completion of time in order 9 herein.
11.Upon completion of the time contemplated by order 10 herein the children spend time with the father fortnightly from 5.00pm Friday until 7.00pm Saturday for a period of six (6) occasions to commence on the second Friday from the completion of time in order 10 herein.
12.Upon completion of the time contemplated by order 11 herein the children spend time with the father each alternate weekend from 5.00pm Friday until 7.00pm Sunday (extending to 7.00pm Monday in respect of the children or any of them should the Monday be a public holiday or a student free day) with the first period to commence on the second Friday from the completion of time in order 11 herein.
13.As from the Term 3 school holidays 2025 the children spend periods of time with the father during school term holidays for seven days being from the first Friday at 5.00pm to the second Friday of such holidays at 5.00pm and noting that weekend time pursuant to the above orders be suspended during school holidays.
14.From the summer school holidays 2025/2026 the children spend time/live with, their parents on a week about basis with the children to spend the first week of such holidays with the father from the first Friday of the holidays at 5.00pm until the second Friday at 5.00pm and each alternate week thereafter and in each alternate year thereafter.
15.From the summer school holidays 2026/2027 the children spend time/live with, their parents on a week about basis with the children to spend the first week of such holidays with the mother from the first Friday of the holidays at 5.00pm until the second Friday at 5.00pm and each alternate week thereafter and in each alternate year thereafter.
16.The children spend such further time including on special occasions with the father or variations of the above as may be agreed between the parents from time to time in writing.
17.Changeovers shall take place at the children’s school whenever applicable, failing which the mother shall deliver the children to the father’s residence at the commencement of his time with the children and the father shall return the children to the mother’s residence at the conclusion of such time.
18.Each of the parents be restrained from denigrating the other parent to or in the presence of the children or any of them.
19.Each of the parents be and are hereby restrained from discussing the subject matter of these proceedings and/or providing the children, or any of them, with any material filed in these proceedings save and except for the practical execution of these orders.
20.It is conditional upon the father spending time with the children pursuant to these orders that he:
(a)within seven (7) days of the date of these orders engage with a suitably qualified clinical psychologist as recommended and directed by the Independent Children’s Lawyer and to consult with that psychologist with such frequency and duration as recommended by the psychologist and for these purposes the psychologist is to be provided with the following by the Independent Children’s Lawyer:
(i)the report of Dr F provided under affidavit sworn 2 February 2023; and
(ii)a copy of my Reasons for Judgment and Orders.
21.It is conditional upon the implementation of the time-with orders above that the father is to within seven days of the date of these orders enrol in and then complete a recognised men’s behaviour change program recommended and directed by the Independent Children’s Lawyer.
22.The appointment of the Independent Children’s Lawyer continue for a period of six (6) calendar months from the date of these orders.
23.The mother and the father each pay one half of the costs of the Independent Children’s Lawyer within twenty eight (28) days of the provision by the Independent Children’s Lawyer of a minute of costs, and including any ongoing costs necessitated by these orders, and that any such costs of the Independent Children’s Lawyer payable by the mother and the father shall be payable to Legal Aid NSW directly.
24.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 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.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Tarok & Kardan has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J:
APPLICATIONS
Ms Tarok (“the mother”) is the applicant seeking orders for property settlement, and child support financial matters. She also seeks orders in respect of the three children of the marriage namely:
(a)X born 2008 (aged 16 years);
(b)Y born 2011 (aged 13 years); and
(c)Z born 2016 (aged eight years).
The matter had been through an extensive procedural, interlocutory and interim process. The applications were listed for a trial of four/five days duration to commence 10 September 2024. Despite that history and the evident complexities of the disputes between the parties, the matter was stood down at the request of counsel prior to taking evidence and, to the great credit of the parties and their legal representatives, the financial issues were resolved by the making of consent orders.
The parties requested and were given leave to continue negotiations in respect of parenting matters and with the obvious assistance of counsel for the Independent Children’s Lawyer (“ICL”). Again, the affidavit material and the Court Expert’s Report prima facie suggested significant issues of disputed fact and credit between the parties and considerable ambit in the parenting orders sought by them The affidavit material and the Expert Report revealed complex and serious disputes between the parents including mutual allegations of various forms of family violence; credibility of the parents; equivocacy of the children’s views and preferences and, in particular, as to their relationships with the father; and complexities in the parents’ private lives and, in particular, where the father appears to now concede an extra-marital relationship including the fathering of a now 10 year old child.
Despite the above and the apparent entrenched positions of the each of the parents, after some days of apparently productive negotiations, the Court was presented with proposed minutes of orders with only discrete but significant issues remaining between the parents and where the ICL also contributes proposals.
Again, the Court congratulates the parties for their objective and child-focused negotiations and is in no way critical of some issues being left for the Court to determine. Notably, these efforts by the parents argues well for their children where the evidence strongly suggests that the two older children have been severely impacted by the conflict between their parents and their exposure to that conflict together with weighty evidence that each of the parents has imbued the older two children in their conflict and adult issues.
Strangely for parenting matters with the above traits, counsel agreed, after some days negotiation, that the affidavit evidence of the parties and their witnesses would be read into evidence but without cross-examination.
There was cross-examination only of the Court Child Expert, Dr F, whose report was from some two years past but where Dr F had helpfully agreed to see the parties and the children again only the day prior to the listed commencement of the trial on 9 September 2024.
Consequently, the Court is asked to make its determinations as to these discrete issues without the benefit of the cross-examination of any of the parties or their witnesses and without the obvious advantage of seeing and hearing the parents give their evidence. Nevertheless, I again applaud the parents and their legal representatives for negotiating to such a stage that they could advocate this approach to the Court thereby avoiding the added trauma and usual mutual negativity of the process of cross-examination.
The applicant mother in her Third Further Amended Initiating Application sought an order that she have sole responsibility for the long-term decision-making for the three children together with an order that the children live with her. Her proposal for the children’s time with the father was limited to conditional supervised time “one day each week between two and three hours (as arranged with the supervisor) in a public place nominated by the supervisor and is to take place either after school on a day where the children do not have extra-curricular activities or on a weekend.
By the commencement of the trial the mother’s position had differed significantly and perhaps with the benefit of the father’s trial affidavits and material from a family therapist, Ms G, provided under a subpoena to the ICL and noting the children’s views expressed to the therapist and with the mother then proposing that there be “minimal contact” for the father with the youngest child, Z, and otherwise contact with X and Y be “in accordance with their wishes”.
By the time of final addresses and with the assistance of the negotiations over several days between the parents and their legal representatives the mother’s position had again changed whereby she formulated proposals of a conditional and staged return for time between the children and the father involving inter alia that:
(1)there be correspondence between the father and the older two children apologising for his past behaviour towards the children and the mother;
(2)the father undertake comprehensive psychological therapy over a number of months;
(3)there be limited supervised time for all three children with the father;
(4)there be enrolment and completion by the father in a Men’s Behaviour Change Program; and
(5)there be further graduated but unsupervised time for the father with Z but with time for the older children with the father to be, “in accordance with their wishes”.
Not surprisingly, and although the mother has become more altruistic in her proposals, her position remains a conservative and restrictive one.
Equally unsurprisingly, the father takes a more eager and assertive position in respect of his reintroduction to the children. He continues to ask for orders for equal or joint decision-making responsibility for the children. His Case Outline also proposed a graduated regime for the children returning to spend time with him but a more zealous one commencing with periods of six hours on each alternative Saturday and Sunday for six weeks, culminating on, my calculations, with a week about arrangement after some 34 weeks. The time that he seeks is unsupervised and unconditional.
The father’s proposal must be seen within the context of the children having no direct contact with him since July 2022.
The Court gives the father similar credit to that given the mother in that the father’s position had become more conciliatory, less assertive, and more child focused by the time of final submissions and after the lengthy negotiations between the parties and their legal representatives. He maintained an order for joint responsibility for long-term decisions for the children but may have been prepared to compromise in respect of matters of health as regards the children. Importantly, he was prepared to accept some conditions in the graduated return of the children to spending time with him and including attending psychological therapy and conceding initial supervision of time between himself and the children. Further, where the father’s application had been ultimately one for equal time, his counsel’s final submissions disclosed that the father’s ultimate ambitions are now limited to the children being with him during school terms for four nights per fortnight being from “Thursday to Monday”. He continues to ask for orders sharing the children’s school holiday times.
The ICL maintained a position that the mother should have sole parental responsibility/decision making for the three children but with provision for consultation with the father
The ICL encouraged orders which had the father’s time with the children conditional upon him completing various courses and attendance upon a clinical psychologist with a preference to moving to supervised time after engagement with those courses.
The ICL proposes that all three children attend supervised sessions regardless of the preferences of the older two children.
Relevantly, the ICL prefers a final position where the older two children attend with the father “subject to their wishes” and therefore in accord with the mother.
BACKGROUND
The mother is 48 years of age. The father is 50 years old.
Each of the parties is of Country BB origin. They met in Australia. Each had been previously married. They commenced cohabitation in 2005 and married in Country BB in 2007. They separated on 6 August 2021. A divorce order was made in 2022. As such, the parties’ relationship spanned approximately 16 years.
The mother has re married to Mr CC in 2022. The father has re married to Ms DD in 2022.
There are three children of the relationship namely: X (male) born 2008 (aged 16 years); Y (female) born 2011 (aged 13 years) and Z (female) born 2016 (aged 8 years).
The father has a child from another relationship now aged 10 years. The father’s evidence is equivocal as to the nature, frequency and financial support in respect of that child.
The father’s wife, Ms DD, has a child from a previous relationship aged 14 years. Ms DD returned with her child to Country BB in late 2020. The father’s evidence is that he intends that Ms DD and her son will return to Australia in early 2025 subject to Visa issues.
The mother is employed as a customer service representative. She claims some health difficulties.
The father describes himself as a Company Director and operates a number of franchises.
The parties had interests in a number of companies, trusts and business operations.
The parties have now settled their financial matters before these courts.
The children have lived primarily with the mother since the parties’ separation.
On 31 January 2022 interim orders were made by consent providing inter alia for the children to spend time with the father each Friday from 5.00pm until 8.00pm and each Saturday from 9.00am until 1.00pm.
On 26 April 2022 further orders were made after an interim hearing providing inter alia for the children to spend time with the father culminating in three nights per fortnight.
By orders of 14 July 2022 the father’s time with the children was suspended.
The children have not spent time with their father since 13 July 2022.
In mid-2022 the mother obtained a provisional Apprehended Domestic Violence Order (“ADVO”) against the father for protection of the children X and Y.
On 4 August 2022, previous interim orders were discharged and orders were made for the children to live with the mother, the mother have sole parental responsibility and for the children to have no contact with the father. The father appealed those interim orders.
THE ISSUES
Where the submissions of counsel for the parties and the ICL addressed a draft minute of proposed orders in some 40 paragraphs, and whilst there was significant agreement between the parties, many of the issues remain discrete and again attributable to the more adventurous proposals of the father against the more conservative position of the mother.
The major issues, however, can be isolated to the following:
(1)the issue of decision-making authority/responsibility in respect of the three children;
(2)the duration of incremental return of the children to spending time/live-with the father;
(3)the ultimate extent and frequency of time for the children with the father;
(4)the weight to be given to the wishes and preferences of the older two children and specifically as to whether orders should be made leaving the nature of the older two children’s relationship with their father being “in accordance with their wishes” or, alternatively, whether those older children should be bound by prescriptive orders;
(5)the conditions to be placed on the incremental return of time for the children with the father including issues such as he conditionally attending psychological therapy and other courses; and
(6)issues of anticipated travel for the children overseas including to Country BB which is not a Hague Convention signatory together with issues of Australian passports for the children.
THE RELEVANT LAW
In determining parenting orders for the three children I am to have the children’s best interests as my paramount consideration pursuant to s 60CA of the Act.
In determining the best interests of the children I am to reference the probative evidence before me and the proposals of the parties and the ICL to the various matters set out under s 60CC of the Act. Relevantly, I am specifically to consider issues of family violence and their impact on both the children and the parents. I am to take into account the views expressed by the children but without those views and preferences being determinative. I am to consider the developmental, psychological, emotional and cultural needs of the children. I am to consider the capacity of each of the parents and specifically where such parent proposes an order for parental responsibility then the capacity of that parent to provide for the developmental, psychological, emotional and cultural needs of the children.
THE EVIDENCE
I have read and considered the affidavit evidence of each of the primary parties and note generally their narrative to be consistent with the versions of history given to the Court Child Expert, Dr F. I emphasise that the parties each agreed for all affidavit material to be read into evidence without requirements for testing by cross-examination. As such, the Court is limited to a degree in respect of issues of disputed fact and credit most obviously exposed in the comprehensive report of Dr F. This limitation is tempered to a degree, however, by the significant general agreement reached between the parties in their negotiations during the lengthy standing down of the matter at trial.
DR F
Dr F, the Court Child Expert (“the Court Expert”), was the only witness to give evidence and be cross-examined. His evidence was of considerable assistance where the parties through counsel were able to ask questions either to clarify apparent support in his conclusions or, alternatively, to challenge those conclusions.
The Court Expert’s Report[1] was supplemented by his evidence of again seeing the parties on 19 September 2024.
[1] Dated 2 February 2023.
The Court Expert was given histories by each of the parents consistent with their affidavit material. Relevantly, at [5] the mother is reported as alleging “coercive controlling behaviour” towards her by the father and continuing since separation. Further, at [8] she is described as presenting as “mildly to moderately anxious…”.
The tenor of the Court Expert’s interview with the mother is one of her being positive towards restoring a relationship between the children and the father but ensuring “…that her children were able to have a safe and supportive relationship with their father in the future…” (at [8]).
At [19] the mother related a history of some physical abuse from the father in late 2021.
At [23] the mother complains of the father attempting to influence, manipulate and/or imbue the children in the proceedings and indeed this alleged behaviour appears to have been the catalyst for the children ceasing to spend time with the father in July 2022. It follows at [25] that the mother says she fears that the children “…had all developed a level of fear in relation to [the father]…”.
The mother complains of various forms of verbal and coercive/controlling violence at the hands of the father.
At [30] the mother reports some conspiracy theory tendencies in the father and including an anti-vaccination position in respect of the Covid-19 Pandemic.
At [33] the Court Expert describes the mother as “quiet but stoic…”. He concludes that there is “little trust” held by the mother in respect of the father and that she continues to harbour feelings of anxiety in relation to any contact with him.
The Court Expert describes the father as engaging relatively well in the interview and expressing a “desire to come to an amicable solution with [the mother] that would allow him to have regular and ongoing contact with all of his children”.
The father related a history consistent with his affidavit material.
The father, when interviewed in 2022, stated his intention to defend the mother’s application for intervention orders or family violence orders.
The tenor of the Court Expert’s Report at [46] and following is that the father minimises his role in the separation and is, at best, equivocal in respect of he fathering a child from an extra‑marital affair and as to his relationship with that child.
Relevantly, at [52] and following the father denies assertions made by the children and the mother in respect of threats of family violence towards or verbal violence towards the children. Similarly, he denies the assertions of conspiracy theories including in respect of the Covid - 19 vaccinations.
The father confirmed his then ambition to have the children living in an equal shared care arrangement between himself and the mother. Similarly, he suggested an equal shared parental responsibility order (as the terminology then was).
At [60] the Court Expert observed the father to be “polite and amicable” but observed a tendency for the father to be intrusive and abrupt of manner and to increase the volume and intensity of his voice. Importantly, the Court Expert notes:
…[The father] was also found to contradict himself, often changing his answer entirely once challenged, which led to this clinician having considerable concern about the veracity of his responding throughout his interview. …
Similar observation is made at [62] by the Court Expert.
X
The Court Expert interviewed X when he was aged 13 years. He has now turned 16 years of age. He presented as quiet and reserved of manner.
Significantly, at [64] the Court Expert reports:
…He was able to respond to all questions put to him, however it was evident that he had been placed under a great deal of emotional strain as a result of his parents’ conflict, having shouldered the burden for both his mother and his father’s happiness with the naïve sense of responsibility that can often be seen in the eldest child in a family unit marred by high conflict.
At [66] he reports X being imbued in the adult issues by his father and accompanied by his experience of his father’s anger.
At [69] it is evident that X had been exposed to and involved in some significant family violence as had his sisters.
X shares his mother’s view that his father is of a controlling personality [71].
Despite having ceased contact with his father and considering the comments made to the Expert above, X at [73] expresses a prima facie desire to have a relationship with his father. This is best understood in his own words as reported by the Court Expert:
[73]When [X] was asked if he would like to spend more time with his father if he was more like the parent he knew when they lived in the same house, [X] then replied “I would love that. I would really like that”. When asked if there was anything he wanted his father to know, [X] stated “I want him to stop telling us all his problems, stop telling me about his financial problems –that his business isn’t doing well, telling me that it’s all mums fault or that it’s all our fault. I just wanted to stop talking about all the bad stuff. I want to stop the conspiracy stuff, stop sending inappropriate messages and content… like killing gay’s (sic). [X] stated that he missed his father and wished that he was able to see him more in the future.
The conflict in X is evident at [74] where he says:
…Dad says all the good stuff but then he sends all the negative texts with the inappropriate content. It’s very hard to believe him as one is true and the other isn’t. Which one is real?
X reported that he has a good relationship with the mother’s husband, Mr CC.
The Court Expert’s psychological profile of X exposed a level of underlying anxiety and an indication that X himself takes a lot of the responsibility, both for his siblings and in managing the conflict between his parents, all of which culminates in the increased symptoms of anxiety.
Y
Y was aged 11 years at the time of the interview. She is now 13 years of age.
Similar to her brother, Y reported being imbued in the proceedings and in the conflict by her father. She reported her father’s anger.
At [85] Y is reported as following: -
When asked about her feelings towards spending more time with her father in the future, [Y] stated that although she had originally missed spending time with him, it had been a relief not to have to go to his house and worry about being shouted at. She expressed her fear that if they are asked to spend time with their father again, “I know that he will start shouting at me and telling me that it’s all my fault again”. [Y] reflected that she understood that her parents were continuing to argue about where she and her siblings spent their time. “Mm wants us to be with her and dad wants us to be with him. I want to stay with Mum. I do miss Dad, but I don’t want him to keep shouting at us and blaming us”.
Y’s comments sit uncomfortably with later evidence from a letter penned by Y herself where she can be understood as wanting to have a relationship with her father but feeling some blame herself for the situation that confronts she and her siblings.
Y reports direct experience and exposure to violence perpetrated by her father on her mother being of the physical and verbal type.
The Court Expert found Y’s anxiety to be elevated and at [93] opines that Y’s anxiety has its genesis in the current family conflict to which she has been exposed and her fractured relationship with her father. The Court Expert says Y’s psychological well-being must be addressed as a matter of priority.
Z
The youngest child Z was only five years old at the time of the interviews and was not interviewed for the Court Expert’s assessment
At [95] and in his evaluation, the Court Expert notes that each of the parents makes allegations of family violence against the other. Obviously, I have not had the opportunity to have these issues tested by cross-examination but note the concerns expressed by the Court Expert as to the veracity of the father’s evidence and the inconsistencies in that evidence. It is clear that the children have been exposed to and witnessed at least some of this conflict.
Specifically, the Court Expert holds some concerns as to the truthfulness of the father’s evidence in respect of allegations made against him of conspiracy theories including as to vaccinations. Where the father denies the allegations, the independent evidence and observations of the Court Expert carry some weight.
The Report concludes that the children indicate a desire to spend time with the father but that such time be consistent and free from imbuement in the adult conflict and the father’s attributing of blame towards them. Notably, for proper balance, at [103] the Court Expert suggests that both parents have included the children in their conflict and the children independently report of being under pressure from both their mother and father to align with that parent thereby placing their relationship with the other parent under stress and jeopardy. The Court Expert notes the emotional burden placed on these children accordingly and such that would be perilous to their long-term psychological and emotional welfare. Notably, both older children currently show elevated symptoms of anxiety and distress.
Consequently, the Court Expert advocates a consistent and easy to follow care arrangement schedule for the children but with paramount importance on them not experiencing fear of their father. It follows, that the Court Expert recommends the father engage in “sound professional therapeutic intervention” to give him insight into his past conduct and so as to “improve his temper and frustration control abilities”. Dr F’s position in his report is set out at [110] and following noting that the Report is now some two years old and where the Court Expert was open to the various other options and regimes when put to by him counsel during cross‑examination. Relevantly, Dr F expressed his frustration generally that his altruistic recommendations from his Report of 2022 have effectively laid dormant and that the expectations then of the children assimilating into a relationship with their father have not commenced. The Court Expert says at [110]:
In sum (sic) therefore, it is my opinion that [X], [Y] and [Z] would ultimately benefit from remaining in the full-time care of [the mother], seeing their father during the day time only on two days which are appropriate for the school and extracurricular calendars, for a period of six months until [the father] has been able to display consistently that he is able to control his negative emotional physical and verbal responses, refrain from sharing his conspiratorial views with his children, and refrain from derogatory talk about their mother. After a period of six months, should [the father] have been able to show his capacity to meet the above requirements, overnight time could commence, with the children spending Saturday night with their father on each alternate weekend, progressing by one night every three months until a 3/11 of 14 night arrangement (at least, of longer by agreement) can be reached. This would encompass [the father] spending time with the children on alternate weekends, from Friday afternoon to Monday morning and have the potentiality for half of the school holidays. In line with that, shared Parental Responsibility should be confirmed for all areas of the children’s care, aside from medical and health, for which it is a clear recommendation that [the mother] hold sole Parental Responsibility. This would be psychologically beneficial to all parties, but most especially to [X], [Y] and [Z].
In formulating a regime of time, the Court Expert concludes that the children’s relationship with their father has been impacted by their father’s behaviours, including his verbal and physical aggression together with his conspiratorial views and denigration of the mother. He now notes the time elapsed since the children have spent direct time with the father.
Optimistically, at [116] the Court Expert concludes that both parents show a willingness and ability to facilitate and encourage a relationship between the children and the other parent.
In his conclusions and again stated during his evidence in court (some two years later) Dr F insightfully was firm in his resolve against any orders that would delegate the decision-making for the children’s relationship with their father to the older two children themselves. I respectfully share that view. These children have noticeably been impacted by their involvement in their parents’ conflict and attempts by each of the parents to manipulate their support and alignment. They each suffer anxieties. Each of the parents has previously sought alignment from the children. These children should be relieved of any responsibility of determining the nature and structure of their own relationship with the mother and father.
In his evidence in court, the Court Expert generally maintained the recommendations from his report. His experience and objectivity, however, were highlighted by his willingness to consider alternative propositions put to him and to adapt his recommendations in part.
The Court Expert maintains that the historical relationship between the parents together with the mother’s ongoing anxiety are factors that argue against an order for joint decision-making responsibility in respect of the long-term decisions for the children. He agreed in cross‑examination, however, that the father has previously been involved in the decision‑making processes in matters such as education and, to his credit, continues to contribute towards the costs of private school education. It is clear that the Court Expert’s concerns rested primarily on issues of medical care for the children where the father might be found to have previously held some conspiracy viewpoints but that more generally where such issues of previous power imbalance and the mother’s vulnerable personality are prominent.
In cross-examination, the Court Expert agreed that a successful return for the children to a relationship with their father required some form of acknowledgement or apology by him to the children and where he has previously used reprehensible language such as “whore” in respect of the mother and/or daughter. Put simply, he needs to gain insight into the impact on these females of such language and behaviour.
In his evidence in court, Dr F highlighted the vulnerability of the older two children despite their overt intelligence and academic and social successes.
Dr F opined that the youngest child, Z, does not carry the memories and emotional scars evidenced in the older two children. He accepted that Z would have shown some curiosity about her father and a desire to see him.
CONSIDERATION
The mother seeks an order that the children live primarily with her. That application is supported by the ICL. The father’s counsel’s submissions were equivocal as to the terminology to be used but I understand him not to argue against a live with order for the mother.
In support of the mother’s application, I take into account that the children have habitually lived with her for the last two years without direct contact with their father. The children’s views elicited by Dr F are consistent with the children having a preference to remain living primarily with their mother.
The evidence from the mother’s affidavit, unchallenged as it is, persuades me that she has been a dedicated and skilled parent for the three children.
I take into account the historical issues of family violence and conflict between the parents set out in their affidavits and most prominently in Dr F’s report.
In all of those circumstances, I am of the view that the mother should have the benefit of a live-with order in respect of the three children.
Both parties and the ICL now propose that the children resurrect a relationship with the father ultimately involving direct and unsupervised time-with.
Firstly, the ICL and the mother propose ultimate orders for the older children, X and Y, whereby the children’s time with their father should be “in accordance with their wishes”. More detailed and mandatory time is proposed in respect of the younger child, Z.
The father pursues detailed, court ordered, and mandatory time for all three children.
Undoubtedly, the position of the mother and the ICL is based on the ages of X and Y being respectively 16 and the 13 years and their presumed levels of maturity, rationality and independence. Such an issue often brings to the fore conflicts for children in their commitment to spending time with a parent as against their extracurricular and social activities.
Nevertheless, I note the comments of Dr F in this regard against such an order placing the responsibility for the children’s relationship with their father on the shoulders of these children. He observes elevated symptoms of anxiety and distress in each of the children and undoubtedly sourced from their involvement in exposure to parental conflict and the involvement of them by each of their parents in this dispute. At [108] Dr F opines:
Mindful of this clinician’s mandate to present options to the Court focused on the children’s best interests, it is a clear recommendation that neither [X] nor [Y] should be allowed to make their own decision as to their care arrangements, as it was surmised that the impact on the children of being able to make their own decisions as to when they see and spend overnight time with either parent is too great a burden on them considering their age and is also likely to be counterproductive to their immediate and long-term emotional, intellectual and psychological development.
I respectfully agree with Dr F. Further, should the children be left as the authors of their own time with their father and should they not attend on him then the historical mistrust, suspicion, and conflict between these parents suggests that the father would lay blame on the mother regardless of the children’s independent decision-making. This in turn would be likely to lead to further conflict and perhaps litigation. I prefer that should the children be required by court order to attend with their father, and should they have a preference not to by reason of conflicting extracurricular or social activity then it be a matter for negotiation between the children and the father. Such issues for children are not unusual in the general vagrancies of their development towards adulthood. It should, therefore, be for the father to deal with these issues if and when they occur and hence to demonstrate the parental insight and skills he claims.
Consequently, the orders that I make will be mandatory in respect of all three children.
The time-with orders for the children with the father proposed by the ICL involve firstly a period of supervised time and conditional upon the father enrolling in a Men’s Behaviour Change Program and engaging with a clinical psychologist for a period of three months before such orders become operative. Second, the orders proposed by the ICL ultimately extend to the children spending time with the father unsupervised on alternate weekends from the conclusion of school on Friday until 2.00pm on Saturday but with a provision for “such other times and dates as agreed between the parties in writing”. I understand the mother’s position to be essentially consistent with that of the ICL.
The father’s ambitions remain ultimately to the children spending equal time with him. He does, however, now accept there to be the need for a staged return of the children to him.
The father’s affidavit material, his interview with Dr F, and the submissions of his counsel combine to show the father’s commitment to a relationship with his children in his keenness to maximise his time with them. Nevertheless, the Court must take an objective view of the children’s best interests and formulate orders which are ultimately most likely to result in a successful relationship and not one that simply maximises time or attends to the father’s ambitions.
These children have not seen their father now for some two years. They have been exposed to the family violence between their parents. They have been imbued in the parental conflict. Dr F recognises anxiety and distress in the children. Dr F’s report clearly indicates trepidation in each of the older two children in returning to a direct time-with relationship with their father although keen to have such a relationship. A prominent example is Y’s concerns about the father’s attendance at her school.
Notably the older two children are dealing with the later years of their education with X to enter year 11 in 2025. It is trite to say, therefore, that a settled and carefree routine for these children is crucial.
Where the ICL and the mother propose an initial step of supervised time between the children and the father but conditional upon the father first engaging in a behaviour management course and with a suitably qualified psychological therapist for a period of three months, I prefer that the father’s therapy and the discrete limited return of direct contact with supervision occur in concert. I understand Dr F to agree with my view. In arriving at this conclusion I take into account the ages of the older two children, their general wish to preserve a relationship with their father, and the recent two (2) year hiatus in that relationship.
Where there was perhaps a suggestion by the ICL and/or the mother that progress of the children’s time with the father be determined by a psychologist or similar, that option is properly not available to me where the Full Court have understandably made it clear that the Court would fall into error if it were to delegate such a judicial function.
I do accept, however, that the initial reintroduction of the children to the father should be supervised. Notably, the youngest child, Z, will have limited memory of her father given her age. Conversely, the memories of the older two children, indicated in Dr F’s report, include unpleasant ones and where they continue to show some apprehension in direct contact with the father. Initially supervision of time-with should therefore give all three children a degree of trust and confidence in moving the relationship forward.
Undoubtedly, a strong onus rests on the father to establish a relationship with his children in circumstances where the older children have that apprehension and the youngest child little recollection. It beholds the father to assimilate the comprehensive and insightful report of Dr F and crucially to refrain from critical comment of the mother to the children and from imbuing the children in the parental conflict. He must be alert to the ages and emotional needs of his older two children where again his parenting skills may be challenged by the increasing independence and breadth of experience of those two children. He must understand that he is to establish those relationships against a background where the children are aligned with and both supportive of and dependent upon their mother.
Taking all of the above into account and with considerable reliance upon the evidence of Dr F, I intend to structure orders which will have the children immediately having direct contact with their father albeit supervised for a period so as to allow the children to develop both comfort with their father and trust and confidence in him. That supervision will run in concert with the behaviour management course and the father’s commitment to psychological therapy. Given the ages of the older children and those older children being present with Z, I consider four (4) supervised periods to be sufficient.
I then propose further staged return of the children to the father unsupervised but with a view again to the children gaining the necessary trust and confidence in their father and the father gaining an understanding into his children’s needs.
Ultimately, I propose orders whereby the children would spend each second weekend with their father but not to the extent of the substantial and significant time sought by him. Again, I note the historical parenting arrangements for the children but also with emphasis on the children’s age, education and need for stability and routine. Whilst the father’s ambitions might not be satisfied, he should understand that these courts attend to children’s best interest with an eye to quality of time rather than simply quantitative divisions.
I do, however, see advantages for the children in spending longer block periods with their father during school holidays and will order accordingly within the context of the graduated time-with orders.
PARENTAL RESPONSIBILITY
The mother seeks an order that she have sole responsibility for long-term important decisions in respect of the three children. She is supported by the ICL.
The father seeks an order for joint parental responsibility in decision-making for the children.
Notably, the debate in this respect centred on medical issues and where father is asserted to have held some conspiracy theories in respect of vaccines. Dr F seems not satisfied with the father’s explanations as to those assertions.
Despite the admirable abilities of these parties, with the assistance of the ICL and their legal representatives, to reach considerable agreement at this trial, their historical conflict, mistrust, suspicion, and mutual allegation remains untested. Dr F’s report and the mother’s affidavit suggests some vulnerabilities in her whilst the father’s material and his interviews with Dr F are suggestive of an assertive and dominant personality.
Despite significant recent amendments to the Family Law Act in respect of the concept of parental responsibility, not least being the removal of the presumption of equal shared parental responsibility, in my view the Court must still consider the ability of the parents to communicate and cooperate when considering orders as to responsibility for long-term important decisions that parents make for their children. In this matter, and again where the evidence is not tested, I am not persuaded that these parents have moved forward sufficiently from their conflictual relationship to be able to parent cooperatively as required by the Act.
Nevertheless, and again where the focus of this issue was on medical matters, and whilst I am persuaded that the mother should have sole parental responsibility in respect of medical issues for the children, I am not so persuaded generally. The father has contributed to the children’s education. He is actively interested in their education. He should retain the ability to contribute to education matter which will most prominently pertain to Z.
There is an issue between the parties as to the children’s passports and overseas travel where the mother’s quest for sole parental responsibility and removal of an airport watch list order might give her the ability to remove the children overseas without the permission of the father? Where the parties are of Country BB origin and I am told that Country BB is not a signatory to the Hague Convention, and given the continuing mistrust between the parties, I am not persuaded that the mother should have sole parental responsibility accordingly. That is, should either of the parties wish to remove the children or any of them from Australia to travel to Country BB or elsewhere outside of Australia then I am of the view that the children’s best interests are served by either the parents jointly making such a decision or, alternatively, taking the relatively easy approach of an application to this Court.
Consequently, there will be an order that the mother have sole parental responsibility for medical matters for the children only. In other respects, and where it is anticipated that the children will be spending time with the father and where he has previously shown an interest and commitment to their education, there will be an order that the parents have joint responsibility for long-term decisions for their children.
It follows, I am not persuaded that the airport watch list order should be removed. In fact, save that there be any conflict between these and previous orders, I propose that there be an airport watch list order for all three children for a period of five years in respect of Z but obviously until the older children reach 18 years of age.
SPECIFIC ISSUES
There is an issue as to the children continuing to engage with a psychologist or therapist with a view to assisting them assimilate back to a relationship with the father. Whilst I understand the benefits anticipated, I do not feel the need to accommodate this by a court order. Rather, I believe the sole parental responsibility order in the mother together with her sensitivity to her children’s needs better enables her to make such decisions without the need for a court order.
The child Y has expressed trepidation on a repetition of the father attending at her school uninvited or unannounced. It may have therefore been contemplated to address this issue by a specific injunctive order. I have, however, decided against such an order where I have above given the father joint responsibility for important matters such as education. The father now claims a greater insight into his behaviour and his children’s needs and sensitivities. He should be alert and aware that should he again embarrass his daughter in the way she says has occurred previously then she will react negatively and likely sever her relationship with him.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 12 December 2024
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