Taube and Taube

[2018] FCCA 1889

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAUBE & TAUBE [2018] FCCA 1889

Catchwords:
FAMILY LAW – Parenting – interim hearing – two children aged 12 and 5 – allegations of family violence – allegations of alcohol abuse – relationship between children and father has significantly broken down – application to discharge interim orders for supervised time between the children and father – serious concerns about the mental health of the eldest child – failure to positively encourage the children to spend time with their father – best interests of the child.

Legislation:

Family Law Act 1975 (Cth), Pt VII

Cases cited:

Goode & Goode (2006) FLC 93-286

Cowling & Cowling (1998) FLC 92–801

Applicant: MR TAUBE

Respondent: MS TAUBE

File Number: NCC 2012 of 2017

Judgment of: Judge Betts

Hearing date: 3 July 2018

Date of Last Submission: 3 July 2018

Delivered at: Newcastle

Delivered on: 3 July 2018

REPRESENTATION

Counsel for the Applicant: Mr Bates

Solicitors for the Applicant: Leanne White Solicitor

Counsel for the Respondent: N/A

Solicitors for the Respondent: Steven Young Lawyers

Counsel for the Independent Childrens Lawyer: Mr Scally

Solicitors for the Independent Childrens Lawyer: Legal Aid NSW Newcastle Family Law

ORDERS

1. Order 2 of the substantive parenting orders dated 19 February 2018 continue in relation to the child [X] born 2012.

2. Order 2 of the substantive parenting orders of 19 February 2018 continue in relation to the child [X] born 2006, save that the supervised time is subject to [X]’s expressed wishes.

3. Pursuant to s.62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Senior Family Consultant, Child Dispute Services on 26 September 2018 at times to be advised for the purposes of the preparation of a Family Report and in particular:

   (a)To consider the factors in S60CC & S65DAA of the Family Law Act 1975.

   (b)To assess the parents (and other significant adults)

   (c)To assess the parents interactions (and those of other significant adults)

   (d)To assess the children’s developmental and emotional state.

   (e)To assess the relationship of the children to the parents (and other significant persons) and the wishes of the children.

   (f)To assess the proposed and actual home environments.

   (g)To assess the proposals of each party as to the children’s future.

   (h)To assess any risk issues for the children relating to the allegations of the father’s family violence and potential alcohol abuse.

   (i)To assess any issues in relation to the mother’s capacity to encourage and foster an ongoing relationship between the children and the father.

   (j)To assess any relevant issues in relation to the mother’s proposed relocation.

   (k)To consider any other matter which the family consultant considers relevant to the Court’s determination.

4. The Court requests the said report be released by 17 October 2018.

5. Pursuant to Rule 1.06 of the Federal Circuit Court Rules 2001 the court dispenses with the requirement of Division 15A.2 of the said Rules and the family consultant is granted leave to inspect all documents produced in response to subpoena whether such documents have or have not been released for inspection.

6. If the Family Consultant is unable to inspect documents produced in response to subpoena at the Newcastle Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Family Consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.

7. By 5 September 2018 the Mother file and serve any further Amended Response setting out her updated proposed parenting orders. If the Mother is proposing any specific relocation orders these are to be set out therein.

8. By 12 September 2018 the Father file and serve an Amended Initiating Application setting out his updated proposed parenting order.

9. A copy of the reasons for judgment be placed on the Court file, provided to the parties and to the Family Report writer.

10. On two (2) separate occasions between the date of these Orders and the Family Report interviews the Father is to undergo Carbohydrate-Deficient Transferrin (CDT) testing for alcohol abuse within 72 hours of a request in writing from the Independent Children’s Lawyer to do so, and provide copies of the test results to the other parties.

11. The proceedings are adjourned to 11.30am on 9 November 2018 at Newcastle for callover for allocation of 4 days for final hearing in 2019.

12. All other interim applications are dismissed.

NOTATION:

(A)The Mother is to positively encourage [X] to attend the supervised visits with his Father.

(B)The Mother is to positively encourage [Y] to attend the visits with his Father.

(C)The Mother’s attention is drawn to the Annexure sheet attached to this Order and referred to in the reasons for judgment.

IT IS NOTED that publication of this judgment under the pseudonym Taube & Taube is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2012 of 2017

MR TAUBE

Applicant

And

MS TAUBE

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Background

1. I have before me interim parenting proceedings conducted pursuant to Part VII of the Family Law Act.

2. The proceedings relate to two children:  [Y] born 2006 (aged 12) and [X] born 2012 (aged 5 ½).  The children are the product of a failed relationship between their father, Mr Taube, who is the applicant in these proceedings, and their mother, Ms Taube, who is the respondent in these proceedings.  For convenience in these reasons I will refer to the parties as the “father” and the “mother” respectively.

3. The parents were in a relationship between 2000 and April 2016 at which time their relationship broke down.  Subsequent to the breakdown of their relationship, it is common ground that the children were living primarily with the mother but that they were spending weekend time with the father.  The father’s weekend time with the children is the subject of some debate before me in terms of how well the visits went. 

4. By the middle of 2016 the visits had reduced in frequency and the co-parenting arrangements were breaking down.  The mother essentially said that the children were reluctant to go to see their father, who she accuses of being verbally abusive and violent towards them.  Her case generally is that the father had behaved in a domestically violent manner towards her during the relationship and that he had a significant alcohol problem. 

5. The father’s position is that the visits had been proceeding satisfactorily during 2016 – and that the mother only decided to reduce the children’s’ weekend time with him once he had re-partnered with his present partner, Ms D.

6. It is quite clear that the co-parenting arrangements worsened thereafter, before breaking down irretrievably on 5 or 6 November 2016 following an argument between the parents.  It is conceded that there were arguments between the parents around that time and the father admits sending inappropriate and aggressive text messages to the mother in late November 2016 following which the mother complained to the Police and obtained an apprehended violence order (AVO) against the father which subsisted for a period of some 12 months.

7. Thereafter, the relationship between the father and the children seems to have significantly broken down.  The children were living in the primary care of the mother and simply not seeing the father at all.  The father gives evidence that he unsuccessfully attempted to initiate family dispute resolution.  In fairness to the mother, she had been the victim of violent text messaging from the father, and it is understandable why she did not wish to participate in family dispute resolution at that time.

Proceedings are commenced

1. Ultimately the father took the position that he had to file an application in order to be able to continue a relationship with the children.  His Initiating Application was filed on 10 July 2017.  Therein he sought orders on a final basis for equal shared parental responsibility and that he spend alternate weekend and holiday time with the children.  In the interim he proposed some brief “stepped” time leading to that same outcome. 

2. The mother’s initial Response was filed on 26 October 2017.  The mother sought the following interim orders:  

   (1) the matter be transferred to the Family Court of Australia; 

   (2) the mother have sole parental responsibility for the children; 

   (3) if the Court finds there is a serious risk to the children then the father is not to spend any time with the children; 

   (4) if the Court finds the father presents a risk to the children but deems that supervised time is appropriate, the parties are to attend upon Interrelate Town A and undertake all assessments as required by them and to follow all directions of them in arranging the father to spend time with the children as they direct but no more than once per month.

3. These orders reflect that the mother was very guarded in terms of the father spending time with the children.  On her case, those proposed orders no doubt reflect the risk to the children that the mother says is posed by the father having regard to his alleged violence and excessive alcohol consumption.

First return date – a Child Dispute Conference is ordered

1. The matter came before his Honour Judge Middleton on 27 October 2017 at which time his Honour ordered that the parties attend a section 11F Child Dispute Conference (“CDC”).  The proceedings were otherwise adjourned to 2 November 2017 for further directions.

2. The CDC was conducted by Family Consultant Ms C.  Her CDC Memorandum of 27 October 2017 recounts the mother’s allegations as to the father’s history of perpetrating serious coercive and controlling family violence.  The Family Consultant noted that the father denied physically abusing the mother but that he conceded arguing with her and said that there was mutual pushing.  The father confirmed the mother’s version of events that towards the end of the relationship he had told her to go and have a sexual relationship with another man (to whom she later fell pregnant and had a child). 

3. One interesting aspect of the CDC Memorandum is that the mother told the Family Consultant that her sister had “recently” disclosed to her that, when she was a child, the father had allegedly sexually assaulted her over a number of years. 

4. The evidence as to these alleged sexual assaults on the mother’s sister is a serious matter but appears to be somewhat inconsistent in that, although the mother said that her sister’s disclosure was recent, the mother’s affidavit filed on 26 October 2017 [1] deposed that the mother’s sister had told the mother about the alleged sexual assaults around 10 August 2016, some fourteen (14) months earlier.  Moreover, after the alleged disclosure the mother continued to send the children to the father for another three (3) months or so at which time the mother ceased the visits – citing her sister’s disclosures as a contributing factor to that decision.

   [1] Paragraph 20

5. The father denies any such assaults/abuse.  He deposes in his affidavit material that he subsequently voluntarily attended upon the police in relation to same and that apparently they advised him that there were no active investigations in relation to the matter.

6. This is a serious allegation – but in truth it is but one of multiple disputed facts and allegations that the Court is unable to resolve today.

7. Returning to the CDC Memorandum, Ms C was clearly concerned about the father’s alcohol consumption.  She noted that the father conceded drinking some six (6) to eight (8) stubbies of beer every day, telling her that this had been his pattern of drinking for about the last ten (10) years. 

8. On any view that level of alcohol consumption was a significant concession by the father which inevitably gives rise to real questions of risk in his household as that is a very large amount of alcohol to consume on a weekly basis.  

9. The mother alleged to the family consultant that the father was physically and verbally abusive towards the children.  In the words of the Family Consultant, the mother was “clearly extremely worried for them.  She said that they don’t want to go and see the father and are very distressed about it.  The father denies this and states that the children are always happy to see him and never protest”. 

10. Ms C also noted that the mother presented as “highly vulnerable and traumatised with potential symptoms of post-traumatic stress disorder and I have strongly urged her to seek counselling support and assistance”. 

11. In the end, Ms C’s cautious recommendation in the CDC Memorandum was that the father not spend time with the children until there could be further assessment - including a Child Inclusive Conference. 

Directions Hearing on 2 November 2017

1. The matter came back before his Honour Judge Middleton on 2 November 2017 following the release of the CDC Memorandum. 

2. On that day, his Honour ordered that the father undertake CDT testing for alcohol abuse, and that the parents and children participate in a Child Inclusive Conference (“CIC”).  The proceedings were otherwise adjourned to 19 February 2018 for further directions.

Child Inclusive Conference Memorandum dated 19 January 2018

1. The same Family Consultant, Ms C, conducted the CIC on 19 January 2018. 

2. I also have the CIC Memorandum before me.  The CIC Memorandum makes for somewhat grim reading. 

3. Most importantly for present purposes, the mother apparently told Ms C that she could not agree to the children spending any time with the father, but that she will facilitate it if ordered to by the judge.  

4. Somewhat ominously, when the Family Consultant asked the mother how she would feel if the children were to spend supervised time with their father she responded, “I’ll freak out and worry the whole time they are not with me”, and “it will plague me”.

5. The family consultant interviewed [Y] and he recounted to her harrowing allegations of family violence that he claimed to have witnessed. 

6. To quote from [Y]’s interview:

   ·     [Y] said that the good part about the parents living together was that “I had a mum and dad”, he said, however that there were major problems because his parents “got on not so well…’cos my dad always hit my mum and me”.  He knew that the father had hit the mother “because I’ve seen him do it.”  [Y] said that “lots and lots of time he has hit her, he always does it.” [Y] was able to give detailed accounts of that last time it had occurred and the worst time he had seen (a different occasion).  He said that the last time was just before they broke up, he was outside, he heard yelling and he ran inside and saw his father hit his mother on the arm.  He said that his mother went into her bedroom and started crying.  He said he went back outside feeling “a bit upset and scared”.  The worst time was when the father punched the mother in the face.  [Y] said he was sitting watching tv and he said he saw his father punch his mother in the face in the hallway.  He felt he may have been six or seven at the time “I remember being upset”.  [Y] said that sometimes his mother would grab the father’s arm and push him away but she didn’t try to hurt him.  [Y] said that normally he just tried to stay out of all of it.  He said that usually [X] would be playing on the floor, seemingly oblivious and he ([Y]) would go to him and cuddle him “I tried to stay near him.  I was worried he might get hurt.” [2]

   [2] CIC Memorandum, page 2, 6^th bullet point

7. [Y] reported to the Family Consultant that his father “hurt me very often” and he referred to a particular event when he said that he had accidentally burnt the father’s hand near the stove and that his father slapped him on the ribs for it – resulting in black and purple bruising.[3]

   [3] CIC Memorandum, page 2, 7^th bullet point

8. Notwithstanding these events however, [Y] did tell the Family Consultant that he did not know why he had stopped seeing his father in 2016.  In his words, “I just stopped going.  I don’t know why and then [X] stopped going and it was too late by then.” When asked about how he felt, not having seen his father for so long, [Y] said he didn’t know.  He said he didn’t know what his mother thought about him seeing his dad as “she never talks about that.”  Importantly, [Y] told the Family Consultant that he did want to see his father, but his mother would not let him.  He went on to say that he was confident that his dad wasn’t drinking as much and that “he doesn’t get angry at all, he just goes to bed”.  [4]

   [4] CIC Memorandum, page 2, 9^th bullet point

9. It is significant to me that [Y], despite recounting substantial incidents of family violence perpetrated by the father, nonetheless wanted to be able to see him.  This statement is at odds with what the mother had reported to the Family Consultant in the CDC - “[Y] misses having a dad figure, but not a dad.” [5]

   [5] CDC Memorandum, page 2, 7^th paragraph

10. The Family Consultant noted that the father was willing to spend supervised time with the children - but only if the Court required it. 

Interim hearing and orders of 19 February 2018

1. With the benefit of affidavit material from both parties, and by that time the CDC Memorandum and CIC Memorandum, the matter proceeded to interim hearing on 19 February 2018 before his Honour Judge Middleton.

2. At that time, Mr Bates of counsel appeared for the father and Mr Winder (solicitor) appeared for the mother as agent. 

3. The outcome of that hearing was that his Honour appointed an Independent Children’s Lawyer, but more significantly for present purposes his Honour made specific interim orders providing that the children live with the mother but that they spend supervised time with the father each fortnight at Interrelate, Town A. 

Difficulties with the childrens’ behaviour since the interim order was made & the need for further urgent Court intervention

1. The interim orders for supervised time have gone on to be a source of great controversy between the parents, with the result that this Court has been required to urgently re-visit those orders.

2. By Amended Response filed 4 June 2018, the mother sought in the interim to discharge the interim orders for supervised time - on the basis that it is not in the best interests of either of the children for such orders to continue.  She also sought sole parental responsibility for the children and to relocate with the children to another area of New South Wales of her choosing.  Sensibly she did not press the relocation aspect at interim hearing.

3. That Amended Response, which was effectively an interim application to vary the earlier orders, first came before me on an urgent basis on 5 June 2018.  On that day, having regard to the medical evidence annexed to the mother’s affidavit filed on 4 June 2018, I suspended the orders in relation to [Y].  In doing so, I was aware that I could bring the matter back before me very quickly for interim hearing today.  On that basis, Mr Bates for the father quite properly conceded he could not properly be heard against the short-term suspension of the order concerning [Y].

4. The proceedings came back before me for interim hearing today as envisaged.

5. The hearing occupied some significant time in Court, and the parties tendered a number of exhibits, some of which I will specifically refer to in these reasons. 

6. On this occasion, the Court had the benefit of Mr Bates appearing as counsel for the father, Mr Winder again appearing as solicitor (agent) for the mother, and Mr Scally appearing as Independent Children’s Lawyer.  I pause here to specifically record my thanks to each of the legal representatives for their assistance throughout this hearing.

1. At the outset I would record here that, as is no doubt obvious, there are a great many disputed facts in this matter and it is beyond my capacity at an interim hearing to resolve those:  Goode & Goode (2006) FLC 93-286; Cowling & Cowling (1998) FLC 92–801. In particular I am aware that an interim hearing is of a “significantly curtailed” nature and that the Court generally proceeds on the basis of the agreed or the less controversial facts.[6] 

   [6] Although serious allegations cannot simply be ignored merely because they have been put in issue: Eaby & Speelman [2015] FamCAFC 104; Salah & Salah [2016] FamCAFC 100

2. In essence, the mother’s case is that the children have greatly deteriorated in their behaviour and in their general health since the making of the interim orders. 

3. In the case of [Y], the mother specifically deposes to the following matters, as taken from her affidavit filed 4 June 2018:

   ‘The first visit was on the 4^th of April 2018.  The children expressed serious concerns to me about going without me being there with them, they were very worried something would happen to them.  They kept asking me if ‘they would be alone with that man’ and ‘can he hurt us there’. They were polite to the supervisors and left uneasily and the visit was carried out for the two hours.

   At the conclusion of the visit both children rushed to hug me and appeared unsettled. [Y] would not talk, he was vomiting and unable to eat, he didn’t sleep well that night. He said words to me to the effect “I don’t want to see him again mum it scared me a lot. I didn’t wanna talk to him.” I asked [X] if he enjoyed the visit. He responded “the lady was nice and there were lots of toys that was the best”. I asked him about the person he went to see if he liked seeing him and he said “he didn’t hit me but if he tried I would sit on his hands.”

   [Y] then left on his pre-organised trip to see his grandparents and his Aunt.  During this time, my mum and sister conveyed concern to me about [Y] saying ‘was not himself’. ‘The happy little boy we have been seeing is gone’. We met the following Sunday at which time I collected [Y] from their care.  They expressed to me serious concern about his wellbeing both emotional and mental. His physical appearance also caused them concern. During the trip home [Y] and I discussed what was troubling him.  During the four hour trip he cried and cried almost the whole time and said words to the effect “I don’t want to live my life now” and “I feel dead inside”. I said “what do you mean?” he said “now that I have to see that man I feel dead inside and I don’t want to live my life anymore”. I found this talk alarming and used the calming and mindful techniques our Counsellor had been getting us to use. It calmed him enough to sleep when we got home but I removed all sharp objects and anything that he could seriously hurt himself with while I had a couple hours broken sleep as I was worried that he may carry through with his comment.  His attitude was dejected and despondent and it is now extremely out of character for him to behave like this.

   I contacted his Counsellor who made an urgent appointment. Unfortunately she then had to reschedule the appointment due to personal matters until Thursday the 26^th April 2018. During this visit [Y] spoke with her in relation to his visit and how things have been for him since that time. She expressed serious concerns for his wellbeing and indicated to me that he needed to immediately see hid GP and possibly further involvement was required.  I attach a letter from [Y]’s Counsellor marked with the letter “A”. His Counsellor asked if [X] had had the same reaction.  I explained that his behaviour had regressed to lashing out, yelling, hitting, biting, and generally being antagonistic, all of which he hadn’t been doing for quite some time. [X] has neurofibromatosis and is Globally Developmentally Delayed which has a huge impact on his day to day life. With [X] just little changes and comments can be quite significant and have a detrimental impact.

   During the two weeks since the visit to the father [Y] lost 10 kilos was diagnosed with anorexic, would only sleep in broken snatches and never alone. When he did sleep he was having nightmares of being ‘taken and hurt by that man’. I obtained an appointment with [Y]’s GP the following Friday.  [Y] spoke to the GP in relation to his fears and thoughts.  His GP was concerned for his wellbeing and had placed him on Anti-Anxiety/Anti-Depressant Medication to treat PTSD and his anxiety. This was also to allow him to get back to a better sleep pattern and a better eating pattern. I attach letter from his Doctor marked with the letter “B”.  As a result of this visit [Y] is now regularly seeing a clinical psychologist. I have grave fears for his safety should he be required to continue seeing his father.’[7]

   [7] Mother’s Affidavit filed 4 June 2018, para 6-10.

4. [Y] would not go with the father on the next visit, nor would [X].

5. [X]’s visits later resumed but [Y] has remained resistant to going and has not in fact spent any supervised time with the father at all since that first visit.

6. The mother says that [Y]’s anxiety about the father is so great that he is now afraid of the father taking him away from school.  Indeed a theme that emerges in the mother’s affidavit material is that [Y] has apparently started referring to his father as “that man” when speaking to her.

7. The mother’s concerns about [Y]’s anxiety are to some extent corroborated by [Y]’s General Practitioner, Dr P, whose report of 27 April 2018 is annexure “A” to the mother’s affidavit of 4 June 2018.  In this report, Dr P says:

   I am [Y]’s regular specialist general practitioner since his birth.

   I have assessed [Y] today and believe that he is suffering from a severe anxiety disorder and displaying many deeply concerning features of Post Traumatic Stress Disorder (PTSD) which have been triggered by the recent supervised contact with his father.  Since that visit he has lost a significant amount of weight, has had nausea and vomiting and persisting anorexia.  He has had frequent nightmares and has been unable to spend any nights alone since the contact.  [Y] has expressed feeling completely numb and not wanting to be here anymore, which I believe indicates quite severe depression with suicidal ideation. 

   He has excellent support from his mental health qualified counsellor.  I am strongly recommending that all access visits with his father be ceased.  [Y] will also be commencing an anti-depressant immediately and seeking further specialist assistance.

   I pause here to record that it was this medico-legal report which prompted me to urgently suspend the orders on 5 June 2018.

8. [Y]’s counsellor, Ms J, a social worker employed at (counselling service), has written a report dated 29 April 2018.  Her report is annexure “B” to the mother’s affidavit filed 4 June 2018 and it records that the mother, [Y] and [X] have all been victims of family violence perpetrated by the father over the course of the parents’ relationship. 

9. Specifically, so far as [Y] is concerned, Ms J’s report states that:

   [X] has described ongoing anxiety and trauma, resulting in difficulties at home and at school.  He has spoken openly about these issues, in particular the family violence he experienced from his father, Mr Taube, his concerns about seeing his father again and not wanting to attend court-ordered supervised contact visits at Interrelate, Town A.  At our most recent session on 26/04/18, [Y] stated that after seeing his father again at a supervised contact visit, on the 14^th April, he felt “terrified, scared, didn’t want to talk to him and did nothing with him”.  He stated that during the evening he began vomiting which lasted until the following day.  [Y] stated that he told his mother, “I don’t want to live my life and I feel dead inside.”  Ms Taube stated that, since the visit, [Y] has been “withdrawn, unable to sleep by himself, getting frustrated, not focused, not eating or sleeping well and experiencing nightmares”.  When asked if given the opportunity, what he would like to say to your Honour, [Y] stated, “Can I please not see my dad anymore.  He scares me a lot.”

10. In the case of [X], the mother’s evidence is that he too has suffered adversely as a result of being ordered to spend supervised time with his father at Interrelate Town A. 

11. It is common ground that [X] suffers from developmental delays, apparently secondary to a genetic condition of neurofibromatosis type I. 

12. It notes [X] attended the first visit with [Y] but did not want to go on the second visit.

13. As for the third visit, (on 12 May 2018) the mother sets out her version of that visit, and what followed, in paragraphs 13 – 15 of her affidavit filed 4 June 2018:

    ‘We attended the Contact Centre at the designated time on the 12^th May 2018 and upon entering was told by the Supervisor’s that they have been instructed the children were to provide the decision as to whether or not they would attend.  [Y] said no and walked away from where [X] and I were standing.  [X] said, in front of the supervisors, to me that he wanted to ‘go play with the toys but not see the bad man’. He then hugged my leg. The supervisor said to him that it was safe and his response was to say to me “I don’t want to go can you come with me”. I explained to the supervisors that he had only been asking to play with the toys not actually see anyone. It was at this time Supervisor Ms G grabbed the hand of [X] and said to him “come downstairs and play with the toys” while pulling him off my leg. I was extremely distressed to see [X] being coerced into going downstairs as he had only moments beforehand indicated that he did not wish to go down at all.

    I am aware that whilst attending the visit [X] did intermingle with the father and play with him whilst downstairs, however after the visit, [X] cried almost non-stop every time I was away from him, he started to have nightmares, his appetite decreased and he became physically violent. His communication skills have decreased and his improvements that we had gained over the last twelve months in relation to his conditions and development, have now regressed and he is now in a decline to the extent strangers again now upset him being around him and going out in public is an ordeal as he panics that someone might hurt him or take him. All of these things resulted in me obtaining an urgent appointment on the Monday to see [X]’s GP who has referred [X] to counselling. His first scheduled appointment is mid June 2018. It was at this point that [X] would start referring to the father as “the bad man”. He would say things like “I don’t want to see the bad man cause he will smack and smack me”. Where’s nanny, can I just stay with her so I don’t have to see the bad man”.

    Since this visit it has taken me almost the entire two weeks to make [X] feel comfortable going to school, going out in public and away from the house due to his fears of ‘the bad man taking him’. When asked who the bad man was he would indicate that the bad man was there with all the toys and he used to hit him. [X] would cry while out in Public if he seen someone that had a slight resemblance to Mr Taube and even asked not to go to school so the bad man couldn’t come and get him. I am gravely concerned for his emotional and mental wellbeing should visits continue.’[8]

    [8] Mother’s Affidavit filed 4 June 2018, para 13-15.

14. Annexure “C” to the mother’s affidavit of 4 June 2018 is a “To whom it may concern” report from Childcare Centre in relation to [X], dated 21 May 2018.

15. The report notes that over the preceding six (6) to eight (8) weeks, the childcare centre staff had noticed that [X] had become withdrawn from his peers, had become more delayed socially and physically and had shown cases of distressing behaviour.  They noted he had been intolerant, frustrated and aggressive with fellow peers and that he appeared at times to have lost confidence.  They also referred to incidents of aggression and concluded that his behaviour “has had a noticeable change, after discussing with colleagues, we brought this to the attention of [X]’s mum Ms Taube to find out if there had been any significant changes over the past two months as per Centre policies and procedures”.

16. In my view, what is quite remarkable about this case is the extent of the deterioration in each child, but most especially [Y], since the orders were made for supervised time.  The visits occur in a safe and professionally supervised environment.  In [Y]’s case, he has only attended for one (1) visit, being the very first visit in April 2018. 

17. The father says that this first visit went well.  During the course of the interim hearing he tendered some photographs depicting himself with the children at the contact centre that day seemingly having a reasonable time together – certainly nothing untoward is apparent in the photographs.

18. I now therefore turn to the subpoenaed records of Interrelate Town A in relation to the supervised visits.

The records of Interrelate Town A

1. These records were tendered into evidence as exhibit 8.

2. It appears from those records that the first supervised visit occurred on 14 April 2018.[9]

   [9] Somewhat confusingly, the date of 4 April 2018 appears in some of the affidavit material but it is clearly one and the same date as the 14 April visit referred to in the Interrelate records.

3. According to Interrelate, the following occurred:

   a)The mother arrived with the boys who stood quietly beside her as she talked to the workers.

   b)They were reluctant to go downstairs when asked by the worker. 

   c)The mother hugged the boys, saying “we’ve talked about this, the Court says you have to go”, at which point [Y] stood looking at the floor.

   d)They began to play with some toys in the waiting room and [X] then selected a toy to play with and they went downstairs with the worker.

4. According to Interrelate, the visit thereafter was relatively incident-free, although it was noted by them that the boys were reluctant to engage with the father.

5. Their lack of engagement is perhaps unsurprising, given that they had not had any contact with the father since November 2016, some seventeen (17) months earlier - which is a significant period of time in the context of the relatively young ages of the children. 

6. To me it is of significance that the mother’s advice to the children was “we’ve talked about this, the Court says you have to go”.  This did not constitute encouragement in any shape or form whatsoever.  In fact, it was on one view a communication of passive resistance to the children going.  It was likely made clear to the children that it was a court-ordered situation and not something that the mother herself supported.

7. Indeed, the mother’s position in these proceedings does trouble me to some extent because as a general statement her material is devoid of any evidence that she genuinely encourages the children to go on supervised visits with the father as ordered. 

8. A concern that I have in these proceedings is, as Ms C highlighted in the CIC Memorandum, that the mother may be “freaking out and worrying the whole time they are not with her”. 

9. In any event, this first visit as I have indicated was reasonably uneventful, save that the children did not particularly engage with the father.

10. The next visit was due to occur on 28 April 2018.  It is common ground that neither of the children were wanting to go with the father at the centre and they did not in fact go.  According to the Interrelate notes, the mother told them that [Y] had said he “never wanted to go back to see that man” again, and that he had had nightmares, flashbacks and other incidents coming back into his mind involving the father.  The mother told them that [Y] had lost weight and had not slept well and had talked about not wanting to live anymore, observations consistent with the report of Dr P of 27 April 2018 referred to earlier. 

11. As neither of the boys wished to go with the father on 28 April 2018, the visit did not occur.

12. The third supervised visit was due to occur on 12 May 2018.  At this time it was only [X] who was willing to go, although both boys were taken to the contact centre.  [X] appears to have been reluctant to go, apparently putting his arm around the mother’s leg and turning his face away from the workers.  Again, I do not see any real evidence of the mother actually encouraging [X] to go with the workers, although he does appear to have gone off with them on this occasion.  (The mother’s version of events is set out in paragraphs 13 and 14 of her affidavit filed 4 June 2018, which version has been set out earlier herein.)

13. The mother subsequently made a complaint to the contact centre on 24 May and this seems to have related to the staff removing [X] from the mother’s leg on 12 May 2018.  According to the notes of Interrelate, the mother apparently whether the children would be “forced to go to the contact”.  Interrelate explained to her that no-one could force the children, “we can only encourage them”. 

14. I pause here to again make the point that I see no evidence whatsoever of the mother encouraging these children to go on the supervised visits, save for physically delivering them to Interrelate on the relevant dates.  It is one thing to take the children to a visit.  It is quite another to actually encourage the children to go and evidence of such encouragement – genuine encouragement – is sorely lacking from the mother’s material.

15. On 26 May 2018 the mother took [X] and [Y] to Interrelate and again it was only [X] who would go with the workers to see his father.  This visit seems to have gone reasonably well in that the father and [X] were observed to be becoming more engaged during their time together.  They were operating a train track together, playing a fishing game, playing with Meccano sets and the like. Notably [X] gave his father a “high five” at one point during their game playing.

16. Looked at as a whole, it seems to me that in general terms this supervised visit went positively. 

17. Shortly after this visit, on 4 June 2018 the mother filed an Amended Response seeking to suspend all supervised time between the father and the children.  As set out earlier, it was on 5 June 2018 that the matter came back before me and at which time I made the urgent short-term order suspending the time in relation to [Y] only.

18. The next supervised visit between the father and [Y] occurred on 2018.  Once again, the visit seems to have been a positive one for the father and [X]. 

19. [Y]’s birthday was the next day.  The Interrelate notes record that on the visit the father had apparently provided one of the contact centre workers with some presents to give [Y].  [Y] was shown the presents and hesitated about taking them.  The mother said, “That’s nice of him but it is totally up to you if you take them.” 

20. The Interrelate notes record that [Y] ultimately decided to leave the presents with the worker.  The mother explained to the worker, “He just doesn’t want anything to do with him.”

21. Pausing there, the mother’s statement to [Y] again displays a complete lack of any encouragement of the father/child relationship.  Given that the father was spending no time with [Y] and had not had any meaningful time with him since late 2016, one would think that the giving of birthday presents to [Y] was potentially one way to try to start “rekindling” that relationship.  I suspect that the mother had no real desire or intention to particularly encourage that relationship at that time.  I see this event as an opportunity to encourage the relationship that was perhaps “missed” by the mother.

22. However, in saying this I am at pains to make the point that the mother also runs a case, and has significant evidence supporting it, that she was the victim of long-term family violence from the father, to which the children were exposed.  In that sense, her reticence to promote that relationship may well be understandable from her perspective. 

1. The last supervised visit that I have notes of from Interrelate occurred on 23 June 2018 - and again it was [X] only who went with the father.  Again, it appears to have been a generally positive visit.  I note that again [X] gave his father a “high five”. 

2. In short, having regard to the contact centre notes that comprise exhibit 8, I can see no evidence of any misbehaviour or other inappropriate behaviour by the father during such visits whatsoever.  I can, however, see evidence that the mother was either unable - or unwilling - to actively encourage either child to go with the father.

Analysis of the evidence and submissions

1. I accept that the mother brought both the children to the visits on each occasion, but as I have emphasised, there is simply little if any evidence that she genuinely encouraged the children to spend the supervised time with the father.  In the case of [Y] in particular, he only went with his father on the initial visit and I accept the submission of Mr Bates on behalf of the father that the visits “were never given the chance to work” in [Y]’s best interests. 

2. In this respect I also note that the orders of 19 February 2018 made by his Honour Judge Middleton were never appealed.  They were binding on both parents and it was incumbent upon both to comply with them.  In the case of the mother, this meant more than simply delivering the children but positively encouraging them as explained in the section 65DA(2) information sheet annexed to the interim orders of 19 February 2018, entitled “Parenting orders – obligations, consequences and who can help”.

3. In particular, the information sheet says as follows:

   Your legal obligations

   ·     You must do everything a parenting order says.  In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect.  You must also positively encourage your children to comply with the orders.  For example where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so…

4. The mother has definitely ensured that the children are “available” but there is no evidence before me that she has “positively encouraged them to go”.

5. On behalf of the father, Mr Bates submits to me that the children are reacting to their mother’s negativity towards the father.  That may well be the case, but it is probably unlikely to be “the whole story” particularly in relation to [Y].  [Y]’s situation is likely to be more complex than that and may well involve the father having perpetrated family violence which [Y] (being the older child) has witnessed, and which violence had had a potentially very significant adverse impact on him.

6. Mr Bates tendered some other documents which were of general assistance to me.  In particular he tendered a COPS entry of 10 August 2016 (exhibit 4A) in which the mother (as “victim” in the COPS records) complained to the police in August 2016 that she had been in a marriage with the father for about 11 years, had recently separated and the father had since started another relationship.  Notably, the records state that the mother:

   …attended Town A Police Station in order to have a record made of the ongoing issues between the pair.  The victim appeared extremely emotional on presentation.  The victim stated that she and the PN [the father] have been constantly arguing over the children and the new partner visiting them.  The victim further stated that the father was very unstable and had previously hit her son 10 years ago.

7. The COPS record goes on to refer to some aggressive text messaging. 

8. This note is potentially important because nowhere in the note does the mother tell the police about the far more serious violence that she now alleges that the father perpetrated against her - including, most notably, in December 2015 when he apparently threatened her with a knife. 

9. The note also corroborates the father’s general complaint, which is that his time with the children in 2016 (before these proceedings began) only really degenerated as a result of the father re-partnering.  On one view, in that COPS record the mother is herself making such a comment to the police. 

10. Mr Bates therefore submits that, having regard to exhibit 4A, I should regard the mother’s evidence of family violence with great caution.

11. These are not matters that I can make a finding about today, noting that I am conducting an urgent interim hearing and that I am unable to resolve disputed facts.

12. Mr Bates also tendered a COPS entry of 30 November 2016 (exhibit 4B) in which the mother made another complaint to the police.  Again, on that occasion she made reference to the deterioration in the relationship between she and the father once his new partner came onto the scene.  She refers specifically to the father threatening to burn their house down at that time and the aggressive text messages are recounted. 

13. I should say that it is common ground that the father behaved inappropriately towards the mother at that time and indeed that he sent those aggressive text messages.  He admits as much in his affidavit material.

14. In a nutshell, Mr Bates submits that, as noted earlier, the mother did not “give the orders a chance to work” and that it is in [Y]’s best interest that he resume attending for such supervised visits. 

15. However, a difficulty with the (understandable) submissions of Mr Bates are that they assume that [Y], who is clearly highly distressed at the moment, will be able to simply quickly change his position upon the mother adopting a more positive approach to the supervised time arrangements. 

16. I am not sure that the solution to [Y]’s present distress is as quick and simple as that.  The problems that [Y] is experiencing may well be far more complicated.

17. On all of the material that is before me, I consider that the mother is likely to be substantially resistant to the children spending even supervised time with the father.   Her resistance is likely to be a significant contributor to the current problems.  But it may not be a complete answer to simply expect her to “change her attitude” and that, if she can, then [Y] can quickly follow suit.  I see that as perhaps wishful thinking in this case, particularly if [Y] has witnessed substantial family violence, as he apparently records to the report writer.

18. Mr Bates also tendered as exhibit 5 a record from the Department of Family and Community Services in relation to [X], which particularly recorded some bruising that he was observed to have on his body in November 2016.  It is common ground that there was an event which occurred around this time in relation to [X] when he was with the father.  Each party has a different version of events and I do not propose to go into that for now.  A relevant point made by Mr Bates is that this record reveals that, according to [X] when interviewed at that time in November 2016, [Y] was happy to go and see his father and it was [X] who was reluctant. 

19. I am not sure that this exhibit takes me very far today.  I also note that in the same record [X] explained his bruising by saying to the departmental officers, “Dad hit and hit and hit”, which is denied by the father.

20. Mr Bates ultimately submitted that there be no changes in terms of the orders for parental responsibility and no specific orders made at this time.

21. Mr Winder, on behalf of the mother, submitted that [Y] had significant problems at present and that he needed to be protected from the current situation whereby he was required to go to Interrelate for supervised visits. 

22. I challenged Mr Winder during submissions in relation to the likely impact on [Y] of the mother’s resistance/reluctance to sending him on supervised visits.  His response was, I think quite fairly, that the mother could not be “forced” to positively encourage the ongoing relationship between the father and [Y] in circumstances where her case is that she has been the victim of long-standing family violence which [Y] witnessed.

23. I appreciate that submission and it is a difficult matter because the orders require the mother to facilitate and to positively encourage the children to attend on visits - but equally I accept that the mother may well have anxiety about visits relating to her own lived experiences as she perceives them to be. 

24. I challenged Mr Winder in relation to the use of the term “the bad man” by [Y] (and by [X]), noting that the father had not seen the children between November 2016 and April 2018, and that logically it would seem that the expression “the bad man” has been picked up by [Y] and/or [X] some time during the father’s absence.  By extension, it would hardly have been the father who would have used that descriptor for himself during that period, ie. the children may have picked that expression up from someone while in the mother’s care.

25. Mr Winder’s response was that [Y] may simply be using that expression because it has been his own lived experience, and that is a reasonable submission to make on the mother’s case.

26. That submission again highlights the complexity and difficulty of this matter in circumstances where: 

    a) [Y] may or may not have been the witness/victim of significant family violence; and

    b) the mother, in all likelihood, is not able to, or willing to, actively encourage him to see his father in the circumstances, even in a supervised setting.

27. As for [X], Mr Winder essentially submitted that he was on a “slippery slope” and that the risk was that if the Court did not suspend his supervised time with the father, then [X] may end up going down the same pathway as [Y]. 

28. I appreciate that submission but the evidence in relation to [X] is relatively “thin” by comparison to [Y].  I note the photographs tendered by the father which tend to show a positive interaction during the supervised sessions.  I also note that the Interrelate notes record that the visits between the father and [X] have generally progressed reasonably well, albeit that [X] was initially “standoffish”.  His interactions with the father seem to have improved as time has gone on.

29. Ultimately, the mother’s position through Mr Winder was that the court should not only suspend the supervised time orders, but also make an order that the mother have sole parental responsibility for both children in the interim. 

30. The Court was particularly assisted by submissions from the very experienced Independent Children’s Lawyer, Mr Scally (“the ICL”). 

31. Mr Scally tendered as exhibit 7 in the proceedings a report from [Y]’s school of 30 May 2018 which relevantly provides:

    At the beginning of the term, [Y]’s mum contacted the school to let us know of a change in circumstances regarding [Y] and his father’s visitation rights.  Since the beginning of the term I have observed a few concerning behaviours and had a few conversations with [Y] at various times.  Whenever a visitation weekend is approaching, [Y] seems to become more agitated and has a shorter tolerance for things that happen that he doesn’t like.  On a few occasions he has become quite loud and disruptive during class time.  This usually occurs a day or two before he is due to see his dad.

    On several occasions I have had conversations with him regarding the situation.  During one of the first conversations he mentioned that he was anxious and worried about seeing his dad the next time he was supposed to go and see him.  On another occasion two weeks ago he mentioned that he was anxious and worried that his dad might show up at the school and take him away.  We have had another conversation regarding the matter to reassure him that he is safe at school.

32. As I indicated to Mr Scally during submissions, this note highlights the conundrum about [Y] in this case. 

    ·     It is clear enough to me that [Y] is suffering enormously as a result of the current situation.  What is unclear to me is what is the primary cause for that suffering. 

    ·     On one view, it could be his lived experience of family violence at the hands of his father. 

    ·     On another view, it could be that his mother is so anxious about him going to supervised visits (as she recounted to the Family Consultant in the CIC memorandum) that [Y] is picking up on that anxiety. 

    ·     [Y]’s difficulties could also be a combination of the two.

33. As I said somewhat inelegantly during submissions, I currently see [Y] in this case as being in an emotional “mincing machine” - but I am not sure whether it is the father or the mother who is primarily the cause of his distress or whether it is a combination of the actions of both. 

34. Mr Scally tendered the Interelate notes, which I have referred to earlier, and confirmed my own view that those notes demonstrate that there is really no active encouragement of the boys by the mother to go to their father during such visits. 

35. Ultimately, Mr Scally submitted that I should make no change to the orders in relation to [X], but that I should suspend the order in relation to [Y]’s visits, subject only to [Y]’s wishes.  The intention of such a proposal is that [Y] can continue to have the opportunity to go to see his father on supervised visits if he wishes to - rather than having that opportunity shut off to him. 

36. As to parental responsibility, Mr Scally’s primary submission was that the court should not make any orders as to parental responsibility in the interim.  His “fallback” position was to make the sole parental responsibility order sought by the mother.

Applying the law

1. As indicated earlier, this is an interim hearing at which I cannot make findings as to disputed facts. I understand and am well familiar with the provisions of section 61DA, section 65DAA, section 60CA, and section 60CC of the Family Law Act. I do not propose to slavishly go through the relevant legislative factors, particularly given that this is an interim hearing of a somewhat urgent nature, and noting that I am delivering these reasons extemporaneously on the day of the hearing.

2. It suffices for me to say that I fully appreciate that I have to make orders in the interim which are in the best interests of each of the children.  I see each of the children as having similar, but in some ways different, needs. 

3. The primary considerations are the critical considerations at this juncture, as set out in section 60CC(2). 

4. In the case of [Y], the question is what “benefit” he will derive from maintaining a meaningful relationship with his father in the current very difficult circumstances he finds himself in.  There are also real questions about protecting both children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence (section 60CC(2)(b)).

5. Turning back to the interim orders of his Honour Judge Middleton, it is clear that his Honour concluded at that time (19 February 2018) that both children ought to have an opportunity to have a relationship with their father, albeit in a supervised setting.  I can see nothing in the evidence of any inappropriate behaviour by the father subsequent to those orders being made and in those circumstances I am struggling to find any reason why [Y] should not see his father - except for the critical fact that [Y] has apparently completely decompensated since the making of the orders.

6. As I have indicated earlier, I consider that this problem could be a result of [Y]’s lived experience with his father, it could be his mother’s anxiety, or it could be a combination of both.  The most important consideration for me at this time however is [Y]’s wellbeing, and I am greatly troubled to read his GP’s report suggesting that [Y] may be suicidal at the tender age of 12.  He is only a young child and I consider this to be an unacceptable situation for him.  It places him at unacceptable risk on a number of levels, primarily emotionally.

7. My concern about [Y] is that if I continue to leave the interim order in force, then I see the problem as potentially continuing for him. 

8. In particular, if the primary cause of his problems is his father’s past behaviour, then his continuing attendances upon his father could increase and exacerbate the psychological harm he is already experiencing.  On the other hand, if it is the mother’s anxiety that is primarily driving [Y]’s deterioration, then the continued enforcement of those orders results in exactly the same problems for [Y].  Equally, if it a combination of the behaviours of both parents, then the problems will continue if the order continues in the same form.

9. The alternative is that I suspend the orders, but of course the longer-term problem with suspending the orders is that [Y]’s relationship with his father may further deteriorate.  If at the end of a trial I find that it would be in [Y]’s best interests to maintain a meaningful relationship with his father, and that any risks relating to his father in that regard are not unacceptable, then suspending the interim orders will result in [Y] having suffered the distinct disadvantage of having been, in a practical sense, deprived of the benefit of any regular interaction with his father for quite some time.

10. It is a difficult balance, but in the end, having regard to section 60CC(2)(b) and particularly section 60CC(2A), I consider that I have little option but to suspend [Y]’s supervised time with the father at Interrelate - although I propose to accede to the Independent Children’s Lawyer’s submission that [Y] have the option to attend such visits if he so wishes. 

11. In arriving at this conclusion, I want to make clear that the mother should not in any way see this as me suggesting that she ought not to be encouraging [Y] to go on visits – quite the opposite.

12. It is a tragic situation that [Y] is not seeing his father, but my concern is that forcing him to see his father at this time risks creating a worse outcome for this young boy.  It will be seen by the parties that I am also proposing an urgent family report so that we can bring this matter back more quickly than would otherwise be the case.  I am more comfortable in suspending the father’s time in the interim knowing that the matter will be back before me again sooner rather than later.

13. In relation to [X], I see no reason whatsoever at this point to suspend the supervised time orders, and they will continue.  I accept that [X] has suffered some issues around his behaviour and that there has been some disruption for him since the making of the orders.  However, as I said to Mr Winder during argument, one would reasonably have expected that [X] would suffer some disruption by the making of supervised time orders in February 2018 given his young age, his developmental delays and the simple fact that he went for such a long period without seeing his father.  It is simply not fair to assume that any instability/behavioural issues for [X] should be “sheeted home” to the father as being his fault.  I am not prepared to make that finding and, as with [Y], I suspect that the situation is more complicated than that.

14. In these reasons, I have deliberately chosen not to go into too much of what each of the parents has deposed to in their affidavits. 

15. The reality is that the mother generally paints the picture that the children were not coping with or enjoying their time with the father in 2016, and the father generally paints the picture that the visits were going well.  The parents differ as to how the visits at Interrelate have been going with [X] but these are all matters for a final hearing.

16. In my view, the important issues at this time are to safeguard [Y]’s emotional health and wellbeing, to continue [X]’s relationship with this father, and both parties need to be given a clear message that they have to do their best going forward for the sake of these children going forward.

17. For the father’s part, he needs to reflect upon his past behaviours during the relationship and ensure that the visits at Interrelate are as positive as possible.  He appears to be doing that, although I have some reservations about his CDT results which continue to be somewhat high, although not necessarily indicative of alcohol abuse.  The father needs to reflect carefully as to his own conduct (including his alcohol use) going forward. 

1. In terms of the mother, she needs to reflect carefully on her willingness and attitude to promoting and fostering a relationship between the children and their father.  As I have indicated, it is quite clear to me that there is a significant gap in the evidence insofar as her genuine encouragement is concerned - as opposed to token encouragement in taking the children to Interrelate.

2. This case can fairly be described as utterly dysfunctional and these children are presently caught in a very difficult conflict between their parents.  It is not open to me at an interim hearing to make findings as to all of the disputed facts.  However, what is important for now is to safeguard [X]’s right to a meaningful relationship with his father and [Y]’s right to be emotionally safe. 

3. Having regard to the significant disputed facts and to my concern both about the father’s actions and the mother’s actions, I am not proposing to make any orders about parental responsibility in the interim.  By reference to section 61DA(3), I simply consider it inappropriate to apply the presumption of equal shared parental responsibility given the conflicting allegations in this case. 

4. I otherwise propose to order that there be an urgent family report, that each party amend their respective Application and Response so that the family report writer knows exactly what is on the table in terms of the future care of these boys.  I will also direct that these reasons be placed on the Court file, and a copy provided to the parties and to the Family Report writer.

5. At the specific request of Mr Scally after delivery of these reasons, and not opposed by the father, I will also order that the father undergo two (2) further random CDT tests at the request of the Independent Children’s Lawyer.  These tests are to take place prior to the Family Report interviews.

I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of Judge Betts

Date:  12 July 2018