Trausch & Trausch
[2023] FedCFamC1F 318
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Trausch & Trausch [2023] FedCFamC1F 318
File number: MLC 2338 of 2016 Judgment of: CARTER J Date of judgment: 27 April 2023 Catchwords: FAMILY LAW – CHILDREN – previous final orders made – allegations the children were exposed to sexual behaviours and material in the father’s care – protracted litigation – Department involvement – SOCIT involvement – best interests of the children – orders made Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC
Cases cited: AMS v AIF (1999) 199 CLR 160
Godfrey v Sanders (2007) 208 FLR 287
Loddington & Derringford (No 2) [2008] FamCA 925
Masson v Parsons (2019) 266 CLR 554
Mazorski v Albright (2007) Fam LR 518
McCall v Clark (2009) FLC 93-405
Division: Division 1 First Instance Number of paragraphs: 153 Date of hearing: 27 – 28 February 2023 Place: Melbourne Counsel for the Applicant: Sharon Marshall Solicitor for the Applicant: Altona Legal Counsel for the Respondent: Denis J. Connell Counsel for the Respondent: Victoria Whitelaw Solicitor for the Respondent: Ian Robertson Legal Counsel for the Independent Children's Lawyer: Penny Treyvaud Solicitor for the Independent Children's Lawyer: Schetzer Papaleo Family Lawyers ORDERS
MLC 2338 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TRAUSCH
Applicant
AND: MR TRAUSCH
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CARTER J
DATE OF ORDER:
27 April 2023
THE COURT ORDERS BY CONSENT THAT:
1.The parties have equal shared parental responsibility for the children X born 2008 and Y born 2010 (“the children”).
2.The children live with the mother.
AND THE COURT ORDERS THAT:
Spend time arrangements
3.The children spend time with the father at times agreed and failing agreement:
(a)each alternate Saturday from 10:00 am to 3:00 pm at a venue nominated by the father;
(b)on Christmas Day each year from 11:00 am until 2:00 pm; and
(c)at such other times as may be agreed in writing between the parties.
4.Changeovers shall occur at Bunnings in Suburb B, unless otherwise agreed in writing.
Children’s extra-curricular activities
5.Both parents ensure the children attend their extra curricula activities when in his/her care.
6.Both parents be at liberty to attend school and extra-curricular activities to which parents are routinely invited including but not limited to the children’s sport training and games.
Communication and provision of information
7.The parents keep each other informed in writing of:
(a)their current residential addresses, email addresses, and contact telephone numbers, including mobile telephone numbers at least seven days prior to the change where practicable and otherwise, as soon as possible after the change;
(b)all serious illnesses and/or injuries sustained by the children or either of them whilst in the respective care requiring medical attention and notify the other parent of the name and contact details of the treating medical practitioner(s) as soon as practicable; and
(c)details of the children’s extra-curricular activities including but not limited to dates, times, and locations scheduled to take place during the children’s time with the other parent.
8.The parents communicate about all urgent and / or emergency matters relating to the children by telephone.
9.The parents communicate about all non-urgent / emergency matters relating to the children via the Our Family Wizard Parenting App or such other Parenting App as agreed between the parents in writing.
10.Both parents are at liberty to provide a copy of these orders to the children’s schools, treating medical/dental/allied health professionals, any extracurricular activity service providers and the parenting coordinator.
Family Dispute Resolution
11.Pursuant to section 13C of the Family Law Act 1975, the parents engage a Parenting Coordinator at C Organisation or such other person as agreed between the parents (“the Parenting Coordinator”) on a non-confidential basis twice yearly basis, once in March and once in October, on dates agreed between the parents and the Parenting Coordinator to:
(a)discuss any and all issues in relation to the children, the implementation and operation of these Orders, and communication between the parents with the costs of engaging the Parenting Coordinator to be shared and paid equally by the parents; and
(b)by no later than 20 February and 20 September each year, the parents notify each other in writing if they DO NOT have any issues to discuss in relation to the children and if neither parent has issues to discuss in relation to the children, the parents be permitted to not engage the Parenting Coordinator on that occasion.
12.In the event the parents are unable to reach agreement in relation to any issue(s) relating to the children or either of them, both parents do all such acts and things necessary, and in addition to Order 11, to engage the Parenting Coordinator to assist the parents to resolve the issue(s) with the costs of engaging the Parenting Coordinator to be paid equally by the parents.
13.Once engaged, the parents continue to engage the same Parenting Coordinator to comply with Orders 11 and 12 herein or in the event the Parenting Coordinator is not available, the Parenting Coordinator’s nominee.
14.The parents do all necessary acts and things to ensure the Parenting Coordinator, and thereafter any Parenting Coordinator appointed, receives:
(a)a copy of the Family Report prepared by Family Consultant, Dr E, dated 27 September 2022;
(b)copies of all reportable Family Therapy Reports prepared by Mr D; and
(c)a copy of the reasons for judgment.
15.If the parents are unable to agree on any decision affecting the parenting responsibilities or parenting arrangements for the children or either of them, the parents do all things necessary to refer the dispute to the Parenting Coordinator prior to instituting Court proceedings, whether on an interim or final basis or for orders for enforcement or contravention, on matters that are within the scope of the Parenting Coordinator’s services.
16.Both parents be at liberty to obtain a written report from the Parenting Coordinator at any time at the requesting parent’s expense.
Injunctions
17.Each of the father and mother, by themselves, their servants and agents, be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or any member of their household or family in the presence or hearing of the children or either of them and from knowingly permitting any other person to do so;
(b)discussing these Court proceedings with the children or either of them, or in their present and/or hearing and from knowingly permitting any other person to do so; and
(c)passing messages to the other parent through the children or either of them.
AND THE COURT NOTES THAT:
A.Pursuant to sections 65DA(2) and 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 the parties to adjust to and comply with an order are set out in the Fact Sheet attached 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
INTRODUCTION
The parties in this case are the parents of two children, X born 2008 and Y born 2010, (collectively, “the children”).
Both parents agree that there should be equal shared parental responsibility for the children and that the children live with the mother. However, there is a dispute as to the degree of spend time arrangements between the children and the father, owing in part to the allegations of inappropriate sexual conduct and imagery to which the mother asserted the children had been exposed whilst in the father’s care.
It is the mother’s case that the children are reluctant to spend extended time with their father, and that at their ages, their views need to be considered and given weight. It is the father’s case that the mother has undermined the children’s relationship with him, influenced them against him and sought to marginalise him in the children’s lives.
The parties’ competing proposals for the children’s time with their father can be summarised as follows:
(a)the mother and the Independent Children’s Lawyer proposed time between the father and the children each alternate Saturday for five hours, and for the father to attend the children’s school and extra curricula activities; and
(b)the father proposed that X spend time with the father in accordance with his wishes. He proposed that Y spend time with him for four nights per fortnight, and for a week in each term holiday and two blocks of seven nights over the long summer holidays. He made further proposals for the sharing of various special occasions.
For the reasons that follow, I am of the view that the children’s best interests are met by the proposals advanced by the mother and the Independent Children’s Lawyer in relation to the regular time they are to spend with their father.
BACKGROUND AND PROCEDURAL HISTORY
The mother works in security. She lives in F Town, in G Region, in rented accommodation. The father is a tradesperson. He lives in Suburb B, in a home he has purchased, close to the children’s school.
At the time of the final hearing before me on 27 February 2023, X and Y were both aged 14 and 12 years old, respectively. Both are currently attending H School in Suburb B; X in Year Nine and Y in Year Seven and are progressing in a satisfactory manner. They are also both good at sports and engaged with local sports teams.
The father has indicated he cannot afford to contribute to the children’s school fees at H School, and the mother is unsure whether she can meet the entire payments for both boys herself. If the children need to change schools, the mother proposes they attend J School. The father proposes another state school, but in Suburb B or K Town.
The parties commenced their relationship in 2007 and separated sometime in 2016. The parties formally divorced on 27 July 2020.
The parties have been embroiled in protracted litigation over the children on and off since proceedings were first initiated by the mother on 18 March 2016. Both blame the other for the ongoing conflict.
Final orders by consent were made by Bender J on 21 August 2017 (“the 2017 final orders”). Those orders provided inter alia for equal shared parental responsibility, for the children to live with the mother and spend each Tuesday and alternate weekends with the father.
There have been multiple issues with the implementation of those orders. The father deposed that the mother has withheld the children, deliberately and mischievously interfered with his relationship with them and undermined the children’s confidence in him on multiple occasions. The mother asserted that the father does not provide appropriate care for the children, that he is not attuned to or able to prioritise their needs, that he can become angry and uncontained. She also expressed concern around excessive alcohol misuse by the father.
The Department of Families, Fairness and Housing (“the Department”) have been involved with the family on a number of occasions. Between 2016 and 2019 the Department received reports that the children were fearful of their father as a result of his punitive discipline of them. At that time the Department found the father responsible for harm.
On 22 August 2019, the father filed a Contravention Application asserting that the mother had breached the 2017 final orders, as she was not making the children available to spend time with him. A Child Inclusive Conference took place on 18 October 2019. At that time X was described as being visibly distressed at interview, and ambivalent about time with the father. He said he missed his father, but was also scared of him when he yelled. Y was withdrawn throughout the interview. The Court Child Expert noted that Y appeared to have rehearsed responses regarding the time he wanted with the father, using language similar to that used by the mother. The writer concluded that both children were evidently missing their father, but felt unsure about reconnecting with him. She described the children as having a natural alliance with their mother:
… and given the level of conflict that exists between their parents, it is likely the children are worried about disappointing her if they were to progress time with their father thereby adding to their anxiety.
At that time recommendations included that the children continue to access psychological support, to help them understand and manage their family dynamics; that they be reintroduced to their father with another person present to assist at the start of that process; and that time then increase towards the arrangements set out in the 2017 final orders. It was further recommended that “the mother use her best endeavours to support the children’s relationship with their father, and encouraging the time spend arrangements”.
Further final Orders were subsequently made on 11 December 2019 for the children to spend time with the father with Ms L in attendance until 1 March 2020. Thereafter the children’s time with their father was to revert to the regime prescribed in the 2017 final orders. The father’s Contravention Application was later dismissed by consent.
By early 2020, those arrangements were again disrupted. The Department was once again involved with the family following reports the father had been aggressive and angry in the children’s presence, and when X returned to the mother’s care bruised it was asserted the father had physically abused him. There was an investigation by police, and it was determined that the father had not intended to harm X – and the children had in fact been playing a game in which they pinched each other. The children were interviewed on several occasions at this time. They said they wanted less time with their father but did not want to stop seeing him. They did express feeling worried when he consumed alcohol or yelled. They also referred to the mother questioning them upon their return from their father’s home. The Department recorded that “[t]his appeared to have increased their anxieties about seeing their father and this was evidently displayed in the children’s behaviours”. The mother was recorded as saying the father needed to be held accountable for the family violence he allegedly perpetrated, and believed the children ought not be required to spend time with their father if that was against their wishes. The Department discussed with both parents the importance of being aware of how their own behaviours and conversations with the children impacted the children. Referrals were made to support services.
The arrangements for time broke down once again in early 2021. The mother filed an Initiating Application on 27 January 2021 to suspend the 2017 final orders. She then did not make the children available to spend time with the father on the weekend of 12 February 2021 or thereafter. In her application, the mother sought the children remain in her care until further interim or final orders were made.
The matter was transferred to the Family Court of Australia (as it was then known) by Stewart J on 14 April 2021. The final orders were suspended that day and orders were made for time to occur on alternate weekends for one night. The father was also permitted to attend sport training and the parties were to engage Mr D for family therapy.
Mr D met with the parties and the children in May and June 2021. According to his report the children both expressed a view that they loved their father, but found it scary when he would get angry for no apparent reason. They enjoyed activities with both parents, but less so with their father as their time was limited with him. They reported that they were “sick of seeing Court people” and just wanted to be “normal ‘kids’”. Mr D wrote that the children do want to see their father, but want to spend most of their time with their mother to whom they are very attached. They reported that they do get bored with their father, but are afraid to express this to him. Mr D indicated his preparedness to work with the family to develop the father/son relationships.
The conflict between the parents continued unabated. It is apparent from the text messages and emails exchanged between the parties themselves and with practitioners that there was a degree of immaturity and petty squabbling regarding the children. One notable exchange in late 2021 concerned whether the father had fed the children “off” fish, with the mother insisting the fish had made the children unwell, demanding evidence of where and when the father purchased the fish and threatening to subject the children to a COVID-19 test (and then possible isolation) if he did not provide the information to her. Other disputes involved the mother demanding the father not park in her driveway as his car made a mess on it if he had driven off road; her complaints that the father did not ensure proper medical attention for children’s injuries; and the mother’s allegation the father deliberately removed and retained the children’s mobile devices, which she described as theft and her inflammatory threats to report this to the police.
In late 2021, the Department received a report that the father was exposing the children to pornographic content by leaving his Apple iPad unlocked and open on a pornography website. In addition to that, there were allegations raised that the father was masturbating while watching pornography outside, where the children could see him, and that he walked around in his yard where the children could see him, wearing only his underwear. At that time the children were reported as not wanting to return to the father’s house.
The mother said when the children raised these issues, she contacted M Organisation, and a notification was made to the Department. The mother was then asked to bring the children to the Sexual Offences and Child-abuse Investigation Team (“SOCIT”) for an interview.
On 5 October 2021, the children were interviewed by Officer N. X told the police that the father “watched inappropriate stuff on the iPad” outside, sitting at the table. He also said the iPad had a pornography website on it. When asked if he knew why he was at the police station, Y was described as becoming withdrawn and quiet. He said his father watched his iPad outside and in his bedroom, and at all times of the day and night. The mother said Y was not subjected to a Visual and Audio Recording of Evidence (“VARE”) at that time as he was “too distraught”. That is not reflected in the police records.
On 7 October 2021, a VARE was conducted with X. A subsequent VARE was conducted with Y on 12 November 2021. X reported that the father “makes us feel uncomfortable” and that the father “watches [pornography] and has a hand under the table touching himself”. He said his father does this repeatedly. He said the father also left his iPad open, and X had seen images of people having sex. He also said his father watched videos “with an errection [sic]”. However, he did not see his father’s penis, as this was underneath loose blankets. X said if the children went outside the father stopped masturbating. X confirmed the father did not show the images or videos to the children. X also said he did not feel comfortable raising his concerns with the father as he “gets angry over little things”.
On 12 October 2021 consent orders were made for time to occur each alternate Sunday for 2 hours, supervised by P Contact Service.
The children were interviewed by the Department on 26 October 2021. The s 69ZW report dated 10 December 2021 recorded that X began to cry when asked to explain what happened with his father, and Y said he did not feel comfortable talking about it. The Department also interviewed the father, who denied all the allegations. He was described as having limited insight into the children. He was further described as “continually shift[ing] the focus towards [the mother]”, and saying she was damaging his relationships with the children. The Department recommended supervision continue at that time, noting that the children had expressed feeling safer with a professional supervising time.
When Y underwent a VARE on 12 November 2021, he told the police he saw “weird pictures” on his father’s iPad, of people without their clothes on, in awkward positions. He said the father sometimes leaves the websites open on his iPad. He said he has seen his dad sitting outside, watching his iPad, and moving his hands up and down under the table. Y said he has observed this through his bedroom window. He indicated the father was touching himself in his genital area. Y said this happened on multiple occasions.
Further orders were made on 13 December 2021 for time to continue, supervised over the summer holiday period.
Between October 2021 and January 2022, the father spent time with the children in accordance with those orders. According to the supervisor the time progressed reasonably well, although there was some awkwardness and hesitation on behalf of the children to engage with their father. The children apparently reported to the supervisor that they felt uncomfortable at times, and pressured by their father and his questioning of them. The father asserted that he had difficulties agreeing with the supervisor as to suitable venues for time, with the children being bored and uninterested by the park nominated by the supervisor. He said that impacted on the quality of the time spent. The father also arranged for his mother and nephew to attend a visit, without notice to the children or the supervisor. The supervisor said this put her and the children in an uncomfortable and awkward position.
Between late 2021 and early 2022, SOCIT and the Department investigated the sexual abuse allegations against the father. In early 2022, Victoria Police obtained an Intervention Violence Order (“IVO”) for the protection of the children. At the conclusion of their investigation, SOCIT advised in early 2022 that no charges would be authorised against the father. However, at trial the mother asserted the police are pursuing their application for an Intervention Order for the children’s protection, seeking that it remain in place for 10 years. She said the matter was listed for further hearing in mid-2023.
On 27 January 2022, the father decided to cease spending time with the children altogether. He sent an email to the supervisor saying he would no longer attend. The children did not see their father again for approximately eight months.
The matter returned to Court on 10 May 2022. At that time, orders were made for Mr D to re‑engage with the family to assist with the children’s reintroduction to their father. The matter was placed into the list of cases awaiting allocation to a judge for a final hearing. The matter was allocated to me and set down for a final hearing on 21 November 2022.
The mother later asserted she was forced into agreeing to the orders on 10 May 2022 for Mr D to recommence work with the family. She also said she subsequently discovered the father had continued to consult with Mr D for his own private sessions after family therapy stopped in around mid-2021, which she felt compromised his independence. She complained to the Australian Health Practitioner Regulation Authority (“AHPRA”). Mr D then declined to be involved with the family pending the outcome of the complaint.
On 19 August 2022 the matter returned to Court. Orders were made for the Independent Children’s Lawyer to nominate an alternative Family Therapist, and for time to occur each Sunday between 1:00 pm and 5:00 pm, supervised by a member of the father’s family.
The paternal grandmother provided that supervision on a number of occasions. She deposed to the time progressing well, with the children relaxing after a few visits, and engaging more comfortably with their father. The paternal grandmother was not required for cross-examination. The paternal Uncle, Mr Q, also provided some supervision of time. He similarly described the children as becoming more comfortable and relaxed as the visits progressed, although the last visit – with Y only – was less positive as Y was very tired. In relation to the other visits, Mr Q said the children appeared to engage happily and positively with their father. He said time finished early on one occasion as the weather turned poor. Mr Q was also not required for cross-examination.
The parties and children participated in the preparation of a Family Report which was completed on 27 September 2022 by Dr E, the Family Report Writer. Following the release of that report, the Independent Children’s Lawyer recommended that the parties engage with Ms R to assist the family. However, that did not commence, and indeed, neither party now wishes to engage in family therapy.
On 11 October 2022 the father’s solicitors wrote to the mother’s solicitors advising that as a result of his ongoing obligation to pay child support and to pay the overdue amount, he was no longer able to contribute to the children’s fees at H School. At that time his outstanding child support balance was $13,229. In that correspondence the father advised he anticipated paying $7,000 towards the child support arrears by the commencement of school in 2023.
The matter was listed before me for final hearing on 21 November 2022. However, the matter could not proceed that day. Interim orders were made for the children to spend time with the father each Saturday, with that to then be on each alternate Saturday with the option that time could be extended to an eight hour visit. The parties also agreed to appoint a parenting co-ordinator, which they have now done. The father also sought an order to increase the children’s time with him to include overnight visits to commence at the end of January 2023. That was opposed by the mother and the Independent Children’s Lawyer. I did not make orders for overnight time.
The matter was listed with priority for hearing on 27 February 2023.
Regrettably, there have been some further issues since November 2022 with that iteration of the children’s time with their father. Both parents continue to blame the other for the difficulties that have been encountered. There is little hope that the acrimony between the parents will abate.
THE EVIDENCE
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
During the proceedings, there was no agreement as to whether the documents produced by Victoria Police and SOCIT in response to subpoenas should be tendered into evidence before me. I am of the view that the material should form part of the evidence before me, although I accept much of it is historical and untested. However, this is a parenting matter, and I am of the view that it is appropriate I be properly informed so that I can make the best determination I can for the children’s future care arrangements. Accordingly, the entire police records subpoenaed will form part of the evidence before me.
I note that both parties have deposed to events that occurred during their relationship, with each asserting the other instigated and perpetrated violence and abuse. Given the ambit of the dispute I do not regard it is as necessary for me to determine the veracity of the parties’ allegations against each other. I do accept however that the parents’ relationship was volatile and dysfunctional. Post-separation their relationship continues to be marked by distrust and hostility. The police records demonstrate a long standing history of police involvement – with the parties engaging in physical disputes and poor behaviour over many years, at home, at the children’s schools and at their extra curricula activities. The father was charged in relation to assaulting the mother in 2016. I understand the father entered a diversion.
There is no doubt that the protracted litigation and the acrimonious relationship between the parties has had a significantly negative impact on the children. The parties have continued their conflict notwithstanding the making of the 2017 final orders. They have been engaged in contravention proceedings, as well as disputes in the Magistrates’ Court. The mother asserted the father has continued to threaten her with legal action and further Contravention Applications. The mother, too, has made threats to involve the police.
The litigation must come to an end.
The Mother
The mother relied on the following documents at the final hearing:
(c)her affidavit filed 27 February 2023; and
(d)her affidavit filed 4 November 2022.
As indicated, the mother described the parties’ relationship as being marred by violence and abuse. She said the father’s problematic behaviours continued after the parties’ separated. She said he also drank to excess. She deposed to ongoing issues requiring the assistance of the Department in 2019, 2020 and 2021, and her concerns regarding the father’s capacity to properly and safely care for the children. She continues to have some concerns about the father’s ability to provide appropriate care for the children.
However, the mother maintained she was not opposed to the children having a relationship with their father. Indeed, she supported time being extended to five hour visits each alternate weekend, which she said would provide sufficient time for quality interaction. She said the boys’ views should be instrumental in shaping how that relationship should progress. The mother also said she supported the father attending all the children’s sporting commitments and games, and that it was confusing and upsetting for the children when he did not attend. She did not agree to there being different regimes implemented for each of the children and expressed a view that if X did not attend, Y would also not want to attend for time. In those circumstances detailed orders that included overnight and/or extended visits for Y would be counter-productive.
In addition to agreeing to time on alternate weekends for both boys, the mother proposed additional time for three hours on Christmas Day each year, and at times otherwise agreed. She further proposed communication by telephone as sought by the children, and that the father could write to the children and send gifts.
The mother appeared to give straightforward and direct answers. However, it is clear that she has allowed the children to be exposed to her very negative view of the father. Whilst she sees herself as an attuned parent, I formed the impression that she lacked significant insight into her role in the ongoing parental dispute and the impact her views of the father had on the boys and their relationships with him.
It would appear that at times the mother has overly dramatized situations – complaining that the father has allowed the children to be injured when they have suffered scratches, grazes and sunburn, and unnecessarily involving the police when the children did not answer their mobile phones when they were with the father. As indicated, a number of the mother’s complaints to the father in text message exchanges were petty and unnecessary, including her complaints regarding the “off” fish, the father’s car making a mess on her driveway and her threats to report the father to the police for ‘stealing’ the children’s electronic devices. These matters suggest that the mother regards the father as a somewhat inferior and deficient parent.
The mother also did not present as being genuinely invested in the children having a positive relationship with their father. I note that the Family Report Writer described the mother as being “avoidant in response to questions about how she encouraged, supported and fostered the children to have relationships with their father” and that there was “minimal information to suggest that [the mother] genuinely encouraged [the children] to spend time with their father”. Similarly, there was little in her evidence at trial that indicated the mother took any active steps to provide support or encouragement of that relationship. I agree with the Family Report Writer’s observation that it seems the mother may have combined her experiences of the father with the children’s reported experiences with him. It was apparent that the mother remains resentful and hostile towards the father for how she said she was treated by him during their relationship.
In her oral evidence it was apparent that the mother could not consider that the boys may be reporting negatively about their experiences with the father in order to please her.
The mother has not embraced the interventions implemented to repair the children’s relationship with their father. She withdrew her consent for Mr D’s provision of Family Therapy in May 2022. In her complaint to AHPRA in addition to her allegation that Mr D was not independent, the mother asserted that he was prejudiced against her, as he did not accept the children’s allegations about exposure to explicit material and inappropriate behaviour in their father’s care. She expressed other complaints, including that the children were not comfortable with Mr D as he was dismissive of the children’s complaints about their father, that he was “overly interested in my job” and that he had access to information he should not have had.
Family therapy is challenging and uncomfortable. It involves views and beliefs being tested and challenged. Given the mother’s negative attitude towards the father, it is perhaps not surprising that the children reported negatively to her about their experiences with Mr D, and that she readily accepted those reports. I am not of the view that the complaints outlined by the mother were sufficient to justify her refusal to engage with Mr D. It is regrettable that therapy did not continue at that time, as it seems there was some positive progress.
In relation to the allegations about exposure to explicit material, in her oral evidence the mother described the boys as having a conversation between themselves about their father walking around with an erection, and discussing what they would do if it happened again. The mother said she overheard that conversation whilst preparing dinner for the family. She said she then asked the children what they were referring to, and that she contacted M Organisation when the children told her about what they apparently saw their father doing.
The mother did not regard SOCIT as having conducted the investigation regarding these matters appropriately. In her oral evidence she conceded she did seek the police review their decision to not lay charges against the father as she wanted to be sure that everything had been “done properly”. Although the mother said it was a matter for the police whether or not the father was charged, I formed the impression that she was disappointed they did not do so.
The mother asserted that the father’s unilateral cessation of time in early 2022 confused and disappointed the children. She said his failure to seek to connect with the boys for many months reinforced their view that he did not prioritise his relationships with them. I do not know what steps the mother took, if any, to reassure the children regarding their father’s love for them during his absence.
The mother deposed that the time that occurred following the father’s re-engagement with the children in about August 2022 has been somewhat strained and difficult. She said the children told her they were uncomfortable, and the father was somewhat disengaged with them. A number of visits ended early.
The mother also said the time that occurred between November 2022 and the final hearing had not been without incident, although she conceded it had generally progressed well. She said the children reported to her that the father took them to his house where they felt uncomfortable, that he has yelled at them at times, and at other times has not engaged much with them. I understand that on a hot summer’s day in early 2023, the father took the children to his home where he has a swimming pool and a table tennis table. I would have thought those activities would be particularly attractive to the children. However, the children did not get in the pool. The mother deposed that the father went swimming and left the children “locked out of house [sic]”. It is apparent the mother has accepted the boys’ complaints to her without challenge. It does not seem that the mother at any time suggested to the boys that there was no reason for them to decline to swim in their father’s pool. That is, rather than encourage the children to relax and enjoy their time with the father, the mother appeared to encourage the children to be reluctant and then recorded their complaints for use in these proceedings.
The mother also said X has maintained a clear view that he does not want his father to have his mobile number, but the father has repeatedly demanded its provision, causing X to feel pressured. It is notable that X has continued to communicate with the mother via text messages during his time with the father, reporting his concerns and complaints about the father whilst in the father’s care, in ‘real time’. The mother did not appear to have discouraged X from doing so. She did not appear to have any insight into how these communications undermined and interfered with the boys’ time with their father. Nor do the text message exchanges indicate that the mother took the opportunity to provide X with any reassurance. These matters are troubling.
The mother said she had been threatened with further contravention proceedings in circumstances where X declined to spend time with the father in late 2022 and Y did not wish to spend time with the father in X’s absence. The mother said the father has continued to embroil the children in the parental dispute, showing them messages exchanged between the parents regarding the arrangements for the children, and denigrating her to the children.
There was a further dispute regarding the children’s time with their father in early 2023. It transpired that X had a sleep over with a friend that evening. The mother did not agree to the father’s proposals for how to spend time on this day – with him collecting the children after school from the mother’s home and dropping X off at the sleep over after spending time together. I note the Independent Children’s Lawyer supported the father’s proposals. The mother apparently refused to allow the father to drop off on the basis that X needed to collect “sleep over equipment” from the mother’s home before attending the sleep over. I do not understand why that ‘equipment’ could not have been provided to the father when he collected the children at 4.15 pm or 4.30 pm from the mother’s home. It seemed to me that the mother was not being reasonable by not agreeing to the proposals advanced by the father and supported by the Independent Children’s Lawyer.
The mother was able to agree that a recent visit to S Centre had been positive for both children.
In her oral evidence the mother maintained she has always been child focussed. She did not agree she had taken steps to minimise the father’s time with the children. Rather she said the father at times prioritised his own leisure activities over spending time with the children, including going away camping and fishing.
However, I have concerns that the mother continues to expose the children to the parental dispute, and that she allows them to be overly involved in making decisions around the time they spend with their father. For instance, the mother did not agree to allowing the father to take the children to U Town or City T in late 2022/early 2023 for a day, or to the cricket in Melbourne. She wrote back that “[n]either child has ever had any interest in cricket”. When he suggested adventure parks in V Town or City T, the mother insisted he take the children to different venues in Melbourne instead. She said those venues were nominated by the children. She has also nominated other venues rather than agreeing with the father’s proposals to take the boys to W Park, or Z Museum. In her communication in early 2023 the mother advised the children had requested time occur at AA Centre, for a five hour session. She said that request was made by the children “after last weeks outing with no lunch provided [sic]”. That suggests the mother and children discussed the children’s time with their father, which was deemed to be deficient.
It does seem to me that the mother has involved herself unnecessarily in the arrangements for the children’s time with their father and that she has been somewhat obstructive at times. It is regrettable that she regards herself (and the children) as having the right to veto or approve arrangements the father makes. A more constructive approach may have been for the mother to agree to the father’s proposals, and then encourage the boys to attend the activity their father had selected for them. This is particularly so given the boys are well aware of their mother’s negative attitude towards the father. This increases the likelihood that the children will be rejecting of the father’s suggestions unless their mother gives them explicit permission to attend and enjoy their time with him.
The Father
The father adopted the following documents at the final hearing:
(a)his affidavit filed 24 February 2023; and
(b)his affidavit filed 14 November 2022.
He also relied on the affidavits from his mother and father, Mr Q and Mr D. None of these witnesses were required for cross examination.
The father proposed time with Y overnight each Tuesday and for three nights each alternate weekends, as well as half the holidays and on special occasions. It was his proposal that X ought not be required by orders to attend, but should be encouraged to do so if he wished.
The father impressed as genuine and authentic. He is clearly frustrated at the mother, by the Court processes and with the limited time the children spend with him. At times he appeared angry when giving his evidence, and spoke quite loudly. I understand he has hearing issues, and his tone did soften after this was addressed.
The father denied the allegations that he had been violent or abusive, has issues with alcohol, or exposed the children to inappropriate material or behaviours. He said the mother had been violent towards him during the parties’ relationship and threatened to ensure that he would not see the children.
It is the father’s case that the mother was eager to invest in and exaggerate any complaints the children made against him as she sought to extricate him from the children’s lives. He was at times vitriolic in his complaints about the mother. He said she has frequently interfered with the children’s time with him, and asserted she had “a history of withholding the children” following separation. He described this as being “a form of emotional and psychological abuse”. He deposed that the mother has instigated legal proceedings “for financial gain”, such as increasing child support payments to her “to cause me as much psychological distress as she can”. He described her as going to significant lengths “in an attempt to purely scorn me in front of the Children [sic]”, and that she has done all she can to thwart the father/son relationships. He said whenever the children make a small complaint about him to the mother, “she’s run with it and it’s turned into Mount Everest”.
Conversely, he sees himself as a loving and committed parent, who has done all he can to remain an important figure for the children. He purchased a home in Suburb B, close to the children’s school, hoping to play a larger role in the children’s day to day activities and education. He described himself prior to early 2021 as having been a “hands-on” father. He engaged with the children in their sporting activities, and provided them with opportunities for physical adventures including camping, fishing and skating.
It seems from the boys’ reports that the father can become angry, and that he will yell and frighten them. They have outlined specific events to professionals regarding times their father has been angry, and aggressive. I agree with the observations made in the Child Inclusive Conference memorandum that the father appeared to take a gendered approach to parenting, and that this made it more difficult for him to consider the children’s needs for comfort, or to validate their fears. These attitudes and approaches have no doubt impacted the quality of the children’s relationship with their father.
Like the mother, the father appeared to have a limited ability to reflect on his contributions to the conflict in the parenting relationship, instead blaming the mother. I note that the Family Report Writer made a similar observation.
In relation to his decision to stop time in early 2022, the father said he felt the supervision was creating more difficulties in his relationship with the children. He said the children were uncomfortable with someone standing over them taking notes, and the supervised time was not conducive to developing a healthy and meaningful relationship. He said the presence of a supervisor sent a message to the children that he was dangerous and could not be trusted.
In my view, the father’s election to stop spending time with the children was not a child focussed decision. It was confusing for the children, and gave them the impression that their father was not committed to parenting them other than on his terms.
The father expressed disappointment that Mr D’s assistance was short lived, as he felt headway was being made in his relationship with the boys.
The father also expressed concern about the mother’s interpretation of the boys’ time with him from August 2022, and felt she had encouraged X at least to seek the early end of visits. He regarded the terms of the IVO as preventing him from attending the boys’ sporting activities, including his exclusion from attendance at grand finals which saddened and disappointed him. He said that despite the orders made in November 2022 allowing time to be extended for eight hour visits, the mother has at times refused his proposals, and at other times insisted on alternate venues for the visits.
At trial, the father remained of the view that the current orders for time are manifestly inadequate, as are the proposals advanced by the mother and the Independent Children’s Lawyer. He said that X “couldn’t care less whether he sees me or not”, although he said this was improving. The father said that Y is wanting to see him and spend time with him, and shows an interest in the father’s life and activities and that limiting the time to five hour visits would mean the father/son relationship would remain underdeveloped. The father said his proposals would mean that at least as far as Y is concerned he could have a meaningful relationship with his father, and also have the benefit of engaging fully with the paternal side of his family.
The Family Consultant
The Family Report written by Dr E, the Family Report Writer, described a highly conflictual parental relationship, characterised by a lack of trust, no cooperation and an unwillingness or inability to respect the other parent’s role in the children’s lives. The Family Report Writer noted that an order for continuing equal shared parental responsibility was likely to be fraught. However she opined that providing one or other parent with sole parental responsibility would likely entrench their already polarised positions and result in the exclusion of the other parent from the decision making process.
The Family Report Writer acknowledged that the mother did not positively promote the father to the children. She also acknowledged the children were well aware of the dispute – they knew about the IVO proceedings, and were also aware police had been involved. She said the children’s relationships with their father were quite fragile and difficult. They had been exposed to the mother’s negative views of their father, and this had contributed to them being quite resistant to spending time with him. The father’s inconsistency, and the interruptions that have occurred to the children’s time with their father has further strained the relationships. The Family Report Writer noted that the children want and need respite from the ongoing conflict and attempts at intervention.
The Family Report Writer recommended a conservative approach be adopted, with a reduction in the children’s time with their father, to reduce the stress on the children of having to manage their parents’ acrimonious relationship, and move between their households. She wrote:
[The children] appear to be sensitive young adolescents who need emotionally attuned parenting that is sensitive to their needs and guides them appropriately in their emotional development. At this assessment, and in previous assessments by [the Department], [the children] have presented with, and spoken about, their conflicted feelings about their father, and the emotionally challenging process of processing their experiences and associated feelings about the relationships with their father. They are now at a point where they seem to be losing trust in professionals, including the Court, to validate their feelings and experiences…
…
… there could be some weight placed on the children’s wishes to no longer be subjected to interventions that attempt to repair the relationships with their father and their views about future spend time arrangements. In order for [the children] to experience adolescence without the added stress of their parent’s acrimonious relationship and without the stress of managing the fragile relationships with their father, there may need to be a conservative approach taken to future spend time, which may include a significant reduction in the time [the children] spend with their father.
The Family Report Writer went on to say that the children still want their father to continue to make an effort to show that he loves and cares for them. She said it appeared the children may be “testing their father’s commitment to them”.
The Family Report Writer further opined:
[The mother] does not appear to have delved into processing her experiences and finding strategies to resolve them as best as they can be, and in a way that separates her needs from the children’s needs. She appears to place all responsibility on [the father], assessing his parental capacity and possible reparation pathways, without the willingness to consider how her approaches, and need for control and oversight, may also be contributing to the situation that [the children] are now in. Without the appropriate and adequate therapeutic intervention for [the mother], it is likely that she will remain compromised in her ability to genuinely foster the children’s relationships with their father separately from her own experiences of [the father] and her needs arising out of this. [The mother’s] inability or unwillingness to wholly and completely endorse and support the children’s time and relationships with their father is unlikely to shift while she remains engaged in litigation and hostility towards [the father]. Her approach may also have negative consequences for her relationships with [the children] as they grow older and make more sense of the relationship dynamics and each of their parents’ roles in the circumstances they have been placed in.
Despite these criticisms of the mother, it was acknowledged she has been the children’s primary carer, and she has generally met their needs.
The Family Report Writer also suggested that the father needed to build his capacity to be emotionally attuned to the children’s needs, and it might be appropriate that he provide them with a sincere apology, and validate some of their experiences with him.
The Family Report Writer was not required for cross-examination.
Whilst I am under no obligation to accept the recommendations of the Family Report Writer, I found the report and the observations insightful and of great assistance to me. The views expressed regarding the parents mirrored the views I formed myself. I also share the significant concerns expressed regarding the well-being of the children given the parents’ ongoing conflict.
THE RELEVANT LEGAL PRINCIPLES
The legislation
This is a discretionary judgment. The objects and principles of Part VII of the Family Law Act 1975 (Cth) (“the Act”), as set out in section 60B of the Act provides some guidance as to how that discretion is to be exercised. That section provides:-
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Act requires that in deciding whether to make a particular parenting order in relation to children, the Court must consider the best interests of the children as the paramount consideration.
When determining the children’s best interests, sections 60CC(2) and (3) of the Act set out two primary matters or considerations and several additional matters or considerations which I am required to take into account. I will turn to those considerations shortly.
Parental responsibility
The Act confers a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. That presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence or abuse of the children. Alternatively, the presumption can be rebutted by evidence that it would not be in the children’s best interests if parental responsibility was shared.
In this matter, and despite the difficulties the parties have encountered in their communication, the parties agreed that there should be an order for equal shared responsibility. I have some concerns about how that order will be implemented, given the hostile relationship, and the lack of meaningful communication to date. However, I accept that both of the parties appear to be reasonably competent parents who should continue to play an important role in the children’s long term care, welfare and development. Moreover, the parents have now engaged a parenting coordinator who is, it is hoped, will assist the parents to liaise and negotiate with each other. In those circumstances I am of the view that it is appropriate that there be an order for equal shared parental responsibility as sought by both parents.
In terms of the pathway I must now follow, I note that neither parent is proposing equal time.
The father seeks orders for substantial and significant time with Y. I must consider whether that is both reasonably practicable and in the children’s best interests. If the answer to either question is no, I must then make whatever orders I determine are in the children’s best interests.
The primary considerations
Section 60CC(2) of the Act sets out the two primary considerations I must consider being:
…
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying those primary considerations, I am required to give greater weight to the need to protect children from harm.
Meaningful relationship
In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
A meaningful relationship means one that is significant or important to the children. It is a qualitative, not a quantitative adjective; McCall v Clark (2009) FLC 93-405; Mazorski v Albright (2007) Fam LR 518. My focus is on whether the children having a meaningful relationship with their father will be of advantage to the children in the future. Will it be healthy, worthwhile and advantageous to them? See Loddington & Derringford (No 2) [2008] FamCA 925.
It is agreed that the children will indeed benefit from their father continuing to play a significant role in the children’s lives. The mother and the Independent Children’s Lawyer say the relationship will continue to be meaningful and important to the children if they spend time with him for five hours each alternate weekend. That relationship can be further supported by the father attending at school and sporting activities.
The father is of the view that restricting his time with the children to five hours each fortnight will stagnate the relationship.
As already observed, the descriptor “meaningful” is about the quality of the relationship, and not about the number of hours the children spend in their father’s care. I am also not required to consider what might make the relationship optimal: Godfrey v Sanders (2007) 208 FLR 287.
Given the ages of the children, it is apparent that their relationship with their father can continue to be meaningful to them if they see him each alternate weekend during the day. Indeed, in light of all the circumstances, it could be counter-productive to require the children to spend more time in his care. They may feel resentful and unheard. I have concerns that the father’s proposal of requiring Y to spend extended and overnight visits in his care could suggest to X that his father is less interested in him. A separate regime could, accordingly, further damage X’s relationship with his father.
I note the children are engaged in sporting activities, and their father’s ongoing and reliable attendance at those events will further bolster and support the parent/child relationships in addition to weekend time. The children want – and need – their father to be interested in them and in their lives.
Need to protect children from harm
Notwithstanding the allegations outlined, I was not asked to consider whether there was an unacceptable risk to the children’ physical safety in spending time with their father. In relation to the children’s exposure to sexual material and behaviours, at its highest the children’s statements to the police suggest the father was careless rather than predatory – and there is no suggestion that the children have continued to make similar complaints in recent times.
Both parents do regard the other as potentially exposing the children to psychological harm, as outlined.
It will be apparent from these reasons that I agree both parents have acted in ways that has caused the children to experience distress and discomfort. In particular, that is as a result of their inability or unwillingness to shield the children from ongoing exposure to their parents’ conflict, and repeated court action.
Additional considerations
Any views expressed by the children and any factors (such as their maturity or level of understanding) that the Court thinks are relevant to the weight it should give those views
The Family Report Writer set out that the children were tired of speaking with professionals about their views and wishes. They were also concerned about being questioned by their parents once the report was completed. They said that they wanted to be heard.
The children were positive about their mother and the close relationships they have with her.
X told the Family Report Writer that it was distressing, frustrating, and annoying to repeatedly discuss his experiences. He wanted this to end. He was prepared to see his father “on occasion” only. The father’s absence for eight months in 2022 caused X to have doubts about whether his father loved and missed him, and X found it confusing.
X was aware of the implementation of an IVO, and that his father had refused to pay for private school fees.
Y was uncomfortable and possibly distressed when discussing his father. He could not identify any positive memories of his father, and was negative about him to the Family Report Writer. However, he told the Family Report Writer he was prepared to see his father on a limited basis, for up to two hours each fortnight.
Like his brother, Y doubted his father loved him. Y was aware that his mother did not agree to any overnight time.
At times Y said he could not recall information, for instance in relation to questions about his mother’s encouragement for him to have a relationship with the father.
As noted, the children have continued to spend time with their father, for a few hours each alternate weekend since the Family Report was prepared. It appeared to be common ground that Y was prepared to spend time with his father on a limited basis, but X remained somewhat reluctant to do so.
It will be clear that I am of the view that both parents have played a role in the formulation of the children’s views. The mother has, in my view, done little to encourage and support a positive relationship between the father and the children. I cannot, however, disregard the children’s reports of their experiences in their father’s care. The boys are 14 and 12 years old. It is appropriate that some weight be given to their views irrespective of their genesis.
The nature of the children’s relationships with each of their parents and other significant persons in their lives
There is no doubt the children enjoy a close and loving relationship with their mother. The Family Report Writer described there being “a sense of comfort and familiarity” between them during the observations. The children smiled, made eye contact with their mother, and engaged in banter and friendly competition. The Family Report Writer described that the children’s mood visibly lifted in her presence.
It is common ground that the children’s relationship with their father is problematic. I agree with the report writer’s description that their relationships are “fragile”.
During the 15 to 20 minute observation session, the children were described as reluctant to see their father. They were resistant to his attempts to engage them, and maintained some physical distance from him. There was no physical interaction or affection. The children’s verbal interaction with their father was also quite limited and the children apparently found the time awkward.
It is common ground that time has continued since those observations were made. To a limited extent the relationships are improving, although it appears the children remain somewhat wary and distrustful of their father. As indicated, the mother conceded that there should be orders for the children’s time with their father, for five hours each alternate weekend.
The extent to which the children’s parents have taken or failed to take the opportunity to participate in long-term decision making in relation to the children, to spend time and to communicate with the children
The mother has at all times been the children’s primary carer.
As already observed, the father absented himself from the children’s lives for approximately eight months in 2022. This caused the children to have doubts about their father’s commitment to them. The father has otherwise sought to be involved in the children’s lives.
The extent to which each of the children’s parents have fulfilled or failed to fulfil their obligations to maintain the children
The father is significantly behind in meeting his child support obligations. At the end of last year the arrears were approximately $17,000. At the time of the hearing the arrears were approximately $6,000, as the father made a lump sum payment of approximately $11,000 a few weeks prior to the final hearing. He said his parents provided the bulk of the funds for this payment.
The father advised that his child support payments were increased in the year he sold his property in U Town, triggering a capital gains tax liability and increasing his taxable income. At the same time, his care percentage for the children decreased. The overall effect was that the father’s periodic payments increased significantly, which he had not budgeted for.
The father also said that he had understood his share of the school fees could be credited against his periodic payments. The mother objected to that course.
Whilst the parties had previously agreed the children would attend H School, the father has now advised he cannot afford to contribute to their school fees.
In her oral evidence the mother indicated that it was her intention for the children to remain at H School. She said she it would be fair if each parent paid half. However, if the father refused to contribute she would do all she could to meet the costs herself.
I was not asked to make any orders regarding where the children would attend school. As noted, the parties have agreed to equal shared parental responsibility. They will need to work together to determine the appropriate manner in which to educate their children. I do note the children would likely find it quite disruptive if they had to change schools. I also anticipate that the children might resent their father if they formed the view – or if their mother told them – that a change of schools was necessary as a result of the father’s inability to contribute to the fees at H School. It would of course be highly detrimental to the children if either parent involved them in any way regarding a parental dispute about schooling or payment for it.
The likely effect of a change in the children’s circumstances, including the likely effect of a separation from a parent or other significant persons in their lives
The father’s proposals would impose a significant change. Y’s time with the father would substantially increase. If X did not elect to attend the visits, the siblings would be separated each alternate weekend and for half the holidays. There are a range of potential negative impacts that could flow from the imposition of different regimes for the children. It could impact on the sibling relationship. It could impact on X’s relationship with his father if he perceived his father as prioritising his relationship with Y. There was no evidence that Y was prepared to attend time without his brother. He may be uncomfortable if required to do so. If he refused to attend in the absence of his brother that would likely aggravate the parental conflict.
The practical difficulty and expense associated with the children spending time and communicating with a parent, and whether that difficulty substantially affects the children’s right to maintaining personal relations and direct contact with both parents on a regular basis
There are no practical difficulties that affect the children’s ability to spend time and communicate with their father.
The capacity of the children’s parents and any other significant person to provide for their needs, including their emotional and intellectual needs
Both parents are substantially able to provide appropriate care for the children, and generally have the capacity to meet the children’s needs. However, I have already outlined what I regard as deficiencies in each of the parents regarding their ability to be child focussed, and to put the children’s needs above their own.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents, and any other characteristics of the children the Court thinks relevant
I have already referred to the matters relevant to this consideration.
Attitude to the child, and to the responsibility of parenthood demonstrated by each of the child’s parents
Both parents clearly love the children, and each take their responsibilities to their children seriously. However they both need to reflect on their own behaviours and how they each contribute to the relentless parental conflict that their children have to endure. There are often significant long term negative consequences for children whose parents remain hostile and antagonistic towards each other post separation.
Any family violence involving the children or a member of their family, and if a family violence order applies or has applied, any relevant inferences that can be drawn from the order
As already observed, each parent asserted the other subjected them to violence during the relationship. These matters were not ventilated at the final hearing before me, and in my view it is not necessary to make findings of fact regarding the competing versions of the parties’ past. It was clearly an unhappy and somewhat volatile relationship.
The mother asserted the father’s behaviour towards the children post-separation has been aggressive and inappropriate at times. I note that the children have reported the father being angry and they find this difficult to manage. I also note that there are still IVO proceedings on foot arising out of the allegations made in 2021. I would hope that with the finalisation of this matter those proceedings can also be concluded.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
The parties have been engaged in litigation over the children on and off since 2016. It must come to an end. The children have been subjected to multiple interviews by the police, child protection and court child experts. I note that there are still Magistrates’ Court proceedings regarding the IVO.
If I make orders as sought by the father, there is a risk that Y will not want to attend in his brother’s absence. That could in turn lead to further contravention proceedings being brought. It does not seem to me that any further litigation would assist these children.
ORDERS TO BE MADE
Overall, I formed the impression that the mother does not view the father as a positive force in the children’s lives. She has little insight into the way in which she has influenced the children’s views of him. She regards the father as deficient and defective, and has not shielded the children from that view. She regards it as a chore for the children to spend time with him. She has not, in my view, given the children permission to have a close and loving relationship with their father. Rather, she has – perhaps implicitly – encouraged them to report negatively to her about him and his family. Some of her responses to the children’s reports have been out of proportion. At times she has engaged in behaviours that would have amplified the children’s anxieties whilst in their father’s care, by engaging the police and other services. The children have been interviewed by multiple professionals far too frequently, placing them squarely at the centre of their parents’ relentless war.
I share the concerns expressed by the Family Report Writer that the children:
… have also been exposed to their mother’s negative approaches, as reported by [the Department], and her seemingly passive or resistant approach to fostering the father-child relationships. [The children’s] ongoing exposure to these type of interventions, repeating accounts of their experiences multiple times, the acrimony between their parents, and the apparent inappropriate behaviours by their parents, has only served to hinder any reparation process.
It is regrettable that the father similarly blames the mother for the current state of his relationship with the children. Whilst no doubt the mother has played a part, the father displayed a significant lack of insight into his role in the conflict, and the impact on the children of some of his behaviours and attitudes. Like the mother he has a very negative attitude towards her, from which the children have not been shielded.
It is also regrettable that each intervention and attempt to restore the relationship has been disrupted or thwarted. Those interruptions have included complaints made by the mother regarding the family therapist; allegations of abuse of the children by the father; and the father’s decision to cease all time for eight months. As observed by the Family Report Writer, that cessation of time “unfortunately embedded [the children’s] mistrust in him”.
The parents in this matter agree on very little. They view the other as deficient. The father regards the mother as a malicious trouble maker, bent on removing him from the children’s lives. The mother regards the father as a dangerous and unstable man, who puts the children at risk and repeatedly exposes them to harmful situations. They have no trust in the other, and view the other from an extremely negative vantage point.
It is extremely difficult for children to emotionally manage moving between households where their parents are deeply distrustful of each other, and invested in perpetuating parental conflict. Family Consultants frequently remind this Court that parents who embroil their children in the parental conflict create an impossible situation for the children. Where parents are unable to place the children’s needs above their own – as the parents in this matter have been unable to do on a number of occasions – it becomes increasingly likely that the children will align with one parent over the other. It becomes progressively more difficult for children to manage and maintain a loving relationship with both parents as they are constantly exposed to negative and hostile views by each parent of the other.
The reality now is given the children’s ages, and their views, the proposals advanced by the father are unlikely to assist the children. Implementing a separate regime for Y, with the hope that X will also attend seems to me to be unlikely to resolve or reduce the dispute. Rather, it may leave Y feeling pressured to attend in the absence of his brother. He may not wish to do so, causing further dispute and conflict between the parents. It may leave X feeling further rejected by the father. It is apparent from the Family Report that the children are close with each other, and concerned about each other’s well-being. Imposing a separate regime of time on Y could impact the sibling relationship.
For all these reasons, the father’s proposals are in my view neither in the children’s best interests nor reasonably practicable. Conversely, the proposals advanced by the Independent Children’s Lawyer, and supported by the mother do appear to be both in the children’s best interests and reasonably practicable. Although the scheduled time is limited to five hour visits, I am satisfied this will enable the children to maintain a meaningful relationship with their father. I do note that it is deeply regrettable for these boys that their parents have conducted themselves in such a way that the children’s best interests are not met by spending more time in their father’s care.
Additional orders were sought regarding the parties continued attendance upon their mental health practitioners. I am not of the view that this is a matter in which it is appropriate for me to make such orders. As observed by Gaudron J in AMS v AIF (1999) 199 CLR 160 at [85]-[87], the power of the Court to exercise its welfare power and place limits on a parent’s conduct is restricted only to what is necessary for the welfare of the child. It is not a supervisory power. Of course, the parents are encouraged to continue to engage with supports. But in my view it is not necessary for the children’s welfare that they do so.
The parties have agreed to appoint a parenting co-ordinator. I have replicated in my final orders the orders that were agreed previously in relation to the appointment and engagement of that parenting co-ordinator.
I also note the father sought orders regarding passports and travel. I was not addressed in relation to those proposals at all. There was no evidence in the material about those matters. Accordingly, I will not make the orders sought.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding one hundred and fifty-three (153) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 27 April 2023
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