Vermeer and Vermeer (No 3)
[2018] FamCA 975
•23 November 2018
FAMILY COURT OF AUSTRALIA
| VERMEER & VERMEER (NO 3) | [2018] FamCA 975 |
| FAMILY LAW – CHILDREN- With whom a child lives – With whom a child spends time and communicates – Mother seeks orders that children spend no time with father unless the child instigates such time – Mother alleges children at risk in the father’s care – Allegations of family violence - Where children have not spent time with the father from early to mid 2017 – Father seeks orders that children live with him and there be a moratorium on the time the mother spends with the children for a period of three to six months followed by a circumscribed period of time where they would see the mother for a few hours per fortnight for a period of up to one year – Father alleges children have been alienated by the mother – Order that children live with the mother – Order that mother have sole parental responsibility for the children – Order that children spend time with and communicate with the father in accordance with their wishes – Injunctive orders by consent – Specific issues orders |
| Family Law Act 1975 (Cth) ss 60B, 60CC |
Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038
| APPLICANT: | Mr Vermeer |
| RESPONDENT: | Ms Vermeer |
| INDEPENDENT CHILDREN’S LAWYER: | Taft Lawyers |
| FILE NUMBER: | DGC | 486 | of | 2014 |
| DATE DELIVERED: | 23 November 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 15, 16, 17 & 18 October 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hall |
| SOLICITOR FOR THE APPLICANT: | Erol Cinar Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Devries |
| SOLICITOR FOR THE RESPONDENT: | Perry Weston Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Goddard |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Taft Lawyers |
Orders
All previous parenting orders in relation to children B, born … 2004, C, born … 2006, and D, born … 2007, (collectively ‘the children’) be discharged.
Ms Vermeer (‘the mother’) shall have sole parental responsibility for the children.
The children shall live with the mother.
The children shall spend time with and communicate with Mr Vermeer (‘the father’) in accordance with their wishes.
The father shall be permitted to:-
a.send cards and gifts to the children on each of their birthdays and at Christmas; and
b.to respond by email or telephone directly to any of the children should that child communicate with the father and invite such a response.
The mother shall facilitate the children communicating with and/or spending time with the father in accordance with their wishes, and in particular she:-
a.shall enable the children to use a telephone or computer to communicate with the father;
b.shall ensure the children receive all letters, emails, cards and gifts sent by the father to them unless the content of same is clearly inappropriate in which case she shall immediately return that email, card, letter or gift to the father by post;
c.shall provide to the father, within seven (7) days from the date of this order, a post office box number to which he can send cards, letters and gifts pursuant to these orders; and
d.shall facilitate some of the children attending upon Relationships Australia or Catholic Care for therapeutic support in the event that the children and or child expresses a wish to spend time with the father and in that event the mother shall be permitted to provide a copy of the family report of Ms K dated 13 September 2018 to any professional at such agency providing such therapeutic support to the children.
BY CONSENT each parent shall be restrained by injunction from:-
a.physically chastising or disciplining the children;
b.denigrating, abusing or belittling the other parent in the presence or hearing of the children; and
c.allowing any of the children to see documents produced for the purposes of any legal proceedings to which either parent is a party.
The mother shall authorise any school which the children attend to provide copies of the children’s school reports and photos to the father at the father’s expense.
The mother shall advise the father in writing at least one (1) calendar month before of her intention to enrol the children or a child in a new school and shall advise the name and address of the new school in which the children and or child are proposed to be enrolled.
The mother shall immediately advise the father by telephone of any serious injury or illness that any of the children may suffer and in such event shall authorise the treating doctor to speak to the father regarding that child’s condition and treatment.
The father shall keep the mother advised of his mobile telephone number, his email address and his residential/post office box address to enable the children to contact him in accordance with these orders.
The Independent Children’s Lawyer shall within fourteen (14) days of the date of this order explain to the children the effect of orders 4, 5 and 6 hereof.
Within fourteen (14) days from the date of these orders the Independent Children’s Lawyer shall forward to Mr J, c/- The Secretary, Department of Health and Human Services, Locked Bag … a copy of:-
a.these orders;
b.a copy of the reasons upon which these orders are based; and
c.a copy of the family report prepared by Ms K dated 13 September 2018.
Upon compliance with orders 12 and 13 hereof, the appointment of the Independent Children’s Lawyer be discharged.
Pursuant to s 65DA(2) and s 62B, of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All extant parenting applications, other than costs are dismissed.
Any costs applications relating to the parenting proceedings to be made in accordance with the Family Law Rules 2004 (Cth).
At the expiry of the appeal period all subpoenaed documents in relation to the parenting proceedings be returned to the persons or institutions from which they emanated and all exhibits in relation to the parenting proceedings are to be returned to the person or persons who tendered the same
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage Counsel to attend.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vermeer & Vermeer (No.3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: DGC 486 of 2014
| Mr Vermeer |
Applicant
And
| Ms Vermeer |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
B born … 2004, aged 14, (‘the eldest child’) C born … 2006, aged 12, (‘the middle child’) and D born … 2007, aged 10, perhaps 11 by the time these reasons are delivered, (‘the youngest child’) have endured a terrible time in their lives so far as a consequence of their parents conflict.
They have been engaged in the court system almost continuously for four to five years and since the commencement of these proceedings.
Dr E, a child and adolescent psychiatrist, observed in his report dated 5 July 2016 in a prophetic way the following:-[1]
The ongoing hostility between [the mother and father] is obvious and the comments they make about each other at interview. Sadly, it is beyond the scope of this assessment to determine the account to prefer. Given the prolonged history of hostility between [the parents] it is difficult to see them engaging in a co-operative parenting arrangement in the foreseeable future.
Under these circumstances the Court may wish to consider making prescriptive orders which involve minimal or no contact between the parents, even if this means that each misses out on the important activities involving the children in their school, sporting or Church activities.
If the parents cannot agree and then demonstrate adherent to this agreement the Court may have no alternative but to consider giving sole parental responsibility to one or other parent and restricting the time the children spend with the non-resident parent severely.
[1] At page 27.
A few months after Dr E’s report was released Mr Vermeer (‘the father’) and Ms Vermeer (‘the mother’) settled their then proceedings in the Federal Circuit Court of Australia. They entered into consent orders[2] which provided that:-
(a)the mother have sole parental responsibility for the children, but that she engage in genuine consultation with the father;
(b)the children live with the mother; and
(c)the children spend significant and substantial time with the father including alternate weekend time, school holidays, Christmas, Father’s Day, birthdays and the like.
[2] Dated 21 September 2016.
The parties agreed to injunctions restraining each of them from abusing, demeaning and belittling the other and discussing the proceedings with the children or administering corporal punishment. Those orders were carefully written and implemented.
By November 2016, by the latest, those orders had failed.
In March and April 2017 the orders made by the Federal Circuit Court were suspended and the children have not seen the father since early to mid-2017.
Unsurprisingly the proceedings were transferred to the Family Court and an Independent Children’s Lawyer was again appointed. This matter was heard over four days in October 2018.
The father’s case was that the mother had ‘alienated’ the children from him. His solution was to move these children from the mother’s care to his care, to give him sole parental responsibility and to have a three or six month moratorium upon the children having any contact with the mother. This was to be followed by a significantly circumscribed period of time when the children would see their mother for, at best, a few hours a fortnight, for up to one year.
The mother’s case was that she should continue to have sole parental responsibility for the children and that they should have no time or communication with the father unless and until the children determined in their own time and their own way that they should see or be in communication with him. In this case that would essentially mean that the children have no time or communication with the father as during their childhood.
The Independent Children’s Lawyer’s view was in similar form to the mother.[3]
[3] Exhibit E1 Outline of case Independent Children’s Lawyer
DOCUMENTS RELIED UPON IN THE PROCEEDINGS
The Independent Children’s Lawyer relied upon a family report dated 13 September 2018 (‘the family report’),[4] a file review and recommendation by Mr J from the Victorian Department of Health and Human Services dated 6 July 2017[5] and his case outline filed 11 October 2018. to which I have already alluded.
[4] Exhibit E4.
[5] Exhibit E5.
The father relied upon the following documents:-
(a)his case outline filed 8 October 2018;[6]
(b)his amended initiating application filed 21 June 2018;
(c)his trial affidavit filed 21 June 2018; and
(d)his response affidavit to mother’s trial affidavit filed 22 July 2018.
[6] Exhibit E2.
It is worthwhile to note that the father’s trial affidavit had contained about 32 typed pages and 378 pages of annexures. Some of these annexures were repeated, including:-
(a)a report of Ms F dated 14 November 2015;
(b)a report of Ms F dated 15 September 2016;
(c)a report of Clinical Psychiatrist Dr E dated 13 April 2015 and 5 July 2016; and
(d)the family report of Mr G dated 17 July 2014.
As those affidavits were part of the evidence of the father and were read in without controversy and neither of the parties sought to cross-examine these witnesses, I have treated them as being in evidence of those experts, where there was no issue about their reliability.
Attached to the father’s affidavit was the reports of a Family Contact Service. I have had regard to such parts of those reports to which I have been taken.
The mother relied upon the following documents:-
(a)her case outline filed 8 October 2018;[7]
(b)her amended response to initiating application filed 4 July 2018;
(c)her trial affidavit filed 4 July 2018; and
(d)an affidavit by her now adult daughter Ms H filed 4 July 2018; and
(e)the affidavits of treating psychologist, Ms K, filed 19 July 2018, 14 July 2017 and 12 July 2017.
[7] Exhibit E3.
The mother tendered in evidence documents from Suburb L Magistrates Court[8] showing some of the litigation that had occurred in relation to intervention orders in the state of Victoria between the parties.
[8] Exhibit E6.
There were essentially five sets of proceedings, the first were commenced by the police on behalf of the mother and the children which led to a final order being made. This intervention order provided protection the mother, and possibly the children, for ten years commencing from 2017.
There is an application in that case by the father to have those orders dismissed.
There were significant numbers of appearances and applications in relation to those proceedings which were apparently taken over by the mother in early 2014.
The third set of proceedings were proceedings by the father against the mother for intervention orders which are ongoing.
It seemed not in issue that the parties had spent more than 70 days in court in one form or another in relation to these intervention proceedings.
In addition the mother’s daughter, Ms H, took or had proceedings on her behalf against the father and the father took proceedings against her which are another two sets of litigation.
BACKGROUND
The father was born in 1968 and is aged 50. He works as a technician, although he now claims his income has been significantly reduced as a consequence of these proceedings.
The mother is aged 43 years and she works in administration.
The parties commenced cohabitation in 2000, and they married in 2003. Their final separation was in August 2011 and they lived under the same roof for a short period of time. They were divorced in 2016.
There are three children of the marriage to whom I have referred earlier. In addition the mother has a child from an earlier relationship, Ms H, who is aged 24.
After the parties separated in August 2013 their relationship rapidly deteriorated. In February 2014 proceedings were commenced in the Federal Circuit Court. Those proceedings eventually led to the parties asking the Court to make final consent orders on 21 September 2016.
In November/December 2016 the mother prevented or inhibited the children from seeing the father, expressing concern for their safety in the father’s care.
On 3 April 2017 orders were made suspending the father’s time with the children. The proceedings were then transferred to the Family Court.
THE LAW REGARDING PARENTING AND RISK
The provisions of the Act that deals with children is set out in Part VII. In particular s 60B articulates the objects and the principles underlying them as follows:-
(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.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
The terminology of the section is thus that the Court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
I will endeavour to apply the facts to the law.
Unacceptable Risk
In Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038 Tree J gave consideration to the notion of unacceptable risk and said:-
51.It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
52.In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [20]-[25] the Court said as follows:
20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke[1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.
21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
22.In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25.Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
His Honour went on to discuss the decision of Murphy J in Harridge & Harridge [2010] FamCA 445, who had referred to N & S & The Separate Representative (supra), who adopted the following list of inquiries in relation to risk assessment:-
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
The father sought to rely on the evidence of a clinical psychologist as to the value of the evidence of the mother’s treating psychologist Ms K. The father was prevented from relying on that evidence and ex tempore reasons were given at that time.
EVIDENCE
The father
The father gave evidence in terms of his affidavits filed 21 June 2018 and 22 July 2018.
In chief he raised some issues about the accuracy of the family report.
The father was shown material from Suburb L Magistrates Court and asserted that he had been arrested 50 times by the police and said that his most recent arrest would have been eighteen months to two years ago.
He conceded that he was convicted on two occasions of breaches of intervention orders. He said that he had spent 70 days in the Suburb L Magistrates Courts and described a total of five sets of applications to which I have alluded to earlier.
In his evidence the father seemed fixated upon an alleged cheating of Centrelink by the mother. He referred to this in his trial affidavit.
The father was cross-examined in relation to his views of the mother. He said he had no adverse views of her, but certainly had adverse views of her conduct. I do not believe him.
His evidence at times was of him taking ‘tit for tat’ actions. An example of this was that after he was convicted of a relatively minor breach of an intervention order he wanted the mother charged with providing him relevant information about the children, but to the wrong email address. It was vindictive.
The father accepts that the relationship between he and the mother has broken down and that it was totally dysfunctional.
The only way the father can see the matter being resolved sensibly is by the forced removal of the children from the mother’s care to his care. He had little or no insight into the impact of such a change on the children. Further, the father almost completely dismissed the views of the children, saying that they simply reflected the views of the mother.
This is, despite the views of the children (albeit escalating over the years) being relatively consistent that they wished to live with their mother and, at least with regard to the older two children, that they did not want to have a relationship with the father.
The family consultant observed in her report[9] that the father said to her:-
27.[The father] advised that should his application be unsuccessful he would continue to appeal the decisions until he was able to “enjoy their childhood”. …
[9] Exhibit ICL4 paragraph 27.
The father disagreed that this was what he said, and offered an explanation. I have heard the evidence of the family consultant and I have heard the father’s evidence, and on this basis I am satisfied that the father’s assertion in this respect is fabricated. I have also had regard to the litigious nature of the father, particularly in the Suburb L Magistrates Court.
The father described the circumstances between himself and the mother as ‘war’ and observed that it ‘has lasted longer than World War II’.
The father’s approach in terms of the children was troubling in that he expected the 14, almost 15 year old child, to spend supervised time with the mother at the Children’s Contact Service. This was in circumstances where he had not made any meaningful enquiries as to the nature of that Service and how the relatively older children would manage in that circumstance.
The father understated the impact on the children if they came into his care. He endeavoured to give evidence that the mother was alienating the children, but adduced no expert evidence to that extent.
In fairness to the father he did observe that the relationship between he and the mother was toxic and that both parties had played a part in that outcome.
The father was cross-examined about an incident on 3 March 2017 and a later incident on 17 March 2017. He had little insight into the impact, particularly in relation to the second incident, of his actions upon the children. It was significant to note that on one occasion he was going to take the eldest child in circumstances that may have been in accordance with the order, but was in circumstances where he may not have given notice to the mother or the child.
The father acknowledged that part of the interaction in the Suburb L Magistrates Court could be seen as a tactic and when re-examined on this point he said that this was ‘to get one back against [the mother’s] five’ or words to that effect.
There is a history of the father recording the children. He had some personal photographs of the mother which he said were sent to him anonymously which he wanted to make available Dr E.
When cross-examined as to the arrangements the father proposed to put in place if the children came into his care his answers were not well considered, impractical and can be best described as nonsensical, particularly given the nature of the relationship between the children and the mother.
He seems to wholly reject the views of the children and believes they will adapt. In that respect I do not accept his evidence as being other than ‘starry eyed’. Given his evidence, and combined with that of the mother and the other experts, the outcome of this matter must be a stark choice.
In his final submissions counsel for the father contended, both in his oral and written submissions,[10] that as the father had denied the allegations and it had not been put to him in relation to the assertions of violence to the children, that his evidence should be regarded as unchallenged. I do not wholly accept those submissions. I accept the submissions in terms of the allegations of physical violence to the children that the credit of the mother has been impeached in that respect.
[10] Exhibit E12.
However, in terms of the allegations of emotional and psychological abuse of the children, including Ms H, that was the subject of cross-examination. As I have said earlier in relation to the father, I have serious doubts as to the reliability of his evidence generally and in particular in relation to his denials and minimisation of his part in the conflict between the parties and his denigration of the mother and in the past denigration of the children or one or other of them.
The father’s evidence was generally unreliable and self-serving.
Evidence of Ms M
Ms M is employed by the Victorian Department of Health and Human Services and provided oral evidence that she looked after the files regarding the subject children for a relatively short period in late 2011.
A complaint had been made and she spoke with the children and then spoke to each of the parents. She did not recall advising the mother not to comply with the orders and expressed a view that it was unlikely she would have said so given the nature of the matter.
I accept her evidence as being reliable.
Ms F
Ms F provided evidence in her reports dated 14 November 2015 (‘the first report’) and 15 September 2015 (‘the second report’).
Ms F’s reports attached details of her qualifications as a Child and Family Psychologist and she was not challenged in that regard.
She provided therapy in relation to the family from May 2015 until August 2016.
In her first report she observed:-[11]
On the superficial level the current arrangement for the child spending time during the day with the father on weekends has worked. The underlying issue is the very toxicity of this family system.
[11] At page 2.
She further observed, and I accept, that the Children’s Contact Service noted that the mother maintained a negative attitude to the children seeing the father. She observed the mother needed to undertake more therapy. The evidence of the mother is that she has done so and continues to do so.
In her second report Ms F set out the impact on the children. Each of the children in their own way complained about the conflict. This expert observed:-[12]
Unless the parents can withdraw their acrimonious positional views and cease using systems to support their perceptions, these children will have ongoing mental health issues, be suspicious of relationships and become opportunistic in their relationships. …
[12] At page 5
By way of an attack on both the parties she further observed:-[13]
The therapist is unsure as to the advantage of more sessions with the children to support them unless [the mother] provides them permission to enjoy their father. Similarly, [the father] also needs to detach from his former partner, listen to the children’s perceptions of him and engage in parenting strategies to make them want to spend more time with him.
[13] Ibid.
Each of the parties obviously carefully read this and reflected on it in relation to the other party, but not on themselves.
I accept her evidence as reliable, albeit somewhat out of date given that they were prepared for the 2016 hearing.
Dr E
Dr E prepared his reports, the first dated 13 April 2015 (‘Dr E’s first report’) and his second report of 5 July 2016 (‘Dr E’s second report’).
In Dr E’s first report he observed of the father that he:-[14]
showed little insight into his contribution of the breakdown of the marriage or subsequent difficulties in his relationship with his children.
[14] At page 33.
As to the mother he observed that her presentation suggested a diagnosis of Generalised Anxiety Disorder and that she felt controlled and intimidated by the father.
He said of the children, in particular the eldest two, that they appeared to be quite sad and reluctant to engage with the father. He reminded the parties about the impact of their conflict upon the children.
As to Dr E’s second report, I have referred to that earlier in these reasons.
There was no challenge as to the qualifications of Dr E and I accept his evidence as reliable at that time.
Mr G
A family report was prepared by psychologist Mr G dated 17 July 2014. That affidavit was read into evidence uncontested and his qualifications were not challenged.
In his recommendations, of which I have had significant regard, he observed:-[15]
1.The children were primarily attached to the mother.
2.For the younger child, this relationship with the father remained important (at that time) but that the elder child have individuated more and that their wishes should be given more weight. He said, at that time, that the three children had developed a father/child bond with the father.
[15] Paragraphs 9.1 to 9.3.
The children they had claimed to this family consultant, that they were the subject of unusual disciplinary measures by their father which has left them apprehensive about post-separation contact, with much of that apprehension now reduced by the provision of supervised contact. Mr G suggested a build-up of time, although this recommendation was made some two years before the consent orders were made.
The mother
The mother gave evidence in terms of her affidavit filed 4 July 2018 (‘the mother’s trial affidavit’). She was cross-examined by counsel for the father and the Independent Children’s Lawyer.
In cross-examination by counsel for the father, the mother was subjected to a relatively torrid time in relation to her admitted contraventions. Her view was that the children were not and are not safe in the father’s care.
There was some level of exaggeration in her evidence, but she generally attempted to provide evidence directly.
The mother was cross-examined about her interaction with Ms K and I am satisfied that it was entirely appropriate and child focused.
In the mother’s evidence she confirmed that she saw four psychologists in accordance with orders made in the Federal Circuit Court. The change of psychologists was explained by the mother.
The mother provided to the first three psychologists the documents suggested by the Court, but did not do so with her present psychologist as that psychologist did not want that information.
The mother gave evidence that the father used one of Dr E’s reports in family violence proceedings, although from the father’s perspective this was in response to the mother using that material. This was an improper use of that material without the consent of the Court.
The mother was consistent in her belief that the children were not safe in the father’s care.
She had difficulty explaining why she complied with the orders within the shadow of the Court, but did not comply with the orders from October/November 2016.
The mother was cross-examined as to her complaints that the children were abused whilst they were being supervised. None of the supervisors were called and I am satisfied that this evidence is exaggerated by the mother or that the children have been saying things to her which they may have considered she wanted to hear.
The mother gives little weight as to her views being known to the children. It could not otherwise be that they understand their mother’s concern for them in the care of the father.
It was asserted in cross-examination that the mother had not complied with the telephone communication between the children and the father. I am satisfied that the mother did put in place arrangements for the children to telephone the father at a time when she was attending a parenting course which she believed was required by the orders.
I am not satisfied that this would amount to a contravention as she did all things required to facilitate telephone communication. She clearly contravened the orders in relation to the children seeing the father and spending time with him in November 2016 until the Family Court orders were suspended in March or April 2017.
In her evidence the mother said that the father was aggressive and that she would facilitate contact if the father received help for his aggression.
What then do I make of the mother? She was an intense witness and struggled with the questions. There were some questions which were not answered well and some where she struggled to make sense of what was going on. I am not satisfied that her evidence is entirely reliable however, I am satisfied that she has a deep belief that the children are at risk in the care of the father
Counsel for the father asserted that the mother’s evidence was compromised. I accept that submission, although I do not entirely reject her evidence but I have dealt with it carefully and cautiously.
Ms H
The mother’s elder daughter from a previous relationship, Ms H, gave evidence in accordance with her affidavit filed 4 July 2018. Ms H is aged 24 and is an Occupational Therapist. She is close to her mother and her siblings.
Ms H was cross-examined as to three Father’s Day cards which she provided to the father sometime between 2008 and 2013. I am satisfied, on the evidence of Ms H, that she did not give the final card to the father until after the parties separated in 2013.
The cards themselves, and their use, was troubling. The father had clearly kept these cards and produced them during the course of this hearing. There was no discovery of those cards in circumstances where there ought to have been discovery. At one stage I invited counsel for the father to produce all of the cards to Ms H at the same time however, he said for forensic purposes he wished to produce them one at a time.
Family law is not a matter of ‘hide and seek’ it is a matter of ‘show and tell’. It reflects badly upon the father that he would instruct his counsel to adopt that course for a witness who was clearly nervous and a witness who was the subject of a protection of an intervention order.
Ms H provided evidence of the father’s controlling and abusive behaviour as set out in her affidavit. She acknowledged in evidence that there was times when the father was not nice and times when the father was nice. She gave evidence that at times she was close to him.
All of the events asserted in her affidavit were denied by the father. The material provided was chilling and continued for some time. His use of physical violence was troubling as was his use of verbal violence including assertions that this child was not intelligent, or they were disparaging comments about her appearance. She gave evidence of the father’s controlling and abusive behaviour to the children.
There were elements of the father’s vindictiveness of which Ms H gave evidence. This including the alleged report to police by the father that Ms H had stolen a laptop and in that respect I accept and prefer the evidence of Ms H. I also accept and prefer Ms H’s evidence in relation to the incident where the father cancelled or de-registered the car in which Ms H was driving.
The father had informed the children that he was not Ms H’s ‘real’ father in circumstances where they were not aware of this. I accept that evidence.
I accept her evidence that the father has at times videoed her and that is consistent with the material in her affidavit and in the complaint made by Ms H for grounds of a family violence order.
Ms H was criticised for not setting out the whole history of the family violence when the application was made. I do not accept that as a valid criticism.
Ms H provided evidence of the events in respect of the middle child’s First Holy Communion in December 2015 and I accept her version of the events.
It was submitted by counsel for the father that the evidence of Ms H ought to be impeached as she admitted that she was close to the mother and would do anything to support her mother’s well-being and happiness.
In support of this there was the question of the Father’s Day cards, which I discussed elsewhere. It is significant however, that in the report from Mr J there was evidence of a disclosure by this witness that the father had hit her causing a bruise and that he had slapped her across the face and other acts of violence.[16] This is consistent with Ms H’s oral evidence and the evidence in her affidavit.
[16] Exhibit E5 paragraphs 9, 10 and 11.
It is clear that the evidence of Ms H is coloured by the support of her mother. However, I found her to be careful and thoughtful, albeit at times emotional, in her evidence and I accept that she is a witness of truth and that her evidence is generally reliable.
Counsel for the father said I should discount the credit of Ms H. I reiterate what I have said above. I am satisfied that she endeavoured to tell the truth although clearly through the prism of her affection for her mother and her siblings. However, I am satisfied, after observing her demeanour in giving evidence, that she was endeavouring to be truthful and that the assertions she made were credible and reliable.
Mr J
The children in these proceedings have been the subject of numerous reports to the Department of Health and Human Services Victoria.
A report was provided by Mr J of the Department of Health and Human Services dated 6 July 2017.[17] Mr J was cross-examined in relation to that report. Mr J is the East Division Child Protection Principal Practitioner in the Department of Health and Human Services. He has held that position for about six years. He has the qualification of Master’s Degree in Social Work, had completed a one year Developmental Psychiatry Course, and has a Graduate Diploma of Teaching, a Bachelor of Social Science and an Associate Diploma in Social Science. He does not have qualifications as a psychologist or a psychiatrist.
[17] Exhibit E5.
He prepared the report in respect of the children after the Department had received two separate reports of family violence and a Notice of Risk through the Family Court.
In keeping with the holistic approach recommended by the Royal Commission into Family Violence Report (2016) Victoria,[18] he undertook a holistic assessment. In the context of that assessment he interviewed the children and concluded on a holistic approach that they have been exposed to frequent physical and psychological abuse by their father, or step-father in the case of Ms H.
[18] Victoria, Royal Commission into Family Violence Report (2016) accessible at >
He noted that the father disputes the allegations. I have had regard to the conclusions and the recommendations from that report which are that the father poses a risk of psychological and physical harm to the children if they are forced into contact with the father, including the individual wishes of the children that they not want to do so.
Mr J was criticised for not undertaking separate interviews of the children when interviewing them as a group. Given his evidence of the previous history of interviews and his skills and qualifications, I am satisfied that this approach did not undermine or impeach his conclusions.
Mr J had read the reports of Dr E, Ms F and the previous family reports.
Mr J spent some days preparing this thoughtful and considered report. The conclusions upon which he based his recommendations are consistent with the findings that I have made in these proceedings about the father’s conduct and behaviour. He is a careful, qualified and highly experienced Child Protection Officer and he acknowledged that the conflict between these parties has had a significant impact on these children.
I accept his evidence as reliable and I accept his expertise in terms of assessing the risk to the children as established and have given his evidence significant weight.
Ms K
Ms K is a family consultant within the Melbourne Registry and she provided a family report dated 13 September 2018 (about one month before the hearing). The family report was read into evidence as an exhibit.[19]
[19] Exhibit E4.
I have given considerable weight to that report. Ms K was an impressive witness and was thoughtful in terms of her report and in terms of her oral evidence.
She was initially cross-examined by counsel for the father on her qualifications. She has been involved in child protection in both an academic and practical sense for over twenty years. She has been a family consultant for about three years and has prepared about one hundred family reports.
Ms K was asked if she had ever recommended a change of parenting and she said in the last twelve months she had recommended three changes of parenting.
I accept that this witness is not a psychologist or a psychiatrist however, she is an experienced thoughtful and reliable witness in the areas of expertise to which she gives evidence.
There was an issue about the reading of the material and the time it took to read the material. Ms K said she took one day to read all of the material and she re-read the expert reports including that of Dr E, Ms F, and the family report of Mr G dated 17 July 2014.
She was challenged as to the comments she made in paragraph 86 of the family report where she said:-
[The father] appeared to hold a views that a change of primary residence of the children would have negligible impact on their well-being, describing it as being ‘weary’ suggesting a lack of insight and empathy in relation to the children’s experiences. …
The father gave evidence different to this and on balance I prefer the evidence of the family consultant. I prefer her evidence of those events.
The family consultant was cross-examined in relation to paragraph 84 of the family report. She said, and I accept, that:-
…The children have been exposed to ensuing hostility from considerable length of time and as such have become entrenched in their position of supporting the mother in the conflict.
I accept that evidence.
After hearing the evidence I accept that the allegations of physical abuse by the father hold limited or no credibility, however, I also find that the allegations of exposure of the children to denigration of the mother are likely to have arisen from the lived experience of the children. Finally I am satisfied that the father is unlikely to recognise that this behaviour is abusive of itself.
The father had given evidence that he denied denigration. I do not believe him.
Further, the father denied that he had implied that he would continue with the legal process until he was able to ‘enjoy their [the children’s] childhood’.
I prefer the evidence of the family consultant in that respect.
I accept the family consultant has considered the evidence of Dr E, Ms F and Mr G.
The family consultant reported as to the mother:-[20]
[The father] appears to be asserting that the allegations of the mother are somehow based around delusional beliefs based on her mental health difficulties and her experience of childhood abuse, resulting in the children being unsafe in her care. While both Ms F and Dr E comment on [the mother’s] capacity to view the world as a safe space given her prior history of trauma and loss, a significant diagnosis of mental health issues has not been made. This assessment would suggest that [the mother] appears to be providing the children with adequate care, as reflected in their presentation during the observation with her. However, it would appear that despite engaging in long term counselling [the mother] continues to view the world as unsafe, particularly in relation to her capacity to trust in adult relationships. Regardless of this it would appear from the children’s reflections that this is not impacting on their connections with the world, in that they are not socially restricted, with significant engagement in school, activities and friendships, with the mother’s focus seemingly restricted to that of her fear of the father and given the allegations of family violence may well be justified.
[20] The family report paragraph 85.
I accept the factual matters contained in this paragraph as correct, including that whilst the mother may have a diagnosis of mental health issues, they have been treated and whilst her interaction with the father is poor to say the least, I am satisfied that the mother is providing the children with adequate care as was observed by the family consultant.
It was put to the family consultant that the father had engaged in a sensitive review of the mother’s behaviour. The family consultant talked about the statements of the children including calling their mother names such as ‘mental’. I accept her evidence in that respect as I accept that the evidence of the engagement of children by the father in terms of denigration of the mother seen in that report, Dr E’s report, Ms F’s report and Mr G’s report are consistent.
I accept her evidence that the toxic relationship has carried on and this has emotionally harmed the children. I accept her evidence that the elder children are likely to move and leave the younger child isolated if in the care of the father.
As to any orders that the younger child spend time with the father, the family consultant gave evidence as to the effect of both the younger child and his elder siblings.
On the evidence of the family consultant to move the children to the father’s care is not a viable option.
The evidence of the family consultant was considered, thoughtful and compelling. I accept it.
FINDINGS
I am satisfied that if orders are made as sought by the mother it is unlikely that the children will spend any time with the father, I am likewise satisfied that the mother will have difficulty facilitating any request by the children in that respect.
Notwithstanding that circumstance, I am satisfied that the mother does value the role of a father in the children’s lives, but has a deep seated fear of the children’s safety when in the care of the father. Some of that is exaggerated, but part of it arises from her experience in living with the father for a significant number of years and her experience of the father following separation.
I have factored these findings in terms of this determination.
The parties agreed that the eldest child could attend a private high school which involves fees of about $7,500 per year. It is the mother’s evidence that the youngest child will go to that high school, when he finishes primary school, and that the parties’ middle child will go to a girl’s school. The mother acknowledges that she will pay those fees.
In that regard she is currently earning about $44,000 per year plus a family allowance of about $7,500 a year and about $18,000 in child support. Child support is likely to fall, although the mother says, and I accept, that she will take on full time employment once these proceedings are at an end. I am satisfied that the mother will be able to manage these fees.
In the evidence of this matter I considered whether the younger child ought to spend time with his father given his, at times, ambivalent views about not seeing his father. However, I have concerns about the father’s aggression and the intensity of his approach to the children and this litigation and, quite frankly, the litigation in the Suburb L Magistrates Court.
Similarly, I had concerns about the father’s focus on the mother’s alleged indiscretions in terms of Centrelink payments. The father knew that there were enquires being undertaken by the Director of Public Prosecutions and had been contacted by them, and yet instructed his barrister to attempt to cross-examine the mother in relation to periods of separation and the mother’s ‘credit’ in those circumstances where it had little to do with these proceedings and perhaps more to do with proceedings that may arise in relation to Centrelink. It was very much part of the ‘tit for tat’ warfare to which the father had earlier given evidence.
In that context I would not be satisfied that it would be in the best interests of the youngest child to spend time with his father given those circumstances. He would be alone and not protected by his siblings; I am not convinced that he would be safe from the emotional and perhaps physical abuse of the father in that circumstance.
The father had asserted that the mother had a psychiatric disorder. He relied upon a diagnosis by Dr E in his first report where he observed:-[21]
Overall, [the mother’s] presentation suggested a diagnosis of Generalised Anxiety Disorder in a woman with a past history of abuse, commencing at childhood. …
[21] Page 86 of father’s trial affidavit and page 33 of 37 of Dr E’s first report.
Whilst the words are somewhat obtuse, I accept that it has been treated as a diagnosis of a Generalised Anxiety Disorder. The father endeavoured to say that this was based upon the mother’s delusional beliefs or paranoid ideation. That was not part of Dr E’s diagnosis. The father seems to have conflated a number of paragraphs together to conclude his own diagnosis of the mother.
On the same page Dr E observes:-[22]
[The father] maintains that many of [the mother’s] allegations are false as she accused him of intruding at times when he has been interstate, overseas and in hospital [The mother] insists that her fears are reality based and she denied other symptoms suggested of delusional beliefs or paranoid ideation.
[22] Ibid.
Dr E did not go on to make a diagnosis of delusional beliefs or paranoid ideation and it is, on the material before me, wrong to suggest that this was the case.
The mother was ordered to undertake treatment with a psychologist in relation to that diagnosis and it is clear that the mother has undertaken treatment and continues to do so. There was criticism that the mother had not sought a referral to see a psychiatrist and had not seen her general practitioner. I reject that suggestion.
I accept on the evidence of the experts including the most recent family consultant report, that the mother is unable to accept the father in the children’s lives. Having regard to the evidence of the family consultant I am not satisfied that this was intentional on behalf of the mother, but it is clear that the mother is, in the current circumstances, incapable of supporting the children’s relationship with the father.
At the same time I am satisfied that the father has engaged in emotional or psychological abuse of the children prior to and subsequent to separation. I accept the submissions of the Independent Children’s Lawyer in that respect in relation to the material set out in the family report, Mr J’s report, Dr E’s report, Ms F’s report and Mr G’s report that the children have been emotionally abused by both parents, in particular in terms of exposing the children to their uncontained conflict.
The action of both parents were wanting in relation to the middle child’s religious ceremony in 2015, the Police and the Primary School, the swimming event, the Police at the High School shortly after the elder child commenced at that school, the mother’s early collection of the children from school, material contained in the affidavit of Ms H, and onwards.
It may be that the mother’s health may cloud her perceptions of the children’s safety with the father, however this is, in the words of the family consultant, ‘push and pull’.
The blame for the alignment of the children with the mother and the rejection of the father by them cannot be allocated to one or the other party. It is the both parties who must share the responsibility for this, and given the history, neither party has shown a willingness or capacity to protect the children from that conflict.
It was submitted that the mother is alienating the children from the father. There is no doubt that the children’s relationship with the father has significantly deteriorated however, the cause of that alienation rests with both parents.
It was submitted that the children would not feel emotionally safe to express views about the father, saying it would be contrary to the views of the mother. I do not accept that submission. The children have expressed consistent views about their concerns about the father, in varying degree, over many years. I am not able to find that the children do not feel emotionally safe to express the views.
I find that both the mother and father psychologically abuse the children by exposing them to the conflict that exists between them and I accept the evidence of the family consultant in that respect.
Having considered all of the evidence I am satisfied that if the children are left in the care of the mother it is unlikely that they will have a meaningful relationship with the father.
The father suggests that if the children are in his care he would facilitate time with the mother. I do not believe him. I am satisfied that the parties have engaged in ‘tit for tat’ litigation and I am satisfied that the father has engaged in controlling and threatening behaviour prior to separation and has demeaned the mother and exposed the children to conflict since separation. Despite the father’s evidence, I do not believe that he can restrain himself from being derogatory of the mother when the children are in his care.
I am satisfied that if the children were placed in the father’s care not only would it have a devastating impact on the children, as asserted in the evidence of the family consultant and which evidence I accept, that the father would not enable a relationship between the children and the mother.
It is likely that the eldest child would run away from the father’s care. It is also likely that the middle child would run away. The effect of this may mean that there is a separation of siblings. These children, as a sibling group, have tried to weather a terrible storm. To put them at risk of having their sibling alliance broken up is a grave risk for them.
Sadly, I find that the children will no doubt suffer long term psychological and emotional harm having been exposed to the conflict since, and perhaps before, the break-up of the relationship between their parents. It is likely in not seeing their father, who might have otherwise provided a meaningful relationship with them but for the conflict, that they will continue to suffer into the future, emotional and psychological harm.
However, if I adopt an approach such as recommended by the father, the risk of harm is significantly greater. If I put in place or reassert the orders that were made in September 2016 then the mother is unlikely to comply. That will expose the children to further and ongoing conflict and no doubt further court proceedings. This is not a question of rewarding bad behaviour. It is a question of protecting the children from ongoing conflict.
It is significant in the evidence of the mother that she said that she entered into the orders in September 2016 in the belief that the conflict between her and the father would end. In her trial affidavit the mother set out what happened following the making of those orders:-[23]
9.On 22 September 2016, the day after the Final Parenting Orders were made, the [father] sent me an email that said, “Let me start by saying the communication was all I wanted from the beginning and hope that we can continue going forward and hopefully one day be more amicable.” The [father]’s effort to be “amicable” lasted only two weeks.
10.At 3.16pm on 10 October 2016, the [father] sent me an email in which he said he was confused about arrangements for Christmas. He did not understand that the orders for Christmas Eve, Christmas Day and Boxing Day were to be read in conjunction with the orders for holiday time with each parent. I explained to the husband that although he would have the children for the first two weeks of the holidays, they would be with me from 4pm on Christmas Day until 4pm on Boxing Day. I suggested that he seek clarification from his solicitor.
11.At 4.48pm on 10 October 2016 the [father] sent me a further email to inform me he was not interested in my interpretation of the Final Parenting Orders and he was ceasing all communication with me. At 7.17pm I received an email from him that said, “STOP MESSAGING ME.” On 12 October 2016, he sent me an email which said, “STOP CALLING ME DEAR I AM NOT YOUR DEAR.”
12.After that date (less than 4 weeks after the Final Orders were made), the [father] ceased all contact with me and his violence towards the children escalated. The [father] resumed subjecting the children to physical, verbal, emotional and psychological abuse whilst the children were in his care. This resulted in the children telling me they did not want to see their father, or speak with him on the telephone due to their anxieties and fears.
[23] Mother’s trial affidavit paragraphs 9 to 12.
In relation to the telephone calls between the children and the father the mother had undertaken a course which she believed she was required to do pursuant to the orders. It was on the night the telephone calls were to be made and the mother made arrangements to attend a course on parenting. She told the children and she arranged for someone to care for the children and had an alarm on the telephone. In my view she complied with the orders.
However, the father, whose counsel submitted that he dealt with the mother in a careful and thoughtful way, sent emails as set out in paragraph 11of the mother’s trial affidavit. He did not engage with the mother in organising arrangements over Christmas. His underlying dominance and view towards controlling behaviour, which was referred to in a report of Mr J, came out.
The fight was on again and yet he points to the mother and says of himself ‘nothing to see here, move along’.
There is no doubt that both parties are able to meet the children’s practical, physical and material needs. I am not convinced the father has the capacity to meet the children’s emotional and psychological needs. I am satisfied the mother can meet their emotional and psychological needs except in terms of her views of the father, which are entrenched and have been entrenched for some time.
The parties have engaged in what can only be described as extraordinary litigation in the Suburb L Magistrates Court. Counsel for the Independent Children’s Lawyer said I should treat the breaches of the intervention orders as benign breaches. The breaching of such orders can never be seen as benign. Those orders are designed to protect people and children.
The father’s attendance and engagement at the middle child’s First Holy Communication must have been destructive to that child. Each party points to the other, but each have failed to look to themselves.
I accept the evidence of the mother that whilst the letters, which gave rise to the first claim of breach of a contravention orders, were innocuous they were in breach of the orders and were brought to the children’s school.
It is significant that the father and mother engaged in the proceedings in the Suburb L Magistrates Court with variations and attendances. To ignore such proceedings and the extent of the conflict would be, in my view, inane.
I accept the evidence of Ms H as to the events prior to separation, the use of name calling, and strict rules to both Ms H and her siblings.
I accept that in November 2013 that the father rang Ms H and abused and yelled at her and made a false report about a stolen laptop.
The father denies the violence and says that he was ‘surprised’ when he read Ms H’s allegations. Yet there is evidence from the report of Mr J that there had been issues about violence as far back as August and October 2007.
The father did not respond to the issue of the false allegation of the stolen laptop. He did not respond to the assertion that he de-registered a vehicle that had been transferred to Ms H. He did not dispute that he informed the children that he was not Ms H’s father and this was in circumstances where they were unaware of that history. He did not dispute taking video footage of her in 2014.
As I have said elsewhere I accept her evidence as to the violence and as to the breach of the violence order at the middle child’s religious ceremony in October 2015.
DISCUSSION
In this matter there is no real issue of parental responsibility. If the children remain in the care of the mother she should have sole parental responsibility. If the children are in the care of the father he should have sole parental responsibility. Given the history of emotional and physical violence, and the parties’ uncontained behaviour in exposing their children to their conflict, it is untenable for there to be an order other than sole parental responsibility.
If I had decided that the younger child should live with the father I considered whether I would have given sole parental responsibility for him. In every variation that was put to me the option of equal shared parental responsibility or some form of shared parental responsibility would have been disastrous for these children.
As such, given the evidence and the reflection of that evidence against the relevant s 60CC factors, to which I allude elsewhere in these reasons, I am satisfied that there ought to be an order for sole parental responsibility.
Given the other matters I have set out in these reasons, I am satisfied that the children should live with the mother and that she should have sole parental responsibility.
As to the best interests of the children, I have had regard to the relevant s 60CC factors. I generally accept the submissions of the Independent Children’s Lawyer that the children have a deep and meaningful relationship with the mother. I find that she has been their primary carer throughout most of their lives and particularly since separation and that she has been their sole carer since late 2016.
The father’s case was that the mother’s fabrication of physical and psychological harm being caused to the children by him was a conscious or deliberate campaign by the mother. I do not accept that to be the case and I accept the evidence of the family consultant.
I am satisfied that the mother has exposed the children to her dislike, distrust and fears of the father, as indeed the father has exposed the children to his views of the mother. However, according to the evidence of the family consultant, which evidence I accept, the children are attached to her and are calm in her care.
But for exposing the children to his denigration of the mother and to the conflict between the parties, there would have been a benefit in the children having a meaningful relationship with the father, but that must be weighed against the risks that I will refer to under s 60CC2(b) of the Act and following.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
Section 4 of the Act defines “abuse” as follows:-
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person)[24] involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
[24] Original emphasis.
Section 4AB(1) of the Act defines “family violence” as meaning:-
… violent, threatening or other behaviour by a person that coerces or controls a member of the persons family … or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of this Act, a child is exposed[25] to family violence if the child sees of hears family violence or otherwise experiences the effects of family violence.
[25] Original emphasis.
Sections 4AB(2) provide examples of types of behaviour which may constitute family violence and s 4AB(4) provides examples of the situations which may constitute a child being exposed to family violence.
The experts all gave evidence that these children are subjected to emotional abuse by being exposed to the conflict between these parties. In particular I accept the submissions of the Independent Children’s Lawyer that this is not simply the action of one parent endeavouring to alienate the children from the father.
The family consultant sets out in paragraph 83 of the family report the following:-
While both parents appear determined to apportion responsibility for the current situation solely at the feet of the other parent, [Ms F’s] assessment, dated 14 November 2016 refers to the “underlying issue is the very toxicity in this family system” (pg 2). The impact of the conflict was also referred to by [Dr E] as amounting to “emotional or psychological abuse of the children” ((2016, pg 27). It would appear that historically neither parent has had the insight and capacity to reflect on their own contribution and role in the conflict and this assessment suggests that the levels of hostility has not only continued unabated but has escalated and is now entrenched despite the period of time since separation. The impact on the children is documented in the DHHS information, suggesting that the children have experienced mental health difficulties, which are reportedly being addressed via counselling.
She goes on to set out at paragraph 84 of the family report the following:-
The parents provide starkly contrasting views of the parental relationship and the on-going conflict, which it is not possible to determine the veracity of either parent’s versions of events. However, it is apparent that the children have been exposed to the ensuing hostility for a considerable length of time and as such have become entrenched in their position of supporting their mother in the conflict. While the allegations of physical abuse by [the father] appear to hold limited credibility within the interviews with the children, given the inconsistencies and the lack of corroborating physical evidence, the allegations of exposure of the children to denigration of [the mother] do appear to be recounted from a lived experience of the children although it is uncertain as to whether [the father] would recognise that this behaviour is abusive in of itself.
The family consultant concludes the following, set out at paragraph 92 of the family report:-
While it is generally recognised that the children’s relationships with both parents should be maintained and repaired it appears sadly that the parents are unable to set aside their differences to achieve this at this stage and it seems likely that allegations against [the father] have the potential to escalate. In the context where it is likely that the children will have access to one parent it appears that [the mother] is currently providing a good standard of care and a capacity to provide for the children’s emotional and developmental needs. Given the uncertainty of the success of any transition to the care of [the father], this assessment would suggest that the children’s on-going developmental needs would likely be best met in the primary care of their mother, with a view that should the children express a view to spend time with their father into the future that this is therapeutically supported.
I accept her assessment of the children in these circumstances. I accept the factual basis upon which these conclusions were drawn, particularly in the context of the experience of this particular witness. The reality is the children will be harmed by not having an ongoing relationship with the father.
Each party to one degree or another bears the responsibility for that harm which they have already inflicted upon these children.
Rhetorically I can ask but what are the alternatives?
The one suggested by the father is that the children will be placed in his care. The evidence of the family consultant is set out in her report and is highlighted at paragraphs 86 and 87.
Both her oral and written evidence is that it would be a serious risk to the children. I accept that evidence. I accept that the father would be unlikely to contain himself and would continue to denigrate the mother and, given his approach with Ms H in the past, and the expression of the children themselves, particularly in the light of my concerns about the reliability of the father’s evidence, the children would be exposed to significant risk of emotional and psychological harm in his primary care.
I am not convinced that the father would enable a relationship between the children and the mother; he would put in place obstacles. I accept that the risk is even greater in that the eldest child is unlikely to remain in his care as is the situation with the middle child. This could leave the youngest child in his care, and that would leave the children’s sibling relationships cast aside.
It could be suggested that I ought to try for further family therapy. I accept the evidence that since separation in 2013 to date this therapy has not worked and it is unlikely to work in the future. The family consultant talked about the need for the parties to work together to give any effect to the 2016 orders. The analogy she used was that you need the ‘three legs of the stool’. That is unlikely to occur.
The father is likely to point the finger at the mother, and yet I refer to his inflammatory email which he sent shortly after the orders were made in September 2016.
These children need to be protected from this ongoing conflict and the least worst way for this to occur is to leave the children primarily in the care of the mother.
Counsel for the father said I should essentially reject the evidence of Mr J. I do not do so as it provides historical analysis and provides an overview of what these children have had to endure. There were issues of physical and emotional violence in the household prior to separation.
The risks in terms of leaving the status quo, leaving the younger child either living with or spending time with the father or changing residence give rise to far greater risk to the child.
In making this determination I have had regard to the provisions of s 60CC(2)(a) in that in applying the considerations set out the sub-sections in s 60CC(2) I have given greater weight to the considerations of the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence as against the benefit of having a meaningful relationship with the father.
Section 60CC(3) Factors
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The children have all expressed views that they do not wish to see the father. The eldest child has been consistently concerned about seeing the father, the middle child’s views have changed, and the middle and youngest children have gone from wishing to spend time with the father to not wanting to spend time with the father. The youngest child’s views are that he is against seeing him, but at some levels present as ambivalent.
I accept that this has changed over the years and is indicative of the children favouring one party against the other. The father in many ways asserts the mother has ‘brain washed’ the children.
I am satisfied that both parents have put the children in a position where they have been forced to choose one parent or the other.
However, given the age and maturity of the elder two children, I accept that these are their views and that their views ought to be and have been given considerable weight. I have given far less weight to the youngest child’s views given the ambivalent nature of that which he has said and his quite yearning to spend some time with his father.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
I accept that the children have a close and loving bond with the mother who is and has been their primary carer.
They have a close relationship with Ms H. The eldest two children are estranged from the father and, as I said earlier, the youngest child is ambivalent. The relationship between the father and the children is severely impaired. In coming to these conclusions I have had regard to all of the evidence and in particular the observations of the family consultant of the children as set out in the family report.
There is an exception in relation to the youngest child.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The mother has cared for the children since separation. The father had been initially precluded, but then saw the children on a supervised basis, which apparently worked well, and then had unsupervised time which has been fraught with conflict and difficulties. The supervised time ceased in late 2016.
The father has taken the opportunity to spend time with the children when he is able to and I am satisfied that the mother has frustrated the orders of the Court. As to the allocation of blame in that regard, I refer to comments made elsewhere in these reasons.
I accept the submissions made by the mother that the father lacks the insight to see that his constant denigration of her generally causes emotional harm to the children. Further, the father has exposed the children to the conflict as has the mother.
Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The mother has met her obligations to provide for the children. She asserted in her trial affidavit that the father is consistently making applications to the Child Support Agency and has reduced his income.
In November 2017 there were arrears of child support in excess of $15,000 and the mother makes complaints about his use of the child support system to continue the conflict with her.[26]
[26] Mother’s trial affidavits paragraphs 93 to 99.
The father asserted in his affidavit in reply that he was in arrears, but has paid significant child support and that he is presently up to date with his payments.
The father earns more than the mother and the mother is meeting modest private school fees for the eldest child. The mother has indicated she will meet school fees for the children into the future. The father on the other hand says that he will move the children from private schools to public school systems.
The question of child support has had little impact on this case with the exception of the litigation in child support as an example of the ongoing conflict between the father and the mother.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The impact of any decision in this matter will bring in the consideration of this provision. If the children remain with the mother it is unlikely that they will have any childhood relationship with the father. That will bring about emotional and psychological harm to the children.
If the father’s case is accepted, as I have said earlier, there will be a significant risk of psychological harm to the children and the likelihood that the children will end up being separated. If orders are made differently in respect of the younger child it also has significant high risks.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
There are no practical difficulties or expense issues, except perhaps the costs of supervision if the children were in the father’s care. The mother would need to meet the cost of such supervision, in this case.
Section 60CC(3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The mother has the capacity to care for the children and has done so. They are comfortable in her care and the evidence is that they are thriving.
The weakness and failure in the mother’s care is in regard to her exposing the children to the conflict between her and the father.
I accept that the father has the financial capacity to care for the children. He is able to deal with meeting their intellectual needs and deal with their physical needs. I am troubled about him in terms of their intellectual needs for the reasons set out elsewhere in this judgment.
The family consultant observed in the family report that:-
89. In considering the impact on the children of maturing with the perception that their father is a risk to them, this needs to be balanced against the on-going harm to the children of continued exposure to the parental conflict. It would appear they seem to be thriving both socially and educationally in the care of their mother and observations of the children suggest that they share a warm and loving relationship with their mother, in particular [the eldest child]. While there is some likelihood that the reported improvements in the children’s mental health could be attributed to the restraints around their time with their father, it is equally likely that this could also be attributed to the children no longer feeling caught in the middle of the parental conflict.
….
92. While it is generally recognised that the children’s relationships with both parents should be maintained and repaired it appears sadly that the parents are unable to set aside their differences to achieve this at this stage and it seems likely that allegations against the father have the potential to escalate. In the context where it is likely that the children will have access to one parent it appears that [the mother] is currently providing a good standard of care and a capacity to provide for the children’s emotional and developmental needs. Given the uncertainty of the success of any transition to the care of the father, this assessment would suggest that the children’s on-going developmental needs would likely be best met in the primary care of their mother, with a view that should the children express a view to spend time with their father into the future that this is therapeutically supported.
I accept this assessment and reiterate the matters that I have set out elsewhere. The father lacks insight into the impact of his behaviour on the children.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
In this respect both the father and mother have been able to accept the responsibility for their behaviour. However, I am not convinced that they work meaningfully towards repairing their relationship.
The father entirely blames the mother for the children’s feelings and concerns.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
No submissions were made in this regard.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother has demonstrated good parenting except in so far as it relates to the conflict with the father.
The father has exposed the children to the conflict and has failed to meaningfully acknowledge his role. He gave some evidence that he acknowledges that he has made mistakes in the past, but this seemed to me to be more in the form of rhetoric than substantive, particularly given the ‘tit for tat’ litigation and the like.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
I have had regard to the plethora of family violence proceedings. There is an order in place to protect the mother and the children from the father and I note that this order was made on an untested basis.
However, given the evidence before me I am satisfied that there are grounds for putting in place such intervention orders.
The father’s obsessive behaviour in relation to many aspects of this conflict is deeply troubling, not the least of which is: the applications to the Suburb L Magistrates Court; his approach in terms of the registration of Ms H’s car; his attendance at school for over two hours for the eldest child’s first year at high school (which could have been resolved by the father taking a step back, but was not); and the events in late 2015 at the middle child’s religious ceremony.
I have had regard to the evidence set out in the report to the Department of Health and Human Services, and to the evidence of the mother, although I have treated this sceptically and given little weight to the mother’s evidence as to physical violence since separation.
There are two episodes of breaches of the family violence order which on the surface appear of minimal nature. However, these are family violence orders and ought to be complied with given the focus on family violence.
I make similar criticisms of the mother for not complying with the orders of 2016. If the conflict was continuing or escalating or were the children’s views she ought to have made an application to the Court rather than adopt the unilateral approach to which she did. I do not accept that she was told by Child Protection Authorities to stop the children from spending time with the father.
There have been family violence orders against the father, against the mother and against the father by the mother’s adult daughter Ms H. These are set out in Exhibit E6 and I have had regard to that material.
In itself this was significant litigation between the parties, there have been numerous applications for variations and in many ways they reflect the conflict that exists between these parties.
A final order was made in favour of the mother and the three children against the father that he not:-
(a)commit family violence against the mother and the children;
(b)intentionally damage property or threaten to do so;
(c)attempt to locate or follow the protected persons or keep them under surveillance;
(d)publish on the internet by email or other electronic communication any other material about the protected person, contact or communicate with the protected person (‘the mother and the mother’s daughter);
(e)namely approach or remain within ten metres of the protected persons;
(f)knowingly go to and remain without two hundred metres of any place where the protected persons work, live or attend school or get any other person to do such a thing, save as the father may do anything that is permitted by a Family Law Act order or communicate through a lawyer or a mediator.
That order was to operate until 11 May 2027.[27] There is an application by the father for variation of that order which is extant in the Suburb L Magistrates Court.
[27] Exhibit E6 pages 94, 95, 96 and 97.
On 29 September 2014 an offence of contravening a family violence order was established on the facts at the Suburb L Magistrates Court. This alleged breach arose over letters provided to the children care of the school which were in breach of the orders. There was nothing in the letters that was threatening or harmful.
However, in the context of the orders it was a breach in that the father attended the school. The Court did not proceed to a conviction, but the proceedings were adjourned for one year. This was presumably to see whether any further breaches occurred in that period of time.
I am satisfied that the father minimised his involvement in these matters. The father was convicted of breaching the family violence order in favour of the mother and the family violence order in favour of the mother’s eldest daughter Ms H where, on 27 October 2015, prior to the final order being made, he attended the First Communion of the middle child. I am satisfied that the father has in his affidavit[28] understated his involvement. He was charged with intimidation, although that charge was withdrawn. The offence was proved without conviction and he was fined $1,000 plus costs.[29]
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
[28] Father’s trial affidavits paragraphs 143 to 152.
[29] Exhibit E7 national criminal history check.
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
I have had regard to these circumstances.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
These children have been involved in litigation since shortly after the parties’ separation. It has been ongoing in one tribunal or another, whether that be the Suburb L Magistrates Court, the Federal Circuit Court, the Family Court or the Child Support system. It has been ongoing and relentless.
These children have been examined time and time again. As was asserted by counsel for the father we have a longitudinal examination of these children through Mr G, the two reports of Ms F and the 2014 family report of Mr G.
I accept the view of the family consultant and also of Dr E that these children need respite from the conflict. In my view that will not occur in the care of the father, and it will not occur if the children spend any time with the father. It will only occur if the children are left with the mother and there be no order requiring them to see the father.
Any other orders will lead to further litigation and further emotional and psychological harm on the children in systems abuse. These children have been interviewed by police, officers of the Department of Health and Human Services, the Independent Children’s Lawyer, experts and others. It needs to come to an end.
Given all of the facts and circumstances in this case, and it is clear from the comments I have made, I will be making orders that the children live with the mother and spend no time with the father.
I will not make any provision for compulsory communication.
I will permit the father to send letters, emails, cards and gifts given the recommendation of the family consultant.
Further, I will enable the children to spend time and communicate with the father in accordance with their wishes and will order the mother to facilitate that provided the children have the assistance of some sort of therapeutic support.
I will make the orders that the father can obtain information about the children’s schooling and health.
Given the complexity of this matter and the level of alignment of the children with one parent as against the other, I will be making an order that the Independent Children’s Lawyer inform the children of these orders and the consequences of these orders.
The parties will be otherwise restrained from discussing these proceedings with the children.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant;
I have considered all of the relevant facts and circumstances in this case.
Conclusion
In her amended response to the initiating application the mother sought orders for permission to determine which school the children attend, their enrolment and to arrange counselling for them. Given that the mother has sole parental responsibility I have not made those orders as they are included in terms of the powers pursuant to these orders.
The mother seeks permission to enrol the children in any school she wishes. Given she has sole parental responsibility she is able to do so. Nothing in these reasons or in those orders is taken to impose an obligation upon the father to pay private school fees. Any such fees will be a matter for discussion between the parties or a determination under the Child Support (Assessment) Act 1989 (Cth).
The mother sought an injunction against the father in the usual form about denigration, discussion, viewing documents and the like.[30] The father did not seek a similar order. However, I raised this with the parties during the hearing and I am satisfied, given the conflict between the parties, and the concerns which I have articulated elsewhere in these reasons, that there ought to be mutual restraints in that regard and I propose to make those restraints.
[30] Mother’s amended response filed 4 July 2018
Included in that was the publication of material to one of the children’s schools by the father, in which the father conceded that it was a ‘tit for tat’ approach and the conflict that the children have had to endure where the parties turn up together at schools. Further, the reports show that the parties have, from time to time, discussed these proceedings with or in the presence of the children or at least one or other of the parties have done so.
I have considered all of the facts and circumstances and I am satisfied that no orders for the father to spend time or to have face to face time ought to be made.
The children should continue to live with the mother. As the parties have no effective method of communication and given the matters set out earlier the mother should have sole parental responsibility.
I certify that the preceding two hundred and seventy five (275) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 23 November 2019.
Associate:
Date: 23 November 2019
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