Vogel & Arcas
[2024] FedCFamC2F 1681
•25 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Vogel & Arcas [2024] FedCFamC2F 1681
File number(s): DNC 178 of 2022 Judgment of: JUDGE LIVERIS Date of judgment: 25 November 2024 Catchwords: FAMILY LAW – PARENTING – child abuse and neglect – child left alone for lengthy periods of time at 2 years of age – criminal conviction – no time order sought – child abuse and neglect substantiated – past allegations of abuse proven – supervised time considerations – whether orders can ameliorate risk of harm to child – risk of harm to child balanced against long-term risks of severing maternal relationship Legislation: Evidence Act 1995 (Cth) s 140(1)
Family Law Act 1975 (Cth) ss 4, 60CC(2)
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Denton & Denton (No 3) [2024] FedCFamC1F 476
Fitzwater v Fitzwater [2019] FamCAFC 251
Grella & Jamieson [2017] FamCAFC 21
Heijman & D’Onofrio [2024] FedCFamC1F 551
Isles & Nelissen [2022] FedCFamC1A 97
Jones v Dunkel (1959) 101 CLR 298
Keane & Keane [2020] FamCA 99
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
In the Marriage of M & J Bieganski [1993] FamCA 143; (1993) 16 Fam LR 353
Pointer & Cheadle (No 2) [2023] FedCFamC1F 602
Re W(Sex Abuse: Standard of Proof) (2004) FLC 93-192
Slater & Light [2011] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 170 Date of hearing: 23 – 26 July 2024 Place: Darwin Solicitor for the Applicant: Julie Holtham, Story & Associates Counsel for the Respondent: Mr Fernandez Solicitor for the Respondent: Thelma Gray, Grays Legal NT Solicitor for the Independent Children's Lawyer: Pamela Tregear, Arafura Legal ORDERS
DNC 178 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR VOGEL
Applicant
AND: MS ARCAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
25 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The child X, born in 2019 live with the father.
2.The father have sole parental responsibility for the child subject to the following:
(a)The father shall not change the child's name without first obtaining the written consent of the mother;
(b)The father shall not change where the child lives if such change will impact on the time the child spends with the mother; and
(c)The father shall inform the mother of any major decision made concerning the child's health, education, welfare or development, within seven (7) days of that decision being made.
3.The child be enrolled in counselling such as play therapy, and the father ensures that any recommendations of any professional counsellor be complied with.
4.The father shall forthwith make arrangements to engage with a suitably qualified professional to assist him to manage his emotions and mental health so as to best enable him to support the child.
5.The mother shall forthwith make arrangements to engage with a suitably qualified professional to assist her to manage her emotions and mental health so as to best enable her to support the child.
6.The parties do all things necessary and sign all documents required in order for the child and the mother to attend family therapy counselling with B Contact Centre, and for this purpose the father is obliged to ensure that the child attends when an appointment is made for his attendance.
7.The parties do all things necessary and sign all documents required to attend Intake at B Contact Centre within seven (7) days of these orders.
8.Following the completion of two (2) family therapy sessions with B Contact Centre pursuant to Order 6, the child spend supervised time with the mother as follows:
(a)For a period of six (6) months, for up to two (2) hours in each month, at times and days suitable to B Contact Centre; and
(b)For a further period of six (6) months thereafter, for up to two (2) hours each fortnight.
9.Following the completion of supervised time in Order 8, during school terms the child spend time with the mother as follows, with such time to commence in the first week of term in even numbered years and the second week of term in odd numbered years:
(a)For a further period of six (6) months thereafter, each alternate Saturday between 9 am and 3 pm;
(b)For a further period of three (3) months thereafter, from 9 am Saturday to 3 pm Sunday in each alternate week;
(c)For a further period of six (6) months thereafter, from the conclusion of school Friday (or 4.30 pm if not a school day) until the commencement of school the following Monday (or 9 am if not a school day) in each alternate week; and
(d)Thereafter, from the conclusion of school Thursday (or 4.30 pm if not a school day) until the commencement of school the following Monday (or 9 am if not a school day) in each alternate week.
Changeovers
10.For the purposes of Orders 8 herein changeovers shall occur at B Contact Centre.
11.For the purposes of Orders 9 herein changeovers shall occur at school where applicable, and otherwise at the play area in D Shopping Centre.
Communication
12.The parties shall communicate with each other in relation to matters concerning the child by a parenting App of their choice, and in default of an App being agreed within seven (7) days of these orders, the parties shall use the Application AppClose.
13.Each of the parties shall subscribe to the parenting App referred to above within fourteen (14) days of these orders and each shall remain subscribed to that App.
14.Each of the parents shall notify the other via the App about any serious illness or injury affecting the child, and provide details of the child's treating doctor and other health professionals.
15.The parents shall ensure that they keep each other updated about their phone number for the purpose of communication between the child and the parents.
School Holidays
16.Following the completion of the time in Order 9(c), the child spend time with the mother as follows:
(a)For the first half of all school holidays following first, second and third terms in even numbered years and the second half of all school holidays following first, second and third school terms in odd numbered years; and
(b)For the third and fifth weeks of the Christmas school holidays.
; and
(c)For the first half of the Christmas school holidays in even numbered years and for the second half in odd numbered years.
Days of Significance
17.Following the completion of the time in Order 8, the child will spend days of special significance with each of his parents as follows, unless otherwise agreed in writing between the parents:
(a)From 1 pm to 5 pm on the child's birthday with the parent he is not otherwise living with on that day;
(b)With the father each year on the father’s birthday for no less than three (3) hours if a school day and for no less than 6 (six) hours if a non-school day;
(c)With the mother on the mother’s birthday from 9 am to 3 pm;
(d)With the mother on Mother's Day from 9 am to 3 pm; and
(e)With the father on Father's Day from 9 am to the commencement of school the following day.
18.Following the completion of the time in Order 9(b), the child will spend days of special significance with each of his parents as follows, unless otherwise agreed in writing between the parents:
(a)With the mother on Mother's Day from 9 am to the commencement of school the following day;
(b)With the mother from 9 am Christmas Eve until 2 pm Christmas Day in even numbered years and with the father in odd numbered years, except that his time shall commence at 2 pm Christmas Eve; and
(c)With the mother from 2pm Christmas Day until 5 pm Boxing Day in odd numbered years and with the father in even numbered years.
19.Following the completion of time in Order 9(c), unless otherwise agreed in writing between the parents, the child will spend time from the end of school Easter Thursday (or 4.30 pm if not a school day) until 12 noon Easter Sunday with the mother in even numbered years and with the father in odd numbered years, and from 12 noon Easter Sunday until the commencement of school the following Tuesday with the father in even numbered years and with the mother in odd numbered years.
Injunctions
20.That the parties are restrained and injunctions are granted restraining each from:
(a)Physically disciplining the child or permitting any other person to do so;
(b)Leaving the child in the care of any other person when the child is in their care pursuant to these orders NOTING this does not include outside school hours care providers or teachers or similar professionals or Ms C;
(c)Leaving the child unsupervised;
(d)Speaking to the child about these proceedings;
(e)Saying negative or derogatory things about the other parent to the child or within the hearing of the child; and
(f)Hindering the child's time with the other parent.
Other
21.This Order authorises each parent (at their own cost) to obtain information, reports, correspondences and all other similar material relating to the child from the child's treating health practitioners.
22.This Order authorises each parent (at their own cost) to obtain information, reports, school photo order forms and all other similar material relating to the child, from the child's school.
23.Each parent is at liberty to attend the child's school for functions, events and activities routinely attended by parents.
24.All outstanding applications be dismissed.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth)..
REASONS FOR JUDGMENT
JUDGE LIVERIS
X has not seen his mother, Ms Arcas, since mid-2022, after she was charged with criminal offences involving him in late-2021, when he was 2 years old.
X was hospitalised at E Hospital with injuries consistent with child abuse in late 2021. He remained in hospital for one month, when he was discharged into the care of R Authority. He has been living with his father, Mr Vogel, since June 2022.
In early 2023, Ms Arcas pleaded guilty in the Supreme Court to offences. In mid-2023, she was sentenced to a term of imprisonment commencing in mid-2023 and expiring in late 2024. The sentences were suspended forthwith and an order made that the period commencing mid-2023 and expiring early 2024 be served by way of home detention. An operative period commencing in mid-2023 and expiring in early 2025 was fixed, during which time Ms Arcas was required not to commit any further offence punishable by imprisonment.
Ms Arcas’ co-accused, Mr F pleaded guilty to the same charges and was sentenced to a term of imprisonment, commencing in mid-2020 and expiring in early 2025. The sentences were suspended forthwith and an order for home detention was made, expiring in mid-2024.
When Mr Vogel saw the DPP brief, the evidence that had been obtained by Police, and the Crown Facts, he was horrified to understand the full extent of the abuse X suffered. He did not comply with consent orders agreed on 14 February 2023 for X to spend supervised time with Ms Arcas, forming the view that contact with Ms Arcas was incredibly distressing and traumatising for X. Mr Vogel has applied for an order that X spends no time with Ms Arcas in light of these matters.
The parties agree that X should live with Mr Vogel. They are also effectively in agreement that Mr Vogel should have sole parental responsibility for X. The issue that requires determination is whether X should spend no time with Ms Arcas, or whether he should spend time with her, initially on a supervised basis before progressing to unsupervised and overnight time in a graded increase, building in family therapy counselling between X and Ms Arcas.
In determining this issue, I must regard X’s best interests as the paramount consideration. I must decide what is in X’s best interests by considering the general considerations that are set out in s 60CC(2) of the Family Law Act 1975 (Cth).
In proceedings for a parenting order, I may also make such orders as I think are proper. Because of the focus on the future, I am required to make a discretionary judgement involving significant elements of value judgements, assumptions, necessarily uncertain predictions and intuition.[1]
[1] Grella & Jamieson [2017] FamCAFC 21.
X is now aged 5 years old. In late-2021, Ms Arcas played a central role in seriously abusing and neglecting him. In essence, the potential impact on X of losing his relationship with Ms Arcas at this stage of his life must be weighed against the risks of reintroducing him to Ms Arcas, and whether she presents as an unacceptable risk of harm to him.
Notwithstanding the severity of what has taken place in the past, there are considerable risks for X in the future if his relationship with Ms Arcas is severed at this stage of his life. In my opinion, therapy, closely managed periods of supervision and a considered expansion of X’s unsupervised time with Ms Arcas can ameliorate the risks of harm to him and enable him to realise the benefits of a maternal relationship.
The extent of Ms Arcas’ criminal conduct effectively destroyed the already tenuous relationship between the parties. The extremely poor relationship between them is a risk factor. However, the Act is underpinned by the rights of children, and obligations of parents. In my opinion, despite the ill-will between the parties, it is necessary for them both to engage with therapy, professional services, and for them to do what is required of them to ensure that X is able to realise the benefits of strong paternal and maternal influences in his life as he advances through childhood.
What are the parties’ proposals, and what is the basis for them?
The parties are Country G nationals. They met in 2014. They were married in 2015. The parties come from families with different levels of affluence, and their relationship was not supported by Ms Arcas’ family. Her parents did not attend their wedding, though they gave them some money and household items. The parties came to Australia in 2017, on temporary student visas. Neither party is a permanent resident of Australia, and their visa statuses are uncertain.
The Independent Children’s Lawyer’s proposal for X’s parenting arrangements differs from each of the parties. The ICL submitted that it was likely that X was exposed to family violence during the parties’ relationship. The ICL supports X living with Mr Vogel and supports X spending supervised time with Ms Arcas. The ICL seeks orders that are effectively in line with the recommendations made by the court child expert, Ms H. However, the ICL’s proposal is also that after 12 months of supervised time spent, the parties attend a mediation to discuss ongoing parenting arrangements, informed by that experience.
Each party’s proposal for X is made against the background of the facts and circumstances of their lives since they arrived in Australia, much of which has been challenging for them. The determination of the proposals requires some analysis of the levels of Ms Arcas’ insight in relation to her conduct, and the allegations of family violence that the parties have made against one another, both in relation to themselves and X. There are high levels of dispute. The parties are at odds as to which one of them was X’s primary caregiver, which one of them was responsible for maintaining the home, which one of them was the main financial contributor to the household, and the occurrence and extent of family violence.
After they arrived in Victoria in 2017, the parties relied heavily on family support. Mr Vogel was working in various jobs, including as a hospitality worker. Later he started his own business. Ms Arcas was studying 4 days a week. Mr Vogel worked hard to support the marriage, pay the bills, and assist Ms Arcas in completing her study. Ms Arcas completed her studies in 2018. She became pregnant with X shortly afterwards. Although the parties were working toward financial security and obtaining permanent residency in Australia, and were generally happy, Mr Vogel controlled and restricted Ms Arcas’ ability to socialise and insisted that she return home at certain times.
Ms Arcas also alleges that in mid-2018, Mr Vogel slapped her so hard that she fell to the floor. She says that there was an escalation of verbal and emotional abuse after that, which continued during her pregnancy and after X was born. Over the same periods of time, Mr Vogel alleges that Ms Arcas routinely slapped, hit, scratched and pinched him, and that Ms Arcas was financially controlling and abusive.
In 2020, after X was born, Ms Arcas was offered employment at J Centre, in Town L in Region Y. The family moved in early 2020. Ms Arcas worked at J Centre, and Mr Vogel worked 2 nights each week at K Company.
After they moved to Region Y, Ms Arcas enrolled in further study. J Centre closed for approximately 3 months during COVID-19 lockdowns, and Ms Arcas was left without work. After J Centre reopened, Ms Arcas worked inconsistent shifts. She was also spending one or two nights each week in City M for lectures for her studies.
In late 2020, when X was a baby, Ms Arcas obtained employment in community support work and the family moved to City M. Mr Vogel worked 20 hours, 2 nights each week at a retailer. Ms Arcas was working significant hours. She would spend little time at home after returning from work, before having to go to work again.
Mr Vogel stopped working in early 2021. At that time, the relationship between the parties started to break down. Mr Vogel says that Ms Arcas was not coming home when she was supposed to, and Ms Arcas says that Mr Vogel was becoming increasingly suspicious that she was seeing other men, and engaging in conduct such as not allowing her to bathe in private, and physically inspecting her body in an intrusive manner and without consent.
In mid-2021, X started attending daycare for the first time. Ms Arcas was working as many shifts as she could. She was continuing to pay rent in the sum of $340 per week at the home the family was staying in. The parties separated in August 2021.
In mid-2021, Ms Arcas applied for a domestic violence order against Mr Vogel, alleging violence perpetrated against her and X.
In mid-2021, Ms Arcas arranged with the property manager to terminate the lease of the rental home. Ms Arcas moved to other accommodation, initially staying at hotel accommodation. Mr Vogel was unable to maintain the rental payments at the home, so he moved in with friends.
In mid-2021, an interim non-harm order was made against Mr Vogel, protecting Ms Arcas. X was not named as a protected person in the interim order, however R Authority completed a Child Protection Report and around this time, X stopped spending any time with Mr Vogel.
Also at this time, Ms Arcas found that she was not able to afford to keep X in daycare. She was limited in the shifts she could take at work, because she had the care of X. She also felt ostracised by the Country G community, because she had left her husband, and she felt unable to ask for support. Ms Arcas felt alone, under great pressure to financially support herself and X, and felt ashamed about her failed marriage. She was finding it very difficult to cope, financially and emotionally. She also found it difficult to manage X’s tantrums. She did not know how to control his behaviour and would sometimes smack him on his bottom.
Ms Arcas had been paying a lady named Ms N to look after X while she worked. Ms Arcas knew Mr F from work. They became friends, he visited Ms Arcas at home and met X. He suggested to Ms Arcas that he could look after X instead of Ms N, to help her get her finances back in order.
Ms Arcas agreed, believing she could trust Mr F. She was not receiving any financial support from Mr Vogel, and she felt grateful to have a friend and someone who could support her. However, she made no enquiries about how leaving X in Mr F’s care would work, and she played very little pro-active role in informing herself, or ensuring that X was safe and that his needs were met. From at least late 2021, Ms Arcas started leaving X with Mr F at his home while she went to work.
On one occasion in late 2021 X was left alone for at least eight hours from 2:30 pm to 10:30 pm. X was then aged 2 years. He was also left for at least four hours in a locked vehicle a few days later.
Further, on another occasion in late 2021, X was left for at least seven hours at Mr F’s home, during the day. Two days later, he was left alone for at least eight hours in the afternoon and evening, and around a week later for a further eight hours again, from 2.30 pm and 10.30 pm.
On 4 October 2021, the parties entered into a parenting plan that provided equal shared parental responsibility for X, that X live with Ms Arcas, that X have a video call with Mr Vogel 3 times each week and X spend time with Mr Vogel as agreed between the parties, but otherwise spend supervised time with him for two hours each Saturday.
On 23 October 2021, Mr F sent Ms Arcas a text message saying, “always talking me bye bye (followed by a waving emoji) he is becoming more comfortable alone now.”
In late 2021, X was again left for at least eight hours at Mr F’s home between 2.30 pm and 10.30 pm. Mr F also took X to his workplace on some occasions, including the following day.
On the following day, Mr F took X to his place of employment for an overnight shift that was to commence at 3 p.m. and end at 7 a.m., where supervised serious sexual offenders with multiple convictions for sexual offences were present. Ms Arcas was aware that Mr F was taking X to his work that day, though she says she didn’t know there were serious sexual offenders present. She prepared nappies, water and food for X and gave them to Mr F.
Mr F took X into a small staff room and locked him in it by himself, with a bag of sandwiches that he intended to eat over the course of his shift. Mr F left X alone for approximately two and half hours, while he worked. Upon his return, he saw that X was screaming and had thrown the sandwiches all over the room. Mr F contacted Ms Arcas, angry that X had thrown food around. Ms Arcas replied in terms that were apologetic towards Mr F. She expressed no concern, or made no enquiry, as to X’s well-being, what Mr F was doing with X while he was in his direct care, or why X was taken to work with Mr F for an overnight shift.
Later in the evening, Mr F spoke with Ms Arcas on the phone. He had observed X continuing to scream and clutching his leg. He told Ms Arcas that X was still crying and that he had injured his leg, and that he would take him to hospital. X was in so much pain that Mr F was unable to place him in the child seat, and instead lay him on the back seat of the car.
Mr F took X to E Hospital. He and Ms Arcas made deliberate false statements to E Hospital staff, including that they were X’s biological parents and that the injury occurred at Mr F’s home when he fell out of bed. The following day, Ms Arcas knowingly untruthfully told Dr O that X’s injuries occurred in the kitchen, when he slipped on some food, fell down and hit his head.
X was assessed at E Hospital as having injuries that were consistent with child abuse.
There is a dispute about how X sustained his injury. The medical evidence estimates that the injury occurred between mid-2021 and late 2021. Ms Arcas said that over this period X was happy in her care and that she never saw him in pain. There is a conflict in the evidence about the manner of and frequency in which Ms Arcas smacked or hit X.
In late 2021, Ms Arcas was arrested and charged with offences. Mr F was arrested and charged as a co-accused.
A bail condition was imposed prohibiting communication between them, and Ms Arcas and Mr F have had no contact since the arrest date. Ms Arcas does not intend to have any contact with Mr F in the future.
When X was discharged into the care of R Authority, he was placed into the care of Ms C and her husband. Ms C did not give evidence at the hearing but she was interviewed by Ms H. Ms C and her husband were required to provide X with around-the-clock supervision and care.
At this time, X also started spending time with Mr Vogel every day. He also spent supervised time with Ms Arcas once a fortnight.
In January 2022, X started spending four nights per week in Mr Vogel’s care.
In early 2022, Ms Arcas withdrew her application for a domestic violence order against Mr Vogel, and the interim order was revoked.
In mid-2022, a domestic violence order was made naming Mr Vogel as the protected person, against Ms Arcas and Mr F.
In early 2023, non-contact domestic violence orders were made, naming X as the protected person, firstly for five years against Mr F, and for one year against Ms Arcas. Mr Vogel has applied to extend the order protecting X from Ms Arcas for five years. Ms Arcas is contesting the application.
Should X spend no time with Ms Arcas, or should he commence spending a period of supervised time with her, before progressing to spending unsupervised time with her?
Mr Vogel acknowledges that the order he seeks is one of last resort. He also acknowledges that Ms Arcas is X’s mother, however he considers the harm that she and Mr F have done to him is immeasurable and believes it will affect X for the rest of his life. He considers that Ms Arcas has taken no responsibility for her involvement in the harm that was suffered by X, that she is without remorse, and that forcing X to spend time with his abuser is in and of itself child abuse.
Mr Vogel is seeking a finding that Ms Arcas abused X, not just in relation to his injuries, but for the period in late 2021, which immediately followed it. The Act defines “abuse” to relevantly mean an assault of the child, causing the child to suffer serious psychological harm and serious neglect of the child. The term “serious neglect” is not defined for the purposes of s 4, nor for the purposes of s 60CC(2)(a). In Slater & Light,[2] the Full Court said that “neglect” ought to be given its ordinary meaning, which is akin to failing to afford proper care or attention. The Court had regard to the explanatory memorandum, which said that neglect is intended to be limited to situations where a lack of reasonable care is likely to cause unnecessary suffering or injury to health of the child.[3]
[2] [2011] FamCAFC 1.
[3] At [39]- [40].
In making findings, s 140(1) of the Evidence Act 1995 provides that the court must find a case of a party proved if it is satisfied that it has been proved on the balance of probabilities. In deciding whether it is so satisfied, subsection (2) provides that without limitation, the court is to take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged.
The process of evaluating the allegations made must be conducted vigorously as the termination of a relationship between a child and the allegedly abusive parent is generally to be the course of last resort: see Keane & Keane,[4] referring to the Full Court in Re W (Sex Abuse: Standard of Proof).[5]
[4] [2020] FamCA 99 at [77].
[5] (2004) FLC 93-192 at 79,217-8 (Kay, Holden and O’Ryan JJ).
In Isles & Nelissen, the Full Court emphasised the distinction between proving allegations of abuse on the civil standard of proof and establishing the risk of conduct occurring in the future.[6]
[6] [2022] FedCFamC1A 97 at [84].
Though both are evidence-based, a trial judge may find past allegations of abuse proven on the balance of probabilities but find there is no unacceptable risk to a child. Equally, a trial judge may make no finding of past wrongdoing on the balance of probabilities but go on to find there is an unacceptable risk of harm.[7]
[7] At [83].
A risk of some occurrence of harm may be tolerable, but an unacceptably high risk of the same occurrence is not.[8] Some risk arising to a child’s safety may be capable of amelioration by further order of the court.[9] Whilst long-term supervision of time spent by a child with a parent has been regarded as undesirable, it is an option for final parenting orders. Supervision can prevent disruption to the filial relationship, protect an accused parent from further allegations of abuse, and allay the fears of abuse held by the residential parent.[10]
What arrangements would promote the safety, including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm, of X and each person who has care of him?
[8] Fitzwater v Fitzwater [2019] FamCAFC 251 per Austin J at [138] - [139].
[9] Keane & Keane [2020] FamCA 99 at [84].
[10] Pointer & Cheadle (No 2) [2023] FedCFamC1F 602 at [269] – [271].
In Heijman & D’Onofrio, Jarrett J said that:
“Safety is not defined in the Act. The Macquarie Dictionary defines safety as: (1) the state of being safe; freedom from injury or danger; (2) the quality of insuring against hurt, injury, danger, or risk.
The concept of safety cannot be understood except in the context of a nominated risk posed, its gravity, likelihood, and anything which might ameliorate it. In that sense, the process set out in the jurisprudence is still relevant to the new provision. If anything, the current text of s 60CC(2)(a) provides more discretion when it comes to formulating orders. That is because whilst “the need to protect the child from harm” is quite prescriptive, a consideration of “what arrangements would promote the safety...” might be considered to be broader. There may be many different orders which all promote safety to different degrees, and there is discretion to consider which of those arrangements might be most appropriate. That discretion is, of course, informed by the characteristics of the risk.”[11]
[11] [2024] FedCFamC1F 551 at [126] – [127].
Further, in Denton & Denton (No 3), Altobelli J said that:
“This Court is drawn to a view that “safety” is a state in which hazards or conditions leading to physical, psychological, or material harm are controlled in order to preserve the health and well-being of an individual. It is not the complete elimination of risk of harm, but rather making such order as affords the child the most optimal protection from harm.”[12]
[12] [2024] FedCFamC1F 476 at [30].
The agreed order that X lives with Mr Vogel promotes his safety, as does the agreed order providing parental responsibility to Mr Vogel. I must consider Ms Arcas’ past conduct as part of a risk assessment in the context of her application for unsupervised time to start after 6 months, and for overnight time to start after a further 4 months. In this respect, Ms Arcas’ evidence has several unsatisfactory elements, which relevantly bear upon the question of her level of insight.
Whilst Ms Arcas denied physically hitting X apart from smacking him on the bottom, she sent messages to Mr F that strongly suggest otherwise, and which cause me some concern, notwithstanding the emotional and financial stressors she was affected by at the time, and her evidence given in cross-examination reflecting upon the messages.
After Ms Arcas started leaving X with Mr F for extended periods of time, in late 2021, she sent a text message to him that said, “I smack him my hand is so painful”, together with a video of X crying.
It was put to Ms Arcas that a photograph taken of X in late 2021, 2 days later, shows bruising to his face and black eyes, as well as injuries also seen to his forehead. Ms Arcas disputed that the photo shows bruising to X’s face and said that she rubbed his black eye with ice. She said it was the only black eye that X had ever got. She also said that X was playing and hit his forehead after he bumped his head. She disputed the photo showed a burn, or that she hit X.
The R Authority materials record that E Hospital staff provided advice that the bruising on X’s face was noted to be in a “tram track pattern”, which Hospital staff suggested was “highly suspicious for a striking type injury such as a belt or a stick/rod.”
In late 2021, Ms Arcas sent messages to Mr F stating that “I am so angry with myself. I can’t control my anger. I was smacking sleeping [X].” In late 2021, Ms Arcas sent a message that “[X] is still awake. I smack him those [objects]. Still awake this boy. I don’t have patience to deal with him now. Sorry to disturb you.”
Further, in response to Mr F’s message in late 2021 complaining that X had thrown the sandwiches all over the room and that he had nothing to eat and had messed everything up, Ms Arcas’ response was “Jesus, I’m sorry [Mr F]” and “this boy I’m fed up what he is doing for us now.”
In cross-examination, Ms Arcas said that she did not remember sending any of these messages to Mr F, but agreed that she had sent them when they were put to her. She said that she was not in a good condition. Ms Arcas did not remember reading the hospital’s assessment that X’s injuries were highly suspicious of a belt or rod.
In cross-examination, Ms Arcas continually said that she should have done things differently, that she is deeply ashamed of what happened to X when he was in her care, and that she is very sorry for what she did. She said that she is suffering for it.
At these times, X was approximately 2 years old. He was entirely dependent upon Ms Arcas for his physical and emotional care.
Reflecting on the messages she sent to Mr F, Ms Arcas said she didn’t know why she sent them. She said she was desperate for help and attention from Mr F. She denied that she hit X at all, including with objects. I do not accept Ms Arcas’ explanations. Notwithstanding the challenges Ms Arcas was facing at the time, Ms Arcas’ conduct in speaking candidly to Mr F about her emotions and her conduct, including sending him photographs of X crying, display a serious disregard for X’s well-being. She spoke to X in disapproving ways that go well beyond a cry for attention.
Whilst Ms Arcas made very emotional apologies to X in cross-examination, and gave evidence that she is now clear headed and will never allow X to be put at risk again if he is in her care, I do not accept aspects of Ms Arcas’ evidence.
Ms Arcas’ apologies are also inconsistent with her insistence in cross-examination that she never left X alone. They are also inconsistent with her evidence that she never thought Mr F would leave X alone when she placed him in his sole care.
I do not accept Ms Arcas’ evidence in these regards. By placing X in Mr F’s care, Ms Arcas effectively left X, at 2 years of age, alone. Ms Arcas agreed to leave X with Mr F while she worked, even though she knew that Mr F also had shifts, including into the evening and overnight.
Perhaps more significantly, Ms Arcas made no preparations or enquiries, and gave no thought to how the arrangement for X to be in Mr F’s care would work. She had never been to Mr F’s house. She did not ask Mr F how he was going to look after X. Mr F confidently said he could look after X, and without doing anything more Ms Arcas believed him and put X in his care. This continued even after it was made obvious to Ms Arcas that Mr F had been leaving X by himself. In my view, Ms Arcas putting X in Mr F’s care in these circumstances is highly deficient.
Ms Arcas did not take any steps to manage the risks that X may not be adequately safe and cared for when she left him with Mr F, either before she started leaving X with him, or during the period of time it was occurring. Ms Arcas may not have known that Mr F was attending his workplace where sex offenders were present, but she obtained no detail, asked no questions, and took Mr F at his very general word that it was a safe and suitable environment for X.
Ms Arcas was aware that Mr F had his own work commitments, amidst the pressures of casual shift work that she was experiencing herself. She was aware, at least twice before late 2021, that Mr F was taking X to work with him. In my opinion, Ms Arcas was aware that there was a significant likelihood that Mr F would leave X alone for periods of time, or otherwise not adequately care for him in the ways that he clearly required as a young child.
I am also of the view that Ms Arcas was aware that there was a high likelihood that X, at the young age that he was, would suffer harm when left with Mr F unattended for lengthy periods of time. The materialisation of this eventuality was plainly stated by Mr F in his text message to Ms Arcas in late 2021 when he effectively told her that X was becoming used to being left alone. It is obvious that X being left alone created serious risks to his safety and welfare.
When this text message was put to Ms Arcas in cross-examination, she reaffirmed that she feels bad, but said that she didn’t have any choice. Ms Arcas did not directly answer the question put to her that she knew at least then that X was being left alone by Mr F. She agreed X was unsupervised but said at the same time she left X with an adult when she went to work.
I take into account the financial pressures that Ms Arcas was under, including the pressure to take shifts when they were available, to work more to earn more money as a casual employee, and the need to continue to earn money to support her life and to support X. I also take into account the social and emotional pressures that she was under.
However, where Ms Arcas’ duties and responsibilities to provide for X’s care, and her need to take shifts and earn money were in conflict, Ms Arcas did not prioritise, adequately and in some instances at all, her obligation to X’s physical and emotional care. She was prepared to, at the very least, close her mind to what was occurring when she left X with Mr F, in breach of her obligations to X.
Ms Arcas admitted to knowingly lying to R Authority, Police and E Hospital. Whilst those lies were made in unusual and particular circumstances, the records of exchanges between Ms Arcas and Mr F set out in the Crown Facts show a presence of mind, awareness and understanding of the gravity of the situation that she and Mr F were in. At that time, Ms Arcas continued to put her own and Mr F’s interests ahead of X’s.
In late 2021, Ms P, a child protection worker at R Authority, gave evidence in support of the protection order made for X that included that Ms Arcas had requested Mr F visit X. Ms Arcas is reported as saying to R Authority that she did not believe Mr F harmed X and would like him to continue to play a significant role in his life. Ms Arcas googled “charges for negligence of a child” on her mobile telephone 8 days after Ms P made her affidavit.
Ms Arcas’ attitude towards X and Mr F is consistent with her failure to prioritise X’s safety throughout the period of late 2021. I am concerned that notwithstanding the seriousness of what had then occurred, Ms Arcas took steps to lie to authorities, defend Mr F’s conduct, and seek for him to continue to see X.
I accept that Ms Arcas’ conduct in late 2021 constitutes abuse and serious neglect. On the basis of Ms Arcas’ text messages to Mr F in late 2021, the injuries depicted to X in the photograph taken in late 2021 and Ms Arcas’ evidence about struggling with and being unable to adequately manage X’s tantrums, having regard to the seriousness of the allegation, I am also satisfied on the balance of probabilities that Ms Arcas hit, smacked and slapped X at certain times when he was in her care.
However, in my view the evidence is insufficient to enable me to make any findings in this regard about X’s injury. Without diminishing the seriousness of an undetected, or ignored, injury of that nature in a child, the evidence about the timeframe in which the injury likely occurred is broad. It is the case that during this period of time, X was in the full-time care of Ms Arcas. However, there is no evidence about the severity of the injury, or how it occurred.
There is evidence that the injury to X’s leg caused him to be in considerable and obvious pain. The x-ray of that injury shows some severity. However, Ms Arcas’ evidence was that she never saw X in pain during the period of time that it is estimated that the other injury occurred.
I am not satisfied that X’s other injury was caused by an assault, or serious neglect by Ms Arcas. I cannot rule out for example that the injury occurred in late 2021, in respect of which Ms Arcas has given evidence that X fell, causing her to at least put ice on the injuries to his face.
The risks associated for X to spend no time with Ms Arcas include that X may feel an enduring and unresolved sense of confusion and loss and grief in relation to the separation from her, and possibly his extended maternal family. He may feel that he has been rejected by his mother, which in turn may impact his self-esteem and emotional well-being into the future. Ms H considered that this may be compounded if Mr Vogel attempts to groom and influence X against Ms Arcas.
The potential benefit of X spending time with Ms Arcas over time is that it may include the possibility that if he were to experience safe and loving care by Ms Arcas under circumstances which are not threatening, then this may positively impact his well-being into the future. Further, feelings of loss and grief that he may have over the loss of their relationship may be avoided, potentially providing him with a stronger sense of parental love, belonging, identity and self-esteem.
In early 2022, Ms Arcas completed a parenting program and in mid-2022 she completed another parenting training program. She explained in evidence that from these courses, she had learned to control X’s tantrums by giving him time, helping him to be more expressive, to understand him more and can implement this in activities. She said that she has learned she can be more patient. She doesn’t have stress on her mind and can put X’s safety first. She has support from people at her church and can put work and study second.
In the report dated 10 November 2023, which I recognise has not been tested, Dr Q provided an opinion that Ms Arcas does not have a diagnosable psychiatric condition. Dr Q recommended ongoing treatment, being regular psychological therapy and supportive care. He formed an opinion that it was important for Ms Arcas to spend time with X, for the benefit of each of them. He formed the view that there is no risk or a very low risk to X spending time in a carefully managed approach with Ms Arcas.
The harm that X suffered while he was in the primary care of Ms Arcas was significant, and has left, at the very least, lasting physical impact. He underwent surgery for the injury to his leg. His injured leg remains shorter than his other leg, and he requires special orthotic inserts in his shoe.
Further, after his admission to E Hospital, officers from R Authority and Region Y Police investigated the initial injuries that X presented with, and appropriate care arrangements for his discharge from hospital. It was noted that from his initial presentation and throughout the first day of his admission, X was highly distressed and inconsolable despite pain relief.
At that initial time, any attempts by Ms Arcas to comfort or settle X resulted in heightened agitation, which made it extremely difficult for medical staff to examine and assess him. This was noted to be in contrast with when X was alone with Mr Vogel. X was seen to settle immediately, displayed no distress and was able to be examined.
Ms H considered it is difficult to predict how X will respond to any reintroduction to Ms Arcas. The abuse occurred when he was about 2 years old, and he is now 5 years old. Ms H gave the view that it is unusual for children to recall details from such a young age. She said that as time passes, memory often fades in children who have experienced abuse at a young age.
On 28 March 2023, X’s pre-school teacher, Ms T, wrote Mr Vogel an email saying that X told a child “mummy bad” and that he told an educator earlier in March that his mummy was bad and that she had injured his leg.
Mr Vogel told Ms H that he does not speak poorly about Ms Arcas, but that he and X have a normal life, and he wants Ms Arcas out of it. In cross-examination, Ms H considered that it is probable that X’s remarks such as “mummy bad” and that Ms Arcas had injured his leg, were said because X is being told these things.
Ms H said that children do not understand what and why, they just know that they had been hurt. She said that for the most part children, even those who experience serious abuse, are quite forgiving. If children receive warm, loving attention there is no reason for them to be frightened of the parent. Trauma can however play out in other ways, such as nightmares.
There are concerns about the reintroduction of trauma to X, and it is not possible to know how a reintroduction will go, or how long it will take for him to re-establish a relationship with Ms Arcas. It is important for X’s safety that Ms Arcas has insights around behaviours, and that she has the skills to assist X, should the need arise.
I am also concerned about the strength in which Mr Vogel holds negative views about the role Ms Arcas may play in X’s life. In my assessment because of what has happened in the past, Mr Vogel is not capable of considering that X may suffer the loss of a maternal presence in his life and how that may affect X into the future. This is not inconsistent with the historical material from R Authority, which records officers noting Mr Vogel’s plans to stop X having contact with Ms Arcas.
Ms Arcas said in cross-examination that she thought Mr Vogel’s application was founded in revenge. She said that Mr Vogel wanted X, but not her, and that he wanted revenge because she left him and X.
I do not accept that Mr Vogel is motivated by revenge. I consider it more likely that Mr Vogel’s application is based upon his subjective perceptions of what is in X’s best interests. Whilst I do not agree with his views, I accept Mr Vogel is acting in response to his view that X should not be required to see Ms Arcas ever again because of what she has done to him in the past. Because of the seriousness of Ms Arcas’ conduct, and the gains that X has made since being abused and released from hospital, as well as the deterioration of the parties’ relationship, I consider that Mr Vogel lacks the capability of assessing the benefit of the maternal relationship to X, and the risks to him of being deprived of that relationship. In my view, it is therefore important that Mr Vogel meaningfully engage with professional support services to assist him in being able to better understand and support X’s best interests, including the importance of his relationship with Ms Arcas.
I am also concerned about Ms Arcas’ evidence that she considers Mr Vogel’s sexuality is a risk to X. Despite having not made any enquiries into the issues, Ms Arcas said that as a mother she is scared, concerned, that she cannot get over it and is concerned that someone will do something to X.
I found this evidence to be extremely vague, unparticularised, and very concerning. I find it bears upon Ms Arcas’ lack of insight, and the deep state of mistrust that exists in the co-parenting relationship. Ms Arcas gave no basis for holding these views and reaching the conclusions she has. I do not accept her concerns. They are against the evidence of the improvements X has made in Mr Vogel’s care.
In respect of family violence alleged by Ms Arcas as perpetrated against her and X by Mr Vogel, Mr Vogel admitted to R Authority that there were a couple of occasions when he has smacked X, but only on the leg, and never on the face. In cross-examination he said that he “tapped” X on the leg, but never on the face. He denied that he smacked X, but said that when he has tapped him, it left a bit of a red mark but only because his skin was very soft, not because the tap was too hard.
Mr Vogel has also admitted to conduct during the relationship, including controlling and restricting Ms Arcas’ ability to socialise with adult males alone, insisting that she return home at certain times and phone him immediately when she leaves. Mr Vogel suggests that these are cultural norms in Country G. He denies all other allegations of family violence made against him by Ms Arcas.
These allegations are significant. Ms Arcas’ evidence is that Mr Vogel routinely perpetrated physical, emotional, sexual and financial violence towards her over the course of their relationship. She gave evidence of significant controlling behaviour by Mr Vogel against her. Mr Vogel described Ms Arcas to Ms H, as controlling and unstable and prone to dishonesty, deception and aggression.
In the initial R Authority Investigation and Safety Assessment Report, it is recorded that Mr Vogel was observed to not respond to direct questions about domestic violence and would try to change the flow of conversation. He told Ms H that he believes R Authority are biased against him because of Ms Arcas’ report of family violence perpetrated by him after separation.
With limited exception, both parties deny the allegations that were made against them. In my assessment, once the relationship started to break down, controlling behaviours escalated, as the mistrust between the parties intensified. Mr Vogel became increasingly suspicious of Ms Arcas’ movements, and Ms Arcas asserts that Mr Vogel started a homosexual relationship.
An important aspect of Ms Arcas’ allegations of family violence relates to an incident in mid-2021, shortly before the parties separated. She gave evidence that she was exhausted from doing numerous shifts, taking care of the home and also worrying about X when in Mr Vogel’s care. On that day, she said that she had no shifts for a change and decided to go out of the house with X.
Ms Arcas alleges that Mr Vogel would usually not allow her to take X out of the house without also coming, because she says he had to know where she was at all times and would otherwise become angry with her, requiring that she return home immediately after work finished.
Ms Arcas decided to tell Mr Vogel that she and X were going to her friend’s house, but she instead took him to the park and let him run around and play. They then went to Ms Arcas’ church. She says that as they were leaving, she saw 20 missed phone calls from Mr Vogel. She called him to tell him that she was on her way home, and he started shouting at her, calling her horrible names and asking her where she took his child.
When she arrived home, Ms Arcas says that she saw her friends Ms U and Ms V were there. She says that Mr Vogel said to her that she will never take X out again without him or he will kill her and her family. She says he was yelling very loudly, and that she was frightened.
She told him that she wanted a divorce and says that he grabbed her around her throat and pushed her backwards, falling onto the couch. Ms Arcas claims that Ms U told Mr Vogel that it was not right to hit her. She says that she tried calling police, but Ms V took her phone off her and stopped the call, saying to her it will be a shame if you call the Police, or words to that effect.
I accept the submission on behalf of Mr Vogel that notwithstanding the history of family violence alleged throughout the relationship, the incident in mid-2021 is an important one in Ms Arcas’ case. Extremely serious allegations are made, including a threat to kill Ms Arcas, and her family. Ms Arcas has not called evidence from Ms U or Ms V, and there is very little information about either of them.
Mr Vogel asks me to draw an inference that the evidence of Ms Arcas’ friends Ms U and Ms V would not have assisted her. The rule in Jones v Dunkel[13] provides that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. The rule permits an inference that the evidence not called by the party would not have assisted the party, not that it would have been adverse to the party’s case.[14]
[13] Jones v Dunkel (1959) 101 CLR 298.
[14] Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 at [63] – [64].
It is said that Ms U and Ms V are reluctant to get involved in these proceedings. Whilst not any explanation for the failure to call a witness will necessarily suffice, Ms Arcas was not cross-examined on this aspect of the matter. I also note that Mr Vogel has also shown suspicion of authorities, and Ms Arcas has stood by her remarks to Ms H that she is frustrated by the government and court system in Australia.
In all of the circumstances, I do not draw any adverse inference as a result of the fact that neither Ms U nor Ms V were called to give evidence at the hearing.
However, I do not find that the particular examples of physical domestic and family violence alleged by Ms Arcas in the proceeding have been made out. Whilst Ms Arcas’ narrative about the family violence alleged against her has been generally consistent from the time she first raised it, having regard to the gravity of the allegations and in assessing all of the evidence, I do not find the particulars of the allegations of physical harm made by her in this proceeding satisfied on the balance of probabilities.
I consider it likely that family violence in the form of coercive and controlling behaviour was perpetrated by Mr Vogel against Ms Arcas during the relationship. Ms Arcas’ evidence of psychological and emotional harm, and intimidating and controlling behaviour, by Mr Vogel was detailed. To an extent, these are matters that Mr Vogel has admitted, even though he maintains the view that these are cultural norms.
I reject the explanation that Mr Vogel’s agreed conduct towards Ms Arcas was simply a cultural norm. Further in my view, the parties acted toward one another in a provocative and antagonistic fashion, which escalated after X was born. I accept that Ms Arcas felt alone, and unsupported, but her support network grew once she made the first report to R Authority and met Mr F.
Further, on one occasion, Mr Vogel dialled 000 during an argument, but stopped, considering it shameful to call the Police. He considers Ms Arcas’ actions in cancelling the lease after separation, and after her report R Authority, as an attempt to make him homeless. Allegations are made about each party acting in the interests of supporting their visa applications.
After domestic violence orders were made against Ms Arcas, Mr Vogel took X to church, for the first time. I accept that Mr Vogel knew of the importance of faith in Ms Arcas’ life, and that she was likely to be at that church, being the only Country G mass in City M. When Mr Vogel arrived, and saw Ms Arcas there, he called the Police. In cross-examination he said he did this in a panic.
I do not accept Mr Vogel’s explanation that he attended church because he wanted X to see a Country G mass. In my view, conduct such as this, which has been engaged in to one degree or another by both of the parties at times, is reflective of the extremely poor relationship between them and the depth of the mistrust that exists, being elements that continue to affect the parental relationship.
These aspects of the matter cause me some concern in making orders that promote the safety of X, and each of the parties. In considering this matter, the court must include consideration of any history of family violence, abuse or neglect involving X, or a person caring for him whether or not the person had parental responsibility, and also any family violence order that applies or has applied to X or a member of his family.
I accept the submission made by the ICL that it is likely that X was exposed to family violence during the relationship. The safety aspects of this matter as they apply to X, and the history of family violence, abuse and neglect that has existed in the home while the parties were together, and what occurred after separation, are significant in the determination of what orders are in X’s best interests. They lead me to the conclusion that a very cautious approach is required to making orders that promote X’s safety.
Any views expressed by the child
This consideration is not applicable. Ms H did not interview X because Mr Vogel refused to facilitate it. He passionately and categorically refused to bring X to the court registry office for an interview and observation, particularly if Ms Arcas may be present.
After Ms H had some further discussion with Mr Vogel, he reluctantly agreed to meet her with X at a café at a later time to enable her to conduct an observation of Mr Vogel together with X. Mr Vogel specifically instructed Ms H to not speak to X about any matters in relation to the parenting dispute or Ms Arcas. In any event, X is very young, and any views he may have expressed would, in all the circumstances, very likely attract very little weight.
X’s developmental, psychological, emotional and cultural needs
X’s needs in these areas are high. X presented to Ms H with extreme behaviours. Records from R Authority indicate that there is extensive information that demonstrates X has been engaging in self-harming behaviours that largely emerged and escalated whilst he was in the sole care of Ms Arcas. This included X head-butting walls and floors, punching himself on the face, scratching himself and putting his fingers down his throat.
This behaviour is indicative of cumulative trauma and cannot be dismissed away as standard toddler tantrums. I do not accept Ms Arcas’ evidence in this regard, or the attempt to minimise or downplay such extreme behaviours in a young child.
Further, X has experienced many adjustments in his care and parenting, including being withheld from Mr Vogel for a period of time, being placed in the care of Mr F for periods of time, being subjected to abuse and neglect, being placed in foster care and being in the sole care of Mr Vogel in recent times.
X has been exposed to parental conflict in his parents’ relationship. Mr Vogel and Ms Arcas have, for a range of reasons, a relationship that is categorised by distain and mistrust of one another. Ms H stated that if X was to experience either one of his parents speaking in a vitriolic or disparaging manner about the other, then it is most likely he will feel anxious and confused, which may in turn destabilise his emotional and psychological equilibrium. It may also place him at risk of cumulative harm given that the alleged trauma that he has already experienced at a young age.
The capacity of each person who has or is proposed to have parental responsibility for X to provide for his developmental, psychological, emotional and cultural needs
The issue of capacity is a significant one in this case. X and Mr Vogel share a very close relationship. On 13 November 2023, X demonstrated to Ms H that he is confident and comfortable in Mr Vogel’s company, and when expressing or asserting himself. From experiencing significant trauma, X is growing to become a healthy, healing, young boy. Ms H observed the strong and affectionate relationship between them, and that X perceives Mr Vogel as his safe base.
Consequently, in my view Mr Vogel has taken a particularly protective, defensive and inward looking approach to what is in X’s best interests, which in many respects is understandable, given the protective fatherly position that he comes from, the poor state of his relationship with Ms Arcas, and his active role in X’s improvement, so that he is now progressing well at school, socialising well and developing rapidly in all developmental areas.
Mr Vogel proudly described X as a hands-on, active and alert child who is gorgeous, really confident, cheeky and funny. He also told Ms H that X requires close supervision and responds well to one-on-one time, reportedly spending much time sitting with him to practice drawing and writing, amongst other things. X is also in good physical health.
X lives with Mr Vogel who works full-time as a health care worker. He works five days a week on a full-time basis with flexible working hours and conditions.
X goes to school at W Early Learning Centre for five days per fortnight. He also remains cared for by Ms C, who he has maintained a relationship with after she provided him with foster care in late 2021 and early 2022.
I accept that Mr Vogel is devoted to X, however the strength of his devotion has resulted in increasingly negative views about Ms Arcas and the benefits she can provide to X. For a range of reasons I have considered, the relationship between the parties is extremely poor, and shows little, if any, prospect of improving.
However, whether Ms Arcas’ views about Mr Vogel not wanting her after X was born are correct or not, or whether Mr Vogel’s views about Ms Arcas’ total lack of remorse are correct or not, the parties share a common bond as X’s parents.
As I have observed, in my opinion it is incumbent upon the parties to establish a functional co-parenting relationship with each other and see that it is in X’s best interests for that to happen. Given the attitudes and dynamic, I consider that it is appropriate for Mr Vogel to engage in professional supports to assist him in understanding and regulating his emotions and assist his communication co-parenting in a way that promotes X’s needs and best interests.
I accept that Mr Vogel is, in the main, providing for X’s developmental, psychological, emotional and cultural needs, however his inability to support Ms Arcas is a concerning limitation. Amongst other things, Mr Vogel reported to Ms H that X never makes any reference to Ms Arcas or asks to see her, saying that he “screams … he changes and gets upset … he becomes like a traumatised animal and hurt himself till he bleeds.”
In cross-examination, Mr Vogel denied that he was exaggerating his concerns as part of his attempts to ensure Ms Arcas never saw X again. Ms H said that she takes what people say to her at face value. However, if the child was behaving in the extreme way that was reported by Mr Vogel, trauma therapy would be recommended.
Mr Vogel has not engaged X in trauma therapy, because he’s worried about the impact it might have on him if he were to recall what took place in late 2021. In light of this, in addition to considering the requirement for X to spend time with Ms Arcas as another form of abuse in itself, Mr Vogel puts in issue Ms Arcas taking responsibility for the harm that was done to X. He says she has taken no blame for what occurred to him, and that she is totally without remorse.
The evidence in chief given by Ms Arcas is that she is deeply ashamed about what happened to X while he was in her care, and that she is very sorry for what she did. At the hearing, Ms Arcas gave extremely emotional evidence that she knows what she did was not right, and that she was sorry for it. She said for the sake of her son, she made a mistake and lost her connection with X. She is seeking to rebuild and asking for a second chance. She says that after six months apart, X saw her on the screen in a video conference call and said mummy. She said he remembered her, and he needs her in his life.
I have balanced consideration of Mr Vogel’s evidence that X seeing Ms Arcas was extremely traumatic for him, against the evidence that X has appeared to react positively to some contact with Ms Arcas since his abuse and neglect. However, that is not to underestimate the likely difficulties of the reintroduction of X to Ms Arcas, and the risks that Ms H identified that X may not react consistently positively to that time, with there being difficulty in predicting his response and ability to cope.
Further, I take into account the impact on Mr Vogel of an order for supervised contact between X and Ms Arcas, particularly in view of his very strongly held views that no contact should take place, and that to do so would retraumatise X and be a further form of child abuse in itself. In In the Marriage of M & J Bieganski,[15] the Full Court held that in assessing whether an unacceptable risk exists, it is not unreasonable for the court to take into account the need of a caregiver or parent to be assured of a child’s protection. As a primary caregiver, anxiety about the child’s exposure to potential harm is likely to adversely impact on the parent’s ability to care for the children.
[15] [1993] FamCA 143; (1993) 16 Fam LR 353.
A particular focus of In the Marriage of M & J Bieganski was on the question of the undesirability of friends or family supervising children during access periods where abuse has been found to have occurred or there is an unacceptable risk of abuse occurring. In this case, there is no evidence of the impact on Mr Vogel’s state of mind or capacity to provide for X’s needs if X is ordered to spend supervised time at a contact centre with Ms Arcas, or indeed time to progress to unsupervised and overnight time in due course. However, I take into account the strength of Mr Vogel’s objections to that occurring, the reasons for those objections, and I accept that it will cause Mr Vogel an additional stress that would not otherwise be there.
Ms H questioned, given Mr Vogel’s presentation to her in interview, whether any re-establishment of a relationship between X and Ms Arcas may precipitate a decline in his mental health, and thereby his parenting capacity. I take this factor into account notwithstanding the absence of direct evidence about it, but upon Mr Vogel’s own account of his concerns for X safety, the depth of mistrust between him and Ms Arcas, as well as his general mistrust of authorities in light of the experiences that he has had with them.
The benefit to X of being able to have a relationship with his parents, and other people who are significant to him, where it is safe to do so
After his abuse and neglect, at times up until July 2022, X spent periods of time, once a fortnight, with Ms Arcas on a supervised basis. Ms Arcas says that X was happy to see her, and that they greatly enjoyed their time together. When X was reunited with Mr Vogel, contact with Ms Arcas ceased because he refused to allow X to spend any time with her, including in the face of consent orders dated 30 November 2022 for X to have FaceTime communication with Ms Arcas and dated 14 February 2023 for X to spend supervised time with Ms Arcas.
No contravention application was filed, and Mr Vogel was candid in his evidence in chief that he realised he was breaching court orders, but said he would rather go to jail than have X go through the traumatic experience of speaking with Ms Arcas on the phone again. However, in cross-examination Mr Vogel agreed that X looked very excited and happy to see Ms Arcas. X was excited to show Ms Arcas a toy on their first call. At a later call, X showed Ms Arcas the trucks he was playing with, and didn’t show any particular distress.
As I have observed, Mr Vogel blames Ms Arcas for the hardships that X has endured. He does not trust Ms Arcas. He holds her responsible for everything that has happened to X.
Anything else that is relevant to X’s particular circumstances
Ms Arcas told Ms H that she attributed blame to Mr Vogel for the circumstances that led to X’s harm and serious neglect. Ms Arcas also puts some weight, by way of explanation for what occurred, on how she says Mr Vogel treated her during their relationship. Ms Arcas made extremely emotional and impassioned pleas of apology during cross-examination. She accepted her conduct, such as sending text messages, insofar as there was an independent record of it. However, Ms Arcas also said that if Mr Vogel had treated her and X well, this would never have happened.
In my view these remarks are part of a broader statement about the circumstances of the parties’ relationship once they moved to Australia, and the family violence she has alleged. In cross-examination, Ms Arcas accepted that the responsibility for what happened to X in late 2021 was hers, not Mr Vogel’s. Ms Arcas also said that she was done with lying. She said in cross-examination that she has had the consequences of lying to a court of justice.
Mr Vogel puts in issue the strength of X’s relationship with Ms Arcas, from the time that he was born. He says that after X was born, Ms Arcas did not establish a strong maternal relationship with X, and that he was left to be X’s primary caregiver, being responsible for meeting his day-to-day needs. In part, this is attributed to Ms Arcas working increasingly long hours, and sometimes being away from home for entire nights at a time.
I am mindful that the records from authorities such as Police, E Hospital and R Authority have not been tested and are susceptible to inherent errors, inaccuracies, and incompleteness. Ms Arcas’ evidence was that the officers at R Authority were fond of Mr Vogel and saw her as a criminal.
However, notwithstanding these views, there is consistency in the observations that are recorded that since R Authority removed X into Mr Vogel’s care, there has been an observation of a significant improvement in his behaviours and general development. I appreciate that through her involvement, Ms C has developed a relationship of some closeness with Mr Vogel.
X is no longer exhibiting the extremely concerning behaviour that he once was, such as putting his fingers down his throat or causing himself to gag or vomit. X’s tantrums are now reported to be age appropriate. His speech development has significantly improved. However. even throughout the early part of R Authority involvement, it was considered appropriate that X spend supervised time with Ms Arcas. This was at the same time that X was living with Ms C, and spending increasing unsupervised, overnight contact with Mr Vogel.
Conclusions
Overwhelmingly, in my opinion over the course of some months in late 2021, Ms Arcas failed to prioritise her obligation to protect X’s physical and emotional care and well-being. Ms Arcas’ conduct constitutes child abuse and neglect, for which she has been sentenced by the Supreme Court.
Despite the seriousness of Ms Arcas’ conduct, I do not find that there is an unacceptable risk of harm to X, should he start spending supervised time with her, together with therapy, with a view to that time advancing to unsupervised time as their relationship develops. This is such a matter where I find past allegations of abuse proven on the balance of probabilities but find there is no unacceptable risk to a child. I make this finding despite my concerns about aspects of Ms Arcas’ evidence, and with some limits on her level of insight. However, I do not find that she has no insight into her wrongdoing whatsoever or is entirely without remorse.
In large measure, the harm that X suffered was circumstantial to the arrangements that were put in place by Ms Arcas and Mr F, that no longer exist. To the extent that any risk exists of Ms Arcas physically harming him in the manner that the evidence suggests it might, by way of slapping or hitting him, at times until her hand hurt, in my view this risk can be safely managed and ameliorated through the imposition of the supervision requirement to the contact that X has with Ms Arcas.
In my assessment there is a greater likelihood that X’s life will be enhanced by having Ms Arcas in it, against the converse risks. I place particular emphasis in Ms H’s evidence of the competing considerations of the risks of harm to X of not having a maternal figure in his life at all.
Whilst X appears to be coping well now, meeting all developmental milestones, and is a happy child who is not showing obvious signs of missing Ms Arcas, the longer term risks to him include not only emotional and self-esteem well-being into the future, but can extend to possibly drug and alcohol abuse, and difficulty with relationships as adults.
The orders I make must look beyond X’s childhood. I am concerned about the seriousness of the potential consequences for X, his emotional and psychological well-being, associated with having no relationship with Ms Arcas, where there is a viable alternative for arrangements to be made for them to spend time together, which in my assessment ameliorates the range of risks to X’s psychological, and to a degree physical safety and well-being.
In weighing these matters up, I also accept the submission that Mr Vogel’s position would have more force if it was put in the context of Ms Arcas seeking orders that X live with her.
X was abused while he was in Mr F’s direct care, not in Ms Arcas’ sole care. However, I am concerned, given the history of the matter and X’s responses to being re-engaged with Ms Arcas, and the length of time since he has seen her, that orders providing for 6 months supervised time to move immediately into unsupervised time, albeit graded and increasing time, create unacceptable levels of risks and uncertainty.
Noting the remarks made of the decided cases about the general undesirability of indefinite periods of supervised time, I will make orders for X and Ms Arcas complete two family therapy sessions, and then for X to spend supervised time with Ms Arcas for a total period of 12 months, moving into the graded progression of unsupervised and overnight time sought by Ms Arcas thereafter.
This initial period of supervised and unsupervised day time is in line with Ms H’s assessment, and the proposal put forward by the ICL. However, I do not consider it appropriate for there to be a mediation between the parties after the completion of 12 months of supervised time, in the absence of any orders providing for X’s parenting arrangements. In my view that lack of detail, together with the mistrust in the co-parenting relationship, create the significant risk of further litigation, which I consider should be avoided.
In my assessment, the orders for time to gradually develop to unsupervised daytime on alternate Saturdays, then overnight time on alternate weekends for one night, then two nights, then four nights during school terms, are responsive to the issues that exist in the matter and are in X’s best interests.
I consider that the time X should spend with Ms Arcas on special occasions, and in school holidays, should move in line with the orders made for him to spend time with her otherwise, so that there are no unintended consequences and to allow for the unknown time it may take for the completion of family therapy sessions and supervised time. Accordingly, I have not made orders by reference to dates. In my view it is in X’s best interests for a sequenced and cautious approach to be taken to him commencing and developing time spent with Ms Arcas.
I also consider that the orders for communication sought by Ms Arcas to be appropriate, however I do not consider it appropriate to make orders for a video call each Wednesday. In my view this requirement will be unduly burdensome for X. I consider his interests are best promoted by focussing on the completion of therapy and spending time with Ms Arcas in a considered way.
The injunctive orders sought are appropriate for X’s welfare, and I will make those orders.
As I have explained, this matter has a particularly emotional history, and in my assessment X, Ms Arcas and Mr Vogel will require the professional supports that are effectively sought by Ms Arcas to assist them in understanding their emotions and moving forward in X’s best interests.
It is unclear whether Ms Arcas is continuing to access mental health support with Ms T. On 10 November 2013, Dr Q recommended that Ms Arcas continue with the ongoing treatment of regular psychological therapy and supportive care. In my view this should recommence if not continue, especially as there may well be increased risks once X and Ms Arcas attended family therapy, and X starts seeing Ms Arcas again.
Accordingly, I will make orders giving effect to Mr Vogel’s engagement with professional health services, Ms Arcas’ engagement, and the family therapy required for Ms Arcas and X.
I certify that the preceding one hundred and seventy (170) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris. Associate:
Dated: 25 November 2024
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