Walstrom & Dupont
[2024] FedCFamC2F 274
•1 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Walstrom & Dupont [2024] FedCFamC2F 274
File number(s): NCC 1612 of 2017 Judgment of: JUDGE BETTS Date of judgment: 1 March 2024 Catchwords: FAMILY LAW – Parenting – two male children aged 11 and 9 – second round of parenting proceedings – where the parties consented to final orders in December 2018 – where the parties had difficulty implementing the final orders – where the parties’ communication was unproductive – where the two boys where being dragged into the conflict by both parents – where the relationship between the father and the children began to break down in part due to disclosures of physical abuse in the father’s care by the children – where the children became resistant to spending time and communicating with the father – where the children are now estranged from the father and fearful of him – where the Court considers there would be an emotional or psychological risk to the children if they were required to spend time with the father – best interests of the children. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth), Part VII
Cases cited: CDJ v VAJ (1998) 197 CLR 172
Isles & Nelissen (2022) FLC 94-092
M & M (1988) FLC 91-979
Division: Division 2 Family Law Number of paragraphs: 183 Date of last submission/s: 3 November 2023 Date of hearing: 14 & 15 August 2023 & 3 November 2023 Place: Newcastle Counsel for the Applicant: Mr Bithrey Solicitors for the Applicant: Conditsis Lawyers Counsel for the Respondent: Mr Vassili Solicitors for the Respondent: Michael Vassili Barristers & Solicitors Counsel for the Independent Children’s Lawyer: Mr Mooney Solicitors for the Independent Children’s Lawyer: Ashby Family Solicitors ORDERS
NCC 1612 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WALSTROM
Applicant
AND: MR DUPONT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
1 MARCH 2024
THE COURT ORDERS THAT:
1.All prior parenting Orders be discharged.
2.The Mother have sole parental responsibility for the children X born in 2012 and Y born in 2014 (“the children”).
3.The Mother shall promptly inform the Father in writing of any major long term decisions that she makes for the children.
4.Whenever an issue relating to the long-term welfare of the children arises, the Mother shall, other than in a genuine emergency, contact the Father in writing and:
(a)Identify the issue;
(b)Invite the Father to respond to any proposal within a stated and reasonable period;
(c)Advise the Father of the decision she has taken.
5.The children live with the Mother.
6.The children spend time and communicate with the Father as determined by the Mother. The Father is at liberty to send letters, cards and gifts to the children and the Mother will pass them on the children if she considers it appropriate to do so. If she considers it inappropriate to do so, she is to advise the Father in writing.
7.The Mother and the Father will notify the other in writing as soon as reasonably practicable of any significant trauma, illness, injury or car accident suffered by the children requiring medical treatment or hospitalisation or other treatment whilst in their respective care and provide details of such illness, injury, medical treatment, or hospitalisation to the other parent.
8.Within twelve (12) hours of the children attending on a professional to receive medical care, inclusive of medical, dental, psychological and other therapeutic treatment, the parent shall inform the other parent of the treating professionals name, the date of treatment, presenting ailment, details of treatment plan and any subsequent medication prescribed.
9.Both parties are permitted to provide a copy of these Orders to the children’s general practitioner, paediatrician, treating medical professionals or other allied health providers, such as counsellors, that the children attend upon from time to time and thereafter the Orders shall act as an authority for the said professionals and or services to liaise directly with both parents and, at that parent’s own expense, provide information, including any reports held by them, as to any diagnosis/treatment of the children.
10.Each parent shall forthwith do all acts and things necessary to authorise any schools (or preschools) attended by each of the children to send directly to the other parent, at the other parent’s expense (for the purpose of this Order a copy of these Orders is sufficient authorisation):
(a)A copy of each child’s school reports, as they become available;
(b)A copy of each child’s school photographs, if requested and paid for by the requesting parent; and
(c)A copy of any notice or newsletter parents would receive from the school as they become available.
11.That unless the Father has the Mother’s written consent to do so, pursuant to section 68B of the Family Law Act1975, an injunction is granted restraining the Father from approaching the children or coming within one-hundred (100) metres of, entering, remaining in or removing the children from a place of residence, employment or education of the children or the Mother, including any extracurricular activities attended by the children or any person in whose care the Mother has placed the children.
12.The Mother is at liberty to provide a copy of this Order to the children’s schools, to any extra-curricular activity provider, or to any other person referred to in Order 11 herein.
NOTATION:
A.For the continuity of medical care, as far as is reasonably practicable, the Mother does not oppose the children attending B Medical Centre, C Street, Suburb D, NSW for all General Practitioner Medical Centre.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
OVERVIEW
These are difficult parenting proceedings involving two (2) boys:
·X born in 2012; and
·Y born in 2014.
The boys are the children of Ms Walstrom (“the Mother”) and Mr Dupont (“the Father”). The parents commenced a relationship in 2007, married in 2013 and finally separated on 9 November 2016.
This is the second round of parenting proceedings concerning the boys. The first round was commenced by the Father in June 2017 and culminated in a final consent order of 4 December 2018. Pursuant to the order, the parents were to have equal shared parental responsibility, the boys were to live with the Mother and spend substantial and significant time with the Father.
The parents had difficulty implementing the orders and, as will be seen, there were various allegations and counter-allegations made by each of the parents concerning the boys. The parents’ communication was unproductive and, if anything, made things worse. All the while the boys found themselves ‘stuck in the middle’ of intractable conflict.
The orders finally broke down in June 2021 when the boys told their treating psychologist that the Father had been hitting them over the head and giving them headaches. This prompted the psychologist to make a mandatory notification to the Department of Communities and Justice (“DCJ”, the NSW child welfare authority) and she also recommended that the Mother withhold the boys. The Mother did so; she also made a complaint to the Police.
On 23 June 2021, when it had become apparent that Police were not going to take any action against the Father, the Mother commenced these proceedings seeking a ‘no time’ order.
Subsequent interim orders for the boys to spend professionally supervised time with the Father have been unsuccessful. There were only three (3) such visits, the last being a ten (10) minute visit on 26 February 2022 – some two (2) years ago.
The boys have become deeply estranged from the Father. They are genuinely afraid of him and adamantly opposed to being forced to see him.
The Mother’s case is that this is a direct result of the Father’s past violent or otherwise inappropriate behaviours towards them. She contends that the Father poses an unacceptable risk of harm to the boys which can only be ameliorated by a ‘no time’ order.
The Father disputes practically all of the allegations made against him. His case is that the events ‘disclosed’ by the boys simply never happened. But he does accept that the boys are genuinely afraid of him for whatever reason. He seeks to resume his relationship with the boys in what he considers to be a gentle fashion. His proposal initially involves limited daytime visits supervised by a family friend, graduating to unsupervised daytime visits and culminating in what is essentially a return to the substantial and significant time arrangements provided for in the consent order.
The Independent Children’s Lawyer (“ICL”) broadly supports the Mother’s position, though would prefer to ‘leave the door open’ by allowing the Mother to determine whether, and if, the Father could see the boys. The ICL does not contend that time with the Father would place the boys at unacceptable risk. Rather, the ICL’s case is that there is something about their lived experience of the Father that the boys do not like, that it is a realistic estrangement and that any order which tries to force the boys to spend time with the Father will simply be too de-stabilising and distressing for them to manage.
THE FINAL HEARING
Though listed for two (2) days, the final hearing ultimately ran for three (3).
Mr Bithrey of counsel appeared for the Mother, Mr Vassili (solicitor advocate) appeared for the Father and Mr Mooney appeared for the ICL.
The Mother relied upon:
·a Case Outline Document filed 11/08/23 (which incorporated her proposed orders);
·her trial affidavit filed 17/7/23; and
·with leave, the affidavit of her partner Mr E filed late on 25/7/23.
The Father relied upon:
·a Case Outline Document filed 11/08/23 (which incorporated his proposed orders);
·his trial affidavit filed 17/7/23;
·the affidavit of the paternal grandmother Ms F filed 17/7/23; and
·with leave, the affidavit of his friend and proposed supervisor Ms G filed 19/7/23;
·some written submissions, including an ‘aide memoire’ in table form setting out various of the Mother’s allegations and complaints about the Father’s care of the boys.
The ICL relied upon a Case Outline Document handed up on the first day of hearing.
Numerous exhibits were tendered, including subpoenaed business records, photographs and a video. Court Child Expert Ms AG (“the CCE”) provided the Court with a Child Impact Report of 10/3/22 (exhibit 1) and a Family Report of 24/5/23 (exhibit 2).
Save for Ms G, all witnesses were required for cross-examination.
The Mother came across as a genuine, though hypervigilant, parent. She simply does not trust the Father and seems to think him capable of anything. Her affidavit comprises a litany of complaints about his parenting of the boys. Reading it, and watching her give evidence, it was quite apparent that since the making of the consent order she has dutifully recorded each and every possible instance of abuse or neglect on the Father’s part. But while she clearly had a ‘blinkered’ attitude towards the Father as a parent, she was fundamentally an honest witness. I was also broadly impressed with the evidence of her partner Mr E.
In general, I was less impressed with the Father’s evidence. Instead of admitting certain allegations, he instead made blanket – and false – denials. These diminished his credit somewhat. I was however impressed with the evidence of the paternal grandmother.
The CCE was carefully cross-examined by each of the parties and I was assisted by her evidence. Though I do not accept the adverse view which she seems to have formed of the Father based on his presentation at the Family Report interview [1] I consider that in the end nothing really turns on this.
HOW WE GOT HERE – A DETAILED CHRONOLOGY OF EVENTS
The parents
The Father was born in 1982. He works on a full-time basis as a transport worker and tradesperson and lives in the Greater Sydney region with his partner Ms H who has chosen not to participate in the proceedings.
The Mother was born in 1989. She works on a full-time basis in an administrative role and lives with Mr E in Region J, about an hour’s drive from the Father’s home.
The relationship:
The relationship chronology is set out in paragraph [2] of these Reasons. During the relationship the Mother was the primary carer for the boys.
The Mother alleges that throughout the relationship the Father perpetrated family violence against her, including physical, verbal, emotional and psychological abuse and intimidation. The Father denies perpetrating family violence against her.
Post-separation:
At separation the boys were aged just four (4) and two (2). They remained living with the Mother. Inferentially the co-parenting arrangements were difficult. The Father admits that he ‘tracked’ the Mother’s mobile phone. She found out and complained to Police who applied for an Apprehended Violence Order (“AVO”) to protect her from the Father. The Father seems to have consented to the AVO without admissions.
In 2017 the Mother re-partnered with Mr E. In June of that year the Father commenced the first round of proceedings.
In 2018 the Mother started taking the children to “K Centre” for counselling. This was arranged through “L Services”, an organisation which supports victims of family violence. The Father was not told and had no input. Around the middle of that year Mr E moved into the Mother’s home.
The Father also re-partnered with a woman named in the material as “Ms N”. In late 2018 they moved in together. At around the same time, the AVO protecting the Mother expired without incident.
The consent orders of 4 December 2018:
Relevantly the consent orders provided, inter alia:
·that the parents would have equal shared parental responsibility [order 2] and live with the Mother [order 4];
·that during school terms the boys would spend time with the Father for four (4) nights per fortnight, being three (3) nights in week 1 from after school Friday to commencement of school Monday and one (1) night in week 2 from after school Tuesday to commencement of school Wednesday. The school holidays were to be shared equally [orders 5 & 6];
·that when with the other parent, each parent could have telephone communication with the boys each Tuesday and Friday between 6pm and 6.30pm [order 12]. The parent who had the boys in their care was also to facilitate them calling the other parent at any other reasonable time that the boys requested [order 13];
·that within twelve (12) hours of the children receiving medical or psychological care while in a parent’s care, that parent was to notify the other parent of the practitioner’s name, the date of the consultation, the presenting ailment, details of any treatment plan and any medication prescribed [order 16];
·that neither parent denigrate the other parent, or the other parent’s partner, family or friends to or in the presence or hearing of the children [order 31];
·that neither parent administer corporal punishment upon the children, with each parent to use their best endeavours to ensure that no other person did so either [order 33];
·that except in an emergency, the parents were to communicate about parenting matters in writing using the ‘2Houses’ App [order 40].
Early 2019 – the unravelling begins:
I accept the Mother’s evidence that in January 2019, Y started using swear words such as “asshole” and “bastard” when things did not go his way. She asked him why he was swearing and he answered with words to the effect of “That’s the way Dad speaks to [Ms N]”. On the weight of the evidence, including other disclosures made by the children about conflict between the Father and Ms N, I accept that Y had witnessed conflict and swearing between the Father and Ms N. [2]
I accept the Mother’s evidence that in February 2019 X told her that “If we get into trouble at [Mr M’s] [the Father’s brother], Dad said we get our pants pulled down.” This is a stand-alone allegation; there is no evidence of any such discipline ever being imposed and I give it no weight.
In early 2019, X was bitten by a dog while in the Mother’s care. The wound required treatment at hospital under general anaesthetic. At handover, the Mother told the Father that the surgeon’s advice was to leave the dressing in place on X’s hand. But when X returned to the Mother’s care the following Monday, the dressing was gone. When she asked X who had removed it, he told her it was the Father and that the Father had taken some photographs of the wound. The Mother promptly took X to see his GP who re-dressed it. The Mother messaged the Father to complain about removing the dressing; he denied that he had removed it.
The ICL contended that in this particular instance, one of the parents was giving deliberately false evidence to the Court. To that end, the ICL called upon the Father to produce any photographs he had taken over that weekend showing the dressings still in place. After a search, the Father was able to produce two (2) undated photographs. [3]
The first photograph clearly depicts X lying in his hospital bed with bandaged hands - inferentially from his time in theatre. [4] As it pre-dates the relevant weekend, the photograph is of no evidentiary value.
The second photograph was clearly taken at a later date; only one hand remains bandaged. The photograph depicts both boys standing with the paternal grandparents in front of the Father’s carport. The paternal grandparents lived some three (3) hours’ drive away from the Father. But apart from special occasions, the paternal grandparents only used to visit the Father’s home during the Easter and September school holidays, and otherwise every two (2) or three (3) months. So it is unlikely that they were visiting the Father on that particular weekend. But even if they were, the paternal grandmother’s affidavit is silent as to that weekend. If she had been personally present that weekend and able to refute the Mother’s allegation, she likely would have said as much. Instead, her affidavit is silent.
The Father had a motive to remove the dressing; he wanted to make further inquiries. He admits that over that weekend he rang a specialist to discuss the dog bite, as well as contacting the DCJ to whom he spoke for some ninety (90) minutes.
I do not believe that the Mother herself removed the dressings so as to then falsely accuse the Father of doing so. She may be hypervigilant, but she is not Machiavellian. I am satisfied that X’s disclosure to the Mother about the Father removing the dressing was accurate; that the Father removed the dressing against medical advice; and that faced with the Mother’s complaint the Father then falsely denied it. Both parents knew the Father’s denial was false.
The following weekend when he was with the Father, X’s dressing was again removed. X told the Mother that the Father had removed it and taken some more photographs. In the witness box the Father conceded that he “may have re-wrapped” the dressing as a result of it moving. X’s disclosure to the Mother was again accurate.
April 2019:
A significant event occurred in April 2019 after the Father collected the boys from school. Mr E was alone inside the Mother’s home. With the boys in the rear of the car, the Father drove past the home. He was driving on the far side of the road, so that the driver’s side of the vehicle was facing the home as he went past.
What happened next is very much in dispute. According to Mr E’s affidavit:
20.…I was walking inside our house when I noticed a [motor vehicle] driving slowly past our house. Recognising it might be [Mr Dupont]’s car, I stopped to see [Mr Dupont] driving the vehicle with the children in the backseat. [Mr Dupont] had his hands off the wheel and was using his left hand to make a gun and point it in the direction of our house. I observed that in his other hand he was holding his mobile phone. The hand holding the phone was also facing our house. I was concerned that [Mr Dupont] may have been attempting to record what he was doing in an attempt to bait me into reacting. I looked at the children and initially thought they were going to wave to me, but they stopped. [Mr Dupont] continued to drive slowly past the house, crossing the unbroken double lines and drove away…
The incident was captured on the security camera [Ms Walstrom] had installed out the front of the house. When [Ms Walstrom] returned home later that day, I showed her the recording and [Ms Walstrom] reported the incident to the police. The police attended our home and viewed the CCTV footage and requested I provide a statement however I refused for fear of retaliation from [Mr Dupont]. The footage is still available should it be requested.
Naturally enough, Mr E told the Mother about this event and she was concerned by it.
Though the Father admitted driving past the home on the day in question, he adamantly denied doing anything untoward. He denied even so much as looking at the home.
I have reviewed the brief CCTV footage of the vehicle going past the home. [5] The driver’s window is down and the Father can be seen looking straight at the home the whole time. He was not watching the road; near the end of the video the vehicle drifts over onto the double white lines. The picture quality is such that it is impossible to see the Father’s left hand or whether he made make a ‘gun’ gesture with it. But at one point the Father can be seen to be holding a dark black object in his right hand which is pointed at the home and which I infer is a mobile phone.
CCTV footage is useful but no means a match for the vision of the human eye. Mr E had a clear view and, to the extent that the CCTV sheds light, it corroborates his version of events. I accept Mr E’s evidence, including that he saw the Father make a ‘gun’ gesture with his left hand. I am satisfied that the Father was attempting to threaten and intimidate Mr E. The Father did so notwithstanding that the boys were both in the car at the time and may have been impacted by it. Once again, the Father was falsely denying what he had done.
A toxic dynamic has emerged:
Notwithstanding the reasonably liberal terms of the consent orders, the Mother never really trusted the Father to keep the boys safe. Her distrust of the Father was reinforced and amplified by his inappropriate behaviour in March and April 2019, and his false denials. The Mother particularly concerned about the Father perpetrating family violence against the boys, or otherwise mistreating them.
To that end, when the boys came back from the Father’s home the Mother got into the habit of asking them how the visits had gone - with a particular emphasis on any problems or concerns the boys might have. She was particularly reactive to any injuries they came home with, seeking their explanations and wanting to satisfy herself that the Father was parenting them appropriately.
The Mother’s questioning of the boys gave them an outlet to express, and thereby reinforce, any fears or concerns they may have had about the Father. Some of those fears and concerns arose from their own lived experience of the Father; some arose as a result of the Mother’s own behaviours, anxieties and cues. Despite the terms of the consent orders (particularly orders 2 & 16), the Mother had also continued taking the boys for psychological counselling without reference to the Father and he continued to have no input into the sessions.
If the boys expressed concerns to the Mother, she would usually follow up by messaging him on ‘2Houses’. Her messages were frequently accusatory or suggested that he had been behaving inappropriately. Constantly finding himself in a defensive posture, the Father was at best not very forthcoming – and at worst dismissive or disparaging. A further complication is that he also had literacy issues and was therefore not as comfortable communicating in writing.
The Father knew the Mother was questioning the boys about him. On occasions the boys told the Father that she had done so. His response was to try to make a joke about it, saying things like:
I have questions. How was your week? How many farts and burps did you do? How did it make you feel?
But I am satisfied that on at least some occasions the Father also questioned the boys seriously in an attempt to defend himself and try to find out whatever it was that they may have spoken to the Mother about.
Overall, the Father’s relationship with the boys was being undermined by his own behaviours, by the behaviours of the Mother and separately by the increasingly high parental conflict from which the boys had no escape.
May 2019:
In May 2019 the Mother was helping Y to blow his nose, when he asked her to be careful in case she made his nose bleed. She asked X what Y was talking about and X responded that: “When we were playing rough with Dad, he punched [Y] in the face making it bleed.” The Mother did not raise the matter with the Father. He denies that any such event occurred.
I consider it possible that an event like that did occur in the course of ‘rough-house’ play. If it occurred, it was not an act of deliberate violence by the Father.
Phone communication with the Father becomes more difficult:
The boys started becoming resistant to speaking to the Father over the telephone. They began putting the calls on speakerphone and the Mother positioned herself so that she could listen in; when the boys said they didn’t want to talk to him she did not encourage them to. During some of the Father’s calls she was talking in the background to the boys, which was unhelpful.
Equally, there were times during the Mother’s calls to the boys when the Father was talking to them in the background. The conflict was worsening, with each parent accusing the other of sabotaging or discouraging the children’s phone calls.[6]
August / September 2019:
On 26 August 2019 Y returned from a weekend with the Father with some bruising to his buttocks. The Mother asked him how it happened and he told her that the Father had grabbed him by the shirt collar and “smacked him real hard”. X agreed, saying the Father had done so after Y bit X.
The Mother photographed the bruise and messaged the Father on ‘2Houses’ to complain about it. Separately, her message complained about him allegedly “bribing the children to talk” to him over the phone by threatening to take away their privileges if they didn’t. The Father responded by denying that he hit Y or that Y had hit X. He accused the Mother of “projecting”, accusing her of being the one who interfered with calls, and “bribing” the children not to talk to him by threatening to take away their privileges if they did. He also suggested that the boys were telling him things about the Mother’s household as well – but that “The difference is how we both handle the information the boys tell us.” His message concluded by observing that further communication between them:
will only promote arguments and I’m not interested in fabricated bullshit. [7]
The Mother believed the Father had hit Y and that he was again lying. In August she made a formal complaint to the DCJ about the Father physically disciplining Y. While noting that the bruise was “faint” and the injury “minor” the DCJ nonetheless screened the complaint in for ‘excessive discipline’ and noted that a crimes report was to be completed for assault to a child under five (5) years of age. [8] No charges were ever laid; the Police did not contact the Father.
In the meantime the boys spent time with the Father again and during that visit he looked at the bruising and spoke about it with them. He messaged the Mother to say that the bruising had happened while the boys were playing outside the house; he said that Y had told him as much. He asked her to stop making allegations against him and “stressing out the boys”. The Mother did not believe him.
Did the Father physically discipline Y, resulting in a bruise? Y’s disclosure to the Mother is certainly plausible and consistent with the Father briefly losing his temper. But it is also plausible that Y told the Mother what she wanted to hear and that the injury was incurred outside as he told the Father. Overall, I am satisfied that there is a real possibility that the Father hit Y but I cannot put it any higher than that.
Having just recently been interrogated about Y’s bruising by both of their parents in quick succession, it is unsurprising that the boys’ phone call with the Father on 30 August was disastrous. They simply did not want to talk to him. Angry, the Father demanded the Mother to “Put [Y] on, put [Y] on or else”. She responded by complaining to Police that the Father was threatening her. In my view, the boys’ reluctance to communicate with the Father was largely driven by the intractable parental conflict.
A few weeks later when there was a Father’s Day breakfast at the boys’ school the Mother refused his request to attend despite the consent orders permitting him to. According to her they had “already made plans for [X] and [Y] to spend Friday morning with other male figures.” She was simply not promoting the Father’s relationship with the boys.
On an undated occasion but probably around this time, Y asked the Father over the speakerphone if he would stop calling. The Father told him he was “a kid and you don’t get to choose.” The Mother was listening in and doing nothing to support Y communicating with him. Frustrated, the Father called out to her: “Are you kidding, you are a joke!”. It was denigration, contrary to the consent order.
Late 2019:
On 4 October 2019 Y attended the Father’s home with what appeared to be friction burns on his knee and foot. Taking a leaf out of the Mother’s book, the Father messaged her to query the burns. When she responded that the burns were not serious and did not require medical attention, he replied with:
These are pretty serious friction burns. Your lack of attention and explanation has been noted.
The Father was not genuinely concerned about the burns. In his mind, he was simply making a point.
On 17 October 2019 the Mother saw X hit Y in the crotch area. She asked him what he was doing. His response was to blame the Father, telling her that “Dad does it to me. Last time Dad did it before school and it still hurt when I was playing.” The Mother accepted what Y said; the Father denied it ever happened. As with Y’s nosebleed, I consider it possible that an event like that did occur in the course of ‘rough-house’ play. If it occurred, it was not an act of deliberate violence by the Father.
The boys continued to say things to the Mother suggestive of them being exposed to conflict between the Father and Ms N. On 21 November 2019, X told the Mother that “Dad was yelling and [Ms N]”. Y then added that “[O] [Ms N’s 13 year old son] told Dad he was going to kick his arse.” The Mother complained about these matters to the DCJ.
On 3 December 2019, following a weekend visit with the Father, X told the Mother that “Dad walked towards [Ms N] yelling at her and pushed her into the wall. He went to his room on his phone leaving [Y] and me in the loungeroom.” Y appeared to be very upset, adding that “I was patting [the Father’s dog]. He was just lying on his back and Dad came over and kicked him.” The next day the Mother made a complaint to the DCJ. [9] The complaint added some extra details not included in the affidavit - namely that the Father had also locked himself in his room and Ms N had left the home. The DCJ screened in the complaint for symptoms of “significant psychological harm” as a result of the boys being exposed to the Father perpetrating family violence against his partner. [10]
The Father denies that any altercations occurred between he and Ms N as described by the boys. But on the weight of the evidence I accept that these events occurred substantially as the boys described to the Mother including the extra details she provided to the DCJ. (The Father and Ms N were to separate soon afterwards.)
On 16 December 2019, X came back from a weekend with a band-aid on his finger. The Mother wanted to know why, removing it to have a look. She saw a deep cut and asked X about it. He told her that “I was on the trampoline at [Mr Q’s] house [the Father’s brother]. Dad was angry and suddenly ripped the hose out of my hand, cutting my finger. It bled through the band-aid and the others [cousins] got paper towel and held it on there for about 20 minutes. When Dad changed the band-aid before school it started to bleed again.”
That evening the Mother messaged the Father on ‘2Houses’ about the matter, telling him that X had said that he had done it in anger. Referencing the Father’s “history of domestic violence”, she sought that he give an explanation.
Later that evening the Mother took X to the P Hospital for medical review. According to the subpoenaed records, they also spoke to a critical care social worker whose notes [11] record that X was worried his Father would get into trouble. Acutely aware of the parental conflict, when asked if he enjoyed going to the Father’s house X demurred. He said “Not really” before becoming fidgety, turning to the Mother and burying his face into her arm. X told the social worker that he got worried when the Father yells. Despite the non-denigration injunction, the Mother told the social worker - in front of X - that X had also witnessed the Father push Ms N. X corroborated this, telling the social worker that the Father and Ms N would fight, usually in the kitchen, and that when this happened he and Y would put on a movie. I accept that this extra ‘detail’ offered up by X is true and reflects a lived experience of two brothers trying to cope with a situation of conflict.
As for the injury itself, I am satisfied the cut was accidental. X was having fun playing with the hose and wetting family members. The Father saw what he was doing, became worried that the paternal grandfather’s hearing aid might become wet – and so he quickly and forcefully ‘yanked’ the hose out of X’s hand. In that instant, the clamp at the end of the hose caught X’s finger and cut it. The Father’s relative – a health care worker – looked at the cut, cleaned it up and put a band-aid on it. She told the Father that because of the nature of the cut, there was no point talking X to hospital. Soon after, X was playing with the hose again and from the Father’s perspective seemed to be having fun.
But while the Father was not being physically abusive or violent to X, I also accept that from X’s perspective the Father pulled the hose really hard, he appeared to be angry and he did not say sorry afterwards. [12] The event did leave X ‘shaken’ to some extent. The Father’s ‘insensitivity’ in not saying sorry, and the Mother’s own reaction to the injury, including taking X to hospital, only underscored for X that the Father was someone to be feared; that he posed a risk of aggression.
The Mother complained to the DCJ about these matters; they took no action. [13] In the witness box she admitted that she was setting out to have her concerns about the Father properly documented. This relived some of her own stress. I accept her explanation that “I didn’t want to carry the weight of these events on my own.”
Boxing Day 2019:
On Boxing Day 2019 the Father was to hand the boys over to the Mother at R Centre. She couldn’t get there, so she sent Mr E and the maternal grandfather in her place. The Father was angry when he saw them, initially refusing to return the boys at all. Though the Father denies it, I am satisfied that in his anger he called Mr E a “fat dog cunt” in front of the boys. Then, when the maternal grandfather said he would call Police, the Father responded by saying “Call the Police then ‘cause over my dead body is that fat dog taking my kids.” In so doing, the Father breached the non-denigration injunction. He also put the children squarely in the middle of the adult issues.
After a short time, the maternal grandfather talked the Father into returning the boys to him. When the Mother later found out about what had transpired, she complained to the Police.
The next changeover was due to occur at R Sports Centre on 28 December. To minimise the risk of conflict, the Mother informed the Father via ‘2Houses’ that handovers were now to occur inside the Centre rather than outside in the carpark as before. [14] Unfortunately, although the boys would have been perfectly safe to walk across the foyer from the Mother to the Father, the Mother would not allow this. Instead she insisted that:
“I will not allow the children to run freely within the foyer of a licensed premises so you will have to collect them in person rather than coax them to run from a distance. Failure to do so will be considered breaching of orders.”
The latter requirement was rather high-handed and put the boys in a difficult position. The last thing they needed was another tense and conflictual handover. The Father objected to the Mother’s conditions, accusing her of “playing games”. He maintained that handover should continue to occur in the car park outside. He also tried to justify his actions on Boxing Day by observing that:
·he refused to hand the boys over to Mr E as he was “a convicted criminal”; and
·moreover, he said that if Mr E was to be the Mother’s nominee for handover then she was obliged to provide him with a written nomination to that effect.
On 28 December the Mother waited inside the Sports Centre, the Father waited outside. After some time the Father relented, angrily coming inside to get the boys. I accept the Mother’s evidence that Y refused to go to him, throwing himself backwards and nearly hitting his head on a table and that the Father put Y over his shoulder and walked away, with X following behind. The Mother later complained to the DCJ about this event, though in truth both parents had contributed to this stressful situation for the boys, and Y in particular.
By the end of 2019 the boys’ psychologist stopped practising and so the Mother began taking the boys to see a new psychologist, Ms S at T Centre. Once again the Father was not consulted, nor did he have any input into sessions. The Mother also attended sessions with the boys on occasions.
January 2020:
On 4 January 2020, the boys returned to the Mother after spending some Christmas holiday time with the Father. As was her habit, the Mother questioned the boys about their time with him. The upshot was that:
(a)X told the Mother that while the Father was asleep, he had jumped off a chest of drawers, hitting his leg on the bedframe;
(b)Y, who had returned with a band-aid on his finger, told the Mother that he had injured himself while trying to cut fruit with a knife at a time when the Father was not supervising him;
(c)Y also told the Mother that he had “cut my foot in the mud and had to go find Dad to help”.
None of the above disclosures are evidence of neglect or inappropriate parenting by the Father. They were not sinister events so much as misadventures. While the Mother complained to the DCJ about allegedly inadequate supervision, they screened it out.
But one matter occurred after the Christmas holidays which does cause the Court real concern. In particular, when Mr E came home from work, Y asked him “Why do you sell drugs?” Y also said that the Father and the Father’s cousin Mr U had told him that Mr E was “a bad person who sells drugs and went to gaol.”
The truth is that as a younger man and before he met the Mother, Mr E had briefly dealt drugs and been to gaol. These are not things he was proud of, nor had he or the Mother discussed it with the boys. Via ‘2Houses’ the Mother complained that the Father had denigrated Mr E. The Father denied it. [15] His denial was false as I am satisfied that he did denigrate Mr E to Y, contrary to the consent orders and once again putting Y in the middle of the parenting dispute. Y’s disclosure to the Mother about the denigration was accurate.
On 13 January 2020 the Mother deposes that Y returned from the Father’s house with a curl at the back of his hair cut off, and when she asked him about it Y told her that the Father had cut it off after disparagingly referring to it as a “rat’s tail”. She again made a complaint to the DCJ. The Father denied cutting his hair but I accept that he did so. Though trivial in the grand scheme of this case, the ‘haircut’ was another example of the Father falsely denying things and thereby eroding whatever little trust the Mother may still have had in him. Moreover, the manner in which the Father had cut Y’s hair also made Y uncomfortable.
In late January 2020 Y told the Mother that the paternal grandmother had smacked him a few times while the Father was at work. The Mother asked X about it and he corroborated. The Mother messaged the Father about it on ‘2Houses’ and separately made another complaint to the DCJ. [16] While I accept that the boys did say these things to the Mother, I reject the disclosures as being unreliable and untrue.
March / April / May 2020:
On 25 March 2020, the boys told the Mother about the Father leaving them in his car while he was at work. She complained about it to the Police and to the DCJ. [17] She suggested that the boys were being left there for two (2) hours at a time, with X having to go looking for the Father by walking through the factory floor surrounded by heavy equipment.
The Mother also emailed the Father’s employer in March, following up with a phone call a day later. She spoke to the Father’s Manager who denied the allegations, telling her that when the boys came to the Father’s workplace they were sitting supervised in the lunch room. She did not believe the Manager, who declined her request to see their CCTV footage. [18]
A government authority were notified (inferentially by the Police, the DCJ or by way of a self-referral from the Father’s employer). They conducted a workplace health and safety investigation in respect of this matter, and various other unrelated matters. Their inspector was advised that the boys regularly came to the Father’s work for about 1 ½ hours at a time, where they would sit in the kitchen which was chained off from the main work area. I accept that this was an accurate summary and that the boys did not have access to the main work area. The boys’ disclosures to the Mother about the Father’s workplace were exaggerated and unreliable. That said, I accept that the boys did feel uncomfortable about the Father leaving them in the kitchen at work, and the Mother’s reaction to their ‘disclosures’ no doubt exacerbated any discomfort or concern they had.
In May 2020, Y returned from the Father’s home with a neat vertical cut between his eyes. She asked him about it and he said he had hit the Father’s coffee table and that the cut had been treated by the Father’s neighbour (a health care worker). The Mother photographed the cut. [19] It was another example of an accidental injury that the Father had chosen not to communicate with the Mother about. Though Y is smiling in the photograph the Mother took, I am satisfied that her reaction to his injury, including photographing it, gave Y a negative message about the Father and his capacity to keep Y safe; it undermined their relationship.
Around the same time, Y had also returned from the Father’s home with ringworm. She complained about it to the DCJ, suggesting that Y was being neglected. [20]
I accept the Mother’s evidence that around this time Y regressed to wetting the bed. Given the substantial conflict between the parents at this time I consider it probable that the conflict contributed to this regression.
Father re-partners with “Ms W” – more disclosures in early 2021:
By late 2020 or early 2021 the Father had re-partnered with a woman named in the material as “Ms W”. In January 2021 X told the Mother that he and Y were not allowed into the Father and Ms W’s bedroom until 10am or 11am - even if an accident happened. X also told her that he was left in charge of the house while the Father and Ms W went out to the shops with Ms W’s young son Z.
Around the same time, the maternal grandmother told the Mother that X had disclosed to her that the Father and Ms W had been fighting about “sexting”. When the Mother asked X about it, he told her that the argument was about “[Ms W] sexting another girl.”
The Mother complained about these matters on ‘2Houses’. The Father responded with a wholesale denial, telling her to “grow up and move on with your life and leave me alone.” [21] On 9 January 2021 the Mother made another complaint to the DCJ; by that time X had disclosed to the Mother that he had been the only child in the house during the “sexting” argument and that during the argument he had stepped outside.
I accept that X’s disclosure about the “sexting” argument was substantially accurate and that, whether the Father intended it or not, the boys felt like:
·they could not interrupt the Father and Ms W before 10am or 11am (probably because on at least one occasion they had done so and been made to feel uncomfortable); and
·they were being left at home unsupervised, or not adequately supervised - again in a way that made the boys uncomfortable.
The ‘wedgie’:
In April 2021 X came back from Easter holidays at the Father’s place complaining about the Father having hurt him by giving him a ‘wedgie’, ie. lifting him up by his underpants. Via ‘2Houses’, the Mother complained about it to the Father. The Mother also made a formal complaint to the DCJ, advising them that while X said the ‘wedgie’ was given playfully, it nonetheless left him feeling sore, “distressed” and not wanting to go back to the Father’s home. (She also made a separate complaint that at some stage the Father had left Y “distraught” after locking him out of the house, inferentially based on something he had told her.)
Via ‘2Houses’ the Father initially denied giving Y a ‘wedgie’ although later on he suggested that X may have gotten an abrasion on his backside from playing in the sand at the beach.
The ‘wedgie’ incident is an example where I have independent evidence: the Mother’s photograph. Rather graphic, it is taken from underneath X with his buttocks pulled apart. It depicts X’s perineum with a neat abrasion in the very ‘crack of his bum’ between his anus and scrotum. [22] Given its location, the abrasion is entirely consistent with the Father giving him a ‘wedgie’ as X disclosed. In all likelihood it was misadventure; the type of ‘rough-house’ play the Father and the boys engaged in. It was not abuse or family violence. But it did hurt X and it did make him uncomfortable about the Father. Moreover, the Mother’s reaction to his injury, including photographing it, gave X a negative message about the Father and his capacity to keep X safe; it undermined their relationship. It is also something that, once again, the Father chose to falsely deny.
As to the allegation that Y had been “distraught” at being locked out of the Father’s house, I accept that Y said this to the Mother and that from Y’s perspective something to that effect had in fact occurred. I do not and cannot find that the Father deliberately locked Y out of the home; it may have been entirely accidental or inadvertent. But it did genuinely upset Y enough that he told the Mother about it.
The April 2021 phone call:
During a phone call with the Mother in April 2021, Y told her that the boys weren’t allowed to call her when they were with the Father. The Mother told them that they could call her whenever they wished to. The Father had been listening in and at that point he intervened, telling her to “stop brainwashing” the boys. When Mr E piped up in the background and started talking to the Mother, the Father told him to “get the fuck out of the conversation”. The Father was angry; he was denigrating both the Mother and Mr E and he was putting Y squarely in the midst of it all. The call was disconnected.
Instead of letting it go, the Mother called back. When she spoke to Y, she asked him why their call had been disconnected. She was thereby keeping Y ‘stuck in the middle’ of the conflict. The Father then spoke to her, again accusing her of brainwashing.
The Mother later rang Police and requested that they undertake a welfare check on the boys, which they did. It was ‘overkill’ on the Mother’s part and again it sent a negative message to the boys about the Father and about their safety and security at his home.
The consent orders finally break down:
On 27 April 2021 the Mother took the boys to see Ms S. During this session they discussed safety exercises and it is significant that by that time X nominated the Father as someone with whom he did not feel safe. X told Ms S that the Father left them at home by themselves. Ms S asked both boys if this was scary and both said “yeah”. Ms S asked what they did then? X told her that “We worked out a way that if we needed we could walk to the Police Station” – which was some twenty (20) to twenty-five (25) minutes’ walk from the Father’s home. Y added that the Father also locked them out, referencing a time when he said both of them were locked outside and Y had tried to get back in but couldn’t.
As with much of the evidence about the boys’ disclosures in this case, there is a prospect of cross-contamination between them. That said, I am satisfied that their ‘plan’ to walk to the nearest Police Station had been discussed between them; it highlighted that the boys were anxious and apprehensive about being left alone or inadequately supervised. In addition to their lived experiences in the Father’s home, I also consider that the boys’ anxiety would also have been fuelled to some extent by the Mother’s own responses, attitudes and behaviours.
Just two (2) nights later on 29 April 2021, the Mother was tucking X into bed when he told her “I wish I wasn’t born.” In my view, this was a cry for help. Both X and Y were hopelessly enmeshed in the parental conflict and both were anxious about the Father and his capacity to safely care for them. To be clear, the Father’s relationship with the boys had been under pressure for years and both parents had contributed to the situation in their own way.
On 6 May 2021, during another session with Ms S, Y again told her that he was being left alone at the Father’s house; he said he hated going there. Ms S was concerned, telling the Mother that she would make a notification to the DCJ.
On 11 May 2021 the Father tried talking to the boys on the phone; they were resistant and the Mother, who was listening, did nothing to help. This time it was the Father’s turn to complain to Police who in turn telephoned the Mother – inferentially to carry out some form of welfare check. After speaking to her, they decided not to do so, which was clearly the right decision.
On Thursday 13 May 2021, the boys were telling the Mother that they did not want to go to the Father’s home on the weekend. She asked them why and X responded that “Dad smacks us in the head and sometimes I get a headache.” Y volunteered that “Granny drags me when I’m naughty” although he later elaborated in the course of further questioning from the Mother, admitting he hadn’t been doing as he was told and that his grandmother was taking him to his room – inferentially for ‘time-out’. The Mother complained about these matters to the DCJ. The weekend visit went ahead.
Around this time, Y reported to the Mother that the Father had left them at home alone while he went out to the shops to get a charger. Also around the same time, X told the Mother that the Father had gotten angry with how the boys were speaking to him over the telephone; he said the Father had threatened to kick them out of the car or to not to pick them up at all.
In mid-2021 X misbehaved at school, hitting several students.
On 26 May 2021, the Mother took the boys for a session with Ms S. Telling Ms S that X had mentioned something to her, the Mother then encouraged both boys to tell Ms S. Y responded by telling Ms S that “Dad hits me over the head and sometimes I get headaches.” According to Ms S’s notes of the session, X nodded, but seemed to want Ms S to redirect. Ms S considered that it was a hard topic for X to talk about but that X appeared to agree with Y that his father hit them over the head on occasions. At the end of the session, Ms S informed the Mother that the disclosure triggered her mandatory reporting obligations. The Mother said she would be applying to vary the consent orders.
The last weekend visit occurred on Friday 28 May 2021 when the Father went to the school to collect the boys. But they were not in their usual spot at the gate; instead they presented to the out-of-school-hours-care centre (“OOSH”). Both were upset and claimed that the Father had not been waiting for them. The OOSH staff contacted the Mother, who approved of the boys staying there at her cost. The Father soon walked up to OOSH to collect them. He asked the boys why they weren’t at the gate and X told him the Mother had told them to go to OOSH. She had not done so and was in fact surprised and upset when OOSH staff telephoned her to let her know the boys were there.
The Mother was worried about the boys’ safety and about their presenting at OOSH and at 6.45pm she rang the boys to check on them. The orders did not specifically provide for the call, but the Father made the boys available. During the call, the Mother repeatedly told Y that “If you’re scared at Dad’s I’ll come get you”. The Father was listening in and interjected, telling her she was frightening Y as well as denigrating the Father. He was correct on both counts but she simply repeated her request that he “Put [Y] on” which he did. She then immediately repeated that “If you’re scared at Dad’s, call me and I’ll come get you.” At that point, mercifully, the Father terminated the call. While I accept that the Mother was anxious, her ongoing statements to Y were destructive.
The Father allowed the boys to call the Mother back later in the evening to say goodnight. During the call she told them “Goodnight boys, if you’re scared at Dad’s call me and I’ll come get you.” At that point the Father again terminated the call.
That night, the Mother rang the DCJ again. She also rang the Police who undertook a welfare check. Once again the boys were ‘in the crosshairs’ of the dispute.
The Father photographed the boys that evening in an endeavour to show that they were both happy at his home. [23] But while they do look happy in that instant, the boys were clearly feeling stressed and anxious – which explains why the Father had allowed them to call their Mother back again that evening to say goodnight.
At the Mother’s request, on 31 May 2021 OOSH emailed her a copy of their incident report from 28 May. [24] The report noted Y’s observable distress at the prospect of leaving with the Father, and the Mother’s distress over the phone when she overheard Y crying in the background. As for X, he told OOSH staff that his reluctance to go was because “[Y] doesn’t want to.”
In June 2021 the Mother took the children for a session with Ms S. At Y’s request, the Mother sat in. Both children disclosed being hit on the head by the Father. Y said “Dad smacks us in the head. It hurts. I don’t know why he does it.” Ms S asked him to show her what the Father did to him but Y refused, saying “it hurts too much” and “I don’t want to hurt you.” When the boys were out of earshot, Ms S again advised the Mother that the disclosures again triggered her mandatory reporting obligations. Ms S also told the Mother that, based on the boys’ disclosures about being hit in the head, the recent incident at OOSH and the boys’ expressed anxieties throughout the sessions, her clinical opinion was that she withhold the boys from the Father based on psychological and physical harm.
The next day, the mother complained to both the Police and the DCJ about the Father allegedly hitting the boys on the head. Arrangements were made for the boys to see an appropriately child-witness-trained Police officer. Two days later she messaged the Father on ‘2Houses’ informing him of the disclosures and advising that she would not be sending the boys to him until the allegations had been investigated. Her message said she would facilitate make-up time if the investigation showed no unacceptable risk of harm. The Father replied the same day, denying he had hit the boys, complaining that she was ruining their long weekend plans and threatening contravention proceedings. [25]
The Father called Police and again the boys were subjected to a welfare check, this time at the Mother’s home.
A flurry of solicitors’ letters followed but the parents were at an impasse. The boys were interviewed and four or five days later Police advised the Mother that there was insufficient evidence to either proceed with a criminal charge or to take out an AVO. Dissatisfied, on 23 June 2021 the Mother commenced these proceedings.
As to whether or not the Father did in fact hit the boys (or either of them) over the head, I will address that later as they were to make later disclosures and the allegations need to be considered holistically and in their full context.
The Father and the boys become estranged:
Although he was not seeing them, the Father still continued to telephone the boys. The calls were difficult and the boys were resistant.
On 31 July 2021 the Mother was driving with the boys when an ad for a music streaming service came on. Y said that the ad was for the Father’s playlist, to which X responded “Don’t talk about him, I hate him.”
On 6 August 2021 the boys told the Father over the phone that they didn’t want to talk to him. The Father told them that he just wanted to say that he loved them, missed them and couldn’t wait to see them.
On 26 August 2021, X told the Mother that if the boys had to go back to the Father’s home, he would save up for a bike with pegs so he could ride home with Y on the pegs.
On 8 September 2021, the Mother was talking to X about his phone calls with the Father when X told her he didn’t want to talk to the Father because “he is coo-coo.” When the boys once again refused to speak to him over the telephone on 22 October 2021, the Father decided to stop calling.
Sometime around then the Father started cohabiting with his current partner, Ms H.
Following an interim hearing, on 12 November 2021 a Senior Judicial Registrar ordered that:
·the Father’s time and communication with the boys pursuant to the consent orders of 4/12/18 be suspended; and in lieu thereof
·the Father was to spend not less than two (2) hours per fortnight with the boys, professionally supervised by ‘AB Service’ or by AC Centre with the parents to share the costs of supervision equally.
‘AB Service’:
On 6 December the Mother took the boys to ‘AB Service’ for their family intake. X told the Case Worker that the Father would hit him on the head and Y said he didn’t want to see the Father at all. The Case Worker noted that, while there, the boys engaged in ‘rough and tumble’ play resulting in Y crying a few times. [26]
On 11 December 2021, the first supervised visit occurred at a public park on the Region J, which incorporated a skate park. By then the boys had not seen the Father for over six (6) months. Before the visit they expressed to the Mother their resistance to going but she managed to get them there. The notes of the visit itself are before the Court. [27] In summary:
·before the visit commenced, X told the Case Worker (“Ms AD”) that “He’ll be nice to us while you’re here but when he’s with us by ourselves later he will be mean to us again and hurt us”;
·when the visit started, the boys were at first ‘stand-offish’, looking over their shoulders and hesitant to engage with the Father. Despite X asking her on three (3) separate occasions if they could leave, Ms AD encouraged the boys to persevere with the visit;
·in the course of the visit there were some positive interactions between the Father and the boys;
·X asked if the Father could bring his dog to the next visit. Y asked if the Father could bring skateboards;
·the Father had brought some lollies for each of the boys as a take-home gift, but at the end of the visit only Y took them while X declined.
Overall, there were glimmers of loving parent/child relationships but it was a rather awkward encounter and one which X clearly found particularly challenging.
On 20 December 2021 the Mother emailed ‘AB Service’ after having read their report from the first visit. [28] She wished to raise a concern, namely that during the visit the Father had signalled the boys by using his thumb and index finger around waist level to make an “OK” sign. The Mother said she was concerned that it may not be innocent:
In reference to the ‘OK’ sign that [Ms AD] interpreted it is in fact a punch game, where if you look at someone making that sign below their hip they get to punch you. I have attached a picture off the internet showing my search regarding this.
I find this gesture troubling given that [Mr Dupont] has recently faced allegations of hitting the children.
The Mother attached an internet search referring to the ‘circle punch game.’ According to that document, the game involves person A making the “OK” sign below their hip and, when person B looks down at it, person A then punches person B in the shoulder. The document noted that the “OK” sign had many longstanding, harmless meanings and that context is important.
I am satisfied that the Father was used the “OK” sign to try to connect with the boys, nothing more and nothing less. In this instance the Mother was jumping at shadows.
The next supervised visit was to occur on 8 January 2022. Unfortunately the children were ill and the visit had to be postponed to 23 January. In the meantime the Mother obtained a referral to a Paediatrician for Y; he was misbehaving and struggling at school, unable to sit still, and having difficulty regulating his emotions. She told the Father about the referral on ‘2Houses’, telling him that they couldn’t have a joint appointment, but the Father could make his own.
That same month, the Father messaged the Mother to ask that all future communication be via their solicitors. She refused, insisting that they continue to use ‘2Houses’ as set out in the consent orders.
On 23 January 2022, the second supervised visit occurred at the same public park as before. Things were more difficult this time around. The Mother struggled to get the boys into the car; when they arrived she then struggled to get them out of the car. When they got to the park, there was a different Case Worker (“Ms AE”). The Mother tried to encourage the boys to go but Y was crying heavily and saying he didn’t want to. When the boys did get out of the car, in an endeavour to ‘loosen them up’ the Mother and the boys kicked a ball around the park. Though encouraged to kick it in the Father’s direction, the boys would not do so. Y said “He always hits me, I don’t want him to hit me.” Ms AE and the Mother’s attempts to reassure Y about this were unsuccessful. At one stage Y relented, saying he would go to the Father and say “hi” but only if the Mother came too. X said he would only go if Y went. After about thirty (30) minutes of kicking the ball and having these discussions, Ms AE cancelled the visit.
The Father was understandably upset. He told Ms AE that “I did one thing, one fucking thing and now she fills their heads with all this shit.” (At the hearing the Father clarified that the “one thing” was him tracking the Mother’s mobile phone after separation which he accepted would have made her anxious.) [29]
The Father was also unhappy about the cost of the visits - $400 for two (2) hours. The visit on 29 January was in fact cancelled due to his non-payment and the 12 February visit did not proceed either. For costs reasons, and by agreement between the Father and ‘AB Service’, the duration of visits were reduced to one (1) hour only. [30]
The next – and final – supervised visit occurred on 26 February 2022 at McDonalds Suburb AF. Again the boys were resistant to going, with X telling the Mother that “he is going to hit us”. She tried to reassure them by saying that the Case Worker (again, Ms AD) would not let this occur. At the commencement of the visit, Ms AD reassured the boys that she would listen to them if they asked to leave. To that end, they came up with a safe word which the boys could use. In the end it was not necessary; the boys would not engage with the Father and the visit was stopped after just ten (10) minutes.
Child Impact Report:
On 10 March 2022 the Child Impact Report interviews were conducted. [31] Y did not want to talk to CCE Ms AG on his own, so she interviewed both boys together, conceding that in the process each boy’s statements could influence the other.
Asked to describe the Father, X said “He hurts us. He smacks us on the back of the head (he then leant forward and used his hand to indicate the lower back of his head) and once he wedgied me so hard that my bottom bled.” X said he feared the Father and the only thing he liked was the Father’s dog who he missed. X also said he preferred not to see the Father than being forced to do so. X expressed to CCE Ms AG, with what she thought to be “genuine sadness”, that X did not feel that the Father could care for them adequately. He said that when they were seeing him they would have to “make our own food and he would scream all night and hit us on the back of the head when we came in from school.”
Shown ‘bear cards’ representing emotions, both boys picked cards showing they were scared with the Father, both boys felt lonely or ignored by him and X felt that the Father was angry. Y said the Father often made him cry.
According to CCE Ms AG, both boys clearly expressed concern about their father’s physical discipline. Both described feeling afraid of the father and disclosed him being physically abusive on many occasions. Very clear in their view about not seeing him, X went so far as to say that when he got his driver’s licence he would get straight into his car and drive back from the Father’s home to the Mother’s home.
CCE Ms AG considered that forcing the boys to see the Father at that stage had the potential to permanently fracture their relationship with him beyond repair.
Supervised visits break down entirely:
The supervised visit on 12 March 2022 was cancelled, again due to non-payment of fees by the Father. The 26 March visit was cancelled for Covid-related reasons. [32] Ultimately, on 21 April 2022 ‘AB Service’ decided to withdraw their service altogether due to the Father’s non-contact and ongoing non-payment of fees. [33]
In August/September 2022 the parents undertook an intake process with AC Centre. They were unwilling to assist, deeming the family not suitable.
Supervised visits were at an end.
Y’s medical diagnoses:
In November 2022, a Paediatrician’s report confirmed that Y had strong features of ADHD; there was a strong possibility he also had a reading and writing disability; it was also noted that he had co-morbid anxiety and previous family trauma. The Mother reported to the Paediatrician that Y was always “on the go” and could frequently become angry and aggressive. [34] Y’s school reported that he was very physical by nature, “looking to bump into people” and at times had problems regulating his emotions and could be physically aggressive to other students. That said, he also “liked to please others” and was “really kind and empathetic if someone was injured.” [35] He was prescribed medication.
In April 2023 Y’s Paediatrician wrote a follow-up report noting Y’s apparent improvements with medication, although the report noted that Y’s visual and auditory memory, and his working memory, were still below average. [36]
Family Report:
The Family Report interviews were conducted on 22 May 2023. Given the boys’ clear wish not to see the Father, and the identified risks, CCE Ms AG did not conduct any father/child observations.
The Family Report noted that the boys’ views had remained consistent. X said that his family was “Mum, [Mr E], [Y] and me” – without even mentioning the Father. When Ms AG asked X about the Father, she observed X’s demeanour to change. He began to fidget more, squeezing and pulling at a sand-filled fidget toy he was playing with. He said he had no good memories of the Father, describing him as “rude and mean. He hurts us and stuff”. He referred to the Father “whacking us on the back of the head”, said that he “hurt me by giving me a wedgie” and that he “locks us out of the house.” He remembered the Father being rude to girlfriends which had made him feel scared. X said he remained scared of the Father. As to the prospect of spending time with the Father in the future, X said he would “ride my bike back to Mum”.
Y’s view was much the same. He considered his family to be “Mum, [Mr E], [X] and [their dog]”. Y said the Father was “a bad Dad” who “slaps us on the back of the head, smacks us sometimes and when we are in trouble he will send us to our room or lock us out of the house.” He said the Father had hit his dog and he did not like it. He said the Father scares him and “I never felt safe with him.” Like X, he had no good memories of the Father. He did not want to go to the Father’s home, did not want to be near him and the thought of seeing the Father made him feel scared and nervous.
This was the state of things when the matter came on for final hearing.
THE LAW
Parenting proceedings fall for determination in accordance with the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Pursuant to s 60CA of the Act, the Court must make parenting orders which are in the “best interests” of the child concerned. In arriving at a “best interests” determination, s 60CC of the Act sets out the mandatory considerations for the Court:
Primary considerations
(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.
(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).
Additional considerations
(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.
Section 68B of the Act empowers the Court to grant injunctions that it considers “appropriate” for the welfare of the child. These may include injunctions to protect the child or the child’s parents.
Section 61B of the Act defines parental responsibility in relation to a child as meaning “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” Pursuant to s 61C of the Act, each of the child’s parents has parental responsibility subject to Court orders. Section 61DA(1) provides that, when making a parenting order in relation to a child, the Court is to apply a presumption that it would be in the best interests of the child for the parents to have equal shared parental responsibility. That presumption does not however apply where the Court has reasonable grounds to believe that a parent has engaged in “family violence” as defined in s 4AB of the Act: see s 61DA(2).
If an order is made for the parents to have equal shared parental responsibility, s 65DAA of the Act is engaged and the Court must then follow the specific statutory pathway set out therein when considering the allocation of a child’s time with each parent.
BEST INTERESTS FINDINGS
In this case the boys are genuinely afraid of the Father and deeply anxious about resuming any form of relationship with him. They have been estranged from him now for over 3 ½ years and resuming a relationship with him will be highly stressful and confronting for them. The fundamental issue in this case is whether it is in their best interests to try to force the issue.
The Mother’s case is that, by reason of the Father’s violent, abusive and otherwise neglectful parenting of the boys, evidenced to a large extent by their own disclosures, is such that forcing the boys to spend time with him – even supervised - would place them at an unacceptable risk of physical or emotional harm. If this is so, then a ‘no time’ order is appropriate: see the High Court’s decision in M & M (1988) FLC 91-979 and the long line of authority which has followed, including the recent decision of the Appellate Division of the FCFCOA in Isles & Nelissen (2022) FLC 94-092.
In Isles & Nelissen (supra), it was observed that like all prospective events, future risks of harm fall into only one (1) of three (3) mutually exclusive categories: possibilities, probabilities or certainties. Courts should, and do, react to risks of harm which may be mere possibilities that are not susceptible to scientific demonstration or proof but are instead postulated from known historical facts and present circumstances. [37]
Insofar as the “historical facts” in this case are concerned, save for the specific allegation of the Father hitting the boys over the head to which I will shortly turn, I have otherwise made such findings of fact as I have been persuaded, on balance, are true. In so doing, I have weighed all of the evidence and been mindful of s 140(1) and s 140 (2) of the Evidence Act 1995 (Cth). Insofar as my findings rest on what the boys have told others, I am mindful of the somewhat generalised nature of some of their statements, that they have come to the Court in a somewhat filtered way (through the Mother), and that the boys may have simply said what was expected of them in what is a very high conflict situation. I am also aware of the potential contamination of each boy’s version/s of events by the other by reason of the manner and circumstances in which the disclosures were made. I am mindful of the methodology used by the boys’ treating psychologist who spoke to the boys together, in the presence of the Mother and whose counselling was entirely one-sided and without any accompanying context from the Father. I am mindful of the methodology of CCE Ms AG (who interviewed the boys together). I am mindful of the fact that the boys were active children, and that bruises and injuries are to be expected on occasions. I am also mindful of the Father’s own attitudes and behaviours over the relevant timeframe, including his dishonest denials of things he had done.
The allegation of the Father hitting the boys over the head is, in my view, the most significant and serious allegation insofar as his parenting of the boys is concerned. Ms AG gave credence to the boys’ statements, noting that they were made at different times, to different people and in different contexts - including the Mother, the treating psychologist, the Case Worker at AB Service and CCE Ms AG herself. In the Family Report, CCE Ms AG opined that if the boys were not reporting actual lived experiences then, given their ages and stages of development, their stories would be expected to have changed over the timeframe of their various disclosures. [38] She considered that if the boys were simply making it up, then they would need to have had a higher level of executive functioning than she thought they would have had – at least at the time of the first disclosure in May 2021. [39] Under cross-examination by Mr Bithrey, CCE Ms AG maintained that opinion.
But there are some potential inconsistencies in what the boys disclosed. Initially it was X who told the Mother that he had been hit; when the Mother took them to the psychologist it seems that Y was the primary complainant. In subsequent discussions there was substantial potential for cross-contamination. In the course of cross-examination by Mr Vassili, CCE Ms AG also conceded that there is “no science” to assessing the reliability of child complaints. But while she accepted that the boys’ statements about being hit in the head were in fairly generic terms, she also said that this was to be expected given their ages and stages of development.
Ultimately, after much consideration, I find myself unable to make a positive finding about the allegations. However, I consider it a real possibility that the Father has hit one or both of the boys over the back of the head. If he did so, it was almost certainly in anger and in a way which frightened or upset them. I reject any suggestion that it was his usual form of discipline; the evidence supports the Father’s use of the ‘time-out’ method. [40]
However, the Court’s paramount consideration is, and must remain, the boys’ best interests going forward. Though factual findings as to past events are relevant and potentially informative as to the future, such findings are and remain subsidiary and subservient to that paramount consideration. It is a future-focussed inquiry.
There are obvious potential advantages to the boys resuming their time with the Father. He is, after all, their other parent, an indispensable part of their own individual identities. He is also a ‘gateway’ to the broader paternal family. In the great majority of parenting cases, it is almost axiomatically in the best interests of children to have a relationship with both parents. I also accept that as a general statement the Mother respects the Court process and would attempt to comply with any orders forcing a resumption of time.
Regrettably however, I am persuaded in this case that forcing the boys to spend time with the Father would place them at unacceptable risk of harm and be contrary to their best interests. The Father poses some physical risks to the children but these could be managed with supervision and/or other restrictions on their interactions. The Court’s primary concern is not physical risks but rather the emotional or psychological risks which in my view are unacceptable and not reasonably capable of being protected against at this stage.
The boys very strongly oppose seeing the Father: s 60CC(3)(a), s 60CC(3)(b). They fear him as a combination of things he has done (including exposing them to family violence, anger and conflict), and things that they honestly believe that he has done, including hitting them over the head or leaving them unattended and having to fend for themselves. Their fears and anxieties have been strongly reinforced by the Mother’s actions and behaviours.
I accept CCE Ms AG’s evidence that the views of the boys should be given real weight. In X’s case, forcing him to spend time with the Father would “invalidate” his experience and fears in respect of the Father. I also accept her evidence that, in relation to Y, a forced arrangement would make him think that he is not being listened to. In relation to both boys, I accept CCE Ms AG’s evidence that a forced arrangement for time could be emotionally de-stabilising for the boys as it may negatively impact their relationships with the Mother – the ‘safe person’ from their perspective. The boys may see the Mother sending them to the Father as a ‘betrayal’ which could ultimately lead to a fracture of their relationship: s 60CC(3)(d). [41]
It would be emotionally and psychologically damaging to try to force the boys to see the Father against their strong views and in the face of their realistic estrangement. Given the long and conflictual co-parenting history in which the boys were previously enmeshed and suffering, I cannot reasonably envisage a scenario where a return to such an outcome would be anything but dreaded by the boys: s 60CC(3)(d). For years the boys found themselves caught up in chronic, traumatic and damaging interactions between their parents; both parents contributed to that cycle; both denigrated the other to the boys and I accept the evidence of CCE Ms AG that both parents have “limited” capacity to in fact facilitate and promote the other parent’s relationship with the boys [s 60CC(3)(f); s 60CC(3)(i)]. The only ‘respite’ for the boys has been the complete cessation of time with the Father. It is a very high price for the boys (and the Father) to pay but regrettably there is no reasonable alternative.
Orders mandating time with the Father would be a recipe for disaster given the attitudes and behaviours of both parents and the boys’ own experiences with the Father, including their strong, deeply-held views and fears. It is highly likely that any forced order for time would break down fairly quickly, either because the boys would put up such resistance to going, and display such distress, as to make the process untenable. I would confidently expect them to make further ‘disclosures’ to the Mother who would in turn feel compelled to act on them. The prospect of further litigation looms very large and any such litigation would be de-stabilising for the boys and adverse to their interests, particularly the need for stability: s 60CC(3)(l). In terms of stability, I am also mindful of Y’s diagnoses and of the fact that X’s school have also observed that he has some identified markers of ADHD though there is no formal diagnosis at this time: s 60CC(3)(g).
I do not otherwise propose to traverse each and every individual s 60CC consideration in some sort of pro forma way. I consider it unnecessary to do so. [42]
CONCLUSION & ORDERS
For these reasons, I intend to make the orders set out at the commencement herein.
It is only logical that the Mother as primary carer have sole parental responsibility, particularly given the state of the communication between the parents. Though not strictly necessary, I would add that the Father’s admitted tracking of the Mother’s mobile phone engages 61DA(2) of the Act in any event. I have included the Mother’s proposed orders that she keep the Father advised of decisions and consult him in that respect.
The Mother’s formal position was that she sought a ‘no time’ order. But in closing submissions Mr Bithrey advised that she would “not be heard against” the ICL’s proposal, namely that:
·the Father spend time with the boys entirely at the discretion of the Mother, including being able to send the boys cards, gifts etc;
·the Court make various machinery and information-type orders set out in the Father’s Amended Response.
As the Mother will retain effective control over the situation, the ICL’s suggestion to ‘leave the door open’ is more flexible than the making of a strict ‘no time’ order. Given the Mother’s position, I will make that order – with some safeguards which I consider to be both necessary and self-explanatory.
The Mother’s only dispute with the ICL’s proposed order concerns the Father’s proposed order that he be able to attend the boys’ school, sporting and social functions. [43] The ICL supports this order, again as part of the policy of ‘leaving the door open’. But in my view the boys need to be free to focus on and enjoy their school, sporting and social activities without having to worry about the Father and any associated family law issues. Given the current co-parenting relationship, the boys’ expressed fears of the Father and their past exposure to the parental conflict, it is ‘appropriate’ for the purposes of s 68B to make the Mother’s proposed restraining order. I will however leave open the option for the Mother to give her consent to waiving this restraint at a future time if she considers it appropriate.
Ultimately, the orders are an amalgam of the Mother’s proposal and, to a lesser extent, the Father’s proposal. They reflect the best outcome that can be achieved in this difficult and in some ways rather tragic case.
I certify that the preceding one hundred and eighty-three (183) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 1 March 2024
[1] Exhibit 2, paragraph 26
[2] I also accept that Y could have heard other persons use swear words. See for instance paragraph 55 of the Family Report (exhibit 2) where Y specifically referred to Mr E swearing.
[3] Exhibit 36
[4] Where a drip was inserted for anaesthetic and/or IV fluids
[5] Exhibit 8
[6] See for instance the messages contained in exhibit 32
[7] Exhibit 14
[8] Exhibit 23
[9] Exhibit 5
[10] Exhibit 23
[11] Exhibit 20
[12] In the witness box the Father conceded that X may have seen things that way.
[13] Exhibit 3
[14] Exhibit 15
[15] Exhibit 30
[16] Exhibit 23
[17] Exhibit 23
[18] Exhibit 23
[19] Exhibit 31
[20] Exhibits 23 & 25
[21] Exhibit 16
[22] Exhibit 6
[23] Exhibit 35
[24] Exhibit 29
[25] Exhibit 13
[26] Exhibit 21
[27] Exhibit 27
[28] Exhibit 28
[29] Exhibit 22
[30] Exhibit 9
[31] Exhibit 1
[32] Exhibit 10
[33] Exhibit 11
[34] Exhibit 37
[35] Exhibit 39
[36] Exhibit 38
[37] See paragraph 7 of the joint judgment of Alstergren CJ, McClelland DCJ, Aldridge, Austin & Tree JJ reported at 81,442. Their Honours specifically cited CDJ v VAJ (1998) 197 CLR 172.
[38] Paragraph 72
[39] Paragraph 73
[40] The Father undertook the ‘1-2-3 Magic’ Course in 2018 (which promotes the time-out method); when X spoke to the hospital social worker about the ‘hose’ incident in December 2019 he said that he was normally disciplined by being sent to his room for time-out (exhibit 20).
[41] Paragraph 83
[42] I am aware for instance that the Father identifies as Aboriginal [s 60CC(3)(h)] and that the Mother apparently disputes this. I am aware of the evidence about the Father’s payment of child support [s 60CC(3)(ca)].
[43] Amended Response, proposed order 21