Wasley & Wasley
[2024] FedCFamC2F 765
•18 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wasley & Wasley [2024] FedCFamC2F 765
File number(s): PAC 4345 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 18 June 2024 Catchwords: FAMILY LAW – PARENTING – Rice & Asplund – interim orders – whether there has been a significant change in circumstances – orders made Legislation: Evidence Act 1995 (Cth)
Family Law Act1975 (Cth)
Cases cited: Cao & Cao (2018) FLC 93-880
Eaby & Speelman (2015) FLC 93
Fitzwater v Fitzwater [2019] FamCAFC 251
Franklyn & Franklyn [2019] FamCAFC 256
Isles & Nelissen [2022] FedCFamC1A 97
Keane & Keane (2021) 62 Fam LR 190
Kozma & Bielen [2022] FedCFamC2F 1250
M v M (1988) 166 CLR 69
Marvel & Marvel (2010) 43 Fam LR 348
Momcilovic v The Queen (2011) 245 CLR 1
Rice & Asplund (1979) FLC 90
Salah & Salah (2016) FLC 93
Spencer & Squire(No 3) [2018] FCCA 2362
Division: Division 2 Family Law Number of paragraphs: 68 Date of hearing: 15 May 2024 Place: Parramatta Counsel for the Applicant: Mr Weightman Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Mr Macarounas Solicitor for the Respondent: Rafton Family Lawyers Counsel for the Independent Children's Lawyer: Ms Webb Solicitor for the Independent Children's Lawyer: Chidiac Legal Pty Ltd ORDERS
PAC 4345 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WASLEY
Applicant
AND: MS WASLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
18 JUNE 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the Father on 27 March 2024 is dismissed.
2.The ICL forthwith provide to the father’s treating psychologist and to the proposed family therapist Mr B a copy of the Single Expert Report of Ms C, psychologist, dated 3 July 2023.
THE COURT NOTES THAT:
A.These parenting proceedings have been listed for final hearing on 2 December 2024, estimate five days.
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 NEWBRUN:
INTRODUCTION
These are interim parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concerning W born in 2012 (aged 11 years old); X born in 2014 (aged 10 years old); Y born in 2016 (aged 7 years old); and Z born in 2018 (aged 6 years old).
The parties separated in or about July 2021 and these interim proceedings were initiated on 27 March 2024 by the father.
As of 5 August 2022, the children have remained in the mother’s care and the address of their residence has not been disclosed to the father.
Interim orders were made by the Court on 28 October 2022 allowing for the father to spend time with the three youngest children on a supervised basis for not less than two (2) hours each week at a supervision agency.
On 21 September 2023, orders were made for supervised time to increase to three (3) hours per week and to occur at various locations. W could attend these visits if she expressed a wish to spend time with the father.
The primary question for the Court is whether the father’s time with the children should progress to unsupervised time, which is a significant matter in these proceedings having regard to the Court’s previous interim parenting orders providing for supervised time, in the context of allegations having been made against the father of, inter alia, aggressive behaviour towards the children and associated fear of the children. Accordingly, prior to considering this question, the Court should probably consider the principles in Rice & Asplund (1979) FLC 90 (“Rice & Asplund”), in particular, whether a change of circumstances has been demonstrated sufficient to justify embarking on a reconsideration of the previous interim orders: see Harper J in Spencer & Squire(No 3) [2018] FCCA 2362.
Rice & Asplund consideration
The father submits that three matters in particular which have occurred since the past interim parenting Orders of the Court of 28 October 2022 and 21 September 2023 represent a significant change in circumstances sufficient to justify the Court determining the substance of the father’s Application in a Proceeding filed 27 March 2024. Those three matters are:
(a)the withdrawal by the state DPP of criminal charges brought against the father relating to alleged assaults upon the children W and Y, and their dismissal by the Local Court. Further, an ADVO application naming the father as defendant with the protected person named as W dated mid-2022, and the further application for ADVO of late 2022 naming X, Y and Z as protected persons were each dismissed along with all the interim orders;
(b)since the Single Expert Report of psychologist Ms C dated 3 July 2023, the three youngest children have had about 40 further positive supervised visits with the father;
(c)the father has continued to date to attend counselling with his treating psychologist Mr D since the Court’s initial interim parenting orders of 28 October 2022.
The mother submits that there has been no significant change in circumstances and the Court refers to her oral submissions made at the interim hearing.
The Court refers to the above Single Expert Report dated 3 July 2023. The Court acknowledges that this Report remains untested (through, for example, cross-examination) at this interim stage.
At paragraph 161(b) the Single Expert stated, inter alia, that the children would experience a separation from their mother as highly distressing. She stated that all four children indicated a wish for ongoing supervised time with their father, and a transition away from this, without appropriate therapeutic support, would likely cause significant distress and create ruptures in their relationships with both the mother and father.
Whilst at paragraph 161(f) the Single Expert, discussing family violence allegations, stated that she must place some weight on the assessment by the DPP that there is strong enough evidence to lay charges against the father, she had stated that all four children reported to her that the father was aggressive and threatening to them. The Single Expert had gone on to state that her impression was that the children have experienced the father as at the very least threatening and at the worst of having perpetrated physical abuse against them. She considered that coaching of the children by the mother to form a view about the father was not a likely explanation for the children’s views against the father. A short time later, the Single Expert stated that the mother appeared to be acting appropriately protectively for the children in restricting their time with the father “who at the least they have experienced as aggressive.”
The Single Expert went on to make recommendations, inter alia, that the children’s supervised time with the father should continue until “the therapeutic process below has occurred, at which point, options for progression should be considered.” The Single Expert went on to describe the therapeutic process which, inter alia, relied on joint work between the father’s treating psychologist and the children’s treating counsellor, Ms E. She went on to describe an alternative to this therapeutic process with the family potentially engaging with The F Centre, which could offer an intervention for the parties and the children as well as offering therapeutic contact.
Consistent with the above views and recommendations of the Single Expert, the parties had entered into interim consent parenting orders on 21 September 2023 providing, inter alia, for the continuation of the children’s supervised time with the father (with the consent orders providing for additional venues at which the supervised time could occur), and importantly, through in particular interim Orders 5 to 11, the parties were ordered to engage with the father’s psychologist and the children’s counsellor “in relation to engaging in family therapy between the father and the children as recommended by the court expert”.
The parties have recently engaged in an intake process with the Single Expert’s recommended alternate family therapist, Mr B, with family therapy yet to begin in earnest.
Whilst it is apparent from the extensive supervision reports before the Court at this interim hearing that the children’s supervised time with the father has usually been positive, there is a significant suggestion, on the material before the Court, that at least the three youngest children still wish to spend time with the father in the supervised setting; that was the view of the Single Expert, as described above, with the Court observing that the mother alleges in her affidavit filed 23 April 2024 that the children “have repeatedly expressed their enjoyment of spending time with Ms G the supervisor and had stated that they will only attend supervised visits if Ms G is present.”
As to the father’s submission that relevant criminal charges against the father have been withdrawn and dismissed, nevertheless the Single Expert had stated, again, that all four children indicated a wish for ongoing supervised time with their father, and a transition away from this, without appropriate therapeutic support, would likely cause significant distress and create ruptures in their relationships with both the mother and father. The Single Expert had stated, again, that her impression was that the children have experienced the father at the very least as threatening and/or aggressive.
Whilst the father has continued to engage with his treating psychologist, the Single Expert ’s recommended family therapy has not yet occurred, and it is not clear that the treating psychologist has reviewed the report of the Single Expert and identified and understood the way the children have experienced the father and developed a plan for repairing their relationship with the father (see paragraph 162(e) of the Single Expert Report).
Accordingly, in the view of the Court, the father has not demonstrated a significant change in circumstances since the interim parenting orders were made and the threshold requirement in Rice & Asplund has probably not been met. On this basis the father’s Application in a Proceeding filed 27 March 2024 should be dismissed. In case the Court is incorrect in this view, the Court will now proceed to determine the father’s Application in a Proceeding on the assumption that the above threshold requirement has been met.
PROPOSALS
The father seeks orders as set out in his Application in a Proceeding filed 27 March 2024, inter alia:
3.That the Father spend time with the Children in each week commencing from the date of the making of these Orders until the date 6 weeks following the date of the making of these Orders each Sunday 9am to 5pm.
4. That the Father spend time with the Children in each week commencing from the date 6th week and 1 day following the date of the making of these Orders until the date 12 weeks from the making of these Orders in a two weekly cycle as follows:
a. In Week 1 from 9am to 5pm on Saturday;
b. In Week 2 from 9am to 5pm on Sunday.
5. That the Father spend time with the Children in each week commencing from the date which falls 12 weeks and 1 day following the date of the making of these Orders until the date that falls 18 weeks from the date of these Orders in a two weekly cycle as follows:
a. In Week 1, from 10am on Saturday until 5pm on Sunday;
b. In Week 2, from 9am to 5pm on Sunday.
6.That the Father spend time with the Children in each alternate week commencing from the date 18 weeks and 1 day from the making of these Orders and following from the conclusion of school (or 4:00pm in the event the Children or any of them are not in attendance at school on that day) until 5pm on Sunday.
7. That the Father spend time with the Children in each alternate week commencing from the date 24 weeks and 1 day from the making of these Orders and following from the conclusion of school (or 4:00pm in the event the Children or any of them are not in attendance at school on that day) on Friday until before school (or 9am in the event the Children or any of them are not in attendance at school on that day) on the following Monday.
8. That commencing from the conclusion of Term 2 in 2024, the Father's time with the Children pursuant to these Orders be suspended during the school holiday periods and the Children spend time with the Father:
8.1 during each school holiday period commencing at the end of Terms 1, 2 and 3, for the first half of each holiday period commencing in 2024 and each alternate year thereafter, and the second half of the school holiday period for each school holiday period commencing in 2025 and each alternate year thereafter;
8.2 During each school holiday period commencing at the end of Term 4:
8.2.1in 2024 and each alternate year thereafter, for the first, third and fifth weeks of the school holiday period with changeover of the children to occur at 9:00am on each Saturday and
8.2.2in 2025 and each alternate year thereafter, for weeks 2, 4 and 6 with changeover to occur on the same basis as referred to above on order 8.2.1.
9. That in addition to the time above the Children spend the following additional time with the Father (and the Mother's time with the children during these periods be suspended):
9.1 In the event that the Children are not otherwise spending time with the Father pursuant to these Orders from 5pm on the Saturday prior to Father's Day until 5pm on Father's Day;
9.2 In the event that the Children are not otherwise spending time with the Father pursuant to these Orders from 9am to 5pm on 24 December.
The mother seeks orders as set out in her Response filed 23 April 2024, inter alia:
2. That the Application in a Proceeding filed 27 March 2024 be dismissed.
3. That the Orders made 28 October 2022 save for Order 2(a) and (b) and Orders made on 21 September 2023 be confirmed and continue.
The Independent Children’s Lawyer (the “ICL”) submitted in her Case Outline:
1. In respect of the children spending time with the respondent father, the ICL’s preliminary position is that the children should continue to spend supervised time with the respondent father in accordance with the Orders dated 21st September 2023, and, the therapeutic process referred to in the Family Report should commence at the earliest available date.
MATERIAL RELIED UPON
The father relied upon:
(a)Application in a Proceeding filed 27 March 2024;
(b)Affidavit of Mr Wasley filed 27 March 2024;
(c)Affidavit of Mr D filed 13 May 2024;
(d)Single Expert Report of Ms C dated 3 July 2023;
(e)Tender Bundle; and
(f)Case Outline filed 13 May 2024.
The mother relied upon:
(a)Response to Application in a Proceedings dated 23 April 2024;
(b)Affidavit of Ms Wasley filed 23 April 2024;
(c)Single Expert Report of Ms C dated 3 July 2023;
(d)Tender Bundle filed 13 May 2024; and
(e)Case Outline filed 14 May 2024.
The ICL relied upon:
(a)Single Expert Report of Ms C dated 3 July 2023; and
(b)Case Outline filed 14 May 2024.
Exhibit A contained three (3) CDT test results of the father.
EVIDENCE
In determining this case, the Court has had regard to the material relied upon by the parties and referred to above, Exhibit A, and the parties’ submissions.
The Court does not propose to address every submission made at the interim hearing however in a reaching a determination on the issues the Court has considered all submissions.
RELEVANT LEGAL PRINCIPLES
An interim hearing is a curtailed hearing which proceeds on the documents filed by each party and tendered into evidence. That evidence is yet to be tested. There is no cross-examination of parties or witnesses about what they allege in their affidavits, and so where facts are in dispute the Court cannot make conclusive findings about those matters. As the Full Court observed in Franklyn & Franklyn [2019] FamCAFC 256 at [73] (“Franklyn & Franklyn”):
In interlocutory hearings, to the extent it is possible, judges are enjoined to make decisions about interim orders based on agreed facts, less contentious evidence, and inferences which fairly arise (citation omitted), but decisions must still be made despite contentious evidence. Judges are obliged to act on the strength of the evidence presented and, if it is relatively weak, are entitled to treat it so. Contrary to the inherent premise of (one parties) submissions... judges are not required to treat all untested evidence as bearing the same weight.
Orders in respect of children are regulated by Part VII of the Family Law Act1975 (Cth) (“the Act”). A “parenting order” is defined at section 64B of the Act. The Court may make such parenting order as it considers proper.[1]
[1] Subsection 65D(1). And within the context of the objects of the legislation namely to ensure that the best interests of a child are met, including by ensuring their safety and to give effect to the 1989 Convention on the Rights of the Child and the fifty-four articles set out therein.
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration.[2]
[2] Sections 60CA and 65AA.
The Act specifies the non-hierarchical criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests: s 60CC(2). The matters to be considered include:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views[3] expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
[3] By virtue of section 60CE, nothing in Part VII permits the court or any person to require the child to express his or her views in relation to any matter.
In contemplating the aforesaid matters, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that current or has previously applied to a child, or a member of the child’s family.[4]
[4] Subsection 60CC(2A).
Section 60CG of the Act further requires a Court when considering what parenting Order to make to ensure that whatever Order is made, it does not expose a person to an unacceptable risk of family violence and is consistent with any family violence Order.
Whilst the evidence of the Single Expert, Ms C is untested, it is incumbent upon this Court to identify why the recommendations of the relevant expert should be departed from if that course is to be followed.
The evidence of the Single Expert will be addressed relevant to the considerations set out in subsection 60CC(2) and (2A).
THE ASSESSMENT OF THE CHILD’S BEST INTERESTS
The Safest Arrangement
Pursuant to subsection 60CC(2)(a) the Court must have regard to the arrangement which would promote the “safety” of a child and those who have care of the child.[5] “Safety” is not defined in the Act. It is often said that words in a statutory context are to be given their ordinary or natural meaning.[6] The Oxford English Dictionary defines the noun “safety” as “[t]he state of being protected from or guarded against hurt or injury; freedom from danger”.[7]
[5] Whether or not a person has parental responsibility for the child.
[6] Momcilovic v The Queen (2011) 245 CLR 1 at [56].
[7] Definition of `safety, n.’. In M.Proffitt (Ed.), Oxford English Dictionary. Oxford University Press. >
The Court is drawn towards the view that “safety” of a child and its carer means, in this context, protecting that child and carer against hurt or injury or danger, whether physical or psychological, arising from historic or ongoing acts or behaviours. It includes protection from fear. It is not the complete elimination of prospective hurt, injury, or danger, but rather making such order as affords the child and its carer the most optimal protection from these harms or potential harms.
In contemplating the child’s safety, or by natural implication any risk of an unacceptable nature to that safety posed by a proposal, the court is mandated to consider any history of family violence, abuse or neglect involving the child or a person caring for the child, together with any family violence order previously or currently in place.
The assessment of risk, or the existence of indicators of potential harm, is an evidence-based conclusion referable to the statutory framework and is not discretionary.[8] The finding about whether an unacceptable risk to safety exists, based on known facts and circumstances, is either open on the evidence or it is not.[9]
[8] Isles & Nelissen [2022] FedCFamC1A 97 at [84].
[9] It is not always necessary to make a positive finding that past conduct occurred when assessing the future risk in a particular case. If a positive finding of past conduct is to be undertaken, there must be a proper evidentiary basis for any such finding which meets the standard in section 140(2) of the Evidence Act 1995 (Cth).
The central task of the Court is to assess the risk of harm posed to the child and to determine what orders should be made to ameliorate that risk. Intrinsic to that process is the need to assess the strength of the evidence from which it is said the risk should be inferred.[10] Inconsistencies and anomalies can reduce the weight given to evidence.[11]
[10] Cao & Cao (2018) FLC 93-880 at [46].
[11] Ibid at [56].
Serious allegations cannot be ignored at interlocutory events simply because they have been put in issue and are lacking in corroboration.[12] Where facts are in dispute, findings cannot ordinarily be made at an interim hearing. As noted by the Full Court in Franklyn & Franklyn at [72]:
remaining astute to potential risk is not the same thing as assuming the truth of and reacting impulsively to everything [a party alleges] without regard for other evidence and the wider context.
[12] Marvel & Marvel (2010) 43 Fam LR 348 at [122] and [123]; Salah & Salah (2016) FLC 93-713 at [33]-[45]; Eaby & Speelman (2015) FLC 93-654 at [18]-[19].
The Court’s function is discharged by examining the evidence carefully to determine whether it establishes an unacceptable risk of harm.[13] Some risk arising to a child’s safety may be capable of amelioration by further order of the Court.[14] A risk of some occurrence may be tolerable, but an unacceptably high risk of the same occurrence is not.[15]
[13] The test embraced by the High Court of Australia in M v M [1988] HCA 68; (1988) 166 CLR 69 at [25] expressed as a means of balancing, out of an effort to prioritise a child’s interests, the risk of detriment to the child of abuse and the possibility of benefit to the child from parental access.
[14] Keane & Keane [2021] FamCAFC 1 (2021) 62 FamLR 190 at [84]; Kozma & Bielen [2022] FedCFamC2F 1003
[15] Fitzwater v Fitzwater [2019] FamCAFC 251 per Austin J at [148]-[149] as endorsed by the Full Court in Isles & Nelissen [2022] FedCFamC1A 97; Cao & Cao (2018) FLC 93-880 at [36].
The Single Expert had interviewed the family in May 2023. She had phone calls with other persons, including treating health professionals, in June 2023.
The Single Expert stated, in relation to fear of the children towards the father:
72. Records from [Ms E], Trauma Counsellor, indicate that she has been treating [X], [Y] and [Z] under a Victims Services referral. She provided a letter dated 12/12/2022 in relation to ongoing fear the children have, information from which was reported to both police and DCJ, as detailed above. [X] attended ten sessions with [Ms E], from [late] 2022 to [early] 2023 (the subpoena was returned by [Ms E] on 3/04/2023). [X] reported to [Ms E] that his father used to hit him, said nasty things, and that he “picked on [W] more than the others”. [X] reported being fearful of his father. [X] also spoke about missing going to the park with his father. As sessions progressed, [X]’s anxiety about spending time with his father seemed to reduce. [Y] attended [12] sessions between [late] 2022 and [early] 2023. [Y] similarly reported being afraid of her father and also that [W] was “hit more and yelled at more by dad”. [Y] described her father throwing her against a wall and around the house. She spoke about him hiding his anger and pretending to be nice at visits. [Z] attended eight sessions between [late] 2022 and [early] 2023. Z said her father “smacked and kicked” her and that she did not want to see him.
The Single Expert stated:
161.b) … The children would experience a separation from their mother as highly distressing. All four children indicated a wish for ongoing supervised time with their father, and a transition away from this, without appropriate therapeutic support, would likely cause significant distress and create ruptures in their relationships with both their mother and father. The current situation of the three youngest children having time with their father, but not [W], is likely to be problematic in terms of the sibling relationship if it continues for an extended period of time.
The Single Expert also stated:
161.f) … [W] has disclosed physical abuse by her father, as has [Y], and these disclosures have resulted in [Mr Wasley] facing charges. While I was not provided with transcripts of police interviews that led to these charges being laid, I must place some weight on the assessment by the DPP that there is strong enough evidence to lay charges. All four children reported to me that their father was aggressive and threatening to them. While they all disclosed yelling and smacking by both parents, their overall accounts were consistent in that this conduct by their father was different from their mother’s.
…
Regardless, my impression is that the children have experienced their father as at the very least threatening and at the worst as having perpetrated physical abuse against them. I have considered the hypothesis that [Ms Wasley] has coached the children (either deliberately or unwittingly) to form their view about their father. While possible, this is not a likely explanation to my mind for several reasons: (a) the children’s accounts have been consistent in a range of settings (school, counselling, police, with myself); (b) the children’s accounts contain consistencies but not uniformities (e.g. through identical language); and (c) the children all seem to demonstrate a high degree of confusion and emotional distress about the relationship with their father. It is my view that if the children had been coached, they would be more likely to adopt a more fixed negative position about their father.
…
Furthermore, I note that she [the mother] appears to be acting appropriately protectively for the children in restricting their time with the father who at the least they have experienced as aggressive.
The mother alleges in her affidavit filed 23 April 2024, in relation to the children, that they have repeatedly expressed their enjoyment of spending time with Ms G the supervisor and had stated that they will only attend supervised visits if Ms G is present. The supervision reports before the Court do not clearly indicate a desire on the part of the children or any one of them that unsupervised visits with the father presently commence.
On the material before the Court, there is a significant suggestion that the children continue to desire supervised time with the father by reason of having previously experienced the father as aggressive and threatening to them; this issue pertaining to the children is of concern to the Court. In this context, the Court has taken into account their representations to their counsellor Ms E and to the Single Expert. In the view of the Court, the withdrawal and dismissal of criminal charges against the father and previous ADVO applications against the father for the protection of the children does not remove the Court’s above concern in this regard.
The Court takes into account the evidence of the Single Expert in this context. In particular the Court takes into account, and has a concern with, the evidence of the Single Expert that the children would experience a separation from the mother as highly distressing, and that all four children “indicated a wish for ongoing supervised time with their father, and a transition away from this, without appropriate therapeutic support, would likely cause significant distress and create ruptures in their relationships with both their mother and father.”
The Court regards this safety issue for the children as particularly important under s 60CC for the purposes of this interim hearing.
On the material before the Court, including the report of the father’s treating psychologist, and the CDT reports in Exhibit A, the Court has no significant concern in relation to the father’s alcohol consumption or the father’s risk of suicide.
PARENTAL CAPACITY
The capacity of a parent to ensure the safety of a child, is further a consideration under subsection 60CC(2)(d) of the Act, requiring as it does consideration of the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional, and cultural needs.
In considering the parental capacity of the parties to provide for the needs of the children, including physical, emotional, and intellectual needs the Single Expert stated:
161.c) … [Mr Wasley] likely has the capacity to meet the children’s needs, although this seems undermined by the children’s experience of him as aggressive, angry, and threatening. He lacks insight into the children’s experiences of him this way, which suggests that he has not been able to (a) identify the children’s needs and subsequently (b) meet them. While he spoke appropriately about the children, his comments were somewhat superficial, suggesting to me that he was the less active parent when he and [Ms Wasley] resided together.
If [Mr Wasley]’s conduct towards the children did in fact meet the threshold for physical and emotional abuse, then he has not shown capacity to prioritise the children’s physical and emotional needs. Further, if his conduct towards [Ms Wasley] constituted domestic abuse as she alleges, then this also demonstrates a failure on his part to recognise and meet the children’s emotional needs.
The Single Expert further stated:
161.j) My impression of [Mr Wasley] is that he lacks insight into his psychological experiences, which makes it difficult for him to articulate his experiences to others. [Mr D] posits that [Mr Wasley] finds relationships difficult and this is understandable if he lacks insight into his own experiences, as it means that he will then lack insight into the experiences of others, including how they experience him. This has a negative impact on his capacity to attune to and meet his children’s emotional needs.
The Court is concerned, should the children now spend unsupervised time with the father, and prior to the Single Expert’s therapeutic process being implemented, that the father, possibly lacking insight as described above by the Single Expert, will be unable to adequately meet the emotional needs of the children leading to possible emotional harm to them.
THE CHILDREN
By virtue of subsections 60CC(2)(b), (c), (e) and (f), the Court must have regard to:
(i)The views expressed by the child;
(ii)The developmental, psychological, emotional and cultural needs of the child;
(iii)The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and
(iv)Anything else that is relevant to the particular circumstance of the child.
As to the views of the children, the Court takes into account the children’s views as expressed to the Single Expert. Again, the children were interviewed by the Single Expert in May 2023. The Court also takes into account the mother’s assertions in her Affidavit filed 23 April 2024 that the children have repeatedly expressed their enjoyment of spending time with Ms G the supervisor and had stated that they will only attend supervised visits if Ms G is present.
As to Z, born in 2018, the Single Expert stated inter alia:
111. … [Z] also told me that she sees her father on Sundays, Mondays, Tuesdays and Wednesdays, and on Mondays she sees him with her mother. She said she sees him at the library where they read books and borrow books. When her father lived at home, “he yelled at mum” and [Z] said she did not like that.
As to W, born in 2012, the Single Expert stated inter alia:
116. When asked about her father, [W] paused for a long period and looked down. She said that her father “gets a bit cranky sometimes”. She said he likes [sports]. [W] said her father likes going to the park with the children and that she and [X] used to enjoy playing [sports] with him in the backyard. She said she and [X] used to go on walks with him. [W] said the best thing about her father was that he used to take her on walks and then to the park and then to buy a milkshake afterwards. She recalled a time that he took her and [X] on a night-walk, but [X] got scared and went home, so she and her father continued on their own. She said they had a torch and she enjoyed this time with her father. When asked about the worst thing about her father, [W] identified his anger. She said he sometimes slammed cupboard doors and yelled. She said he ground his teeth, “like squeezed them hard together”.
…
117. … [W] recalled going [out] with her father during that period, which she said was “pretty fun”. [W] said that this period of time was “OK”, and when she was with her father at the house, she recalled “chilling on the computer” and “playing games”. I asked what happened to make that arrangement change. [W] paused for a long time and did not answer. She started to cry. She said she did not want to talk about it.
118. I asked [W] how she felt not seeing her father and she said she did not know how to answer that question. She was clear, however, that she wanted to see her father at the assessment. She said she was not worried about seeing him and she wanted to see him for the whole duration of the observation. I made clear that [W] would not see her father again for an unspecified period of time after the observation and she confirmed she understood this and wanted to proceed. She said she was happy for her mother to know that this was her decision (rather than mine). We spoke briefly about her siblings seeing their father on weekends and [W] said she thought they should have a supervisor with them. She said she did not know what might happen if the supervisor was not present.
119. Given [W]’s distress, I ended the interview. My impression of [W] was that she is conflicted about her relationship with her father. She clearly has both positive and negative memories of him and has not yet made sense of how these fit together.
As to Y, born in 2016, the Single Expert stated inter alia:
121. [Y] told me that her father sometimes shouted at her when she got up to go to the toilet at night-time. She said he yelled at her in the mornings and forced her to eat breakfast. She said he once “threw [her] around in the lounge room and [she] got carpet burn all over [her] legs. And [her] arms”. She said she told her father to stop but he did not. She was clear that this was not a fun game, such as an aeroplane ride. She then elaborated her account to describe her father tricking the children into coming near them, but then she stopped and looked to the side, saying: “I don’t know… he just swang me around and kept doing it when I said stop”.
122. I asked [Y] about when the family all lived together and she said she noticed the difference between her parents, in that her father would yell whereas her mum “was actually talking”. She said her mother told her father to stop shouting but her father laughed and she demonstrated how he did this.
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123.… She said the best thing about her father is that he gives the children sausages and changes the type of sausage if she asks for something different. She said the worst thing about her father is that “he yells at us”.
124. [Y] said her mother is “really nice” and said that her mother always cooks good food for her and responds to requests for different meals. She said the best thing about her mother is: “she doesn’t yell at us that much. She doesn’t smack us that hard. And she doesn’t swing us around”.
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125. [Y] said her father also smacked, and his smacks were “really harder than mum’s and [had] more strength to them”. She said he also pinched them sometimes, and she showed me how he used to smack and grab her, which she said “really hurts”. She said that if he was “really angry” he would grab her although she could not recall where. She thought he grabbed her, [Z], [X] and [W].
126.[Y] said seeing her father at the library can be “good” but sometimes she doesn’t feel comfortable seeing him and gets “a really bad pain in [her] belly”. She said her father sometimes gets angry at the library and she showed me how he shakes his head, sighs, and looks away. She said he gets “red eyes” when he is angry and looks down. She said her father “doesn’t smack or yell because when the supervisors are there he tries to hold it in”. She said that sometimes he tries to hide it and smack them discretely and gave an example of how when she sits on his shoulders he sometimes “holds our legs really hard”. [Y] said she did not know if she would want to see her father without a supervisor. She said it would depend what the supervisor said, and if her father was “feeling more comfortable and being softer with us”.
127. [Y] said her father has always been angry. When asked about fun things with her father, [Y] said “yeah. Wait, no”. She said that they went for bike rides, but then made this out to be something her father forced her to do, even on a “freezing cold and raining and storming” day. She said she could not recall any fun times when living with both of her parents. [Y] said she does “more fun stuff” with her mother, noting that she sometimes gets individual time with her mother. She said her father does not allow individual time.
As to X, born in 2014, the Single Expert stated inter alia:
131.When asked to describe his father, [X] referred to physical features. When prompted to consider personality, he said he is “angry-ish”. [X] did not know the best thing about his father. He said the worst thing is “when he gets angry”. He said his father yells, but it is different to how his mother yells. He said his father sometimes swears when he yells. When asked about fun activities with his father, [X] said they went to the movies sometimes, then said: “I can’t remember anything”.
132. [X] said it was “good” when the family all lived together, but he did not provide further information. He said that the family no longer lives together because his father used to smack them on the bottom “really hard”. [X] said that when they were in the old house with their mother, it was “good”, but again did not provide more information. When in the house with his father, he said it was “not so good” and said his father used to get angry and “yell really loudly”. [X] said he felt scared when his father was angry. He said he sometimes feels worried that his father will get angry when they are spending time together. He said his father’s face turns red when he is getting angry. [X] said his father used to smack them all “hard” on the bottom. [X] said he does not want to go back to spending time with his father at the house because he does not want his father to get angry. He said his father sometimes gets angry at the library, although he could not explain how he can tell when this was happening. [X] said that if there was no supervisor, he is worried his father would get angry and hurt him. He said he told his mother before when his father hit him on the bottom and hurt him but he could not recall what his mother did.
The above views of the children are taken into account by the Court, and which tend to militate against unsupervised time with the father presently commencing. Those views also tend to support the importance of the Single Expert’s recommended family therapy being implemented before unsupervised time starts.
As to the developmental, psychological, emotional, and cultural needs of the children, the Court takes into account the Single Expert’s evidence relating to the psychological and emotional needs of the children to feel safe when spending time with the father.
As to the benefit to the children of being able to have a relationship with the children’s parents, and other people who are significant to the child, where it is safe to do so, the Single Expert stated, inter alia:
161. a) The children present with a close and loving relationship with their mother and with each other, including their older half sisters. Their relationship with their father is complicated. My impression is that all four children wish to have an ongoing relationship with their father, but they are conflicted in relation to their past experiences of harm (emotional and physical) by him. This will be explored further below, however, at this point, it should be noted that my view is that the children should be offered an opportunity to have an ongoing meaningful relationship with their father.
In this context, the Court also takes into account the evidence of the Single Expert at paragraph 161(b), previously set out in these reasons.
Evaluating the above discussed relevant considerations under s 60CC of the Act, it will be in the best interests of the children to make Orders dismissing the father’s Application in a Proceeding filed 27 March 2024.
It will be in the best interests of the children that the parties, including the ICL, now take all necessary steps to ensure the commencement and implementation of the family therapy process recommended by the Single Expert and as ordered by the Court on 21 September 2023. It will assist the family therapy process if Orders are made directing that a copy of the Single Expert Report be forthwith provided by the ICL to the father’s treating psychologist and proposed family therapist Mr B.
The Court makes Orders accordingly.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 18 June 2024
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