Wayfield & Gadsby
[2024] FedCFamC2F 725
•7 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wayfield & Gadsby [2024] FedCFamC2F 725
File number(s): HBC 417 of 2022 Judgment of: JUDGE TAGLIERI Date of judgment: 7 June 2024 Catchwords: FAMILY LAW – PARENTING – undefended hearing – allegations of family violence – assessment of risk of harm to child – admissibility of video recording of father – evidence as to video recording taken on voir dire – video recording not admitted into evidence on public policy grounds – recording likely made contrary to provisions of Listening Devices Act 1991 (Tas) – parental responsibility and decision making – father’s unsupervised time with the child conditional on restraints and protective orders Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Listening Devices Act 1991 (Tas)
Cases cited: Garrido & Garrido [2024] FedCFamC2F 634
Huffman & Gorman (No 2) [2014] FamCA 1077
Tonkin & Rojas [2024] FedCFamC2F 358
Division: Division 2 Family Law Number of paragraphs: 49 Date of hearing: 22-23 May 2024 Place: Hobart For the Applicant: No appearance by or on behalf of the Applicant Counsel for the Respondent: Mr Trezise Solicitors for the Respondent: Butler McIntyre & Butler Counsel for the Independent Children's Lawyer: Mr McKenna The Independent Children's Lawyer: Ms Pagett, Pagett & Associates ORDERS
HBC 417 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WAYFIELD
Applicant
AND: MS GADSBY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
7 JUNE 2024
THE COURT ORDERS THAT:
1.All previous parenting orders are hereby discharged.
Parental responsibility
2.Ms Gadsby (“the mother”) have sole decision making responsibility for all major or long-term issues affecting the child, Z born 2019 (“Z”).
3.For the purpose of exercising decision making in accordance with Order 2, the mother is to give Mr Wayfield (“the father”) 30 days prior notice of the decision before it takes effect.
Live with and spend time with arrangements
4.Z will live with the mother, except when spending time with the father.
5.Z will spend time with the father as follows:
(a)On a two-week rotating basis as follows:
(i)In week one, commencing 17 June 2024: each Monday and Thursday from the end of school until 6:00PM.
(ii)In week two, commencing 29 June 2024: on Saturday from 10:00AM until 6:00PM.
(b)After the expiry of six (6) months from the date of these Orders and conditional upon the father complying with the requirements in Orders 6, 7 and 8 of these Orders, the time in week two will occur on both Saturday and Sunday (but not overnight) from 10:00AM until 6:00PM each day.
(c)On the following special occasions:
(i)For Christmas in odd numbered years, from 12:00 noon Christmas day until 6:00PM.
(ii)For Christmas in even numbered years, from 12:00 noon Christmas eve until 6:00PM.
(iii)For Z's birthday, if not otherwise in the care of the father, from after school (or 2:00PM if a non-school day) until 6:00PM.
(iv)For Easter, in odd years, on Easter Saturday from 10:00AM until 4:00PM.
(v)For Easter, in even years, on Easter Sunday from 10:00AM until 4:00PM.
(d)After the expiration of twelve (12) months from the date of this Order, Z will spend additional time with the father as may be agreed in writing by the parents.
(e)If the father does not exercise spending time with Z pursuant to Order 5(a) or 5(b) of these Orders on five occasions without notice and agreement, his time pursuant to Orders 5(a), (b) and (c) inclusive is suspended.
6.The mother is at liberty to request that the father undertake CDT testing on two (2) occasions as follows:
(a)Within one month of time progressing between the father and child in accordance with Order 5(b) of these Orders; and
(b)Within one month of the twelve (12) month anniversary of the date of these Orders.
7.For the purposes of Order 6, the following must be complied with by the father:
(a)Within two (2) working days of a request pursuant to Order 6, the father shall forthwith do all things necessary to pay for and submit to a chain of custody under supervision CDT assessment conducted by B Health Service;
(b)The father shall authorise and direct the testing facility and his general practitioner to forward the results of the CDT test on each occasion of testing to the mother’s email address referred to in Order 14 of these Orders; and
(c)The father will be responsible for the cost of this testing.
8.Should the father's CDT test result pursuant to Order 7 herein be equal to or exceed 2.1%, then time pursuant to Order 5(b) or 5(d) herein is suspended until the father produces a further CDT test result at his expense, the result of which is 1.7% or less, at which time the father's time with the child pursuant to Order 5(b) or 5(d) will recommence.
Changeover arrangements
9.Unless otherwise agreed, changeover between the parents will occur in this way:
(a)At school on days Z is at school;
(b)On days that Z is not at school, at McDonalds in Suburb C;
(c)The parents may agree upon alternative changeover arrangements in writing providing the agreement is recorded via the Our Family Wizard app and made at least 24 hours before time is to occur;
(d)Each parent may nominate a third party, other than Ms Coulson, who is known to each other and Z to attend and facilitate changeover provided that is communicated to the other parent before changeover; and
(e)Each parent will ensure handover is prompt and that any words spoken are polite and not related to family law matters.
Communication and related orders
10.The father is permitted to communicate with Z by phone or electronic device as follows:
(a)In week 2 (specified in Order 5(a)(ii) and 5(b) of these Orders) on Thursday at 4:00PM;
(b)The father is to initiate the call within the 10 minutes before or after 4:00PM to the device, telephone number or app nominated by the mother;
(c)The mother is to nominate the telephone number, device or app within seven (7) days of these Orders and ensure the device is charged and available for Z to receive the call and give privacy for the communication; and
(d)If the father does not make the call within the period specified in Order 10(b), the mother does not need to facilitate the communication or provide a make up communication.
11.The father is permitted to send gifts, cards, and letters to Z AND FOR THIS ORDER the mother is required to give any such items to Z.
12.Except in the case of an emergency, the parents must use the Our Family Wizard app (or such other parenting communication application as agreed in writing) to communicate with one another.
13.For the purposes of Order 12, the mother is to establish the Our Family Wizard app (or other agreed parenting application) account within seven (7) days of the date of these Orders and invite the father to join, with each party paying their own costs of obtaining the app.
14.In the case of emergency the parents can contact one another by phone AND FOR THIS ORDER, each parent is to keep the other informed of their preferred mobile telephone number, residential address and email address for use with the Our Family Wizard app (or other agreed parenting application).
Protective orders, injunctions and restraints
15.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the mother and Z, the father is restrained from:
(a)Subjecting Z to any form of physical discipline;
(b)Exposing Z to any form of family violence as defined by s 4AB of the Family Law Act 1975 (Cth);
(c)Exposing the mother to any form of family violence as defined by s 4AB of the Family Law Act 1975 (Cth);
(d)Using illicit drugs in the 24 hour period immediately prior to Z spending time with the father and during the time Z is in the father's care AND FOR THIS ORDER the term 'illicit drugs' is defined to mean and include any drug that is illegal to have (e.g., 3,4 Methylenedioxymethamphetamine (MDMA), methamphetamine, and cocaine) and the non-medical use of drugs that are legally available but not prescribed to a party, such as pain killers and sleeping pills; and
(e)Drinking alcohol during any time Z is in the father's care, and in the 12 hours immediately prior to this time.
16.For the personal protection of the parents and Z, and by way of ancillary Order, the father is restrained by injunction from:
(a)Denigrating, demeaning or belittling the mother or members of the mother's family to, or in the presence of the mother or Z; and
(b)Entering onto the mother's place of residence.
Engagement with health care and related supports
17.Within six (6) months from the date of these Orders, the father must enrol in and complete the Circle of Security or an equivalent men's behavioural change course and provide proof of completion to the mother.
18.Within three (3) months of the date of these Orders, the father must:
(a)Contact D Organisation and obtain advice and assisting on utilising the PACE model for behavioural support of Z and implement the model; and
(b)Seek a referral from his general practitioner to a psychiatrist for a mental health assessment to determine whether he suffers from any mental health condition or disorder including, but not limited to, an Alcohol Use Disorder or mental health disorder.
19.Following assessment pursuant to Order 18(b) of these Orders, the father must:
(a)Provide a letter from the psychiatrist identifying the outcome of the assessment to the mother within 14 days of the assessment being completed and for this purpose the father must provide a copy of these Orders to the psychiatrist; and
(b)Undertake treatment and follow any recommendations of the psychiatrist about management of any diagnosed disorder or psychological symptoms or traits.
20.The mother is to continue receiving psychological supports and treatment for so long as recommended by her mental health or allied health professional and must follow the reasonable recommendations of that professional.
Publication of these orders and related matters
21.Each of the parents and the Independent Children's Lawyer may provide a copy of these Orders to:
(a)D Organisation;
(b)Any school Z attends; and
(c)Any medical or allied health professional that the parents attend and/or that Z may attend from time to time.
22.This Order acts as an authority to all health and medical professionals who treat Z from time to time to provide each of the parents with all information and documentation sought by them in relation to Z’s welfare and medical treatment from time to time, including but not limited to copies of all reports, referrals, records and documents pertaining to Z (at each party’s own cost).
23.This Order acts as an authority to all schools attended by Z from time to time, to provide to each of the parents all information and documentation sought by them in relation to Z’s welfare, progress and activities at school from time to time, including but not limited to providing the parties with copies of school newsletters and other notes/letters to the parties, copies of Z’s school reports, details of Z’s parent/teacher interviews, copies of order forms for Z’s school photos and certificates and awards obtained by Z (at each party’s own cost).
24.Within 28 days of the date of these Orders, the Independent Children’s Lawyer is to discuss with and explain to the father the Court’s Final Orders and Reasons for Judgment.
25.The appointment of the Independent Children’s Lawyer is extended for a period of 28 days from the date of these Orders.
AND THE COURT NOTES THAT:
A.Pursuant to s 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if he/she holds reasonable belief that the Orders for personal protection in Order 15 of these Orders have been breached.
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 TAGLIERI
These are parenting proceedings concerning a child Z, who is five years old. The applicant, Mr Wayfield, is Z’s father and was in a relationship with Z’s mother, Ms Gadsby, for approximately three years.
The proceedings were listed for defended hearing on 22 and 23 May 2024 but, in unusual circumstances, the listing did not proceed as a defended hearing. It is not necessary to outline those circumstances in detail. Rather, it is sufficient to note that the father did not appear at the commencement of the defended hearing and his solicitor informed the Court by email that he withdrew his representation after conveying that he suffered a fall and injury the previous evening and could not appear. The email from the solicitor stated that prior to his fall the father had given instructions to him that he would not be pursuing his application for parenting orders and instead “withdraws his application” “primarily for financial reasons.”[1]
[1] The email was received by the Court and marked as Exhibit A1.
I made procedural Orders on 22 May 2023, which provided for service of the Orders made that day on the father by email. The purpose of this was to put the father on notice that the mother sought final orders on an undefended basis and that the Court would conduct an undefended hearing if he did not appear the following day. I adjourned the proceedings for potential undefended hearing to 23 May 2024 at 10:00am and made an Order that the father was required to appear in person at that time.
As counsel for the ICL had spoken with the father by telephone during the Court listing on 22 May 2024, I encouraged him to explore whether the father was agreeable to any of the final orders sought by the ICL or the mother.
On resuming the proceedings on 23 May 2024, I received exhibits that satisfied me that the father had been served with the Orders of 22 May 2024, had notice that the hearing would proceed undefended should he not appear and had knowledge of the final orders being sought.[2] Accordingly, I made an Order that the undefended hearing proceed and gave brief oral reasons for such.
[2] Exhibits ICL1 and ICL2, being a bundle of emails and annexed documents sent by counsel for the ICL to the father, and an email from the father to counsel for the ICL on 23 May 2024 at 9:59am.
THE UNDEFENDED HEARING
The mother sought to persuade the Court to make a final parenting orders in accordance with the Amended Response filed by her on 21 May 2024. The mother relied upon:
·The affidavit of Ms Gadsby affirmed 3 May 2024;
·The affidavit of Ms E affirmed 18 May 2024;
·The affidavit of Ms F affirmed 20 May 2024;
·The Specific Issues Report of Court Child Expert Ms G dated 7 May 2024;
·The Section 69ZW Responses from Child Safey Services and Tasmania Police;
·The transcript of Ms Coulson’s evidence given in separate proceedings on 9 and 10 May 2024; and
·School records for Z.
The latter four documents were received by the Court and marked as Exhibits R1, R2, R3 and R4 respectively.
In summary, the mother’s Amended Response seeks final orders that:
(a)The mother have sole parental responsibility and Z live with her; and
(b)The father spend:
(i)Unsupervised time with Z for limited day time periods, conditional on his obtaining psychological treatment, a psychiatric assessment, wearing an alcohol detection device and undergoing alcohol and illicit substance use testing; and
(ii)Supervised time with Z at J Contact Service if he returns positive test results which cause his unsupervised time to be suspended.
An issue arose in the mother’s case about whether the Court should receive into evidence video recordings included by the mother in the Court Book. I also raised some preliminary concerns about the orders sought by the mother regarding use of an alcohol detection device intended for detecting alcohol use by the father.[3] I enquired whether the Court had or would be provided with evidence about the efficacy, reliability and desirability of use of such devices in view of evidence I had heard from an expert witness in another proceeding, who had expressed concerns about use of a similar device.[4]
[3] Order 4 of the Amended Response filed 21 May 2024.
[4] Tonkin & Rojas [2024] FedCFamC2F 358.
Counsel for the mother sought leave to adduce oral evidence from the mother in relation to both issues described above at [8] and I granted such leave.
I also ruled that the evidence about the video recordings would be taken on a voir dire and heard submissions about whether they should be received in evidence.
In respect of the alcohol detection device, the mother gave very brief oral evidence about the impact on her of checking test results prior to when the father was due to spend time with Z. She claimed it would not cause her anxiety, despite evidence of her experiencing serious anxiety symptoms.[5] As to the video recordings, the mother in effect stated that she had taken the recording with her phone on an occasion in 2020 when the father had been extremely intoxicated and was being abusive and dysregulated. Further, that she had sent it to his mother to show her “what she was putting up with.”
[5] Mother’s affidavit affirmed 3 May 2024 at [85]-[88].
Counsel for the mother relied on the principles discussed in Huffman & Gorman (No 2) [2014] FamCA 1077 at [17] to [44], relating to uniform provisions equivalent to the Listening Devices Act 1991 (Tas) and s 138 of the Evidence Act 1995 (Cth). Ultimately, he submitted that the video recordings should be received in evidence because of their probative value concerning family violence by the father, which was a serious risk for the safety and welfare of Z. Counsel for the ICL essentially agreed with and adopted those submissions.
I was invited to view the video recordings in Chambers rather than play/display them in Court. Accordingly, after hearing the mother’s evidence and counsels’ submissions I adjourned briefly to consider whether I should view the video recordings and receive them in evidence.
Having heard the mother’s evidence about the circumstances in which the video recordings were made and submissions from counsel, I declined to receive them in evidence and did not view them, essentially because:
(a)I was satisfied that they had been obtained illegally contrary to the provisions of s 5 of the Listening Devices Act 1991 (Tas) because at the time the recordings were made in 2020, it was not in contemplation of or for the purpose of the mother’s protection in the context of a legal right;
(b)Due to the mother’s evidence about the extreme intoxication of the father, it was unlikely he consented to the recordings and was likely unaware they had been taken. Further, the video recordings had only been disclosed to the father’s solicitor recently on 21 May 2024;
(c)It was unnecessary to receive the video recordings on the basis of the submission about their probative value because the mothers evidence about family violence[6] was not contradicted and the father had not sought to rebut it by participating in the proceedings or relying on his own affidavit. There were also other sources of evidence corroborative of the mother’s allegations against the father that were before the Court;[7] and
(d)Consequently, it was contrary to public policy to receive the illegally obtained recordings.
[6] Mother’s affidavit affirmed 3 May 2024 at [75].
[7] Exhibits R2 and R3.
I then invited counsel for the ICL to adduce any evidence he relied upon. In addition to what had already been received into evidence, he tendered the Child Impact Report of Court Child Expert Ms G dated 25 August 2022 unopposed, and I marked it as Exhibit ICL3.
Both counsel made closing submissions in relation to what final parenting orders should be made. Their submissions were largely consistent with those included in their respective case outlines and it is unnecessary for me to repeat them.[8] Counsel for the ICL initially submitted that he supported the Court making orders as sought by the mother. However, having heard my discourse with counsel for the mother about the number of “hoops” her proposed orders required the father to jump through to maintain unsupervised time, which had been occurring for day periods only, he submitted that an alternative were the final orders set out at pages 12 to 14 of the ICL’s case outline.
[8] Mother’s case outline filed 21 May 2024 at pp 6-9 and ICL’s case outline filed 21 May 2024 at pp 6-11.
The father’s Application for Final Orders was filed 13 May 2022, at the initiation of these proceedings, and no amended application has been filed since that time. The terms of the orders sought are overly simplistic and do not appear to address much of the evidence before the Court about risk factors in relation to the safety and welfare of Z, either physically or emotionally, or the father's alleged drug or alcohol abuse and alleged mental health limitations.
In any event, the father did not appear to conduct the hearing and has “withdrawn”. In those circumstances, I am not required to consider any material that he may otherwise have relied upon. However, in his case outline that was filed very recently on 21 May 2024, the father does not oppose some of the parenting arrangements proposed by the mother and I take that into account. The father’s case outline demonstrates:
(a)A concession that Z should primarily live with the mother;
(b)That he only would seek to spend time with Z on a fortnightly pattern; and
(c)A concession about the appropriateness of various restraints on the parents for protection of Z in respect of use of illicit substances, consumption of alcohol to excess and perpetration of family violence.[9]
[9] Orders 9 to 11 inclusive of the father’s case outline filed 21 May 2024.
Noting the parties’ case outlines, the issues for determination are confined to two issues. Whether the mother should be charged with sole authority for decision making in respect of major and long-term issues for Z. Furthermore, what orders should be made for the father to spend time with Z, including what conditions, restraints or protections should attach to the same to safeguard the Z’s safety and welfare.
RELEVANT STATUTORY CONSIDERATIONS AND FINDINGS
As briefly addressed in Garrido & Garrido [2024] FedCFamC2F 634 at [21] to [23], parenting cases determined after 6 May 2024 are to be determined pursuant to amended provisions in Part VII of the Family Law Act 1975 (Cth). I have had regard to the amended provisions that require the Court to make parenting orders that are in the child’s best interests according to the non-exhaustive considerations in ss 60B, 60CA, 60CC and the discretionary evaluation of the same. I am not bound to follow the statutory construct of equal shared parental responsibility that existed previously, and family violence remains an important consideration in the evaluation of what parenting orders should be made in a child’s best interests.[10]
[10] Sections 60B and 60CG of the Act.
The evidence before the Court in this case is totally unchallenged. The mother’s detailed evidence about her relationship history with the father, the family violence perpetrated by him, his alcohol and past substance abuse, and his mental health instability has not been contradicted. I accept much of the mother’s evidence and note there is no basis not to do so because it is particularised and broadly corroborated by contemporaneous records made by police and others at relevant times. However, I do not accept the hearsay evidence based on information given to her by Ms Coulson. Although I am entitled to accept the hearsay evidence,[11] I decline to do so because it has little probative value in determining the parenting issues in this case for the reasons given below.
[11] Section 69ZT of the Act.
Prior to his relationship with the mother, the father was in a relationship with Ms Coulson with whom he has two children, X and Y. Ms Coulson’s evidence in separate Court proceedings, to which Mr Wayfield is a party, was taken as evidence in these proceedings[12] and this is the best evidence of the corresponding hearsay evidence relied upon by the mother. While I accept that there were many incidents between Ms Coulson and the father when one or both were very intoxicated or affected by drugs and likely experienced mental health symptoms, I find that Ms Coulson’s evidence is not wholly reliable and has likely been exaggerated or distorted by the passage of time and her own mental health and health vulnerabilities.
[12] Exhibit R3.
For present purposes, it is unnecessary for me to provide fulsome reasons for not accepting Ms Coulson’s evidence as wholly reliable. Those reasons will be provided in judgment in the proceedings relating to her and the father. It is sufficient to state that there are a number of inconsistencies in her evidence and some of it has been reconstructed from events years ago when, by her own admission, she was affected by intoxication, drug use or her mental health symptoms. Furthermore, the findings that I make and conclusions reached are supported by the mother’s evidence.
Despite some of Ms Coulson’s evidence being unreliable, I accept that the father has a history of family violence with at least four intimate partners, which satisfies me that he has a tendency to aggression, anger, abuse and violence, which is worse when intoxicated. This finding is also consistent with his criminal convictions.[13] This leads me to find that he is likely to have perpetrated family violence ranging from repeated verbal abuse and taunts to shoving and use of excessive force, all which are likely to have threatened physical or emotional harm to any persons present, including at times the children.
[13] Exhibit R2, father’s Tasmanian criminal prior convictions.
I also accept that the father used inappropriate and unnecessary discipline on one occasion with X, when he intervened to stop X from hurting Z. However, the description of this incident by Ms Coulson and her concern about it posing risk to the children has been subsequently exaggerated.
Based on the evidence before the Court, I find that:
(a)The parties were in a relationship for approaching three years.
(b)Their relationship involved physical and verbal abuse, and threats of injury by the father towards the mother.
(c)The mother was exposed to dysregulated behaviour including aggression by the father, particularly when he was under the influence of excess consumption of alcohol or illicit drugs. Police issued a police family violence order protecting the mother from the father after an incident in late 2019 and a family violence order was made in the Magistrates Court in mid-2021 against the father for the protection of the mother.[14]
[14] Exhibit R2, Tasmania Police – Response to s 69ZW Order dated 29 June 2022.
(d)The mother has been Z’s primary carer since birth and following separation he has resided with the mother. She and Z have a loving, bonded and meaningful relationship.
(e)The father also has a loving and meaningful relationship with Z.
(f)The father has spent time with Z on an intermittent, and not always regular, basis following separation. Initially that time was supervised and then later became unsupervised, and included some overnight time, prior to late 2021.
(g)Following Ms Coulson telling the mother in late 2021 of, amongst other things, an incident when the father had care of X, Y and Z when the father allegedly assaulted X, the mother ceased allowing Z to spend time with the father.
(h)Following unsuccessful participation in mediation, the father commenced these proceedings seeking parenting orders.
(i)In mid-2022, Ms Coulson made further reports to the mother that the father had made threats of violent behaviour towards Ms Coulson and her eldest daughter.
(j)The progression of time between the father and Z has been characterised by frequent interruption for various reasons, not related to violence or abuse by the father towards either the mother or Z.
(k)Despite the incident leading to the police family violence order made in late 2019, the mother facilitated time between Z and the father at her friend’s home when she was present.[15] Further, it was agreed that the father would have overnight time with Z unsupervised for a weekend soon after this time.
[15] Mother’s affidavit affirmed 3 May 2024 at [40].
(l)The mother ceased facilitating time between Z and father in mid-2020 after receiving reports that the father was intoxicated, had passed out and was “off his face” while Z was in his care.[16]
(m)Although the mother states that in late 2020 a final family violence order was put in place protecting her, there is no documentary evidence of such order. However, FVMS reports suggests police involvement on two occasions around that time, one in mid‑2020 when the father was charged with a breach of a police family violence order and one in late 2020 recording an incident between the mother and the father that police determined did not involve a breach of any order.
(n)The mother continued to facilitate time between the father and Z on a supervised basis and then unsupervised basis between late 2020 and late 2021.
(o)The mother ceased facilitating time in late 2021 following a report by Ms Coulson about a family violence incident where Mr Wayfield abused their children and made threats.[17]
(p)In mid-2022 as a result of an incident involving Mr Wayfield, an interim family violence order was made protecting Ms Coulson, X and Y, and Ms Coulson’s other daughter.
(q)Various Interim Parenting Orders were made during these proceedings for Z to spend time with the father on a supervised basis and progressing to unsupervised but limited day time only.[18] There has been a reduction in conflict, with no new reports of family violence by the mother. Further, there is no evidence that Z has been at risk during the unsupervised daytime periods with father since that commenced in about March 2024.
(r)Accepting the views of the Court Child Expert, the parents each have an understanding of Z’s needs but have difficulty in their co-parenting due to negative experience of each other, which is a significant obstacle to effective co-parenting.[19]
(s)The mother experiences anxiety and a psychologist has opined that she meets the diagnostic criteria for a mental health disorder.[20] The symptoms are related to, or at very least contributed to, by her past experiences with the father, which are described in her affidavit affirmed 3 May 2024 at [75] to [79].
(t)In view of the preponderance of evidence about the use of alcohol to excess by the father from the mother and Ms Coulson which I accept, I consider the father uses alcohol to excess on a moderately frequent basis, it is quite possible that the father suffers an alcohol abuse disorder.
(u)I accept that when intoxicated the father has dysregulated emotions and behaviours, manifesting in aggression, loss of impulse control and anger. When the father is intoxicated, Z is likely to be exposed to small to moderate risk of emotional harm from verbal abuse and possible physical harm from overzealous physical disciplining or lack of control.
[16] Mother’s affidavit affirmed 3 May 2024 at [42]-[43].
[17] Mother’s affidavit affirmed 3 May 2024 at [48] and [51].
[18] Orders dated 8 September 2022, 23 September 2022, 29 August 2023 and 13 March 2024.
[19] Exhibit ICL3, Child Impact Report, at [19].
[20] Affidavit of Ms E affirmed 18 April 2024 and attached report dated 26 March 2024.
Z is young and I accept that his views or attitude of the father are not particularly helpful in evaluating his best interests. However, I take into account that Z has not expressed or demonstrated fear of the father. The evidence is indeed to the contrary.[21]
[21] See, eg, Exhibit ICL3, Child Impact Report, at [7].
I accept the mother is a reliable witness, but some of her evidence is infected by the unreliability of accounts given to her by Ms Coulson. Further, her anxiety and capacity to effectively co‑parent has been influenced by the same.
DETERMINATION
Major or long-term decision making
The facts found above demonstrate a deterioration in the co-parenting relationship between the father and the mother which coincides with Z being withheld due to Ms Coulson’s allegations about the father’s physical discipline/abuse of the children and threats of harm to them, including his attendance at the McDonald’s drive-through, which were reported to the mother. As the mother herself has mental health vulnerability, it is likely that the exaggerated reports by Ms Coulson have added to the distrust and concern she has had about the father.
It is predictable that the parents will have difficulty in communicating with each other in a child focused and effective manner about major and long-term decisions that need to be made for Z, due to the findings at [24] about the history of family violence by the father and the findings at [26](r) to (u).
In view of the findings at [24], the reasoning at [25], and concessions that Z will primarily live with and be cared for by the mother, I consider it in Z’s best interests for the mother to solely make decisions about major and long-term issues for him.
I accept the submission by counsel for the ICL and the mother that the mother should be solely responsible for major and long-term decision making concerning Z for the following reasons:
(a)She has been his primary carer and will be in the future.
(b)The mother is likely to be better placed and equipped to address Z’s need to be treated and assessed by a paediatrician and psychologist, noting his behavioural dysregulation.[22] The father is unlikely to be able to engage with the mother calmly, consistently and co-operatively in relation to decisions of this kind, due to his strong grievance that Ms Coulson and the mother have in effect conspired against him.
(c)The father’s propensity to anger, aggression and alcohol abuse means it is preferable for one parent to have sole decision making responsibility so that effective, child‑focused and non-conflictual decisions are taken.
(d)The finding of family violence, which is an important consideration pursuant to the Act.[23]
[22] Exhibit R1, Specific Issues Report, at [51](a)-(b).
[23] Sections 60B and 60CG of the Act.
Despite this conclusion, it is essential for the wellbeing and safety of Z that the mother inform the father of decisions to be taken. The father will need to be aware of treatment and management of Z’s behaviours and informed of recommended approaches as he will spend time with Z.[24]
[24] Exhibit R1, Specific Issues Report, at [51](b).
Live with and spend time arrangements
There is no dispute that the mother should continue to fulfil the role of primary carer.
Z’s best interests will be served by primarily living with the mother so that he has a stable and secure base and is shielded from the risk of harm connected with the father drinking alcohol to excess and his physical and emotional dysregulation. I accept the submissions in the ICL’s case outline at [2.7] to [2.10].
The father had apparently been seeking an equal live with arrangement, but he has not pursued this case and chose to abandon prosecuting his application.
Until the father demonstrates engagement with alcohol use treatment and counselling, psychological treatment and the cessation of family violence incidents, characterised by excessive physical discipline, verbal abuse and emotional dysregulation which will all cause fear and emotional harm to Z, he will spend time with Z for daytime periods only to mitigate risk of such harm.
Supervision of his time is not necessary given that it will occur at times and for periods when the risk of alcohol misuse is unlikely or when other adults will be present to afford protection to Z, such as Ms K, the father’s current partner, or the paternal family on special occasions and school staff at changeovers.
Protective restraints and other parenting orders
It is concerning that the father initially presented at the interview with the Court Child Expert as hostile, combative, dismissive and rude.[25] Together with the history of conflict with intimate partners and the findings at [26](r)-(u) of these reasons, this persuades me that he has little tolerance for opinions that do not accord with his own. This is likely to lead to escalation in conflict, which Z will potentially be exposed to and may lead to emotional harm.
[25] Exhibit R1, Specific Issues Report, at [15].
While I accept that the father has some cause to be concerned about the impact of Ms Coulson’s communications with the mother as a factor distorting or adversely impacting on the co‑parenting dynamic between him and the mother,[26] I must prioritise the safety and interests of Z.
[26] Particularly in light of my findings about the reliability of Ms Coulson’s evidence.
I accept the submissions of the ICL at [2.16] to [2.19], which make it necessary to make orders requiring the father to develop further insight into the impacts of his behaviours on the welfare of Z. This will be achieved by making orders directed to the father’s alcohol use, mental health and family violence based on risk of verbal or physical abuse of either the mother or child.
Furthermore, because there is an allegation that the father may have an undiagnosed mental health condition, which affects his emotional regulation and communication, it is necessary for the safety of Z that this be clarified. There will be an order for the father to undergo psychiatric assessment and treatment if it is determined that he has a psychiatric or psychological condition.
As the mother’s own evidence is that she suffers significant anxiety, it is necessary for her to continue accessing psychological supports to avoid her own anxiety impacting on her facilitating and promoting Z’s relationship with the father.
Although I am not persuaded on the evidence before me that the father currently uses or abuses illicit substances, for protection and safety of the child it is reasonable to make an order that he not consume any illicit substance in the 12 hours prior to and during time spent with Z. Notably, the father has no convictions for drug related offences,[27] which may be expected if there was misuse of illicit substances likely to affect his parenting. I note the father proposed a similar order in his case outline.
[27] Exhibit R2, father’s Tasmanian criminal prior convictions.
The finding at [26](t) of these reasons warrants an order for limited alcohol testing to detect if the father has a chronic and temporal alcohol abuse problem. The requirement to undertake alcohol testing if requested is protective. It will also act to allay the mother’s anxiety and encourage her to promote the benefits of Z’s time with the father increasing if safe to do so.
CONCLUSION
For the foregoing reasons, most but not all of the proposed orders set out in the ICL’s case outline are in Z’s best interests. To further limit the father’s time with Z unnecessarily restricts Z’s right to spend time with his father and have a meaningful relationship with him.[28] The orders proposed by the mother unnecessarily cause a real risk of complete fracture of the loving and meaningful relationship between Z and father. It is also relevant that Z does not express or demonstrate any fear of the father.[29]
[28] Sections 60B and 60CC(2)(e) of the Act.
[29] Exhibit ICL3, Child Impact Report, at [7].
The risk of physical or emotional harm is adequately ameliorated by the father spending daytime periods with Z in settings where he will be visible and protected from the risks of harm posed by the father according to my findings. If he fails to comply with the orders restraining his adverse behaviours, he will risk losing the opportunity to spend time with Z and to foster and promote their relationship in the future.
Conflict between the parties will be mitigated by express orders about how the parties are to communicate and the fact that the mother will solely make major and long term decisions, noting that she must inform the father in advance of the decision to be taken before it takes effect.
Before pronouncing final orders consistent with my findings and reasons, I will invite submissions from the parties about the draft orders as they do not wholly accord with those sought either by the mother or ICL.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 7 June 2024
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