Welcher & Gilpin (No 2)
[2024] FedCFamC2F 874
•10 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Welcher & Gilpin (No 2) [2024] FedCFamC2F 874
File number(s): DGC 266 of 2020 Judgment of: JUDGE BURT Date of judgment: 10 July 2024 Catchwords: FAMILY LAW – Parenting – four children aged 17, 16, 14 and 12 – final parenting orders made in November 2021 – mother and independent children’s lawyer seeking that the younger two children spend no time with the father – father seeking that the 12 year old spend alternate weekends and the 14 year old spend week about with mother – multiple periods of the father withholding the children – spend time with father suspended at last interim hearing – significant age difference between parties at commencement of relationship – mother alleging coercive control from commencement of relationship – father was in a position of authority at the parties’ church – allegations that father used religion to exert control over the mother during the relationship – coercive control findings – father criticising mother’s lifestyle and minimising her relationship with children – parental capacity – father failing to act in the children’s best interests – conduct driven by wish to exert control rather than needs of the children – sibling relationship – delay in medical assessment and treatment – child with ASD being bullied at current school and engaging in self-harming – dispute as to school – parental alignment – children’s views coloured by attempts to appease the father – held – parties to make joint decisions with respect to eldest two children – eldest children to spend time with each parent according to their wishes – mother have sole decision making with respect to youngest two children – youngest two children to live with the mother and spend no time with the father. Legislation: Evidence Act 1995, s 140
Family Law Act 1975, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61B, 61C, 61CA, 61DAA, 65D
Explanatory Memorandum, Family Law Amendment Bill 2023
Cases cited: Adamson & Adamson [2014] FamCAFC 232; (2014) FLC 93-622; (2014) 51 Fam LR 626
Andrew & Delaine [2009] FamCAFC 182
B & B [1993] FamCA 143; (1993) FLC 92-357; (1993) 16 Fam LR 353
Bielen & Kozma [2022] FedCFamC1A 221; (2022) FLC 94-123; (2022) 66 Fam LR 59
Blinko & Blinko [2015] FamCAFC 146
Carlson & Fluvium [2012] FamCA 32
Carter &Wilson [2023] FedCFamC1A 9
Grella & Jamieson [2017] FamCAFC 21
In the Marriage of Hall [1979] FamCA 73; (1979) FLC 90-713; (1979) 5 Fam LR 609
Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092; (2022) 65 Fam LR 288
Johnson & Page [2007] FamCA 1235; (2007) FLC 93-344
Norton & Landell(Consent Final Parenting Orders) [2015] FamCA 96
Potter & Potter [2007] FamCA 350; (2007) FLC 93-326; (2007) 37 Fam LR 208
Ramzi & Moussa [2022] FedCFamC2F 1473
Summerby & Cadogen [2011] FamCAFC 205
Division: Division 2 Family Law Number of paragraphs: 216 Date of hearing: 3, 4 and 6 June 2024 Place: Dandenong Counsel for the Applicant: Ms Paull Solicitor for the Applicant: Justice Crew Legal Services Counsel for the Respondent: Ms Teicher Solicitor for the Respondent: TFA Legal Counsel for the Independent Children’s Lawyer: Mr Marchetti Solicitor for the Independent Children’s Lawyer: Clark Family Lawyers ORDERS
DGC 266 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WELCHER
Applicant
AND: MR GILPIN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE BURT
DATE OF ORDER:
10 JULY 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
W and X
2.The mother and the father make joint decisions with respect to all major long-term issues for the children W born in 2006 (“W”) and X born in 2008 (“X”).
3.W and X live and spend time and communicate with each parent in accordance with their wishes.
4.Subject to Order 5 below either parent be at liberty to travel with the children W and X outside the Commonwealth of Australia with the consent of the non-travelling parent and with such consent not to be unreasonably withheld, provided that not less than thirty (30) days prior to the travel the travelling parent provide the non-travelling parent with:
(a)copies of itineraries, including details of the country to which the children will travel;
(b)copies of airline tickets, both outgoing and returning;
(c)evidence of travel medical insurance; and
(d)the address(es) at which W and X will be residing and a telephone number on which the other party can communicate with the children.
5.Each of the parents be and are hereby restrained from travelling with the children W and X to a non-Hague Convention country or travel to a location where at the time of the travel there is a Travel Warning of “reconsider your need to travel” or “do not travel” issued from the Department of Foreign Affairs, unless otherwise agreed in writing.
6.These orders authorise all schools at which W and X may attend to:
(a)provide the parents at their own expense, copies of all reports, notices and applications for photographs in relation to W and X;
(b)communicate with either party either by telephone and/or in writing; and
(c)for the mother only by personal attendance to attend all functions to which parents are normally invited.
Y and Z
7.The mother make sole decisions in relation to all major long-term issues for the children Y born in 2010 (“Y”) and Z born in 2016 (“Z”) provided the mother keep the father advised of such major long term decisions by email.
8.Y and Z live with the mother.
9.The mother forthwith enrol Y and Z at B School, in the absence of consent by the father.
10.Y and Z (individually or together) spend no time and there be no communication with the father save as may be expressly agreed in writing between the parents.
11.The father, by himself, his servants and agents be and is hereby restrained from permitting Y and Z (individually or together) to be in his care, including for the avoidance of doubt to be at or within any property and/or vehicle owned, occupied, or operated by him and/or his servants or agents, during any period of time when Y and Z (individually or together) are intended to be in the mother’s care, save in the event of prior written agreement between the parents.
12.The father, by himself and his servants and agents, is prohibited by injunction from communicating with Y and Z by electronic and/or any other means, and for such purpose:
(a)the father remove his connections with Y on social media applications and accounts and block Y as a contact on all and any of his social media applications and accounts; and
(b)the father remove his connections with Z on social media applications and accounts and block Z as a contact on all and any of his social media applications and accounts.
13.The mother, by not later than 30 June and 30 December each year, provide to the father a selection of not less than 6 photographs of Y and Z taken in the previous 6 month period.
14.Pursuant to s.11(1)(b) of the Australian Passports Act 2005, the mother be permitted to do all things and sign all documents to obtain passports for the children Y born in 2010, and Z born in 2016 without notice to or the requirement for consent by the father.
All children
15.The parents be at liberty to provide a copy of these orders to W, X, Y and Z (“the children”)’s schools.
16.The mother be at liberty to provide to any of the children’s treating psychologists and/or psychiatrists:
(a)a copy of these orders and reasons for judgment delivered this day;
(b)the family report prepared by Family Consultant Ms C (“the family report writer”) dated 9 April 2024; and
(c)the s.69ZW response prepared by the Department of Families, Fairness and Housing dated 10 February 2023.
17.Each of the parents, their servants and agents are restrained by injunction from:
(a)discussing these proceedings in the sight or hearing of the children or any of them;
(b)denigrating the other parent or any extended family member or partner of the other in the sight or hearing of the children or any of them; and
(c)allowing the children or any of them to come into contact with or read the contents or any material filed in these proceedings in any way, including these orders and reasons for judgment.
18.The independent children’s lawyer meet with the children (individually or together) to explain these orders and for such purpose:
(a)each of the parents do all acts and things necessary to facilitate the children (or any of them) attending upon the independent children’s lawyer, as may be requested by the independent children’s lawyer (including either in person or via electronic video means); and
(b)the independent children’s lawyer be at liberty to request the assistance of the family report writer in explaining these orders to the children (or any of them).
19.Upon compliance with Order 18 above, the appointment of the independent children’s lawyer be discharged.
20.All extant parenting applications be otherwise dismissed.
21.Pursuant to s.62B of the Family Law Act 1975 (Cth), information about courses, programs and services to help with adjusting to the consequences of these orders are set out in Attachment A.
AND THE COURT NOTES THAT:
A.Pursuant to s.62B of the Act, information about courses, programs and services to help with adjusting to the consequences of these orders are set out in Attachment A
B.Section 114Q of the Act provides that it is an offence punishable by imprisonment for up to one year to communicate to the public an account of family law proceedings which identifies a party to the proceedings, a witness in the proceedings, a person related to, or associated with, a party to the proceedings, or a person who is, or alleged to be, in any other way concerned in the matter to which the proceedings relate, unless specifically authorised by the Court.
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 BURT:
INTRODUCTION
These proceedings concern a parenting dispute about four children: W, who is 17, X (usually known as X), who is 16, Y, who is 14 and Z, who is 12.
The applicant mother, Ms Welcher, seeks orders for W and X to spend time with each of the parents according to their wishes, and for Y and Z to live with her. At the start of the trial, she proposed that Y and Z should not spend time with the father for about five months and thereafter resume time on alternate weekends and school holidays. By the end of the final hearing, her proposal was that Y and Z spend no time and have no communication with the father. She seeks orders for major long-term decisions about W and X to be decided jointly with the father, and for her to make sole decisions about major long-term decisions concerning Y and Z.
The respondent father, Mr Gilpin, agrees that W and X should spend time with each of the parents according to their wishes, and that the parents should make joint decisions about major long-term decisions for them. He proposes that Z should live with him and spend time with the mother on alternate weekends and on a week about basis during school holidays. He proposes also that Y should live with each parent on a week-about basis. He proposes that he be able to make sole decisions about major-long term issues in respect of Y and Z.
The independent children’s lawyer agreed with the parties’ proposed orders for W and X and otherwise supported the orders sought by the mother.
A combined minute setting out the entirety of the parties’ proposals as at the end of the final hearing was tendered by the independent children’s lawyer and is annexed to these reasons at Appendix A.
BACKGROUND AND PROCEDURAL HISTORY
The mother is aged 48 and works as a self-employed professional. She lives in the former family home in Town D.
The father is aged 64 and is retired. He lives in a rental property in Town E, about 30 minutes’ drive from the mother’s home.
At the start of the final hearing, W was living with the father and spending regular time with the mother. He is attending F School in Suburb G and stays at the mother’s holiday rental near school for a few nights each week. X lives with the father and since early 2022 has spent only limited and sporadic time with the mother. She is in Year 11 at H School.
Y and Z live with the mother and spend no time with the father pursuant to my orders made on 3 May 2024. Y is in Year 9 and Z is in Year 7 at H School. Both Y and Z experience challenges with their learning and, in the case of Y, mental health. Y has been diagnosed with autism spectrum disorder (“ASD”), attention deficit hyperactivity disorder (“ADHD”) and obsessive-compulsive disorder (“OCD”). Those issues are discussed later in these reasons.
The parties met in around 1991, on the mother’s case, or 1992, on the father’s case. The mother was aged 16 or 17 when the relationship began and the father was aged 31 or 32. The parties agree that they met at church where the father attended.
The parties married in 1994. During the marriage they continued to attend J Church and the father worked as an educator.
The parties adopted their two eldest children, Mr K (now aged 25) and Mr L (now aged 21) before the birth of the four younger children.
Mr K lives with the mother and visits the father on alternate weekends. He has been diagnosed with ADHD and ASD. As well as receiving disability benefits, he works on a part-time basis as a handyman.
Mr L lives with the father and has recently resumed spending time with the mother. He works as a tradesperson.
W was born in 2006.
X was born in 2008.
Y was born in 2010.
Z was born in 2011.
The parties agree that they separated on a final basis on 2 May 2015. The father moved into a rental property and the mother and children remained in the former family home. The mother says that the father created a “complicated roster” in relation to the children’s time with him and provides details of that roster, which provided for one or two of the children to spend a weeknight with the father and for all of them to stay with him each alternate Friday. The father says that the children “officially” lived with the mother for the purpose of her Family Tax Benefit claim but really spent more than half of their time with him.
In 2019, the mother told the father that she wanted to move to Suburb M, where her new partner lived and where she was working. The mother says that the father agreed to the move subject to arrangements being made for him to spend time with the children. The father says that he made it clear that he did not consent to the move. Neither party made an application to the Court.
The mother and the children moved to Suburb M in late 2019. The children were enrolled in the local State school. In early 2020 the father retained the children in his care and re-enrolled them in H School in circumstances discussed elsewhere in these reasons.
The mother initiated proceedings in this Court on 28 January 2020. On 7 February 2020, interim orders were made by consent for the children to live with the father and spend alternate weekends and Wednesday evenings with the mother. Further interim orders followed. The mother says that the father failed to comply with a number of the orders for time and she filed a contravention application on 15 April 2021.
The substantive proceedings resolved by consent on 10 November 2021, by way of orders for the children to spend time with each parent on a week-about basis, and for X’s time with the mother to increase gradually to that point. The consent orders also provided for the children to continue to attend H School. The mother returned to live in the Town D area to give effect to these orders. The mother says that initially both parties complied with those orders.
The mother alleges that in early 2022, the father arranged to collect W from her home after a disagreement over household chores. She says that the father withheld W from her for a short period, but that W eventually resumed spending time with her.
In early 2022, the mother applied for an Intervention Order (“IVO”) and an interim order was made.
The mother says that X sent her a text message in early 2022 saying that she would no longer stay at the mother’s home. The contents of that message are discussed elsewhere in these reasons.
On 30 March 2022, the mother filed a contravention application. That application was dismissed on 23 November 2022 on the basis of various agreed amendments to the final orders made on 10 November 2021, and an order requiring the mother to issue a fresh substantive application.
In late 2022, a final IVO was made after a contested hearing. That identifies the father as the respondent and the mother as the affected family member. It remains in force until late 2025.
On 21 December 2022, the mother filed an initiating application which began the present proceedings.
At a mention on 17 February 2023, orders were made including consent orders for the parties and X to commence family therapy with Ms N, and for Y and Z to undergo a psychiatric assessment.
A notation to orders made at a compliance hearing on 28 September 2023 records that the parties did not comply with the orders for family therapy or for psychiatric assessments.
On 20 November 2023, orders were made providing for Y and Z to attend upon a paediatric psychiatrist at hospital for assessment. No such assessment took place for reasons which were not the subject of evidence before me.
A Court-funded family report was prepared by Ms C and was released to the parties at a hearing before me on 30 April 2024. On that date I made interim orders providing for Y and Z to live with the mother and spend no time with the father pending an interim defended hearing.
The interim defended hearing took place on 3 May 2024. At that hearing, I made orders for Y and Z to live with the mother and spend no time with the father.
The final hearing took place before me on 3, 4 and 6 June 2024. Both parties and the independent children’s lawyer were represented by experienced Counsel.
MATERIAL RELIED UPON
At the hearing, the mother said that she relied upon:
(a)her amended initiating application filed on 6 May 2024;
(b)her trial affidavit filed on 6 May 2024;
(c)her affidavit in reply filed on 20 May 2024;
(d)the affidavit of Dr O, psychiatrist, filed on 17 June 2020, annexing the psychiatric assessment of the mother dated 5 May 2020 (“the mother’s psychiatric assessment”);
(e)the affidavit of Dr O, psychiatrist, filed on 18 June 2020, annexing the psychiatric assessment of the father dated 29 April 2020 (“the father’s psychiatric assessment”);
(f)the family report dated 9 April 2024 prepared by Regulation 7 Family Consultant Ms C (“the family report”);
(g)the s.67Z response prepared by the Department of Families, Fairness and Housing dated 10 February 2023 (“the s.67Z response”); and
(h)her outline of case filed on 27 May 2024.
At the hearing, the father said that he relied upon:
(a)his amended response filed on 13 May 2024;
(b)his trial affidavit filed on 13 May 2024;
(c)his affidavit in reply filed on 30 May 2024; and
(d)his outline of case filed on 30 May 2024;
At the hearing, the independent children’s lawyer said that she relied upon:
(a)her outline of case filed on 28 May 2024;
(b)the mother’s psychiatric assessment;
(c)the father’s psychiatric assessment;
(d)the family report; and
(e)the s.67Z response.
THE PARTIES’ POSITIONS
The parties are in agreement in relation to the following issues:
(a)that W and X should live and spend time with each parent according to their wishes;
(b)that the parents should make joint decisions in relation to major long-term issues concerning W and X;
(c)that either parent be able to travel internationally with W and X subject to compliance with certain conditions which were also agreed between the parents;
(d)that both parents should be restrained from denigrating the other parent, discussing these proceedings in the presence of the children and allowing the children to read or have access to the documents from these proceedings; and
(e)that the independent children’s lawyer should meet with the children to explain the orders made by this Court.
During closing submissions, Counsel for the father indicated that he would consent to orders for Y (but not Z) to attend B School.
The following issues therefore remain for adjudication:
(a)whether Y and Z should live with the mother or the father;
(b)what time, if any, Y and Z should spend with the parent with whom they do not live, and whether there should be orders restricting electronic communication between the father and Y and Z;
(c)whether Z should continue to attend H School or instead attend B School;
(d)whether the parents should make joint decisions concerning major long-term issues for Y and Z or whether the parent with primary care should make sole decisions concerning those issues;
(e)whether the mother should be able to obtain passports for Y and Z without the consent of the father; and
(f)whether orders should be made, as sought by the father, governing Y and Z’s attendance at extracurricular activities and church.
THE EVIDENCE
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The parents
The mother answered questions in cross-examination in a frank and straight-forward fashion. At times she displayed hostility towards the father, for example by mimicking the manner in which she says the children parrot his religious views, and on these occasions she displayed a degree of immaturity similar to that observed by Dr O. She readily made admissions against interest, for example that she had altered a medical certificate in 2020 so as to increase the amount of time which the doctor considered that the children needed to be absent from school, adding spontaneously that “it was a silly thing to do”.
Her evidence in cross-examination was consistent with her affidavits and with third-party information, although she was at times unable to recall dates and the details of events. She impressed as seeking to answer questions to the best of her ability, despite her recollections appearing somewhat scattered at times. Overall she presented as an honest witness.
The father answered questions in cross-examination in a manner which was frequently defensive and argumentative. He was markedly reluctant to make concessions even when presented with incontrovertible evidence: for example, he was initially unwilling to concede that a letter sent to the mother by his solicitors on 28 April 2022 forbade the mother to give Y the medication prescribed by her psychiatrist until the father had spoken to the psychiatrist himself, despite that being the only possible interpretation of the letter’s contents. He was equally unwilling to concede that X’s school records, annexed to the affidavit of the mother, showed that she had missed a total of 30 days during the school year of 2023, despite that figure appearing on the document shown to him.
The father appeared to struggle with his inability to control the process of cross-examination, frequently seeking to change the topic of his response away from that of the question put. His answers often had an evasive quality, in that he would answer questions about specific events in generalities, or shift the blame for problems from his own conduct to that of the mother. My observations were consistent with those of Ms C who when interviewing the father noted a “pronounced pattern of deflecting attention away from himself when responding to questions to provide criticisms of [Ms Welcher]”.
The father’s evidence was consistent for the most part with his affidavits and the evidence of other witnesses, although there were some inconsistencies. For example, he said in cross-examination that that his relationship with the mother began in 1993 although the date given in his affidavit was 1992, and his evidence about the sexual relationship between the parents before marriage was not consistent with the account which he gave to Dr O.
It is usually appropriate to avoid making adverse credit findings against litigants if the disposition of a case can legitimately be achieved otherwise. In parenting disputes such as this case, “adverse credit findings in this decision carry the inherent risk that, rather than bring an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future”.[1] Findings in relation to credit should only be made where necessary to resolve the issues in dispute and where they are soundly based.[2]
[1] Carlson & Fluvium [2012] FamCA 32 at [165]-[169] (‘Carlson & Fluvium’) quoted with approval in Adamson & Adamson [2014] FamCAFC 232 at [89]-[90] (‘Adamson’).
[2] Carlson & Fluvium at [168] quoted with approval in Adamson at [89]-[90].
In this case, and in my assessment, there were deficiencies in the evidence of both parents resulting from the intensity of their wish to achieve their desired outcome and (in the case of the mother) some memory difficulties said to be the result of her ADHD diagnosis and (in the case of the father) the evasive and rigid nature of his evidence.
This is not a case where global credit findings are necessary or appropriate. The weight which I attach to the evidence of each party is discussed elsewhere in these reasons.
Dr O – psychiatrist
Dr O assessed both parents for the purposes of the previous proceedings. At the start of the final hearing before me, Counsel for the independent children’s lawyer indicated that all parties sought to rely on those reports for the purposes of these proceedings and that no party sought to challenge them by way of cross-examination. On that basis I gave permission for the parties to rely on those reports.
The first affidavit of Dr O was filed on 17 June 2020 to which he annexed a psychiatric assessment of the mother dated 5 May 2020. His second affidavit was filed on 18 June 2020, to which he annexed a psychiatric assessment of the father dated 29 April 2020. His evidence is discussed elsewhere in these reasons.
Ms C - the Family Consultant
Ms C filed one report dated 9 April 2024. She attended Court in person on 4 June 2024 for cross-examination.
The Court is under no obligation to accept the recommendations of a Family Consultant. Whilst the Court will usually attach significant weight to the evaluation of the Family Consultant, the Consultant does not have the same opportunity as the judge to observe the witnesses or to weigh and test the evidence.[3]
[3] In the Marriage of Hall [1979] FamCA 73 at [24], cited with approval in Andrew & Delaine [2009] FamCAFC 182.
The basis for Ms C’s opinions and her evaluation of the children’s best interests were not successfully challenged in cross-examination. I attach significant weight to her observations and evaluation. Her recommendations however shifted somewhat during the process of cross‑examination and she did not reach a final or concluded view in relation to time between the two younger children and the father. I attach less weight therefore to that aspect of her evidence.
PARENTING PROCEEDINGS – LEGAL PRINCIPLES
The objects of Part VII of the Family Law Act 1975 (“the Act”) are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child of 20 November 1989.[4] My decision is guided by those objects.
[4] Family Law Act 1975 (Cth) s.60B.
In deciding whether to make a particular parenting order in relation to the children, I must regard the best interests of the children as the paramount consideration.[5]
[5] Family Law Act 1975 (Cth) s.60CA.
Section 60CC(2) of the Act sets out the list of matters that the Court must consider in determining what is in the children's best interests. Those considerations now follow.
What arrangements would promote the safety of the child and each person who has care of the child.
The Act confirms that safety includes safety from family violence, abuse, neglect or other harm.[6] Family violence and abuse are defined in the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful”. Examples of such behaviour include assault, sexual assault, derogatory taunts, unreasonably withholding financial autonomy or support and preventing a family member from keeping connections with his or her family and friends.[7]
[6] Family Law Act 1975 (Cth) s.60CC(2)(a).
[7] Family Law Act 1975 (Cth) s.4AB(2).
The Explanatory Memorandum indicates further that “other harm” allows me to consider whether the particular situation of these children is affected by issues such as inter-parental conflict.[8]
[8] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) 20 at [36].
“Safety” is not defined in the Act. I note that the Explanatory Memorandum to the Family Law Amendment Bill 2023 states that s.60B(a) of the Act is “intended to make it clear to all users of the Family Law Act that safety is a fundamental consideration when considering the best interests of the child.”[9] It goes on to state that Courts should consider “what arrangements would encourage or support a removal, reduction or avoidance of harm”.[10]
[9] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) 18 at [17].
[10] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) 19 at [30].
In considering these matters I must include consideration of:
(a)any history of family violence, abuse or neglect involving the children or a person caring for the children; and
(b)any family violence order that applies or has applied to the children or a member of the children’s family.[11]
[11] Family Law Act 1975 (Cth) s.60CC(2A).
Further, I must, to the extent that is possible to do so consistently with the children’s best interests, ensure that any order made:
(a)is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.[12]
[12] Family Law Act 1975 (Cth) s.60CG.
Has the father engaged in family violence and/or coercive control of the mother?
The mother alleges that the father began to exert coercive control over her shortly after the relationship began. She says she was then aged 16 and the father was about 32. She says that he was working at church. She says that the father manipulated her “into believing that the path to heaven was total obedience to him”.
The father does not dispute the difference between the parties’ ages, although he says that the mother was aged 17 when the relationship began, nor his position of authority in the church.
The parties agree that the mother left home at the age of 17 and travelled to Tasmania with the father. In cross-examination, the father said that it was the mother’s decision to leave her home and school and that she travelled to Tasmania with him at her “insistence”. He conceded that he had bought the ferry tickets for both of them and that he arranged the accommodation in Tasmania which they then shared. He accepted that the mother’s parents did not know where she was, saying that she had sent them a message only that she was going away. He denied having intercourse with the mother at this time but admitted that they engaged in sexual activities and that these were the mother’s first sexual experiences.
When cross-examined by Counsel for the mother, the father described his conduct as “imprudent”. Eventually and when pressed by Counsel for the independent children’s lawyer he conceded that what he had done was “wrong”. However at no point did he seem to understand or accept that as a result of his age and religious role, he was in a far more powerful position than the mother. Rather he continued to describe the early part of their relationship as he had to Dr O, namely as if the mother was the adult and he was the child.
Even if the father’s insistence that the mother pursued the relationship more vigorously than him is correct, it was incumbent upon the father in his role as her religious advisor to abstain from intimacy with her and to maintain an appropriate emotional distance from her. It is very troubling that, even after parenting teenaged children, the father remains unable to recognise the impact on the mother, and on the dynamics of the parental relationship, of entering into a relationship when he was in a position of authority over her.
I am satisfied that the father had influence and control over the mother at the time when their relationship began. I am satisfied that in facilitating her departure from her home and family and embarking on an intimate romantic relationship with her, the father exploited that power imbalance and the mother’s youth. The father’s belated and reluctant concession that his behaviour was wrong does not suggest that he has insight into the gravity of his conduct.
The parties then went to stay with the father’s mother in Adelaide before moving into their own accommodation in Adelaide. The father deposes to the mother moving to South Australia with him “willingly” as she did not want to live at home. He accepted in cross-examination that the mother’s parents were searching for her and that he wished to avoid encountering them because he knew they were unhappy about the relationship. He admitted that he had sex with the mother before they were married and said that he was “ashamed” about that. That admission is consistent with the evidence of the mother but inconsistent with the unchallenged account of what the father said to Dr O, namely that he did not have penetrative sex with the mother until after marriage. I am satisfied that the father misled Dr O about the sexual relationship with the mother and that he did so because of what Dr O identified as his shame about sexual matters.
When it was put to the father that the mother had been deprived of her freedom and independence as a result of her relationship with him, he appeared unable to grasp the concept put, stating that the mother “wasn’t a slave” and that he did not “chain her up”. That crass and defensive response is indicative of the father’s inability to accept responsibility for the extent to which he took advantage of the mother in initiating and continuing an intimate relationship with her.
The mother has alleged that the father raped her while the parties were living in South Australia. The father was arrested and interviewed by police about this allegation in 2021 but was not charged. He alleges that the mother has told her sisters that she fabricated the allegation to further her case within the parenting proceedings. The mother says that she told her sisters that she would not press charges in relation to the rape unless the father tried to withhold the children from her. The evidence does not support a finding in respect of this allegation and neither party asks me to make such a finding. However, the father in his evidence appears to rely on the lack of charges following the allegation as a basis on which I could find the mother’s evidence generally unreliable. I reject that submission. There are many reasons for which the police might decline to press charges in respect of a historical allegation and there is no evidence before me as to the basis on which they did so.
The parents married in 1994, shortly after the mother’s 18th birthday. The father conceded in cross-examination that none of the mother’s relatives attended the wedding because they continued to disapprove of the relationship.
The mother says that the father used religious matters to exert control over her during the relationship and that he believed that wives should be humble and obedient towards their husbands. She says that he controlled what she wore, and what music she listened to and that he insisted on a strict routine including prayers three times a day and the timing of meals. This evidence was consistent with what she said to Ms C and with her evidence in cross‑examination.
The father says that they did “what any other practising Catholic family from [their] Church would do”. He that the mother was “willing” and sometimes went to greater extremes than him in practicing their faith. The mother conceded that she promoted religious observance during the relationship, but her evidence suggested that she felt she had little choice in the matter, for example that she would “walk on eggshells” until she had complied with saying the rosary at the times specified by the father, and that she would have worn trousers if able to choose but that the father said that it was a sin to do so. I prefer and accept the evidence of the mother that she felt compelled to comply with the father’s requirements for religious observance.
The father told Ms C that in his church spouses are permitted to leave an abusive marriage but not to remarry. He conceded in cross-examination that he believes that the mother is living in sin because of her new relationship. When asked if he had said this to the children, he said that might have done so, but they would “just know it”.
The mother deposes to the father telling her several times that if she left him, he would keep the children from her. Her Counsel submitted that I should attach weight to the fact that the father did seek to remove the children from her care after separation, but only when she moved to Suburb M to live with her new partner, Mr P, in late 2019.
The mother said in cross-examination that she thought carefully before relocating with the children to Suburb M. She says that W was complaining about H School and that Y had no friends there, and that she decided to move the children during the school year because a rental property had become available close to her work and the school to which she proposed to send the children. She maintained that the father had consented to the proposed move and was not successfully challenged in that regard. The father says that the children were unhappy following the move. The mother says that they settled well in Suburb M and at school but were told by the father that they would lose their faith and go to hell if they continued to live with her and attend a State school.
The parties agree that on 27 January 2020 the father retained the children in his care. He sent an email to the mother saying that all communication with him and with the children must be by email, and further that:
… the children have been re-enrolled at [H School], and accepted, and will not be returning to you until the school year is under way and the children and I are confident that you will not go against their wishes, desires and hopes and attempt to restrain them from this decision of theirs.
The father conceded that he had asked H School to re-enrol the children without the mother’s permission. He conceded that they had no communication with the mother for several weeks after he removed them from her care. The father claims that he was acting on the wishes of the children to return to Town D at H School, but adduces no evidence that the children did not want to see the mother. His failure to facilitate any time between the children and the mother until after the mother had commenced Court proceedings is a further indication that he prioritised his wish to control the children’s lives over their need for communication with the parent who had been their primary carer since separation five years previously.
The mother submits that the evidence supports a finding that the father has engaged in coercive and controlling behaviour. The father says that it does not.
The Act contains no definition of coercive control. In a decision which was subsequently cited with approval by the Full Court, her Honour Judge Beckhouse held that:
In order to assess whether the father engaged in coercive and controlling behaviour, it is necessary to view his behaviour towards the mother over the course of the entire relationship (as well as post-separation), and to consider the cultural context in which it arose.
[…] it is important to note that this analysis is directed at determining whether the father embarked upon a pattern of conduct throughout the relationship (and beyond) that was aimed at coercing and controlling the mother, and if so, understanding the impact that such a course of conduct had (and continues to have) on the mother. This inquiry is necessary because it is relevant to determining the question of unacceptable risk, especially as the mother alleges that the coercive and controlling behaviour continued well beyond separation. […] Therefore, it is important to consider the evidence […] within the wider context of family violence alleged.[13]
[13] Ramzi & Moussa [2022] FedCFamC2F 1473 at [148]-[149], cited in Carter &Wilson [2023] FedCFamC1A 9 at [72].
The Full Court went on to note that it is not necessary to find that the perpetrator of coercive and controlling behaviour intended to perpetrate such behaviour. Their Honours adopted the observation of Riethmuller J and Senior Judicial Registrar O’Neill, writing extra-judicially:
The well-developed capacity of perpetrators to manipulate also equips them with the skill and motivation to provide denials of subjective intent that are at least superficially persuasive, making subjective intent a difficult element to prove against a perpetrator.[14]
[14] Grant Riethmuller and Lisa O’Neill, “Australia Taking Family Violence Seriously: Adjusting the Court Process to Improve Access to Justice” in Margaret Brinig (ed) International Survey of Family Law (Intersentia, 2021) 38 at fn 30, cited in Carter &Wilson [2023] FedCFamC1A at [81].
I have found that the context in which the parties’ relationship began was one in which the father held far greater power than the mother and took advantage of her comparative youth and vulnerability. I am satisfied that, using religion as an excuse, the father continued during the relationship to constrain the mother’s behaviour in relation to her dress, behaviour, mealtimes and the like.
I reject the father’s argument that no coercion or control was involved because the mother was for most of the marriage a willing participant in that way of life. That is because since the mother has chosen to live her life in a different and secular fashion, the father has continued to seek to control her, again using religion as an excuse, for example by retaining the children in January 2020 and refusing to let them see her.
It is important to note that these findings are not in any sense a criticism of the father’s religious beliefs nor of the religious group to which he and some of the children continue to belong. It was entirely open to the father to continue to adhere to his own beliefs but to demonstrate acceptance and tolerance of the mother’s decision to adopt a different way of life. The unyielding criticism which he has maintained and which, for reasons discussed later in these reasons, I am satisfied has influenced the children, is the product of his own functioning and not of his religion. I am supported in my view that the problem lies in the father’s personality rather than his religion by the observation of Dr O who notes that in relation to the father’s insistence that the mother initiated the intimate relationship between them, that:
… these attitudes appear to be more originating within his personality than being imposed by the outside force of religious doctrine. In a similar way, aggression seemed to be disowned and the mother viewed as being the angry and punitive one, depriving him of sex and of the children.
Having analysed the evidence before me, both the individual allegations and the context in which they are said to have occurred, I am satisfied that the father has engaged in coercive and controlling behaviour which falls within the definition at s.4AB(1) of the Act. I need not be satisfied that he intended to do so.
Has the mother engaged in family violence?
The father alleged to Dr O that the mother verbally abused him during the relationship, swearing at him in front of the children. He described the mother to Dr O as demanding, manipulative and controlling. He told Ms C that the mother used to “swear and scream at him during disagreements”. However none of these allegations appeared in his affidavits and accordingly I am unable to attach weight to them.
Have family violence orders applied to the children or either parent?
The mother says she first applied for an IVO against the father in early 2020 however later withdrew her application. In early 2022, the mother made a further application for an IVO and an interim order was made. A contested hearing was held in late 2022.
A final IVO was made in early 2022. It names the mother as affected family member and prevents the father from committing family violence, contacting or communicating with the mother (unless through a lawyer or mediator or for the purposes of counselling or mediation), approaching within 5 metres of the mother or attending at her home or workplace. It expires in late 2025.
In mid-2024, the mother made an application to vary the IVO in order to include all four children as affected family members. An interim order was made on that date which varied the IVO to include Y and Z as affected family members in the same basis as the mother, and W and X only in relation to the conditions that prevent the use of family violence.
Has either parent subjected the children to abuse or neglect or otherwise jeopardised their safety?
The father says in his case outline that he has concerns about the safety of the children in the mother’s care and provides, as an example, allegations that the mother has allowed Y and Z to travel alone by train to the city. In his affidavit he criticises the mother for permitting the children to travel from Town D to the city alone and asserts (without providing the source of his information) that Y travelled by train from the city to Town D and walked home by herself after dark. These allegations were not put to the mother by Counsel for the father. I take judicial notice of the fact that community standards may vary as to when children should travel unaccompanied on public transport. I do not consider that if accurate the father’s allegations represent a risk to the safety of these children.
The father also alleges in his case outline that the mother has left Y and Z unsupervised on several occasions. However his affidavit provides no evidence to that effect and accordingly I attach no weight to this allegation.
What arrangements would best promote the safety of the children?
The appropriate approach to situations involving risk to a child has been considered by the Full Court in the case of Isles & Nelissen.[15] Their Honours clarified both the distinction between fact-finding and risk assessment in such cases, and also the standard by which any finding of unacceptable risk is to be made. Their Honours opined that because Courts can and do consider risks which may be mere possibilities, those risks cannot be proved to the civil standard but are “instead postulated from known historical facts and present circumstances”.[16]
[15] Isles & Nelissen [2022] FedCFamC1A 97 (‘Isles & Nelissen’).
[16] Isles & Nelissen at [7].
Their Honours rejected the line of authorities which suggested that an unacceptable risk of harm needs to be established according to the standard of proof found in s.140(1) of the Evidence Act 1995.[17] Their Honours reasoned at [85]-[86]:
The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.
We have already acknowledged how risks of harm are not susceptible of empirical proof, but a mathematical hypothetical will nevertheless illustrate how findings of “unacceptable risk” cannot be measured by the civil standard of proof. Imagine a child will be minded by one of three randomly allocated carers. Assume one of the carers would sexually abuse the child, but the other two would not, meaning the child stands a 33.33 per cent chance of being sexually abused if left in care. No sensible adult would take the risk of leaving the child in care because, even though the prospect of sexual abuse is only possible but not probable, the risk is still too high to tolerate. In other words, it is unacceptable. If parents (and courts) were to instead only react to risks which are probabilities then, in that example, the child would still be left in care unless shown he or she was susceptible to sexual abuse by two of the three carers and the risk was then rated at 66.66 per cent.
[17] including Potter & Potter [2007] FamCA 350 and Johnson & Page [2007] FamCA 1235.
At the start of the final hearing neither parent asserted that the other presented an unacceptable risk to the children. By the end of the hearing, the mother submitted that Y and Z should spend no time and have no communication with the father. That proposal was not based explicitly on an argument that the risk presented by the father was unacceptable in terms of the children’s safety, nor was it limited to the evidence of family violence and coercive control. Instead, it is based on a holistic assessment of the needs of those children in the context of the capacity of each parent to meet them.
Accordingly, I do not find that the father presents an unacceptable risk to the safety of the children because of the coercive control which he has perpetrated. That behaviour however demonstrates that he has repeatedly failed to recognise and act upon the best interests of the children, as his conduct was driven by his wish to exert control rather than the needs of the children. His behaviour is driven also by his contempt for the mother and for reasons which follow I am satisfied that the children have been exposed to and influenced by that contempt.
Any views expressed by the children
The Explanatory Memorandum indicates that I have a discretion as to how I consider the views of the children, in the light of their particular circumstances, and as to the weight which I attach to those views.[18]
[18] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) 21 at [37].
Ms C interviewed all four of the children as part of her assessment. She does not record whether she asked X directly about parenting arrangements. She notes that W expressed regret for ceasing to visit his mother after the last final orders. He told Ms C that he now appreciates spending time with his mother and does not think it is right that X does not do so. He suggested that his father is better than his mother at providing an appropriate routine for Y and Z, but noted also the limitations which result from his father’s health problems.
Y described to Ms C her unhappiness at H School and her experiences of being bullied by other students and, according to her perception, singled out and not supported by teachers because of her psychological issues. She provided a number of reasons for her wish to attend B School including the subject choices available there, and the attendance at B School of a close friend who previously attended H School. The views expressed by Y about attendance at school camps are discussed elsewhere in these reasons.
Despite expressing wishes in relation to school and camp attendance which she knows to be in opposition to those of her father, Y told Ms C that she wanted to continue to spend equal time with each parent. She said that that she wants to continue to attend mass at the church attended by the father and to maintain her relationship with X.
Z told Ms C that he wants to live “70% with dad and 30% with mum” because the father would take him to mass at his church every Sunday, which Z believes will “help [his] chances to go to heaven”. He expressed a wish to remain at H School where he has many friends. He described positive attributes and memories in relation to both parents. Despite saying he enjoyed activities with Mr P, he said that Mr P was another reason for which he prefers to live with the father.
In assessing the weight to be attached to the views expressed by the children to Ms C, it is useful to consider the question of Y’s attendance at school camps.
The mother admitted in her affidavit and in cross-examination that she had removed Y from a youth camp in early 2023. She deposes to writing and telephoning the organisers of the camp but receiving no reply. She said that she had been worried about Y because the nuns in charge of the camp had told the father that she was “not too good” for the first few days. She said that when she arrived, the nuns only allowed her to speak to Y on her own when she threatened to call the police. She said that Y initially said that she was all right but then described her unhappiness at camp. The mother said that she had initially planned just to check on Y and take her out for a meal but was so concerned about her presentation that she decided to remove her.
The father complains that the mother did not notify him herself that she had removed Y but instead arranged for Y to message him. The mother says and I accept that she sent him a message on AppClose, the parenting app, but that he did not read it until after Y had messaged him. The father relies on the message sent by Y to him:
Mum said just tell the nuns she took me. Please, it wasn’t my idea... I said that I wanted to go to catechism…btw, pls tell the nuns that I promise with all my heart that I didn’t ask/convince her about leaving the camp, in fact I kept saying how it was nice and I wanted to go to catechism. Also I apologise for mum’s behaviour.
The father says in his affidavit “you can see the effect this had on [Y]”. I infer from that comment that he is asking me to treat Y’s message to him as evidence that she had been removed from the camp against her wishes and that she had been distressed by the mother’s conduct.
That submission needs to be considered with the evidence about the father’s proposal that Y attend a subsequent camp in 2024. The father sent the following email to Ms C after his interview on 21 February 2024:
Hi [Ms C], Firstly thank you for the opportunity to speak with you today. And please accept my apology for writing this short note, it was not my intention, but I have just come off speaking with [Y] (we are allowed to communicate each Wednesday between 6.00 pm to 8.00 pm) and I thought there is no one else to pass this on to. I will be very brief, but [Y] is so upset and withdrawn, not wanting to speak or anything (most unusual as we usually have lovely conversations on Wednesdays).
Anyway [Ms C], [Y] wants to go on the school camp next week (she really wants to go), and so I wrote asking [Ms Welcher] on the App for her approval (it will be my week with the children). She has not accessed the App since [early 2024], so I asked [Y] (without disclosing what I had written) if she would just tell her mum that I have left a message for her. Whether [Y] guessed what the message was, I am not sure, but she told me (holding back the tears), that mum would NOT let her go on the three-day camp, saying she could visit during the day, but not sleep over (this very act would make [Y] different from all the other children – which [Y] does not want). [Y] was, may I say, heartbroken, did not want/could not talk. This is another example of what has been happening time after time for years. [Ms Welcher] says [Y] should change schools so she can have some friends to be with, yet here is [Y], wanting to go on a camp with a couple of newfound friends at school, and to be a part of the class, and [Y]’s wishes are against what [Ms Welcher] wants (she wants [Y] out of the school and away from the Church). As [Dr O] said [Ms Welcher] has difficulty in distinguishing between her wants and the children’s needs.
I have truly not seen [Y] shrink into her shell as much as tonight.
[Ms C], I know writing this email was perhaps not the wisest thing to do, but I have taken the chance, as I am so concerned about [Y], when with [Ms Welcher].
[mistakes in original, emphasis added]
The contrast between the father’s email and what Y said to Ms C is instructive. Ms C notes in her report that:
[Y] informed the writer that she was feeling worried about a school camp that was coming up. She reported that she gets very anxious and stressed when she is away during school camp because she misses her family. She has spoken with her mother about the upcoming camp and perceives that her mother understands her feelings and will support her if she does not wish to attend camp, but her father would be disappointed. It was apparent that [Y] was feeling conflicted about camp because she does not want to disappoint her father.
[emphasis added]
I accept the unchallenged evidence of Ms C in this regard. I am satisfied that Y preferred not to attend the camp but, in an attempt to appease her father, she told him that she did wish to attend and that she was upset that the mother would not permit her to do so. The father readily accepted what Y said to him because it was consistent with his own wishes. He then conveyed it to Ms C in an attempt to paint the mother in a negative light.
This evidence is instructive because it provides a clear example of a dynamic which appears to have occurred repeatedly with Y: when her preferences do not align with the father’s views, she feels able to share them with the mother, but expresses to the father views that align with his own. She then tells him that the mother has ignored her wishes and the father criticises the mother, when in fact the mother is acting in accordance with what Y really wants. I am satisfied that this pattern explains the message sent by Y to the father after her mother removed her from camp in early 2023.
Ms C opines that the views expressed by Y and Z as to their preferred parenting arrangements have been influenced by the father. She said in cross-examination that Z’s reference to wanting to spend a certain percentage of time with each parent strongly suggested that he had “been spoken to”. My findings about the extent to which the children have been exposed to the father’s negative views of the mother are discussed elsewhere in these reasons. In my assessment the dynamic described above is likely to have affected the views expressed particularly by Y.
36.Either parent be at liberty to travel with Y and Z interstate, or outside the Commonwealth of Australia during any time that Y and Z are with that parent, with the consent of the non-travelling parent and with such consent not to be unreasonably withheld, provided that not less than thirty (30) days prior to the travel, the travelling parent notify the non-travelling parent in writing as to:
(a)copies of itineraries, including details of the state/s and/or country/ies to which Y and Z will travel;
(b)copies of airline tickets, both outgoing and returning, (if applicable);
(c)evidence of travel medical insurance (in the event of international travel); and
(d)the address(es) at which Y and Z will be residing and a telephone number on which the other party can communicate with Y and Z.
37.The parents are not permitted to travel with Y and Z to a non-Hague Convention country or travel to a location where at the time of the travel there is a Travel Warning of “reconsider your need to travel” or “do not travel” issued from the Department of Foreign Affairs, unless otherwise agreed in writing.
38.Each of the parents, their servants and agents are retrained by injunction from:
(a)Discussing these proceedings in the sight or hearing of the children;
(b)Denigrating the other parent or any extended family member or partner of the other in the sight or hearing of the children;
(c)Allow the children to come into contact with or read the contents or any material filed in these proceedings in any way.
39.The Independent Children’s Lawyer (“the ICL”) meet with the children (individually or together) to explain these Orders and for such purpose:
a.Each of the parents do all acts and things necessary to facilitate the children (or any of them) attending upon the ICL, as may be requested by the ICL (including either in person or via electronic video means); and
b.The ICL be at liberty to request the assistance of the Family Report Writer, Ms C in explaining these Orders to the children (or any of them).
40.Upon compliance with Order (39) above the appointment of the Independent Children’s Lawyer be discharged.
41.Pursuant to sections 65DA (2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
0
11
3