Wells & Wells
[2024] FedCFamC2F 1516
•30 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wells & Wells [2024] FedCFamC2F 1516
File number(s): PAC 1922 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 30 October 2024 Catchwords: FAMILY LAW – PARENTING – Serious allegations of family violence – Lack of insight by the father – Children have not spent time with father for period of almost four years – Leaving the door open for relationship with the father Legislation: Family Law Act 1975 (Cth) ss 60CC, 60CG, 61C, 61D Cases cited: Isles v Nelissen [2022] FedCFamC1A 97
Johnson & Page [2007] FamCA 1235
Division: Division 2 Family Law Number of paragraphs: 150 Date of hearing: 26-28 August 2024 Place: Parramatta Counsel for the Applicant: Mr Stagg Solicitor for the Applicant: Monardo Legal Counsel for the Respondent: Ms Kennedy Solicitor for the Respondent: Johnsons Law Group Solicitor Advocate for the Independent Children's Lawyer: Ms Karagiannis Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
PAC 1922 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WELLS
Applicant
AND: MS WELLS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
30 OCTOBER 2024
THE COURT ORDERS BY CONSENT:
1.That all previous Parenting Orders be discharged.
Parental Responsibility
2.That the mother shall have sole parental responsibility for making decisions about major long-term issues for the children X born in 2012 and Y born in 2013.
Live with
3.That the children shall live with the mother.
Arrangements for the father to spend time with and communicate with the children
4.The father be at liberty to post gifts and cards to the children to a specific address provided by the mother.
5.Within seven days of the date of these Orders, the mother provide to the father an address to which the father can post any gifts or card for the children.
Restraints
6.That the parents are restrained from:
(a)discussing with or in the presence of the children, any Court proceedings or legal issues relating to the mother or father; and
(b)showing any Court document from any proceedings relating to the mother or father to the children.
7.That the parents are restrained by injunction from physically disciplining the children or using physical discipline towards other children or animals in the children’s presence.
8.That the parents are restrained by injunction from denigrating the other parent or members of the other parent’s family to, including in writing, or in the presence or hearing of the children and shall immediately remove the children from the vicinity of any other person doing so.
9.That the parents are restrained by injunction from consuming any illicit drugs whilst caring for the children or within twenty-four (24) hours prior to the children being in their care.
Medical and Schooling Information
10.The parents shall keep one another informed at all times of:
(a)their current contact telephone number and advise the other parent of a change in such details within twenty-four (24) hours of such change occurring;
(b)any major medical problems or illnesses suffered by the children while in their respective care;
(c)any medication that has been prescribed for the children;
(d)particulars of the others who may reside with the children; and
(e)any other matter relevant to the children’s welfare.
11.That in the event of the children suffering a medical emergency requiring medical attention whilst in the care of either parent:
(a)The other parent is to be notified as soon as practicable and within four (4) hours;
(b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the children attend as soon as practicable; and
(c)The medical practitioner or facility is to be advised that both parents have access to the children’s medical records and information retained by them upon request.
12.That the mother shall inform the father in writing as soon as practical of any specialist medical appointments with any new psychologist, psychiatrist, counsellor or therapist (hereinafter referred to as ‘consultant’) in relation to the children.
13.That the mother will sign any authorities or other documents (if any) as may be required to authorise any doctor or specialist or consultant upon whom the children attend to forward to the father, at his expense, copies of any medical reports.
14.That within fourteen (14) days of these orders and thereafter within fourteen (14) days of the children’s subsequent enrolment at any school the mother shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the father copies of each child’s school reports and any documents generally provided to parents by the school.
ICL meeting with children
15.That within seven (7) days of the date of these Orders, the Independent Children’s Lawyer is to meet with the children to explain the effect of these Order to the children, with the mother to do all reasonable things to facilitate the Independent Children’s Lawyer’s meeting with the children.
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 OBRADOVIC:
These are the Reasons for Judgment in respect of competing parenting applications of the applicant father, Mr Wells (‘father’), and the respondent mother, Ms Wells (‘mother’).
The parties have two children together, X who is 12 years old and Y who is about to turn 11 (collectively ‘children’).
The parties commenced a relationship in late 2010 and were married in 2015. The parties separated in February 2021.
In mid-2021, the father was charged with sexual assault of the mother. Following a criminal trial, the father was acquitted of those charges in late 2022.
The children have lived with the mother and not spent any face-to-face time with the father for 3 years and 8 months. The children have, however, had limited communication with the father via Facetime.
PARTIES’ APPLICATIONS
At the commencement of the hearing, the father moved the Court for orders that he and the mother have joint decision-making in respect of the long-term issues for the children, that the children live with the mother and spend time with the father from Friday 6pm (or 3pm if a non-school day) until Sunday 3pm in the third week of each month. The father also sought orders that the children communicate with him by way of FaceTime between 5:30pm to 6pm on Tuesday, Thursday, and Sunday each week.
At the commencement of the hearing, the mother moved the Court for orders that she have sole decision-making in respect of the long-term issues for the children, that the children live with her, and spend time with the father in accordance with their wishes. The mother also sought orders that the children communicate with the father by way of FaceTime, twice per week on Tuesdays and Thursdays between the hours of 6pm to 7pm, but for no longer than 30 minutes each call.
The Independent Children’s Lawyer (‘ICL’) supported the mother’s position.
As noted at [133] to [136] below, after the conclusion of the evidence, the parties were in agreement about a host of orders. The only issue which remained for determination, was what time, if any, the children were to spend with the father.
LEGAL PRINCIPLES
These proceedings were heard and determined after the commencement of the Family Law Amendment Act 2023 (Cth). The children’s best interest remains the paramount consideration in respect of any parenting orders the Court makes.
Division 2 of Part VII of the Family Law Act 1975 (Cth) (‘Act’) deals with parental responsibility. Section 61C provides that each of the parents of a child has parental responsibility, subject to orders. Section 61D provides that a parenting order that deals with the allocation of parental responsibility may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Parental responsibility orders may be made in favour of a parent or some other person.[1] Even if an order provides for joint decision-making, thus requiring the parties who hold parental responsibility to consult and make a genuine effort to come to a joint decision, there is no requirement for a person, before acting on a decision, to establish that the decision has been made jointly.[2]
[1] Family Law Act 1975 (Cth) s 64C (‘Act’).
[2] Act s 61DAA.
In determining what is in the children’s best interest, the Court must consider the matters set out in s.60CC(2) Act and, if the children are Aboriginal or Torres Strait Islander, the matters set out in s.60CC(3) of the Act.
Specifically, in respect of children who are Aboriginal or Torres Strait Islander, the Court must consider the children’s right to enjoy the child's Aboriginal or Torres Strait Islander culture and the likely impact any proposed parenting order will have on that right.[3]
[3] See Act s.60CC(3).
Otherwise, s.60CC(2) of the Act specifies the non-hierarchical criteria which must be considered in all cases when arriving at a conclusion as to what is in the children’s best interests:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
In considering what arrangements would promote the safety of the children and of each person who has the care of the children, the Court must consider any history of family violence, abuse or neglect involving the children or a person caring for the children together with any family violence order that current or has previously applied to the children, or a member of the children’s family.[4]
[4] Act s.60CC(2A).
Section 60CG of the Act further requires the Court to ensure that any parenting order it makes is consistent with any family violence order and that it does not expose a person to an unacceptable risk of family violence, but only to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration.
Family violence is defined in s.4AB of the Act, to mean violent, threatening or other behaviour by a person that coerces or controls a family member of the person's family, or causes the family member to be fearful. Examples include: assault, sexual assault or other sexually abusive behaviour, stalking, repeated derogatory taunts, intentionally damaging or destroying property, intentionally causing death or injury to an animal, unreasonably denying the family member the financial autonomy that he or she would otherwise have had, unreasonably withholding financial support needed to meet the reasonable living expenses of the family member or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support, preventing the family member from making or keeping connections with his or her family, friends or culture, unlawfully depriving the family member, or any member of the family member's family, of his or her liberty. Furthermore, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
The assessment of risk is an evidence-based conclusion.[5] In assessing whether the risk of harm is unacceptable, the Court is not merely evaluating whether the risk will occur, but also the potential consequences of the risk being realised.[6]
[5] Isles v Nelissen [2022] FedCFamC1A 97 at [85].
[6] See for example the discussion in Johnson & Page [2007] FamCA 1235 at [62]-[74].
PARTIES’ DOCUMENTS AND EXHIBITS
The father relied on the following documents:
(a)Amended Initiating Application filed 21 May 2024;
(b)Affidavit of the father filed 21 May 2024 (sans the annexures);
(c)Affidavit of Mr B filed 22 May 2024 (sans the annexures); and
(d)Outline of Case document filed 19 August 2024.
The mother relied on the following documents:
(a)Amended Response to Initiating Application filed 17 May 2024;
(b)Affidavit of the mother filed 21 May 2024 (sans the annexures);
(c)Affidavit of Mr C filed 21 May 2024 (sans the annexures);
(d)Notice of Child Abuse, Family Violence or Risk filed 30 April 2021;
(e)Family Report prepared by Ms D dated 20 September 2023; and
(f)Outline of Case document filed 21 August 2024.
The ICL relied on the following documents:
(a)Outline of Case document filed 19 August 2024;
(b)Statement of Issues and Agreed Facts filed 20 May 2024;
(c)Child Inclusive Conference Memorandum released 13 May 2021; and
(d)Family Report prepared by Ms D dated 20 September 2023.
The following documents were exhibits in the proceedings:
·Exhibit 1 - Solicitor’s correspondence being: Email correspondence from Johnsons Law Group to Monardo Legal dated 20 May 2024 (Family Therapy); Email correspondence from the ICL to Monardo Legal (Drug Testing) dated 17 July 2024; Email chain from Johnsons Law Group & Client for Family Therapy dated 29 July 2024; Email chain from ICL for Family Therapy dated 13 August 2024; Email chain forwarded to client for Family Therapy dated 15 August 2024; and Email chain with Monardo and ICL regarding Fathers partner dated 16 August 2024. These being located at pages 2, 3, and 5 to 17 of the mother’s Tender Bundle.
·Exhibit 2 - Subpoena Sleeve 9 being E School Wellbeing Reports for the children at pages 238 to 249 of the Joint Tender Bundle.
·Exhibit 3 - Subpoena sleeve 12 being Ms F session notes with the children at pages 285 to 321 of the Joint Tender Bundle.
FINDINGS AND DETERMINATION
Observations of the Parties During the Hearing
The Court’s observations of the father is that he is belligerent and unwilling to make concessions when appropriate. Such conclusions are based on his general demeanour in the witness box, his tone of voice, pronounced sighing at many of the questions that were put to him before answering the questions, and the many sarcastic answers he gave during his oral evidence: including for example referring to Y’s extra-curricular activities as ‘if you can call it that’, ‘who would you like me to talk to’ when asked if maybe it was best not to involve the children in requesting school photographs, and in answer to why he did not make an application to the Court for time following his acquittal saying ‘I’m not a Court person… money doesn’t grow on trees’.
The mother impressed as a witness of truth.
Where the two are in conflict, the Court prefers the evidence of the mother.
Agreed Facts[7]
[7] Except for typographical errors, the agreed facts are verbatim from the Statement of Issues and Agreed of Facts filed 20 May 2024.
The father was born in 1977 and the mother was born in 1978.
There are two children of the relationship, X born in 2012 and Y born in 2013.
The parents commenced a relationship in late 2010 though the parents do not agree on the exact month. The parents were married in 2015. They separated in February 2021 and the mother relocated to Town G with the children in March 2021.
The children have remained residing with the mother in Town G and attend E School. X is due to commence year 7 next year.
The father has remained residing in the Sydney area and the travel time between the children and the father is about four hours.
A provisional apprehended violence order (‘ADVO’)[8] was made against the father and protecting the mother in early 2021 with condition 1.[9]
[8] In the Statement of Issues and Agreed Facts, the parties refer to this as an apprehended violence order (‘AVO’), but as it is an apprehended domestic violence order the abbreviation ‘ADVO’ is used throughout the Reasons for Judgment for consistency.
[9] In the Statement of Issues and Agreed Facts this was referred to as ‘Order 1’.
The father filed an Initiating Application on 15 April 2021 (sealed 20 April 2021) seeking recovery orders for the children. The father filed an Amended Initiating Application on 29 April 2021 and the mother filed her Response on 30 April 2021.
On 4 May 2021, the father was granted leave to withdraw the application for recovery orders and an order for an ICL to be appointed was made. Orders were also made by consent on 4 May 2021 for the children to reside with the mother and for the father to have phone contact with the children Tuesday, Thursday and Sundays each week unless with the written consent of the mother.
The father was charged in relation to sexual assault of the mother, which charges were first before a Local Court in mid-2021.
In mid-2021, a provisional and varied ADVO was made against the father protecting the mother and with conditions 1 & 3 (not to approach school or childcare the mother may attend).
On 23 July 2021 the father’s application for an adjournment for his criminal law matters to be dealt with was granted.
On 13 April 2022, a Family Report was ordered, and notation on that date indicates that the criminal law proceedings for the father were not yet finalised.
On 22 September 2023 Family report by Ms D was released and the parties ordered to participate in dispute resolution.
In late 2022, there was a Court trial following which the father was found not guilty by verdict of jury of sexual assault counts in relation to the mother.
On 22 February 2024, the parties were granted an extension of time to participate in dispute resolution.
The parties participated in dispute resolution arranged through the Legal Aid Commission, NSW, on 16 April 2024. The parties were unable to reach a resolution of this matter on that day.
The children have generally not spoken with the father via Facetime between April 2023 to April 2024, however they have recommenced communication with the father via Facetime since April 2024.
The children have not seen the father in person since separation.
Other Relevant Findings
In 2003, Mr B, the father’s first child from a previous relationship, was born.
In 2007, K, the father’s second child from a previous relationship, was born.
Mr B and K lived with the parties five nights each fortnight while the parties were together.
In 2012, while pregnant with X, the mother was diagnosed with a medical condition and admitted to hospital. Whilst at the hospital, an argument occurred between the maternal grandmother and the father.
In early 2012, during an argument between the parties, the father approached the mother’s dog and, with a tight grip, dragged the dog across the floor. The father said ‘I am going to put a bullet in her head, and I’ll get my mate to dump her in a big hole! You will never see her again!’. The mother was fearful as a result of the father’s actions. On this occasion, the father perpetrated family violence.
In mid-2018, during an argument, the father grabbed the mother’s arm and pulled her back as she attempted to leave the home with the children. The mother slapped the father and the father then punched a hole in the door. The mother left the home with the children, who were crying and said ‘Please mum, do not take us back there’. On this occasion, the father perpetrated family violence.
In or around early 2019, the father and Mr B had an argument in the presence of the children. The mother described this event as a fight, and that the father punched Mr B in the head with a closed fist and pulled out a chunk of his hair. When pressed in cross-examination, the father described this event as a ‘push and shove’ but not a ‘punch up’. In his evidence, Mr B denied any physical altercation with the father. The Court accepts that on balance, the argument between the father and Mr B was a violent one, and that it occurred in the presence of X and Y. On this occasion, the father perpetrated family violence.
The mother alleged that in or about early 2021, the father sexually assaulted her on a number of occasions. She reported these matters to police and the father was subsequently arrested, and charged. In early 2022, the father entered pleas of not guilty for the counts of sexual assault as alleged by the mother. Following a criminal trial, the father was acquitted of all charges. The mother chose not to give detailed evidence about the allegations of sexual assault in these proceedings, and she did not ask the Court to make any findings of fact in respect of such allegations.
In early 2021, the father took the mother’s car keys and refused to give them back. The mother called the Police and the father returned her keys to her. The Police attended the parties’ home and after they left, the father yelled at the mother in the presence of the children. The father said to the mother ‘calling the cops was the biggest mistake you have made so far. All you need to do is get out, that is all I want. I want you fucking gone’. The mother then vacated the parties’ home with the children and stayed at her grandmother’s home in Suburb H. On this occasion, the father perpetrated family violence.
The father conceded in his oral evidence that he would call the mother names during the time the parties were together, and that he called her a ‘cunt’ and a ‘bitch’. On such occasions, the father perpetrated family violence.
Between March and August 2021, the children had weekly calls with the father.
The father conceded in cross-examination that, in about April 2021, he possibly said words to the effect ‘I’m going to shoot that bitch’ after he had finished a phone call with the Y, but that he thought the phone call had ended and that Y had not heard the comment. The Court accepts that hearing this comment would have been frightening to Y. On this occasion, the father perpetrated family violence.
Around the end of August 2021, the children stopped answering the father’s calls, and the father stopped calling the children in about April 2023.
The father has made no attempts at contacting the children’s schools to find out about their progress, he has made no effort to find out about the children’s counselling and their difficulties, and he has made no meaningful attempts at maintaining a relationship with the children post separation, choosing to instead blame the mother for the loss of his relationship with the children.
In April 2024, the parties agreed to recommence the FaceTime calls between the children and the father and to engage in family therapy. There have only been two further FaceTime calls since.
To further the agreement in respect of family therapy, in May 2024 the mother proposed two potential practices to conduct the family therapy, followed up by the ICL in July 2024 with a further potential family therapist. The father did not engage with the proposals. Family therapy did not occur.
The parties were divorced in mid-2024.
In mid-2024, the mother received a call from the children’s school, who advised her that Y had been self-harming and scratching at her skin with an object.
In mid-2024, the mother had to collect Y early from a sleep-over at her friend’s home after the mother received a message from Y’s friend’s mother stating that Y had been saying ‘about [self-harm] and stuff’.
Expert Evidence
Child Inclusive Conference Memorandum to Court dated 13 May 2021
The Child Inclusive Conference Memorandum was prepared by Family Consultant Ms J (‘Family Consultant’). On 13 May 2021, the parties were interviewed both separately via telephone and Microsoft Teams, and the children were interviewed via Microsoft Teams.
The Family Consultant explored family violence as a risk factor in the proceedings. The Family Consultant noted that the parties reported an ADVO[10] in place at the time, protecting the mother from the father. The father told the Family Consultant that he had also previously been the subject of an ADVO that protected his previous partner. The father denied several family violence allegations made by the mother, including denying allegations of physical violence, sexual assault, acting in a way that caused the death of the mother’s dog, controlling the mother, restricting the mother’s access to her car, threatening the mother including a threat to shoot the mother, having access to a gun, and stalking or monitoring the mother. Rather, the father alleged to the Family Consultant that the mother was controlling of him and the finances, and dictated who he could and could not talk to. The father also stated that he and the mother were verbally abusive towards each other during arguments.
[10] The parties referred to this as an ‘AVO’ in their Statement of Issues and Agreed Facts filed 20 May 2024.
Given the seriousness of the family violence allegations, the Family Consultant stated that if the mother’s account was accurate, her and the children’s safety was at significant risk from the father, and it may not be in the children’s best interests to spend time with him.
Child safety and wellbeing was another risk factor explored by the Family Consultant. The father stated that he did not have concerns for the children’s wellbeing when in the mother’s care. The mother raised concerns with the father’s parenting and that the children have feared him before. The mother also told the Family Consultant that the father had previously called Y a ‘little bitch’ and X a ‘baby’.
Drugs and alcohol were explored as risk factors by the Family Consultant. The father told the Family Consultant that he and the mother had tried illicit drugs before, denied drinking alcohol to excess, and alleged that the mother had previously consumed alcohol in the middle of the night/early morning. The mother claimed that neither her nor the father drank alcohol to excess and reported that the father had last used illicit drugs in early 2021.
In terms of the relationship between the parties, the parties seemed to agree that there was generally no communication between them.
The Family Consultant stated that X presented as polite but very quiet and distant, with a ‘flat effect’. X reported a lot of yelling, fighting and swearing when the parties resided together, but stated this was often due to Y’s behaviour. He said that he had seen the mother crying but denied witnessing physical violence. X reported that the father would get angry at him and Y and smacked them if they misbehaved. X told the Family Consultant that he did not really like the father before separation, but that he has been nicer since separation, although he suspected this is because the father wants to spend time with him. X added that the father bought a lot of new items for the house and shows them over Facetime, and that the father told X he would fix his bike that has been broken for two years. X said he would like to spend time with the father, but that he would feel sad if he lived primarily with him, also if he did not spend any time with him. Moreover, X told the Family Consultant that he worries about hurting his parents’ feelings and feels sad at times, but does not talk to anyone about this.
The Family Consultant stated that Y presented as friendly and outgoing. Y told the Family Consultant that the mother is nice, that she does not find her scary and that there is nothing she does not like about her. Y reported that there was ‘so much anger we had to deal with’ when the parties lived together and that they ‘screamed at each other a lot’ which hurt her ears. Y denied witnessing physical violence. Y also said that FaceTime with the father had ‘been good’ and that the father told her of the things he was going to buy her including a new television and toys. Y said she would like to spend time with the father because he will not scream if the mother is not there, but does not want to live with him.
Family Report Released 22 September 2023
The Family Report dated 20 September 2023 was prepared by Ms D, who was also cross-examined by the parties at hearing.
Ms D identified the following as issues in dispute during her assessment:
(a)Whether the mother should return to Sydney to facilitate time with the father and have equal shared time arrangements with him, or whether she should be allowed to continue her current living arrangements;
(b)Whether allegations of domestic and family violence and sexual assault impact on parenting orders; and
(c)Some aspects of financial settlement are unresolved in this matter impacting on parenting arrangements.
Ms D also identified the following as issues during her assessment:
(a)Current arrangements for phone/FaceTime contact with the father remain unanswered since April 2023; and
(b)Evaluation of the impact of the criminal proceedings on post-separation care arrangements, and whether those allegations present any risks to the children moving forward.
Ms D described the father as cooperative and eager to share his perspective on his application and his wish to see the children. The father spoke to Ms D about the impact of the mother’s move to Town L, which moved the children over four hours away from him and severed his connection with them. Ms D noted that the father felt confused when the mother took the children away as he was involved in the care of the children when the parties lived together and the mother would work, and that it ‘really hurts’. The father also emphasised to Ms D that he believed the mother’s move was motivated by finances and alleged that she told him she wanted $250,000. Ms D noted the father later again said he thinks the mother is motivated by ‘the house and money and she ([the mother]) is using the kids to get what she wants’. The father also stated that he was frustrated to be paying $1,000 per month in child support when he cannot see the children. The father became upset during his interview and said ‘I’m never going to give up on my kids’.
When discussing the reason for the parties’ separation, the father told Ms D that initially the separation was about trust and that they then argued over money. He also stated the mother has ‘trust issues’. The father denied the allegations of sexual and domestic violence made by the mother, stating to Ms D that ‘she will play the victim like there is no tomorrow’. Ms D noted that the father said the mother thinks all men are narcissists, that she disparages him to the children, and then stopped and said ‘Now, I am not going to sit here and bag her out, she is a good mum. I just want the kids to move back closer to me and to have 50% care of the children.’
The father also expressed to Ms D that he believed once the children saw him and spent time with him, they will open up and he will be able to restore a connection with them. He added that he and Y were close but that he expects X will be withdrawn.
The mother told Ms D that she left the relationship because of the domestic and family violence, and that the father was ‘abusive financially, sexually, physically towards me and his older son, [Mr B]. He physically assaulted [Mr B] and our two children witnessed it.’ The mother mentioned to Ms D that the father was found not guilty of the charges of sexual assault but maintained she was telling the truth. When discussing the father’s parenting application with Ms D, the mother stated it was ‘about winning for him’.
The mother told Ms D that the children are ‘thriving’. She also stated that she was supporting phone calls with the father in accordance with Court Orders, but that this had not been going well and the children were reluctant to talk to him since around March 2023. She also informed Ms D of the children’s views, claiming to Ms D ‘they want to live with me, and they do not want to see him at all.’ The mother added to Ms D that she did not agree to the father spending supervised time as he is ‘so manipulative’ and hostile and aggressive during phone calls. She stated that she could not live close to the father and that co-parenting would be difficult especially given that the parties had not communicated since the mother’s vacation of the matrimonial home.
The safety and wellbeing issues identified by Ms D related to the children being exposed to domestic and family violence which can have a profound and long-lasting impact on children’s sense of safety and emotional wellbeing.
Ms D noted the mother had sought support and counselling and is progressing well.
Ms D stated that the father had little insight into the impact of a two-year period of no regular contact with the children. Ms D added that the criminal proceedings against the father had a significant impact on his relationship with the children, leaving him at a loss on how to rebuild that relationship. Ms D also noted the father’s persistence with phone contact even though the children repeatedly decline to engage.
In her report, Ms D observed that the mother was attuned to the children’s developmental needs and supporting their transition, education, and emotional wellbeing post-separation. Ms D added that the mother is aware of her own support needs and has accessed support. Ms D also was of the view that the children’s views expressed to her, in favour of living with her, is in line with what they would say given their developmental stage and their desire to please the mother as they are reliant on her for sole care.
Children and their relationships
Ms D opined that X presented as shy and reserved. X told Ms D that he knew the visit to Ms D was about the father, that he does not want to see the father and that ‘my dad hurt my mum’. Ms D noted that she asked X if he would be interested in the father watching one of his sports games one day and said ‘maybe’. Ms D observed that X withdrew from the conversation, asked to see the mother, and upon leaving the room was upset and hugged the mother for reassurance. X then spoke about his pets and settled after a few minutes but declined to talk further.
Ms D observed Y to be very talkative and enthusiastic. Y shared that she really likes her teacher, has pets and loves her home that she lives in with her mother.
Ms D explored the parties and separation with Y. Y told Ms D that she remembered Mr B getting into a fight. Ms D noted that Y also made the following comments:
·‘Mummy and daddy used to fight when they lived together, and daddy kept on picking up mummy.’
·‘Dad used to say mean stuff all the time and he was strict.’
·‘Dad used to hit the dog and said that he will call someone to come and get it.’
Y told Ms D that she did not want to speak with the father anymore over the phone as he teases her. When prompted to provide an example, Y told Ms D the father would say ‘if you come and see me, I will give you your presents.’ Y also said ‘I like living in [Town L] and I want to live here forever… I don’t want to see him.’
Evaluation
Ms D described the relationship between the children as ‘close’ and described both children as kind, affectionate, and close to their mother during observations. The children were unified in their view that they did not want to see the father or speak to him on the phone, with the exception of X’s ‘maybe’ response to the question of his father attending one of his sports matches.
Ms D opined that the children had been exposed to fighting in the relationship and post separation, the Court proceedings against the father, and the emotional impact on the mother. Ms D stated that children of their age often feel protective of the parent who is an alleged victim of abuse, and are very aware of the dynamics and issues.
Ms D was of the opinion that the father had little insight and made no admissions regarding how his own behaviour contributed to the relationship breakdown, which is ‘problematic’.
Although both parents over the years have made a commitment to the parenting role, Ms D opined that the father’s period of no contact with the children meant that their emotional and practical needs have been met by the mother. Ms D was thus of the opinion that the father’s practical role with the children had ‘diminished’ over the last three years. She opined that it would take time and practice for the father to reacquaint with the children.
Ms D described the co-parenting relationship as ‘problematic’, due to a multitude of reasons including the lack of communication between the parties since the mother left the home, the criminal proceedings, ADVO against the father, father’s suspicions of the mother’s financial motivations, and the mother’s fears surrounding the father. Ms D opined that an effective co-parenting relationship would require the mother to feel she can support ‘these arrangements’, and the parties’ communication would need to improve.
Ms D was of the view that a safe connection between the children and the father would benefit the children in developing a sense of identity, and have the opportunity to access him in the future should they wish to. Ms D also suggested that the children access group or individual support to explore a safe connection with the father.
Recommendations
Based on the information gathered in the assessment, at the time of completing the Family Report, Ms D recommended that the children live with the mother, and:
(a)If the father presents an unacceptable risk to the children, time with the father be initially supervised for a period of three hours on a monthly or bimonthly basis, with a preference that the father travel to Town L/Town G for such time;
(b)If the father does not present an unacceptable risk to the children, that he initially spend supervised time with the children with a gradual plan to increase time if things progress well, and if this supervised time did not progress well, the arrangements revert to the above; and
(c)The mother consider accessing counselling support for the children or support group for children who have witnessed domestic and family violence.
During cross-examination, Ms D stated that given the further evidence filed in the proceedings, and the extent of time that has passed since the father last saw the children, her recommendations concerning time between the father and the children had shifted to recommending actions more aligned with the children’s wishes.
Ms D was informed of the father’s evidence concerning a November 2023 FaceTime call he received from X, in which X allegedly told the father that the mother said he could live with the father. The mother’s evidence was that she did not know about X’s call to the father. Ms D was of the opinion that given X’s age and developmental level, it was not uncommon for such a call to be made without the mother’s knowledge. She commented that it was not outside of what a child going through separation and trying to make sense of their world and parents would do.
Ms D was queried at numerous points during cross-examination as to whether the dynamic between the mother and children was one where the children could comfortably express to the mother their wish to spend time with or contact the father, particularly given that the children are concerned about their mother. Ms D acknowledged that the dynamic would impact whether the children express their wishes. She later agreed with the question that it was likely the children do not have emotional freedom to express their wishes in the mother’s house.
Ms D was asked about the risks to the children if they do not spend time with the father in an environment where they do not have emotional permission from the mother, stating that there could be behavioural concerns and idealised notions developing around the parent they do not spend time with. She added that the children would be unable to gain a realistic sense of who the father is and who he is to their development. Should the children spend time with the father, albeit in an uncomfortable space lacking in emotional freedom, Ms D noted the risks would be a short-term disruption of the children’s emotional state, distress, conflict in the family household when it comes to preparing and debriefing on visits, and impacts to their emotional wellbeing. When asked to weigh up the set of risks associated with either scenario and identified by Ms D, she stated that the extent of the risk was quite similar.
Ms D was asked about the impact of the criminal proceedings on the mother’s ability to emotionally cope with the children spending time with the father, particularly given that both parties participated in those proceedings and that it may have been a traumatic experience for them both. She stated that during her report, the proceedings impacted the mother although she still tried to facilitate phone contact. Ms D added that there was ‘no question’ the criminal proceedings would impact the mother’s capacity to support, and could potentially retrigger both parents. She then stated that as the children are in the sole care of the mother, the impact of the criminal proceedings would be a risk in the sense that the individual the children rely on most would unravel in their mental health, safety, and wellbeing. Ms D also agreed that risk would be ameliorated if the Court was satisfied the mother had received appropriate support.
When asked about whether the children have the maturity to stand up to the mother and express their wish to spend time with the father, Ms D responded ‘not yet’.
Ms D was reminded of the fact that it had been three and a half years since the children spent face-to-face time with the father, yet that the father’s application before the Court was for the immediate commencement of such time. Ms D accepted the proposition put to her that those two practical issues would be a significant impediment that moved the ‘needle of risk’.
Ms D was asked, in the event findings were made that the father did not have capacity, preparedness, and the ability to appropriately engage with the children at this point in time, whether that presents a further risk to the children. Ms D responded that, if that was the case, supervision or ‘other things’ could be put in place to ameliorate those risks. When queried as to whether a supervision centre could fix the father’s lack of capacity to meet the children’s needs and lack of insight mentioned by Ms D in her report, Ms D said ‘never 100% no’. In addition to guaranteeing physical safety, Ms D added that supervised contact centres sometimes monitor dialogue and the emotional safety and wellbeing of the children. She also stated that possibly twelve months ago a supervision centre would have assisted with ameliorating the mother’s concerns surrounding the father, but that with the further evidence and information provided to her, it was likely to be ‘definitely emotionally disruptive’ although ‘physically safe I suppose.’
Best Interest Considerations
Section 60CC(2)(a): What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child
The father is a perpetrator of family violence.
In 2021, an ADVO was issued for the protection of the mother against the father. It was made on a final basis for a duration of two years, and is now expired.
The mother remains fearful of the father. After observing the father in the witness box and hearing his evidence, the mother indicated that she would not facilitate time between the children and the father if they expressed a wish to see him, as she is concerned about the risks to them if time was to occur.
Neither parent trusts the other.
The distance, both in kilometres and travel time, between the parties’ residences is a factor which provides a level of safety for the children and the mother.
The Court accepts the submissions by the ICL that the father has taken no steps to address the deficits in his parenting as identified by the Family Report writer, that he has taken no action to develop insight into the parenting issues, and no steps to improve his attitude towards the mother. The father has failed to do any parenting, anger management, or men’s behaviour courses.
The Court accepts the submissions that all these matters could expose the children to risk if they spend time with the father on an extended basis. At its lowest, the risk would be the father saying inappropriate things to the children about the mother. At its highest, there is a risk to the children being exposed to some act of domestic violence in his care.
The risk of harm to the children encompasses the father’s unforgiving attitude to the mother, and the lengths he is willing to go to prove his point. For example, he purchased the transcript of the criminal proceedings and had an intention of showing the transcript to the children to show that he was not at fault. While he conceded in cross-examination that he would no longer do so, the fact of him obtaining the transcript, including for that purpose, shows his thinking and priorities. To show the transcript to the children would not only have been clearly distressing and inappropriate, but it would have put the children in a very difficult situation.
Section 60CC(2)(b): Any views expressed by the child
The children have not spent any face-to-face time with the father since separation.
In May 2021, during the Child Inclusive Conference, both children expressed a desire to spend time with the father, but not to live with him.
By the time of the Family Report interviews in September 2023, neither child expressed a desire to spend time with the father, although X said that he would ‘maybe’ want his father to watch him play a sports game.
The children have by and large refused to speak to the father on the phone, despite repeated attempts at such time being facilitated over the years. The children’s counselling session notes[11] reflect their negative views about speaking to the father on the phone.
[11] Exhibit 3.
The evidence suggests that X calling the father in November 2023 is indicative of some wish to keep in contact, but it is very limited evidence in that regard.
In February 2024, X indicated to his counsellor that he would like to see the father one day each holiday. There is no evidence that suggests that either parent became aware of X’s views at the time, or that the counsellor spoke to either of the parents about how such time might be facilitated.
In March 2024, Y indicated that she was fearful her father would take her away from her mother if she was to spend time with him, and that she would ‘punch and kick him to run away’.[12]
[12] Exhibit 3.
Section 60CC(2)(c): Developmental, psychological, emotional, and cultural needs of the child
The children, from time to time, appear to have some difficulties in getting along. They have, at times, expressed quite strong negative feelings towards each other to the counsellor they have been seeing.[13] The children at times yell and hit each other. However, Ms D described the children as ‘close’ and did not raise any concerns about their behaviour towards each other or about their sibling relationship.
[13] Exhibit 3.
X has been physical towards Y, and has punched her and hurt her. Such violence by X towards his sister has occurred in the mornings before the children have attended school, and the children have at times been late to school as a result, and it has also occurred at school.
X also appears to have difficulties self-regulating at school, he will act out and he can be violent. Such behaviour seems to be less frequent that it was previously.
Y has reportedly self-harmed. Y has also engaged in disruptive behaviour at school, including as late as May 2024.
The mother has sought to assist the children by having them engage with a counsellor to support them with their complex psychological and emotional needs.
When he was asked about what the children had said to the counsellor, the father indicated that he thought the mother had told the children to say these things. The father refuses to believe that the children feel the way they have been described as feeling in the counsellor’s notes.
The father has not sent the children any cards or gifts for their birthdays, for Christmas or indeed at all, since the children moved with the mother to Region M. X has expressed disappointment that his father purchased items that the children did not receive. The father’s evidence is that he would not send the children presents to their maternal grandmother’s address as she would not pass them on to the children. Such an attitude is indicative of the father’s lack of insight into what his actions mean for the children.
Section 60CC(2)(d): Capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
The parties are in agreement that only the mother is to have parental responsibility for the children, and it is no longer proposed that the father do so.
The mother has to date been meeting all of the children’s needs.
The father has had very little involvement in the children’s lives, and he has shown very little to no insight into their needs.
Section 60CC(2)(e): Benefit to the child of being able to have a relationship with child’s parents, and other persons who are significant to the child, where it is safe to do so
The Court accepts that the mother has made reasonable attempts to facilitate and encourage the children’s relationship with the father through FaceTime calls. The children have continued to express a reluctance to speaking with their father.
The evidence does not support a finding that the father has the insight and capacity to have a meaningful relationship with the children.
There is limited evidence in respect of the children benefiting from having a relationship with the father, but any such benefit comes at a risk to the children.
Section 60CC(2)(f): Anything else that is relevant to the particular circumstances of the child
The parties live a significant distance apart.
The children are well settled in Town G, and in their schools.
Orders by Consent
At the conclusion of the evidence, the parties agreed on a number of final orders, to be made by consent. That agreement included an order for the mother to have sole parental responsibility for making decisions about major long-term issues for the children, for the children to live with the mother, and for the father to be at liberty to post gifts and cards to the children.
The proposed consent orders included a number of injunctions to address some of the risks identified in the proceedings, including an order that neither party show any document pertaining to any court proceeding to the children. The proposed orders also provide for the sharing of medical information and for the children to continue their engagement with a counsellor.
Those Orders are now made by consent, being in the best interests of the children.
Turning to the remaining issue, what time if any, the children are to spend with the father.
Children’s Time with the Father
While at the commencement of the hearing, the mother’s and the ICL’s application was that the children spend time with the father in accordance with their wishes, following the close of evidence it was apparent that the mother did not support such an order.
Any order for time in accordance with the children’s wishes, given the children’s significant resistance at even speaking to the father and the mother’s lack of support for such an order, is likely to set the parties up for further conflict.
The mother has demonstrated that, if she considers it is safe for the children to do so, she will ensure that the children have every opportunity of spending time with the father in the future. She has acted protectively of the children to date, and she has made reasonable efforts to facilitate the children’s FaceTime with the father.
The father continued to press for orders that the children spend time with him, although the submission was that there should be a period of supervised time first, moving to unsupervised time. The father has not shown any insight or capacity to be able to deal with the children’s resistance to having a relationship with him, this puts the children at significant risk.
While supervision of the father’s time with the children would likely ensure their physical safety, it would not ensure their psychological safety.
The father has, unfortunately for X and Y, failed to show a capacity to understand the children’s needs and to honour those needs. He has failed to show a capacity to appreciate how his actions in the past, his current attitude and his approach to parenting have impacted on his relationship with the children.
Furthermore, to put the children in a situation where they are compelled to spend time with the father, and to put the mother in a situation where she is compelled to ensure the children spend time with the father, something she does not support and noting that she already has some trouble in terms of compelling the children’s to speak to the father on FaceTime, would likely place the children and the mother in a situation where there is conflict and discord in their home. This is not in the children’s best interest.
The Court has also in its determination, considered the possibility for an order that the children spend time with the father as agreed between the parties. The evidence does not support a finding that the parties are capable of reaching agreement about the children’s time with the father, and as such any order which might be subject to the parties reaching agreement will likely result in conflict and further angst for the children.
An order for no time would shut the door to the children having a relationship with the father. This is not in the children’s best interest. Each of the children has shown a semblance of wanting to keep the relationship alive. If the father had shown some insight into his actions, accepted responsibility for what has occurred, including accepting responsibility for the family violence that he has perpetrated, then things might have been different for these children.
The parties’ proposal by consent provides for the father to send to the children cards and gifts, and to write to them. The purpose of this order is to promote the children’s relationship with the father and to leave the door open. It would be sensible for the father to take up this opportunity of engaging with the children, and letting them know that he does love and care for them.
It was submitted on behalf of the mother, that the final orders should simply be silent as to time. The Court acknowledges the sense in that submission, and finds that this is in the children’s best interest.
ICL’s Costs
The ICL sought an order for costs against the father in the amount of $5,876.50.
The Court is not satisfied, having regard to the submissions made on behalf of the ICL, that a costs order as sought is in the circumstances justified. The statutory position remains.
The Court so orders.
I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 30 October 2024
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